The Difference That A "Packed" Supreme Court Would Make
/The impending confirmation of Judge Amy Coney Barrett to the Supreme Court promises to bring us a Court with a 6-3 “conservative” majority. As a result, Democrats could be facing decades in the Supreme Court wilderness. Even if Biden wins the election for President, the only member of the Court likely to retire in the next few years is Justice Breyer, who recently turned 82; but since Breyer is one of the Court’s “liberals,” Biden’s replacing of Breyer would not change the Court’s ideological balance. The next oldest Justice is Clarence Thomas, currently 72, which is youthful by today’s Supreme Court standards.
But there’s another possibility. Congress could potentially increase the number of Justices, giving Biden as President the ability theoretically to add four, or six, or even more Justices in an attempt to cement a permanent Democratic majority. In fact, Congress has changed the number of Justices multiple times in the past, although the last time was in 1869. In recent days, prominent Democrats — including Senator Edward Markey of Massachusetts, Congressman Jerrold Nadler of New York (my Congressman!), and former Attorney General Eric Holder — have advocated that if Barrett is confirmed, Democrats should retaliate by expanding the number of Justices to regain the majority of the Court.
The last President to float the idea of adding Justices to shift the Court’s ideology was Franklin Roosevelt. The effort occurred in 1937, just after Roosevelt had been re-elected in a landslide in 1936, and had swept in with him super-majorities in both the House and Senate. Roosevelt had become frustrated with a Court that had struck down some of his most significant initiatives, the most famous being the National Industrial Recovery Act of 1933, which was struck down in the Schechter Poultry case of 1935. Roosevelt sought to seize the opportunity of his big new Congressional majorities, proposing to add six more Justices, to make a Court of 15. On the assumption that the new Justices would be loyal political allies, the six new Justices would be sufficient to give Roosevelt a majority to uphold any new legislation he could get enacted. The initiative immediately earned the nickname of “court packing.”
David Harsanyi in today’s New York Post gives a short history lesson about Roosevelt’s court packing scheme. It was obvious to everyone that the plan was to place political allies on the Court, thus politicizing the Court in a way that had not been done before. Ten members of the Senate Judiciary Committee — seven of whom were Democrats — signed a document opposing the scheme in the strongest possible words:
[The Judiciary Committee members] didn’t merely maintain that FDR was wrong or misguided; they argued that the court-packing plan was an “utterly dangerous abandonment of constitutional principle,” a transparent scheme to punish justices whose opinions diverged from the executive branch and “an invasion of judicial power such as has never before been attempted in this country.” If enacted, the senators wrote, court-packing would create a “vicious precedent which must necessarily undermine our system.” They concluded the plan “should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
Roosevelt’s court packing plan quickly died (although, as Harsanyi notes, over the next several years Roosevelt got more than sufficient appointment opportunities to shift the Court’s ideological balance).
Harsanyi also notes that the court packing scheme caused Roosevelt’s “popularity [to] plummet to historic lows,” despite his having just been re-elected in a landslide. Perhaps that explains the flat refusal today of both Joe Biden and Kamala Harris to state a position on court packing, even when directly confronted on the issue at the debates. In an interview yesterday with a Las Vegas news station, Biden doubled down further, saying that voters “don’t deserve” to know his position on the issue. Huh?
Today, I would not expect any Democrat to take a principled position on this issue in the way that the Senate Judiciary Committee Democrats did back in 1937. So, it’s up to the voters. That means you.
If you do not follow Supreme Court decisions closely, it may not be obvious to you what a complete Democrat/progressive takeover of the Court would mean. The key thing you need to be aware of is that, in any case of political significance, the members of the Court’s “liberal” bloc are one hundred percent reliable votes for whatever is the official position of the liberal law professoriate and the New York Times editorial page. That means that they will support any expansion of the size and power of the government, and anything that advantages Democrats politically over Republicans. Rather than just trying to characterize what that means, let me illustrate with four concrete examples.
