A REPORT BY THE JUSTICE FOUNDATION

Judicial Coup: Democrats’ Dangerous Scheme to Overthrow United States Supreme Court President Joe Biden and Congressional Democrats Threaten Independent Judiciary with Dangerous Court-Packing Scheme

Democrats’ court-packing scheme contradicts dire warnings from President Joe Biden and Senate Democrats, dishonoring the legacy of Dishonors Justice Ruth late Justice Ruth Bader Ginsburg, who was Bader Ginsburg’s Legacy opposed to such a “partisan” “bad idea”.

Democrats’ partisan takeover of the independent judiciary undermines the fair Partisan Political Takeover administration of justice and impartial of Independent Courts interpretation of laws.

By adding more Supreme Court Justices,

Democrats will destabilize an essential U.S. institution and set the precedent for an Destabilizing Assault on endless expansion of the Court every time Essential U.S. Institution Congress changes parties.

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

BACKGROUND

As its title implies, the Supreme Court of the United States serves as “the United States' highest tribunal” (Glover, 2017). Article III, Section 1 of the U.S. Constitution states, “The judicial power of the United States, shall be vested in one Supreme Court…” (Constitution). Vested with this ultimate judicial power of the United States, the Court “sits as the final arbiter on fundamental American legal matters” (Agence France Presse, 2020) and “functions as guardian and interpreter of the Constitution” (Supreme Court of the United States, 2021). Separation of Powers: Co-Equal and Separate Branch of Government Under the doctrine of the separation of powers, the Founding Fathers established the Supreme Court as a co-equal and separate branch of the United States government (Ervin, 1970). Indeed, some contend that when it comes to “the field of ‘constitutional review’ the Supreme Court is more equal than its ‘coequal’ branches of government” (Strong, 1974). Supreme Court Set by Statute at 9 Members Since 1869 Although the U.S. Constitution does not establish the size nor delineate the structure of the federal court system, the Supreme Court’s size has been fixed at nine members by federal statute since 1869 (Mekouar, 2020). Federal law establishes: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum” (28 U.S. Code § 1). White House: Supreme Court Has Life Tenure, Insulated from Political Pressure President Joe Biden acknowledges the legality of life tenure and insulating judges from partisan political influence. In its explanation of the Supreme Court, the White House website states: “All Justices are nominated by the President, confirmed by the Senate, and hold their offices under life tenure. Since Justices do not have to run or campaign for re-election, they are thought to be insulated from political pressure when deciding cases” (The White House, 2021).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION Supreme Court Expansion: America’s Founding to Civil War Reconstruction Although it is true that the size of the Supreme Court has changed roughly a half-dozen times throughout history, these changes were deemed necessary because of technological limitations of the era. Supreme Court Justices were added to alleviate workload pressures from circuit-riding. Consequently, legal scholars appropriately describe the Court’s three expansion from 1807 to 1863 as a result of “the staffing system of circuit courts” (Braver, 2019). Historians have observed that “the circuit-riding justification created a set of norms regulating when and how the size of the Supreme Court could be changed, limiting the opportunities for partisan machinations” (Braver, 2019). The last change occurred during Civil War Reconstruction after the election of President Ulysses S. Grant in 1868 (Millhiser, Let’s Think About Court-Packing, Winter 2019). : Supreme Court Created The Judiciary Act of 1789 passed by the first Congress and signed into law by President George Washington established the first Supreme Court (Bomboy, 2021). The Act created a Supreme Court consisting of six members (5 Justices and the Chief Justice) as well as established the lower federal court system” (About the Supreme Court, 2021). Judiciary Act of 1801: Reduction Never Took Effect A little more than a decade later, the first change to the Supreme Court was passed in 1801 (Jenkinson, 2021). The Judiciary Act of 1801 reduced the size of the Supreme Court from 6 members to 5. Historians have noted that “this change did have a neutral explanation; the Judiciary Act of 1801 ended circuit riding by Supreme Court Justices, so the Court arguably could get by with a smaller staff” (Grove, 2018). However, in practical terms, this reduction in the Court never occurred because the legislation only took effect upon the next vacancy, which never materialized. : Restoration to 6-Member Court Just one year following the reduction of the Court, Congress approved and President Thomas Jefferson signed the Judiciary Act of 1802, which restored the sixth seat to the Supreme Court.

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION Supreme Court Expansion: Practical Necessities Due to “Circuit Riding” The expansion of the Supreme Court occurring from 1807 to 1863 was driven by practical necessities rather than political machinations. In his seminal work on court-packing, Dr. Joshua Braver, an assistant professor at the University of Wisconsin Law School and former Climenko Fellow at Harvard Law School, connects the expansion of the Court with the rapid Westward expansion of America (Matthews, 2020).

