Just before the Senate recessed last week, Senator Ron Wyden introduced legislation to pack the Supreme Court. This came on the heels of President Biden and Vice President Harris proposing their own multi-tiered assault on the structure of the high court, as I recently explored.
Wyden’s bill, S. 5229, is the most radical and dangerous legislation to date aimed at destroying the Supreme Court as we know it—complete with provisions that raise serious constitutional questions. The legislation would:
- Add six justices to the Court, with one to be added during the first and third years of presidential administrations until the number of justices on the Court reaches 15.
- Weaken the Senate’s power of advice and consent by requiring Supreme Court nominees to be automatically scheduled for a vote if their nominations stall in committee for 180 days.
- Expand the number of federal judicial circuits from 13 to 15—adding more than 100 district court judges and more than 60 appellate-level judges—so Democrats can stack the federal bench with more unfit radicals.
- Impose a new supermajority requirement under which acts of Congress could be invalidated only with the concurrence of at least two-thirds of the voting justices and a majority of the total number of justices. At the circuit level, panels of judges would have to be unanimous to strike down a federal statute, and for rehearings en banc, at least two-thirds of the voting judges must concur.
- Require the justices to consider and produce publicly available written opinions regarding recusal motions.
- Harass the justices with requirements for audits of their tax returns and for public disclosure of the tax returns of Supreme Court justices and nominees.
- Resume the old practice of assigning one justice to oversee each circuit.
We have known since the 2020 election cycle that dark-money groups on the Left want to pack the Court. Senator Ed Markey last introduced legislation to do just that, proposing to add four more justices, in May 2023. But more attention was given to Senator Sheldon Whitehouse’s scheme to create a supposed ethics panel with the aim of strategically subtracting justices, which Judiciary Democrats highlighted in hearings, also in May 2023. That was before this election season. For those who study political malpractice, it may be asked why a senior Democrat like Wyden would introduce such an abomination of a bill on the last day before the 2024 election that the Senate was in session. It so obviously eviscerates any claim the Democratic Party has to moderation or to being protective of the rule of law.
Questions naturally follow for those up for election this year: Does Montana Senator Jon Tester support this? Does Pennsylvania Senator Bob Casey support this? Does Nevada Senator Jacky Rosen support this? Does Ohio Senator Sherrod Brown support this?
Of course, the Biden-Harris mess of a proposal also came during the election season. The irresistible conclusion is that the Democrats just cannot help themselves. They have become so unhinged over the loss of control of a Court that now puts the law over progressive policy wish lists that they would wage a multi-front assault on the judiciary at the very moment they most need to appeal to independent voters in a closely divided electorate. Franklin D. Roosevelt advanced his “bonehead idea”—Joe Biden’s words from long ago—to pack the Court in 1937, the year after a presidential election. Today’s Democrats are setting new benchmarks of boneheadedness, and unlike FDR, they show no sign of knowing when to stop. If they were to sweep control of the elected branches of the federal government and abolish the Senate filibuster, it is not hard to imagine the immense damage they would do to the Court.