The Democrats' Court-Packing Plan Threatens Civil Liberties and the Separation of Powers

After the death of conservative Supreme Court Justice Antonin Scalia in 2016, President Obama nominated Merrick Garland to replace him. A moderate liberal, Garland likely would have shifted the balance of the high court to the left. But Senate Republicans refused to hold a hearing on Garland’s nomination until after the presidential elections—which saw Donald Trump elected to the White House, effectively ending any hopes for Garland’s appointment to the highest court in the land.

Once in office, Trump nominated the conservative judge Neil Gorsuch to replace Scalia. When Justice Kennedy—the high court’s most frequent swing vote—retired, Trump chose the solidly conservative Brett Kavanagh to take his spot. Liberals, concerned that a conservative majority may dominate the Court for a generation and overturn key precedents like Roe v. Wade, have responded by calling for expanding the Supreme Court to include as many as 15 justices. Several presidential candidates, including Pete Buttigieg, Beto O’Rourke, Kamala Harris, Elizabeth Warren, and Kirsten Gillibrand have all endorsed court packing proposals, with former Obama Attorney General Eric Holder saying the idea should be “seriously” considered.

The idea of expanding Supreme Court membership hearkens back to the 1930s when FDR aggressively pushed the idea of court-packing because his New Deal policies were being declared unconstitutional.

“If court-packing does happen and you get this cycle of retaliation, this quite valuable institution would be undermined,” says Ilya Somin, a law professor at George Mason University and contributor to The Volokh Conspiracy blog. “Protections for our civil liberties, for separation of power, for limits on the power of federal government—all of that would be significantly weakened over time.”

Somin sat down with Reason to discuss the revival of court-packing proposals on the left and how they could undermine the institution of judicial review.

Produced by Alexis Garcia. Camera by Meredith Bragg and Todd Krainin.

Photo credits: Pete Souza/ZUMA Press/Newscom, Cheriss May/ZUMA Press/Newscom, Ron Sachs/picture-alliance/Consolidated/Newscom, Doug Mills/picture-alliance/Consolidated/Newscom, Between the wars/UPPA/Photoshot/Newscom, Kevin Dietsch-Pool via CNP/MEGA/Newscom, akg-images/Newscom, Mark Hertzberg/ZUMA Press/Newscom.

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