‘Packing’ the Supreme Court Would Undermine Our Political System

COMMENTARY: Muzzling an independent judiciary by packing the Supreme Court would upset our system of government and place those freedoms expressly guaranteed by the Constitution in grave peril.

Discussion of ‘court-packing’ is in the news as Election 2020 approaches on Nov. 3.
Discussion of ‘court-packing’ is in the news as Election 2020 approaches on Nov. 3. (photo: Shutterstock)

A troubling thirst for power threatens the remarkable tripartite system of government in America. Not even the possibility of controlling the executive and legislative branches after the November elections is enough to satisfy some far-left zealots. They want a “court-packing plan” — adding several more justices to the Supreme Court — to cripple any genuine judicial oversight of government overreach, legislate from the bench and effectively to destroy the independence of the judiciary. If ever there were an example of a tactic that deserves the unfashionable adjective “un-American,” this is it. 

Our three branches — executive, legislative and judicial — work in a coordinate fashion. The executive and legislative branches are led by the people’s elected representatives and tasked with advancing policies and responding to the needs of Americans as they arise. An independent judiciary permits executive action and federal laws to take effect as long as they are consistent with the guarantees of the Constitution. Our Supreme Court, the highest court in the land, safeguards the promise of “equal justice under law,” words engraved on the Supreme Court building, and acts as guardian and interpreter of the Constitution. 

The Constitution does not specify the number of justices on the court. Instead, Congress can change this simply by passing an act that is then signed by the president. George Washington nominated the original six justices on Sept. 24, 1789, after Congress passed the Judiciary Act of 1789 establishing a Supreme Court. During earlier periods of our history, Supreme Court seats tracked judicial circuits and would increase as the number of circuits increased. Since 1869, the number of justices on the Supreme Court has been set at its current number: nine. 

For years, the high court often followed the cue of justices who acted more like lawmakers than interpreters of the law. But then along came the likes of Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Their judicial philosophy was to go no further than their responsibility to interpret the laws and Constitution of the United States faithfully, using interpretive principles known as “originalism” and “textualism.” Today, a cadre of young legal scholars and judges are attracted by the intellectual honesty of these principles. One outstanding advocate of such judicial restraint is Judge Amy Coney Barrett. 

In her opening statement before the Senate Judiciary Committee on the first day of hearings for her nomination to the Supreme Court, she explained that it is not the court’s duty to “solve every problem or right every wrong” in American life. “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people.”

Progressives have no time for such niceties. They want a Supreme Court that will rubber-stamp their agenda, without concern for the constraints set by and the freedoms enumerated in the Constitution, and they have several political aspirants willing to do their bidding. Former South Bend, Indiana, Mayor Pete Buttigieg touted the idea of expanding the high court to as many as 15 justices in his bid for the Democratic nomination. “My appointments will make the court more progressive,” he promised. 

Sen. Elizabeth Warren, D-Mass., said the idea of packing the court was “a conversation that’s worth having.” Sen. Kamala Harris, D-Calif., similarly said that she was “open to this conversation about increasing the number of people on the United States Supreme Court.” 

The death of Justice Ruth Bader Ginsburg on Sept. 18 and President Donald Trump’s prompt nomination of Barrett for the vacancy has prompted additional Democrats — including Senate Minority Leader Chuck Schumer, D-N.Y. — to join the court-packing bandwagon. Joe Biden has ominously refused to answer the question of whether he would pack the Supreme Court the numerous times he has been asked since Ginsburg’s passing. 

If Democrats achieve control of the White House and Congress after the elections, Schumer will likely introduce legislation to add justices, the Democratic-controlled Congress could pass it, and a President Biden could sign it into law. The only thing that would stop such an authoritarian scenario would be Democrats that act like statesmen.

That happened in 1937, when Democratic President Franklin Roosevelt announced his plan to expand the Supreme Court to as many as 15 justices after it struck down parts of his New Deal legislation. Roosevelt’s Judicial Procedures Reform Bill of 1937 was met with strong opposition, even from within Roosevelt’s party. The vice president and Senate majority leader rejected Roosevelt’s plan. And a vote was never taken in Congress. Democrats dominated Congress at the time and yet they rejected the invitation to use the judiciary to advance policy preferences. 

Whether such statesmanship will prevail today is an open question. Democrats are livid that Trump has a chance to fill a third vacancy on the Supreme Court. Some even argue that doing so is a form of packing the court. This, of course, is nonsense. The president and the Senate are using the very same method used by duly elected officials to nominate and confirm justices before them. And Democrats would have behaved precisely the same way in the same position. 

We were all taught in high school, or even earlier, that our system of government is built upon checks and balances and the separation of powers. Public policy is set by the executive and legislative branches and is tempered when the Supreme Court determines that the Constitution has been violated. 

But you have to wonder if the children who grew up to be radical leftists were paying attention during those lessons. Maybe they didn’t understand that muzzling an independent judiciary by packing the Supreme Court would upset our system of government and place those freedoms expressly guaranteed by the Constitution in grave peril. Or, more worryingly, perhaps they understood it only too well.

Andrea Picciotti-Bayer is a legal analyst for EWTN News.