OPINION: Could Democrats Pack The Supreme Court?


Daniel Oliver Contributor
Font Size:

“I can resist everything except temptation,” Lord Darlington says in Oscar Wilde’s “Lady Windermere’s Fan.” Two characters not on stage when the lord’s remark entered the quotation books in 1892 were President Trump and Chief Justice John Roberts. They missed opening night by more than half a century. Even so, Darlington might have been speaking for them.

In a now-typical fit of frustration, President Trump couldn’t resist lashing out at a federal judge who blocked his new refugee asylum rules, calling him “an Obama judge.”

Chief Justice Roberts, unable to resist the temptation to criticize President Trump, promptly replied: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

Whereupon Iowa Sen. Charles Grassley, chairman of the Senate Judiciary Committee, couldn’t resist the temptation to point out that Chief Justice Roberts had failed to criticize President Obama for rebuking Justice Samuel Alito during a State of the Union address. Obama had complained about the Court’s ruling in Citizens United v. Federal Elections Commission, a major campaign finance case.

Who — except, perhaps, a chief justice who could find Obamacare constitutional — would be shocked, shocked to find politics going on at the Supreme Court?

If federal judges are not political judges, what on earth was all that fuss about at Justice Brett Kavanaugh’s confirmation hearing — the noisiest confirmation hearing ever? It topped even Judge Robert Bork’s hearing and Justice Clarence Thomas’s.

Of course we have Obama judges and Trump judges; and before them we had Franklin Delano Roosevelt judges and judges nominate by FDR’s predecessors. When the Supreme Court refused to validate some of FDR’s New Deal economic programs, he announced he was going to “pack” the court by expanding it from nine justices to as many as fifteen. The public outcry was swift, negative, and conclusive. FDR demurred. Within months, however, the Court started upholding Roosevelt’s programs.

The number of justices is not prescribed in the Constitution. The first judiciary act, passed in 1789 when the Supreme Court was set up, established six as the number of justices, two for each of the judicial circuits.

Then, as the country grew, the court grew: in 1807, the number of justices was raised to seven, in 1837 to nine, and in 1863 to ten.

But then, dreaded politics intervened: in 1866, the Republican Congress reduced the number of justices from ten to seven in order to thwart President Johnson’s ability to appoint justices. Republicans thought Johnson’s plan for the restoration of the seceded states to the Union did not give adequate protection to the former slaves.

Finally, in 1869, Congress increased the number of justices from seven to the current number of nine. But there is no constitutional proscription on the number’s being increased again.

Trump has already established a more-or-less conservative majority on the court by appointing two justices. And whether or not he gets a second term, he may add one or two more. That means the court could have a conservative majority for the next forty years or so. What are progressive-socialist-identity politics-new age-sexual morality-gender-fluid Democrats to do?

If they were to win the presidency and both the House and the Senate (where they could, and surely would, eliminate the filibuster), what would stop them from increasing the number of justices again — to whatever number would give them a majority?

Impossible, you say? Democrats are already talking about packing the court.

A quick review of Andrew Johnson’s unexpected presidency is instructive. Johnson, who became president when Lincoln was assassinated, was far more accepting of southern state politics than were the Republicans who wanted to deal harshly with them. Johnson viewed the Republicans’ actions as not supported by a majority of the country, and so he vetoed an extension of the Freedman’s Bureau bill as well as the Civil Rights Act of 1866, both of which were aimed at protecting blacks.

In other words, Johnson opposed issues that all the “proper” people supported — and so Congress took the highly political step of ensuring that he couldn’t appoint any Supreme Court justices.

Today, in the view of all the “proper” people — Hollywood, academia, and the media, that is, keepers (at least in their own minds) of the country’s morality — Donald Trump is a modern Andrew Johnson. Or worse.

In the future, some of those keepers may look back and be shocked, shocked at the idea that the Democrats might not have packed the court.

And after the packing? What will the people who cling to their Bibles and guns and traditional Western civilization do then? Will they be able to resist the temptation to fan the flames of violence so recently counseled by the left? And then will we be shocked all over again to find the country coming apart?

Daniel Oliver is chairman of the board of the Education and Research Institute and a director of the Pacific Research Institute for Public Policy in San Francisco. In addition to serving as chairman of the Federal Trade Commission under President Reagan, he was executive editor and subsequently chairman of the board of William F. Buckley Jr.’s National Review.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.