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.”
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.