by Bob Barr
Senate Democrats are still seething over the Republican majority’s refusal in 2016 to schedule a vote on President Obama’s Supreme Court nominee, Merrick Garland. Democratic senators now are brazenly threatening to “restructure” the Supreme Court, in an eerie replication of FDR’s effort to “pack” the High Court following his 1936 reelection.
Democratic senators filed a “friend-of-the-court” brief this month in support of New York City’s draconian gun control policies, and used it to undermine the legitimacy of the court. “The Supreme Court is not well. And the people know it. Perhaps the court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal,” the group wrote.
The five Democratic senators who signed onto the Supreme Court brief, led by Rhode Island’s Sen. Sheldon Whitehouse, proposed changing the very structure of the Supreme Court in order to better insulate it from “political” pressures that do not fit their policy preferences.
While this approach is subtler than the party’s vicious attacks on Supreme Court nominee Brett Kavanaugh, it is far more sinister.
While the Constitution mandates that there be “one Supreme Court,” with each justice holding what is in effect lifetime tenure, the number of justices on the court has by law been set at nine since 1869. This long-standing structure was challenged in FDR’s notorious 1937 scheme.
Roosevelt’s true goal — despite language cleverly camouflaging it as an effort to streamline the court’s docket — was to dilute the power of some then-sitting justices who had declared unconstitutional a number of the president’s “New Deal” measures. In retaliation, FDR proposed adding one new justice to the court for every sitting justice who failed to leave the bench upon reaching the age of 70. Despite the president’s attempt to sugar-coat his proposal, enough senators from both political parties were sufficiently concerned with the move to “pack” the court, that it never emerged from the Judiciary Committee.
Even though the proposal never was signed into law, the threat to the integrity and independence of the nation’s highest court was clear; and its impact on the court’s sitting justices was immediate. In one key decision, announced less than one month after FDR unveiled his proposal, Associate Justice Owen Roberts became the fifth and deciding vote to uphold a minimum wage law reflective of New Deal principles, even though he had voted shortly before that to strike down a nearly identical law.
The brief now before the Supreme Court openly reflects Democratic anger over President Trump’s success in placing two constitutional conservatives on the Court — Kavanaugh and Neil Gorsuch. It also highlights the party’s deep hatred for the NRA and other conservative entities that support both the Second Amendment and these two most recent additions to the court.
In their brief, the senators assert that conservatives have single-handedly politicized the court, by urging in various public forums the confirmation of judges who share their philosophy on such public policy issues as gun control. Whitehouse and his colleagues see this as an egregious affront to the “independence” of the judicial branch, which must be stopped by any means, including a “restructuring” of the court.
The utter hypocrisy with which this absurd argument is made is patently obvious. Whitehouse lashes out at conservative organizations, such as the NRA and the Federalist Society that openly advocated for confirmation of Gorsuch and Kavanaugh, while glaringly ignoring the fact that liberal organizations like the ACLU and NARAL Pro-Choice America, advocate for confirmation of Supreme Court justices precisely as do those so vilified by Whitehouse.
If the Democratic Party were to regain a majority in the Senate, and if one of their own is elected president next year, they assuredly will move to make good on the threatened “restructuring” of the Supreme Court in their image, regardless of the hypocrisy and blatant political underpinnings. If permitted, this would be a gut punch to the essential structure of our constitutional republic.
Bob Barr (@BobBarr) represented Georgia in the U.S. House of Representatives from 1995 to 2003. He currently serves as president and CEO of the Law Enforcement Education Foundation.