WASHINGTON – John G. Malcolm, vice president of the Institute for Constitutional Government and former deputy assistant attorney general in the Department of Justice’s Criminal Division, released the following statement after President Joe Biden announced a commission to study expanding the United States Supreme Court:
The courts should remain unaffected by the ever-changing winds of national politics, and should be solely focused on upholding the Constitution and the rule of law. The mere formation of this commission and the scope of its mandate run the serious risk of misleading the American public about the impartiality and independence of our judicial system. It also risks promoting the false notion of a politically oriented judiciary, in which Supreme Court justices select cases and make decisions based on politics, not an impartial interpretation of the law. The stated purpose of this commission is to examine issues related to Supreme Court reform including, ominously, ‘the membership and size of the Court’ and ‘the Court’s case selection, rules, and practices.’ The fact that several members of this commission are already on record as supporting ‘reforms’ that would push the Supreme Court to render decisions that may be legally unsound but politically correct is a bad sign.
This past week, Justice Stephen Breyer gave a speech at Harvard Law School in which he said that expanding the number of Justices on the Supreme Court—court packing—was a dangerous idea that would erode trust in the courts and should not be pursued. Before she passed away, Justice Ruth Bader Ginsburg expressed similar views, saying that she was ‘not at all in favor of’ court packing and that it would make the Supreme Court ‘appear more partisan.’ They are right.
Packing the courts would be devastating to our system of constitutional government and the rule of law, and would irreversibly damage our democratic republic. It would risk turning the judiciary into an overtly political body, and completely undermine the American people’s confidence in the federal judiciary as a non-political, impartial, co-equal branch of government. The temptation for a successive president whose party enjoys majority control in the House and Senate to pack the court further would likely be irresistible, which would further undermine the stability of our legal system. This is a dangerous road we should not go down.