Why Sen. Mike Lee is quoting President Joe Biden on ‘court packing’

A Democratic proposal unveiled Thursday to expand the U.S. Supreme Court from nine to 13 justices has Utah Republican Sen. Mike Lee quoting President Joe Biden to express his opposition to the idea.

Lee didn’t mince words when it comes to the notion of “court packing.”

“Packing the court is an act of arrogant lawlessness,” Lee said. “Those behind this effort spit in the face of judicial independence.”

Lee also tweeted: “On court packing: ‘ ... it was a bonehead idea. It was a terrible, terrible mistake to make, and it put in question ... the independence of the most significant body — including the Congress in my view — the most significant body in this country, the Supreme Court.’”

“Do you know who spoke those words?” Lee continued: “Joe Biden.”

Biden made the comments in 1983 when he was ranking member of the Senate Judiciary Committee. He was criticizing President Ronald Reagan’s attempt to replace three members of the U.S. Commission on Civil Rights, comparing it to President Franklin D. Roosevelt’s failed effort to add justices to the Supreme Court.

Biden said at the time that Roosevelt had the right to send Congress a proposal to pack the court but that it was a “boneheaded” idea.

During the 2020 presidential election, Biden said he was not a big fan of court packing but that he could create a commission to make recommendations about reforming the court system because it was “getting out of whack.” 

The president made good on that promise last week, appointing 36 legal scholars with expertise in constitutional law, history and political science as well as former federal judges and court reform advocates to the new commission. The bipartisan panel is to study proposals for Supreme Court reform, including whether to increase the court’s size, change how long justices serve and reconsider how justices are selected, over the next six months.

On Thursday, House Judiciary Committee Chairman Jerry Nadler, D-N.Y., and Sen. Edward Markey, D-Mass., pushed ahead with legislation to expand the Supreme Court to 13 justices.

“Republicans stole the court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Markey said in a statement. “Of all the damage Donald Trump did to our Constitution, this stands as one of his greatest travesties.”

Sen. Mitt Romney, R-Utah, also expressed intense opposition to the bill.

“I am vehemently opposed to efforts to pack the Supreme Court and treat it as if it is one of the elected branches of government. Our society is only as strong as its institutions, and this legislation is a direct effort to undermine the integrity and independence of the Supreme Court,” he said in a statement Thursday.

The idea of expanding the court came up after the Republican-controlled Senate refused to give then-President Barack Obama’s Supreme Court nominee Merrick Garland a confirmation hearing in 2016. It gained traction after the Senate confirmed Trump nominees Neil Gorsuch and Brett Kavanaugh to the court. It picked up further after Trump’s third conservative nominee, Barrett, was appointed last fall.

The Constitution allows Congress to decide how many justices sit on the Supreme Court. The court has had nine seats since 1869.

Nadler said nine justices made sense in the 19th century when there were only nine federal judicial circuits in the country and many federal laws covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration and white collar crime did not exist, and did not require Supreme Court action.

“But the logic behind having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for thirteen circuits is a sensible progression,” he said.

House Speaker Nancy Pelosi, D-Calif., said Thursday she would not bring Nadler’s bill to the floor for a vote, but that she supports Biden’ commission.

“I don’t know if that’s a good idea or a bad idea. It’s an idea that should be considered. I think the president’s taking the right approach to have a commission to study such a thing. It’s a big step,” she told reporters in Washington.

White House press secretary Jen Psaki didn’t say whether Biden supports the bill but that he believes members of Congress have a right to put forward legislation on issues they support. She said Biden wants to hear from the commission and expects he won’t have more to say about any recommendations or views until he reads its report.

“The president believes that it’s important to take a look at a range of points of view, whether they are progressive or conservative, different sets of legal opinions, and he looks forward to assessing that himself,” she told reporters Thursday.

In January, Romney joined several GOP senators in reintroducing a constitutional amendment that would limit the Supreme Court of the United States to nine justices.

Romney said any effort to treat the Supreme Court like an elected branch of government should be resisted.

“Recent court-packing proposals are transparent attempts to rig the court based on political preferences. This constitutional amendment would ensure the integrity and independence of the Supreme Court for generations to come,” he said earlier.

Lee condemned court packing during Barrett’s confirmation hearings. He said then if Democrats were to increase the number of justices, Republicans would expand on that number when they had the chance.

“Before long it would look like the Senate in ‘Star Wars’ where you’ve got hundreds of people on there,” he said last fall.

Increasing the number of justices delegitimizes the court and does “immense” political and constitutional harm to the U.S. system of government, Lee said. Having nine justices, he added, ensures the separation of powers among the branches of government.