Pack the Court, Burn the Constitution

Of all the issues in the presidential election, the one that concerns me the most — and ought to concern you as well — is “packing” the Supreme Court.

I know, I know… there are many other important matters on the table

Obviously, Trump and Biden present two different visions of the future. And whoever wins, we all hope that the country will somehow muddle on.

But the prospect of Court packing fundamentally alters that equation — because it strikes at the heart of the Republic.

If a president proposes to alter the size and structure of the Supreme Court, just go find the nearest copy of our Constitution and burn it.

Simply put, the country is finished.

Yes, the issue is that big.

Let’s dig in…

Packing the Court means altering the number of Supreme Court justices so you have more of “your guys” deciding cases.

This hasn’t been a political issue for nearly 83 years, when President Franklin Roosevelt (FDR) proposed raising the number of justices up to 15 in 1937.

But it suddenly became a hot topic again when Justice Ruth Ginsburg died, and President Trump was handed the opportunity to nominate a replacement.

Just consider this exchange Joe Biden had with a reporter this past weekend:

Reporter: “You said yesterday that you aren’t going to answer the question until after the election, but this is the number one thing that I’ve been asked about from viewers in the past couple of days—”

Biden : “Well, you’ve been asked by the viewers who are probably Republicans who don’t want me to continue to talk about what they’re doing to the [Supreme] Court right now.”

Reporter: “Well sir, don’t the voters deserve to know if—”

Biden: “No they don’t. I’m not going to play his game [President Trump’s game, from the context]. He’d love me to talk about. … [Pause] And I’ve already said something about packing.”


According to Biden, voters don’t “deserve” to know whether he plans to alter the size and structure of the U.S. Supreme Court.

Then again, by not answering the question, Biden answered it.

Of course, he’s wide open to packing the Court. And from all indications, that’s the plan.

But after that exchange, the focus groups and poll numbers must have indicated that this “court packing” thing is radioactive

So yesterday, Biden backed away a bit.

In an interview with a television station in Cincinnati, Biden said, “I’ve already spoken on… [Pause]. I’m not a fan of court packing, but I don’t want to get off on that whole issue.”

Hmm… “Not a fan,” but he won’t “get off on that whole issue.”

There’s a rock-solid campaign promise, if ever I heard one. (Just kidding.)

The plot now thickens because Biden has touched a primal issue to many Americans.

In fact, “Court-packing” may be how and why Biden loses the election.

We’ll address that point further along…

But to understand why “packing” the Court should be a political career-killer, we need to consider how the Supreme Court came to be what it is today…

The Supreme Court is established by Article III of the U.S. Constitution. But the wording is bare-boned, with structure and details intended to be set by Congress:

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

The Constitution was ratified in 1787. The fledgling U.S. held national elections in 1788, which set up the House and Senate. Then Congress passed the Judiciary Act of 1789, which set up the Supreme Court

The Court first met in 1790. It was comprised of a Chief Justice and five Associate Justices.

According to the Supreme Court’s historical site, “The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869.”

Meanwhile, “For all of the changes in its history, the Supreme Court has retained so many traditions that it is in many respects the same institution that first met in 1790, prompting one legal historian to call it, ‘the first Court still sitting.’”

The Court is bound by longstanding custom and precedent. Change comes slow. Indeed, it took over 140 years for the Court just to have its own building, the one that we see now atop Capitol Hill, across from the U.S. Capitol Building.

supreme court

U.S. Supreme Court, One First Street NE, Washington, D.C.

In the 1790s, the Court met in New York City; then in Philadelphia. Eventually, the Court moved into a room in the basement of the newly constructed Capitol Building in Washington.

Throughout the 19th century, Supreme Court justices, and others, commented on the negative image of the Court working out of the dungeons beneath the nation’s legislative building. But no one from the Court and/or Congress ever came up with a suitable plan (or money) to move.

By the late 1920s, there was finally a movement to construct a stand-alone Supreme Court building. And in 1929 Congress appropriated funds to begin design and long-lead purchases of steel, stone and more.

The current Supreme Court building was constructed between 1932–35. As fate would have it, the effort transformed into a Depression-era work project. But the building was always intended to establish a proper physical space for the Court as a co-equal branch of government.

The white marble and Corinthian style of the Court’s new building also make a statement. The architecture symbolizes how the Court is rooted in an ancient sense of pursuing justice.

Seen through this historical lens, it becomes clear that packing the Court is counter to everything it stands for.

Meanwhile, the Court’s adherence to traditions means it abhors rapid changes made on a whim.

It demands — and deserves — to be recognized as equal to the Executive and Legislative branches… and therefore should be safe from meddling by either of the other branches of government.

But it’s impossible to pursue justice if someone seeks to change the system simply to tip the scale in their favor.

President Franklin D. Roosevelt (FDR) learned all this the hard way….

In 1932, FDR won a landslide election, defeating President Herbert Hoover during the depths of the Great Depression.

He took office in March 1933 and immediately began working with Congress to enact laws to set up an array of government programs. The idea was to get the U.S. economy back on track.

