The Left's New Obsession: Packing the Supreme Court

Progressives willing to throw separation of powers and judicial independence overboard.

Grassroots leftists are planning an assault on the Supreme Court’s judicial independence. In addition to threatening impeachment proceedings against Justice Brett Kavanaugh if the Democrats take back control of the House of Representatives in the midterm elections next month, some progressives are trotting out President Franklin D. Roosevelt’s discredited idea to pack the Supreme Court with progressive justices to counter the rightward direction of the Court. Even before President Trump nominated Justice Kavanaugh to replace retired Justice Kennedy on the Supreme Court, progressives were promoting this idea. 

Fordham law professor Jed Shugerman, for example, tweeted: “A president under investigation for impeachment has never appointed a Justice. Not Nixon, not Clinton, not Andrew Johnson. Never. Democrats should make clear that if the GOP destroys this tradition, they will expand the Court to 15 in 2021 without filibuster.”

Harvard Law lecturer Ian Samuel tweeted: “Pack the courts as soon as we get the chance. ‘Pack the courts’ should be a phrase on par with ‘abolish ICE.’” He has described himself as “literally a card-carrying socialist.

Glenn Harlan Reynolds, a University of Tennessee law professor, wrote a column in USA Today advocating a mega-Supreme Court consisting of 59 justices. “Let’s keep the nine we have who are appointed by the president, and add one from each state, to be appointed by governors, and then confirmed by the Senate,” he wrote. “If the Supreme Court is going to function, as it does, like a super-legislature, it might as well be legislature-sized.”

It is the progressives who want the Supreme Court to enact their leftwing policies as if it were another legislative chamber, rather than to interpret the Constitution and statutes as written. Indeed, a columnist for Jacobin, the self-described voice of the American left, was at least honest enough to reveal the true agenda underlying the progressive revival of the court-packing idea. He wrote: “We shouldn't let a handful of reactionary judges get in the way of progressive change. It's time to pack the Supreme Court.” 

It is true, as the Jacobin author pointed out, that there is nothing specifically written in the Constitution that specifies the number of justices on the Supreme Court. The size of the Supreme Court was changed several times by act of Congress during the early decades of our constitutional republic. However, the last time Congress changed the size was in 1869, when the number of justices on the Supreme Court was fixed at the present number of nine.

As Tucker Carlson has pointed out, “Republicans could pack the Supreme Court right now if they wanted to. They have the power. But they won't do that. Only the left is embracing extremism right now.” That is because progressives view the Constitution as an inconvenient obstacle written by old white men that needs to be discarded. Their “fix" is to simply do away with the Founding Fathers’ constitutional principle of separation of powers once the left takes over the legislative and executive branches by hook or by crook. They will then use their collective power over those branches to effectively force the third branch of government, the judiciary, into bending to their collectivist ideology.

Progressives’ “ends justify the means” philosophy is nothing new. President Franklin D. Roosevelt tried to expand the number of justices in 1937 after the Supreme Court had struck down several of his New Deal initiatives. While claiming that he wanted to produce “a constant flow of new and younger blood into the judiciary,” his court-packing scheme was designed to direct that flow of new justices towards backing his progressive agenda. For expedient reasons, FDR chose to end-run the constitutional amendment process. He chose instead direct action against a co-equal branch of the federal government that, in his words, would “save the Constitution from the Court.” This oxymoron flies in the face of the fundamental role of judicial review, established in the very early days of our republic in the case of Marbury v. Madison, to determine the constitutionality of legislation and executive actions.

In FDR’s day, his own Democratic Party still had respect for the Constitution and for judicial independence. The Democratic-controlled Senate Judiciary Committee voted against FDR’s court-packing plan. The committee issued a scathing report on June 7, 1937 recommending that FDR’s plan be rejected. Out of the ten senators who signed the report, seven came from FDR's own Democratic Party.

Before today’s ill-tempered Democrats join the progressive court-packing revival, they should pay heed to what wiser members of their party had to say about the idea more than 80 years ago. They said in the Senate Judiciary Committee report condemning FDR’s court-packing plan that it “applies force to the judiciary and in its initial and ultimate effect would undermine the independence of the courts.” They worried that the court-packing plan would tend to “expand political control over the judicial department by adding to the powers of the legislative and executive departments respecting the judiciary.”

The critics of FDR’s court-packing plan, including the seven Democrats, were just getting started. They added in the Senate Judiciary Committee report that maintaining the checks and balances of our "American system" was “immeasurably more important, immeasurably more sacred to the people of America, indeed, to the people of all the world, than the immediate adoption of any legislation, however beneficial." They observed that "if we may force the hand of the Court to secure our interpretation of the Constitution, then some succeeding Congress may repeat the process to secure another and a different interpretation and one which may not sound so pleasant in our ears as that for which we now contend.” In other words, there could be continual expansion of Court size as one party wrests power from the other party. The result would be instability and loss of institutional legitimacy with ever-changing decisions as the political winds shift, rendering the precedential value of judicial rulings meaningless.

The Senate Judiciary Committee report concluded that the practical operation of FDR’s court-packing plan “would be to make the Constitution what the executive or legislative branches of the Government choose to say it is— an interpretation to be changed with each change of administration.”  The signers of the report, mostly Democrats it should be remembered, warned future generations against ever considering such a plan again: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

Sadly, desperation, anger and thirst for power will probably lead today’s Democrats, egged on by their unhinged progressive base, to disregard the warning of their level-headed predecessors and plunge the country into a constitutional crisis.

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