Republican attorneys general (AGs) across the country are prepared to fight the recently introduced court-packing legislation, as indicated by their vocal statements of opposition to it, endorsements of the Keep Nine amendment, and vows to explore legal routes to challenge the legislation.
In interviews with Breitbart News, several AGs expressed they were firmly against the court-packing bill, unveiled Thursday as the Judiciary Act of 2021 by Rep. Jerry Nadler (D-NY), Sen. Ed Markey (D-MA), and other Democrats.
“This is an effort for the Democrats to try to add numbers to the Court to be able to validate the most liberal agenda that we’ve seen out of Congress in clearly my lifetime,” Alabama AG Steve Marshall told Breitbart News. Missouri AG Eric Schmitt called it “a total affront to our Republic” and “counterintuitive to the Founders’ vision.”
Talk of court packing first resurfaced last fall amid the swift confirmation process of Justice Amy Coney Barrett, the third justice appointed by former President Donald Trump.
Barrett’s appointment fueled Democrat outrage, prompting leftist calls for court packing as party leaders decried Trump and the Republican-majority Senate seating a new justice with the 2020 election — and the possibility of party control shifting in Washington — just weeks away.
Markey, as he introduced the Judiciary Act, claimed the Supreme Court, which tends to lean 5–4 conservative, was “illegitimate” and that after justices are added to it, “the bench will then rightfully reflect the values of the majority of the American people on whose behalf they serve.”
Marshall assessed the effort: “This is all about power.”
It Could Expand Beyond 13
Schmitt, along with Ohio AG Dave Yost and Arkansas AG Leslie Rutledge, emphasized the new precedent lawmakers would set with the Judiciary Act, which involves adding four seats to the High Court’s nine-seat bench.
“There’s no limiting principle,” Schmitt said. “If they want 13, what’s to prevent it from being 20? Or 75? This has harmful effects for the long-term for our country.”
Yost painted a spiraling picture. “We go from nine to 13,” he started. “What do we do when the Republicans get it? We’ll go to 17? And we just keep going back and forth until the Supreme Court’s bigger than Congress? It’s an insane battle to start.”
Rutledge proposed, “When does it stop?”
Nadler justified in a public statement that having 13 Supreme Court justices is logical because it aligns with the number of U.S. circuit courts.
“Nine justices may have made sense in the nineteenth century when there were only nine circuits. … But the logic behind having only nine justices is much weaker today, when there are 13 circuits,” Nadler said in the statement. “Thirteen justices for thirteen circuits is a sensible progression.”
In a press conference introducing the bill, Nadler also said 13 is “a nice number.”
“Take the Democrats at Their Word”
The AGs pointed to court packing as part of a pattern of Democrats following through with far-left agenda items that Republicans had repeatedly warned about during the 2020 election cycle.
“We should take the Democrats at their word,” Schmitt asserted. He pointed to President Joe Biden’s executive order announcing a 180-day bipartisan commission to examine adding justices to the Court and noted that, among his commission appointees, Biden included Caroline Fredrickson, author of The AOC Way: The Secrets of Alexandria Ocasio-Cortez’s Success. “She’s expressed sympathy for court packing,” he said of Fredrickson.
Schmitt said the far-left agenda has “found safe harbor with Joe Biden’s administration and we ought to be outraged.” He continued, “Whether it be federalizing elections under H.R.1, D.C. statehood, packing court, all the things that conservatives were warning about last fall they’re actually doing, and they’re not even apologizing or hiding it. There’s no veil anymore.”
Rutledge described court packing as merely one of the instances of a “bad idea” coming out of Washington. “Of all the things I’m going to talk about, what is today, April 16? Let’s do court packing. Let’s have that bad idea.”
Yost expressed appall at certain agenda items coming to fruition, zoning in on the legislation to grant D.C. statehood, which passed out of the House Oversight Committee last week and will receive a full House vote Tuesday.
“The thing that scares me is I wouldn’t have thought that a whole bunch of things were possible. I mean, who thought we would seriously be talking about D.C. statehood?” he asked.
