P rogressives have generally done a good job of keeping their radical agenda for the courts quiet before the November election.
But several of them broke cover this past weekend during an MSNBC panel discussion on the Supreme Court’s oral argument during the presidential-immunity case involving Donald Trump. Alicia Menendez, co-host of The Weekend and the daughter of indicted U.S. Senator Bob Menendez, was scathing in her criticism of the Court’s conservative members. She said that clearly something “structural” — expanding the size of the Supreme Court or other “reform” — is necessary.
Guest Ankush Khardori, a former federal prosecutor, chimed in, calling President Joe Biden’s failure to push for Court-packing a “historic political miscalculation.” Khardori has previously railed against the Court, claiming that “the conservative supermajority of justices installed by Donald Trump has upended the law on abortion, gun control, voting rights, affirmative action, executive power, and discrimination in public life.”
Nor is the MSNBC gaggle a fringe element of the Democratic Party. When asked what a second Trump term would mean, for example, Hillary Clinton said on ABC’s The View last November: “I think it would be the end of our country as we know it. And I don’t say that lightly.”
Such beliefs have led many on the left to quietly advocate packing the Supreme Court and undermining its independence.
More than 60 Democrats in Congress have openly backed measures to expand the size of of the Supreme Court. Major Democratic-leaning interest groups, including the National Education Association, the country’s largest teachers’ union, have added Court expansion to their list of priorities. Vice President Kamala Harris has said she is “open” to Court-packing. Former House speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer have said that all Supreme Court–reform options are on the table.
But the reality is that packing the Court would be a radical and dangerous idea. It would weaken the Court’s role as an independent check on power-hungry presidents who seek to subvert the Constitution.
So far, President Biden says he isn’t in favor of court-packing. But he and many Senate Democrats had also told voters for years that they opposed weakening the Senate legislative filibuster, and then they switched their position when it became politically convenient. Biden recently called the Senate filibuster “a relic of Jim Crow.” Today, all Senate Democrats except retiring Joe Manchin of West Virginia are on record in favor of a voting-rights exception to the Senate filibuster. Should the Democrats weaken the Senate filibuster, might statehood for Washington, D.C., or Puerto Rico be the next “voting rights” measure they pursue? (The House of Representatives, under Speaker Pelosi’s leadership, passed such a bill regarding Puerto Rico in 2022.) If they gain new Senate votes in this way, it is not hard to imagine Democrats passing a law expanding the size of the Court.
It is highly troubling that not a single Democrat in this Congress has yet chosen to support the proposed “Keep Nine” Amendment resolution, which was first introduced in Congress in 2020 and is intended to ensure that neither party can ever manipulate the size of the Court for political advantage. It is now backed by more than 200 members of Congress. The proposed amendment, in just 13 words, simply says, “The Supreme Court of the United States shall be composed of nine Justices.” Polling shows that voters would overwhelmingly favor it, but few have yet heard about it.
In 2021, President Biden’s handpicked Supreme Court Commission refused, in its wide-ranging deliberations, to even study the “Keep Nine” Amendment despite the fact that the proposal then had, and still has, more support in Congress than any other specific Supreme Court–reform proposal. Were Biden’s commissioners afraid that giving the “Keep Nine” Amendment visibility might lead to its enactment and end the Democrats’ prospects of packing the Court when the time is ripe?
Voters might want to know: Are Democrats who say that they oppose Court-packing but won’t back or even mention a proposed amendment that would make sure Court-packing never happens really opposed to Court-packing, or are they just waiting for an election, perhaps the one this year, that might give them the votes in Congress to do it? By refusing to support the “Keep Nine” Amendment, Democrats are giving credence to voter suspicions that Democrats might well pack the Court if they win in 2024.
Do Democrats really want to give the nation a choice between four more years of President Trump and the risk of Court-packing that would undermine the independence of the Supreme Court for generations?
On January 20, 2025, Democrats might regret having forced that choice.