Big Leftist Politicians Push Idea of Packing Supreme Court To Get Their Way

P. Gardner Goldsmith | August 15, 2019
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Though it remains to be seen how closely they will abide by the text of the Constitution on major “originalist” questions, President Trump’s appointment of Neil Gorsuch and Brett Kavanaugh to the Supreme Court of the United States (SCOTUS) has had at least one salutary effect. It’s exposed how fluid leftists are about rules or tradition when those rules or traditions interfere with their plans to expand the power of the state.

In fact, many powerful DC leftists are so upset by the fact that their favorite collectivist, Hillary Clinton, didn’t get to fill vacancies on the nine-member bench that they now want to expand the number of judges, allowing the next President -- who, will, they hope, be one of their haloed Democrats -- to regain the majority in favor of increased unconstitutional collectivism.

As Ronn Blitzer recently wrote for FoxNews, a gaggle of leftist Democrats just “warned” the Justices on the Supreme Court that if they don’t change their ways (read: lean more anti-constitutionalist, more collectivist, and definitely more anti-rights when it comes to guns) the Dems might just move to expand the court like the Federal Reserve has expanded the money supply.

The ominous and unusual warning was delivered as part of a brief filed Monday in a case related to a New York City gun law. Sens. Sheldon Whitehouse, D-R.I., Richard Blumenthal, D-Conn., Mazie Hirono, D-Hawaii, Richard Durbin, D-Ill., and Kirsten Gillibrand, D-N.Y., referenced rulings by the court's conservative majority in claiming it is suffering from some sort of affliction which must be remedied.

Ahh, yes. And these charmers also employed a sly reference to Biblical language in their missive.

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.'

Get that?

Not only is this an echo of “Physician, heal thyself”, from Luke, this gang of politicians actually says that they want to “reduce the influence of politics” by… injecting the use of politics for political ends.

One of the things that might not have dawned on these checkers-players is that rights are non-political, by definition, they exist prior to and apart from the polis. In fact, the existence of the polis, which requires the taking of people’s tax money in order to function, can only exist at the expense of rights. Thus, the Second Amendment, which strictly forbids these folks from touching the right to keep and bear arms, is also non-political. As if completing a geometric proof, it becomes clear that their umbrage at justices who might uphold that right is political.

And what are their plans? They vary.

Democratic candidates, including former Rep. Beto O’Rourke of Texas, and Sens. Cory Booker of New Jersey, Elizabeth Warren of Massachusetts, Kamala Harris of California, and Gillibrand, all have signaled an openness to expanding the number of judges on the court should they reach the White House.

Many want that number to rise to fifteen. Ya know, six more politically-appointed judges approved by politicians -- to get politics out of it.

And South Bend, Indiana, Mayor Pete Buttigieg wants fifteen, but he wants five of those to be seated only with the unanimous agreement of the other ten.

Because nothing says “connected to the people” better than ten lifetime appointees deciding on five more lifetime oligarchs who will vote on the future of rights.

This “the rules are the rules unless we don’t like them” attitude echoes the political hypocrisy on so-called “rules” and traditions back when many Dems decried George W. Bush making “recess appointments” to courts and bureaus in order to skirt Democrat delays in Congress, then they flipped and applauded Barack Obama doing the same thing.

And, of course, it echoes something that even the tawdry public school systems in the US still teach: FDR’s loathsome and patently political 1937 attempt to “pack the court” in order to insure his Social Security and New Deal boondoggles would not be rightly found unconstitutional. As Lawrence Reed writes:

Still stinging from his earlier Supreme Court defeats, Roosevelt tried in 1937 to ‘pack’ the Supreme Court with a proposal to allow the President to appoint an additional justice to the court for every sitting justice who had reached the age of 70 and did not retire. Had this proposal passed, Roosevelt could have immediately appointed six new justices favorable to his views, in creasing the members of the Court from nine to fifteen. His plan failed in Congress, but the Court later began rubber-stamping his policies after a number of opposing Justices retired.

What a shock. Contemporary politicians following in the blatantly corrupt path of FDR. Who would have imagined it?

And, regardless of the outcome of their plans, this move by the new left reveals something fundamentally important. Even with the Constitution, our rights are always under threat and constant attack by government, by politicians like these and many more. In fact, this tells us that under the Constitution, what really is the deciding factor for the future of one’s remaining rights – the ones the government hasn’t already assumed due to its sheer existence – is pure power.

It’s a powerplay. Always. And it’s important for us to understand that the idea that the government will protect anyone’s rights is pretense to hide what government really is. Aristotle tried to warn people almost 400 years before Christ that any government that was to be at least slowed down from infringing on individual rights had to have a written constitution, but, as the Anti-Federalists warned, with a Supreme Court there to “interpret” the “constitutionality” of laws, they get to be the final arbiters of our rights.

That sounds like a bad deal. And, what’s more important, it’s a deal to which neither you nor I explicitly agreed. In “No Treason”, one of the most important essays in US history, 19th Century scholar and abolitionist Lysander Spooner explained that the Constitution itself is not a legal contract with anyone. Your grandparents cannot sign a contract that binds you, just as you cannot sign a contract that binds your progeny two centuries from now. Additionally, of those who signed the Constitution, no one can say that legitimately “represented” anyone, because the system was political, forced, not conducted through real, explicit contract allowing each person to consent or be left alone.

The least we could ask in such a system, which is foist on us simply because we don’t try to flee to some other nation-state where the system is likely to be even more oppressive, is that those who tell us they will enter the government abide by their promises and their rules.

Of course, this Democrat rhetoric about the Court reminds us, they rarely do.