In an alarming, but not surprising, development, the U.S. House recently introduced legislation to increase the number of justices on the U.S. Supreme Court—a practice known as “court- packing.” If passed, the new law would give President Biden the opportunity to fill four new seats with justices who agree with his political objectives and are willing to uphold his agenda. (While Speaker of the House, Nancy Pelosi, has indicated she does not support the bill, she does support the president’s commission to study such a proposal, so it is important for every American to understand the implications of this legislative maneuver.)
The Court’s majority alternates over time between a conservative majority (those who believe the Constitution should be interpreted as written) and a left-leaning majority (those who see the Constitution as a living, breathing document that must flex and move to either adapt to cultural change or to accomplish progressive objectives). This shift happens slowly, as justices serve for lifetime appointments, providing stability in our system. Court-packing would likely unleash a cycle that would undermine that stability: With each change of administration, the party succeeding to power would simply add enough “aligned” justices to secure an advantage and overturn the rulings of the “previous” Court. The Court would be fast-changing and completely subject to the political whims of those in power.
That prospect is troubling, yet there is another implication that is evenmore disturbing. Court-packing would immediately give the Democrat party control over all three branches of government. Not only this, but the progressive wing of the party (who is driving the agenda) is attempting to push through certain radical legislative objectives that, if passed, would make it almost impossible for a conservative to ever regain the presidency or a majority in Congress, potentially giving the Democrat party power in perpetuity. Those objectives include, among many others:
- “For the People Act” (H.R.1): This would take the power over elections from the states and hand it to Congress and permanently enact policies that undermine election integrity, such as eliminating voter ID, requiring universal mail-in ballots without voter authentication, legalizing ballot harvesting, allowing a person to vote with any name, and requiring the inclusion of non-eligible illegal immigrants in re-districting, among other policies that open the door to massive election fraud.
- Granting statehood to Washington, D.C. and Puerto Rico: This would likely provide four additional, reliably-blue seats in the Senate. The Senate is currently evenly divided 50-50, and these additional seats would add up to a significant and lasting shift in power.
- Granting amnesty to roughly 22 million illegal immigrants: This would providing illegal immigrants the right to vote, which, in turn, is expected to tilt the electorate to the left to a degree that permanently changes election outcomes. (As a reference point, California, a Democrat stronghold, was reliably red prior to the enactment of policies that incentivized mass illegal immigration.)
- Expanding the lower federal courts to ensure a majority of appointees who share their progressive ideals and political objectives: This is intended to increase the odds that even the most radical legislation will survive lower-court challenges.
- Abolishing the electoral college: The electoral college was designed to ensure that all states, even the smallest, have a voice in presidential elections. Without the electoral college, elections would be decided based on a simple majority vote, and the most populous states, such as New York, California, and Illinois,
would largely determine presidential election outcomes.
These policies are not only objectionable to a majority of Americans, but they violate the Constitution and would not likely survive constitutional challenge in today’s Supreme Court.
Packing the Court, however, could change this outcome. Adding justices who are politically aligned with those in power—and who are willing to re-interpret our Constitution to achieve shared political ends—could allow even these radical policies to survive a Court challenge.
If ultimately enacted into law, such policies could enable a handful of radical, progressive politicians to amass and retain enormous amounts of power…possibly in perpetuity. It should come as no surprise that court-packing is a common tool of authoritarians bent on undermining liberal democracy: Look no further than to Venezuela, Hungary, and Turkey.
Court-packing is a dangerous idea that has no place in our democratic republic.