Court Reformers Could ‘Eviscerate the Independence of the Judiciary’

One presidential prediction that’s coming true: Joe Biden would move to alter the US Supreme Court. He has named a commission to study judicial reform. A number of groups are taking that much further. One effort, called “Unrig the Courts,” seeks to both increase the number of justices and impose term limits on them as well. But some legal scholars see big problems with moves in this direction.

Democrats complained throughout Donald Trump’s presidency that the Supreme Court had been stolen as he added one…two…then three justices during his time in office.

Now many of these Democrats feel they have the power to seat at least six new permanent justices, resulting in two for each Trump pick.
 
Those Who Believe Trump ‘Stole’ Supreme Court Seats Want a ‘Remedy’

“If it’s one stolen seat, from the Progressive point of view, packing the Court by two seats might feel like the only thing that’s somehow adequate to remedy the injury,” explained Law Prof. Joshua Braver at the University of Wisconsin.
 
A majority of the Democrats’ presidential candidates campaigned to pack the court. Constitutional expert and author of Supreme Disorder, Ilya Shapiro, labels their real motive as taking control of the Court.
 
Shapiro told CBN News, “‘Court packing’ has come to mean adding seats to the Supreme Court for partisan reasons, for ideological gain.”
 
“…To issue opinions that are pleasing to the policy and political agendas of the people who will have packed the Court,” added John Malcolm of The Heritage Foundation.

‘That is a Very Dangerous Development’
 
Malcolm believes that would lead to real damage.
 
“Once you start down that road, you have completely eviscerated the independence of the judiciary,” he asserted. “And that is a very dangerous development.”
 
Professor Braver also sees the potential harm.
 
‘So Large That Its Legitimacy Pops’

He stated, “Its distinct danger is that it unleashes a tit for tat downward spiral of packing: ‘I pack, you pack, I pack, you pack;’ ballooning the Court’s size so large that its legitimacy pops.”
 
Added Prof. Ilya Somin from George Mason University, “Judicial independence does get destroyed. This may be welcomed by some people on both Left and Right who think ‘well, the real problem with the judiciary is they strike down too many laws and regulations. So if we intimidate the judiciary into submission, then the world will be a better place.'”
 
But all this could turn the much-respected Supreme Court into just another bunch of politicians.
 
“…which is not much more than a lap dog of whichever party controls the White House and the two houses of Congress,” Somin declared. 
 
Dragging the Court ‘Down into the Much, into The Toxic Cloud’

“It’s not that Congress or the presidency have this great respect and they want to pull the Court up to their level,” Shapiro explained. “In fact, this would indeed drag the Court further down into the muck, into the toxic cloud that’s enveloped all of our discourse in Washington.”
 
Joe Biden is following through on a campaign promise regarding courts by setting up a commission to study judicial reform. Why?
 
Biden Contends the Courts are ‘Out of Whack’

As Malcolm put it, “President Biden at one point said he’s not a fan of Court-packing, but that the courts somehow are ‘out of whack.'”
 
One of the more accepted reforms might be imposing 18-year term limits on the justices.
 
“That would get rid of, for example, these morbid health watches over octogenarian justices, or politically-timed retirements and arbitrary vacancies as they arise,” Shapiro stated.
 
Malcolm added, “I’m less bothered by it because that would be more ideologically neutral if you will.”

Taking Out the ‘Chance’ Factor
 
Somin pointed out, “There would be a vacancy on the Supreme Court every two years, and this eliminates these vagaries where vacancies depend on chance, like whether a particular justice gets sick and passes away or retires.”
 
But whatever reforms Biden’s commission proposes may come to nothing.
 
Because as Shapiro put it, “These commissions are what politicians use to kick the can down the road, to hopefully six months from now, it won’t be such a burning issue and they can safely ignore whatever report comes out.”

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