Illegal Procedure Democrats Court Packing Scheme

In 1936, fresh off a landslide presidential victory over Republican Alf Landon, FDR confident and ebullient, believed it was the Supreme Court that was undermining the recovery of the nation by continuously ruling against his New Deal legislation. The Democratic President was scornful of these high court decisions as well as the philosophical outlook of the Supreme Court. Emboldened to stop the Court’s perceived obstructionism, the President and his assistants concocted the Judicial Procedures Reform Bill, or what later came to be known as the court packing scheme. FDR reasoned that by increasing the size of the court, filling these newly created spots with political allies, any proposed New Deal legislation would then pass the scrutiny of the Court and become the law of the land. Well, such a proposal did not pass muster with the American people who saw it for what it was, a giant power grab and opposed it, greatly contributing to its failure. Flash forward to the present and we see a modern Democratic Party contemplating a rerun of the 1930's, by issuing the siren call for court packing by increasing the number of justices to thirteen. In this upside down world we live in, the Democrats have engaged in their own form of Newspeak by arguing the Republicans have already committed themselves to court packing. Such a bizarre statement is predicated on the fact that Senate Majority Leader Mitch McConnell was not within his constitutional power to delay Barack Obama’s nomination of Merrick Garland until after the 2016 election. History would indicate McConnell’s actions were constitutional and in line with precedent. Much to the surprise of many, Donald Trump prevailed in 2016 and proceeded to fulfill a campaign promise of nominating conservative justices. As a former Chief Executive one time bellowed, “elections have consequences.” Of course, the actions taken by the GOP did not constitute court packing! Instead, this is fulfilling the President’s constitutional function by appointing judges and waiting for the Senate to confirm these nominees. But this story is not yet over! Like a piece of ironic dramatic prose, Justice Ruth Bader Ginsburg passed away and another vacancy was created on the Court on the eve of the 2020 election. The Republicans with a majority in the Senate, understanding that “elections truly have consequences” made sure Amy Coney Barrett was confirmed as an associate justice. The Democrats cried foul, but the Republican actions were certainly within the constitutional order, and certainly not court packing! According to the constitution, the Congress has the enumerated power to create the Supreme Court and all inferior courts. But it is important to note that this is not intended to make the legislative branch a law-making leviathan because both the Constitution and the Federalist Papers are clear that the branches have separate but equal powers and one of the primary functions of each branch is to check and balance the power of the others. By following the Democratic plan, the Supreme Court would become an extension of the legislative branch, undermining the principle of separation of powers. Therefore, in spite of the constitutional provision which allows the Congress the power to expand the number of judges on the court, the Democratic proposal is counter to the spirit of separation of powers and an independent Supreme Court. The intent of the legislation is entirely political and has no successful precedent in the last 150 years. Therefore, like its 1930's precedent, it is an insidious power grab by a political party whose actions undermine the separation of powers and the constitutional order. Hopefully, if this proposal becomes a bill, then a law, the high court will see this political power grab and rule this baleful legislation unconstitutional.