In their zeal to fundamentally transform America, Democrats have seized on the idea of “expanding” (read: packing) the Supreme Court. They claim numerous justices, especially Amy Coney Barrett, are “illegitimate.” But the very arguments they make against the youngest justice would invalidate some of their most cherished Supreme Court decisions, like abortion-on-demand, redefining marriage or gender, and taking God out of the public schools.
Sins of commission
Left-wing Democrats are lamenting the preliminary report of the president’s commission on the Supreme Court, which cautiously warned against their dream of packing the Supreme Court. “The risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court’s legitimacy,” the commission said amid the 198 pages of discussion materials it released late last week. Changing the number of justices on the court to benefit your side of the aisle could be “perceived by many as a partisan maneuver.”
Leftists fulminated that the report had not only betrayed democracy but had further undermined the “legitimacy” of the Supreme Court. “We must restore legitimacy and integrity to the Court and undo the damage Donald Trump and Mitch McConnell have inflicted on our democracy,” said Senator Ed Markey (D-MA), and Congressmen Jerrold Nadler (D-NY), Hank Johnson (D-GA), and Mondaire Jones (D-NY) in a joint statement.
The Left’s favorite branch of government’s sudden ‘legitimacy crisis’
This supposed “legitimacy crisis” dates, curiously, to the moment when conservatives established a bona fide majority on the Supreme Court: the nomination of Justice Amy Coney Barrett by President Donald Trump 44 days before the 2020 presidential election. “We have a stilted, illegitimate, 6-3 conservative majority on the court,” said Senator Markey after her confirmation. “This is an illegitimate nomination,” said his West Coast colleague, Senator Jeff Merkley (D-OR). They were joined by some of the most powerful figures in the Democratic Party:
- Senate Majority Leader Chuck Schumer (D-NY) said, “The whole process has been illegitimate”;
- Senator Elizabeth Warren (D-MA) said, “I will not lend legitimacy to Mitch McConnell’s efforts to steal another Supreme Court seat. … We need to treat this nomination like the illegitimate power grab that it is”;
- Barack Obama’s Attorney General and self-described “wingman” Eric Holder blasted the “illegitimate conservative majority on the court” and insisted that, “at a minimum as part of that reform package, I think additional justices need to be placed on the Supreme Court”;
- Senator Kirsten Gillibrand (D-NY) said, “This nomination process is illegitimate”; and
- Hillary Clinton’s 2016 campaign press secretary, Brian Fallon, extended the pall further backward, denying that Associate Justices Brett Kavanaugh and Neil Gorsuch are “legitimate.”
The Democrats’ newfound “legitimacy crisis” demanded a prefabricated Democratic solution: changing the composition of the court. In April, Markey, et. al., introduced the Judiciary Act of 2021, a two-sentence-long bill that would give the Democrats the chance to appoint four new justices. “If anything, Congress could go further, because this court has a legitimacy problem,” said Freedom From Religion Foundation Director of Strategic Response Andrew Seidel in voicing the organization’s support for the legislation.
Forget that this kind of rhetoric furthers the Russian propaganda goal of delegitimizing U.S. institutions. Forget, too, that many of these same individuals have insisted that questioning the legitimacy of any political outcome is tantamount to an “insurrection.” Let’s ask three simple questions: Can Congress change the number of justices on the Supreme Court? On what grounds do Democrats claim that the Supreme Court is “illegitimate”? And what would happen if these arguments were correct?
The easiest answer comes first: Not only is it possible for Congress to change the number of justices on the Supreme Court by a simple majority vote, but they have changed seats numerous times. The Supreme Court originally consisted of six justices. The first change came after the second president, John Adams, lost the 1800 presidential election to Thomas Jefferson. Out of spite, the Federalists rushed through the 1801 Judiciary Act, which reduced the number of justices to five, aiming to deprive Jefferson of naming a justice. President Jefferson promptly repealed this law, then expanded the court to seven in 1807, to match the new seventh district court. The number of Supreme Court justices first reached nine in 1837, when President Andrew Jackson added two new justices to preside over two new federal district courts. During the height of the Civil War, in 1863, Abraham Lincoln asked for and received a tenth justice to assure his pro-Union legislation was upheld. But after his assassination, the new president, former Democrat Andrew Johnson, clashed with the Radical Republican Congress, which punished him by reducing the number of justices to seven. Three years later in 1869, it rewarded President Ulysses S. Grant by returning the court to nine justices — an arrangement that has served the nation for 152 years. Court-packing has become so toxic that candidate Joe Biden steadfastly refused to take a position on the issue before the 2020 presidential election, denying voters the opportunity to influence the issue. (So much for “restoring democracy”). So, it is possible, if rare.
