Will 2024 Bring Doom for the Filibuster and the Court?

Senate Majority Leader Chuck Schumer (D – Darth Vader) proclaimed at the Democratic Party Convention that if his party retakes the House and keeps the Senate, while winning the White House, his priority will be to end the use of the filibuster codified in Senate Rule 22. The rule was created in 1917 to enable senators to end debates by a 2/3 “cloture” vote — 67 votes, even if fewer than 100 senators vote; it was amended in 1977, by reducing the cloture threshold to 60 votes.

In 2013, then-Senate Majority Leader Harry Reid exercised the infamous “nuclear option” by amending Senate Rule 22 so that nominations to the federal district and appeals courts could not be filibustered; the Supreme Court was exempted, as no vacancies had occurred. Democrats got a taste of their own medicine when, in 2017, Republicans amended Rule 22 to end the filibuster for the High Court, enabling Trump to appoint three justices.

The rule ended the Senate’s tradition of unlimited parliamentary debate that had prevailed since the First Congress. While unlimited debate prevented majorities from exercising tyranny of the majority, it permitted tyranny of the minority. A single senator could stop legislation, a practice oft indulged with year-end must-pass budget votes. Rule 22 requires large majorities to prevail, while preventing narrow majorities from enacting major changes.

Significantly, if the Senate is evenly divided, the vice-president casts the tie-breaking vote. This applies not simply to legislation, which entails both Houses passing a bill, a check on narrow Senate majorities; the vice-president can also cast tie-breaking votes on amendments to Senate rules.

Vice-presidents have cast 301 tie-breaking votes since the 1789 beginning of the First Congress. A breakdown of such votes shows that Kamala Harris is the all-time leader, at 33 tie-breakers, two more than John C. Calhoun’s 31 (1825-1832), in less than half the timespan. John Adams (1789-1797) is a close third, with 29. All others are below 20, with 12 — including Joe Biden (2009-2017) — casting zero tie-breakers.

Enter Senator Schumer. Though at the Convention he cited two voting rights bills as his motive, Democrats are focused on targeting the 1869 statute fixing the number of Supreme Court Justices at nine. In 2023, 16 Democrats (six senators and 10 representatives) introduced the Judiciary Act of 2023, first proposed in 2021. The bill would add four justices, citing the increase from nine circuit courts of appeal in 1869 to thirteen today. (Opponents of court-packing have introduced the bipartisan “Keep Nine” Amendment, to enshrine the current statutory number in the Constitution.)

The record compiled by the Supremes during Biden’s term shows a number of major reversals of clearly unconstitutional administration policies: The Court tossed Biden executive orders mandating employer vaccines, the eviction moratorium, and student loan forgiveness.

During the 2023-24 term the Court overturned its 40-year old “Chevron deference” ruling that gave near total deference to administrative agency rulings. This effectively allowed Congress to pass sweeping legislation, leaving statutory interpretation largely to administrative agencies that under Chevron exercised near-plenary power over interpretation by evading judicial review.

Conversely, the Court upheld a number of Biden administrative agency rulings, most notably in Moody v. NetChoice LLC, where it held that parties lacked standing to challenge collusion between the government and social media powerhouses that resulted in censorship of sites publishing views opposing administration policies.

While ostensibly the increase in circuits seems non-partisan, none other than Ruth Bader Ginsburg, who served on the Supreme Court for 27 years (1993-2020) and was the “Notorious R.B.G.” darling of those on the Left, opposed increasing the number, saying in 2019 that “Nine seems to be a good number, and it has been that way for a long time.” She added:

If anything would make the court appear partisan it would be that. One side saying when we’re in power we’re going to enlarge the number of judges so we’ll have more people who will vote the way we want them to. So I am not at all in favor of that solution to what I see as a temporary situation.

 Former Justice Stephen Breyer, also a liberal during his tenure (1994-2022):

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. Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.

I traced the history of FDR’s court-packing effort in a 2021 article; and then in a second article I addressed the heavy-handed pressure to get Justice Breyer to step down.

FDR entered 1937 having been re-elected in a 46-state landslide, his party having obtained a 333-89 House and a 76-18 Senate. FDR’s initial effort aimed to replace three conservative justices, one liberal and two “swing” justices, on the grounds that justices 70 or older could not carry the workload. After that fizzled, he floated a second plan, raising the retirement age to 75, with a limit of one justice replacement per year. It also flopped. But in the end, FDR wound up with the last laugh: During his terms he appointed eight justices.

FDR’s efforts first paid off when Associate Justice Owen Roberts, one of the two “swing” justices, switched sides in two major cases decided 5-4.

The shift by Roberts gave rise to the famous quip on the Court’s volte-face: “the switch in time that saved nine.” A generation before that quip, there was Finley Peter Dunne’s Mr. Dooley (rendered in modern English): “No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.”

The effort to push Breyer into premature retirement worked, leading to the appointment of Kentanji Brown-Jackson, who has a judicial philosophy well to the Left of Breyer, a moderate classical liberal and a skilled consensus-builder on the bench.

The Filibuster and the Court: Bottom Line

It is too early to assess the chances of Schumer & Co. prevailing. First, they must sweep in November. Second, they must muster 50 Democrat votes to add Supreme Court nominations to the “nuclear option” list. Third, they must be prepared to risk igniting a civil war beyond anything to date if they do pack the Court. Red states might, for example, declare themselves Sanctuary States, as California Gov. Gavin Newsom did over illegal immigration. A republic as deeply divided as ours is now could conceivably be sundered permanently by court-packing.

John C. Wohlstetter is the author of Presidential Succession: Constitution, Congress and National Security (Gold Institute Press, 2024)

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