OPINION:
Feb. 5, 2027, will mark the 90th anniversary of President Franklin D. Roosevelt’s ill-conceived and inglorious scheme to pack the Supreme Court to achieve his political ends, which were being blocked by the court.
Nine decades later, FDR’s ghost has seemingly been whispering into the ear of former Vice President Kamala Harris. Taking her cues from the 32nd president, the would-have-been 47th said recently that Congress should consider expanding the Supreme Court by adding four justices to the current nine — a number that has remained unchanged since 1869.
“We need to revisit the point of expanding the court to 13 justices like we have 13 [circuit courts],” Ms. Harris said July 31 in Nashville, Tennessee, at the National Urban League’s annual conference. The remarks followed a June 20 appearance on the podcast of former CNN host Don Lemon.
There, Ms. Harris tossed this word salad: “I think that we absolutely have to explore what we need to do because of the Supreme Court and what it has done to destroy so many of the elements of the Constitution that were designed to protect, in particular, the minority, those who were marginalized, including expansion of the Supreme Court.
“And yes, I absolutely believe that we should be exploring that. And the idea of 13, I agree, because there are 13 circuit courts, 13 justices,” she added.
What amounts to a latter-day reincarnation of FDR’s Judicial Procedures Reform Bill of 1937 is an increasingly popular idea among Democrats — notably, former Transportation Secretary Pete Buttigieg and Reps. Alexandria Ocasio-Cortez of New York and Ro Khanna of California.
These politicians also advocate packing the high court with liberal activist judges to ensure their desired rulings in controversial cases. However, their desire to add justices to the court is entirely contingent on having a liberal Democrat in the White House who would nominate left-wing activist judges and a Democratic-controlled Senate that would rubber-stamp their confirmations.
The earliest any of this could happen is 2029, and only if Democrats win the “trifecta” of the presidency and both houses of Congress in 2028.
Even then, a Democratic-controlled Senate would first have to abolish the filibuster to overcome what surely would be unanimous Republican opposition. However, in the absence of the level-headed likes of former Democratic Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona, that procedural emergency brake is probably gone in a Democratic-majority Senate.
If Senate Republicans (and their overpaid and underachieving consultants) were at all proactive, they would preemptively call the bluff of Ms. Harris and other Democrats and push for expanding the Supreme Court now, if only to watch the hilarity and shameless hypocrisy that would ensue.
Those same Democrats would thunder with righteous indignation against any court-packing not done by them as undemocratic. The prospect of four additional justices chosen by President Trump (or a prospective President J.D. Vance or Marco Rubio) would leave them utterly apoplectic.
Democrats want to expand the court to counteract what they view as a disproportionately conservative bent in its decision-making. Although six of the nine current justices were appointed by Republican presidents, including three by Mr. Trump, even a cursory review of the justices’ voting records shows that the Republican appointees are far more likely to break ideological ranks on controversial rulings than their liberal counterparts.
In 2020, it was Justice Neil M. Gorsuch, a Trump appointee, who wrote the 6-3 opinion in Bostock v. Clayton County, which extended federal civil rights protections in employment to cover sexual orientation and gender identity. He was joined by the then-four liberal Democratic appointees and Chief Justice John G. Roberts Jr., who was appointed by President George W. Bush.
On June 30, Chief Justice Roberts and Trump appointee Justice Amy Coney Barrett joined the court’s three liberals — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — in ruling that children born on U.S. soil automatically receive birthright citizenship under the 14th Amendment, regardless of their parents’ temporary or unlawful immigration status.
The historical context and intent of the 14th Amendment were indefensibly defenestrated by the majority in Trump v. Barbara.
By contrast, one would be hard-pressed to find comparable examples of the court’s liberals not marching in lockstep in ruling for the liberal side of any controversial or consequential case.
Ms. Harris and others on the left want four more liberal justices who will serve as rubber stamps for imposing a liberal agenda that they are unable to enact legislatively.
History records that it was FDR’s own fellow Democrats in the Senate who killed his unwise court-packing scheme. Today, in the absence of the likes of Mr. Manchin or Ms. Sinema, there are likely no Democrats in Congress to slam the brakes on this bad idea should they win in 2028.
• Peter Parisi is a former editor with The Washington Times.
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