The former U.S. solicitor general during Ronald Reagan’s second term believes a would-be president Joe Biden should threaten to increase the size of the U.S. Supreme Court in order to avoid a “reactionary” dismantling of society by the conservative majority.
Attorney and jurist Charles Fried is, at first glance, something of an unlikely proponent for judicial reform given his prior legal work for the Reagan administration–which was focused on undoing years of Progressive and New Deal Era reforms at all levels of government; Fried himself had the job of arguing the Republican administration’s legal theories. But Fried has been critical of the Trump administration.
Writing in The New York Times on Monday, Fried praised the Democratic Party’s presidential nominee for “expressing an ambivalent openness” to legislation that would expand the size of the Supreme Court. Critics have attempted to style Biden’s non-committal on so-called “court packing” as a liability during the final stretch of the 2020 general election.
Fried elides those political attacks by saying that court expansion is “entirely constitutional” but admits that actually following through with the threat would be the death knell for hopes that the Supreme Court is apolitical.
“Such a move would make blazingly clear what some of us hope is not quite true: that the court is a partisan political institution, a conception that would invite further rounds of enlargement in a different political moment,” the op-ed notes.
Fried goes on to cast such an outcome as just desserts if the expected GOP-appointed 6-3 majority on the court follows through with the long-promised goals of the decades-old conservative legal movement:
Here the alternatives boil down to just one: a predictable, reactionary majority on the Supreme Court for perhaps as long as another generation.
I write reactionary, not conservative, because true conservative judges like John Marshall Harlan are incrementalists, not averse to change, respectful of precedent and unlikely to come into the grips of radical fantasies like eliminating or remaking the modern regulatory-administrative state.
With Circuit Judge Amy Coney Barrett all-but guaranteed to be installed on the nation’s overarching federal bench for a generation or more, Fried argues, “reproductive choice” is likely to be one of many features of American life the conservative majority will work to dismantle.
Stressing that “the record” is clear, Fried goes on to cite union organizing, campaign finance legislation, gerrymandering correction, affirmative action and voting rights as 20th century legal regimes that Barrett’s potential conservative colleagues have already–and repeatedly–tried their hardest to undo.
Noting the controversial Janus labor law decision by Justice Samuel Alito and the much-criticized Citizens United decision, Fried explains that since those cases were decided on First Amendment grounds, there’s no “legislative remedy” that can hope to claw back what the high court took away.
Fried directs most of his ire toward self-styled umpire, Chief Justice John Roberts:
In 2019, Chief Justice John Roberts — he of the “balls and strikes” — precluded on constitutional grounds judicial intervention to prevent blatant partisan gerrymandering. And he was the author of an uncompromising four-person dissent that would forever preclude referendum-installed, nonpartisan state commissions to redraw congressional districts, outside the power of state legislatures.
He also wrote for a four-person plurality (Justice Kennedy would not join him) in the 2007 Parents Involved decision that “the only way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”
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.
For Fried, the notion of court-packing shouldn’t be off the table as it is a cure to what ails the otherwise incurable.
“All these frankly reactionary decisions are incurable by legislation because they were said to be based in the Constitution,” the op-ed continues. “And every one of them favors, and was favored by, partisan Republican interests and was decided 5 to 4 by Republican-appointed justices.”
Fried’s criticism of the Roberts Court being framed as a direct rebuke of Roberts and Alito themselves is notable and a substantial shift.
In 2005, Fried personally testified before Senate Judiciary Committee in support of Roberts’s nomination. Then, after Alito was confirmed months later, Fried dismissed criticism of the justice’s conservative bent.
A decade-and-a-half later, the former judge believes the Supreme Court is headed down a path toward irrevocable societal destruction.
“Let’s see if the current Supreme Court majority overplays its hand,” Fried writes in conclusion. “If it does, then Mr. Biden’s nuclear option might not only be necessary but it will be seen to be necessary.”
[image via Jonathan Ernst-Pool/Getty Images]
