EIC Column: Biden should not pack Supreme Court or abolish filibuster


Fair use photos from WhiteHouse.gov and SupremeCourt.gov

Left to right: President Joseph R. Biden, the United States Supreme Court Building, and Justice Stephen Breyer. On April 9, Biden sign an Executive Order establishing a Commission to determine whether or not the size of the Court is fair.

President Joseph R. Biden signed an Executive Order April 9 establishing the Presidential Commission on the Supreme Court of the United States. Among the questions the commission is set to find is whether the size of the high Court should be expanded.

The signing comes two days after Justice Stephen Breyer, the oldest Justice on the Court and one of three liberals, said expanding the court would erode the “trust that the court is guided by legal principle, not politics.”

The announcement comes nearly a month after Biden announced his support to endorse a talking filibuster—liberals quickly used this momentum to further their calls to completely abolish the filibuster.

The state of our republic is at its most precarious point since the eve of the Civil War. This time, however, Senator Daniel Webster will not stand on the floor of the United States Senate arguing for the continuance of our Union. Elected officials have seemingly abdicated their belief in the Union, and have placed their beliefs in their political power and personal political fortune.

Abolishing the filibuster is the first step towards anti-republicanism. The current silent filibuster is being used to “block the will of 59 Senators,” which, according to Harvard professor Dr. Steve Levitsky and author of How Democracies Die, “is unusual in a democracy,” but is safe to use when politics enlist extreme forbearance, or restraint.

The current silent filibuster is no longer a tool to help build dialogue, instead it has become a tool to obstruct and destroy real policy goals. The silent filibuster is no longer an effective tool for legislating.

The current problem is not solely that of the Republicans or solely the Democrats. The first extreme use of filibusters for executive appointments was employed by Democrats during former-President George W. Bush’s administration. The favor was returned by Republicans during former-President Barack H. Obama’s administration, where they blocked virtually every executive appointment. Rather than accept the price for obstructionism they employed during Bush’s term, when Senate Democrats regained a majority they in turn stopped the use of filibusters for all executive appointments except for Supreme Court nominations.

While Democrats historically have never been the party to step up Constitutional attacks, they have always returned the attacks, only pushing the country towards the brink of permanent political statement.

As Levitsky put it, the filibuster is “not weakened, it’s not challenged, it’s not broken. It’s just destroyed.”

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The filibuster was designed to give the minority party in the principled-minority chamber a chance to have their say without being trampled by a tyrannical majority. Both parties’ abdication of mutual forbearance towards one another has made it all too easy to obstruct good governance.

“The filibuster worked,” Levitsky said, “when it was employed with forbearance.”

Then the talking filibuster, the one that holds itself in the public conscience in the movie Mr. Smith Goes to Washington, was replaced with the silent filibuster: the simple threat of filibustering allowed for Senators to claim their time and then leave the floor—leaving the bill dead unless 60 Senators agreed to end the filibuster.

The current state of the filibuster is only a tool for obstructionism, not a tool for actually creating a meaningful debate on the floor of the Senate.

The silent filibuster, according to AP Government and Politics teacher Matt Bergquist, “takes away from the power of the Senate of just freeform debate. That’s what the Senate is supposed to be.”

The talking filibuster ensures the minority party still has a right to voice their concerns about legislation. But any attempt to completely abolish it is wholly anti-republican in nature.

“At the very least the talking filibuster would raise the cost,” Levitsky said. It would “enforce whoever’s doing filibustering to work for it.”

While the filibuster affects only politicians and political institutions, the attempt to pack the Supreme Court has a darker undertone to it. Packing any court to secure a political majority, regardless of the circumstances, falls into a dangerous pattern used by democratically elected officials turned dictators: packing the courts has been a consistent pattern in nearly every failed democracy or republic. 

In essence, packing the Supreme Court would be attacking “a powerful neutral arbiter … that is essential for democracy,” Levitsky said.

Bergquist put it bluntly: “I think the whole idea [of talking about packing the court] is dangerous.” He made sure to point out that the idea is dangerous at any point, not just in the current political culture.

Simply put, packing the Supreme Court would erode the last trusted institution by turning it into a political football. The Supreme Court is essential to any democracy politicizing it not only cheapens their opinions, it also weakens the Constitution itself.

“The Supreme Court is different,” Bergquist said. “People do validate and trust the court’s opinions, a little bit more than politicians like they’ve got it right, because they’re the last hope.”

American democracy is at a tipping point. The simple act of talking about abolishing the filibuster or packing the Supreme Court warrants concern. These are not attacks on political parties nor political institutions, rather they are attacks on the principles and foundations of American democracy.

For the sake of our democracy, citizens must reject ways of winning power for a short term gain. Citizens must defend the Constitution, but more importantly the principles of the document. Winning political battles is antithetical to democracy and is mostly found in autocracies.

Former President Ronald W. Reagan said freedom “must be fought for, protected and handed on … or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

Citizens and public servants alike should exercise mutual toleration and forbearance to save our country. If our country continues down this path of constitutional hardball, one day the government and freedoms we took for granted will fall.