President Biden signed an executive order setting up a bipartisan commission tasked to study reforming the high court, including possible provisions to change the number of sitting justices or to end the traditional practice of making lifetime appointments to its bench. Conservatives warned that the move sets the stage for the president to break his campaign promise to voters that he would resist growing calls from left wing Democrats to pack the high court with liberal judges to overturn its current 6-3 majority of conservative jurists.
A Biden White House announcement said that, “the Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
The U.S. Constitution is silent on the number of judges to sit on the Supreme Court bench or the length of their tenure in office. Any move by Biden and the Democrats to make such fundamental changes in the politically independent third branch of the federal government, would spark instant comparisons to the failed effort by President Franklin Roosevelt in 1937 to pack the high court with six additional liberals after the existing justices had struck down several of his New Deal measures as unconstitutional.
Back in 1983, when then-Senator Joe Biden was the ranking Democrat member of the Senate Judiciary Committee, he publicly expressed his strong disapproval of Roosevelt’s court packing effort in no uncertain terms. Biden said, “President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the Court. It was totally within his right to do that. He violated no law, he was legalistically absolutely correct. But it was a bonehead idea. It was a terrible, terrible mistake to make, and it put in question, for an entire decade, the independence of the most significant body, including the Congress in my view, the Supreme Court of the United States of America.”
ATTACKING TRUMP’S MOST LASTING ACCOMPLISHMENT
Many believe that Donald Trump most significant and lasting accomplishment as president was his success in confirming three reliably conservative justices to the Supreme Court, starting with Neil Gorsuch, Brett Kavanaugh, and concluding with the confirmation, just a month before the November election, of Justice Amy Coney Barrett.
Barrett’s confirmation as the replacement for the court’s longtime liberal leader, Justice Ruth Bader Ginsburg, was a historic event because it upset the court’s ideological balance between liberal and conservative justices. For more than 30 years, the court had been evenly split 4-4 between conservative justices, led by the late Anton Scalia, and liberal justices, led by Ginsburg. The decisive 9th swing vote was traditionally cast by Justice Anthony Kennedy, who was appointed to the Supreme Court in 1987 by President Ronald Reagan. He usually decided the cases before him on a politically neutral basis.
The death of Justice Scalia in early 2016, which gave President Obama the opportunity to name a liberal to Scalia’s seat, threatened to upset that 4-4 balance. However, Obama’s nomination of Merrick Garland was successfully blocked by Republican Senate Majority Leader Mitch McConnell, eventually enabling President Trump to fill Scalia’s seat with Gorsuch, another staunch conservative. After Justice Kennedy’s retirement in 2018, his role as the court’s swing vote to break 4-4 ties was played by Chief Justice John Roberts, who frequently sided with the court’s liberals even though he was nominated in 2005 by President George W. Bush based upon his conservative credentials.
Trump’s appointment of Barrett to the seat vacated by Ginsburg’s death significantly altered the court’s ideological balance by creating a stable conservative majority of 6-3, or at worst, 5-4, even if Roberts voted with the liberals. Furthermore, because of the relative youth of Trump’s three Supreme Court appointments, that conservative majority is likely to be long-lasting, barring any structural changes in the court’s makeup.
VICTORIES FOR RELIGIOUS LIBERTIES
Since Justice Barrett joined the court in October, the liberal wing has been consistently outvoted, even when Chief Justice Roberts has joined with them against the conservatives. That change has been reflected in a number of recent 5-4 rulings in which the court altered its previous position by upholding challenges against state imposed Covid restrictions on the right to public religious worship.
The most recent Supreme Court 5-4 victory for the advocates of religious liberties came last week in a case called Tandon v. Newsom. The ruling overturned a Covid-related California state ban on religious gatherings by more than three households in a private home.
The court majority ruled that since California had decided to allow an unlimited number of people to gather indoors for secular purposes, such as eating at a restaurant, shopping in a store, or getting a haircut, it also had to allow any number of people to gather indoors for religious purposes, such as attending a religious study class held in someone’s home.
Last week’s ruling was legally noteworthy because it asserted the principle that any time a government grants a specific exemption to a given law or regulation, under the First Amendment’s free exercise of religion clause, that exemption can automatically be claimed by those seeking to use it to practice their religious beliefs. It went significantly further in recognizing religious rights than the celebrated decision last fall in which the Supreme Court threw out the occupancy limits that New York Governor Andrew Cuomo had placed on churches and synagogues, because they were smaller than the occupancy limits on secular establishments and therefore discriminated against religious institutions. In last week’s decision, the high court ruled that it was not necessary for religious institutions to prove that they were the victims of discrimination. Instead, the mere existence of any exemption to a regulation automatically enabled a religious institution to claim the same exemption, without any limitations.
