Our Constitutional Order Can Survive Activist Judges, Not Court Packing

President Joe Biden appointed Judge Ketanji Brown Jackson of the United States Court of Appeals for the District of Columbia Circuit to replace Justice Stephen Breyer. If nominated, she will be the first African American woman on the Supreme Court.

Since the confirmation hearings begin this week, it is a good time to tell the story of how President Lyndon Johnson appointed Thurgood Marshall to the Supreme Court. In 1967, President Johnson wanted to appoint Thurgood Marshall to the court, but there were no vacancies on the court.

In a brilliant political move, he created a conflict of interest to get a vacancy on the court. In his book, "Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America," Wil Haygood interviewed President Johnson's chief domestic adviser Joseph Califano.

According to Califano, "Johnson needed a vacancy to put Thurgood Marshall on the court. So Tom Clark had to retire, and Johnson got the vacancy."

Justice Thomas Clark was appointed by President Harry Truman in 1949. When President Johnson appointed Justice Clark's son, Ramsay, as Attorney General in 1967, his father resigned from the court due to a conflict of interest, which was created by Johnson's appointment.

Conservatives can breathe a sigh of relief that we aren't currently facing a master of Washington like President Johnson.

After Thurgood Marshall was confirmed by the Senate, Marshall was sworn in by Justice Hugo Black. It was an inspirational moment that proved that American politicians had the potential, as President Barack Obama once said, to "narrow that gap between the promise of our ideals and the reality of their time."

From 1923 to 1925, Hugo Black was a member of the Klu Klux Klan. Justice Black regretted this decision for the rest of his life.

Justice Marshall knew that Justice Black renounced his past and supported Brown vs.  Board of Education (1954). Justice Marshall deliberately asked Justice Black to administer the oath to make that point.

Both Thurgood Marshall and Lyndon Johnson could be described as shrewd political tacticians.

If Jackson replaces Breyer, it is just one liberal activist justice replacing another. Our constitutional order can survive with a few activist judges, but not court packing.

According to President Biden's Presidential Commission on the Supreme Court, adding seats to the courts has undermined judicial independence in Argentina (1990), Venezuela (2004), Turkey (2010), Hungary (2010), and Poland (2018).

As a senator, Joe Biden said in 1983, that court packing was a "bonehead idea."

In 2005, then-Sen. Biden praised the Democrats in Congress who opposed FDR's 1937 court-packing plan because, "It took an act of courage on the part of his own party institutionally to stand up against this power grab."

If Democrats in Congress refuse to support a constitutional amendment to keep the number of justices at nine, we will have to get the amendment through a constitutional convention.

In the past, I have agreed with conservative activists like Phyllis Schlafly that a constitutional convention is dangerous because there is no way to limit the scope of the conversation once the convention is called.

Schafly also believed that politicians today are not as capable as our Founding Fathers to craft a better Constitution. In 1988, Phyllis Schlafly said:

"Frankly, I don't see any James Madisons, George Washingtons, Ben Franklins, or Alexander Hamiltons around today who could do as good a job as they did in 1787, and I am not willing to risk making our Constitution the political plaything of those who think they are today's Madisons, Washingtons, Franklins, or Hamiltons."

I still believe that Phyllis Schlafly was right when she said that a constitutional convention is like "playing Russian roulette with the Constitution." I think the best way to solve this problem is to have an amendment that limits a constitutional convention to just the amendment under consideration.

I think many Democrats and Republicans in Congress can see the wisdom to an amendment that will address the dangers of a wide-open constitutional convention. If this problem is not addressed, sooner or later a constitutional convention will be called.

According to the Congressional Research Service, from 1789 to 2017, over 700 proposals have been filed for an Article 5 convention. Our Constitution can only be preserved if we have an amendment to define the parameters of a constitutional convention before a convention is called.

After we mitigate the risks of an Article 5 convention, Republicans, and hopefully some Democrats, can adopt an amendment to keep the number of Supreme Court Justices to nine members.

The American people could ask state legislators to safely propose amendments that Congress would never consider. For example, I doubt that two-thirds of both houses would ever vote for congressional term limits, but a constitutional convention might do that.

Robert Zapesochny is a researcher and writer whose work focuses on foreign affairs, national security and presidential history. He has been published in numerous outlets, including The American Spectator, the Washington Times, and The American Conservative. When he's not writing, Robert works for a medical research company in New York. Read Robert Zapesochny's Reports — More Here.