The Real Danger Of Court-Packing Proposals Is That They Will Intimidate Supreme Court Justices

Ever since the Supreme Court of the United States was instituted by Article III of our Constitution as ratified by the states in 1788, many of Western civilization’s greatest legal minds have served as justices on that august bench. One of these exceptional jurists was America’s very first Chief Justice, John Marshall, who served from 1801 to 1835.

It was Marshall who, in 1805, authored an opinion that to this day remains a bedrock principle according to which our government, and indeed our very culture, has rested. In that seminal case of Marbury v. Madison, the Supreme Court declared that the final authority by which the constitutionality of any law passed by Congress and signed by the president is to be measured, is the federal judiciary, with the Supreme Court of the United States at its apex.

Over the ensuing 216 years, presidents, members of Congress, lower courts and citizens of all political stripes have complained – sometimes bitterly – when application of this principle of judicial review results in a decision with which they disagree. However, Marshall’s assertion that such process is essential for “the government of the United States” to remain “a government of laws, and not of men,” is at least as important today as it was in 1805.

Our 32nd President, Franklin D. Roosevelt, was so angered by the Supreme Court’s decisions during his first four years in office declaring provisions of his “New Deal” to be unconstitutional, that in 1937 he launched a frontal attack on the independence of the court; a proposal that quickly became known as Roosevelt’s “court-packing plan.” FDR’s plan would have amended the Judiciary Act of 1869 that established the number of High Court justices (including the Chief Justice) at nine, to increase that number by permitting the president to appoint up to six additional justices for each justice over the age of seventy-and-one-half years old.

The nakedly partisan nature of Roosevelt’s move, to which even some members of Congress in his own party objected, resulted in the plan failing to be enacted into law. Despite this salutatory result, Roosevelt’s move did result in serious damage to the fabric of independence that always and eventually has undergirded the Court.

The seriousness of the threatened court packing, proposed by a very powerful and extremely popular president, was sufficient to accomplish FDR’s real goal, which was to so intimidate one or two of the sitting justices so they would have a change of heart concerning the constitutionality of principles underlying the New Deal. It worked. Within weeks of Roosevelt’s unveiling his court-packing plan in a nationwide radio address, one Justice (Owen Roberts) did a “180-degree turn” and decided in a key decision that the principles underlying the New Deal were constitutionally permissible after all.

Today, the same party that gave us Franklin Roosevelt is pressing to do precisely what their mentor did 84 years ago — intimidate the Supreme Court. While the precise manner by which today’s congressional Democrats are proposing to pack the High Court differs in detail from FDR’s (the House bill introduced last week simply expands from nine to 13 the number of justices), the goal is the same. Democrats hope to intimidate the court so that at least one or two of the more “conservative” justices become less likely to render decisions adverse to Biden’s agenda.

While Speaker Pelosi said publicly that she had no plans to bring this latest court-packing proposal to the floor for a vote, such rhetoric is of little consequence. The reality is that since 2019, in the wake of the horrendous confirmation battle the previous year over Brett Kavanaugh’s nomination as an Associate Justice, senior Democrat senators, including now-Majority Leader Chuck Schumer, have been openly campaigning that if the “conservative” majority on the Court dares to issue opinions against key liberal programs, such as on abortion rights and gun control, those justices would “pay the price” (Schumer’s threat) and face some form of “restructuring” (Sen. Sheldon Whitehouse’s words).

Whether any of the three associate justices appointed by former President Trump in particular will be swayed by this congressional bullying (Chief Justice John Roberts has repeatedly shown himself to be at best a “Sunshine Justice”) remains to be seen. But if any are thus moved, it will signal a new era of judicial cowardice has arrived.

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Bob Barr
Bob Barr is a former Congressman who represented the citizens of Georgia’s 7th Congressional District in the US House of Representatives from 1995 to 2003. Bob heads Liberty Guard, a non-profit and non-partisan organization dedicated to protecting individual liberty.