Opinion: If It's Not Broke, Don't Fix It

Critical Thinking is the OBJECTIVE analysis and evaluation of an issue in order to form a judgement. It is a core academic skill and arguably a core life skill as well. Unfortunately, critical thinking is too often replaced with emotional reasoning (cognitive distortion where a person concludes that their emotional reaction proves something is true, regardless of evidence proving otherwise).

The current threat to our Supreme Court institution perfectly illustrates this kind of replacement thinking. Calls for ‘court packing’ started in earnest during the election cycle of 2020 driven by an emotional reaction to President Trump seating three justices in four years. In an October 2020 interview on ’60 Minutes’, then candidate Biden avoided answering direct questions about adding justices to the court but did say that he would form a bi-partisan committee to “…recommend how to reform the court system because it’s getting out of whack”. What? Wait a minute. Can you elaborate a bit? Last I checked, ‘out of whack’ is not a quantifiable term and certainly not enough reason to spend hundreds of thousands (if not millions) of tax dollars on a commission. Not to mention how using nebulous terms like ‘out of whack’ could throw into question the function of our highest court and the integrity of seated justices. One would (and should) expect a bit of explanation for this vague term, but none was forthcoming. So exactly what factual basis was Biden using to form this judgement? Hmmm…Biden didn’t think the court was out of whack or “If It’s Not Broke Don’t Fix It” needed reform at any time during his 36 years in the Senate. In fact, he once said that FDR’s efforts to change the Supreme Court by adding justices was a terrible mistake and put into question the independence of the most-significant body in the country…he called it a “bonehead idea”. Biden also didn’t think court reform was an urgent need during his 8 years as Vice President. So barring political or emotional reasons, what disturbing developments or court decisions transpired since 2016 that changed his mind? Hmmm….

The objective analysis is that the Supreme Court has had nine seats for the last 152 years and Article III of the Constitution gives justices a life tenure that insulates them from political pressure and allows them to focus on the law. Justices are not ‘liberal’ or ‘conservative’, rather they have been appointed by a ‘liberal’ or ‘conservative’ President. Since 1869, twenty-two Presidents have each appointed multiple justices while serving their terms, with FDR appointing EIGHT (if there were ever a time to consider things ‘out of whack’ this might have been it). Other Presidents have appointed one justice each, with President Carter having zero appointments. In this same period of time, the majority of Supreme Court opinions have been 9-0, 8-1, or 7-2. There is no alarming pattern of ‘partisan decisions’ to support any claim that the current court is ‘out of whack’. While split decisions get all the hype (and also facilitate fear-mongering), they actually represent just 19 percent of Supreme Court decisions. The landmark case of Roe v Wade…you know the one that politicians want us to believe will be overturned by ‘conservative judges’… was actually a 7-2 decision made by a Republican nominated Supreme Court and is now considered a super precedent, with no chance of being overturned. So much for partisanship.

The iconic Ruth Bader Ginsburg was known as an ‘activist lawyer’ before taking a seat on the Supreme Court, yet she was deemed capable of leaving her personal beliefs and activism at home while she ruled on law. The other 8 Justices have demonstrated the same capability. In fact during the 2018 and 2019 court session, Justice Ginsburg was in agreement with Trump appointed Justices Kavanaugh and Gorsuch 62 – 67 percent of the time and a couple of these decisions proved unpopular with a large percentage of Republicans. Justice Ginsburg was also very much opposed to changing the make-up of the court. In 2019 she opposed increasing the number of justices and supported her position by saying “…it would be like saying ‘when we’re in power, we’re going to enlarge the number of justices, so we would have more people who would vote the way we want them to’ “. In other words…politicizing the court. So where is the need for reform?

Don’t be misled by claims that Biden’s commission is broader than just the idea of court packing and would also be “looking into” term limits. Changing the life tenure of justices would require amending the Constitution. That means getting the support/vote from 2/3 of BOTH the Senate and House of Representative PLUS 3/4 of all State Legislatures. In no one’s reality will this happen. So we are back to the only thing this Administration can have any hope of changing….the number of sitting justices.

Costly commissions should not be formed as a feel good attempt to pursue flawed emotional reasoning and political desires. They should be reserved for a measurable problem supported by substantive evidence. Anything else is just a bonehead idea.