President Biden: Texas shows we can’t wait any longer. It’s time to pack the court | WHAT REALLY HAPPENED X-Frame-Options: DENY X-Frame-Options: SAMEORIGIN

President Biden: Texas shows we can’t wait any longer. It’s time to pack the court

William Brennan, the great US supreme court justice, liked to greet his incoming law clerks with a bracingly simple definition of constitutional doctrine: five votes. “You can’t do anything around here,” Brennan would say, wiggling the fingers of his hand, “without five votes.”

Underscoring the truth of Brennan’s hardboiled definition was the court’s 5-4 ruling this week (with Chief Justice John Roberts in dissent alongside his three liberal colleagues) to let stand a Texas law that turns ordinary citizens into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion on a woman past her sixth week of pregnancy. True, the single-paragraph unsigned majority opinion emphasized that in letting the Texas law take effect the court was not ruling on the statute’s ultimate constitutionality.

And yet. As Justice Sonia Sotomayor wrote in a passionate dissent, “Presented with an application to enjoin a flagrantly unconstitutional law … a majority of justices have opted to bury their heads in the sand.” President Biden powerfully joined those critical of the court’s decision. Declaring that the ruling promises to “unleash [..] unconstitutional chaos”, Biden promised to work to protect the constitutional right to abortion first recognized in Roe v Wade.

How might the president do so? Back in April, Biden empaneled a bipartisan commission of scholars, lawyers and jurists tasked with exploring the issue of “court packing”. The commission is scheduled to submit its report later this fall, which returns us to Justice Brennan’s five wiggling fingers.