Court Packing: The Left’s Orwellian Redefinition defines court packing as “an unsuccessful attempt by President Franklin D. Roosevelt in 1937 to appoint up to six additional justices to the Supreme Court, which had invalidated a number of his New Deal laws.” In recent article in Harper’s Bazaar, Chelsey Sanchez writes, “Simply put, court packing refers to the process of Congress adding more seats to the Supreme Court in an effort to secure a majority.”

That definition of court packing, once generally accepted, is now being challenged by those on the left. At Project Syndicate, Elizabeth Drew writes, “Trump Packs the Court His Way.” How did the president do this? By appointing judges and justices to fill court vacancies when they arose. If the left is able to use an Orwellian redefinition of court packing to convince the public this has already occurred, they can justify their attempt to pack the Supreme Court by adding justices, just as Roosevelt attempted to do.

Roosevelt tried to pack the Supreme Court because it “invalidated a number of New Deal laws.” Drew offers the same justification, saying “the greatest threat to Biden and any progressive government for a long time to come will emanate from the Supreme Court.” The solution is to pack the court, as Drew claims Trump has already done.

Essentially, Drew argues that the Supreme Court is in a position to check and balance the power of an executive branch headed by Biden, should he win the election. The idea, once celebrated, of checks and balances to control government power, is now loathed by those who hope to gain government power.

Drew claims “Senate Republicans are already plotting how to undermine a Democratic majority,” but she doesn’t say how. Meanwhile, she makes an argument for undermining the long-standing precedent of maintaining nine Supreme Court justices by redefining court packing to claim that Trump has already done this.

Would a Democratic administration actually add justices to the Supreme Court? My guess is they would not, but they are politicians and I wouldn’t put anything past politicians of any party. More likely, they will use the threat to try to push the existing nine justices toward decisions they would favor, as Jeannie Suk Gersen suggests in this article in The New Yorker. That seemed to work for Roosevelt.

In what has been called “the switch in time that saved nine,” some observers have suggested that after Roosevelt’s failed court-packing scheme, the existing nine justices were less inclined to rule against Roosevelt’s policies. Gersen’s article cited in the previous paragraph suggests other actions Congress might take to limit the court’s power, including limiting types of cases over which it has jurisdiction and requiring supermajority approval of the justices to decide cases. Just the threat of such action might make the existing nine more cautious in their rulings.

But those are details. The larger point is that the left is attempting, in Orwellian fashion, to redefine terms in order to justify their overturning long-standing institutions in American government—to undermine the checks and balances designed by the Founders.

Ironically, coming from members of the Democratic Party, those Democrats are not actually democrats. They are saying that if the outcomes of democratic decision-making do not meet with their approval, they are open to changing the rules to get what they want.

Randall G. Holcombe is a Senior Fellow at the Independent Institute, the DeVoe Moore Professor of Economics at Florida State University, and author of the Independent Institute book Liberty in Peril: Democracy and Power in American History.
Beacon Posts by Randall G. Holcombe | Full Biography and Publications
  • Catalyst
  • Beyond Homeless