As another example of a far-left wish becoming a reality, the top Ohio lawyer lambasted Biden for abruptly canceling the Keystone XL oil pipeline on day one of his presidency. Yost said, “Who would’ve thought that we would’ve seen the Keystone pipeline canceled after all the money that’s been spent working on building it? Who would’ve thought that the federal government, once the fight was over and the permit was granted, would just come back and say, ‘Oh, all those millions of dollars, all those jobs, everything that went into building it, just walk away. Let that thing rot. We’re not going to do it. If you’re an investor, if you’re a lender, you know, sorry about your loss. We just picked a loser, and today’s your day.’ I wouldn’t have thought that in a million years the federal government would act in that way.”
Marshall noted the Equality Act, passed by House Democrats in February — which includes provisions prioritizing gender identity over biological sex — is further evidence that Democrats are seeking a “radical change in government.”
CNN’s Chris Cillizza wrote an analysis Thursday doubting the Democrat-led push for additional Court seats would succeed. Yost said of the analysis, “I’ve read all the smart— you know, I’ve read Chris Cillizza. It ought to worry you when Chris Cillizza says that a liberal thing that he wants to happen isn’t going to happen. I just don’t buy it. They want this. The left is going to push, and they’re going to keep pushing until they get it.”
The Keep Nine Amendment
Some Republican AGs have shown support for the Keep Nine amendment, introduced in the House and Senate to cement nine as the number of Supreme Court justices.
“There is also a parallel effort, for a different purpose, to be able to look at this Keep Nine amendment to be able to establish within the Constitution itself that nine is the appropriate number moving forward so that we’re not continuing to deal with this question by Democrats year after year, but instead would put it as part of our Constitution,” Marshall explained, adding that he endorses the amendment.
The Alabama AG hinted that despite Republicans being up against Democrat majorities in Congress, the amendment could reemerge at a time when Republicans hold a majority. “The reality is that we don’t have a Congress that would probably be receptive to that right now, but 2022 is coming very soon,” he said.
Yost is also in favor of the Keep Nine amendment, and Rutledge said she is open to it. “That’s absolutely something that I believe we need to look at to ensure the integrity of our rule of law,” the Arkansas attorney general stated.
A United Front
Republican AGs who have spoken on the issue appear unified in believing they have a responsibility to vocalize their opposition to court packing.
“As the chief legal officers in our state, it’s important for us to talk about not only the integrity and the need for independence of that Court but also to be able to share why this is bad public policy,” Marshall said. “So I think you’ll clearly see Republican attorneys general be very vocal in being able to talk about why court packing is wrong.”
Yost agrees that “attorneys general need to speak up. They’re the voice of the rule of law, and it’s time for Republicans and Democrats to defend the Court because otherwise it becomes just another political institution.”
Texas AG Ken Paxton rejected the Judiciary Act in a social media post following its unveiling, calling it “a naked left-wing power-grab”:
Today, Dems intro’d the Judiciary Act of 2021, which would expand the size of the SCOTUS.
This will sail through the House & head the Senate where Dems will try to break the filibuster & pack the court.
This is a naked left-wing power-grab of our country https://t.co/N4ZFjLSOGS
— Attorney General Ken Paxton (@KenPaxtonTX) April 15, 2021
West Virginia AG Patrick Morrisey highlighted a side-by-side photo of Markey that displayed the Massachusetts senator in 2016 and in 2021 appearing to take double stances on the issue:
Res Ipsa Loquitur.
The thing speaks for itself! pic.twitter.com/luOqYpd1TV
— Patrick Morrisey (@MorriseyWV) April 15, 2021
Both Yost and Marshall also left room for the possibility that the legislation could conflict with the Constitution and vowed to review its constitutionality if and when the legislation progresses.
“There are potentially constitutional grounds that you could challenge a statute, and I think, certainly my office and other attorneys general, are taking a very hard look at this statute to determine whether there are constitutional impediments,” Yost said.
Marshall said AGs would “continue to, as it relates to every executive order the president signs, along with legislation that’s coming from Congress … evaluate whether or not there are legal mechanisms to be able to challenge what are unlawful efforts.”
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