As independent voters come to their final decisions, one aggressive policy position has overtaken the Democratic Party in ways voters should seriously consider: their clear support for court-packing. “This is a new development, at least among elected officials at the highest reaches of the Democratic Party,” wrote Vox on Wednesday.
Court-packing used to be a radical idea. It’s easy to see why. Let’s say a President Harris adds three Supreme Court Justices who apply the law in ways she likes: they approve government censorship of private speech or mandate men in women’s prisons. Will people harmed by these policies accept that “justice” has been served? Fat chance.
So in 1983, then-Senator Joe Biden called court-packing a “bonehead” idea, and a “terrible, terrible mistake” when considered by President Roosevelt in the 1930s. “It put in question, for an entire decade, the independence of the most significant body … the Supreme Court of the United States of America.”
That’s not today’s Democrat party. Today, 71% of Democrats say they favor this aggressive policy.
Court-packing is now a “litmus test” in Democratic political circles. Sure enough, Senator Wyden (D-Ore.) just introduced legislation to add six Justices to the Court. Senator Whitehouse (D-RI) and nine colleagues introduced legislation last year to add a Justice every two years. Even the supposed unity candidate for president, Joe Biden, released a plan to pack the court by giving presidents a new nominee every two years.
And at a CNN presidential townhall among Pennsylvania undecideds on Wednesday, a voter asked Kamala Harris about court-packing: “Would you be in favor of expanding the court to, say, 12?”
She had such an opportunity! To bring our nation together, to commit to the rule of law, and frankly to explain to people in clear terms that she will not tear the whole system down. It’s extremely important to use one’s platform to educate, not mislead: this is not some unhinged court, instead “the rate of unanimity (approximately 46% of all decisions in the 2023 term) is among the highest in recent memory,” according to Empirical SCOTUS.
She did the opposite. She first confirmed that her beef was with the Court’s ideology (and not setting some better number), by railing against the overturning of Roe v. Wade. And then she agreed, “I do believe there should be some sort of reform.”
How did court-packing, once a fringe theory by activists and roundly derided by Joe Biden, become an acceptable mainstream talking point?
The first step was frustration with conservative Justices, after widespread acceptance of textualism. Textualist Justices enforce the law: if the law doesn’t provide for a student loan bonanza, then Joe Biden can’t do it; if the Constitution protects “bearing” arms, then New York can’t prohibit carrying. (And if Trump wants to add a question about citizenship on the Census, but didn’t jump through the right procedural loopholes to do it, the Supreme Court enforces those procedural loopholes.)
Under this system, it’s hard to make big change quickly: it requires passing a law, or even harder, passing a constitutional amendment. That irks progressives and a desire for sudden change.
Enter Trump. Irritated after Senate Majority Leader McConnell held Justice Scalia’s seat open during the 2016 presidential election, and shoe-in Hillary Clinton incredibly lost, the Left was furious over Brett Kavanaugh’s confirmation. Although Brett Kavanaugh was a staple of D.C. legal and charitable circles for decades (serving on the D.C. Circuit and teaching courses at Harvard and Yale Law schools), Democrats highly politicized the hearing, leaving the heated Left up-in-arms. “Facing the prospect that the conservative majority could block progressive legislative efforts, many on the Left are already trying to identify strategies that would reduce the Court’s power,” professors wrote in the Yale Law Journal. “Perhaps most prominently, court-packing is under serious discussion after being seen as beyond the pale for decades.”
And then came the money.
One Left-funded organization, Demand Justice, plans to spend $10M this election on Supreme Court “reforms,” designed to change its ideology. More than 100 Leftist organizations have banded together to attack the Supreme Court under the almost-comically-named “United for Democracy.” And groups like Take Back the Court (again, a Leftist-funded operation) openly brag about moving the window of acceptability for court-packing.
And just like that, court-packing is today mainstream among Democrats.
And this is reason enough to vote against the party. Because the problem with court-packing isn’t just that it’s designed to give presidents their political preferences. The real problem is that it makes everything political, without any democratic check.
The laws passed by Congress: political, but we can change them. The executive orders dictated by presidents: political, but again, we can change them.
The rulings issued by Courts? If they are nakedly partisan—as court-packing is designed to achieve—then what can Americans do? Nothing. We are ruled by politics, not law. That is the definitional threat to democracy.