Democrats have been trying to stack the Supreme Court for nearly 90 years. Franklin Delano Roosevelt tried it in 1937 and was humiliated. Congressional Democrats tried it in 2021 and were ignored by their own leadership. Now, Kamala Harris and a dark money group called Demand Justice are back for round three, this time trying to block a sitting president from filling vacancies that do not even exist yet.

The narrative for Democrats started when Merrick Garland was blocked by the GOP-controlled Senate during the waning days of the Obama administration after the unexpected death of Justice Antonin Scalia.

But after the death of Justice Ruth Bader Ginsburg, activist groups and some Democrats have been determined to not only pack the court, but also block Trump from being able to add more justices during his second term if any vacancies are to occur.

Blocking Trump

This weekend, a shockwave was sent through the political world when it was revealed that Justice Samuel Alito was hospitalized after he fell ill during an event in Philadelphia on March 20.

Justices are not required to reveal health issues, and the level of transparency has varied among justices over the years.

The New York Times reported that Alito had suffered from dehydration, with spokeswoman Patricia McCabe stating:

“Out of an abundance of caution, he agreed with his security detail’s recommendation to see a physician before the three-hour drive home. After that examination and the administration of fluids for dehydration, he returned home that night.”

This was not a life-threatening issue for Alito, but it did remind the left that the three oldest members of the court are all conservatives. This appeared to light a fire under Demand Justice, which revealed its plan to block Trump, and possibly set the Democrats up to pack the court if a Democrat wins in 2028 (if Democrats can take control back of the Senate).

According to a New York Times report, Josh Orton, the president of Demand Justice, said the project to block a Trump Supreme Court pick during this term would cost about $3 million to get rolling, and another $15 million if a vacancy became available.

Kamala Harris, who is somehow still the favorite among Democrats in polling, reposted the report (270toWin has her with a 7.2% average advantage over Newsom), signaling that she would back this plan if it were put into motion, reported Fox News.

The former vice president and twice-failed presidential candidate posted:

"We must be clear eyed about what is at stake with the Supreme Court right now. We cannot allow Donald Trump to hand pick one, if not two, additional justices. The nation’s highest court must be stopped from becoming even more beholden to him."

Democrat strategist James Carville has also predicted that Democrats would pack the court if they win in 2028, stating:

"I’m going to tell you what’s going to happen," Carville said. "A Democrat is going to be elected in 2028. You know that. I know that. The Democratic president is going to announce a special transition advisory committee on the reform of the Supreme Court. They’re going to recommend that the number of Supreme Court justices go from nine to 13. That’s going to happen, people."

This is not a new plan, as Harvard professor Michael Klarman pushed a radical agenda in 2020, as reported by The Harvard Gazette, to change the system so Republicans "will never win another election."

However, he expressed concerns that the Supreme Court, as it currently sits, could strike down his entire plan, so he recommended that Democrats pack the court before putting his plan into place.

In the past, more Democrats than not have opposed packing the court, including Joe Biden, but Harris is not one of them. She has expressed support for this idea, and with her being the leading candidate, this is now a threat that must be taken seriously.

How the court got to 9 justices

While the Constitution did establish the Supreme Court, it did not dictate how many justices would sit on the bench. That was first established by the Federal Judiciary Act (1789), which set the number of justices at six.

The Judiciary Act of 1801, more commonly known as the Midnight Judges Act, expanded the federal judiciary to give the Federalist Party more influence in the judiciary, as well as reduce the Supreme Court from six to five justices.

This was repealed during the Thomas Jefferson administration and partially replaced by the Judiciary Act of 1802, which also restored the six-circuit system.

In 1807, a new circuit was added to the court to represent Kentucky, Ohio, and Tennessee. Then, in 1837, the court took the form we have today, with two more justices added due to the western expansion.

In 1863, a 10^th seat was added to represent the West Coast circuit. Congress then tried to shrink the court down to seven seats to block new appointments by Andrew Johnson.

The Judiciary Act of 1869 locked in the court at nine justices, which is where it has remained ever since. However, there was one more push to try to rig the court in favor of the party sitting in the White House.

This is all laid out clearly in the table below:

FDR tries to pack the court

FDR won the 1936 election in a landslide, and it would seem he took that as a sign that he could pack the court so his New Deal legislation would coast through if challenged.

FDR put forth legislation that would have packed the court with a total of 15 justices, reported EBSCO.

His plan would have added one justice for every justice who was over 70 years old, and this was to counter the “four horsemen,” Justices Butler, McReynolds, Sutherland, and Van Devanter, who generally voted as a block, needing only one other justice to join them to get a majority opinion.

