Court Packing: A Death Sentence for Democracy
March 1, 2021 | View PDF
In 1948, Winston Churchill warned that if we do not learn from history, we are condemned to repeat it. The United States has had a nine member Supreme Court for 150 years and it has served us well. Court Packing does not mean that the President replaces current Justices who retire or die. Court Packing means that the President and a Liberal Legislature adds seats to the Supreme Court until they are able to control the outcome of cases heard by the Court, thus imposing their political philosophy on the outcomes of cases.
The appointment of Justice Amy Coney Barrett to the United States Supreme Court has reignited the debate among liberals that the only way to counter the six conservative leaning justices on the Court is for the next President to pack the court. That is, add seats to the Supreme Court to shift the balance of power to the progressive view.
History would dictate that we review the checks and balances of our United States Constitution as well as review lessons from other countries who allowed this to happen. The Legislative and Executive branches were laid out in our Constitution to be driven by the political will of the people and are checked through elections every 2, 4 or 6 years. The third branch of government, the Judicial Branch is designed to be nonpolitical and is to be the stabilizing force to keep one political persuasion from controlling the judicial outcomes from the bench. The Judicial Branch interprets the original Constitution and other foundational documents, interprets the laws passed by Congress and the States, and resolves controversy amongst our citizens. The composition of the Supreme Court ebbs and flows as Justices are appointed for life and are only replaced following their death or resignation. The U.S. Supreme Court has had 5 to 10 Justices throughout our almost 250 years of existence, but in 1869, the number of justices was set at nine which has been followed ever since.
Even Justice Ruth Bader Ginsberg whose death sparked this renewed debate over whether Democrats should pack the court if given power stated "Nine seems to be a good number. It's been that way for a long time," she said, adding, "I think it was a bad idea when President Franklin Roosevelt tried to pack the court."
For a vital history lesson, let us look at Venezuela who was once the third richest country in the Americas behind only the United States and Canada. It had a burgeoning Middle class, and the economy was supported by vast oil reserves. Venezuela's constitution follows the same basic structure as the United States. It calls for an executive branch, a legislature, and an independent Supreme Court. Venezuela was a highly functional democracy with a bright future.
In 1998, the wheels began to fall off. The Venezuelan people elected Socialist Hugo Chavez as President and at the same time voted in a radical left-wing legislature. The independent Supreme Court soon began issuing rulings that went against the Chavez Administration. Chavez’s solution: Pack the court with Chavez’ loyalists. In 2004, he packed the court by passing a law expanding the size of the Venezuela Supreme Court from 20 to 32 justices. Under the law, Chavez got to pick 12 new judges stacking the court in his favor. Then in 2006, he ran on a fully socialist agenda knowing the Supreme Court would not throw out any of his planned initiatives since they shared his socialist views. Just last year, Antonio Canova, a constitutional law professor at Universidad Católica
Andrés Bello in Venezuela, researched 45,000 rulings issued by Venezuela's Supreme Court which showed that since Chavez packed the Venezuela Supreme Court, it has never ruled against Chavez.
So, where is Venezuela now? It went from the 3rd richest country to the poorest country in the Americas, recently replacing Haiti for this dubious honor. Just eight years ago, this beautiful country had a functioning middle class. Today, 96% of Venezuelans are experiencing poverty and food insecurity while inflation soars to 10 million percent. The 20% of the population that could flee the country to start over, has. Many of the 5 million Venezuelans who chose to leave, left their wealth in the country they once loved and became refugees in the United States and other nations willing to take them.
Venezuela is not the only South American country that resorted to court packing so that the elected party could rule unchallenged. During the 1990s, Argentina's left-wing president, Carlos Menem, packed the country's Supreme Court with his allies. Menem expanded Argentina's high court from five justices to nine, in order to prevent the court from striking down his plans. Within a decade, the South American country entered a great depression from which it has never recovered.
Attempts to pack the court are not new. Democrat President Franklin Roosevelt proposed it after the Supreme Court declared many of the plans of his “New Deal" unconstitutional. Roosevelt wanted to add six new justices. But his plan fell apart, as the Senate Judiciary Committee, even though it was Democrat-controlled, declared the plan “an invasion of judicial power such as has never before been attempted in this country.” Roosevelt's plan was defeated in the Senate by a vote of 70 to 20. It remains very unpopular today according to a New York Times poll.
More recently, Harvard Law School Professor Lawrence Tribe, an outspoken liberal, described the dangers of packing the court, “Obviously partisan Court-expansion to negate the votes of justices whose views a party detests and whose legitimacy the party doubts could trigger a tit-for-tat spiral that would endanger the Supreme Court's vital role in stabilizing the national political and legal system.”
Packing the Supreme Court with justices that agree with any governing philosophy, whether Democrat or Republican, would transform the court into a legislative rubber-stamp. The party in power could “rule” without the checks and balances that exist today. The Democrats have all but promised a packed court if Biden is elected and they regain control of the Senate. They would be able to implement their socialist agenda free from constitutional scrutiny from the Supreme Court. Congress would pass “workaround” laws that would effectively change the Constitution without a Constitutional Convention knowing the Supreme Court would not strike it down.
Here in America, the leading candidate for Mayor of Portland tweeted, “I am Antifa”. She campaigns wearing a skirt emblazoned with images of her heroes Fidel Castro and Hugo Chavez. Her city has burned for months at the hands of Black Lives Matter activists many of whom affiliate with Antifa. Years of hard work went up in smoke while private property is destroyed without consequence. Indeed, the people are powerless as the laws are not being enforced. Rule of law matters. Having standards matters. Having a stable court that is not beholden to the government in power matters. And being a citizen of a country with checks and balances keeps the power with the people and not the government.
Chavez remains a hero to the radical left in Venezuela and where he created a two-tier system, abject poverty for everyday Venezuelans and a life of luxury for the few in power at the top, protected by the military. The Biden-Harris Democrat Party Platform inked at their Convention boasts items eerily similar to what transpired in Venezuela and led to its economic collapse. It all started with packing the court.
If Biden is certified as the next President, the only thing that can save the country from the devastation of court packing is retaining Republican control of the Senate. Republicans currently hold a 50 – 48 majority with two runoff elections in Georgia scheduled for January 5th. If the Democrats sweep, they will control the Senate whereas Vice President Harris would cast the deciding vote if a court packing bill ends up 50 -50. We cannot let that happen. Protecting our system of government that is based on checks and balances is what keeps the United States from heading on the same path as Venezuela and other socialist nightmare countries. God help us if that happens.