Are Democrats driving themselves off a cliff? Last Friday, the Virginia Supreme Court struck down the April 21 Redistricting Referendum as unconstitutional. The Court stated that, contrary to Virginia’s Constitution, the General Assembly did not vote in two separate legislative sessions for the amendment, and the required intervening election for the Virginia General Assembly had not taken place.
Now, Virginia Democrats are considering lowering the retirement age of Supreme Court judges to 54 (it is currently 73), which would effectively force immediate retirement of all seven justices, so that the legislature can install new justices who will rule differently on the referendum.
For years, Democrats looked to the Courts to enact policies that they could not get passed in legislation. Now that the trend is swinging back towards literal interpretations of the Constitution, they are attacking the Courts themselves. They are also eyeing a shakeup of the United States Supreme Court. One has to look no further than calls from Kamala Harris, James Carville, U.S. Rep. Democrat Alexandria Ocasio-Cortez (NY-14), and others to know that Democrats will eliminate the Senate filibuster and add four justices to the Supreme Court the next time they control both Houses of Congress and the presidency.
Step one in the Democrat plan is to criticize Supreme Court decisions and certain justices in particular. By painting conservative justices as “extreme,” the idea is to make the public think that the Court is too partisan or too backward. The goal is to delegitimize the current Supreme Court to make it easier for them to pack the court.
Step two occurs when they have the U.S. House, the U.S. Senate, and the presidency. Once a Democrat-controlled Senate eliminates the filibuster, all it takes to “pack the court” is for legislation to be enacted to add more justices to the Supreme Court. A Democrat president would likely then appoint four liberal justices, changing the current 6-3 conservative majority to a 7-6 liberal majority.
Step three would see the newly empowered liberal Supreme Court reconsider all the recent cases that Democrats decry. Undoubtedly, new rulings would right the previous Court’s wrongs.
But if one party packed the Court to increase its power, the other party, or a new party, might pack the Court again when it came to power. This tit-for-tat politicization of the Court undermines its independence and society’s broader respect for the rule of law.
The late Justice Ruth Bader Ginsburg warned about adding justices to the Supreme Court. She said, “I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court. If anything would make the court appear more partisan, it would be that. So I am not at all in favor of that solution. Nine seems to be a good number. It’s been that way for a long time.”
For the last three sessions of Congress, the National Federation of Republican Women has strongly lobbied for the passage of a constitutional amendment that would permanently set the number of Supreme Court justices at nine. Representative Dusty Johnson and Senator Ted Cruz have introduced legislation (House Joint Resolution 28 and Senate Joint Resolution 16) to pass the “Keep Nine” amendment. The legislation has more cosponsors than any other court reform plan.
The language of the amendment would simply say “The Supreme Court of the United States shall be composed of nine justices.” Most Americans, if asked, would think that the Constitution already sets the number of justices at nine. It has been that way since 1869.
Arguments about court packing and the size of the Supreme Court might be considered boring and mundane, but polling shows Americans are not in favor of court-packing. By and large, Americans see the Founders’ wisdom in establishing a strong and independent judicial branch to prevent the overreach of the executive and legislative branches of government. Our Constitutional Republic has flourished precisely because of its built-in checks and balances, and the Supreme Court's role in that system is crucial.
Make no mistake, court packing will be on the ballot in the midterms and in 2028. When Americans are determining their votes for Congressional seats and U.S. Senators in the upcoming elections, they need to know which candidates support an independent Supreme Court and the Keep Nine Amendment.
Look no further than what is happening in Virginia to know that Democrats are not in favor of any institution that does not give them more power. Vote like the Constitution depends on it, because it does!
Martha Jenkins is president of the National Federation of Republican Women.