And perhaps most consequential of all, in 2013, Chief Justice Roberts invoked the irrelevant and arcane “equal footing doctrine” to invalidate a section of the Voting Rights Act, first enacted in 1965 and re-enacted as recently as 2006, which had been the bulwark against the gross voter suppression schemes that then immediately popped up and have wrought havoc in subsequent elections.
All these frankly reactionary decisions are incurable by legislation because they were said to be based in the Constitution. And every one of them favors, and was favored by, partisan Republican interests and was decided 5 to 4 by Republican-appointed justices.
As for the few moderate decisions of the last few years — the citizenship question on the census, the health care mandate in the Affordable Care Act said to be a tax, the ban on LGBTQ employment discrimination — they can all be undone by legislation.
So there is a lot at stake.
But before going forth on any enlargement plan, a Biden administration would do well to see if the Supreme Court might not heed the lesson of history. Consider the well-known episode indelibly judged as President Franklin Roosevelt’s “failed” court packing plan. F.D.R. waited to propose his “Judicial Procedures Reform” legislation until 1937, after his first four years in office during which the reactionary Supreme Court majority relentlessly obstructed desperately needed experiments to combat the Great Depression.
F.D.R.’s move is viewed as a rare failure by a master politician. But was it? Immediately after unveiling his proposal, the court ruled 5 to 4 that the Wagner Act, restructuring American labor law and relations, was constitutional, and a spate of pro-New Deal decisions followed. The very threat of court packing and the passage of time made this “nuclear option” unnecessary.
Let’s see if the current Supreme Court majority overplays its hand. If it does, then Mr. Biden’s nuclear option might not only be necessary but it will be seen to be necessary.
But for now, let him not overplay his hand.
Charles Fried, a law professor at Harvard University, served as the solicitor general of the United States under President Ronald Reagan from 1985 to 1989.
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