Democrats are renewing their calls to pack the Supreme Court with an instant liberal majority once they retake power. Rep. Seth Moulton (D., Mass.), who is facing a complaint over an alleged assault of a reporter, demanded the packing of the Court due to its decision to allow President Donald Trump to rescind Temporary Protected Status (TPS). Other members have joined the effort, citing the reversal of immigration decisions as the reason for eviscerating one of the most important institutions in our country.
Moulton is running for the Senate and has been seeking to reinforce his credentials as a far-left member after being attacked for objecting to the lack of tolerance in his party. This effort of realignment included publicly “sheltering” an undocumented person in his congressional office.
Now, like other Democrats seeking higher office, such as former Transportation Secretary Pete Buttigieg, Moulton is offering up the Supreme Court to the most radical elements of his party.
I previously wrote on the 6-3 decision in Mullin v. Doe, allowing Trump to remove TPS from certain Haitian and Syrian illegal immigrants. That is the same discretion that President Joe Biden used to allow over a million such individuals to enter the country “temporarily” years ago. In the case of the Haitians, they received the TPS designation in 2010 after a devastating earthquake — 15 years ago on a temporary basis.
Before addressing the call to pack the Court over such a decision, it is worth noting that this was not, in my view, a particularly close case if you believe in following the text of such laws. Section 1254a(b)(5)(A) provides that “[t]here is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state.”
The three dissenting liberal justices, and these members, chose to dismiss that language. The majority of justices did not.
The dissenting justices sounded more like legislators in objecting to the lifting of the status quo, citing their own views of the merits of such decisions. It is a glimpse into what a packed court would likely look like if these Democratic members are successful.
Moulton wrote on X that “Democrats need to reform the court to preserve our rights and protect TPS families.”
Rep. Yvette Clarke (D., N.Y.) joined Moulton adding that the court packing is designed to force the reversal of opinions that she and the other Democrats disagree with: “It’s clear now that this legislative body must seize back the power that our increasingly unequal branches have stolen, and that must start with action to protect the hundreds of thousands of TPS holders whose lives depend upon it.”
Rep. Pramila Jayapal (D-WA) also went public to reaffirm that Democrats are “absolutely” going to proceed with packing the Court because I think what the Supreme Court has done yesterday is, again, rubber stamp a mass deportation agenda.”
The resolution itself is ripped from the campaign rhetoric on the rise of fascism, accusing the Court of “enabling authoritarian efforts.” The irony is lost on the members that the very signature of authoritarianism is to gut courts to force the outcomes that you demand.
It also ignores that this Supreme Court has repeatedly ruled against this President on major cases, limited his authority, and, as a result, has been attacked by the President in furious public statements.
Nevertheless, various figures from Kamala Harris to Pete Buttigieg to Elizabeth Warren supported the packing of the Court.
James Carville declared, “If the Democrats win the presidency and both houses of Congress, I think on day one, they should expand the Supreme Court to 13. F— it. Eat our dust. Don’t run on it. Don’t talk about it. Just do it.”
This Nike School of Constitutional Law is catching on with a wide array of pundits and professors. Just do it.
Years ago, Harvard professor Michael Klarman laid out a radical agenda to change the system to guarantee Republicans “will never win another election.” However, he warned that “the Supreme Court could strike down everything I just described.” Therefore, the court must be packed in advance to allow these changes to occur.
Former Obama Attorney General Eric Holder has put packing the Supreme Court front and center, explaining, “[We’re] talking about the acquisition and the use of power if there is a Democratic trifecta in 2028.”
At base is a fundamental misunderstanding of the role of the Court. Sen. Elizabeth Warren (D-Mass.) not only renewed her previous call to pack the court but said the court was illegitimate for rendering decisions against “widely held public opinion.” Former Rep. Eric Swalwell (D-Calif.) said the court “defies the will of the people.” Reporter John Haltiwanger insisted that “the court is clearly not representative of the U.S. public. It’s supposed to be the people’s court.”
