Kamala Harris and Democrats will pack the Supreme Court if they win

In 2016, countless conservatives skeptical of Donald Trump voted for him anyway because the future of the Supreme Court was on the ballot. Now that concern is even more pressing.

This election, more than Justice Antonin Scalia’s seat is up for grabs — the Supreme Court as we know it is at stake.

At her CNN town hall, Kamala Harris was asked if she supported packing the Supreme Court with multiple additional justices in order to change its ideological composition. She declined to dismiss the idea. Instead, she ominously said, “I do believe there should be some kind of reform of the court, and we can study what that actually looks like.” Her vague answer is the constitutional equivalent of then-Speaker Nancy Pelosi’s (D-Calif.) quip about ObamaCare that “[w]e have to pass the bill so that you can find out what is in it.”

When it comes to our Constitution, Americans deserve more than talking points. We cannot afford to wait and find out what Kamala Harris’s plan is for the Supreme Court. The only way to be sure the court will continue in its current form is to reelect Trump and a Republican majority in the Senate.

For the past four years, Democrats have been laying the groundwork to pack the court. If they win the Senate, House and White House, they will do it. From endless investigations into Justice Clarence Thomas’s friendships to partisan hyperventilating about the flag at Justice Samuel Alito’s home, Democrats have been undermining the court at every turn, and the attacks will only intensify with four more years of control.

The single roadblock preventing Democrats from packing the court is the filibuster. But even that is in jeopardy. Right now, Senate Majority Leader Chuck Schumer (D-N.Y.) has 49 votes. The only senators who caucus with Democrats and support the filibuster are independents Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, both of whom are retiring. If Schumer picks up one seat this election, he will have the votes to end it. If the filibuster falls, the court is sure to follow, as Democrats would only need 50 votes and the vice president to unleash court packing on the American people.  

Republicans must win the Senate because the Supreme Court is on the ballot and so are some of its staunchest defenders. In Texas, Republican Sen. Ted Cruz is running for reelection against Democratic Rep. Colin Allred. Allred is running as a so-called moderate, yet he supports abolishing the filibuster. It is telling that, whenever he speaks about the filibuster, he does so in the context of attacking the Supreme Court for its decision to overrule Roe v. Wade in Dobbs v. Jackson Women’s Health Organization.

It doesn’t take much reading between the lines to realize that Allred’s primary motive for abolishing the filibuster is to attack the court. Voters in Texas face a clear choice: support Cruz, a former Supreme Court clerk and litigator who reveres the institution and our rule of law, or support Allred and risk destroying the Supreme Court forever.

There was a time when Senate Democrats were less radical and more independent. In 1936, the Senate Judiciary Committee rejected FDR’s attempt to pack the court stating that to do so would make our government “one of men rather than one of law.” Unfortunately, times have changed, and this Democratic Senate majority lacks the temperance and foresight to stand up to Harris and her putative “reform.” Fortunately, the future of the Supreme Court rests not in her hands — but in those of the American people next Tuesday. Vote as if the future of the Supreme Court is on the ballot — because it is.

Robert Luther serves as Distinguished Professor of Law at the Antonin Scalia Law School at George Mason University. He served as Associate Counsel to the President of the United States under President Trump.