The Washington PostDemocracy Dies in Darkness

Opinion Senate Democrats’ unprecedented threat against the Supreme Court

The Supreme Court building at dusk in May in Washington. (Patrick Semansky/AP)

In 2017, Senate Minority Leader Charles E. Schumer (D-N.Y.) accused President Trump of showing “a disdain for an independent judiciary that doesn’t always bend to his wishes” after Trump criticized a federal judge who ruled against his administration. Senate Democrats, by contrast, have launched an unprecedented attempt to actually bend the Supreme Court to their wishes — threatening to restructure the court if the justices do not rule as they see fit.

The threat came over the Supreme Court’s decision to hear a challenge to New York City’s restrictions on how gun owners who have residential permits can transport their guns. In a legal brief, Sens. Sheldon Whitehouse (D-R.I.), Mazie Hirono (D-Hawaii), Richard J. Durbin (D-Ill.), Richard Blumenthal (D-Conn.) and Kirsten Gillibrand (D-N.Y.) argued that the case against New York was moot because it had rescinded the gun regulations in question. Fair enough. It is perfectly fine for the senators to make legal arguments in a legal brief to the court.

What is not acceptable is openly threatening the court with political retribution if it does not rule a certain way. That is precisely what these Senate Democrats did. “The Supreme Court is not well,” they wrote. “And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured to reduce the influence of politics.’ ” As all 53 Senate Republicans wrote in a letter to the court last week, “the implication is as plain as day: Dismiss the case, or we’ll pack the Court.”

Talk about disdain for an independent judiciary! Democrats are not simply criticizing a ruling they disagree with; they are preemptively threatening the court before a case is even taken up. Can you imagine if Trump issued such a preemptive threat? Heads would explode. And in contrast to Trump’s impulsive Twitter rants, the Democrats issued their threat in a carefully crafted legal brief submitted to the court. They thought this through and decided that blackmailing the Supreme Court was a good idea.

Not only was their brief inappropriate; it also was brimming with cognitive dissonance. The Democrats accused the Supreme Court of being too political, but their plan to “reduce the influence of politics” on the court is to have senators order the justices how to decide or face political consequences? What utter hypocrisy.

Keep in mind that these are not backbenchers. Among the signatories to the brief is Durbin, the second-ranking Democratic leader in the Senate. He should know that the Supreme Court is an equal branch of government that does not answer to the Senate, much less its minority.

The Democrats justify their unprecedented intimidation tactics by pointing out that since 2005, the court has issued 78 5-to-4 or 5-to-3 opinions in which Republican appointees provided all five votes in the majority. “With bare partisan majorities,” they declared, “the Court has influenced sensitive areas like voting rights, partisan gerrymandering, dark money, union power, regulation of pollution, corporate liability, and access to federal court, particularly regarding civil rights and discrimination in the workplace. Every single time, the corporate and Republican political interests prevailed.”

Give me a break. In each of the cases to which they object, the liberal bloc voted in unison as well. Were they behaving as a “partisan” minority? Senate Democrats would have no problem with these 5-to-4 decisions if they had been decided by a liberal majority. Their complaint is not with the rise of “political influence” on the court, but rather with their lack of political influence on the court.

The judicial left has gone off the deep end because it is losing its battle for an activist liberal court. When Justice Antonin Scalia died in 2016, they saw a once-in-a-lifetime chance to shift the ideological direction of the court for a generation. By appointing two conservative justices, Trump has thwarted those dreams. And now they are worried, due to concerns over Justice Ruth Bader Ginsburg’s health, that Trump might get a third appointment. So, many Democrats are now openly talking about adding more justices if they gain power.

Those threats will backfire, because they dramatically raise the stakes in the 2020 election. In 2016, over a quarter of Trump voters said that the Supreme Court was the most important factor in their decision to support him. With Trump already having secured a conservative majority on the court, his ability to appoint justices was shaping up to be a less powerful argument this time around. But now that Democrats have threatened to pack the court with liberal judges if they win the White House and the Senate, the Supreme Court will once again be front and center. For the president, this is a massive stroke of luck.

Read more:

Jennifer Rubin: Why court-packing is a really bad idea

Jennifer Rubin: How to fix the Supreme Court without packing it

Paul Waldman: Why court-packing suddenly looks appealing to Democrats

Megan McArdle: Some things should never be resurrected. Court-packing is one of them.

Ilya Somin: The case against court-packing