Dr. Braver points out: “Rather than a separate tier of circuit court judges, the intermediate appellate courts would be staffed by district and Supreme Court judges sitting together to hear a case. The Supreme Court Justices “rode circuit” in their designated states… Hence, because of this one-to-one correspondence between Circuits and Supreme Court Justices, for every new circuit, there would be a new Supreme Court seat.” (Braver, 2019). Seventh Circuit Act of 1807 To accommodate the addition of the states of Kentucky, Tennessee, and Ohio, President Thomas Jefferson signed into law the Seventh Circuit Act of 1807. The Act created a new judicial circuit and correspondingly increased the size of the Supreme Court to 7 members. (Matthews, 2020) Jefferson nominated Thomas Todd to fill the new Associate Justice position on February 28th. Just two days later, the non-controversial appointment was confirmed by the United States Senate on March 2, 1807, without any opposition (Todd, Thomas, 2006).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION Eighth and Ninth Circuits Act of 1837 Dr. Braver documents the problems in the justice system with the addition of new states: “Between 1807 and 1837, the Union admitted nine new states, but did not incorporate them into the circuit court system. These states were the very ones most in need of swift and efficient court administration. Because the existence of the states was the result of multiple agreements between foreign governments, the United States, and neighboring states, disputes over titles to land crowded their especially large dockets” (Braver, 2019). To address these serious judicial burdens, Congress approved the Eighth and Ninth Circuits Act of 1837, which divided the country into nine circuits and correspondingly a nine-member Supreme Court (Bonforte, 2012). In March 1837, President Andrew Jackson’s nominees, of Tennessee and William Smith of South Carolina, were confirmed (Swindler, 1970). However, Smith never served on the Court, declining the nomination out of desire to remain in active politics, which would be a conflict. He said in declining the position, that an active political jurist “…place him in a delicate situation, and in the public estimation cast a blot upon the sacred ermine” (Swindler, 1970). In September 1837, John McKinley was confirmed by acclamation (Stone, 2010) Tenth Circuit Act of 1863 The Tenth Circuit Act of 1863 created an additional circuit for the new states of California and Oregon and with it, increased the Supreme Court (Matthews, 2020). Democrats have cited this example as validation of court-packing. However, Democrats are intentionally misrepresenting historical facts. Dr. Braver notes that the 1863 Supreme Court expansion “is the last example of the circuit-riding system at work” (Braver, 2019). Additionally, Republican President Abraham Lincoln exercised restraint, choosing to forgo a greater Court expansion at a time when the Court was hostile to his agenda. Braver writes: Lincoln and the Republican Congress were hostile to the Supreme Court. Yet, they staved off the radicals’ push to use the extensive addition of new states as a pretext to add many new seats to the Court. Given the addition of many new states, especially the far-western ones of California and Oregon, the addition of one Justice was the bare minimum needed to shore up the circuit-riding system, and the extraordinary choice of a Democrat to fill the new tenth seat protected the appointment from charges of partisanship” (Braver, 2019).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION 10-Member Court: Aberration in History The 10-member Supreme Court lasted for approximately two years in American history:

• March 10, 1863, to October 12, 1864 • December 6, 1864, to May 30, 1865 Judicial Circuits Act of 1866 With the passage of the Judicial Circuits Act of 1866, the Supreme Court was reduced to 7 Justices. As with all other reductions, the reduced number was scheduled to take effect only as vacancies became available (Federal Judicial Center, 2021). : Current Supreme Court Structure The current Supreme Court structure remains with the passage of the Judiciary Act of 1869, which fixed the Court at its current nine members. The following spring, Joseph P. Bradley was confirmed to the new seat (Fairman, 1941). Judicial Procedures Reform Bill of 1937: FDR’s Failed Court-Packing Plan The most infamous and egregious attempt to pack the Supreme Court occurred in 1937 with President Franklin D. Roosevelt’s unsuccessful expansion proposal. After the Court invalidated FDR’s unconstitutional expansion of federal power, he responded by proposing an expansion of the Supreme Court for every justice over the age of 70 (National Constitution Center, 2021). At first, Roosevelt claimed the expansion was needed to clear backlogged dockets (Brockell, 2019). The deception quickly ended as Roosevelt acknowledged “the real purpose was to alter the future course of the Court’s decisions” (Grove, 2018). FDR’s spin: “[W]e must take action to save the Constitution from the Court and the Court from itself.” (Franklin D. Roosevelt). FDR Scheme Overwhelmingly Defeated by Fellow Democrats Throughout the country, concerned citizens urged members of Congress to oppose FDR’s plan (Osnos, 2021). Despite Democrats holding overwhelming majorities in both houses of Congress, Roosevelt’s scheme was overwhelmingly defeated in “one of worst moments of his presidency” (Brockell, 2019). The Senate killed Roosevelt’s plan by a 70–20 vote (Jipping, 2021). Historians universally consider it “a humiliating political defeat” (Parrish, 1984). Nevertheless, they also concede that Roosevelt’s gambit “succeeded in intimidating the Supreme Court”. The Court seemingly reversed its position in West Coast Hotel Company v. Parrish, newspapers dubbed it the “switch in time that saved nine” (McCarthy, 2021).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION COURT-PACKING SCHEMES

