Democrats Threaten to Reconstruct Supreme Court If It Does Not Heal Itself

August 15, 2019 Updated: August 15, 2019

A warning was issued to the Supreme Court on Aug. 12, by several prominent Senate Democrats. The notification was in a brief (pdf) filed Monday in a lawsuit related to a New York City gun law. The Democrats claim that the Supreme Court is suffering from some fundamental disorder that has to be “healed.”

“The Supreme Court is not well. And the people know it,” the brief said. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.'”

The reference to public demand may refer to the Quinnipiac University poll, in which 51 percent said they favored restructuring the Court.

In the lawsuit filed by Sens. Sheldon Whitehouse (D-R.I.), Richard Blumenthal (D-Conn.), Mazie Hirono (D-Hawaii), Richard Durbin (D-Ill.), and Kirsten Gillibrand (D-N.Y.), they said, “We share with the Court a strong interest in the preservation of the separation of powers that sustains our constitutional form of government.”

They went on to say how “this Court is not a legislature.” “It can be tempting for judges to confuse [their] own preferences with the requirements of the law,” “In short, Courts do not undertake political ‘projects.’ Yet this is precisely—and explicitly—what petitioners ask the Court to do in this case.”

The brief mentioned rulings by the court’s conservative majority to illustrate the point.

President Trump has appointed two of the five Supreme Court Justices, Neil Gorsuch and Brett Kavanaugh, which solidified a conservative majority.

Senator Lindsay Graham called out Democrats for their brazen warning to the Supreme Court.

Senator Graham said Aug. 13, “To my Democratic colleagues: The Supreme Court is well. The American political system is the sick patient (Kavanaugh hearings). The Court is moving center-right and getting out of the left ditch. That’s exactly where the country is headed!”

Increasing the number of justices on the court is an idea many of the 2020 presidential candidates are willing to consider. It would allow the president to shift the balance to justices of his or her choice.

In an interview with NPR in July, Ruth Bader Ginsburg said she was not overly concerned about those seeking to enforce term limits on Supreme Court justices. “The only way you could get that would be to amend the Constitution, and as you know our Constitution is powerfully hard to amend,”

However, she expressed significant concern about those who seek to increase the number of judges on the high court.

“Nine seems to be a good number, and it’s been that way for a long time. I have heard that there are some people on the Democratic side who would like to increase the number of judges. I think that was a bad idea when Franklin Delano Roosevelt tried to pack the court … I am not at all in favor of that,” Ginsburg said.

Republic Senator Graham weighed in on this issue again today. “Packing the Supreme Court … Bad idea. Liberal dream. Trump’s 3rd term is looking better and better!”

Striking modifications to the Supreme Court by many Democrats competing for their party’s 2020 presidential nomination include “court-packing” a familiar but highly contentious idea even among Democrats themselves.

Joe Biden said he does not believe in packing the court. “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” he told the Iowa Starting Line in July.

Bernie Sanders has said although he would not add more justices to the bench he would be open to “rotating” judges.

“We’ve got a terrible 5-4 majority conservative court right now. But I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court …” Sanders said.

Other 2020 Democratic candidates, including Elizabeth Warren, Kamala Harris, Kristen Gillibrand, Amy Klobucher, Andrew Yang, Steve Bullock, and Jay Inslee have all support increasing the number of justices. They said it’s an action they would seriously consider if they get elected in 2020.

Pete Buttigieg has also weighed in. He proposes that some justices be appointed by the president and others selected by the other justices with a unanimous vote to “depoliticize” the judiciary.

While the Constitution outlines the process for appointing Supreme Court justices, it is silent about the number of seats on the Supreme Court bench. Expanding the bench to dilute its current makeup, or to benefit Democrats, would require legislation passed by both houses of Congress and a signature from the president.

Should Democrats win the White House and flip the Senate in 2020, and maintain a comfortable advantage in the House, they could eliminate the Senate filibuster and succeed in expanding the court. Doing so would require a simple majority in the Senate instead of the high threshold of 60 votes.

Republicans currently hold a 53-47 seat advantage in the Senate. The GOP will defend 22 seats of 34 total available in Senate elections in 2020. To wrest control, Democrats need a net gain of three seats if they win the White House but require four seats if a Republican prevails.

The so-called nuclear option was first utilized by former Senate Majority Leader Harry Reid (D-Nev.) in 2013, and McConnell returned the favor in 2017 to ensure the confirmation of Justice Gorsuch.

Sarah Turberville, from the Constitution Project of the Project on Government Oversight, and Anthony Marcum, from the Governance Project at R Street Institute, have concerns about the Democrats expanding the Supreme Court: “It would usher in a new and frightening era for the judicial arms race. If Congress, under control of Democrats, increased the number of seats, Republicans would eventually respond in kind,” they said in an op-ed for The Hill.