There is no shortage of bad ideas in American politics. They’re everywhere.
These days, given the current occupant of the White House, you need only look at your Twitter feed or open a newspaper to see a few in action. In fact, since Jan. 20, 2021, we’ve seen more policies than ever move from the radical fringes of the left into the spotlight. From incremental steps toward socialism and the Green New Deal to government surveillance, extreme tax hikes and threats to fire every American worker who doesn’t comply with the presidential medical orthodoxy of the day, the Biden administration has yanked our national policy conversations in a far leftward direction.
In most cases, it’s relatively difficult to pinpoint the exact moment when these ideas first entered the mainstream, moving from the dark basements of think tanks and liberal interest groups into the living rooms of Americans everywhere.
With court packing, however, it’s not difficult at all. The idea got “mainstreamed” on the evening of Sept. 29, 2020, when Joe Biden met President Donald Trump on the debate stage for the first time.
Less than two weeks earlier, Justice Ruth Bader Ginsburg, a legend of the Supreme Court, had died suddenly of cancer.
As someone who fervently believed in the “living constitution” approach to jurisprudence, Justice Ginsburg had never been my model of how a justice should interpret the law. As a textualist myself, it’s safe to say that she and I didn’t always agree on constitutional interpretation. But her dedication to her job on the court was inspiring, and her close friendship with her colleagues — most notably Justice Antonin Scalia, who often referred to Ginsburg as his “best buddy” on the court despite disagreeing with her vehemently on important issues — was a model of civility in a world where it seemed to be disappearing.
I got a taste of this during the year that I served as a law clerk for Justice Samuel Alito
I interacted frequently with law clerks from different chambers — liberals and conservatives alike. My three co-clerks and I were fortunate enough to have lunch with each justice at one point or another, and we were even invited to Justice Ginsburg’s office for tea. Her husband had made a delightful cake for the occasion, during which we discussed a wide range of topics, legal and otherwise. One of many things that I remember about that day was that she provided herbal tea for my enjoyment (apparently she knew that, as a member of The Church of Jesus Christ of Latter-day Saints, I can drink herbal tea, but not the nonherbal variety). And even when one of my colleagues inadvertently tipped over her teapot (doing no permanent damage, but spilling its contents onto the well-set table in her office), she could not have been more gracious — just as she was in every interaction I have ever had with her.
What some people don’t understand is that Americans — even Supreme Court justices —who argue with one another can usually do so without personal antipathy as long as they do it in good faith. To this day, some of my fondest memories during my time working at the Supreme Court are of hours I spent discussing pending cases with my fellow law clerks — some conservative, others liberal — while trying to figure out how best to advise our respective bosses on each case. Some of the cases we discussed were well-known, politically charged, and inherently contentious. Most were really technical, not terribly newsworthy and of consequence to relatively few people. But regardless of the case, I found all of our conversations to be respectful.
I’ve tried to carry all that I learned working for Justice Alito and put it to good use, both as a lawyer and as a member of the Senate. Many of Justice Ginsburg’s law clerks have likewise taken what they learned working for her and put it to good use, both in law and in politics. I tend to believe that they, like me, remain convinced that politics and the court shouldn’t mix (or at least that they should mix no more than they are required to mix by virtue of the nomination and confirmation process established by the Constitution).
Shortly after Justice Ginsburg’s death, speculation arose as to who might fill the vacancy created by her passing. On Sept. 26, 2020, President Trump followed through on his commitment to nominate a committed textualist to that position — Judge Amy Coney Barrett, who was then serving on the U.S. Court of Appeals for the Seventh Circuit and who had previously worked as a law professor, lawyer, and law clerk to Justice Scalia.
I was proud to attend her nomination ceremony in the Rose Garden and watch President Trump list off her many accomplishments. From there, I could almost hear the anguished cries from Democrats. There was good reason for them.
In all her years in the law, Barrett had managed never to stray from her legal principles. She had always operated according to what the law said, not what the ever-shifting standards of public opinion indicated that it should mean. For liberals, this must have been terrifying. For years, they had built precedents based on decisions that had come out of the “living Constitution” approach, and they were hoping to keep building for years to come. They were expecting decisions on several important issues. If these cases came before a Court that was composed primarily of textualists like Barrett, Brett Kavanaugh, Neil Gorsuch, Sam Alito, and Clarence Thomas, however, victory for them might not be so assured.
Again, this was not a matter of President Trump appointing a so-called “conservative” justice to the Supreme Court. As we’ve already covered, that’s not really how it works at the Supreme Court. Rather, there are justices who believe that the words of the Constitution mean what they meant at the time that they were drafted and ratified — a view that was predominant for most of our nation’s history, by the way — and there are those who believe that these words can be taken, molded and imbued with new meaning according to the political climate of the time.
Reasonable people can disagree about which approach is correct, and presidents of either party can appoint justices who have particular feelings one way or the other. But that doesn’t mean that we should judge potential Supreme Court nominees based on what they feel about particular policies — a standard, by the way, that was reiterated by Ginsburg herself during her own Senate nomination hearings.
So, by the time Biden reached the debate stage to face off with Trump for the first time, the battle lines had already been drawn. If President Trump went through with his nomination of Barrett and she was confirmed in the Senate, they would have to resort to desperate measures.
But no one knew whether Biden would support it publicly — or whether he would once again denounce it, as he had so many times throughout his long career.
I didn’t know either. I had heard whispers during the primaries that Democrats were going to think seriously about packing the court; I had even heard about detailed proposals from a few of the candidates, though I didn’t bother to read them. The idea seemed too far-fetched to be real. I believed that only a person who had obviously lost touch with reality would even contemplate bringing such a measure back into the public conversation. Even the most basic understanding of American history would lead you to the conclusion that this is one of those very, very bad ideas that died long ago and should remain dead forever.
