Joe Biden Is Flirting with the Destruction of the Judiciary

Joe Biden says, "You'll know my opinion on court-packing when the election is over." To this point, Biden hasn't offered any position on court-packing, one of the gravest threats to the constitutional order in modern American history. Whether he is too scared of offending a significant faction of his party or he believes it's an idea worth considering, his silence is a reflection of a dangerous shift on the left.

Progressives, of course, have a point. If the Supreme Court adheres to even the most rudimentary constitutional limits on state power, rather than surrendering to the impulses of majoritarian politics, it's going to be a huge impediment to their agenda. Indeed, they have the same motivation as President Franklin Roosevelt had when he attempted to expand the Court in 1937: One-party rule.

FDR revived a Woodrow Wilson plan to arbitrarily place political allies into the courts, one for every judge over 70 years old, which would have meant 50 additional political allies on the federal bench, and six additional Supreme Court justices. Like today's Democrats, he first softened up the public by attempting to delegitimize the Court -- claiming, for instance, that the justices were incompetent geriatric cases incapable of performing their duties. (It is somewhat ironic that the most reliably pro-New Deal justice at the time, Louis Brandeis, was the only octogenarian on the Court.)

In those days, there were still enough politicians who valued the separation of powers to stop him. Of the 10 members of the Senate Judiciary Committee who signed a document opposing FDR's scheme, seven were Democrats. They didn't merely maintain that FDR was wrong or misguided; they argued that the court-packing plan was an "utterly dangerous abandonment of constitutional principle," a transparent scheme to punish justices whose opinions diverged from the executive branch, and "an invasion of judicial power such as has never before been attempted in this country."

If enacted, the senators wrote, court-packing would create a "vicious precedent which must necessarily undermine our system." They concluded that the plan "should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America."

FDR, whose popularity would plummet to historic lows after the court-packing threat, ultimately went on to appoint eight justices, and to largely have his way in fundamentally changing American governance. But he was prevented from destroying the Court as an institution, and modern-day Democrats are now seeking to finish that job.

Today, every instance in which Democrats are denied a political victory is immediately transformed into a national "crisis" in which the public has "lost faith" in a system that worked perfectly fine when they were in power. Not that long ago, self-interest was a motivation for defending deliberative politics and republican order. But these days, undeterred by reality, partisans have convinced themselves they'll be in power forever.

It's not merely the progressive fringe that demands Democrats blow up the courts. It is the partisan, self-proclaimed defenders of "norms." In a recent piece in The Atlantic, the nation's leading periodical of intellectual anti-constitutionalism, Lawfare's Quinta Jurecic and Susan Hennessey argue that "if Republicans continue the smash-and-grab approach to confirming Barrett," court-packing "may be the only way for Democrats to save the Court."

The duly elected president and the duly elected Senate are observing the constitutionally stipulated guidelines for placing a highly qualified jurist on the Court. Someone will need to do a better job of explaining how dismantling the Court will "save" it. Now, perhaps if you've lost the ability to differentiate between ends and means, the idea makes intuitive sense to you. Perhaps you nod along as Biden spuriously argues that Amy Coney Barrett's nomination is nothing more than the exploitation of a "loophole" to undo the Affordable Care Act, ignoring the fact that we don't know how she'll rule on the Obamacare lawsuit. But back here in the real world, we know that court-packing would be far more destructive to our political order than anything Donald Trump has done, Barrett's nomination very much included.

The notion that the Senate shouldn't confirm Trump's nominee because Biden might win the election or Trump lost the "popular vote" is highly dubious. Justices do not need the consent of the majority, nor should they seek it. As Clark Neily, the vice president for criminal justice at the Cato Institute, recently noted, some of the Supreme Court's "most reviled cases -- including Dred Scott (slavery), Plessy (separate-but-equal), and Buck v. Bell (eugenics) -- involved acceding to democratically enacted policies. I can think of no higher compliment to pay a judge than to characterize her as antidemocratic."

And that's if Democrats take the charge seriously, which all evidence suggests they don't: Remember, they had no problem with this "anti-democratic" institution when it was creating constitutional rights to gay marriage and abortion. It only becomes a problem for them when it threatens to defend the Bill of Rights.

Joe and Kamala refuse to answer the question about whether they’d pack the SCOTUS with liberal judges. They also refuse to answer questions about supporting BLM and Antifa rioters and looters, and about supporting law enforcement.

That’s just some of the issues they refuse to answer questions about.

