How Democrats and dark money are plotting to blow up the Supreme Court
After Hillary Clinton lost the 2016 election to Donald Trump, Brian Fallon needed a job. Fallon had served as Clinton’s national press secretary during the campaign, and before that he had done the same job for my colleague Chuck Schumer in the Senate. For a while, his reputation around Washington, DC, was stellar. He was, according to a lengthy profile in the Daily Beast, “one of the most sought-after operatives in Democratic politics: a brass-knuckle brawler with experience at the highest levels of government, a cellphone filled with the top journalists in town, and a reputation for being preternaturally on message.”
But something changed in Fallon after Clinton’s loss to Donald Trump. He became less interested in traditional politics, giving up a role as a commentator on CNN, and more interested in ways of putting pressure on Democrats to take radical action.
By 2018, two years into President Trump’s first term, Fallon and his friends in Democratic politics had seen some of their party’s core ideas repudiated time and time again at the ballot box. They had lost the game of electoral politics. So, they figured, they would change the rules of the game to give themselves a better chance of winning.
In 2018, urged by liberal political consultants such as John Podesta, Fallon started Demand Justice, a group whose mission, at least on its face, was to stop President Trump from making more judicial appointments. After two years in the White House, President Trump had already nominated a record number of judges to the federal bench, and he wasn’t slowing down.
But soon, other, more radical ideas began taking over — one in particular.
In October of 2018, following the confirmation of Justice Brett Kavanaugh, academics Mark Tushnet and Laurence Tribe announced their support for the “1.20.21 Project,” which aimed to pack four additional justices onto the Supreme Court following their hoped-for inauguration of a Democrat president that year. They made no secret of the partisan nature of the project, claiming they were acting in response to “Republican obstruction, theft and procedural abuse” in the judicial system.
The idea still isn’t in the mainstream yet. At the time, even The Associated Press described Tribe and Tushnet as “a couple of liberal Harvard law professors.”
But like a virus infecting a new host, the Court-packing plan became more powerful when it entered the political bloodstream. As Democrats geared up for their 2020 presidential primary, Demand Justice and other groups like it, such as Take Back the Court and Indivisible, began floating the idea of Court packing as a response to President Trump’s judicial nominations. They also began ranking lawmakers on how opposed they were to President Trump’s nominees, grading them on a scale of A, meaning they had supported zero of the judges that President Trump had nominated, to F, which meant that they had supported some.
By 2019, The Washington Post observed: “The once-remote idea of adding more justices to the Supreme Court to change its ideological bent is prompting growing discussion within the Democratic Party, creating a new frontier for presidential candidates looking to display their liberal credentials.”
That March, former Attorney General Eric Holder threw his weight behind the idea. “We should be talking even about expanding the number of people who serve on the Supreme Court,” he said, “if there is a Democratic president and a Congress that would do that.” At least he was being honest in describing the plan as nothing more than a partisan power grab.
In this new radicalized landscape, old loyalties didn’t matter. Shortly after setting up shop, Demand Justice gave Chuck Schumer, Fallon’s old boss, a “C” grade for having the nerve to do his duty according to the Constitution and confirm a few of President Trump’s judicial nominees. Shortly afterward, the two reportedly stopped speaking.
The group also posted messages and sent out email blasts that accused President Trump of “packing the Court” with Republican nominees, making the case that the only way to stop it was to add justices to the Supreme Court. In March 2019, Fallon declared: “We don’t consider those two seats that Trump has filled” — Gorsuch and Kavanaugh — “to be legitimate.”
In order to get the message out, Demand Justice hired some of the most sought-after Democrats in Washington. For a time, Jen Psaki, who would go on to become Joe Biden’s press secretary, was an outside adviser to Demand Justice. They also hired Paige Herwig, who became, according to Fox News, “Biden’s point person on judicial nominations.”
So a liberal activist whose most recent job was advising a group that sought to dismantle the Supreme Court by filling it with radical liberal justices was put in charge of helping the president of the United States select judicial nominees. In other words, this strange fantasy of the Left is back with a vengeance, and we are closer than we’ve ever been to seeing it become a reality.
The voices in Biden’s ear are backed by billions of dollars, most of it given to shady groups in a panic during the presidency of Donald Trump. There is no way to trace who’s giving it, and there is no sign that it’s going to stop coming anytime soon.
Demand Justice, for instance, is linked to the Sixteen Thirty Fund, which, according to Fox News, is “a nonprofit incubator that provides its tax and legal status to nonprofits, which allows them to avoid filing publicly available tax forms. The Sixteen Thirty Fund is managed by the Washington, DC-based consulting firm Arabella Advisors, which oversees a large network that pulled in $715 million in secretive donations for left-wing groups and causes it houses in 2019 alone.”
And they’re not even hiding their agenda. They’re coming out and saying the Supreme Court was too “conservative” for them, and that they needed to tip things in a more liberal direction. During the Democratic primary debates, which occurred about a year before Joe Biden realized he was going to need money from these groups if he stood any chance of winning, this had been a common refrain.
At some point during the four years that Donald Trump was in office, it had become perfectly fine not only to say that the Supreme Court was a political body, but also to insist that we as a country needed to do something about it.
“With a 6-3 Republican supermajority,” reads a current page on the website of Demand Justice that asks for donations, “the Supreme Court is too biased in favor of special interests and Republican politicians. Our democracy is at risk from decisions that suppress the right to vote. Adding four seats is the solution — and we need your help to get it done. Congress can change the number of justices on the Court at any time with a simple piece of legislation, and it has done so many times throughout American history.”
There it is, out in the open. In the wake of the unprecedented leak of Justice Samuel Alito’s draft opinion that would overturn Roe v. Wade, they updated their site to read “#ExpandTheCourt to save Roe.”
Talking to The New York Times about the potential that Democrats in the Senate, with an average age of 64, might get sick or die and thus be unable to vote, Fallon noted that the Democratic majority hangs in a very delicate balance. The loss of one vote might sink their whole plot before it even gets off the ground.
“Our ability to make good on Biden’s agenda,” he said, “is pretty much dangling by a thread. I don’t think it’s uncouth to talk about it. I think it’s a reality that has to inform the urgency with which we approach those issues.”
By this point, of course, “Biden’s agenda” has very little to do with the president himself. It’s not even his agenda, technically speaking. It includes policies that he has repudiated for decades, even as recently as the Democratic primary debates. Rather, it is the agenda of the radical Left, which now has full control of the federal government.
Through a concentrated publicity campaign funded largely by shadowy billionaire donors, these activists worked behind the scenes throughout the entire Trump presidency to sow discord and paint the Supreme Court as an overwhelmingly partisan, bitter place, one that is in need of emergency packing in order to save democracy.
Sadly, it is working. A few months after Biden’s Supreme Court commission released its draft findings — which took “no position” on Court-packing — it became clear that the “Overton Window,” to use the phrase referenced by Aaron Blake in The Washington Post, had moved several miles to the left. Almost as soon as the commission’s official report was released, some of the people who’d been involved in writing it went rogue, writing opinion pieces of their own that seemed to contradict the commission’s official findings. At the same time, Court packing gained another high-profile political: my Senate colleague and former presidential candidate Elizabeth Warren.
Perhaps they felt emboldened by how mainstream the idea had become thanks to the proliferation of dark money.
Mike Lee is a senior US senator from Utah, a member of the Judiciary Committee and a former Supreme Court clerk. This essay is adapted from his book “Saving Nine: The Fight Against the Left’s Audacious Plan to Pack the Supreme Court and Destroy American Liberty,” out now from Center Street.