Democrat Candidates' Court Packing Plan Threatens the Constitution

Few things inflame Democrats more than Supreme Court Justices with whom they disagree.  On the eve of the last days of the Supreme Court term, and on the eve of the first Democrat Presidential debates, we thought it worth revisiting an issue that is certain to be brought up again by Democrats in their effort to outflank each to the left: court packing.  The master of Senate procedure, attorney Marty Gold, has a great new article on the topic that delves into the history of the issue.


FDR settled on a clever fix. He asked Congress for legislation allowing a president to appoint up to six justices to serve alongside any justice over the age of 70 refusing to retire. This would allow Roosevelt to expand the Court to 15, packing it with enough friendly members to essentially guarantee he could dominate it. Prospects seemed bright. In 1937, Democrats held majorities in excess of three-quarters in both chambers. Roosevelt himself was fresh off a 1936 re-election campaign winning 46 of 48 states and securing over 60 percent of the popular vote.

The American people recoiled. After extensive hearings, and eight days of floor debate, the Senate voted by 70 to 20 to kill the plan. FDR overreached. It was his most egregious political misjudgment, and the Senate rightfully resisted him.

While the times have changed since 1937, the dangers are the same. Gold quotes a Senate Judiciary Committee report at the time that stated:

In its 1937 report, the Senate Judiciary Committee exposed the true consequence of court-packing. “Its ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is — an interpretation to be changed with each change of Administration.” The committee admonished, “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

Those words were true in 1937 and are true today.  Court packing would effectively end our Constitutional government. Yet, Mayor Pete Buttigieg has expressed support, and other Democratic Party Presidential candidates such as Senators Cory BookerKirsten GillibrandKamala Harris, and Elizabeth Warren all said they were “open to the idea.”