But...

Joe and Kamala are not shy about offering their plans for the economy and coronavirus and Obamacare and ‘climate change’ and increasing taxes while undoing Trump’s tax cuts and cuts in regulations.

The simple truth is that, it’s not about the media making hay about the answer that Joe and Kamala have in mind about packing the court. It’s about how, if they told the truth, they’d be in deep trouble with a huge percentage of voters, who don’t support packing the court.

In reality, Joe and Kamala will not say it, but, by refusing to answer the question, they are admitting to the FACT that they do intend to pack the court with liberal judges who will be nothing more than “yes men/women” for the progressive agenda of the democrats.

Simple answer: they will do court packing, thereby making the court a completely partisan division of the democratic party.

Of the Constitution as the Supreme Law of the Land until amended in accordance with Article V, Alexander Hamilton asserted:

“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act.” – Alexander Hamilton

If one of the Founders, himself chosen to interpret the Constitution to "the People," through his writings in THE FEDERALIST's 85 Essays, makes such a strong assertion about the nation's Constitution's supremacy, then isn't it reasonable that elected or appointed officials in the government it structures are not allowed to "innovate" upon appropriately-enacted laws flowing from its provisions?

Have these progressives found some new, and appropriately-passed Amendment?

The answer to that question is a resounding, "No!"

In June 2016, Trump stated: "Yet today, 240 years after the Revolution, we have turned things completely upside-down." - Donald Trump

And it's not just about jobs and economic opportunity. It's about freedom, exercise of "Creator-endowed rights and liberties," and opportunity for each citizen, not just self-appointed elitists who fancy themselves as entitled to make decisions for all.

Thomas Jefferson wrote to Roger Weightman on June 24, 1826:

" I should, indeed, with peculiar delight, have met and exchanged there congratulations personally with the small band, the remnant of that host of worthies, who joined with us on that day, in the bold and doubtful election we were to make for our country, between submission or the sword; and to have enjoyed with them the consolatory fact, that our fellow citizens, after half a century of experience and prosperity, continue to approve the choice we made. may it be to the world, what I believe it will be, (to some parts sooner, to others later, but finally to all,) the Signal of arousing men to burst the chains, under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings & security of self-government. That form which we have substituted, restores the free right to the unbounded exercise of reason and freedom of opinion. all eyes are opened, or opening, to the rights of man. the general spread of the light of science has already laid open to every view. the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god. these are grounds of hope for others. for ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them."
Some time ago, I posted the following:
"Perhaps the so-called "progressive" enemies of freedom understand better than those who fancy themselves as "conservatives" that in order to reverse the Founders' ideas of "People over government," and institute "government over People," they must first marginalize and destroy the ideas from which liberty is derived.
The writings of America's Founders are replete with references which rebuke would-be tyrants and cite a Higher Source for life, liberty and rights. Early histories confirm those facts.
As so-called "progressives" have led a movement in forsaking the Founders' "reliance on Divine Providence," and belief that individuals are "endowed by their Creator," they also have forsaken the principles underlying America's Constitution and Declaration of Independence, and are systematically dismantling the greatest protections for liberty ever established for a people.
"Ideas have consequences"(Weaver).
The ideas of 1776 came out of a set of ideas consistent with liberty.
We tend to forget, or have never considered, that other world views existed then, as now.
Unless today's citizens rediscover the ideas of liberty existing in what Jefferson called "the American mind" of 1776, we risk going back to the "Old World" ideas which preceded the "Miracle of America."
There are those who call themselves "progressives," when, in fact, their ideas are regressive and enslaving, and as old as the history of civilization.
Would suggest to any who wish an authentic history of the ideas underlying American's founding a visit to this web site, at which Richard Frothingham's outstanding 1872 "History of the Rise of the Republic of the United States" can be read on line.
This 600+-page history traces the ideas which gave birth to the American founding. Throughout, Richard Frothingham, the historian, develops the idea that it is "the Christian idea of man" which allowed the philosophy underlying the Declaration of Independence and Constitution to become a reality--an idea which recognizes the individual and the Source of his/her "Creator"-endowed life, liberty and law.
Is there any wonder that the enemies of freedom, the so-called "progressives," do not promote such authentic histories of America? Their philosophy puts something called "the state," or "global interests" as being superior to individuals and requires a political elitist group to decide what role individuals are to play.
In other words, they must turn the Founders' ideas upside-down in order to achieve a common mediocrity for individuals and power for themselves.

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