District of Columbia v. Heller (2008). This is the case where the Supreme Court, in a 5-4 majority opinion written by Justice Scalia, held that the Second Amendment protects the right of individuals to keep and bear arms. The four judge liberal bloc — then Stevens, Souter, Ginsburg and Breyer — would have held that the Second Amendment only applies in the case of use of arms in a militia. In other words, the liberals would completely read the Second Amendment out of the Constitution as it relates to individual self-defense of persons and homes.
Citizens United v. Federal Election Commission (2010). The 2002 Federal campaign finance law by its terms prohibited corporations and unions from using their funds to expressly advocate for or against a political candidate in the 30 days before a primary election. The law also gave an express exemption for the press. The group Citizens United, organized as a corporation, made a movie critical of Hillary Clinton, and wanted to show it in the run-up to primaries in 2008. They sued for an injunction to prevent enforcement of the campaign finance law against them. The Supreme Court, 5-4, struck down the limitations on corporate speech as in violation of the First Amendment. The four “liberal” Justices (then Stevens, Ginsburg, Breyer and Sotomayor) dissented as a bloc. The opinion, by Justice Stevens, takes the position that the First Amendment does not prevent Congress from restricting speech by selected corporate entities in the run-up to elections. Note that the campaign finance law as written permitted (and still permits) entities organized as corporations to engage in unlimited political speech as long as they are the press. In other words, unlimited speech for the New York Times and Washington Post, silence for Citizens United. Of course, Stevens’s opinion by its own logic would give Congress the right to silence the press too should they so desire.
Janus v. AFSCME (2018). Mark Janus challenged the requirement in many states that state employees join unions and pay dues, much of which are then used for political purposes -- and essentially all of that going to the Democratic Party and its candidates. Previous cases had required the unions to separate their expenditures into political and non-political portions, and to give a credit to dissenters for the political portion. Mr. Janus contended that essentially everything the union did was political to some degree, let alone that the political/non-political distinction was drawn in an arbitrary and abusive way. One of the briefs in the case gave the example of the AFSCME annual convention, something funded by the compulsory portion of the dues: "The AFSCME convention in July 2016 involved political advocacy, featuring a lengthy 'AFSCME FOR HILLARY' program, culminating with a speech by the candidate herself. One speaker led attendees in a chant of 'I'm With Her!' On the very first day of the convention, the union's president led attendees in booing Donald Trump. On the third day, the convention adjourned early, so members could participate in a 'TRUMP HOTEL DIRECT ACTION' protest march. The convention even chartered buses for the protest." All completely "non-political" of course. In any event, forcing people to pay for this kind of thing against their will was completely OK with the members of the Court's "liberal" bloc — Ginsburg, Breyer, Sotomayor and Kagan. The stated grounds of the dissent are that the previous rule was long established and supposedly assisted in achieving "labor peace." (Yet somehow the majority of the states are able to achieve labor peace without such a system.) A more realistic version of what was at stake was a few hundred million dollars of compulsory annual union dues for "our side.”
Seiler Law v. Consumer Financial Protection Bureau (2020). The CFPB, brainchild of Elizabeth Warren, was the ultimate example of an agency completely free of the strictures of the separation of powers that is fundamental to our Constitution. As created, it was headed by a single administrator who could not be fired by the President except “for cause,” and was also funded outside of Congressional appropriations via the Federal Reserve. The Court’s majority invalidated the CFPB’s structure (although on much narrower grounds than what I thought they should have done). But the four Justice liberal bloc — again, Ginsburg, Breyer, Sotomayor and Kagan — would have approved everything about the agency’s structure. From Justice Kagan’s dissent: “[The Constitution] grants Congress authority to organize all the institutions of American governance, provided only that those arrangements allow the President to perform his own constitutionally assigned duties.” How exactly can the President “take care that the laws are faithfully executed” (his principal duty under Article II) when he is saddled with thousands of bureaucrats whom he can’t fire, and who don’t acknowledge that they report to him and who are engaged in active resistance of his initiatives and in attempts to undermine everything he does? All of that is no problem for the liberal bloc.
There are many more such cases where the liberal bloc has signaled in clear terms where they want the Constitution to go. But these are a good start. From his many refusals to answer a question on this subject, I have no doubt that Joe Biden would go along with a court packing scheme.