To Pack or Not to Pack? That Is the New Commission’s Question.

President Biden this week appointed a Commission to examine possible “structural changes” to the Supreme Court, which to most people means the prospect of adding seats, i.e., packing the Court.  This Vox article bemoans the makeup of the Commission as something of a Federalist Society dream.  The gist of its criticism is that, even though the Commission’s majority is liberal, there is a surprisingly large minority of right/libertarian sorts.  Thus the liberal majority isn’t big enough or radical enough to be as useful as Biden could and should have made it.

It’s the precise nature of the missed opportunity for usefulness that’s telling here.  What it tells us specifically is what sort of persuasion the Left views as desirable.

The article isn’t the least bit subtle about it.  The kind of persuasion it promotes is the kind that would make Luca Brazi proud:  Threats and fear.  Indeed, the article uses exactly those words, and uses them with approval (emphasis added):

Why a milquetoast Supreme Court commission matters

Court-packing is not something that anyone should do lightly. If Democrats did add seats to the Supreme Court in order to change its partisan balance, the result most likely would not be widespread acceptance of the newly liberal Court’s decisions. It would be massive resistance from Republicans.

As Justice Stephen Breyer recently warned during a lecture at Harvard Law School, “structural alteration [of the Court] motivated by the perception of political influence” will erode trust in the Court’s decisions.

Yet, while Breyer is correct to warn that significant reforms to the Supreme Court are likely to undermine the Court’s legitimacy, the mere threat of court-packing can serve an important function. If the justices believe that President Biden may send them six new colleagues if the Court dismantles what remains of the Voting Rights Act, then those justices may be less likely to dismantle the Voting Rights Act.

A healthy fear of a Democratic majority could lead the Supreme Court to become less partisan.

But Biden’s new commission sends the opposite message. With so many prominent members of the Federalist Society praising the commission right out the gate, it’s clear that conservatives do not feel threatened by this commission.

In other words, Biden missed an opportunity to let the Justices know that, if they don’t produce the results the Left wants rather than the ones they think fidelity to the Constitution commands, a visit from Luca is in the offing.  This, mind you, is from the same group that claims conservatives are driven by nativist fear, while they, the Left, adhere coolly to “expertise” and “scholarship.”

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Of course the whole pitch is baloney anyway, even taken on its own terms.  The President may well be hesitant on Court packing for the moment, simply because he has such paper-thin majorities in Congress that he understands he probably can’t get a packing plan enacted. But Vox downplays (or intentionally ignores) two more subtle motives behind Biden’s creating this Commission. One is to put out exactly the message Vox wants, only in more shrewd and muted tones: The Court had better curb its enthusiasm on issues liberals care about, including but hardly limited to criminal justice “reform” (some Democratic senators wrote a similarly threatening amicus brief not long ago). The other is to soften the target for Court packing down the road if the message doesn’t get through, and the President gets bigger majorities in Congress next year.

All in all, the Commission is not here for disinterested scholarly study. Vox to the contrary, it’s here because Biden and his Leftist base have a political use for it.