Court-Packing: Manipulating Number of Seats to Alter Ideological Balance “Once considered taboo” (Frost, 2020), court-packing has been defined as “manipulating the number of Supreme Court seats primarily in order to alter the ideological balance of the Supreme Court” (Braver, 2019), or “alter the future course of its decisions” (Grove, 2018). Scholars have pointed out that ideologically motivated court-packing “is nearly novel in American history” and “would pose unprecedented dangers if enacted today” (Braver, 2019). Even leftist law professors that support court-packing concede, “Indeed, many court-curbing measures — including court packing and disobeying court orders — have been off the table since the mid-twentieth century” (Grove, The Supreme Court’s Legitimacy Dilemma, 2019). Court-Packing Violates Judicial Independence Since Roosevelt’s historic defeat, court-packing has been considered “especially out of bounds” because it violates the core “convention of judicial independence” (Pozen, 2014). Under Democrat-control, the Senate Judiciary Committee stated of Roosevelt’s court-packing plan: “The bill is an invasion of judicial power such as has never before been attempted in this country… It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government. It 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.” (National Constitution Center, 2021)

No Precedent for Court- Packing The bottom-line conclusion: “There is no modern precedent for court- packing—that is, for increasing the Supreme Court’s size in order to shape its decisions” (Millhiser, Let’s Think About Court-Packing, Winter 2019).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

POLITICAL TAKEOVER: DEMOCRATS’ COUP OF JUDICIARY

Democrats’ partisan takeover of the independent judiciary undermines the fair administration of justice and impartial interpretation of laws. Biden’s Smokescreen: Commission to Study Supreme Court In April 2021, President Joe Biden established a 36-member commission (The White House, 2021) to study “the role and operation of the Supreme Court,” including its membership and size (Cillizza, 2021). The panel includes legal experts, professors, retired federal judges and former law clerks, (Hagen, 2021) with “progressives holding a 3:1 ratio to conservatives” (Robinson, 2021). Biden Commission Stacked with Progressives Political observers warn that the commission is “a thinly veiled political campaign” charged with supporting court-packing (Martin, 2021). Instead of an independent and balanced commission, Biden “stacked the panel with progressives” (McCarthy, 2021). The commission is chaired by two former Obama administration staffers: Bob Bauer, the former White House counsel for Obama, and Cristina Rodriguez, a former deputy assistant attorney general in Obama’s Office of Legal Counsel (Singh, 2021). Biden Commission Tainted from Day 1 John G. Malcolm, vice president of the Institute for Constitutional Government and former deputy assistant attorney general in the Department of Justice’s Criminal Division, cautions that the Biden commission has already begun the process of undermining the independent judiciary. He states: “The courts should remain unaffected by the ever-changing winds of national politics, and should be solely focused on upholding the Constitution and the rule of law. The mere formation of this commission and the scope of its mandate run the serious risk of misleading the American public about the impartiality and independence of our judicial system” (Malcolm, 2021). Biden Commission Includes Biased Commissioners Who Favor Court-Packing As further evidence that the Biden Commission is a smokescreen for its real court-packing agenda, commission members have already stated their public support for packing the court (Malcolm, 2021). Commissioner Tara Leigh Grove, a professor at the University of Alabama School of Law, (The White House, 2021) has written: “…court packing was both constitutionally acceptable and a desirable method of reforming the Supreme Court” (Grove, The Origins (and Fragility) of Judicial Independence, 2018)

