Over the weekend, White House press secretary Karine Jean-Pierre confirmed that President Joe Biden remains opposed to the idea of court-packing following the United States Supreme Court’s controversial ruling on abortion.
“So, I know I’ve … I was asked this question yesterday, and I’ve been asked it before — and I think the president himself … about expanding the court,” Jean-Pierre said. “That is something that the president does not agree with. That is not something that he wants to do.”
This sober approach to the court puts the president at odds with many leaders in his party, who have taken to absurdly strident rhetoric attacking the legitimacy of the Supreme Court.
“This court has lost legitimacy,” said Sen. Elizabeth Warren, D-Massachusetts, on ABC News. “They have burned whatever legitimacy they may still have had after their gun decision, after their voting decision, after their union decision … and that means we need more justices on the United States Supreme Court.”
This rhetoric echoed that of Warren’s fellow Sen. Ed Markey, who tweeted, “Again, I ask my colleagues in the Senate what other judicial outrage must we endure from the illegitimate, far-right majority on the Supreme Court before we act? Fight back and expand the Court now.”
First, it must be said that the Supreme Court is perfectly legitimate. It is shameful for Democratic politicians to hypocritically attack the legitimacy of an American institution while at the same time complaining about President Trump’s attacks on American institutions.
Just because they disagree with how an institution operates, that doesn’t mean it is illegitimate. All of the justices were lawfully nominated by past presidents and approved by the Senate. That is how our system of government works and that is what happened.
Second, their preferred remedy of packing the courts is an absurdly short-sighted remedy that will only encourage greater partisan gamesmanship over the nature of the court.
“If anything would make the court appear partisan it would be that,” said the late Justice Ruth Bader Ginsburg in 2019. “One side saying when we’re in power we’re going to enlarge the number of judges so we’ll have more people who will vote the way we want them to. So I am not at all in favor of that solution to what I see as a temporary situation.”
Likewise, Justice Stephen Breyer warned last year that structural changes to the courts perceived as motivated by partisan interests would only erode public trust in the courts and extension undermine the authority of the courts.
“If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” he said.
It is understandable that many Americans disagree with some of the Supreme Court’s decisions. That’s always going to be the case as long as the court has to rule on substantive issues. But that’s not a justification for altering the institution of the court and treating it as merely an extension of the more explicitly political branches.
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