In reality, the court was never meant to be that. It was meant to be the Constitution’s court, designed to stand against everyone and everything except the Constitution. In a system designed to protect the minority, the court (like the Constitution) is counter-majoritarian in much of what it does.
With the Supreme Court removed as a barrier to the left’s radical agenda, Democrats could indeed fulfill the objectives laid out by figures like Klarman to ensure they never lose power again.
That will make the 2028 election the most consequential election for our constitutional history in decades. Citizens will vote not only on the next president but also on the future of a core institution that has brought stability and moderation to our political system for 250 years.
The 6 conservatives on the court now were all ‘vetted’ by Leonard Leo and sponsored by the Koch network of billionaires.
What worries me most about this new wave of court packing talk is not just the proposal itself. It is how far the political class has gone in saying the quiet part out loud. First they test the water with “reform” talk and vague language about making the Court more “representative.” They watch to see if anyone outside the constitutional law crowd pushes back. When there is no loud, emphatic “no, that line is off limits,” they learn that the guardrails are soft and the public does not know the difference.
Now they feel comfortable tying court expansion directly to permanent policy control and openly talking about using structural change so they “never lose another election.” They treat the Supreme Court as a partisan obstacle instead of a constitutional brake. I do not think the average American consciously wants to hand any party permanent control over the levers of power. I do think many have never been taught what these institutions are for or how separation of powers protects them. That is the ignorance the radicals are counting on. If we do not rebuild that basic constitutional reflex, the people least constrained by principle will keep pushing until the experiment in ordered liberty is something we remember rather than live.
Olly: “They treat the Supreme Court as a partisan obstacle instead of a constitutional brake.”
An excellent sentence (and sentiment).
I see no reason whatsoever to expand SCOTUS. None.
As our population increases (as well as concomitant caseloads), our appellate Circuit courts already- and increasingly rely on three-justice panels to handle most of the cases,– which in turn, simply creates yet another level of petition for en banc review. With an expansion of SCOTUS, there has been talk of likewise empaneling three-member justices to first adjudicate matters before the Court. Again, there is a likelihood that many of those decisions will end up with petitions for en banc SCOTUS decisions. Many litigants are already often waiting YEARS for finality of judgment–and that final decision comes from a majority of NINE final jurists ostensibly representing the top and most prudent minds.
If we can just focus on nominating and appointing the very best, the creme de la creme of jurist nominees- based on MERIT, character, and jurisprudential history, –and NOT on race or gender (why should/would female or Black status make a difference in ruling on our country’s constitutional and statutory LAW?), we should be just fine. My motto: Nine is Fine.
thus spake lin. Thank you.
Almost nobody in political office still believes in the core precept of democracy — a well informed public gets to make the policy choices they deem best suited to the times. The political activists and wealthy classes?…they get 1 vote each as individuals, and any conniving games they concoct to expand their impact on the vote outcome are counter-democratic corruption.
We’re talking about gerrymandering, sending mail-in ballots to every registered voter, adding Washington DC and Puerto Rico as new states, the National Popular Vote Interstate Compact, nationalizing federal election administration, making it harder for the opposition party’s loyalists to vote, packing the Supreme Court so that activist lawyers control policy.
Both Republican and Democrat Parties are guilty of forsaking the Power of the People to independently decide policy.
Each wants its own elites in control of policy, and so diddling with electoral processes to make that happen is what it’s all about now.
Congress is a potted plant as far as churning out effective policy in realtime. All they care about is getting reelected.
Neither Party trusts the electorate to decide wisely after putting forth honest proposals and authentic plans. Instead, they mostly berate the opposition as “a threat to democracy”, having themselves overstepped their role by corruptly jiggering the vote outcome anyway they can get away with.
If only one of the Parties were corrupt in this way, we the voters could punish them by voting for the ethical Party into power. But, since both Parties are gaming the vote, we unintentionally reward bad behavior when casting our vote.