Saving Nine: The Fight Against the Left’s Audacious Plan

WHEN THE LATE JUSTICE RUTH BADER GINSBURG made that comment in an interview in 2019, it wasn’t particularly controversial. But by the next year, those comments would have placed this particular liberal icon at odds with many—in fact most—of her ideological pals. In 2020, we lost Justice Ginsburg, and many Democrats began to lose their minds. That year on the campaign trail, Joe Biden, the Democratic presidential nominee, refused on many occasions to rule out packing the Court. Other members of his party said the Supreme Court was “broken” and “actively dismantling our democracy.” As president, Biden appointed a committee to examine “reforms” to the Court, which signaled to many that he was inclined to support the drastic “reform” of Court packing. When that commission published its report in 2021, it avoided making any concrete recommendations, but it subtly advanced the cause by refusing to condemn expanding the Court in the future. Voices on the Left in and out of government quickly took up the mantle of Court expansion.

How did things change so quickly? Through the course of this book, I’m going to explore this question, and hopefully provide a defense for a nine-justice Court. I hope as well to outline the dangerous norm-shattering precedent that would be set by politically motivated attempts to turn the Supreme Court into just another partisan weapon.

For the last few decades, the American Left and Right have been able to stay in almost complete agreement on very few issues. One of these is the size of the Supreme Court. The nation’s highest court has been composed of nine justices since 1869, and that number remained undisturbed until 1937, when Franklin Roosevelt threatened to add more justices to get his New Deal agenda approved. Though Roosevelt did not end up expanding the Court, his threat to do so may have worked just as well: the justices suddenly began to look more favorably on the next New Deal case that came before them.

That seemed to put the matter to rest. For the rest of the twentieth century, Democrats and Republicans left the size of the Supreme Court alone. In 1983, Senator Joe Biden, reflecting on Roosevelt’s gambit, called it “a bonehead idea,” and “a terrible, terrible mistake to make” that called into question the independence of the nation’s highest court.¹ And yet, in 2020, court packing (or court expansion, depending on your side of the issue) became a major election issue, with Biden, then the Democratic nominee, repeatedly coming under pressure to take a firm stance on the question. He managed to come to office without ever detailing his position. But as president, he appointed an entire commission to look into the idea he had once dismissed as “bonehead,” reflecting the traction it was gaining within his party.

There are still some serious-minded liberals who have reservations, and aren’t afraid to express them. In April 2021, Associate Justice Stephen Breyer told an audience at Harvard that Democrats should think “long and hard” about changes to the Court that would play into the perception that politics played a greater role in their decisions, arguing this would damage public trust in the institution. “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” he said.²

Personally, I agree completely, especially at a time when trust in public institutions is already dangerously low. But it can hardly be a coincidence that progressives were, around the same time, launching a vociferous “Breyer Retire” campaign to force the eighty-two-year-old Bill Clinton appointee off the bench. They had no use for his measured thinking. Eventually, the pressure must have weighed on him: on January 27, 2021, Breyer announced that he would in fact retire. My friend and Democratic colleague in the Senate, Dick Durbin of Illinois, revealed that Biden’s chief of Staff, Ron Klain, had leaked the information the day before, when it was widely reported in the press.³ It is fair to wonder if pressure from the Left on the White House led them to force Breyer’s hand.

The progressives on the far left wing of the Democratic Party are the real drivers behind this issue. Their view was articulated in a video released by freshman New York representative Mondaire Jones, which should horrify anyone, of any political persuasion, who believes in our constitutional system of government. In it, a member of one branch of that government maliciously attacks everything about another branch. Representative Jones maligns not only certain decisions or certain justices he disagrees with, but the entire institution of the Supreme Court itself.

Representative Jones’s video shows videos of the January 6, 2021, attack on the Capitol, and he declares: “The Supreme Court helped bring us here,” associating the highest court in the land with violence. He goes on to say, “The Court has been actively dismantling our democracy for years.” He claims the Court “helped install Donald Trump in the White House,” which doesn’t line up with any account of the 2016 election that I’m aware of. According to Representative Jones, the institution of the Supreme Court, as it exists today, holds a “far-right, anti-democratic grip on our democracy.”⁴ The only solution, in his view, is to expand it.

It would be one thing if Representative Jones were an isolated firebrand. The House always has a few of those. But Representative Jerrold Nadler, the House Judiciary Committee chairman, got on board as well. Many of my Democratic colleagues in the Senate got in on the act, especially after a landmark case offered a serious challenge to Roe v. Wade. Senator Elizabeth Warren, a onetime presidential contender, declared that “the current court threatens the democratic foundations of our nation.”⁵ Senator Ed Markey said, “the United States Supreme Court is broken,” and “out of balance” and “needs to be fixed.”⁶ In December 2021, The Washington Post interviewed “more than a third” of the Senate Democratic Caucus and found a “growing faction” now open to ideas like abolishing lifetime appointments for justices and expanding the Court.⁷ The warnings of Ginsburg, Breyer, and even Biden were forgotten. This idea had fully migrated from the fringes into the mainstream.

But why now? Part of it, I believe, is a reaction to the ascendancy over the last few decades of “textualists” and “originalists”—jurists who make it their mission to pay careful heed to the text and original understanding of the law and Constitution—in the federal judiciary. Justice Elena Kagan even acknowledged that this had become the prevailing view in 2015, declaring: “We’re all textualists now.”⁸ A Democratic president adding three non-textualist judges, those who prefer to think of the Constitution as a “living document,” could single-handedly undo this favorable development in American jurisprudence.

That would be a general effect. More specifically, an expanded Supreme Court would remove the judiciary’s status as the last non-political branch of the federal government. Yes, Democrats would use a biased Court to ram through a liberal wish list in the short term. But such a dramatic move by Democrats would doubtlessly lead Republicans, when they next gain power, to escalate, perhaps adding three more justices. The Court could then grow bigger and bigger, turning into a political football, with its decisions reflecting only the priorities of the party in power rather than text, precedent, and prudence—just what Justice Breyer has warned against. “Landmark” cases would be decided and overturned, and then decided again every few years following each major electoral shift removing consistency and stability from our legal system. That consistency and stability are what give our system its reputation as the best in the world, free from political influence—a reputation that has serious implications for the nation’s wider cultural and economic vitality. But if all roads in the federal judiciary lead to a political rubber-stamp Court—for either party—that reputation would erode and eventually disappear.

The way to stop this from happening is to maintain the 150-year precedent and, just as in 1937, “save nine.”