The unsigned decision written by court’s conservative majority ruled that California had no right to treat “some comparable secular activities more favorably than at-home religious exercise.” A dissenting opinion written on behalf of the court’s liberal minority by Justice Elana Kagan argued that California did have a right to impose a limit of three households on religious gatherings in homes as long as the same standard was being applied to similar secular gatherings, and that it was not required to “treat at-home religious gatherings the same as hardware stores and hair salons.”
This latest decision extending religious rights has prompted liberal legal advocates to become more outspoken in voicing their concerns that the conservative Supreme Court majority will overturn other liberal Supreme Court rulings on issues including voting rights, environmental regulations and the 1973 Roe v. Wade decision.
Many of them are now calling on Biden to reconsider Roosevelt’s court packing scheme, even though it was widely condemned at the time, and has since been judged by historians to be the greatest political blunder of FDR’s presidency.
BIDEN’S HIGH COURT STUDY COMMISSION
As a presidential candidate last year, Biden said that he opposed expanding the high court, but he did say during the campaign that he would name a commission to study a range of changes in the high court.
“It’s not about court packing,” Biden insisted in a televised interview in October. “There’s a number of other things that our constitutional scholars have debated, and I’ve looked to see what recommendations that commission might make.”
Among the questions the commission was asked to consider are whether the number of justices should be increased; whether there should be age or term limits on how long a justice can serve; and whether there can or should be changes to the judicial nomination and confirmation process and the court’s operating procedures.
Biden is moving cautiously on this issue because, according to a national poll taken just before the November election, there is still a strong 58-31 percent voter consensus opposed to altering the structure of the Supreme Court. However, the predominantly liberal composition of his new commission and its broad mandate to recommend fundamental changes indicate the administration’s desire to weaken the ability of the Supreme Court’s new conservative majority to reverse some of its previous liberal rulings, most notably including Roe v. Wade, and to block Biden’s liberal policy initiatives.
Biden has given the new commission 180 days (six months) to come back with its recommendations to “reform” the Supreme Court. The commission consists of 36 members selected to give it the appearance of racial, ethnic and ideological diversity. The two co-chairs of this Commission are Bob Bauer, who served as President Obama’s White House Counsel, and Cristina Rodríguez who served as a Deputy Assistant Attorney General during the Obama administration. Its other members include legal scholars, former federal judges, advocates for reforms in the institutions for the administration of justice, and experts on constitutional law, history and political science.
The White House announcement also said that, “to ensure that the Commission’s report is comprehensive and informed by a diverse spectrum of views, it will hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining.”
Conservative legal experts consider most of Biden’s appointees to the commission to be little more than political window dressing. They are more concerned about the presence on the commission of influential liberal legal authorities such as Laurence Tribe and the role to be played by the commission’s spokesperson, Kate Ariad, who was one of the liberals who demanded the disqualification of Brett Kavanaugh on the basis of false allegations after Trump nominated him to the Supreme Court bench.
LIBERALS PUSHING BIDEN’S RADICAL AGENDA
Conservatives fear that the real goal of the Biden commission under the leadership of such outspoken liberals is to radically alter the structure and operations of the third branch of the federal government. They note that liberals have been publicly urging the abandonment all previous restraints on the power of the narrow current Democrat congressional majorities. Biden and liberal Democrat leaders hope to be able to impose their radical liberal policies on the American people by doing away with the Senate filibuster rule and issuing executive orders in an effort nullify existing federal statutes and abridge the personal liberties guaranteed by the Bill of Rights.
Since becoming president, Biden has changed his previously declared public positions on both of these issues. When he was a candidate for the White House last year, Biden argued that a president who uses executive orders instead of asking Congress to pass legislation was acting like a “dictator.” But during his first three months as president, Biden has already signed 38 executive orders, far more than any of his predecessors in the same period.
As a senator in 2005, Biden argued in what he called one of the most important speeches of his career that ending the filibuster “would eviscerate the Senate and turn it into the House of Representatives. It is not only a bad idea, it upsets the constitutional design and it disservices the country. No longer would the Senate be that ‘different kind of legislative body’ that the Founders intended. No longer would the Senate be the ‘saucer’ to cool the passions of the immediate majority.”
But now that he sees it is an obstacle to his aggressive liberal policy agenda, President Biden has been calling the filibuster a legislative relic of the “Jim Crow” era of segregation that should be abolished.
THE SENATE HOLDS THE KEY TO THE SUPREME COURT
Getting rid of the Senate’s filibuster is especially crucial to the changes that Democrats are proposing for the Supreme Court. Under current Senate rules, Biden does not have the ability to get any of his future Supreme Court nominations approved without at least 10 Republican votes needed to eliminate the threat of a filibuster.
