The confirmation of Justice Amy Coney Barrett to the Supreme Court of the United States has led to a predictable chorus of disapproval from leftists, establishment Democrats, and others who see the Constitution as a “living document” to be manipulated in the service of political priorities.
However, the backlash against Justice Barrett’s appointment is so intense that it is leading some to consider court-packing as a way to fight back.
Article III of the U.S. Constitution provides for a Supreme Court, but does not specify the number of justices on the Court. The authority to make that determination is reserved to Congress, which set the number of justices at nine in the mid-19th century. Angry at the Court’s decisions regarding some of his New Deal laws, President Franklin Roosevelt introduced a bill that would have lifted the maximum number of Supreme Court justices to 15; however, Congress did not pass it. Attempts to change the number of justices on the high court in an effort to shift the Court’s ideological balance are commonly referred to as “court-packing.”
Justice Barrett’s confirmation means that the Supreme Court now consists of six Republican appointees (Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, as well as Justice Barrett) and three Democratic appointees (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan). In light of the many left-wing policy priorities that have been implemented and protected through activist Supreme Court decisions in recent decades, many on the left are aghast at the thought of a Court that actually interprets the Constitution as it is written. Also, many Democrats take exception to Senate Republicans’ refusal to consider President Barack Obama’s 2016 Supreme Court appointee, Judge Merrick Garland. They also take exception to the Republican-led Senate’s confirmation of Justice Barrett so soon before the 2020 presidential election. In the view of some Democrats, these actions by Republicans justify the extreme remedy of increasing the size of the Court.
Senate Majority Leader Chuck Schumer (D-NY) and Sen. Kirsten Gillibrand (D-NY) both spoke out against Justice Barrett’s confirmation in unusually strong terms. Prior to Justice Barrett’s confirmation, Leader Schumer asserted that her confirmation would “‘go down as one of the darkest days in the 231-year history of the United States Senate.’” In September, he ominously stated that if Senate Republicans were to confirm new Supreme Court justice in 2020, “‘nothing [would be] off the table next year.’” Not to be outdone, Sen. Gillibrand—who, during her short-lived 2020 presidential campaign, expressed openness to court-packing—described Justice Barrett as “‘unfit to serve’”:
Judge Amy Coney Barrett’s confirmation represents the efforts of the Republican Party to impose an ultra-conservative ideology on the American people, the majority of whom do not share their views . . . I voted against Judge Barrett’s nomination because her views on reproductive rights, health care, LGBTQ rights, immigrant rights, and civil rights are far out of the mainstream, and make her unfit to serve on the Supreme Court. But in addition to her unacceptable legal views, the duplicitous and hypocritical manner of this rushed confirmation process demonstrates a flagrant disregard for American democracy.
Far-left voices such as U.S. Reps. Jerry Nadler (NY-10) and Alexandria Ocasio-Cortez (NY-14) have unabashedly called for the Democratic Party to engage in court-packing.
If a court-packing scheme becomes a real possibility in 2021, Christians and conservatives throughout New York must be ready to lobby their respective members of Congress in opposition to it.