As the Wall Street Journal Editorial Board recently warned, Democrats have put killing the filibuster on the ballot in the upcoming mid-term elections. The filibuster is a legislative tactic that, while imperfect, protects our nation from a pendulum of extreme partisan ideology. Should the filibuster go, then statehood for the District of Columbia and Puerto Rico, federalization of election laws, elimination of the Electoral College, and a host of other questionable ideas would be well within the realm of the possible.
But of all the draconian structural changes to our system of government that could be made should the Democrats succeed in eliminating the filibuster, one particularly troublesome and explicitly partisan idea stands out: increasing the number of Justices of the Supreme Court of the United States of America to ensure a Progressive majority for generations to come.
In a thoughtful new book entitled Saving Nine, U.S. Senator Mike Lee—the son of former Solicitor General Rex Lee and a former clerk to then-Judge (now Justice) Samuel Alito—provides a dispassionate and cohesive intellectual argument to push back against Progressives’ efforts to expand the Court.
Readers of Saving Nine cannot help but come away with the very distinct impression that Senator Lee cares very deeply both about the role of the Court under the Constitution and about the institution itself. Comprised (perhaps deliberately) of nine chapters, Senator Lee’s book can be roughly divided into three thematic parts.
In Part I, Senator Lee seeks to put the Supreme Court into proper context. Senator Lee begins his book with a didactic explanation not only about the intended role of the Court under our constitutional system of checks and balances, but also about how the institution operates as a practical matter on a day-to-day basis. Given the many misconceptions in these hyper-partisan times about both the appropriate role of the Court and how it functions, this discussion makes a valuable contribution to the current debate. Next, to lay the factual predicate of the theme of his book, Senator Lee sets out a brief history of the Court, including how we got to nine Justices.
Part II focuses on Progressives’ efforts to attack the legitimacy of the Court in the first half of the 20th century. Among other highlighted historical events, Senator Lee spends several well-researched chapters setting out how President Franklin Delano Roosevelt attempted to pack the Court to uphold his then-constitutionally questionable New Deal. While FDR’s efforts to pack the Court were eventually thwarted, the Court did not go through this political battery unscathed. As Senator Lee explains, there was immense political pressure placed upon the Court either to uphold the New Deal or to face expansion. We ultimately ended up in the former scenario with the infamous “switch in time that saved nine,” when conservative Justice Owen Roberts joined with his liberal colleagues to establish an exceptionally broad reading of the Commerce Clause. So although the Court’s tack to the left may have saved the institution from further expansion for the moment, the practical result was that the Court bestowed upon the federal government expansive new powers, providing the legal predicate for much of the modern administrative state we deal with today.
Which brings us to Part III, in which Senator Lee turns to modern-day efforts to pack the Court. While the dreams of Progressives to pack the Court may have lain dormant for the last few decades when the Court was generally sympathetic to their view of the law, Senator Lee notes that the door to further expansion was never definitively closed. As a result, after cases such as Bush v. Gore (which Progressives view as the Court permitting George W. Bush to steal the 2000 election from Al Gore) and Citizens United (which Progressives argue unleashed a torrent of conservative “dark money” on American democracy), calls for “Court packing” began to increase. Compounding the left’s angst, Senator Mitch McConnell’s gambit to delay Merrick Garland’s confirmation hearings until after the 2016 elections paid off (ironically citing the Senate’s unofficial “Biden Rule” of not voting on Supreme Court vacancies in an election year), resulting in the appointment of Justices Gorsuch, Kavanaugh, and Barrett by President Trump and producing—for the moment—a more conservative-leaning Court.
While efforts to pack the Court were gaining some steam after 2016, Senator Lee believes that the moment the idea of Court packing officially became mainstream came in the 2020 presidential debate between Donald Trump and Joe Biden, when then-candidate Biden refused to say definitively whether he would expand the Court. Senator Lee contends that by failing to denounce formally Court packing (a position which would have been consistent with Biden’s prior views), Biden sent a subtle but undeniably clear signal that he now tacitly condoned it. As a result, calling the Court “illegitimate” and campaigning on Court packing is now an entirely acceptable idea for many in the modern Democratic party.
Senator Lee concludes his book by asking an important rhetorical question: What is at stake if Progressive Democrats successfully pack the Court? His simple answer: Everything is at stake. As Senator Lee writes, current Democratic attempts to pack the Court are attacks on more than just our individual liberties and on more than just the Court as an institution. According to Senator Lee:
What they are really attacking is the structure of the Constitution itself, which sets up an enormously complex and balanced system of government. The judicial branch in particular has carved out a niche for itself over the years, building centuries of precedent to arrive at a perfectly balanced system for resolving disputes regarding what is and is not constitutional. It is a structure that has never been thoroughly replicated anywhere else in the world, and perhaps never will be. And when it comes to the American system of government, as Justice Antonin Scalia once put it, “structure is everything.”
The Supreme Court is not a static institution. By design, the ideological makeup of the Court ebbs and flows depending on who the American people elect to control the White House and the Senate. (Indeed, in the nearly 225-year history of our Republic, only four Presidents did not nominate anyone to the Court.) While Progressives were happy when the Court ruled their way, they are unhappy with the decisions of the current Court. Yet, rather than try to change the make-up of the Court incrementally through the ballot box as the Founders envisioned, Progressives now want to evade that process by radically moving the goalposts to ensure the Court always produces outcomes they prefer—at least while a packed Court leans their way, which it won’t forever.
Senator Lee has done the Nation a great service by writing a compelling book to defend the institution of the Court—an institution that protects our Nation’s liberties by guarding against the rapid decay into unbounded partisanship. Unfortunately, as the Progressive left believes its worldview outranks the Constitution, it seems unlikely that anyone on that side of the aisle will pay attention to this excellent work.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at email@example.com.