Democrats are keenly aware that their ability to control the Senate through Vice President Kamala Harris’ 50-50 tie breaking vote hangs by a slender thread. If any of the 50 current Democrat senators should die or suffer an incapacitating illness, control of the Senate would instantly flip to the 50 Senate Republicans. That is one of the reasons why Biden and the Democrats have been acting so quickly to force his legislative proposals through Congress, and avoiding the controversial filibuster issue by using the reconciliation process whenever they can.
Liberals also worry that many of the gains Biden might be able to achieve by exploiting the current narrow Democrat control over both houses of Congress could be eventually reversed by legal challenges as long as the Supreme Court remains under the control of the 6-3 conservative majority.
The power of that conservative majority has been demonstrated by the recent string of Supreme Court victories for religious rights advocates, reversing previous decisions on cases involving the same issues. The conflict between government’s regulatory powers and constitutionally protected religious liberties has become a bitterly partisan issue, with Democrats and liberal justices supporting more limitations on religious rights, and Republicans and conservative justices standing up to defend them against government encroachment.
RELIGIOUS LIBERTIES UNDER ATTACK
In a November speech to the conservative Federalist Society, conservative Justice Samuel Alito noted that, “for many today, religious liberty is not a cherished freedom. It pains me to say this, but, in certain quarters, religious liberty is fast becoming a disfavored right.”
Former Trump Attorney General William Barr made a similar point in an October 2019 speech at Notre Dame university. Barr stated that the secular attacks on religious liberties pose a threat to American democracy because the Founding Fathers of this country had depended on personal religious values to instill the necessary “moral discipline” within our society.
Barr noted that over the past 50 years, “the steady erosion of our traditional Judeo-Christian moral system and a comprehensive effort to drive it from the public square. . . [combined with] the growing ascendancy of secularism and the doctrine of moral relativism,” have had a devastating impact on popular American cultural values.
“Along with the wreckage of the family, we are seeing record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic,” Barr added.
The liberal justices on the Supreme Court are pushing back on the same issues. For example, in 2018, Justice Elena Kagan accused the court’s conservative majority of “weaponizing the First Amendment,” and of using its protection of free expression “to intervene in economic and regulatory policy.”
POLITICIZATION OF RELIGIOUS BELIEFS
The growing legal confrontation between advocates for secular and religious values and the correlation between the positions of Supreme Court justices in those cases and their partisan affiliations was also confirmed by a study recently published in the Cornell Law Review by Zalman Rothschild, a fellow at the Constitutional Law Center. Rothschild found that, “the politicization of religious freedom has infiltrated every level of the federal judiciary.”
That existing trend over the previous five years was further emphasized, Rothschild wrote, “when the pandemic struck, resulting in widespread lockdowns of religious houses of worship. The unprecedented number of constitutional free exercise cases brought in such a condensed span of time forced that partisanship into sharp relief.”
Before the pandemic, Rothschild found, judges appointed by Democrats sided with religious rights advocates only 10 percent of the time, compared with 49 percent for judges appointed by Republicans and 72 percent for those named by President Trump. With regard to the 2020 court cases over Covid restrictions, the partisan contrast was even greater. Rothschild found that not a single judge appointed by Democrats ruled in favor of religious rights in the Covid cases, while 66 percent of judges appointed by Republicans and 82 percent of judges appointed by Trump did.
KEY CASES WAITING TO BE DECIDED
The recent success of the conservative majority on the Supreme Court on religious issues is a worrying development for liberals who look with growing concern at backlog of cases involving other key constitutional issues that are now waiting to be heard.
The most controversial case which has already been waiting for a long time to be heard concerns a Mississippi law which seeks to limit the window for permissible medical procedures under the 1973 Roe v. Wade decision to 15 weeks.
A gender identity-related case waiting to be heard involves a dispute between state laws in California and Texas regarding foster care and adoption regulations.
Another religious rights case that is expected to be decided before the current court term ends this summer is a challenge by a Catholic foster care agency to a Philadelphia anti-gender discrimination law.
There are also several cases waiting to be heard regarding Second Amendment gun ownership and carrying rights.
Finally, there is a lawsuit in the Supreme Court pipeline accusing Harvard University of altering its admissions process to discriminate against Asian applicants in order to boost the college’s black and Hispanic student enrollment.
Liberals are now bracing to lose most, if not all of those Supreme Court cases and more to follow. As long as the Senate’s filibuster rule remains firmly in place, Biden and the Democrats appear to have no immediate options for overturning the Supreme Court’s 6-3 majority. Ironically, the liberal’s main hope to preserve prior liberal Supreme Court decisions is that the conservative justices will be true to their ideological commitment to interpret existing laws rather than creating new laws, and that they will hesitate before using their majority to overturn well-established liberal precedents, even if they don’t agree with them.
