The Supreme Court Must Resist the Democrats’ Shameful Court-Packing Intimidation

COMMENTARY Courts

The Supreme Court Must Resist the Democrats’ Shameful Court-Packing Intimidation

Sep 9th, 2019 4 min read

Commentary By

GianCarlo Canaparo

Legal Fellow

Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

History shows that when judges decide cases not on principle but on political compromise, they feed political unrest. Phillip Nelson/Getty Images

Key Takeaways

Whitehouse’s threat-bearing amicus brief is part of the Left’s broader strategy to politicize the judicial process.

The problem, for the Left at least, is that the courts — whatever their structure — aren’t delivering the political results they desire often enough.

Threats from the likes of Whitehouse are far more serious than anything tried in the past.

Sen. Sheldon Whitehouse, D-Rhode Island, and four of his Democratic colleagues, have threatened the Supreme Court with “restructuring” if it doesn’t “heal” itself. Basically, they’re flirting with court-packing.

To the members of the Supreme Court, especially the politically sensitive Chief Justice John Roberts, we say: Ignore this nonsense. And to the legal establishment, we ask: Where is your outrage?

Whitehouse’s threat-bearing amicus brief is part of the Left’s broader strategy to politicize the judicial process. In their view, any decision that does not serve their interests is, de facto, illegitimate. Thus, for example, a decision in favor of so-called “corporate interests” cannot possibly be what the law requires but must have been driven by the judge’s personal political agenda.

“Restructuring” is a particularly slick example of misdirection. The structure of the Supreme Court, or the judiciary more broadly, is obviously not the problem. The problem, for the Left at least, is that the courts — whatever their structure — aren’t delivering the political results they desire often enough. So, Whitehouse and his cohorts suggest “changes” they believe will produce more favorable results.

Some have suggested, for example, increasing the number of justices on the Supreme Court, rotating justices on and off in some way, or imposing term limits on federal judges. One left-wing group, Demand Justice, insists that the next Democratic president should refuse to appoint anyone who has ever been a partner at a large law firm to a federal court.

Each of these proposals aims to manipulate the judiciary in order to control judicial decisions. We’ve been here before, and it won’t end well.

President Franklin Roosevelt threatened to “restructure” the Supreme Court when it struck down parts of his New Deal. While his legislative proposal to “pack” the court failed, some historians believe that his threat pressured one or two justices (enough to obtain a majority) to begin supporting Roosevelt’s New Deal initiatives.

It is worth noting that Roosevelt did end up packing the Supreme Court, he just did it the old-fashioned way. Replacing eight of the nine justices in just five years, he created a court willing to take liberties with the Constitution and statutes.

It is essential to the health of our republic that the current justices rise above the political fray. As Judge Robert Bork wrote, the court “must be controlled by principles exterior to the will of the Justices” otherwise “there is no reason any of us should obey it.”

This is what the “rule of law” actually means. History shows that when judges decide cases not on principle but on political compromise, they feed political unrest.

Ironically, the oath of office required by federal law commits judges to decide cases “impartially” and without regard to the identity of the parties: the opposite of what Whitehouse and his ilk are demanding. Hopefully, the justices will remain committed to their duty to, as Chief Justice John Roberts put it, “call balls and strikes.”

But that will not be enough. The judiciary’s commitment to its independence means that judges cannot enter this political fray and actively defend themselves. Instead, the legal profession must step up to the plate and defend the independence and impartiality of the judiciary. Yet, the legal establishment has remained largely silent in the wake of this recent wave of attacks on the court.

It was not always so.

In 1996, for example, the American Bar Association was so concerned about political pressure on the courts that it created a commission and a standing committee on judicial independence. What was the threat back then? The ABA commission highlighted supposedly “inappropriate criticism.”

In 2017, the ABA declared that judicial independence was “in peril” and asked its members: “Are we doing enough to help?” Recognizing that the judiciary cannot defend itself from political attacks, a top official asserted that “[t]he organized bar has to talk about what judges do and defend to the death what the Third Brach of government does.”

In 2018, the ABA again called on lawyers to defend the judiciary against “unjust criticism.” It went on to say that, when the judiciary is attacked, “we must respond on our own as promptly as possible, especially in today’s world of instant communication through social media.”

Just one month ago, the ABA defended the judiciary against attacks by President Trump. ABA President Linda Klein condemned Trump’s criticism of judges as “attacks on our Constitution.” The association then convened a panel of judges at its annual meeting to discuss Trump’s alleged efforts to “undermine the courts.”

If the legal establishment nonetheless thinks that mere criticism (intemperate or otherwise) threatens judicial independence, why isn’t it up in arms about the Left’s attacks on the court’s “legitimacy” and threats of “restructuring” the judiciary itself?

Threats from the likes of Whitehouse are far more serious than anything tried in the past. If the legal establishment means what it says, and wants to preserve its own credibility, it’s time to step up and condemn the Democrats’ flirtation with court-packing once and for all.

This piece originally appeared in The Washington Examiner