Turley: Supreme Court May Be Sending a Stealth Message to Democrats

Legal analyst Jonathan Turley thinks the United States Supreme Court is sending a message to the Democrats about their not-so-secret plans to pack the court—and I think his theory has merit.

Turley believes that four recent unanimous decisions by the Court are a message to the Democratic majority that the Supreme Court is “not so rigidly ideological as Democratic members and activists suggest.”

In the Garland case, the court ruled (again) unanimously to reverse the Ninth Circuit in an opinion written by Justice Neil Gorsuch on the rule in immigration disputes regarding the credibility of noncitizens’ testimony.  cannot be reconciled with the terms of the Immigration and Nationality Act. In Cooley, the Court unanimously ruled in an opinion by Justice Stephen Breyer that a tribal police officer has authority to detain temporarily and to search a non-Native American traveling on a public right-of-way running through a reservation.

Last week, there were two unanimous opinions making this six 9-0 rulings in two weeks. Justice Sotomayor wrote the opinion in  United States v. Palomar-Santiago, an immigration decision that ruled for the government and against an immigrant. It also ruled unanimously in Territory of Guam v. United States, in an opinion written by Justice Clarence Thomas. The Court ruled in favor of Guam on the collection of funding from the U.S. government to remediate environmental pollution on the island.

Turley also notes that a number of current and former justices, including Ruth Bader Ginsburg, have publicly warned against packing the court. “If anything would make the court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to,’” RBG said shortly before she died.

But, that hasn’t stopped Democrats from insisting that the court needs reform—or, as some Democratic leaders have tried to brand it, unpacking. Democrats have laid down the groundwork to (falsely) claim that the Republican Party has packed the court, and they are simply trying to bring balance back. To do this, they deem various acts by the GOP “court-packing” when they are most certainly not.

“The litany of unanimous rulings amplifies the fact that most cases are resolved with compromise and different alignments of the justices,” suggests Turley. “There are always ‘big ticket’ cases that produce more ideological divisions but they are the exception rather than the rule for the Court. These are honest ideological differences and we want the justices to be consistent on their underlying principles. However, most of the work of the Court remains less ideologically driven on issues ranging from statutory interpretation to evidentiary rules.”

Sadly, no matter what message the court is or isn’t trying to say, Democrats have shown they don’t particularly care what they think. Senator Richard Blumenthal (D-Conn.) recently threatened the court, saying that if they don’t rule the right way on major cases, “It will inevitably fuel and drive an effort to expand the Supreme Court if this activist majority betrays fundamental constitutional principles.” He added, “It’s already driving that movement. Chipping away at Roe v. Wade will precipitate a seismic movement to reform the Supreme Court. It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”