Court-Packing Would Lead to an America without Borders

March 29, 2019

By Brian Lonergan

Those with a limited appetite for hyper-partisan politics should best avert their eyes for the next 17 months. Democrats hoping to defeat Donald Trump next fall are now actively wooing primary voters. The nascent campaigns have apparently concluded that their base is uniformly both furious and radical, because their stump speeches carry a consistent theme: burn down every pillar of our democratic republic that stands in the way of our side winning.

The Electoral College? Gone. Lowering the voting age to 16? No problem. Allowing illegal aliens to vote? Done. Further down the list of proposals on the road to an Orwellian America is adding seats to the Supreme Court, also known as court-packing. While it sounds innocuous compared to the other proposals, it is a serious threat to our system of checks and balances, as well as the integrity of our borders.

After some tinkering with the number of justices on the Supreme Court since the nation’s founding, Congress passed the Judiciary Act of 1869 and there have been nine justices ever since. It’s a configuration that has served the nation well.

So why the sudden enthusiasm for court-packing? Simply put, the Supreme Court has become an obstacle to the left’s agenda, particularly on immigration. Anti-borders legal groups have been playing the lower courts like a Stradivarius for years. By forum-shopping for friendly courts like the notoriously left-leaning, activist Ninth Circuit, these groups can reliably get orders blocking pretty much anything the Trump administration does on immigration.

When the appeals hit the Supreme Court, however, the lower court rulings have been overturned. This was demonstrated in Trump v. Hawaii and more recently in Nielsen v. Preap. With a 5-4 conservative majority on the Court and the possibility of more Trump-appointed justices to come, the litigation strategy of the anti-borders movement is in peril. The left cannot allow this to stand, so its solution is to dilute the Supreme Court until the lineup works in their favor.

While the Republicans currently operate the levers of power to place justices on the Court, the political pendulum will inevitably swing back to the Democrats someday. Given that party’s current ideological trajectory toward court-packing, amnesty and no borders, it’s not hard to see how the transfer of power could effectively mark the end of American sovereignty. The respect for our legal traditions would be quickly obliterated under a tsunami of anti-borders sentiment. That is an existential threat to America as we know it if there ever was one.

This kind of power grab on the Supreme Court has been attempted before. When the Court handed down rulings against his New Deal legislation, FDR advocated for the Judicial Procedures Reform Bill of 1937. While its stated purpose was to force the early retirement of justices, it came to be known as Roosevelt’s “court-packing plan.”

The plan met opposition from sitting justices, leaders of both political parties and the public. As a result, Congress never voted on the plan. Thanks to his four consecutive terms as president, however, FDR got his desired result anyway through attrition and his New Deal plans saw little opposition from the Court thereafter.

Today the process of confirming new Supreme Court justices has increasingly devolved into an uber-partisan blood sport. Both parties are still intent on settling old scores from the treatment of past nominees including Robert Bork, Clarence Thomas, Merrick Garland and Brett Kavanaugh. By adding seats to the Court, one-party rule of the White House and the Senate would result in a fevered attempt to create generations-long majorities to rubber-stamp the entrenched party’s agenda. The effect would be a more political, less independent judiciary that would further erode public trust in our institutions of government, while making America look a little more like Maduro-controlled Venezuela.

FDR’s direct attempt to pack the Court failed, thanks in large part to bipartisan reverence at the time for our judicial system. Are we really willing to bet that today’s public, indoctrinated by decades of anti-American rhetoric from academia and the media, will stand up for the tradition of the judiciary one more time? It’s a scary thought, and all the more reason why the larval idea of court-packing needs to be killed before it grows into Godzilla.

Brian Lonergan is director of communications at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of illegal migration.

Also published at: Brian Lonergan, Court-Packing Would Lead to an America without Borders, The Hill, March 29, 2019.