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION Democrats’ Extremist Plan: Packing Supreme Court with 4 New Members Only days after the Biden Commission was announced, Congressional Democrats proposed a political takeover of the Supreme Court with legislation to pack the Supreme Court with 4 new members (Calamur, 2021). Much like Roosevelt’s failed court-packing of the 1930s, the Judiciary Act of 2021, co-sponsored by Rep. Jerrold Nadler, chair of the House Judiciary Committee; Rep. Hank Johnson of Georgia; Rep. Mondaire Jones of New York; and Senator Ed Markey of Massachusetts, was framed as historically connected to the circuit court system. Rep. Nadler claimed: “Nine justices may have made sense in the 19th century, when there were only nine circuits… But the logic behind having only nine justices is much weaker today, when there are 13 circuits” (Hulse, 2021). “Most Radical Form of Retaliation” Thomas Jipping, Senior Legal Fellow, Center for Legal and Judicial Studies and a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies, considers the Judiciary Act of 2021 to be “the most radical change to the Supreme Court as an institution in American history” (Jipping, 2021). That view is supported by scholars who have described court-packing generally as “the most radical form of retaliation” (Braver, 2019). Democrat Lawmakers: Bill Intended to Threaten Court, Affect Decisions In defending his court-packing scheme, Senator Ed Markey of Massachusetts explicitly stated that it is because “Republican appointees represent a 6-3 supermajority” (Jipping, 2021). Rep. Johnson blatantly admitted that the bill itself was intended to affect the outcome of judicial opinions and produce decision in line with far-left causes: “The court needs to know that the people are watching” (Ruger, 2021). Nadler: Other Democrats Will Fall in Line Ominously, Rep. Nadler predicts that other Democrats opposed to court-packing will soon fall in line behind the radical legislation, stating: “I believe that as events unfold, as the court comes down with decisions destructive to a woman’s right to choose, as they come down with decisions destructive to the climate, as they come down with decisions destructive of civil liberties, I believe that the speaker and others will come along” (Ruger, 2021).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

DESTABILIZING ASSAULT ON ESSENTIAL U.S. INSTITUTION

By adding more Supreme Court Justices, Democrats will destabilize an essential U.S. institution and set the precedent for an endless expansion of the Court every time Congress changes parties. There is a reason why the Democrat-controlled U.S. Senate Judiciary Committee called for FDR’s court-packing to “be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America” (Leuchtenburg, 2005). Court-Packing: Downward Spiral of Packing Until “Its Legitimacy Pops” Legal scholars have warned that court-packing schemes, such as those currently proposed by Democrats, would undermine the Court’s standing as a legitimate institution. “Court-packing’s distinct danger is that it will lead to a tit-for-tat downward spiral of packing, ballooning the Court’s size so large that its legitimacy pops” (Braver, 2019). Put another way, the escalation continues until the Court “becomes so large that it breaks” (Braver, 2019). Court-Packing Leads to “Social Issues Super Legislature” Should Democrats expand the Court now to 13 members, it could result in further expansion when Republicans regain power to an even larger Court of 21 members, a number that would regain GOP control. Such an action “would formalize the court's transformation into a social issues super legislature… deepening the confusion of the legislative and judicial functions as both parties jockey for position on an unelected body that makes major decisions about how we are governed” (Antle, 2021). New Republic: “Nothing to Stop GOP from Expanding The Court Again” Even leftist commentators have admitted that Republicans could pack the Court when returning to power. Writing in the far-left New Republic, Matt Ford cautions “there’d be nothing to stop Republicans from expanding the court again and putting everyone right back at square one” (Ford, 2021). Think Progress: “Strongest & Most Dangerous Weapon” Against Judiciary Ian Millhiser, the Justice Editor at the far left ThinkProgress, argues that “court-packing is the strongest and most dangerous weapon that Congress can employ against a rogue judiciary” (Millhiser, 2019). The end result could involve troops deployed to enforce its decisions and the possibility of civil unrest (Millhiser, Let’s Think About Court-Packing, Winter 2019).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION Leftists Activist Group Demand Justice Campaigning for Court Packing Although Democrat politicians have publicly stated their opposition to court-packing, far left extremist groups have made clear that they will press these politicians to change their position. When then-candidate Joe Biden opposed court-packing, Brian Fallon, executive director of the progressive group Demand Justice, responded: “Biden's comments reflect an anachronistic approach to the Supreme Court that simply won't do in 2020" (Jagoda, 2019). Leftist activists at Demand Justice have been further emboldened since November 2020. “Just as filibuster reform was not a mainstream position within the Democratic caucus even a year ago, adding seats to the Supreme Court to preserve our democracy is an idea that has a growing grassroots constituency,” Chris Kang, chief counsel of the liberal group Demand Justice, has stated. “We are organizing a movement that will continue to push this idea until we have the support we need” (Levine, 2021). As the Wall Street Journal put it, liberals are engaging in a threat to the Supreme Court itself: “Congress will remake the Court if you issue rulings that offend progressives” (Editorial Board, 2021). Court-Packing: “Institutional Integrity Problem” Nicole Huberfeld, professor of law at Boston University, cautions that court-packing would “affect the institutional integrity” for the nation’s most important judicial institution. Huberfeld points out that the Court’s authority “comes from respecting the decisions of the justices… If people stop thinking that's the law of the land, then the court has an institutional integrity problem” (Mekouar, 2020). Cato Institute: Bad for Law Itself Walter Olson, Senior Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute warns that such a large organization would make it difficult for “deliberations to work more smoothly. Whatever you think of the politics, packing the Supreme Court would be bad for the law itself — bad for the efficiency and quality of the court’s work, bad for its credibility and public legitimacy” (Olson, 2020).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

