Kamala Harris Will Subvert the Courts

The United States Supreme Court. Credit: Marielam1, via Wikimedia Commons

“Rollercoaster” does not even begin to describe the last month in American politics. We witnessed President Joe Biden’s campaign go up in flames, an assassination attempt on former President Donald Trump’s life, and Kamala Harris’s rise to the top of the Democratic Party ticket along with Minnesota Governor Tim Walz – all on top of a host of other developments. Amid the commotion over these history-making events, you might have missed that Democrats are, yet again, floating another plan to pack the courts.

Court Packing is the Dems’ favorite perennial threat – a destructive, retaliatory policy idea they trot out every few years like toddlers who don’t get their way. It’s as simple as it sounds. Since the federal courts, and specifically the Supreme Court, don’t always give progressive Democrats everything they want, they want to add Judges and Justices until the Court does give them what they want. If this sounds unwise, dangerous, or even like downright cheating to you, it is! There is no valid defense of Court Packing that isn’t some dressed up and polite way of saying “we lost fair and square so we’re going to blow up the courts to get what we want.”

This is particularly galling given the Democrats’ approach to judicial activism in the first place. When they cannot win electoral control over the legislative or executive branches, Democrats turn towards the courts. It turns out that almost every single one of their ever-evolving slate of positions (on guns, the right to life, marriage, environmental issues, elections…) is encoded in the “spirit” of a document ratified in 1788. No matter if they lose elections – the courts are there to sort it out. And if, as increasingly happens, the courts stop legislating and let legislators legislate, then the Supreme Court must be corrected by an even higher power: the left’s will.

But it’s somehow even worse this time. In the past, far-left Democrats outright said they would pack the Court: that is, add enough Justices to rebalance the Supreme Court in their favor. Nine Democrats campaigned on packing the Court for the party’s nomination in 2020, including Pete Buttigieg, Cory Booker, Amy Klobuchar, Elizabeth Warren, and, of course, Kamala Harris. Surprisingly, Joe Biden had the common sense to resist this temptation and refused to commit to Court packing.

This time, however, Biden is leading the charge, and he’s going about it much more subversively. Instead of adding Justices, Biden has unveiled a plan for 18-year term limits, which would apply to all currently serving Justices. “Why 18 years?” you might ask. Ostensibly, to ensure a mix of stability and regular turnover. It’s just a coincidence, naturally, that there are currently three sitting Supreme Court Justices who have served longer than 18 years, all conservatives: Clarence Thomas, Samuel Alito, and John Roberts.

A policy which would force the retirement of three judicially conservative Justices and allow Biden, or now Harris, to choose their replacements is just Court Packing by another name. Harris has endorsed the 18-year term limit, meaning Biden’s proposals are now the Harris-Walz platform. Whereas Biden was too withered to seriously pursue much of anything, Harris has all the energy she needs to fully prosecute them. If Republicans somehow lose the House and the Senate this election, the courts will be the only thing standing in Harris’s way. Taming the courts will, of course, be the Left’s top priority.

It is for this reason that Justice Neil Gorsuch has started to speak up. In a recent interview with Fox News, Gorsuch saidof Biden’s plan, “be careful,” and added, “I’m not going to get into what is now a political issue during a presidential election year.” This advice only appears deceptively tepid. The judiciary is meant to be independent of politics, and Gorsuch is an exceedingly cautious man. “Be careful,” is about as stern a warning as a man in his position can give. It’s the judicial equivalent to saying, “this is an incredibly boneheaded idea.”

With the fully Democratic Party ticket now known, it is worth meditating on what a Supreme Court fully controlled by Kamala Harris and Tim Walz could do in such a scenario.

First up would be the re-establishment of a national right to abortion à la Roe v. Wade. Past Supreme Courts at least tried to restrain this right with a fetus viability framework that allowed states to regulate abortions of post-viability fetuses that did not pose serious risks to the life or health of the mother. This gave enough leeway for states to continue whittling away at abortion over time. A Kamala-controlled Court would be free to establish an almost-unlimited right to abortion, up to and including third-trimester fetuses.

Next would be the complete gutting of our Second Amendment right to own a firearm. Over the last 50 years, the courts have proven to be the biggest obstacle to Democrats getting their way on gun control. Successive case law has ensured that the right to own a firearm is as strong as it ever has been. A Kamala-controlled Court would be able to start striking down case precedent left and right. All it would take is a legal challenge from Harris’s home state of California to bring down the whole edifice of gun rights, a challenge which Governor Gavin Newsom would be more than happy to provide.

Beyond these two major reversals is a massive wishlist of Democrat policies the Harris-Walz ticket could foist on the American people. Everything from gender ideology in schools, to the destruction of religious rights and exceptions, speech restrictions, the right to work, and limits on federal agency power are on the table. The perception of judicial neutrality and restraint would be forever shattered, and with it, the rule of law for which the United States is known around the world. We’d be a country ruled by Judges, not laws.

Packing the Court would do more damage to our democracy than January 6th ever did. It would mean a full-scale evisceration and delegitimization of our whole constitutional order and an end to checks and balances. It’s a naked power grab that would invite political chaos and corruption for decades to come. When conservatives lost the courts, they crafted a new judicial philosophy based on restraint (“Originalism”), built a movement, founded institutions, wove networks, and finally returned to power after half a century of patient work. The Democrats lost control only six years ago – and already they’re plotting to blow the whole thing up. Make no mistake, Democrats are waging all-out war on our democracy.

All this will come to pass unless, of course, Republicans are willing to stand up to it. The good news is twofold. First, Court Packing is very unpopular electorally. Most Americans can smell the stench of foul play. Second, by reopening the judiciary as a contested issue, Democrats may be about to stumble into their biggest tactical blunder – one they’ve made before. When Justice Antonin Scalia unexpectedly passed away in the Spring of 2016 just before the Presidential election, Democrats had an opportunity to cement a liberal majority on the Supreme Court for a generation. They didn’t get it. Then-Senate Majority Leader Mitch McConnell refused to hold hearings on President Obama’s nominee Merrick Garland until after the Presidential election. Blocking Garland would have been a worthy endeavor in its own right, but by holding the seat open, McConnell presented the yet-unchosen Republican nominee a huge opportunity. That candidate, it turned out, would be Donald Trump.

Trump ran on that seat. It was his golden ticket. It was the missing piece needed to bring together the Trump electorate: frustrated and anguished working-class voters who felt left behind by the rhetoric of Obama and the Clintons, and sensible moderates who were worried by the prospect of a liberal supermajority on the Supreme Court. Voters weren’t about to let that seat fall into the hands of the Left, and they shouldn’t let three more face the same fate.

Trump has struggled to find his footing against Kamala Harris instead of Joe Biden. But Democrats have given him a tremendous opportunity. I suggest this, Mr. President: run on the courts. Argue just how disastrous Court Packing would be for the nation. Tell the country democracy is on the line. Throw the insult back in their faces. Say the Democrats didn’t get their way so they want to overthrow legitimately-appointed judges. Say they’re stealing seats. Say they’re going to commit an anti-American purge. Any progressive policy the public hates, say Harris wants to enact it unilaterally through the courts. Tell the public who you will appoint instead. In other words, do exactly what you did in 2016. It worked once. It can work again.