Democrats are considering eliminating the U.S. Senate filibuster to appoint a Supreme Court justice similar to Ketanji Brown Jackson, who has quickly gained a reputation as one of the most progressive members of the court. Jackson is also notably vocal; in fact, she spoke over 78,000 words during the 2023-2025 term, far more than her colleagues, Justices Gorsuch and Kagan, who each managed around 50,000.
Back in April 2021, President Biden expressed support for expanding the Supreme Court to 14 justices. Senator Ed Markey of Massachusetts has been one of many to advocate for this number. Adding five additional justices who align with the more liberal justices would create a solid majority, effectively allowing progressives to dominate the court. The fear is that this could lead to a shift away from constitutional principles, as those in power could dictate the court’s direction based on current political climates.
The Fifth and Fourteenth Amendments guarantee all Americans “due process of law.” But questions arise: can such promises hold when a left-leaning Congress and president seem set on undermining the Constitution?
Some believe that with a court packed with progressive activists, any established precedents would be disregarded. Time has shown that if Democrats consolidate their power, the makeup of the court could become more predictable, based on public sentiment reflected in elections. It’s worth recalling the role the Supreme Court vacancy played in the upset victory of then-candidate Trump in 2016, where many voters were motivated by fear about Clinton’s potential nominees.
Democrats note that the Constitution doesn’t specify the number of justices, and historically, Congress has frequently adjusted the count. The Judiciary Act of 1869 set the number at nine, a standard that has remained unchanged for over a century.
This 1869 change coincided with the Fourteenth Amendment, adding guarantees that mirror those in the Fifth Amendment. The connection suggests historical consensus on the matter. Proposed changes today, however, lack firm grounding in American history and could undermine the notion of due process.
Indeed, altering the composition of the court represents a significant threat to the rule of law. Such actions could also set a precedent for future political turmoil, where both Congress and the presidency might manipulate structures for gain. We’ve seen similar tactics employed from both sides of the aisle. For instance, in 2013, then-Senate Majority Leader Harry Reid invoked the “nuclear option,” changing filibuster rules to confirm a judge despite Republican objections. When the majority flipped to Republican, Mitch McConnell utilized that precedent to confirm three justices nominated by Trump.
Efforts to pack the court with a simple majority or supermajority would be disastrous, evoking comparisons to the political strife seen in the final days of the Roman Republic. At that time, traditional values eroded, leading to civil strife and ultimately dictatorships. In this vein, a republic that operates under the rule of law is increasingly viewed as an exception, not the norm.
There are compelling arguments suggesting that court-packing undermines the guarantees offered by the Fifth and Fourteenth Amendments, yet hurdles remain for anyone wishing to challenge such actions in court, as standing is often a significant barrier for litigants.
With the prospect of a court-packing bill potentially signed into law, immediate objections may not surface, but the implications could be profound. Who could then question whether the actions leading to an expanded court were legitimate?
Legal scholars like Randy Barnett and Josh Holmes have built comprehensive resources in constitutional law that could be rapidly upended under a 14-member court, which might swiftly base rulings on past precedents.
There’s speculation that perhaps one of the current justices might take up the challenge, but they might hesitate, given how their influence could be diluted in a larger court.
As discussions around the future of the Supreme Court intensify, it’s crucial for advocates of the rule of law to explore ways to safeguard due process in the coming years, especially should a Democratic president and Congress pursue their campaign promises regarding the filibuster and court composition.
Additionally, the Senate Republican caucus must defend the legislative filibuster fiercely. This mechanism acts as a critical barrier for those seeking to disrupt the court system, serving as a warning against potential overreach.
Republicans, often viewed as defenders of the Constitution, need to step forward now to uphold the traditional nine-member court and maintain the integrity of the filibuster. If they succeed in preserving the filibuster, they could potentially avoid the need to engage in litigation over a packed court scenario entirely.
