Will Democrats attempt to pack the Supreme Court again?

In 2019, the New York Times asked Sen. Kamala Harris (D-Calif.), “Are you open to expanding the size of the Supreme Court?” Harris responded, “I’m absolutely open to it.”

That same year, Harris told Politico, “We are on the verge of a crisis of confidence in the Supreme Court. We have to take this challenge head on, and everything is on the table to do that.”

By everything on the table, Harris was surely alluding to adding more Supreme Court justices, also known as “court-packing.”

In fairness, Harris’s running mate has historically opposed court-packing. However, when recently asked, Joe Biden responded, “It’s a legitimate question. But let me tell you why I’m not going to answer that question: because it will shift all the focus.”

By not answering, Biden is answering. And it doesn’t take a genius to guess that he would be open to it, considering that many in his party are all-in on court-packing. 

Following the death of Supreme Court Justice Ruth Bader Ginsburg, and the likelihood that President Trump will appoint, and the U.S. Senate will confirm, Ginsburg’s replacement, the issue of court-packing has catapulted to the forefront of the Democrats’ 2020 campaign agenda.

Almost immediately after Ginsburg’s passing, Senate Minority Leader Chuck Schumer (D-N.Y.) said, “Everything is on the table.”

With Schumer leading the way, several of his fellow Democrats have already pledged their support for adding justices to the Supreme Court should their party gain control of the Senate and White House this fall.

That prospect should send a shiver down the spine of any American who believes in the notion of equal justice under the law, which is the phrase prominently displayed above the entrance to the U.S. Supreme Court.

Since 1869, the U.S. Supreme Court has seated nine justices. Although it is not written into the Constitution that the nation’s highest court must contain nine justices, this number has been the norm for more than 150 years.

In 1937, President Franklin D. Roosevelt, who was known to buck tradition and ignore precedents, attempted to add more justices to the Supreme Court. After the court ruled that many of FDR’s New Deal programs were unconstitutional (which they were), FDR grew frustrated and floated the idea of adding up to six new justices.

In one way, FDR’s attempted court-packing scheme was a monumental flop. It immediately invoked a backlash from members of Congress, including many in FDR’s party. Long story short, FDR’s vision of a 15-member (mostly liberal) Supreme Court never came to fruition.

However, in an unexpected way, FDR’s court-packing attempt paid major dividends for him. Following his failed attempt to remake the Court in his liberal image, coincidentally or not, it just so happened that the Court began ruling in favor of FDR’s New Deal programs.

By threatening to upend the court, many historians argue that the justices kowtowed to FDR’s agenda, allowing unconstitutional laws to be upheld to protect the court (and their careers, in some instances) from further threats from FDR or any future president.

The moral of the story is simple. By threatening to pack the court with liberal justices who would be sympathetic to his New Deal legislation, FDR was able to seemingly coerce sitting justices to toe the liberal line.

Now, almost 80 years later, parallels abound. In its upcoming session this fall, the Supreme Court is likely to rule on a plethora of Obama-era laws and regulations. From ObamaCare to environmental regulations, many on the left are worried that these laws will be ruled unconstitutional by the court as it currently stands.

Such is why Democratic leaders, from House Speaker Nancy Pelosi (D-Calif.) to Rep. Alexandria Ocasio-Cortez (D-NY), are calling for court-packing as soon as they have the power to do so.

Obviously, they hope they will be victorious across the board this November, so they can pull this off before the court has the opportunity to rule on any of these matters. However, this is a dangerous game.

What’s good for the goose is good for the gander. If the Democrats are willing to blow-up a sacred institution for political ends, you can bet your bottom dollar that this will instigate a new era of dysfunction in the nation’s capital.

It is likely that this would force the GOP’s hand to employ similar tactics. After all, we should not forget that it was Democrats who did away with the 60-vote threshold to appoint federal judges when they controlled the upper chamber in 2013.

Ironically, this has allowed the GOP to secure the current vacancy with a majority vote, which they would not have been able to do had the Democrats not changed the rules while they were in power.

Yet, I doubt Schumer, Pelosi, AOC, Harris or even Biden will learn their lesson from their past error in judgment.

Judging by their recent rhetoric, it seems that they are more than willing to double-down and up the ante. The big question is, will Americans give them the opportunity to carry out their court-packing plan? 

Chris Talgo (ctalgo@heartland.org) is an editor at The Heartland Institute.