Liberal Fantasies About Obama Packing the Supreme Court


Philadelphia Inquirer columnist Stan Isaacs says President Barack Obama should pack the Supreme Court with three new justices in retaliation for the recent free speech ruling in Citizens United v. F.E.C.:

Obama can give himself a fighting chance by changing the rules of the game, just as they were changed for other presidents in the 1800s. He should forget bipartisanship and work with congressional Democrats to name three new justices to the court to meet the challenges he faces.

It would be a tumultuous fight, but it would be for a change we could believe in.

This is really silly. As SCOTUSblog's Tom Goldstein pointed out last week, progressives are almost certain to be disappointed this summer when Obama replaces Justice John Paul Stevens with Solicitor General Elena Kagan or some other highly confirmable nominee able to attract bipartisan support. In other words, don't hold your breathe for Obama to expend any political capital by nominating a "Scalia of the left." As for packing the Court with three new justices who will defer to the progressive agenda, who actually thinks the fallout from that brutal fight would help Obama? If the president isn't willing to go to bat for one highly politicized nominee, why in the world would he do so for three?

And following Stan Isaacs' logic, why shouldn't every president "give himself a fighting chance by changing the rules of the game" and appointing a few judicial toadies? What a wonderful precedent of ever-expanding executive power that would set.

On a factual note, Stan Isaacs might want to do a little more Google research before composing his next piece of legal scholarship. Contrary to Isaacs' claim that "The actual plan wasn't pushed, however, because of changes on the court," the truth is that FDR did push the actual plan, but it met with fierce bipartisan opposition and died a welcome death in the Senate, due in part to the deft maneuvering of progressive Democratic Sen. Burton Wheeler of Montana (more on Wheeler and FDR's other principled liberal opponents here).