Avoiding Judicial Armageddon

By Orrin G. Hatch | Wednesday, October 28, 2020

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This month marks the 58th anniversary of the Cuban Missile Crisis, the geopolitical showdown between the United States and the Soviet Union that brought the world to the brink of nuclear annihilation. We are here today only because cooler heads prevailed in that conflict, leading to the Kennedy-Khrushchev Pact and the first real détente in the Cold War.

More than five decades later, it’s worth applying the lessons of that dangerous moment to an entirely different matter: the battle over the Supreme Court. Today, we are engaged in a judicial arms race that, if left unchecked, will lead to the destruction of our democracy. For the sake of the courts and the Constitution, we can only hope that cooler heads once again prevail.

In response to Judge Amy Coney Barrett’s confirmation, some of our nation’s leaders have threatened the unthinkable: increasing the number of justices on the Supreme Court for partisan purposes. This, they argue, is a necessary correction to the Court’s shifting ideological balance. But we should call it what it really is: a dramatic and irreversible escalation in the fight over the federal judiciary.

So-called Court-packing would be the equivalent of launching a nuclear warhead — an extreme course of action that would require a reciprocal response. That’s why, for the better part of a century, both the Left and the Right have roundly condemned the idea. It’s only this year that support for Court-packing has gone mainstream, with prominent members of the Democratic Party openly considering it.

This group includes two of my friends and former colleagues on the Senate Judiciary Committee, Senator Chris Coons (D., Del.) and former vice president Joe Biden. As recently as 2 017, Senator Coons pushed back against calls to increase the number of justices on the Court. But last week, both h e and Biden expressed a newfound openness to the idea. Biden and I served alongside each other on the Senate Judiciary Committee as chairman and ranking member, respectively. While we had our political differences, we were always aligned in our opposition to Court-packing. When we served together, he called it “a bonehead idea. ” I could not agree more.

I have great respect for both of these men. They have traditionally been the moderate voices in the Democratic Party, which is why I find their support for such a radical idea so unsettling. Historically, opposition to Court-packing has been bipartisan because both parties have recognized the importance of judicial independence to a healthy democracy. Indeed, the lack of

judicial independence in the British empire was one of the reasons that motivated the Founders to sign the Declaration of Independence in the first place.

Among their many grievances, the Founders rebuked King George III for seeking to re-create the court in his own image by “[making] Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” That’s why they took special pains to build protective walls around the judiciary to insulate it from politicization by the other branches of government. Court-packing would tear down these walls. It would undermine one of the very reasons we became a country by giving the executive branch unprecedented influence over the ideological composition of the judiciary.

Instead of serving as a shield against oppression, a packed Court would be a political weapon in the hands of a freewheeling majority. Recognizing this threat, Republicans and Democrats presented a united front against attempts to pack the Court when the idea was last en vogue in the 1930s. As Senator Burton Wheeler (D., Mont.) warned at the time, this extreme measure would “extinguish [our] right of liberty, of speech, of thought, of action, and of religion.”

Chief Justice William Rehnquist rightly referred to judicial independence as “one of the crown jewels of our system of government.” Are Democrats really willing to throw this crown jewel away in an effort to appease their base? I sincerely hope that the more level-headed voices in the party will see reason. But given rising passions on the left, I’m not counting on it.

That’s why it’s not enough to educate Americans on the dangers of Court-packing. We need to go a step further by mounting a vigorous campaign against it. This campaign would represent the 58 percent of voters who oppose any increase in the number of justices on the Supreme Court. And it would make use of unconventional powers under the Constitution to protect judicial integrity.

If, come January, a Democrat-controlled Congress and White House set the legislative wheels in motion to pack the Supreme Court, Republicans and middle-of-the-road Democrats will not be completely powerless to stop them. A rticle V of the Constitution provides states with an avenue to amend the Constitution independent of Congress. If progressives move to pack the Court, we should invoke this power to pass a constitutional amendment that would fix the number of Supreme Court justices at nine.

Now, I understand the potential pitfalls, time delays, and procedural challenges of an Article V convention. In fact, I know them better than most. I spent the better part of my Senate tenure trying to pass a Balanced Budget Amendment through this unorthodox process.

Both then and now, the “runaway convention” critique has been the strongest argument against using the Article V process to amend the Constitution. This is the fear that states would be unable to focus on a single issue at an Article V convention and would instead propose a never-ending string of amendments. It is an understandable concern in normal times — but these are not normal times.

In a few months, Washington could pass legislation that would destroy the American judiciary as we know it. The imminent threat of judicial Armageddon would force states to focus on one amendment and one amendment only. And I believe it would motivate them to act in a way no

previous issue has, allowing them to overcome some of the logistical hurdles that have prevented this process from going forward in the past.

True, an Article V convention would be historically unprecedented. But just as historically unprecedented would be a brazen attempt to add four justices to the Supreme Court, a s some have proposed. Given what’s at stake, it’s not hard to believe that the 34 states required to call a convention could rally behind a single amendment to cap the number of justices at nine.

Of course, getting the 38 states required to ratify this amendment would be an exceedingly tall order. So I acknowledge that a successful Article V convention would still be a long shot. But as a symbolic gesture, it would send a powerful message to leaders in Washington that Court-packing defies the collective will of the American people. It would put elected officials on notice: Any attempt to use extraordinary measures to overthrow another branch of government will be met with an extraordinary response. Whether successful in passing an amendment or not, it would raise the political costs of packing the Court. Supporters of Court-packing would have to explain why they are trying to jam through a deeply unpopular initiative that a majority of states oppose — and in the end, it could be just enough to get Democrats to back down.

Article V was built for this very purpose: to act as a fail-safe against Washington overreach. The Founders, in all their wisdom, i ncluded it in the Constitution for the day that the states would need to save the federal government from itself. Now, that day could soon be upon us.

Progressives have done the equivalent of putting nuclear missiles in Cuba by threatening to pack the Court. But states can set up a blockade to box them in by organizing an Article V convention. Even if this strategy is successful only in getting the Left to stand down, it will still buy the country time. Then perhaps one day, when cooler heads have prevailed, we can begin the process of judicial disarmament by securing bipartisan support to fix the number of Supreme Court justices at nine.

Until then, we must draw on every power granted by the Constitution to avoid a doomsday scenario.

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Orrin G. Hatch is the chairman emeritus of the Orrin G. Hatch Foundation. A Utah Republican, he served on the Senate Judiciary Committee from 1977–2019.