In 1983, then-Sen. Joe Biden called packing the Supreme Court a “bonehead idea.” But on the debate stage in 2020, candidate Biden refused to answer questions about court-packing, and as president, he has entertained calls from the liberal wing of his party for Supreme Court “expansion” or “reform” (as we are now expected to call it). How did such an idea go from “bonehead” to progressive priority?
In a new book, “Saving Nine,” Sen. Mike Lee, Utah Republican, both poses and answers this question. He provides a comprehensive chronology of court-packing efforts stretching back to the New Deal and demonstrates why court-packing remains a boneheaded notion. Mr. Lee — a constitutional expert who serves on the Senate Judiciary Committee and clerked at the Supreme Court for Justice Samuel Alito — ably sifts through historical practice and principle to make the case for “saving nine.”
Mr. Lee spends several chapters documenting how the country settled on a nine-justice court. The Constitution established the Supreme Court but did not fix its membership. Nonetheless, after various starts and turns (and a Civil War), we arrived at a court of nine justices by the 1860s, and that settlement has remained our practice for over 150 years.
Only during political fights over the New Deal did any president dream of packing the court — adding more justices to overcome judicial obstacles to political goals. This was a revolutionary proposal since the separation of powers and independence of the American judiciary is a cornerstone of our system of government. Yet President Franklin D. Roosevelt threatened the court when it struck down parts of his legislative agenda.
With New Deal laws bringing heavy regulation into far corners of the economy, the Court struck a number of them down as unconstitutional expansions of limited federal power. Mr. Lee recounts how, rather than respect these limits, Mr. Roosevelt initiated a campaign to appoint additional Supreme Court justices in pursuit of the votes to sustain his goals. “Though Roosevelt did not end up expanding the Court,” Mr. Lee observes, “his threat to do so may have worked just as well: the justices suddenly began to look more favorably on the next New Deal case that came before them.” Nonetheless, the Democratic Senate bravely defied FDR and put the idea to rest — for a time.
Mr. Lee then traces modern progressive calls for court expansion to frustration with repeated electoral losses — most notably the 2016 election of former President Donald Trump. Once Mr. Biden took office in 2021, Democratic politicians saw a chance to “end run” around the court. Stung by its previous losses, the progressive movement is now seeking to rehabilitate the idea of court-packing. Numerous Democrat members of Congress have introduced legislation to add justices to the court, and momentum is growing.
The thesis of “Saving Nine” centers around the institutional design of the Supreme Court — and why it’s worth preserving. The court is insulated from politics by design. Judges must interpret laws without fear of retribution. Judicial independence is a check on Congress and the president, meant to keep them in their lane when they exceed their constitutional authority.
Mr. Lee makes the case that manipulating the court represents an assault on the underlying structure of our government, meant to cement single-party power for generations. Court-packing would be nothing more than a “dangerous norm-shattering precedent … set by politically motivated attempts to turn the Supreme Court into just another partisan weapon.” Some in the president’s own party agree, including Secretary of State Antony Blinken. On a recent trip to Latin America, Mr. Blinken warned that “packing courts” is “one of the ways that democracies can come undone.”
Rep. Carlos Gimenez, Florida Republican, has written on these Latin American examples, pointing out that court-packing is a classic move in the playbook of socialist dictators. Mr. Gimenez points out that former longtime Venezuelan President Hugo Chavez added 12 judges to the Venezuelan highest court in 2004, which then ruled in his favor in its subsequent 45,000 cases. Current President Nicolas Maduro also added allied judges to the high court, which then promptly dissolved the legislative branch (controlled by Mr. Maduro’s opposition). Just last year, President Nayib Bukele of El Salvador illegally fired members of the Salvadorian high court — which then changed the constitution to permit Mr. Bukele to run again. In “Saving Nine,” Mr. Lee notes how Adolf Hitler and Benito Mussolini similarly overhauled their countries’ judiciaries before consolidating power.
With “Saving Nine,” Mr. Lee makes a timely contribution to our political discourse, drawing upon his deep experience working in and around the legislative and judicial branches. Let us hope our president and enough leaders in Congress will continue to see court-packing for what it still is: “boneheaded.”
• Maureen Ferguson is a senior fellow at the Catholic Association.
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