Ed Markey’s reckless support for court packing

FDR’s attempt was blocked, this one should be, too

SINCE THE SAD PASSING of Justice Ruth Bader Ginsburg, headlines have been dominated by Judge Amy Coney Barrett and her nomination to the Supreme Court. I have said publicly that I firmly believe that President Trump is well within his constitutional authority to nominate Judge Barrett because, as Justice Ginsburg herself stated in interviews, the president serves not for three years, but for four.

Continuity of our government is essential to the efficacy of our justice system, and the Senate should hold hearings as soon as practicable. Unfortunately, the process has caused some on the extreme left to call for—without irony or shame—the packing of the Supreme Court should Joe Biden emerge victorious and the Senate shift its power to the Democrats come November. This dangerous idea necessitates a review of the history of the last effort to pack the Supreme Court.

As he prepared for his second term in the White House, the most revered Democrat of the 20th Century, Franklin Delano Roosevelt, proposed increasing the number of justices serving on our nation’s highest court. A critical part of his argument, as presented to the Congress in 1937, was centered on ageism in a way that today would be an insult to Justice Ginsburg and others, calling into question the “mental or physical vigor” of members of the Court.

This argument was particularly dubious because the well-known intent of FDR’s court-packing plan was to wrest power from the Republican Party, which he felt had “complete control” over the court. For Roosevelt, the stakes were high: Both his Social Security Act and the National Labor Relations Act were on the docket and he wanted his agenda rubber-stamped. So, in order to guarantee favorable decisions from the court, he planned to simply appoint more justices who were loyal to him.

Fortunately for our country, the Senate Judiciary Committee at the time saw right through Roosevelt’s power play. The Democratic chair of the Committee, Henry F. Ashworth, said court packing is “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

History has agreed with Ashworth. FDR’s court-packing efforts represented a stain on his long presidency. It was a scandal that resonated with the American people because it was a measure geared towards an all-powerful executive branch that could control the separate but equal branch of government created by our founders in Article III of our Constitution—the Supreme Court.

The repercussions of court packing would have been felt for generations. Imagine just one scenario: with each change of party control could come an increase in its size. This would plainly undermine the stability of, and confidence in, the high court.

Thankfully, recent polls show that only 27 percent of Americans favor court packing. That’s because citizens understand that packing the Supreme Court isn’t about the separation of powers, but the accumulation of power.

It is a concept so foreign to the Constitution and the American way of governance that Joe Biden has refused to answer questions about whether he supports such a transparent manipulation of the court. At his town hall Thursday night, he said he would offer a more concrete answer before the election.

Unfortunately for the people of Massachusetts, Ed Markey has no such compunction.

“Democrats must move to end the filibuster and expand the court in the next Congress,” he demanded and tweeted, voicing yet another ill-conceived position bent on currying favor with only the fringe elements of his party. Nearly a half-century inside the Beltway and away from Massachusetts has left him completely out of touch with everyday Americans.

Meet the Author

Kevin O'Connor

Republican candidate, US Senate
Markey’s statement is reckless and extreme, even according to Biden’s campaign team. One exasperated advisor complained about Markey to The Washington Post, saying, “People in your own party shouldn’t cause you problems 44 days out.”

Markey’s public proclamations throughout this campaign have been troubling and lack the common sense of the people he represents. No idea is too extreme, too destabilizing, or too transparently partisan for him to support, as long as it means that the power rests with him and his party instead of where the Constitution of the United States so firmly placed it—with the people of this country.

Kevin O’Connor is the Republican candidate for US Senate running against incumbent Democrat Ed Markey.