The U. S. Supreme Court issued two 6-3 decisions as it completed its last term, causing Democrats to renew their call for expanding the number of justices by four. Under President Biden, this would undoubtedly result in more liberal justices to uphold the agenda of the Democrat Party. The left’s court packing scheme, if successful, will weaken the constitutional system of checks and balances that preserves the American republic and protects against tyranny.
The Founding Fathers were wary of a powerful central government that would oppress and restrict the liberties of individuals. Their experience under Britain's tyranny made them determined to have a government “of the people” and not by a ruling elite.
Woven within this brilliant constitutional plan are checks that protect individuals from governmental tyranny and ensure that no branch of government can control other branches. Further, the balance of power between the federal government and the states preserves the ability of states to reflect their cultural heritage while maintaining a key part of the American republic.
Historically, these constitutional checks have worked well to protect the rights of individuals while at the same time ensuring an effective national government. Critical among such checks is the doctrine of judicial review, which allows the judiciary to declare certain enactments from the executive and legislative branches unconstitutional.
Judicial review is not explicitly mentioned in the Constitution. Still, it has been an integral part of the republic from our early days, with the issuance of the landmark case of Marbury v. Madison.
Since these early days, the three branches of the federal government have balanced each other. The executive has the power to void legislative enactments through the veto process, and the legislature can override such veto power. If the executive and legislative branches adopt unconstitutional legislation, the judiciary has the power to void such enactments. Likewise, the other branches may void a Supreme Court decision with appropriate legislation or a constitutional amendment.
The judiciary was never intended to be a political body that passes legislation or pursues a political agenda. This is the role of the elected representatives and is the essence of a constitutional republic. When Chief Justice John Roberts was nominated to the high court, he announced his beliefs that the role of the Supreme Court was similar to the role of an umpire in baseball — it calls balls and strikes as it sees them. However, it does not have a say in a particular political outcome.
It is a tragedy that in today’s political environment, the Supreme Court is viewed as a political player to achieve political outcomes. The shameful actions of the left in the confirmation hearings or Robert Bork, Clarence Thomas and Brett Kavanaugh show how determined it is to achieve its political goals through judicial edict and not through the legislative process. In today’s political environment, the left sees the judiciary as its agent to push through an agenda that can’t be achieved through the people’s elected representatives.
This is what the Democrat court packing scheme is all about. With four new liberal justices on the Supreme Court, there will be nothing to stop the far-left Democrats from achieving everything their current progressive agenda seeks. With a unified majority in both houses of Congress, all that can stop them now is the judiciary’s exercise of judicial review.
Historically, the attempt to pack the Supreme Court by President Franklin Roosevelt failed miserably. Will history repeat itself? When President Biden served in the Senate, he denounced attempts to pack and control the Supreme Court. Sadly, he has failed to do so in the current situation.
The current clamor to pack the Supreme Court to achieve a far-left progressive agenda will become even more hysterical if, as expected by some, the court upholds the constitutionality of the Mississippi law that bans abortion after 15 weeks. Such a result will mean the demise of Roe v. Wade and will bring out the left in full force to demand that the makeup of the court be changed. Be prepared for the current intense political atmosphere regarding abortion to accelerate to a fever pitch when this happens.
Our essential system of constitutional checks and balances is in jeopardy due to Democrats' attempts to pack the high court. Let us pray that our United States Senate holds its ground and refuses to do so.
Thomas Glessner, J.D., is president and founder of the National Institute of Family and Life Advocates, or NIFLA, a pro-life nonprofit that made history and headlines in the Supreme Court case NIFLA v. Becerra.