A recent column for Bloomberg Law by two professors for advocating for the expansion of the U.S. Supreme Court is attempting to redefine court-packing yet again. The professors suggest that the Court should be expanded to 15 justices, but that this wouldn't technically qualify as court-packing because, under their scheme, most cases would only be heard by a panel of 5 justices:
Real reform is required, and for that we need a court of 15 justices, with the justices sitting in three panels of five judges on any normal case. On very important cases, the court could vote to sit all 15 justices together en banc.
This would allow the court to take many more cases and address some of the urgent issues that it currently neglects. Also, a new Judiciary Act could dictate the type or even the number of cases the Supreme Court must hear.
David McCLaughlin notes, the left keeps having to redefine "court-packing" because the idea is not popular:
A good sign that your argument is neither good nor popular is when you have to keep changing the long-accepted meaning of words. So it is with a Bloomberg Law op-ed by law professors Tonja Jacobi and Matthew Sag titled “The Supreme Court Needs 15 Justices.” The op-ed’s subhed leads off: “Changing the law to allow 15 U.S. Supreme Court justices would not be court packing. It would allow the court to take many more cases and address some of the urgent issues that it currently neglects...”
Court-packing is a solution in search of an excuse. Wanting the Court to hear more cases is a transparently flimsy one.
Court-packing is a solution in search of an excuse. Wanting the Court to hear more cases is a transparently flimsy one. | by @baseballcrank https://t.co/0iSzaVRokA
— National Review (@NRO) May 11, 2021
The professors also suggest that their court-packing proposal would prevent partisanship since justices would be randomly assigned to panels:
A Supreme Court panel system with random assignment will help overcome another problem: ideological extremism. As politics has become more polarized, so too has the Supreme Court. But no judge likes to be overturned by their peers, and so the panel system will encourage the justices to moderate themselves.
But as a Fox News article points out, that concept is negated because the Biden Administration would be given the ability to appoint 6 justices if the professors' proposal is enacted:
Presumably, if the professors had their way, President Biden and a Senate Democratic majority could put six new liberal justices on the court, swaying the majority to 9-6 and providing liberal majorities on most of the randomly assigned "panels."
The proposition of President Biden nominating so many justices to the Court is very concerning considering the fundamentally different approach Democrats take to nominating jurists from what the founders intended:
Democratic leaders distort the role of the judicial branch in our constitutional system. Judges are supposed to interpret and apply the law as written without regard to their personal opinions. But unfortunately, Democrats have come to view the Supreme Court as a superlegislature, made up of policymakers, not impartial judges.
The language that congressional Democrats use when they talk about the judiciary is radically inconsistent with the Framers’ intent for the third, co-equal branch of government.
Democrats evaluate judges based on partisan outcomes and who benefits from their rulings. That’s wrong. The only thing a judge should consider is what the Constitution and laws require.
A litigant’s fortunes should not depend on which political party’s president appointed the judge. Rather, the equal application of the law should triumph above all.
No amount of reframing the issue will make court-packing a good idea. Democrats should heed the advice of Justice Breyer and the late Justice Ginsburg and resist the urge to pack the Court.