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Is Joe Biden's Court-Packing Scheme Dead?

AP Photo/Jose Luis Magana

Joe Biden was handed yet another political defeat on Thursday, when the Presidential Commission on the Supreme Court released its draft report on reforming the Supreme Court. Biden authorized the commission earlier this year, saying it would “provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”

“The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices,” Biden added. Clearly, he hoped that the “bipartisan” commission of leftist academics would endorse court-packing, giving him and on-the-fence Democrats political cover to move ahead with the Democrats’ “remedy” for what they say is Republican politicization of the court.

But, surprisingly, Biden’s commission flatly rejected court-packing.

“The risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court’s legitimacy,” the commission said in the report. “Recent polls suggest that a majority of the public does not support Court expansion. And as even some supporters of Court expansion acknowledged during the commission’s public hearings, the reform—at least if it were done in the near term and all at once—would be perceived by many as a partisan maneuver.”

The commission also noted that any court expansion could lead to an endless cycle of court expansions for political purposes.

“There are other reasons to believe expansion efforts might have negative effects on the Supreme Court’s long-term legitimacy or undermine its role in our legal system. Court expansion today could lead to a continuous cycle of future expansions,” the report warns. “According to one [purportedly modest] estimate of the consequences of expansion as parties gain Senate majorities and add Justices, the Supreme Court could expand to twenty-three or twenty-nine Justices in the next fifty years, and thirty-nine or possibly sixty-three Justices over the next century. But just as important as the raw numbers, if the country and the political system were to be embroiled in repeated fights over Court expansion, that alone could harm the Supreme Court’s public reputation.”

While I’m glad that the commission reached this conclusion, it’s hard to believe that we needed a presidential commission to tell us this. How many people have made this same argument? Obviously, this is not the conclusion that Joe Biden wanted, because everything the commission said on this issue is pure common sense.

So what will Biden do? He doesn’t necessarily have to listen to the commission. I’m sure his advisors are already thinking of ways to justify ignoring them. But even if they could come up with talking points to support moving forward with a court-packing scheme, it still would take an act of Congress to increase the number of seats on the court. It may pass the House, but in the Senate, Joe Manchin, Kyrsten Sinema, and some other Democrats have been resistant to court-packing, and the commission’s report won’t tip them over to Biden’s side.

It seems safe to say that Biden’s court-packing plan is dead.

For now. Let’s not think for a second that Democrats won’t try to pack the court again the next time they have the opportunity.

Related: Six Things the Left Claims Are Court-Packing… But Aren’t