PRESSURE ON JUSTICE BREYER TO RETIRE NOW
Many liberals fear that they might also soon lose Stephen Breyer, who, at age 82, is the court’s oldest sitting justice and already well past the usual retirement age. Breyer has come under pressure from some progressive legal activists to step aside without delay, to enable Biden and the Democrats to try to negotiate an orderly replacement procedure with Republicans that won’t further alter court’s ideological balance.
Last month, University of Colorado law professor Paul Campos wrote in a New York Times op-ed that Breyer, “should announce his retirement immediately, effective upon the confirmation of his successor.” He and other liberals are concerned that Breyer may try to hang on to his seat on the Supreme Court bench too long, as Ruth Bader Ginsburg did, and thereby risk eventually losing it to another conservative.
Campo points out that the current 50-50 Senate Democrat-Republican split, enabling Democrat Vice President Kamala Harris to cast the tie breaking vote, could change at any time. The death or incapacitation of any one of the six elderly Democrats who represent states in which a Republican governor would name the replacement, would instantly give the GOP a 51-49 Senate majority. There are another five Democrat senators who, if they died or stepped down, would leave their seats vacant for months until a special election could be held, leaving the Republicans with a 50-49 majority. Under either circumstance, it would be highly unlikely that Biden could name and win Senate confirmation for any liberal replacement for Justice Breyer. In addition to Campo, Brian Fallon of the liberal Demand Justice legal advocacy group is publicly urging Breyer to step down now, and some progressives have launched a petition and publica relations drive to accomplish the same goal.
If Breyer does agree to retire soon, or if another Supreme Court justice needs to be replaced, Biden as a presidential candidate last year promised to appoint a black woman to fill the vacancy.
However, after 26 years on the high court’s bench, Breyer appears to be in no hurry to step down early, even if it does improve the odds that he would be succeeded by a justice with similar liberal views. In Breyer’s most recent comment on the subject retirement, during a December interview published by Slate magazine, was tantalizingly cryptic. “I mean, eventually I’ll retire, sure I will,” he told interviewer Dahlia Lithwick, but then added, “it’s hard to know exactly when.”
The last time a liberal justice of the Supreme Court was able to step down with confidence that his replacement would have the same ideological perspective was in 2010, when John Paul Stevens, at age 90, retired in favor of Elana Kagan, but at that time Obama was president, and Democrats enjoyed a large majority in the Senate, making the confirmation of Kagan’s nomination a nearly sure thing. But in today’s closely divided and much more partisan Senate, any liberal Supreme Court nominee chosen by Biden to replace Breyer would be almost certain to face intense Republican opposition.
AVOIDING GINSBURG’S MISTAKE
Despite her advancing age and failing health, Justice Ginsburg ignored liberal calls for her to step down at the beginning of the Obama administration, when Democrats controlled a filibuster-proof supermajority in the Senate that would have guaranteed a liberal replacement for her. In a 2014 interview with the Associated Press, Ginsburg was asked about her decision not to retire. Her defiant response to the question was, “So who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?”
Like almost everyone else in Washington, Ginsburg had expected Hillary Clinton to be elected president in 2016. When Trump unexpectedly won the White House, she apparently believed that she could hang on until he was gone. She was wrong. Justice Ginsburg died at age 87, after a long fight against pancreatic cancer, just before the end of Trump’s presidency.
While speculation about Justice Breyer’s retirement intentions remains high, Republicans are less worried about the durability of the current conservative majority on the court. Clarence Thomas, their oldest justice, is 72, followed by John Roberts at 66, Brett Kavanaugh at 56, Neil Gorsuch at 53, and Amy Coney Barrett at 49. The other two liberal Supreme Court justices are Sonia Sotomayor, age 66, and Elena Kagan, age 60,
BREYER’S TIMELY REMINDER
In a speech he made at the Harvard Law School last week, Justice Breyer warned his fellow liberals to think “long and hard” before attempting to make any major structural changes to the Supreme Court that might shake the American public’s “trust that the court is guided by legal principle, not politics.”
“Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust,” he added.
Justice Breyer also pushed back at the idea that liberals could no longer trust the decisions being made by the current Supreme Court. “The present court is often described as having a ‘conservative’ majority,” Breyer admitted. “But the court did not hear or decide cases that affected political disagreements arising out of the 2020 … election. It did uphold the constitutionality of Obamacare, the health care program favored by liberals. It did reaffirm precedents that favored a woman’s right to [to choose].”
Breyer also suggested that even the conservative justices appointed by Trump who support the literal interpretation of the constitution might not always do as expected by following the conservative legal ideology. “Some think so,” Breyer said. “But I tend to think: Perhaps. Perhaps not.”
The remark was an important reminder to conservatives and liberals alike that within the Supreme Court itself, the long tradition of political independence lives on, despite the atmosphere of intense partisanship that now surrounds it in Washington. As a result, surprises must still be expected now and then, even from the most ideological of its justices, and confident predictions about future court rulings based upon past performance may be wrong.