Democrats have accused President Trump of violating constitutional norms, degrading the office that he holds, and endangering our government’s institutions. But nothing that Trump has said or done in his four years in office could do more to upend our traditions than what Democrats are currently proposing.
Furious that Trump and the Republican-controlled Senate might fill Justice Ruth Bader Ginsburg’s vacancy before the November election, leading Democrats have embraced court-packing, a radical policy that would completely alter the balance and nature of the judicial branch.
House Judiciary Chairman Jerry Nadler, a New York Democrat, urged Democrats to “immediately move to expand the Supreme Court” if the Senate moves to confirm Trump’s nominee:
If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court. 1/2 https://t.co/BDYQ0KVmJe
— Rep. Nadler (@RepJerryNadler) September 19, 2020
Senate Minority Leader Chuck Schumer, a Democrat from New York, hinted that he would support such a move as well, declaring in a caucus call with Senate Democrats on Saturday that “nothing is off the table” if Republicans move forward. And several other lower-ranking congressional Democrats have made it clear that they will pursue a court-packing policy regardless of what Democratic Party leadership decides to do:
If he holds a vote in 2020, we pack the court in 2021.
It’s that simple.
— Rep. Joe Kennedy III (@RepJoeKennedy) September 19, 2020
Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.
— Ed Markey (@EdMarkey) September 19, 2020
This is a horrible idea that reeks of desperation. Court-packing last appeared on the national agenda when President Franklin D. Roosevelt tried to add additional seats to the bench after his administration faced a series of losses in the Supreme Court. Members of his own party were able to see Roosevelt’s ploy for what it was: a power grab orchestrated by a man who already had too much of it.
The number of seats on the Supreme Court’s bench can be changed via legislation, according to the Constitution. But that number has not been changed since 1869 — Roosevelt’s attempt to add six more justices failed — and with good reason.
The exact number of justices does not matter. Add two more, and the Supreme Court would be able to operate just as well as it does today. But that’s not the point. The problem is that tampering with the number of justices who serve on the bench would rid the Supreme Court of its political independence, leaving it open to the influence of Congress and/or the president whenever either branch decided the judiciary was out of line.
If Democrats try to move forward with this, they will destroy the judicial branch’s integrity, upend the balance of power, and seriously degrade one of our system’s greatest virtues: the separation of powers. This means that once this policy succeeds, it will never stop. Republicans will follow suit the next time they come to power, and Democrats will respond in turn, and the Supreme Court will be destroyed in the process.
Clearly, Democrats only care about our institutions when they believe Trump is harming them. Or when they believe those institutions could be used as leverage for more power. But they should keep in mind that the American public rejected court-packing once before, and they might very well do so again come November.
