MORNING GLORY: End the filibuster, pack the Court, kiss the Constitution goodbye
The Democratic Party wants to break the United States Senate’s legislative filibuster in order to pack the Supreme Court with jurisprudential clones of Justice Ketanji Brown Jackson, who has quickly emerged as the most radical of the nine justices. (Justice Jackson is also the most loquacious, as Mollie Hemingway points out in her new bestseller, "Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution." Justice Jackson uttered 78,215 words from the bench in the 2023-2025 term. Justices Gorsuch and Kagan got the silver and bronze in the spoken-word competition, but it wasn’t close, as they were both around 50,000 words apiece.
President Joe Biden supported expanding the Court to 14 members in April 2021. Massachusetts Sen. Ed Markey is one of many senators who have also applauded the number 14. That’s no surprise, as adding five radicals to Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor would lock in an eight-vote bloc of justices who, after that revolution, would simply be legislators in robes. Kiss the Constitution goodbye if and when "the Nine" becomes "the Fourteen." Hard-left progressivism, whatever the flavor of that day may be, will be in the saddle.
The Fifth and 14th Amendments to the Constitution guarantee every American "due process of law." Do those guarantees stand between a left-wing Congress and a left-wing president bent on torching the Constitution?
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It is hard to deny that all precedents would be out the door with a radicalized Court packed with progressive activist law professors. The precedents might end up out the door with a nine-justice court if Democrats win enough elections, as Father Time remains undefeated when it comes to the current membership of the Court. That would not be a radical change, but rather a process the public could see and intervene in via elections. There is no denying that the Supreme Court vacancy at the time of the 2016 election helped power President Donald Trump’s stunning upset win that year. More than a few voters that year were motivated by the fear of a Court dominated by nominees of prospective President Hillary Clinton.
Democrats are quick to point out that the Constitution is silent on the exact number of justices and that, in fact, Congress often tweaked the number of justices between 1789 and the Judiciary Act of 1869, which fixed the number of justices at nine, a number that has not changed since.
That 1869 act followed fast on the heels of the 14th Amendment, which was ratified in 1868 and which joined its guarantee of "due process of law" to that same guarantee in the Fifth Amendment. The 14th Amendment’s ratification in 1868 and the Court’s right-sizing, which followed the next year, suggests a consensus at the time of the amendment, one that has never been changed since. (The Court has also never had more than 10 justices, and that just briefly.) The Biden-Markey proposal is many things, but it is not rooted in American history, and it certainly would destroy "due process of law" in the nation.
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Court-packing would, in fact, mark the actual end of the rule of law, and the manipulation of the Court would follow every future political upheaval in which both houses of Congress and the president controlled the federal legislative process. That’s just what happens when suddenly a major break with tradition and practice occurs. The other side of the aisle adopts the tactic too.
Democratic Senate Majority Leader Harry Reid broke the Senate’s filibuster rules via the "nuclear option" in order to confirm judges to the D.C. Circuit in 2013 over the objection and warning of then-Republican Leader Mitch McConnell. Soon the Senate’s majority switched from Democrats to Republicans, and McConnell made good on his warning by using simple majorities to confirm three nominees to the Supreme Court put forward by President Trump. Bad move, Harry, but not one that out-and-out destroyed the institution of the Court.
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Packing the Supreme Court via simple-majority votes — or even by supermajority — would be a disaster, the sort of convulsion that marked the end days of the Roman Republic, when political maneuvering and continual breaches of fundamental traditions occurred and relations between the two parties so soured more than two thousand years ago that civil wars were triggered and eventually dictatorship was the only answer. Republics built on the rule of law are not the norm. They are history’s exceptions. We have one. We should work hard to keep it intact.
There is an excellent argument that court-packing is actually rule-of-law-busting and thus violates the Fifth and 14th Amendments’ guarantees of due process of law. But who would be able to make that argument? Who would have standing to bring the challenge to proposed court-packing legislation, and when would such a challenge be ripe? These are difficult hurdles for any litigant bringing any case. A litigant must show actual injury — a "concrete and particularized" injury, one traceable to defendants’ conduct and an injury that the Court could actually redress.
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Certainly no challenge would lie from anyone in the immediate aftermath of the filibuster being broken, but how about the moment after the court-packing legislation was signed? Who could ask the Court if the destruction of the rule of law was OK by the Nine before their number soared to Fourteen?
Perhaps Professors Randy Barnett and Josh Holmes, co-authors of the best constitutional law casebook out there right now. All of their decades-long work on that terrific casebook would be destroyed immediately, as a 14-member court would make kindling out of all prior decisions (and all the casebooks that explain them) and do so in rather quick fashion.
Perhaps one of the nine justices could bring the case? Their individual authority would be diluted by the expansion to 14 — but would any of them want to be the justice arguing to keep their power intact?
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Time for the people serious about preserving the rule of law to begin thinking through how to protect due process of law in this country come 2029, if a Democratic president and Democratic majorities in the House and Senate do what they will almost certainly pledge to do on the campaign trail: end the filibuster and pack the Court.
And it is also time for the Senate Republican caucus to bravely and fearlessly defend the legislative filibuster as it currently exists. The legislative filibuster is the biggest hurdle in the way of would-be court-wreckers, the early-warning system that danger to the rule of law is drawing close.
The GOP should be the party of the Constitution and the rule of law, and it ought to be out front right now defending the Court’s membership at nine and the filibuster generally. Win the argument about the filibuster, and you will never have to win the case against court-packing or even worry about "standing" and "ripeness."
Hugh Hewitt is a Fox News contributor and host of "The Hugh Hewitt Show" heard weekday afternoons from 3 PM to 6 PM ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh drives Americans home on the East Coast and to lunch on the West Coast on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable, hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcasting. This column previews the lead story that will drive his radio/ TV show today.