Venezuela Packed its Supreme Court, and It Went Wrong.
Court-packing fundamentally transform the institution into a political actor, no longer capable of acting as an impartial referee.
On Friday, President Biden issued an executive order establishing a commission to study the status of the Supreme Court. The order states that the commission will consider and analyze possible reforms to the Supreme Court, most notably, the expansion of the size of the court, and the establishment of term limits for its judges.
The idea of increasing the size of the Supreme Court (known as “court-packing”) became a major theme among Democrats during the presidential campaign, enjoying the support of several candidates, including Pete Buttigieg (now the secretary of transportation), and Kamala Harris (now the vice president).
Their support for the idea of court-packing comes from their desire to appoint new judges who share the most radical ideas of the democratic party, from economic ideas about wealth redistribution to social ones about marriage, gender, and abortion.
Interestingly, during the campaign trail, the then-candidate Biden declared on several occasions that he was “no fan of court-packing,” meaning that the president most likely knows about the dangers of packing the court.
Yet, the fact is that now as president, Joe Biden is going on board with the idea of packing the court. This shows the power that the most left-leaning wing of the democratic party has over the administration.
It also shows the love affair that the socialist wing of the democratic party has with the very same political and economic ideas that have condemned Latin America to intolerable levels of political turmoil, social unrest, and economic repression.
Because the fact of the matter is that most Latin American nations have packed their supreme courts in the past, with terrible outcomes, as these processes fundamentally transform the courts into political actors, no longer capable of acting as impartial referees.
This became evident in my country, Venezuela, as in 2004 the then-president Hugo Chavez increased the size of our court from 20 to 32 members. At the time, Chavez and his supporters justified the packing of the court by arguing that most judges were working in favor of the oligarchy, instead of the people. Yet, in reality, the new court did not rule in favor “of the people,” but in favor of Chavez’s own oligarchy.
As a result, since 2004, out of the 45,000 rulings issued by the court, not a single one of them was against Chavez’s government. In fact, as early as in 2006, the new judges were recorded chanting, “Uh, ah, Chavez will never leave,” which was a classic slogan of the revolution – making even more evident that the judicial branch was turned into a political tool of the revolution.
In this sense, packing the court was perhaps the most critical institutional reform implemented by Hugo Chavez, the one that allowed him to not only expropriate thousands of private firms but also politicize key state institutions, such as the electoral commission and the military. Because in a divided court, these measures could have been contained.
In fact, the first time that Chavez mentioned the word “socialism” was in 2005, six years into his government, a year after packing the court. Before, he never mentioned the term socialism; as a candidate, Chavez even said that Cuba was indeed a dictatorship.
By making this comparison between Venezuela and the United States, I am not trying to say that President Biden will turn the country into Venezuela, God forbid. Instead, my argument is that the supreme court should not be touched by politics and partisanship (which is exactly what the left-leaning wing of the democratic party wants to do) because such process has always undermined democracy wherever it has been applied, and the United States will not be the exception.
The democrats do not want to reform the Supreme Court so that the institution looks more like the country as a whole, they want it to look more like their country. They want a court that supports their party on key social issues like legalizing abortion, economic issues like enacting the Green New Deal, and political issues like abolishing the electoral college.
If this occurs, then packing the court will end up turning judges into “politicians in robes,” as Justice Stephen G. Breyer said on Tuesday. It will strip the branch from its capacity to act as a check on the other branches, especially the executive. Ultimately, it will undermine the legitimacy of the court among the American people, exacerbating the country’s polarization, and lack of trust in its political institutions. And if that country does not look similar to Venezuela in 2005, I don’t know which one does.
Jorge Jraissati is the president of the Venezuelan Alliance. Graduated at the Wilkes Honors College, Jorge is an economist, political leader, and a fellow at the Abigail Adams Institute. Jorge has been invited as a guest lecturer to over 20 universities, such as Harvard, NYU, and Cambridge.