The Democratic Party is foolishly resurrecting court-packing as a political issue for 2020.
Former attorney general Eric Holder has endorsed it. Democratic presidential candidates Kirsten Gillibrand, Elizabeth Warren, Kamala Harris, Beto O’Rourke, and Pete Buttigieg have also expressed interest. A new Democratic group, Pack the Courts, has become a brain trust for the idea.
But unlike wine, court-packing hasn’t improved with age since its embrace by President Franklin D. Roosevelt in 1937. It also hasn’t grown more popular.
FDR’s court-packing legislation would have increased the size of the Supreme Court from nine justices, where Congress had fixed it in 1869, to 15. The purpose was to challenge decisions that had arrested the New Deal by filling six new vacancies with FDR disciples.
Roosevelt was emboldened by his landslide 1936 victory over Alf Landon and backed by overwhelming Democratic majorities of 334-88 in the House and 74-17 in the Senate. But his court-packing scheme proved a nightmare. His bill never received a Senate vote. Democrats lost seats during the 1938 midterms. His popularity plunged. The plan was correctly perceived by the American people as undermining an independent judiciary, a cornerstone of the separation of powers. As James Madison elaborated:
If they [the first 10 amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.
The Supreme Court has proven less courageous than Madison had hoped, having neither the purse nor the sword. Throughout history, the justices have often bowed to popular opinion. They follow the election returns as much as if not more than the law. They have often ignored Justice Benjamin Cardozo, who said that “[t]he great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”
Mortality and retirements periodically bring new blood to the high court through a partisan political process: appointment by the president with the advice and consent of the Senate. So even without Roosevelt’s court-packing legislation, the Supreme Court accommodated the New Deal in West Coast Hotel v. Parrish (1937). Popular opinion ultimately had its way.
Despite the lamp of experience, however, Democrats are absurdly crusading for court-packing to alter decisions rendered and anticipated by the Supreme Court under the stewardship of Chief Justice John Roberts. Court-packing would transform constitutional law into a jumble of political calculations with ulterior motives. It would shake public confidence in the administration of justice and cripple separation of powers—a structural Bill of Rights—by making the Supreme Court an appendage of the political branches. Moreover, the public is unconvinced of the wisdom of court-packing. At present, it holds the Supreme Court in higher regard than either the presidency or Congress.
The Constitution is silent on the number of Supreme Court justices. The Judiciary Act of 1789 fixed the number at six. As the nation expanded, the number climbed by statute to 10 under President Abraham Lincoln. The Radical Reconstruction Congress lowered the number to seven to foreclose any appointments by President Andrew Johnson. In 1869, Congress jumped the number to nine under Johnson’s successor, President Ulysses S. Grant, to reverse a decision adverse to legal tender laws. The number nine has remained unchanged for 150 years, which crowns it with quasi-constitutional status.
Democrats are losing the Supreme Court because their ideas are unpopular, not because of the number of justices. Should they prevail with the public, the Supreme Court won’t be far behind. Peter Finley Dunne’s Mr. Dooley presciently observed more than a century ago regarding a fighting issue of that day, “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns.” He was right.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.