Vice President Kamala Harris is supporting the most radical assault on the Supreme Court in our nation’s history, far more dangerous than FDR’s unsuccessful and universally denounced court packing scheme of the 1930s.
This new proposal is not simply a court packing or term limit plan, but a pack and replace plan, adding liberal Justices and immediately removing conservative Justices, starting with Justice Clarence Thomas. Democrats do not believe in an independent judiciary and want to rig the Court to control its decisions.
According to Senator Sheldon Whitehouse – the single most malignant individual attacking the independence of the Supreme Court – Harris is in agreement with his proposed bill (S. 3096), which would require the president to appoint new Justices in their first and third year in each term, for a total of up to eighteen Justices, and allow only the nine most recently appointed Justices to participate in 99.9 percent of the cases that come before the Court. President Joe Biden’s proposal for 18 year term limits on Justices also aligns with this dangerous plan.
FDR only advocated adding a Justice for every sitting Justice over the age of 70, which would have given him the chance to appoint six new Justices, and as a result, a majority to rubber stamp his New Deal programs and overcome the Court’s majority which was striking down many of his programs. The Democrat-led Senate Judiciary Committee blasted FDR’s plan for its assault on the independence of the Court. But even under his plan, no Justices would have been disqualified from participating in cases.
Harris, Biden, and Whitehouse have no such qualms. Under their plan, when President Harris appoints a Justice in 2025, Justice Thomas would be immediately disqualified from sitting on nearly every case. Then Chief Justice Roberts would be disqualified in 2027 and Justice Alito in 2029.
This bill is designed to take out the constitutionalist Justices who have stood up to the left’s assault on the rule of law. It is a plain attempt to inject partisan politics in what is supposed to be the apolitical branch of our government. Democrats had no problems with lifetime appointments or judicial ethics until President Trump appointed three conservatives to the Court and it was no longer a rubber stamp for left wing policies.
Only then did Democrats begin their bogus ethics attacks on conservative Justices not disclosing vacations with friends or not recusing because your wife flew an iconic American flag. Democrats certainly had no ethics concerns when Justice Ginsburg attacked candidate Trump during the 2016 campaign or her spouse’s law firm appeared before the Court and she never recused.
Vice President Harris’ embrace of Senator Whitehouse’s bill illuminates what all these so-called “ethics” attacks have been about: undermining the public’s trust in the Supreme Court to pave the way to introduce the most radical bill to destroy the independence of the Court. The left does not like the Court’s decisions on abortion, affirmative action, the administrative state, the Second Amendment, and presidential immunity, so this new law would quickly change the Court’s balance of power to get the “correct” results. Democrats have lost these battles, so they want to change the rules.
The Harris/Whitehouse bill relies on the Constitution’s provision that the Court has broad appellate jurisdiction “with such exceptions. . . the Congress shall make,” as opposed to the Court’s rarely triggered original jurisdiction set forth in the Constitution, which covers disputes between the states. Whatever the scope of this “exceptions” provision to appellate jurisdiction, it clearly authorizes Congress only to deny jurisdiction to the entire Supreme Court and not individual Justices of the court. Otherwise, Congress could enact a law that disqualifies Republican appointed Justices from hearing cases on presidential immunity.
If Democrats got their way and packed the court, our country would soon become unrecognizable. A newly constituted Court beholden to the left would allow the federal government to silence disfavored speech, restrict our religious liberties and our right to bear arms, seize wealth and property (such as taxing unrealized gains), allow unelected bureaucrats to regulate more aspects of our personal lives and our businesses, undermine meritocracy and permit rampant race-based remedies, permanently keep our borders open to unlimited illegal immigration, and allow violent criminals to run free.
While this legislation is unconstitutional, if it were enacted, it would certainly lead to serious constitutional showdowns that may threaten our entire system of government and the rule of law. Democrats like to say our democracy itself is on the ballot. They might be right. This legislation is a mortal threat to an independent Supreme Court and the rule of law and must be defeated.
Mark Paoletta is a senior fellow at the Center for Renewing America. He worked in the George H.W. Bush White House Counsel’s Office and worked on Justice Thomas’ confirmation. He also served in the Trump Administration and worked on the Gorsuch and Kavanaugh confirmations. He represented Ginni Thomas in the January 6 Select Committee inquiry. He is co-editor of Created Equal: Clarence Thomas in His Own Words.