FDR was ambitious, to say the least. And as things unfolded, it became clear that much of what he and Congress pursued were simply beyond the enumerated powers of government within the four corners of the Constitution.

Along the way there was much criticism towards FDR, some of the most vehement coming from well-regarded Constitutionalists like John T. Flynn, whom we discussed recently.

More than a few people and businesses challenged these FDR initiatives in federal district courts. Over time, several cases made it to the Supreme Court.

In 1935 and ’36, the Supreme Court struck down several key FDR initiatives.

Former Wall Street Journal reporter Amity Shlaes wrote an excellent book on this era, entitled The Forgotten Man: A New History of the Great Depression (2007).

She devotes an entire chapter to one case, Schechter Poultry vs. U.S., which she calls “The Chicken Versus the Eagle.”

The eagle was the symbol of FDR’s National Industrial Recovery Act (NIRA). The law was challenged by a company that sold poultry.

The case was over whether or not the mighty federal government could set the price and terms of sale for chickens in local markets, of all things.

While it might sound rather silly, Schechter Poultry raised many profound Constitutional issues concerning the scope of federal power.

After hearing the arguments and considering the facts, the Supreme Court declared NIRA was unconstitutional… over a bunch of chickens!

Needless to say, FDR was angry.

In 1937, FDR made a high-brow proposal that the nation — and its Supreme Court — evolve with the times. He proposed adding six additional justices to the nine-member Supreme Court.

He argued, in essence, that more justices were necessary to overcome opposition to the New Deal by the Supreme Court’s elderly justices. The “nine old men,” to use FDR’s words, weren’t in sync with his “New Deal” style of governance.

So, per FDR, the nation had reached a point where it “must take action to save the Constitution from the Court, and the Court from itself.”

Another way of viewing it was that FDR wanted to put his presidential hand on the scales of justice by adding more of “his people” to the bench — thereby improving the likelihood of favorable outcomes.

Many Americans went along with FDR, but many others were vehemently opposed to changing the number of justices on the Court.

Immediately, FDR encountered waves of opposition, ranging from letter-writing campaigns, to editorials and even strong opposition from within his own Democrat party.

In an unusual setback for FDR, his idea failed to gain traction. It would become one of the great political fiascos of his presidency.

Meanwhile, the Supreme Court decided several more cases and — surprisingly if not prudently — sided with FDR and his New Deal programs. Specifically, one of the justices began to vote with FDR in close cases, handing down 5–4 victories for the president.

It was called “the switch in time that saved nine.”

By the summer of 1937, FDR’s idea was stalled. And “packing” the court faded as a major issue of the era.

Yet “packing” lived on as a lesson in presidential over-reach — of a president doing something that goes against the fundamental sensibilities of the American people.

Despite those lessons, however, today we’re looking at the thinly disguised intent of Democrats to “pack” the court in coming years when they have political power and sufficient votes.

Biden’s reluctance to discuss the matter — let alone outright to repudiate the idea — is clear evidence that court-packing is coming down the line, sooner or later.

Biden “ought” to lose the election, just over this issue alone.

But American politics being what they are… It’s hard to forecast what will happen.

Do enough people understand what’s happening right in front of them? Do enough people care?

If Biden wins, it’s clear that the Democrat plan is to alter the size and makeup of the current Supreme Court structure by placing politically reliable judges onto the Court.

It’s plain as day…  They don’t even bother denying it.

Modern Democrats intend to transform the Supreme Court into a super-legislature that will rubber-stamp acts of Congress or fill in the blanks of sloppy legislation with national-scale edicts from the bench, which will consign federalism to the trash can of history.

Of course, court-packing is what tyrants do…

Consider Venezuela, where the late Hugo Chavez came to power and immediately added a dozen new justices to that country’s high court. They endorsed “Chavismo” to the hilt, and now, after 15 years of misgovernance, the nation is a basket case.

Here in the U.S., federalism has long been under assault, certainly since the 1930s and the days of FDR’s New Deal. The Bill of Rights is besieged as well; embodied in issues like the 2nd Amendment, religious freedom, search and seizure, government takings and much more.

It’s naïve to argue that the Supreme Court is entirely apolitical… “Justices read the newspapers,” according to a famous old saying.

But for many decades, at least the “Court” game has been played within somewhat traditional parameters.

Looking ahead, though, it’s clear that “Court packing” is on the agenda, sooner or later. And this is a dangerous path to follow, from which there is no return.

Meanwhile, the fact that Biden is evading the issue and playing word-games about the very concept means the revolutionaries behind the throne know exactly what they’re doing.

If Biden wins, pass the matches…

On that note, I rest my case.

That’s all for now… Thank you for subscribing and reading.

Best wishes,

Byron King

Byron King
Managing Editor, Whiskey & Gunpowder

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Byron King

A Harvard-trained geologist and former aide to the United States Chief of Naval Operations, Byron King is our resident gold and mining expert, and we are proud to have him on board as the managing editor of Whiskey & Gunpowder.

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