The plan by FDR was not received well; quite the opposite, actually. The move was considered a massive power grab by the administration. It was also heavily criticized by then-Chief Justice Charles Evans Hughes.

In fact, even then-Vice President John Nance Garner opposed the bill, reportedly “holding his nose and giving a thumbs down from the rear of the Senate."

The true nail in the coffin for the court-packing movement was when the court reversed its stance on numerous New Deal initiatives, which was referred to as “a switch in time that saved nine,” meaning those reversals are what prevented FDR from being able to add the six additional justices to the court.

By mid-1937, the court-packing debate was tabled permanently, and Congress has kept the court at nine justices since.

The new push

As noted above, after the death of Justice Scalia, Obama and Democrats saw an opportunity to flip a conservative seat to liberal.

Obama nominated Merrick Garland, but Senate Majority Leader Mitch McConnell (R-KY) blocked the pick, reported NPR.

Outlets such as The Hill had called the move unconstitutional, but McConnell was quick to point out that no Senate controlled by the opposing party had ever allowed a pick to go through for a lame-duck president this late in the term.

When Trump took office, he nominated Neil Gorsuch to replace Scalia, keeping the seat on the right. Then Justice Anthony Kennedy retired, and he was replaced by Brett Kavanaugh.

The bombshell, however, was the unexpected death of Justice Ginsburg, which allowed Trump to appoint his third justice, Amy Coney Barrett, locking in a 6-3 advantage for conservatives.

All three of Trump’s justices were more moderate than anyone would have expected. However, at the time, I reported that this was the most balanced court of my lifetime. I did not expect to agree with every ruling, but I can live with that as long as the court can properly justify its rulings. I stand by that belief today.

Democrats, however, do not take these losses in stride, so when they lose a case, the idea of packing the court is immediately brought up. Yet, when they win a case, they all sit on their hands.

To that point, Rep. Jerry Nadler (D-NY) led an effort to add more justices to the court to give Democrats the majority. Nadler, at the time, denied they were trying to pack the court, reported CBS News, stating:

“We are not packing the Supreme Court, we are unpacking it."

Of note is the fact that Chris Kang, co-founder of Demand Justice, was present at the 2021 press conference announcing the Judiciary Act. This was clearly being driven by outside interests, which once again shows the major flaw of today's political system. It's just more proof that lobbyists and special interest groups are the real puppeteers of Congress.

The plan was not well supported among the powers that be, with then-Speaker Nancy Pelosi (D-CA) saying she had no plans to floor the legislation. Then-President Biden had also stated that he was “not a fan” of the idea.

Even Justice Ginsburg, the holy grail of the court for Democrats, had stated that “nine is the perfect number.”

Harris, however, had expressed support for the idea during her 2020 presidential campaign. Now, she is clearly aligned with Demand Justice, actively fundraising for the group.

Chain reaction

The idea of packing the court is a short-sighted one at best, as there is nothing to stop the opposing party from doing the same once they were to become the majority again.

At the time, NBC News reported:

“Why would that change if Democrats passed their court-packing scheme? If anything, the next Republican majorities could do some packing of their own.”

The court, to this point, has had more than 150 years of stability. This approach, however, would create turmoil for the foreseeable future, as well as destroy any notion that the court was impartial and independent.

One of the reasons FDR’s bill was defeated was because of the concerns that it would set a precedent by the party in power to simply pack the court to get their way. To that point, during this push by Democrats, Rep. Steve Chabot (R-OH) stated:

“I think it could tear this country apart.”

Senator McConnell pointed out the obvious. The media was not only embracing this idea but also helping Democrats push it. He stated:

“If Republicans had introduced a bill to add four Supreme Court seats for the last president to fill, there would have been weeks of wall-to-wall outrage on every newspaper and cable TV channel.”

I would also note that hypocrisy has never rung truer, and we can go back to Harris as a prime example of this.

When she thought she was going to win, she was all for packing the court, and she is promoting it again. She, along with other Democrats, has accused Trump of packing the court when he was making constitutionally authorized appointments.

We noted Harris' response to the Demand Justice report above, and one X user called out the hypocrisy of her response, replying:

“Didn't you support stacking the court when you thought you were going to win?"

Kamala, I hate to be the one to break the bad news to you, but you lost the election, and you no longer hold a seat in Congress. Therefore, you have zero say in any nomination by Trump while he is the sitting president.

Your legendary justice, Ruth Bader Ginsburg, one of the most brilliant legal minds of our time, has conceded that nine is the perfect number, but I guess you know better.