Five Democratic senators filed papers with the Supreme Court warning a restructuring of the highest court in the land could happen if the supposedly ailing institution fails to “heal” itself by embracing a restrictive view of Second Amendment gun ownership rights.
It’s the latest salvo in a long-running war between left and right, Democrats and Republicans, over civil rights, the role that government plays in our everyday lives, and how the Supreme Court fulfils its mission in the policy-making process. Democrats tend to be more overt about their objectives, openly applying, for example, litmus tests on issues like abortion, while Republicans tend to shy away from such tests, defending their nominees as competent Solons.
Republicans claim Democrats started the long-running power struggle over the Supreme Court by unfairly torpedoing the nomination of conservative jurist Robert Bork, a Reagan nominee, in 1987. Before the era of “borking” began, Supreme Court nominations were generally staid affairs.
But the bitter partisan confirmation battles over Bork, whom the Senate rejected in 1987, and Clarence Thomas, who was narrowly confirmed in 1991, put both sides on the permanent hair-trigger footing where they remain today.
Former President Barack Obama often attacked the Supreme Court. During his 2010 State of the Union address he lectured the justices in the audience in the Capitol about how, in his view, they decided the famous Citizens United case wrongly. He also used his bully pulpit to warn the justices not to overturn the Obamacare law, his signature legislative accomplishment.
That political agitation worked, according to Curt Levey, president of the Committee for Justice, which advocates for “restoring the Founder’s vision of a federal judiciary governed by the rule of law and anchored by the Constitution,” according to its website.
“In 2012 Obama basically warned the Supreme Court not to make the wrong decision in the Obamacare case, and of course, Chief Justice John Roberts did not rule the wrong way, according to Obama’s perspective,” Levey told The Epoch Times in an interview.
In NFIB v. Sebelius, decided June 28, 2012, Roberts sided with liberal justices in a 5-4 vote to uphold the statute, finding that the individual mandate, which required consumers to buy health insurance even if they didn’t want it, was a valid exercise of the congressional power to tax.
But Roberts voted the opposite way earlier in the private judicial conference that followed oral arguments, Levey said. Roberts switched sides after Democrats applied pressure by publicly questioning the court’s legitimacy, he said.
Democrats issued the perceived threat to restructure the court in a friend-of-the-court brief filed Aug. 12 in New York State Rifle and Pistol Association v. City of New York, the court’s first gun rights case in nine years, which is expected to be heard during the approaching fall term.
Gun owners are suing the city over a local law that, among other things, prevents lawful gun permit holders from transporting their unloaded, locked up weapons outside the city limits. The court denied a motion April 29 to declare the controversy moot after the city amended the law in question.
A National Rifle Association representative criticized the senators’ legal intervention.
“This brief is nothing more than a desperate attempt by anti-gun politicians hoping to prop up New York City’s blatantly unconstitutional prohibition on the transport of legally owned firearms outside the home,” NRA spokesman Lars Dalseide told The Epoch Times.
The brief by Sen. Sheldon Whitehouse, a Rhode Island Democrat, cites a Quinnipiac poll that purported to find a bare majority, 51 percent, of respondents believes the “Supreme Court should be restructured in order to reduce the influence of politics.” The poll also stated 55 percent of respondents believed the court more “motivated by politics” than the law.
Whitehouse, who was joined in the brief by Sens. Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, Richard Durbin of Illinois, and Kirsten Gillibrand of New York, who is seeking her party’s 2020 presidential nomination, concludes the court is sick.
“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”
Calls to pack the court with new judges or otherwise change or enlarge it have grown louder from Democrats since President Donald Trump was inaugurated in January 2017, but they’ve been a feature of American politics for decades.
The most famous attempt at court-packing came in 1937 when Democratic President Franklin D. Roosevelt attempted to add an extra six justices to the Supreme Court. Roosevelt had wanted to expand the high court bench, because the conservative majority on the court struck down as unconstitutional various pieces of legislation implementing his New Deal policies that expanded the reach of the federal government. Members of his own party in Congress and his vice president, John Nance Gardner, ultimately revolted at the audacious perceived overreach, and the attempt failed.
Although Roosevelt lost that particular legislative battle, ultimately he won the judicial war, albeit posthumously. In the years following, the Supreme Court became increasingly reluctant to strike down laws that expanded government or regulated business activity.
Former Attorney General Eric Holder, now chairman of the National Democratic Redistricting Committee, said in March the next president from the Democratic Party should increase the number of justices from the current nine now sitting on the Supreme Court, to combat what he called Republicans’ “power-grabbing antics.” His group claims “the political system is rigged,” and “the fight to fix it is now.”
Democratic presidential hopefuls Gillibrand, Sens. Kamala Harris of California, Elizabeth Warren of Massachusetts, Cory Booker of New Jersey, along with former Rep. Beto O’Rourke of Texas, and South Bend, Indiana, Mayor Pete Buttigieg, have embraced various court-packing proposals. Former Vice President Joe Biden and Sen. Bernie Sanders of Vermont oppose court-packing but a spokesman said Sanders would “rotate Supreme Court justices down to circuit courts after a set term limit, serving out the remainder of their lifetime appointment in lower courts.”
But conservatives interviewed for this article were not convinced that packing the Supreme Court was necessary or advisable.
“It is completely inappropriate for legislators to threaten to dismantle, disfigure, or limit the power of the Supreme Court for political purposes,” Katherine Schoonover, founder of Political Speech, a social media platform for political discussions, told The Epoch Times.
“The Supreme Court needs to continue to be the voice of the Constitution whenever anyone, including elected officials trying to score political points before critical elections, attempts to directly attack the constitutionally protected rights of citizens,” said Schooner, formerly a legislative aide to former state senator Ken Stolle (R) in the Virginia General Assembly.
Levey said Whitehouse’s brief was “an overt threat and it is coming from a fairly radical group of Democratic senators who hate the fact that the Supreme Court is center-right at the moment.”
This talk of packing the court appears calculated “to intimidate Chief Justice Roberts to push him a little more to the center or the left,” he said.
“Sure enough, Roberts went out of his way not to anger liberals in his census decision” June 27 in the case of Department of Commerce v. New York, Levey said.
In the ruling Roberts joined the four liberal justices, as he did in the Obamacare decision, finding the Trump administration’s claim that a citizenship question needed to be added to the 2020 census to gather data to help enforce the Voting Rights Act “seems to have been contrived.”
This article by Matthew Vadum appeared August 15, 2019, in The Epoch Times.