The latest attempt to tear down a key foundation of our republic is the bill that was introduced by Sen. Edward J. Markey, Massachusetts Democrat, House Judiciary Chairman Jerrold Nadler and others to expand the U.S. Supreme Court. Their goal is to enable Democrats to hold a 7-6 majority and control all three branches of government.
As our educational system shifts from civics education to teaching political activism with curricula such as the 1619 Project and concepts such as protecting the minority against the “Tyranny of the Majority.” The 1619 Project in particular revises history to conclude that America is inherently bad, and in the process they miss why the Founders did not opt for a pure Democracy where to the winner went all the spoils.
While Franklin D. Roosevelt was also wrong when this was last tried during his fireside chat after his reelection in 1936, the current attempt in Congress is much more absurd.
At least in Roosevelt’s defense almost the entire country supported his agenda at that time. His popular vote win was more than five times as great as President Biden’s margin, and Roosevelt won the Electoral College 523-8, while Mr. Biden’s Electoral College win was in doubt long after the polls closed. Roosevelt’s policies were so popular that Republicans clung to only 89 seats out of 435, compared to the near majority of 213 they hold today, and they held only 16 of 100 Senate seats.
At least Roosevelt could argue an overwhelming majority wanted his New Deal reforms and the Supreme Court was holding it back, but even with that strong pressure the republic held on and leaders stepped forward to preserve the separation of powers.
The Democratic Congressman and House Judiciary Chair Hatton Sumners could have made himself a Supreme Court judge by advancing the court packing, but he and many other 1930s Democrats held firm to principle and the balance was maintained with the nine justices we have today.
Short of successfully packing the Supreme Court, advocates may hope to scare conservative Justices from rendering decisions they do not like, thus scoring a substantial partial victory.
Liberal academics muse that a pro-life decision in a Mississippi case might add momentum to packing the court just as some believe Roosevelt’s fireside chat advocating court packing was followed by a court decision three weeks later upholding a minimum-wage provision.
Whatever their ultimate goal, liberals who counted on liberal Supreme Court rulings decades ago to legislate from the bench, another way to break the separation of powers, now want the legislative branch to mold the judicial branch in their likeness. In other words, by winning a presidential election, along with a 50-50 Senate, they’re immediately trying to take over the judicial branch to silence opposition. Alternatively, if they lose a future election, they can just find one of the 900 federal judges to block conservative actions by the other two branches and pass legislative policy from the bench.
This current proposal in Congress follows the 2020 efforts to rule states by executive order where the Democrats held the governor’s mansion, but the Republicans held the state legislature, like in Pennsylvania, Wisconsin and Michigan. The ability to change voting laws by edict was successful, just as court packing would be.
The Supreme Court has included nine justices since 1869. Not all changes should be dismissed out of hand. For example, a proposal to have 18-year terms so that each president gets two appointees, but no more, unless a justice cannot serve out their 18 years. A change like that, enacted to take effect sometime in the future after a new presidential election, might make sense.
Simply arguing that as soon as one side squeaks through a narrow victory they should also take over the judicial branch as well is absurd. The country can no longer function at that point.
• John Pudner was a Bush 2000 aide and a 2008 Romney adviser. He is president of Take Back Action Fund.