Court-Packing Is More of a Monstrosity than You Think

The Biden-Harris court-packing plan is a plan to destroy the Constitution and replace it with a disguised dictatorship.  Democratic court-packing is a plan to leave the forms of the Constitution intact while destroying its essence, much in the same way that Augustus dealt a death blow to the old Roman Republic.  The Biden-Harris court-packing plan is a virtual enabling act, a law that would bypass all the normal lawmaking processes and turn national policy over to unelected far-left judges acting in response to the complaints of ultra-left lawyers and activists.  If you think that sounds over-dramatic, let me take you to a federal courthouse in Eugene, Oregon, where a group of activists are seeking to have the Judiciary seize control over most of the nation's economic policy.

In 2015 those activists filed a lawsuit known as Juliana v. United States.  The gravamen of the plaintiffs' case is that the Constitution contains a right to a "stable climate system," which is violated by a giant range of actions by the federal government (such as authorizing fossil fuel extraction).  The plaintiffs sought, among other things, to have the court simply order the federal government to eliminate the use of fossil fuels and then enforce compliance with that plan.

On its face, this case appeared to be a long shot because the nature of the challenge and the relief sought seem to violate longstanding principles of administrative and constitutional law.  However, a few days after the 2016 election, the district court sent a jolt through the legal world when it denied the government's motion to dismiss the case.

Since then, the case has been caught up in legal limbo.  The federal government eventually went to the extreme measure of asking the Supreme Court to intervene and order the district court to dismiss the case.  Although the Supreme Court ultimately denied that relief, it repeated its earlier observation that "[t]he breadth of respondents' claims is striking, however, and the justiciability of those claims presents substantial grounds for difference of opinion."  Eventually, a panel of the 9th Circuit found narrowly that the plaintiffs lacked standing to pursue the case, but an appeal of that decision remains pending.

Does anyone doubt how this case would come out if the Supreme Court and the rest of the federal Judiciary were filled with enough activist judges to give them a super-majority?  The Democratic plan to pack the courts with far-left judges is a mortal threat to the Constitution because those on the legal left, unlike their opponents on the right, feel themselves unconstrained by the limits inherent in the texts written by lawmakers or the original meaning of any of the provisions of the Constitution.  The left views the Judiciary as a sort of super-legislature, unconstrained by political realities, given free rein to do whatever it likes in the name of the public good.  In an age where the academic left feels free to argue that 2+2=5 is a perfectly valid statement, there would be no limits on their power beyond the limits of these people's imagination.

But that's too abstract. Let's talk about the things that a packed Court is likely to do.

First, as noted above, there's every chance that leftists will attempt to do an end-run around Congress on areas of economic policy by reading various environmental and economic "rights" into the 5th and 14th Amendments.  The Court may not nakedly order the government raise your taxes, but it's easy enough to imagine that it could do so in all but name by ordering policy outcomes that leave no other choice.

Second, a packed Court could outdo the Warren Court in terms of letting violent criminals loose on the streets.  One of the underreported stories of recent years is the slow forward creep of the Roper-Graham-Miller-Montgomery line of cases, where the Court has progressively restricted the death penalty and then life without parole sentences for juveniles and where the next logical step is the expansion of this line of cases to cover other offenders — for example, those who weren't minors when they committed their robberies, rapes, and murders but were still "young," as has been done legislatively in California, where one can be both a youthful offender and a congressman at the same time.

Third, a packed Court is likely to revisit the holdings of the Court in various school desegregation cases.  Do you want to see your children bused across community lines in places with no history of official school desegregation for the naked purpose of achieving racial balancing or other forms of racial "justice"?  A packed Court is likely to permit that as well.

Fourth, a packed Court is likely to sanction bald attacks on freedom of expression.  I can't tell you how many times I heard in law school people make some version of the statement that they "support free speech, but not for hate speech."  If you think the tragic stories that we've seen from the United Kingdom — where the police show up at someone's house because he allegedly misgendered someone on the internet — could never happen in the United States, just wait until the packed Court gets a chance to chime in.

Frankly, the scenarios I outlined above probably understate what a packed Court is likely to do.  The Biden-Harris plan to pack the Supreme Court would destroy every check and balance in the Constitution and allow every left-wing nut with a grievance to bypass all of the normal processes set out by the Constitution and de facto amend the Constitution to suit the fancies of the activist left.

Adam Yoshida is an author and a graduate of the University of Oregon School of Law.

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