The Patriot Post® · Democrats Revive FDR's Court-Packing Agenda
On February 5, 1937, President Franklin Delano Roosevelt announced his intention to add six additional justices to a Supreme Court that had thwarted many of his New Deal initiatives. In reasoning that should resonate with millions of Americans, SCOTUS believed those initiatives delegated an unconstitutional amount of authority to the executive branch and the federal government. Nonetheless, for today’s equally rapacious Democrats and their media allies, everything old is new again: Several Democrat presidential candidates have announced their intention to pack the Court, despite the reality that, as The Washington Post put it, the idea “fell into lengthy disrepute after 1937.”
Sen. Elizabeth Warren’s reason for doing so was unintentionally hilarious. “It’s not just about expansion, it’s about depoliticizing the Supreme Court,” she stated.
Others were less amusing. “It’s no more a departure from norms than what the Republicans did to get the judiciary to the place it is today,” asserted Pete Buttigieg. “Bold, ambitious ideas need a hearing right now.” Sen. Amy Klobuchar was more pragmatic, saying, “You always want to look at all ideas, but I think right now the most reasonable thing is to win the elections and to try to stop the bad judges.”
As the Democrats’ orchestrated debacle at the Brett Kavanaugh hearings indicated quite clearly, “bad judges” are seemingly those appointed to the Court by President Donald Trump. Thus, the evisceration of a decent man’s reputation, courtesy of rank political maneuvering and an unprecedented level of media smearing, was perfectly acceptable.
By contrast, Sen. Bernie Sanders would attempt to achieve the same result by a different means. “I do not believe in packing the court,” he said. “We’ve got a terrible 5-4 majority conservative Court right now. But I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court and a majority I hope that will understand that a woman has a right to control her own body and that corporations cannot run the United States of America.”
A “terrible 5-4 majority” is in the eye of the beholder. As George Washington University associate professor Brandon L. Bartels inconveniently pointed out in 2018, swing-vote Justice Anthony Kennedy’s retirement gave Trump and a GOP Senate “the chance to cement a reliable conservative majority on the Supreme Court for the first time since the New Deal began.”
The New Deal was initiated in 1933. Thus, what Democrats really want is what they had for more than three-quarters of a century, as in a Court willing to implement agendas rejected by state legislatures and/or voters themselves. Toward that end they have no problem whatsoever when a majority of justices “discover” previously undiscovered constitutional rights that align with leftist ideology.
In short, no one is more pleased with a “politicized” Supreme Court than the same Democrats who would pack it when that agenda may no longer be realized.
Moreover, their appetite for judicial supremacy is hardly satiated by SCOTUS. In a speech at the American Law Institute on May 21, 2019, Attorney General William Barr noted as much. “Since President Trump took office, federal district courts have issued 37 nationwide injunctions against the executive branch,” he stated. “That’s more than one a month. By comparison, during President [Barack] Obama’s first two years, district courts issued two nationwide injunctions against the executive branch, both of which were vacated by the Ninth Circuit. And according to the [Justice] Department’s best estimates, courts issued only 27 nationwide injunctions in all of the 20th century.”
There’s a method to the madness of judicial activism favored by the American Left. As columnist Daniel Horowitz has pointed out, SCOTUS only heard 60 cases in 2018. “Meanwhile,” he notes, “the lower courts heard tens of thousands of cases, and their dockets are full of every political issue under the sun.”
Why is that important? Because the sheer volume of cases advantages the activism.
Despite that advantage, it’s still not enough for a party seeking unassailable power. “More and more Democrats are becoming convinced that we cannot resign ourselves to the third branch of government being captive to partisan Republican forces for the next 30 years,” stated Brian Fallon, a former Hillary Clinton advisor who now heads the group Demand Justice.
On the other hand, being captive to partisan Democrat forces is fine, even if it requires stacking the court. “To many leftists and left-liberals, such drastic action is needed if any progressive legislation in the future is to survive,” Vox columnist Dylan Matthews wrote in 2018. “The concerns in question have less to do with hot-button social issues like abortion and LGBT rights and more to do with the constitutionality of economic regulation and redistributive programs.”
Aaron Belkin, San Francisco State University associate professor and executive director of Pack the Courts, echoes that sentiment. “The strategy is to make the 2020 [Democrat] candidates understand that if they don’t come up with an agenda to deal with the courts, everything they are talking about is going to be dead on arrival,” he insists.
Again, note that if “progressive legislation” aligned itself with a majority of Congress or voters themselves, SCOTUS rulings would be irrelevant. That it not only isn’t but also requires court packing to pass a legislative agenda that would otherwise “be dead on arrival” speaks volumes.
Fortunately, Democrats would have to gain complete control of Congress and the presidency to make it happen. The Constitution grants Congress the power to determine the number of justices, and it passed the Judiciary Act of 1869, setting the number at nine.
Democrats assert that packing is justified due to Republicans refusing to hold a vote on Judge Merrick Garland in 2016. Republicans countered that it was not proper to hold a vote during an election year, a position supported by Joe Biden in 1992, when he insisted a “lame duck” president should not be in a position to nominate a justice. (It should be noted that Garland would have changed the ideological composition of the Court, and Republicans wanted voters to weigh in.) Democrats’ fury intensified when Donald Trump beat “sure thing” Hillary Clinton and put Neil Gorsuch on the Court.
Democrats have convenient memories. Prior to 2013, nominees for federal courts and SCOTUS effectively needed 60 votes, meaning a filibuster could thwart a nomination indefinitely. Former Democrat Senate Majority Leader Harry Reid was incensed by such GOP-led filibusters holding up his judicial picks, so he invoked what is known as the nuclear option, lowering the threshold to a 51-vote majority for all judges except those appointed to SCOTUS. Following Trump’s victory, Republican and current Senate Majority Leader Mitch McConnell extended the nuclear option to SCOTUS justices, paving the way for the appointment of Gorsuch by a 54-45 margin.
Tit for tat? Absolutely. But Democrats have no one to blame but themselves, mostly for assuming Republicans would never behave like … Democrats.
Hence, court packing becomes the next “logical” step in a dangerous game of one-upmanship. Leftists’ real agenda? Like their desire to eliminate the Electoral College, abolish or reconfigure the Senate, and give voting rights to felons, 16-year-olds, and illegal aliens, court packing is about what it has been since FDR first attempted it: the acquisition and maintenance of power, by any means necessary.
Americans should remember that agenda next November.