Mike Lee - Saving Nine: The Fight Against the Lefts Audacious Plan to Pack the Supreme Court and Destroy American Liberty

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 President Franklin Delano Roosevelt tried to pack the court.

J USTICE R UTH B ADER G INSBURG

W HEN THE LATE J USTICE R UTH B ADER G INSBURG made that comment in an interview in 2019, it wasnt particularly controversial. But by the next year, those comments would have placed this particular liberal icon at odds with manyin fact mostof her ideological pals. In 2020, we lost Justice Ginsburg, and many Democrats began to lose their minds. That year on the campaign trail, Joe Biden, the Democratic presidential nominee, refused on many occasions to rule out packing the Court. Other members of his party said the Supreme Court was broken and actively dismantling our democracy. As president, Biden appointed a committee to examine reforms to the Court, which signaled to many that he was inclined to support the drastic reform of Court packing. When that commission published its report in 2021, it avoided making any concrete recommendations, but it subtly advanced the cause by refusing to condemn expanding the Court in the future. Voices on the Left in and out of government quickly took up the mantle of Court expansion.

How did things change so quickly? Through the course of this book, Im going to explore this question, and hopefully provide a defense for a nine-justice Court. I hope as well to outline the dangerous norm-shattering precedent that would be set by politically motivated attempts to turn the Supreme Court into just another partisan weapon.

For the last few decades, the American Left and Right have been able to stay in almost complete agreement on very few issues. One of these is the size of the Supreme Court. The nations highest court has been composed of nine justices since 1869, and that number remained undisturbed until 1937, when Franklin Roosevelt threatened to add more justices to get his New Deal agenda approved. Though Roosevelt did not end up expanding the Court, his threat to do so may have worked just as well: the justices suddenly began to look more favorably on the next New Deal case that came before them.

That seemed to put the matter to rest. For the rest of the twentieth century, Democrats and Republicans left the size of the Supreme Court alone. In 1983, Senator Joe Biden, reflecting on Roosevelts gambit, called it a bonehead idea, and a terrible, terrible mistake to make that called into question the independence of the nations highest court.the issue) became a major election issue, with Biden, then the Democratic nominee, repeatedly coming under pressure to take a firm stance on the question. He managed to come to office without ever detailing his position. But as president, he appointed an entire commission to look into the idea he had once dismissed as bonehead, reflecting the traction it was gaining within his party.

There are still some serious-minded liberals who have reservations, and arent afraid to express them. In April 2021, Associate Justice Stephen Breyer told an audience at Harvard that Democrats should think long and hard about changes to the Court that would play into the perception that politics played a greater role in their decisions, arguing this would damage public trust in the institution. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust, he said.

Personally, I agree completely, especially at a time when trust in public institutions is already dangerously low. But it can hardly be a coincidence that progressives were, around the same time, launching a vociferous Breyer Retire campaign to force the eighty-two-year-old Bill Clinton appointee off the bench. They had no use for his measured thinking. Eventually, the pressure must have weighed on him: on January 27, 2021, Breyer announced that he would in fact retire. My friend and Democratic colleague in the Senate, Dick Durbin of Illinois, revealed that Bidens chief of Staff, Ron Klain, had leaked the information the day before, when it was widely reported in It is fair to wonder if pressure from the Left on the White House led them to force Breyers hand.

The progressives on the far left wing of the Democratic Party are the real drivers behind this issue. Their view was articulated in a video released by freshman New York representative Mondaire Jones, which should horrify anyone, of any political persuasion, who believes in our constitutional system of government. In it, a member of one branch of that government maliciously attacks everything about another branch. Representative Jones maligns not only certain decisions or certain justices he disagrees with, but the entire institution of the Supreme Court itself.

Representative Joness video shows videos of the January 6, 2021, attack on the Capitol, and he declares: The Supreme Court helped bring us here, associating the highest court in the land with violence. He goes on to say, The Court has been actively dismantling our democracy for years. He claims the Court helped install Donald Trump in the White House, which doesnt line up with any account of the 2016 election that Im aware of. According to Representative Jones, the institution of the Supreme Court, as it exists today, holds a far-right, anti-democratic grip on our democracy. The only solution, in his view, is to expand it.