After Trump’s historic 3rd Supreme Court confirmation, adding Justice Amy Coney Barrett to the bench cementing a 6-3 majority appointed by Republican presidents, many prominent Democrats are rallying behind a call to pack the Supreme Court.
With the election less than a week away, a victory for Joe Biden could mean a formalized push to delegitimize the 3rd branch of government endorsed by up-and-comers to seasoned Democratic leaders alike.
Court Packing – arbitrarily adding Justices to the Supreme Court to garner more preferential rulings – was last seriously proposed in the late 1930’s by Democratic President Franklin D. Roosevelt. Despite FDR’s popularity, his own party largely dismissed the proposal which came about after the Supreme Court declared many components of the New Deal unconstitutional. If seriously pursued, Supreme Court opinions would carry the same influential authority as partisan executive orders.
The 2020 Democratic presidential primary renewed talks of the highly unpopular proposition after Trump appointed his second justice – Brett Kavanagh – to the Supreme Court. Beto O’Rourke, Elizabeth Warren, Pete Buttigieg, and Bernie Sanders, all leaders at some point in the race, endorsed the idea to some extent.
Now, with Justice Berrett confirmed, Democrats didn’t wait long to endorse packing the court.
NY Representative Alexandra Ocasio-Cortez tweeted “expand the court” immediately after the Senate vote.
She added, “Republicans do this because they don’t believe Dems have the stones to play hardball like they do. And for a long time they’ve been correct. But do not let them bully the public into thinking their bulldozing is normal but a response isn’t. There is a legal process for expansion.”
The remainder of the Progressive Squad also endorsed the idea.
Replying to AOC, Rep. Ilhan Omar also tweeted “expand the court.” Omar continued by calling the confirmation an “abuse of power.” Democrats “can’t let [Republicans] get away with their corruption and hypocrisy any longer. Let’s mobilize like hell these last 8 days to end their destructive reign,” she added. Rep. Ayanna Pressley ‘liked’ the tweet.
Rep. Rashida Tlaib of Michigan called for fighting against the “illegitimately stacked judiciary,” adding, “We must expand the Court if we’re serious about the transformational change the people are crying out for.”
Ryan Grim from The Intercept tweeted out an open letter from “more than 20 New York progressive elected officials” calling to pack the court.
Massachusetts Senator Elizabeth Warren posted a Twitter thread last night. “The Republicans are popping champagne tonight to celebrate how they for shoved aside the wishes of the American people to steal a Supreme Court seat & impose their radical agenda on the country,” Warren said. “Every option needs to be on the table to restore the Supreme Court’s credibility & integrity. Every option to expand our democracy. Every option to ensure that all Americans have equal justice in our courts & representation in our institutions,” Warren continued, presumably referencing calls to pack the court.
She referred to Originalism, the ideology of Justice Barrett and 5 of the 9 Justices on the bench, (I don’t consider Chief Justice Roberts an Originalist) as “overrepresented extremists” backed by billionaires. She says Barrett and co. will “cheat, steal, & write their own rules” into law.
Originalism, of course, is the radical belief that justices should interpret the law as it is written, and read the Constitution the way it was intended to be read; not write in their own cultural, political, or personal philosophies to warp the law into what the public – or they – want it to be.
Even Speaker of the House Nancy Pelosi is warming her heart to this push. When asked whether she’s “open to efforts” to add additional seats to the Supreme Court, Pelosi gave a vague answer, signaling an openness to the idea because of population changes.
“I think that Joe Biden has given us a good path. He’s going to have something that people can understand why this is important. Not just the Supreme Court but the other courts,” Pelosi responded. “In 1876, there were nine justices on the Court. Our population has grown enormously since then. Should we expand the Court? Well, let’s take a look and see. And that relates to the nine district courts. Maybe we need more district courts as well.”
Senate Minority Leader Chuck Schumer warned Republicans that they will retaliate using the courts when they’re back in power. “The next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority,” Schumer said on the Senate floor.
Senator Dick Durbin expanded on Schumer’s warning, saying Republicans will “regret the consequences of taking the Senate down this path.”
On the Rachel Maddow Show, Senator Chris Coons captured the Democrat’s willingness to alter time tested institutions. “We’ve got to look at our federal courts as a whole,” Coons said. “[W]e’ve got to have a wide-open conversation about how do we rebalance our courts … Because we’ve seen hundreds of conservative judges put on circuit courts and district courts all over this country in the last four years, in many cases, too young, too unqualified, and too far right to be allowed to sit peaceably without our re-examining the process, the results, and the consequences.”
In a Tweet, Joe Biden’s Vice Presidential nominee Kamala Harris said “today Republicans denied the will of the American people by confirming a Supreme Court justice through an illegitimate process—all in their effort to gut the Affordable Care Act and strip health care from millions with pre-existing conditions.” She also blamed the nomination process for the 225,000 Americans who’ve tragically died from COVID-19 in a formal statement. “We won’t forget this,” Harris added.
A recent Gallup Poll found 51% of Americans support the confirmation of Justice Barrett, and 58% of respondents to a NY Times poll disapprove of Democrats expanding the Supreme Court.
Joe Biden has yet to come out on one side of the issue, going as far to say voters “don’t deserve” to know where he’d be open to packing the court. The former Vice President told reporters he’d reveal his position after the election.