Bench Memos

Law & the Courts

Court-Packing Advocates Are Out to Intimidate

A police officer walks in front of the United States Supreme Court Building in Washington, D.C., May 13, 2021. (Andrew Kelly/Reuters)

Now that the Supreme Court has granted review in New York Rifle & Pistol Association v. Corlett and Dobbs v. Jackson Women’s Health Organization, Democratic politicians and left-wing dark-money groups are ramping up their threats to increase the size of the Court.

Of course, the Left’s Court-packing threats are nothing new. In recent years, we have seen the bullying extend to sitting justices in the Democrats’ quest for Supreme Court decisions that advance their agenda.

In August 2019, Senator Sheldon Whitehouse, along with some of his Democratic colleagues, filed an amicus brief in New York State Rifle & Pistol Association v. City of New York, which involved a Second Amendment challenge to New York City’s gun law, threatening the Court: “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 Court would later adjudge the case moot after the city amended the restrictions, but the upcoming appeal in Corlett will bring the Second Amendment — and New York City — back before the Court.

Recall that last year, then-Senate Minority Leader Chuck Schumer notoriously stood in front of the Supreme Court building and threatened two justices by name: “I want to tell you, Gorsuch! I want to tell you, Kavanaugh! You have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.” He did this the day the Supreme Court held oral argument in last term’s abortion case, June Medical Services v. Russo.

Under fire, Schumer later clarified that he was not threatening the justices’ physical safety, but only asserting that “there would be political consequences.” And now we are seeing those consequences play out.

The bullying campaigns from the Left extend to the very decision of sitting justices whether to retire. We are seeing that play out now with respect to Stephen Breyer, the Court’s oldest justice, who is the target of an unseemly dark-money-funded “Breyer Retire” campaign.

One of the objectives of the Left’s Court-packing campaign is to make the idea of Court packing more palatable to the public, which is overwhelmingly against it. A recent Morning Consult poll shows that a mere 26 percent of voters support expanding the Court. That figure remains essentially unchanged from polling done last fall.

But perhaps the main goal is to bully the Court into delivering the policy outcomes that the Left wants. The left-wing dark-money groups in the vast Arabella Advisors network want the Supreme Court to carry water for them, just as President Joe Biden and congressional Democrats currently do.

While he is not often mentioned by name, Chief Justice John Roberts is usually the focus of these efforts. Perceptions of the Court’s legitimacy are known to be a priority for him, and he is frequently the target of opinion-page efforts to “work the ref.” Last term, he stood out for his departure from his previous positions in major cases involving immigration and abortion, as well as another on sexual orientation and transgender status that showed an atypically freewheeling approach to legal text.

The Democrats have launched their Court-packing enterprise on multiple fronts. Last month, President Biden formed a commission to study structural changes to the Supreme Court — a commission stacked with liberals and an endeavor transparently aimed at paving the way for packing the Court. Then congressional Democrats announced a bill to increase the number of justices from nine to 13.

The groups driving the agenda of today’s Democratic Party did not wait for the commission to offer its window-dressing validation of the idea. They have pushed hard for Court packing since the 2020 election cycle. Last year, several of them, in order to advance the idea, even hosted a forum at which nearly all competitive Democratic presidential candidates appeared, with one notable exception.

Biden did not appear and in fact has had a long history of opposing Court packing. At different times during his Senate career, he called it a “bonehead idea” and asserted that President Franklin D. Roosevelt was “corrupted by power” when he pushed his notorious Court-packing plan in 1937.

As a presidential candidate, he admitted he had “not been a fan of Court packing.” But then he was elected president. A Bloomberg report in January estimated that Biden’s campaign benefited from $145 million in dark-money donations, but once all the data for 2020 are in, the total is likely to be substantially higher than that. And now President Biden has created a Court-packing forum of his own in the form of a commission.

Speaker Nancy Pelosi has said she does not plan to bring her colleagues’ Court-packing legislation to the floor, but added she thinks Court packing is “an idea that should be considered” and applauded the commission as a vehicle to do so. She is no fool: She knows that Democrats control both houses of Congress by razor-thin margins that can easily vanish. Even if the bill were somehow to pass the House of Representatives today, it would have no chance in the Senate, where Joe Manchin, Kyrsten Sinema, and numerous other Democrats have voiced opposition to the idea.

Many far-left activists now believe that bullying through Court-packing threats will work for them one way or another. As Senate Minority Leader Mitch McConnell has pointed out, the strategy is not about “the common good,” but about “power. . . . The threats are the point. The hostage-taking is the point. And responsible people across the political spectrum have a duty to denounce this.”

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