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Law & the Courts

Kamala Harris’s Threat to ‘Pack’ the Supreme Court

Kamala Harris, U.S. Senator and Democratic presidential hopeful, speaks at the Polk County Democrats’ Steak Fry in Des Moines, Iowa, U.S. September 21, 2019. (REUTERS/Elijah Nouvelage)

Senator Kamala Harris has said that she is “open” to increasing the number of justices on the Supreme Court, in order to reverse the conservative majority (as she sees it) and pave the way for the progressive agenda. This position and the implied threat behind it deserve a lot more attention than they’ve gotten.

America’s Constitution is a magnificent document, but it’s not perfect. Its structural separation of statutory laws from the constitutional principles that lend those laws their legitimacy rests in some measure on custom, on precedent, and on the Supreme Court’s remaining faithful to its indispensable role as guardian of constitutional constraints. Unbridled majority rule — which is the direction progressives have been pushing the country towards for more than a century, wittingly or unwittingly — is simply a tyranny of the majority, and has no use for any constitution. In such a system, a Supreme Court is more like a super-legislature, which instead of protecting the Constitution, in effect replaces it.

That’s why the threat to increase the number of justices matters. It may well be constitutional to increase the size of the Supreme Court, but the practical result would be to weaken constitutional democracy, and leave minority rights increasingly subject to the whims of the majority. Given these progressives’ affinity for persecuting those who disagree with them (for example, on climate change, as Kevin Williamson shows below), this is a harrowing prospect.

And notice, you don’t actually have to increase the number of justices on the Supreme Court to have the desired effect. President Franklin D. Roosevelt showed that merely by threatening to pack the Court, a president and Congress can fundamentally alter the Constitution without having to go to the trouble of formally amending it. As I wrote in the WSJ last fall:

His [FDR’s] signature New Deal programs clearly exceeded Congress’s power to regulate commerce “among the several States.” For 150 years, the Constitution’s Commerce Clause had been understood to reach only transactions that crossed state lines. Thus the justices struck down as unconstitutional virtually every New Deal program passed in FDR’s first term. FDR began referring to the justices as “the Scorpions.”

The 1936 election seemed to enhance his mandate to implement the New Deal. And nowhere in the Constitution is it written that the court must have nine justices. Thus the president proposed expanding the Court to 15 justices. The six new ones would make a four-justice minority into a 10-5 majority.

Democratic lawmakers balked. “A liberal cause was never won by stacking a deck of cards, by stuffing a ballot box, or by packing a court,” said Sen. Burton Wheeler (D., Mont.). But the justices seemed to get the message. In 1937, starting with NLRB v. Jones & Laughlin Steel Corp., a majority began to surrender to the New Deal programs, ruling that the federal government could regulate economic activity that didn’t actually cross state lines.

In the ensuing five years, leading to Wickard v. Filburn (1943), the court effectively put its imprimatur on a new, progressive constitution. Limited and enumerated powers gave way to plenary federal authority subject only to the whims of transient political majorities and the malleable individual rights of a “living constitution.”

With progressives increasingly committed to a definition of “social justice” that puts virtually every core constitutional value at risk — from equal protection of the laws to the Bill of Rights — their willingness to intimidate the Supreme Court is even more dangerous than it was in the 1930s.

Mario Loyola is a senior fellow at the Competitive Enterprise Institute, the director of the Environmental Finance and Risk Management Program of Florida International University, and a visiting fellow at the National Security Institute of George Mason University. The opinions expressed in this column are his alone.


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