A constitutional law expert noted that the Supreme Court, with its recent decisions, could be sending a message to proponents of “packing” or enacting other changes to the high court.
“The Supreme Court this week continued to disappoint congressional Democrats and activists with a long line of embarrassingly unanimous, nonideological rulings,” wrote George Washington University law professor and constitutional scholar Jonathan Turley on his website. “After all, the court is supposedly … ‘out of whack’ due to its irreconcilable ideological divisions. Indeed, the court is allegedly so dysfunctionally divided that many, including Democratic leaders, have called for sweeping changes—from packing the court with new justices to changing its voting rules or even creating an alternative court.”
Turley noted that in the court’s recent ruling on Borden v. United States, liberal Justice Elena Kagan wrote an opinion for Justices Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch—with concurrence from Justice Clarence Thomas, who is considered by many to be the most conservative justice on the court. In that case, two conservatives and three liberals agreed to limit the scope of a “violent felony” under the Armed Career Criminal Act.
Last week, the court’s ruling on Van Buren v. United States was assigned by Breyer to Justice Amy Coney Barrett, considered a conservative, who wrote for Justices Breyer, Sotomayor, Gorsuch, Kagan, and Brett Kavanaugh—or three liberals and three conservatives, Turley said.
And those most recent decisions follow a “litany of unanimous” rulings from the court this year, Turley said, noting that the court is seemingly “sending a message in the timing of the release of its opinions.”
“The justices do not rule on cases to send messages to Congress, but they do control what cases are accepted and when those decisions are released,” he wrote. “It is hard not to view the last few weeks as a type of judicial ‘harrumph’ to the continuing calls for court-packing. While we expect more ideological splits in a few upcoming cases, these cases reaffirm that they are not so rigid or ‘hopelessly divided’ as Democratic leaders and other critics have suggested.”
When Barrett was nominated by former President Donald Trump last year, some congressional Democrats suggested that with the move, they would have no other choice but to “pack,” or expand the Supreme Court to as many as 15 justices. There’s no law that stipulates the court has to be only nine justices (the current number) but that number hasn’t been changed since the mid-1800s.
Breyer, a member of the liberal wing of the court, himself argued in April that packing the court would be an attempt to politicize the institution.
“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” he said of the proposals.
The White House created a commission several months ago dedicated to evaluating possible changes to the Supreme Court, including an expansion or term limits for justices, according to an executive order signed by President Joe Biden.
Representatives for the Supreme Court didn’t immediately respond to a request by The Epoch Times for comment.