Fundamental Violation of Impartial U.S. Justice System

Founding Principles: Government of Laws, and Not Men Court-packing runs contrary to the basic tenets of a free and impartial justice system. Courts are established to be fair adjudicators that provide equal protection under the law. Courts acting without political influence is a bedrock principle of governance. In the landmark Marbury v. Madison case, the Supreme Court succinctly explained, “The government of the United States has been emphatically termed a government of laws, and not of men” (Marbury v. Madison, 1803). U.S. Courts Should Be Free from Passions of Politics As the highest and therefore last stop in the U.S. judicial system, the Supreme Court was envisioned as a body insulated from political whims. “The Founding Fathers intentionally tried to insulate the court from the passions of politics, and they largely succeeded” (Glover, 2017). In fact, the Supreme Court’s independence from political opinions is considered vital to the successful operation of America’s governmental system. “America's framing generation knew well that judges' independence from politics was essential for our system of government, based on a written Constitution, to work.” (Slattery, 2021). Senator Joe Manchin: Founders Foresaw “Temptation of Absolute Power” “Our founders were wise to see the temptation of absolute power and built in specific checks and balances to force compromise that serves to preserve our fragile democracy,” explains Senator Joe Manchin, D-West Virginia. “Do we really want to live in an America where one party can dictate and demand everything and anything it wants, whenever it wants?” (Manchin, 2021) Opposed by American Public Leftist calling for court-packing are far out of step with the American public. Roughly one in four Americans say that “Congress should pass a law allowing more than nine justices to serve on the Supreme Court, compared with 46% of voters who say it should allow only nine justices to serve,” according to an April 2021 survey by Morning Consult (Easley, 2021).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

BIDEN’S RECORD OPPOSING COURT-PACKING

Biden: FDR’s “Bonehead Idea… Terrible, Terrible Mistake…” In 1983, as a second-term senator, Joe Biden called former President Franklin D. Roosevelt’s court-packing proposal a “bonehead idea” (Holzberg, 2021). "President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the court… But it was a bonehead idea… It was a terrible, terrible mistake to make. And it put in question, for an entire decade, the independence of the most significant body—including the Congress included in my view—in this country, the Supreme Court of the United States of America” (Roche, 2021). Joe Biden’s Long History of Opposing Court-Packing As a United States Senator, Vice President and presidential candidate, Joe Biden has repeatedly denounced court-packing:

• “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” he said in 2019 (Jagoda, 2019).

• “The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want” (Gersen, 2020).

• "I've already spoken: I'm not a fan of court packing, but I don't want to get off on that whole issue" (Sprunt, 2020).

• “I would not get into court packing. We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all” (Sprunt, 2020).

• “In this environment, Roosevelt — I remember this old adage about power corrupts and absolute power corrupts absolutely — corrupted by power, in my view, unveiled his court-packing plan … It took an act of courage on the part of his own party institutionally to stand up against this power grab. (Grabien, 2020)

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

LIBERAL JUSTICES OPPOSE COURT-PACKING

RGB: Liberal Justice Ruth Bader Ginsburg Opposed Supreme Court-Packing Justice Ruth Bader Ginsburg has been heralded by leftists and the Democrat Party as an icon of Supreme Court activism. These same activists ignore her strong opposition to expanding the U.S. Supreme Court. The late Justice Ginsburg’s wishes are unambiguous: “Nine seems to be a good number. It's been that way for a long time… I think it was a bad idea when President Franklin Roosevelt tried to pack the court." (Totenberg, 2019) "If anything would make the court look partisan, it would be that -- one side saying, 'When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to” (Slattery, 2021).

