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Roberts Invited the Court-Packing Fiasco (National Review)

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Roberts Invited the Court-Packing Fiasco – By Michael Brendan Dougherty (National Review) / Oct 14 2020

The chief justice’s attempt to shore up the legitimacy of the Court has backfired, inviting the very escalation it was calculated to avoid.

The history that Democrats tell themselves about Franklin D. Roosevelt’s attempt at Court-packing is that it worked after all, because it acted as an effective threat. The Court had been striking down a variety of New Deal programs FDR believed essential to national recovery from the Great Depression. The administration convinced itself that a Republican-dominated Court would destroy them. And they concocted a pretext for their ideologically motivated expansionism: “overcrowded federal court dockets.”

FDR’s bill for judicial reform went down as an embarrassing legislative defeat and example of overreach for the president. But almost immediately, a series of rulings beginning with West Coast Hotel v. Parrish seemed to demonstrate that Justice Owen Roberts had changed definitively from a swing vote that often went against the president’s programs to a swing vote in favor of them. Justice Roberts, consciously or not, was saving the Court from the resentment of FDR and the populace at large, it is explained.

I wonder if the drama can be recapitulated today, as kabuki theater. It would be staged to smooth over the intra-coalition politics of the Democratic Party. Joe Biden is against Court-packing and ran against it. He refuses to say whether he endorses it, because it’s incredibly unpopular. Less than a third of respondents told Pew they believed the Supreme Court was dominated by conservatives. But influential progressives in the House and particularly in prestige media are for Court-packing. By making a fuss about Court-packing, and then having Senate Democrats talk incessantly about the threat of a highly-unlikely-to-succeed challenge to Obamacare, Democrats can claim to have successfully threatened the conservatives on the Court. By doing this, they pull the party back from the intellectuals urging on a fateful and unpopular Court-packing scheme that would derail the party’s more pressing agenda items.

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