In what might be the most-bizarre presidential campaign cycle in one of the most-bizarre years in American history, a singular issue was crystallized: the issue of whether, if elected, the Biden-Harris team intents to “pack” the Supreme Court, expanding the high court’s membership to tip the balance of the court from conservative to progressive.
At a time when Democrats are wrongly accusing the president and Senate Republicans of hijacking the process by trying to fill the court’s vacancy before the inauguration, court packing represents an actual attempt to hijack the long-established norms of the Constitution’s separation of powers.
Worse is the silence by Vice President Biden and Senator Harris on the subject. Despite promising to answer the issue when pressed during the Vice Presidential Debate, Senator Harris deflected, first spinning a historically inaccurate yarn about President Lincoln’s attitude when presented with a vacancy less than a month before the 1864 election, and then accusing the Trump administration of “packing” the federal courts by appointing philosophical conservatives and libertarians (despite the fact that appointing philosophical compatriots to federal courts is what every administration does and is expected to do).
In a truly disturbing moment, when the Biden-Harris team was pressed, again, for an answer (this time by a journalist), Vice President Biden alarmingly said that America would have to “wait” until after the election to find out what their intentions are!
Let’s be clear, the problem isn’t just a true hijacking of the established norms. And the problem isn’t even the eerie similarity between Biden’s statement and Nancy Pelosi’s “you have to pass the bill in order to find out what was in it” regarding Obamacare.
Both of those are problems, and serious ones.
The problem is one of substantive impact — especially over the long term. What does a “packed” Supreme Court mean when it comes to substantive issues of policy and structural issues of functionality within our federal government?
Just before the election four years ago, my colleague, Jerry Rogers, and I wrote a piece on the potential relationship between Congress and the possibility of a President Donald Trump. The thesis was simple: In an era in which concentrated power in the federal executive branch was the greatest threat to individual liberty in America, perhaps the fear of what a President Trump might do with that power would encourage Congress to actively rein in that power.
It was, perhaps, naïve of us to think that Congress might actually work to rein in that power. Not only did it never occur to us that in many respects President Trump has worked to eschew that power (by cutting the scope of the administrative state’s authority, putting additional checks on that power, and by trying to get Congress to do its job), but it really didn’t occur to us that despite the wails of the left that Donald Trump is an “authoritarian,” their desire to ensure that a future progressive president would be able to wield that power would outweigh their concerns about Trump.
The bottom line is that concentrated executive branch power remains a singular threat to individual rights in America — and the Biden-Harris ticket has made it abundantly clear that they intend to reinvigorate those powers. Whether it is going after rights to self-defense, or in terms of dealing with the Covid19 threat in the near term, or in dealing with other regulatory issues over the long-term, both Biden and Harris have made it clear they plan to flex the muscles of executive branch power.
Which is why they need the Supreme Court cleared as an obstacle. And why packing the court is so important to them. It is so important that it is essentially the only issue for which they won’t directly signal their intentions.
They mean to tip the balance further towards concentrated power in the Executive Branch, knowing that Congress has essentially abandoned its responsibility as a check on presidential power and that the only bulwark against a progressive executive branch run amok is a Supreme Court that leans slightly to the right.
Moreover, let’s keep in mind, the assertion by Biden-Harris (and, by extension, their supporters) is that filling the Supreme Court vacancy is a central issue of the election, and that despite the president and the Senate being in general agreement on a nominee, the position should remain vacant.
But Biden and Harris can’t have it both ways. They can’t make the Supreme Court’s consistency (and the public’s voice) an issue in the campaign and then sidestep both questions of fundamental structure of the court and who is actually on their list of potential justices.
Yes, of course the Democrats’ opponents would pick apart their nominees. But that’s how a functioning marketplace of ideas actually works — you state your position, your opponent offers a response, and the public is informed enough to make (what one hopes is) a rational choice on the subject.
When you keep your positions and your choices a secret, however, the public cannot make an informed choice. It is the ultimate “pig in a poke.”
There is a quote I use often from a 1992 Supreme Court decision, New York v United States, authored by Justice Sandra Day O’Connor:
“[T]he Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as the expedient solution to the crisis of the day.”
Joe Biden and Kamala Harris want to concentrate that power. They know that the Supreme Court stands on precedent to prevent them from doing so. Packing the court wipes away those obstacles in one fell swoop. They know the American people won’t tolerate it, which is why they stand mum on answering and insist that you should vote for them anyway.
The American people should not stand for their silence.
Andrew Langer is President of the Institute for Liberty and a frequent writer on federalism and the separation of powers.