“Nine seems to be a good number… it was a bad idea when President Franklin Roosevelt tried to pack the court.”

Associate Justice Ruth Bader Ginsburg

Current Justice Vocal Opponent of Court-Packing Justice Stephen Breyer, the Court's most liberal member, has similarly expressed opposition to any “alteration” to the nation’s highest court (Ruger, 2021). “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust," (Fritze, 2021). "It is wrong to think of the Court as another political institution… And it is doubly wrong to think of its members as junior league politicians" (Dwyer, 2021). "What I’m trying to do is to make those whose instincts may favor important structural change or other similar institutional changes such as forms of court-packing to think long and hard before they embody those changes in law” (Blitzer, 2021).

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

SENATE DEMOCRAT OPPOSITION TO COURT-PACKING

Senator Dick Durbin, Senate Judiciary Committee Chair “Seventy-five years ago, we went through this … and I think the Congress was correct in stopping this…” (Lifhits, 2018).

Senator Patrick Leahy, Senate President Pro Tempore “The Judiciary Committee once stood against a court-packing scheme that would have eroded judicial independence. That was a proud moment” (Olson T. , 2021).

Senator Michael Bennet “I don’t think the American public is interested in having the Supreme Court expanded” (Levine, 2021).

Senator Mark Kelly “…the more responsible thing to do is to keep it at nine justices” (Levine, 2021).

Senator Catherine Cortez Masto: “(against) adding seats that politicize the court” (Levine, 2021).

Senator Jon Ossoff “We shouldn’t expand the Supreme Court just because a justice may be confirmed with whom we disagree on policy” (Shaw, 2020).

Senator Joe Manchin “With packing the courts, I’m not voting for that” (Stracqualursi, 2020).

Senator Cory Booker “We have a long tradition of nine jurists, and we should be very sober before we start tinkering with things like that” (Lifhits, 2018).

Sen. Richard Blumenthal “Expanding the Supreme Court has to be viewed with great caution” (Levine, 2021)

Senator Dianne Feinstein The current number of judges on the Supreme Court is “appropriate.” (Carney, 2019)

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

FACT CHECK: COURTS EVENLY SPLIT BETWEEN PARTIES

Are U.S. Courts Dominated by Trump-Appointed Judges?

Fact: Barak Obama has appointed more federal judges than any other President.

Liberal activists have attempted to reframe the public narrative by claiming that the Supreme Court and federal courts are illegitimately dominated by Republican nominees. Senator Edward J. Markey, Democrat of Massachusetts, who has sponsored legislation to pack the Supreme Court, stated that it was driven by his political agenda: “Republicans stole the court’s majority, with Justice ’s confirmation completing their crime spree” (Hulse, 2021). Democrats and the liberal media establishment have advanced falsely claims that court- packing will bring political balance to the judiciary and counteract the unfair influence of President Donald J. Trump’s appointments, such as the New York Times framing, “Progressives are pushing President Biden to add seats to balance the court’s conservative majority” (Shear & Hulse, 2021). The narrative, “Republicans stole the court’s majority,” is an attempt to deflect from the near perfect split in the U.S. federal courts between Republican and Democrat appointed judges. According to the Pew Research Center analysis, as of January 2021, judges are split 51% Republican-appointed to 49% Democrat-appointed for the “816 active judges serving across the three main tiers of the federal court system: the Supreme Court, 13 regional appeals courts and 91 district courts” (Gramlich, 2021). In fact, President Barack Obama has “appointed the largest share of currently active federal judges at 38%” (Gramlich, 2021).

President Active Judges Judicial Share Barack Obama 311 38.1%

Donald Trump 226 27.7%

George W. Bush 162 19.9%

Bill Clinton* 87* 10.7%*

Ronald Reagan 16 2.0%

George H.W. Bush 13 1.6%

Jimmy Carter 1 0.1%

*Note: Roger Gregory recess appointment attributed to Bill Clinton.

