In the News

The Radical Left’s Court-Packing Scheme Falls Flat

June 29, 2021

By Mike Berry, General Counsel

Imagine you are a major dark money donor to the radical Left’s campaign to pack the U.S. Supreme Court. Is it time to ask for your money back?

The campaign to add new seats to the Supreme Court is making little headway. It faces bad poll numbers, a White House that has punted to a 36-member study commission, pushback in Congress and current justices whose own statements belie the radical Left’s cartoonish characterization of the Court as a hyper-partisan, bigoted wrecking crew hammering away at the foundations of American democracy.

Last week, in Fulton v. Philadelphia, the Court ruled 9-0 that the city of Philadelphia acted unconstitutionally when it barred Catholic Social Services from helping place foster children in loving homes. The Court held that the city chose to discriminate against Catholic Social Services because the agency could not morally agree to Philadelphia’s version of nondiscrimination. City leaders proceeded “in a manner intolerant of religious beliefs or restrict[ed] practices because of their religious nature,” Chief Justice John Roberts said.

Since the Fulton decision, the radical Left has shown its true colors. The Court, tweeted The Nation‘s Elie Mystal, “clearly sided with religious bigots over secular laws, but tried to make it fact specific enough to make the bigots have to ask nicely each time they discriminate.” Mystal’s comment was retweeted by Demand Justice, a dark money group agitating for “structural reform” of the Supreme Court to counter a purported “Republican supermajority.” How did that “supermajority” work out for the unanimous Fulton decision?

Tré Easton of the Left-wing group Battle Born Collective told the Financial Times that “the GOP does not pretend that the court is this apolitical institution, and the left, progressives, Democrats, can’t afford to pretend that it is apolitical either.”

But the people who would best know whether the Court was apolitical—the justices themselves—aren’t buying it. Again and again they have tried to tell anyone who would listen that the Court’s job is to interpret the Constitution, maintain its independence and avoid partisanship. “We live in this polarized time, and the last thing that the Court should do is to look as polarized as every other institution in America,” Justice Elena Kagan said in 2019.

That’s how Chief Justice Roberts sees the Court’s role, too. Many people, he said in early 2019, tend to look at everything in political terms, but “that’s not how we at the Court function and the results in our cases do not suggest otherwise.” He pointed out that of the 19 5-4 Supreme Court decisions handed down in the previous term, only seven were split along ideological lines.

Neither Kagan nor Roberts have commented on the relentless bullying of Justice Stephen Breyer, 82. The Left wants him to retire so President Joe Biden can appoint a younger “liberal” justice. But it’s clear that Breyer himself believes it’s wrong to think of the Court as just another political institution. “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” Breyer said in April.

The Left’s insulting treatment of Breyer evokes President Franklin D. Roosevelt’s failed campaign to pack the Court with political cronies when the “nine old men” stood in the way of key New Deal legislation. Between a surprising series of votes and several key retirements, FDR did see much of his legislative agenda through. But his naked power grab failed.

The bombastic and pernicious lies embedded in the radical Left’s court-packing scheme are all aimed at the same thing: consolidating total power. Under its one-party rule over all branches of government, it would wield that power as a cudgel against all opponents—specifically the “bigots” who want only to live out their faith in peace.

The German philosopher Josef Pieper had something to say about the abuse of language for political ends. He called readers to stand against “every partisan simplification, every ideological agitation, every blind emotionality, against seduction through well-turned but empty slogans, against autocratic terminology with no room for dialogue, against personal insult as an element of style.”

The court-packing campaign, backed by millions in dark money, is running aground on the truth. It is failing to convince Americans and their elected representatives.

A nine-member Supreme Court—structured as the nation has had it for more than 150 years—is not the death of democracy, but a sign of its ruddy, robust health.

Note: This article was first published on Newsweek and is re-published here with permission. The article presents the main points of an op-ed published in Newsweek. This work was authored by Mike Berry. The full article can be found on the Newsweek website, here.
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