Finally, after 14 minutes of bitter back-and-forth squabbling, the question came.
“There has been talk,” said Chris Wallace during a rare moment of silence, “about ending the filibuster or packing the court, adding to the nine justices there. You call this a distraction by the president, but in fact, it wasn’t brought up by the president; it was brought up by some of your Democratic colleagues in the Congress.
So my question to you is: you have refused in the past to talk about it. Are you willing to tell the American people tonight whether or not you will support either ending the filibuster or packing the court?”
Biden, displaying an uncharacteristic facility with words, shot back a quick nonanswer (obviously he had rehearsed and been encouraged to repeat verbatim when given the opportunity): “Whatever position I take on that, that’ll become the issue. The issue is, the American people should speak.”
He turned to the camera and continued, shaking one hand aloft as he seemed to lose the thread.
“You should go out and vote. You’re in ... voting now. Vote and let your senators know how strongly you feel.”
At this point, Trump, likely speaking for millions of viewers watching at home, pressed Biden on the issue when Wallace wouldn’t.
“Are you going to pack the court?
“Why won’t you answer the question?
“You don’t want to answer that?”
Finally, Biden gave up on trying to justify his position, or lack thereof, and shouted: “Will you shut up, man?”
And that, for the moment, was that. Wallace moved on to other, less pressing areas, but the damage was done.
Everyone seemed to know what was going on. After all, Biden hadn’t been afraid to denounce some of the other wacky ideas that members of his party had put forward. He didn’t have a problem, for instance, saying that the Green New Deal was a bad idea, or that he wasn’t in favor of immediate tax hikes.
His dodge on the court-packing answer meant two things: first, that he definitely had plans to add new, liberal justices to the Supreme Court — or, at the very least, a team of eager, radical liberals to do it for him; and second, that he was well aware of how politically toxic that action was.
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For most people, “court packing” was a taboo word, the way “communism” and “socialism” used to be. These terms sat on the very fringes of our public discourse, only really discussed by people who had no say in our elections. But much like communism or socialism, those words began to be rehabilitated over time. The more people heard them, the more they were okay with hearing them. By the time people seriously began putting the idea forth during the presidency of Trump, certain influential people on the left began to believe that court packing was a serious way to deal with rulings they didn’t like.
In the years to come, there would be so many op-eds of a similar nature that listing them here would consume almost all the pages I’ve got left. But it wasn’t only historians. In the months leading up to the 2020 campaign season, it was hard to find a liberal icon who wasn’t ready to offer a dire warning about court packing. During an interview with NPR in 2019, Justice Ginsburg herself said that she didn’t feel it was the right thing to do.
“I have heard that there are some people on the Democratic side who would like to increase the number of judges,” she said. “I think that was a bad idea when Franklin Delano Roosevelt tried to pack the court.”
In March 2019, Beto O’Rourke, a candidate best known for mounting a doomed campaign against my friend Ted Cruz, came out with a detailed plan for how to revamp the court. Around the same time, Pete Buttigieg, who would end up serving in Biden’s cabinet, did the same thing. This was enough to get major media institutions writing about the idea, and that, in turn, was enough to make sure that there was at least one question about it during the first primary debate.
Back then, Biden had no trouble telling the world what his position was. “No,” he said from the debate stage. “I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”
But that was before anyone believed that Biden could really become the nominee.
Back then, most people assumed that it would either be Bernie Sanders or Amy Klobuchar — two Senate colleagues I’ve worked with and genuinely like, despite many policy disagreements. Or maybe the nod would go to one of the many lesser-known, young Democrats who had gotten into the race largely to push wacky ideas like court packing. When Biden prevailed, I can only imagine he had armies of consultants lined up to tell him that if he had any hope of winning this election, he was going to have to embrace some of those crazy ideas that his party had come up with over the past few years.
During his first few weeks in office, Biden said very little about court packing. Instead, he pushed it to the side for a few months, allowing the most radical members of his party to bring up the idea for him.
But in early April, likely sensing that he could not avoid the issue for much longer, President Biden announced that he would be forming a commission to “provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.” At first glance, the commission appeared to be a bipartisan coalition of conservative and liberal legal scholars from all over the country — people who would take a serious look at the evidence for and against court packing and make a recommendation to the president. There were even rumors that President Biden had set it up this way because he wanted to avoid bowing to the radicals in his party and enacting court packing. An article in USA Today noted, correctly, that “Biden has sent repeated signals that he has little interest in spending political capital on increasing the number of justices in the Supreme Court,” and called the creation of the commission “an effort to keep that idea at arm’s length.”
But if we learned anything during the election, it’s that Biden is no longer in charge of his own politics. The radical leftists in his party are.
As of this writing, the notion of packing the court has the support of about half of all Democrats in the United States. When those same voters were asked whether they would support a bill to pack the court if Biden threw the support of the White House behind it, that number increased to 63%. That might not sound like a lot at the moment, but it is much higher than it was when President Roosevelt tried the same thing in the 1930s — and that happened before we had massive shadow organizations dumping billions of untraceable dollars into propaganda campaigns to change minds about the issue.
If members of both parties do not step up and vigorously oppose this idea, they might just get away with it this time.
I am not exaggerating when I say that the future of our Constitution is at stake.
Mike Lee is the senior U.S. senator representing the state of Utah.
This essay is a modified excerpt of chapter 7 “From ‘Bonehead’ to Mainstream” in his latest book “Saving Nine: The Fight Against the Left’s Audacious Plan to Pack the Supreme Court and Destroy American Liberty.”