But why has the Left suddenly decided the Supreme Court lacks legitimacy? Democrats offered two intelligible arguments that Justice Barrett’s nomination was flawed. The first claimed she had been nominated too close to the 2020 presidential election. Senator Richard Blumenthal (D-CT) berated “this illegitimate sham process” on the grounds that it took place “barely one month before an election as Americans are already casting their votes.” The second claimed that her position was illegitimate because Hillary Clinton won the popular vote (but not the Electoral College vote) in 2016. “A majority of the Court was appointed by GOP presidents who took office after losing [the popular] vote,” said sometime Democratic spokesman Jamison Foser. “Governments draw their legitimacy from the consent of the governed. Our Supreme Court is not legitimate.”
But the Left (as usual) has not thought this through. If Amy Coney Barrett is illegitimate based on these criteria, so is the most consequential justice in the history of the Supreme Court: Chief Justice John Marshall. John Adams appointed Marshall after losing the 1800 presidential election. If Marshall is invalid, that changes everything about the court.
Goodbye judicial review, hello abortion bans
John Marshall wrote the landmark Supreme Court opinion in 1803’s Marbury v. Madison, which “established the principle of judicial review—the power of the federal courts to declare legislative and executive acts unconstitutional.” Judicial review is not explicitly mentioned in the U.S. Constitution (although legal scholars maintain the concept is implicit in Article III, and some believe it is mentioned in The Federalist Papers; compare No. 78 to No. 80). “[C]ertainly there is not a word in the constitution which has given that power [‘to decide on the constitutionality of a law’] to them more than to the Executive or Legislative branches,” wrote Jefferson. Marshall simply asserted that “the Court must decide” laws’ constitutionality, and the concept has stood on his word for 218 years.
If Marshall’s appointment is illegitimate, then judicial review is the “fruit of a poison tree.” So is everything the Supreme Court has decided on that basis — issues where the court’s judicial activists hammered home the Left’s cultural agenda over the will of the American people. Here are just a few of the issues that hang in the balance:
Abortion: The 1973 Roe v. Wade decision struck down pro-life laws in 46 states on the dubious ground that a “penumbra” of the Constitution contains a heretofore unnoticed “right” to abortion-on-demand. In the aftermath, abortionists have committed an estimated 62 million abortions. But if the court cannot review abortion laws, then the pre-1973 status quo ante would return. Already, 12 states have passed trigger laws that would protect unborn life the moment Roe v. Wade is overturned, according to the Guttmacher Institute. Undoubtedly, other states would act to recover the democratic ground lost to the court a generation ago.
Redefining marriage: Judicial activism gave the Left a victory on its other great front of the culture war, the redefinition of marriage to include same-sex couples, an issue virtually absent from U.S. politics before the late 1990s. A handful of states had defined marriage as the union of one man and one woman in the 1970s, but the most recent wave of marriage protection amendments began in 1998 in the right-wing bastion of Hawaii. President Bill Clinton signed the Defense of Marriage Act in 1993, and deep-blue states like California allowed the people to define marriage directly via a popular vote. Before the Supreme Court’s 2015 Obergefell v. Hodges decision, 29 states had constitutional marriage protection amendments, while only 11 states had democratically chosen to redefine marriage — and only three by popular referendum. After Obergefell’s activism struck down these laws, support for same-sex marriage actually fell to 42%. And dozens of states still have such legislation on the books or in their state constitution, which would become law if Marshall was illegitimate.
Prayer in school and the posting of the Ten Commandments: Parents’ original battle over who controls their children’s education came through a series of Supreme Court decisions that obliterated the nation’s historic celebration of faith. The Supreme Court struck down state-led prayer in public schools (Engel v. Vitale, 1962), state-led Bible reading (Abington School District v. Schempp,1963), direct state funding of religious schools (Lemon v. Kurtzman, 1971), posting the Ten Commandments in public schools (Stone v. Graham, 1980) and state-sponsored prayer at public school graduations (Lee v. Weisman, 1992). Yet prayer remains stubbornly popular in a country whose motto is “One Nation Under God.” A poll released last month found that “a majority of Americans (56 percent) report that they would favor allowing daily prayer to be spoken in the classroom” — including nearly one-third of non-Christian believers and a quarter of “religiously unaffiliated Americans.” Furthermore, 60% percent of Americans believe “public school coaches should be allowed to lead the team in Christian prayer at the outset.” The Left would not be able to maintain decades of force-feeding America’s children secularism and agnosticism without the power of judicial review.
If Amy Coney Barrett is illegitimate, so are these Supreme Court decisions and dozens more besides. Admittedly, some on the Left seem to bewail the justices’ ability to overturn legislation for the mere fact that it violates the Constitution. Noted legal scholar Rep. Alexandria Ocasio-Cortez (D-NY) said this year that it is wrong “that a nine-person court can overturn laws that … hundreds and thousands of legislators, advocacy and policymakers drew consensus on.” But the Left has seldom found — or sought — consensus for its top-down social revolution, whether its current front involves secularism, abortion, the redefinition of marriage, the redefinition of gender, or the indoctrination of young people in a highly controversial, quasi-Marxist ideology known as Critical Race Theory. That is why left-wingers so frequently seek recourse to five unelected members of the Supreme Court — and why they so desperately seek to do so again, even if they have to promote self-refuting arguments in their attempt to artifice the court’s new “majority.”
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.