Court-packing is politics, not law

There is no definitive biblical answer to the question of how courts of law are to be constituted. The Bible simply doesn’t answer the question: “How many justices should sit on the U.S. Supreme Court?” Often, the Bible gives us broad principles instead of specific commands and God trusts us to exercise wisdom to apply that principle to a particular circumstance. But we should all reject threats to the Supreme Court issued by increasingly frustrated progressives.

Reviewing the initial discussion materials from President Biden’s commission on reforming the U.S. Supreme Court, there is not enough clarity to call for our public response. Nevertheless, the threat to the Supreme Court is clear. As we think more deeply about the Bible’s understanding of justice and process, clarity about the charade of “court-packing” comes into focus.

The Bible provides broad categories for how to think about judges and justice. Early on in the life of the people of Israel, when Moses sat in judgment on disputes brought before him, he quickly became overwhelmed by the number and complexity of the cases as he worked from dawn to dusk (Exodus 18:13-26).

Jethro, his father-in-law, came to Moses and observed that the wheels of justice were both grinding slowly for the people and grinding Moses down. He told Moses to delegate: “You should look for able men among all the people, men who fear God, are trustworthy, and hate dishonest gain.” He even suggests a system we would now recognize as an appeals process, of lower courts and a higher court of appeal: “Let them sit as judges for the people at all times; let them bring every important case to you, but decide every minor case themselves.”

Other passages from the Bible emphasize important attributes of a sound justice system: due process, accurate testimony, and impartiality (no bribes). But nowhere in the Bible are we told whether nine is the perfect number of Supreme Court justices or whether we should prefer lifetime tenure to term limits, the questions at the center of the Biden Commission’s debates.

Even without a definitive biblical answer, reason and experience help us draw important lessons for public policy. We should be skeptical of claims that Congress should expand the number of seats to add new justices sympathetic to this president’s progressive agenda. This is a blatantly political act that has nothing to do with the optimal number of justices and everything to do with the left seeking a liberal majority on the Court by any means necessary.

On a substantive level, we should desire justices who are committed to the rule of law and to the appropriate role of judges in our constitutional system. Those are unlikely to come from this president, given his lower-court nominees to date.

But even on a process level, no one should threaten court-packing as a tool to intimidate current justices to “get in line” when they are perceived as judging at odds with the president’s priorities. Judges should resolve cases based on the law, without fear or favor. Threats of court-packing are about instilling fear in judges, telling them that if they don’t rule the preferred way, the Court will suffer. The subtext is clear: Nice conservative-leaning majority you got there, shame if something were to happen to it.

The implicit statement is, Don’t go too far, too fast, on big cases. Don’t overrule Roe v. Wade. Don’t strike down the COVID shutdowns, or the vaccine mandates. Decide the cases about the meaning of obscure statutes and administrative rules, but leave the important stuff alone. Or with one action of Congress, we’ll sentence you to two decades of writing meaningless dissents.

The Supreme Court is essential to our constitutional order, and political intimidation aimed at justices is out of bounds, regardless of the source. President Biden’s commission on the court represents a threat to the Court’s independence, and that is bad news for the entire nation.