The U.S. Supreme Court is under attack, not only by angry protestors waving vulgar signs as they march outside the homes of justices and their families, but also by a large number of Democratic politicians. Sensing a possible strategy to limit the political shellacking Democrats are expected to face this November, the Left is promising to pack the Court with enough new liberal justices to shift the majority back to where it was prior to the Trump administration and the appointment of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
With this dangerous and short-sighted proposition, not only will the safety of conservative justices be threatened, but so too will the independence of the judiciary itself. This effort to pack the Supreme Court must be stopped.
Following the unprecedented leak of an initial draft of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization signaling that Roe v. Wade is likely to be overturned, the far-left, liberal enthusiasts are in a frenzy. At the same time, with the president’s approval rating continually sinking to new depths, and the midterm election fast approaching, Democrats smell a potential opportunity to rally their disjointed base and keep themselves in power.
So, as they launch a campaign to intimidate Supreme Court justices to change their vote, many Democrats are also aggressively advancing another tactic tried in the past to attempt to exert influence over the judiciary: court-packing.
Since 1869, the U.S. Supreme Court has had nine justices, and over the past 153 years, only one attempt has been made to change that number. That attempt, made by the late President Franklin D. Roosevelt in 1937 was adamantly opposed by both political parties based on the threat it posed to the independence of the judiciary. Roosevelt’s effort failed.
But now, several Democrats, upset by the prospect of Roe being overturned, and sensing a way to keep themselves in power, want to give this strategy another go.
Following the revelation of the leaked document, Democrat Sens. Ed Markey and Elizabeth Warren immediately jumped on social media and various media outlets calling for the court to be expanded, with a host of other Democrat leaders, including Reps. Ilhan Omar and Adam Schiff, echoing the call.
Packing the court was a bad idea back in 1937 when Roosevelt tried it, and it is still a bad idea today. Expanding the court would undermine the independence of the judiciary and establish a dangerous precedent. If Democrats are able to increase the number of justices needed to get their way this time, what’s to stop Republicans from employing the same tactic the next time they find themselves in power? The result would be a judicial branch largely controlled by the other two branches of government, making decisions based on the passions of partisan politics rather than reasoned legal analysis grounded in the Constitution.
Foreseeing the danger of a judiciary controlled by one of the other branches of government, Alexander Hamilton warned in Federalist No. 78 — quoting Montesquieu — “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Echoing this sentiment more than two centuries later, the late Supreme Court Justice Ruth Bader Ginsburg eloquently stated, “I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court…. If anything would make the court appear partisan it would be that. One side saying, ‘When we’re in power we’re going to enlarge the number of judges so we’ll have more people who will vote the way we want them to.’”
Court-packing has always been a bad idea, just as it is now. Our founders recognized this, and so too did Justice Ginsburg. For the good of the country, we should heed the advice they gave. This latest effort to pack the Supreme Court must be stopped.
Stewart Whitson is the legal director for the Foundation for Government Accountability (FGA).