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION References

28 U.S. Code § 1. (n.d.). Number of justices; quorum. (June 25, 1948, ch. 646, 62 Stat. 869.). About the Supreme Court. (2021, May 30). Retrieved from United States Courts: https://www.uscourts.gov/about-federal-courts/educational-resources/about- educational-outreach/activity-resources/about Agence France Presse. (2020, September 19). Supreme Court: Final Arbiter Of Justice In The United States. Agence France Presse. Antle, W. J. (2021, April 4). Supreme Court packing via a Democratic bill will politicize the system even more. NBC News. Blitzer, R. (2021, April 15). Ruth Bader Ginsburg opposed court-packing, said 'nine seems to be a good number'. Fox News. Bomboy, S. (2021, March 20). Packing the Supreme Court explained. National Constitution Center. Bonforte, P. S. (2012). Pushing Boundaries: The Role Of Politics In Districting The Federal Circuit System. Seton Hall Circuit Review, Vol. 6 : Iss. 1 , Article 2. Braver, J. (2019). Court-Packing: An American Tradition? Boston College Law Review. Brockell, G. (2019, March 12). Dear Democrats: FDR’s court-packing scheme was a ‘humiliating’ defeat. Washington Post. Calamur, K. a. (2021, April 15). Democrats Unveil Long-Shot Plan To Expand Size Of Supreme Court From 9 To 13. NPR News. Carney, J. a. (2019, March 19). Court-packing becomes new litmus test on left. The Hill. Cillizza, C. (2021, April 15). Don't be fooled: The Supreme Court isn't expanding anytime soon. CNN News. Constitution, U. (n.d.). Article III. Section 1. Dwyer, D. (2021, April 7). Justice Stephen Breyer warns against 'packing' Supreme Court. ABC News. Easley, C. (2021, April 21). Proposed Supreme Court Expansion Remains Unpopular. Morning Consult. Editorial Board. (2021, April 16). If Democrats Pack the Court. Wall Street Journal.

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION Ervin, S. J. (1970). Separation of Powers: Judicial Independence. Law and Contemporary Problems, 108-127. Fairman, C. (1941). Mr. Justice Bradley's Appointment to the Supreme Court and the Legal Tender Cases. Harvard Law Review, 977-1034. Federal Judicial Center. (2021, June 10). Landmark Legislation: Circuit Reorganization. Retrieved from Federal Judicial Center: https://www.fjc.gov/history/legislation/ Ford, M. (2021, April 15). The Democrats’ Court-Packing Plan Doesn’t Make Any Sense. The New Republic. Franklin D. Roosevelt, P. (n.d.). Fireside Chat (Mar. 9, 1937). http://www.presidency.ucsb.edu/ws/?pid=15381. Fritze, J. (2021, April 7). 'Think long and hard': Supreme Court Justice Stephen Breyer pushes back on 'court-packing'. USA Today. Frost, A. (2020, December 22). Academic highlight: The past, present and future of court packing. SCOTUS Blog. Gersen, J. S. (2020, October 28). What the Democrats Achieve By Threatening to Pack the Supreme Court. The New Yorker. Glover, D. (2017, February 6). Roosevelt's Court-Packing Fiasco. Real Clear History. Grabien. (2020). Joe Biden in 2005: ‘The Senate Stood Firm in 1937 in Court-Packing Attempt’. Grabien. Gramlich, J. (2021, January 13). How Trump compares with other recent presidents in appointing federal judges. Pew Research Center. Grove, T. L. (2018). The Origins (and Fragility) of Judicial Independence. Vanderbilt Law Review, 465-545. Grove, T. L. (2019). The Supreme Court’s Legitimacy Dilemma. Harvard Law Review, 2240. Hagen, L. (2021, April 9). Biden Creates Commission to Study Supreme Court Reforms, Expansion. U.S. News and World Report. Holzberg, M. (2021, April 15). From ‘Bonehead Idea’ To Studying It: Joe Biden’s Shifting Positions On Court Packing. Forbes. Hulse, C. (2021, April 15). Democrats’ Supreme Court Expansion Plan Draws Resistance. New York Times. Jagoda, N. (2019, July 5). Biden says he opposes expanding the Supreme Court. The Hill. Jenkinson, C. S. (2021, April 30). Supreme Court Packing: A Bad Way to Get Even (or Ahead). Governing Magazine.

