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SCOTT DREYER: “Unpacking Court Packing”

Unwilling to go where Joe Biden did in 1988, I do not wish to plagiarize great lines from other people and claim them as my own, so up-front admission. The title “Unpacking Court Packing” comes from Sen. Ted Cruz’s (R-TX) October 19 podcast, Verdict.  (In 1988, revelations of widespread lying and plagiarism triggered a media firestorm that caused Joe Biden to abandon his presidential run. Now, 32 years later, it seems lying and deception–from many quarters–only elicit shrugs from most Americans.  Why have we grown so tolerant of deception? Maybe that is a topic for another day….)

This buzz phrase “court packing” has been bandied about much lately. Author and Bible teacher Charles Swindoll, addressing how some people can twist words to mislead others, says: “They use our vocabulary, but not our dictionary.” That is, some folks can use familiar words but with unfamiliar or bizarre meanings. Thus, the audience thinks they are hearing one message but the speaker or writer has a completely different idea in mind. 

So. borrowing the phrase from Sen. Cruz, let’s “unpack court packing.”

As a history major at William and Mary and a licensed history teacher since 1987, I think briefly reviewing history often helps us. 

The US Constitution tasks the Congress to create a court system, but does not specify the exact number of judges. Of course, as our country has grown, the number of courts and judges have grown too. The US Supreme Court (SCOTUS), head of the Judicial Branch, has been fixed at nine justices since 1869–shortly after the Civil War. (An odd number, of course, helps avoid tie decisions.)

In the 1930s–the era of the Great Depression–President Franklin. D. Roosevelt (D) rolled out his New Deal, a broad package of reforms and innovations to try to tackle the Depression. Because his New Deal gave the federal government broad new powers it had never had before, a majority of the Supreme Court first struck down much of his legislation as unconstitutional.

Angry at being stymied, Roosevelt in Feb. 1937–after four years in office and buoyed by his 46-state landslide election the previous November–announced his plan to expand the SCOTUS from nine justices to as many as fifteen. His thinking was, if he could place up to six new judges there who would be friendly to his New Deal, he could ram through whatever legislation and changes he wanted to. That attempt–to increase the actual number of judgeships so they could be filled with “friendly” judges–is what we now know as actual “court packing.”

Amazingly, despite FDR’s massive popularity and the Democrats controlling Congress at the time, his proposal ignited a firestorm of opposition. Even most of his staunchest supporters saw it for what it was–a naked power grab that threatened the independence of the court system and American democracy overall.

Faced with such an outcry, FDR backed down and left SCOTUS at nine judges. However, since FDR went on to win an unprecedented four elections, he finally had the last laugh because by the time he died in 1945, he had named eight of the total nine judges…not by court packing, but by replacing them in the constitutional manner each time one retired or died. 

Fast forward to our times. 

Some Democrats have recently floated the idea of creating new judgeships from scratch via ”court packing.”

In July 2019, liberal stalwart Justice Ruth Bader Ginburg tried to squelch the idea of “packing the court.” “Nine seems to be a good number. It’s been that way for a long time,” she said, commenting that the party in power simply creating new seats would appear partisan and damage the court’s reputation for apolitical fairness. 

In this heated election cycle, both Biden and Harris have expressed interest in the idea of packing the court with new judges. Asked about it in Nevada at a rare media event with questioning, Biden said “voters don’t deserve to know” his position on the issue. That reminds me of Speaker Nancy Pelosi’s bizarre challenge about Obamacare: “We have to pass the bill so that you can find out what is in it.”

You really can’t make this stuff up.

With the October 26 confirmation of Judge Amy Coney Barrett to SCOTUS, some liberals are having a meltdown. That same day, ironically Hillary Clinton’s birthday, AOC tweeted “Expand the court.”

As mentioned in my October 26 column, much is at stake in this election, and the future independence of the Supreme Court is a crucial issue. 

Now, what is NOT “court packing”?

As more Americans are waking up to “court packing” and what a threat it is, many Democrats and the media have pivoted to claim: “Trump and the Republicans have been packing the court for years, so we are not trying to do anything new. We just need to make things fair.”

What they mean is, President Trump has been naming constitutional conservative judges and the Senate has been approving them since 2017. However, that is NOT “court packing” – it is simply obeying the Constitution, where the president names new judge candidates and the Senate approves them. What President Trump and the GOP Senators have been doing is simply “their jobs” –  and fulfilling the very campaign promises that put them there.

Virginia’s two Democrat US Senators, Mark Warner and Tim Kaine, both white males, voted “no” on confirming Justice Amy Coney Barrett. So much for “trust the women.” Biden and Harris keep refusing to renounce “court packing,” so we can be sure they will try that if they can.

Elections have consequences indeed. Vote wisely.

Scott Dreyer in his classroom.

– Scott Dreyer


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