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION Jipping, T. (2021, April 21). Some Inconvenient Truth for the Supreme Courtpackers. National Review. Leuchtenburg, W. E. (2005, May). When Franklin Roosevelt Clashed With the Supreme Court—and Lost. Smithsonian Magazine. Levine, M. (2021, April 26). Liberal push to expand Supreme Court is all but dead among Hill Dems. Politico. Lifhits, J. (2018, July 13). What Do Senate Democrats Think About Packing the Supreme Court? Washington Examiner. Malcolm, J. G. (2021, April 9). Heritage Legal Scholar Responds to Biden Administration’s Court-Packing Commission. Heritage Foundation. Manchin, J. (2021, June 6). Joe Manchin: Why I'm voting against the For the People Act. Charleston Gazette-Mail. Marbury v. Madison, 5 U.S. 137, 138 (Supreme Court of the United States 1803). Martin, C. a. (2021, April 20). Democrats’ Dangerous Court-Packing Plan. American Spectator. Matthews, D. (2020, September 22). Court-packing, Democrats’ nuclear option for the Supreme Court, explained. Vox. McCarthy, A. (2021, April 14). Biden's court-packing theater could tame the Supreme Court's conservatives. The Hill. Mekouar, D. (2020, October 20). If Democrats Can, Should They Pack US Supreme Court? VOA News. Millhiser, I. (2019, October 30). Pete Buttigieg longs for a non-political Supreme Court. That’s not really possible. Vox. Millhiser, I. (Winter 2019). Let’s Think About Court-Packing. Democracy: A Journal of Ideas. National Constitution Center. (2021, February 21). How FDR lost his brief war on the Supreme Court. Constitution Daily. Olson, T. (2021, April 15). Court-packing push puts moderate Dems in spotlight. Fox News. Olson, W. (2020, October 16). Packing the Supreme Court Would be Bad for the Law. Cato Institute. Osnos, E. (2021, April 18). Biden Inherits F.D.R.’s Supreme Court Problem. The New Yorker. Parrish, M. E. (1984). The Great Depression, the New Deal, and the American Legal Order. Washington Law Review 59, 737. Pozen, D. E. (2014). Self-Help and the Separation of Powers. The Yale Law Journal, 1-247.

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION Robinson, K. (2021, April 10). Biden’s Supreme Court Commission: Who’s On It and Why Explained. Bloomberg Law. Roche, D. (2021, April 15). Joe Biden Once Called Court-Packing 'Bonehead Idea': 'Terrible, Terrible Mistake'. Newsweek. Ruger, T. (2021, April 15). Supreme Court expansion bill faces serious blocks across political spectrum. Roll Call. Shaw, A. (2020, November 28). Georgia Senate Dem hopefuls differ on court-packing question. Fox News. Shear, M., & Hulse, C. (2021, April 9). Biden Creating Commission to Study Expanding the Supreme Court. New York Times. Singh, M. (2021, April 15). Democrats plan to unveil legislation to expand the US supreme court by four seats. The Guardian. Slattery, E. (2021, April 19). What packing the Supreme Court would really do. CNN News. Sprunt, B. (2020, October 13). Biden Says He's 'Not A Fan' Of Expanding The Supreme Court. NPR News. Stone, G. R. (2010). Understanding Supreme Court Confirmations. The Supreme Court Review, 381-467. Stracqualursi, V. (2020, November 10). Centrist Democrat says he won't back expanding Supreme Court. CNN News. Strong, F. R. (1974). President, Congress, Judiciary: One Is More Equal than the Others. American Bar Association Journal, 1050-1052. Supreme Court of the United States. (2021, May 20). About the Court. Retrieved from Supreme Court of the United States: https://www.supremecourt.gov/about/about.aspx Swindler, W. F. (1970). The Politics of "Advice and Consent". Popular Media. The White House. (2021, April 9). President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States. Press Release. The White House. (2021). The Judicial Branch. Todd, Thomas. (2006). Biographical Encyclopedia of the Supreme Court. Melvin I. Urofsky ed. Totenberg, N. (2019, July 24). Justice Ginsburg: 'I Am Very Much Alive'. NPR News.

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A REPORT BY THE UNITED STATES JUSTICE FOUNDATION

About United States Justice Foundation

The United States Justice Foundation is a nonprofit public interest, legal action organization dedicated to instruct, inform and educate the public on, and to litigate, significant legal issues confronting America. USJF was founded in 1979 by James V. Lacy and other attorneys seeking to advance the conservative viewpoint in the judicial arena. After leaving USJF to work in the Reagan Administration in the 1980s, including service as General Counsel of the U.S. Consumer Product Safety Commission, USJF’s board asked Mr. Lacy to take over the organization again as President in late 2017. Mr. Lacy is admitted as an attorney in California, the District of Columbia, and before the United States Supreme Court. USJF publishes studies, reports and nonpartisan public opinion surveys on topical issues and distributes them free of charge to opinion leaders, students and the general public. USJF has contributed directly and indirectly to legal defense efforts in many celebrated cases involving fundamental conservative principles. USJF shall not, directly or indirectly, intervene, or participate, in a political campaign on behalf of, or in opposition to, any candidate for public office. USJF shall not endorse any candidate or contribute money to any candidate for political office. USJF shall not provide goods or services to a candidate’s campaign, raise funds from others in support of or in opposition to a candidate, distribute statements for or in opposition to a candidate, or conduct any other activity that favors or opposes a candidate for political office.

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