Demand Justice, an organization founded by former members of Hillary Clinton’s 2016 presidential campaign and associated with a secretive “social welfare organization” financed by billionaire activist George Soros, is pushing a scheme to pack the Supreme Court with liberal justices by adding new seats to the nation’s highest court.
This comes after Demand Justice has failed in its repeated attempts to bring about the impeachment of Supreme Court Justice Brett Kavanaugh.
A Demand Justice petition circulated over the weekend reads:
The number of justices is not established in the Constitution — in fact, we’ve changed the number of justices seven times throughout our history.
We need every Democrat to join us. Sign the petition and tell Democrats to support adding seats to the Supreme Court today.
The missive, also promoted in Demand Justice mass emails, claims “Republicans stole a seat when they put Neil Gorsuch on the bench, so Democrats need to be committed to fighting back by adding seats to the Supreme Court.”
The petition continues, “You know what’s at stake: the right to a safe and legal abortion, the right to seek asylum, the right to a workplace free of discrimination for LGBTQ+ people, and so much more.”
The activism drive seeks to galvanize support for the concept of adding seats to the Supreme Court but does not explain the process of actually getting it done.
Immediately after the confirmation of Kavanaugh last year, Breitbart News reported that already some Democrats and progressive activists began shifting tactics, pushing the scheme to “pack” or “balance” the Supreme Court by adding two new seats to be filled by liberal judges.
The Supreme Court expansion plot would be enacted if Democrats retake Congress and the presidency in 2020, according to the plan.
Political scientist David Faris advocated in a book published last year for Democrats to pack the Supreme Court with as many liberal judges as they can. Farris branded the plan the “neutron option for the Supreme Court.”
Vice’s West Coast editor Harry Cheadle summarized Faris’s arguments thusly:
[It] would involve first proposing a constitutional amendment to end lifetime tenure on the court and pushing a proposal to let each president pick two justices per term, a compromise that Faris hopes would “end the court wars.” He suspects Republicans wouldn’t go for that, however, so he’d advise the next Democratic president to just “pack” the court as FDR tried to do in 1937 before Congress rose up against him and prevented it. That would involve passing a bill to expand the size of the court and allowing the president to appoint however many justices would be needed to create a new liberal majority, with the friendly Senate signing off on any appointee. (This would be legal, Faris points out, because there’s nothing in the Constitution stipulating the size of the court, which has in fact fluctuated in the past.)
Writing at NBC.com after Kavanagh’s nomination, political science professor Scott Lemieux opined that “Democrats are now much more likely to mobilize against an even more conservative court.”
But how might Democratic leaders respond?
A more likely scenario — especially if a Trumpified Supreme Court not only effectively overrules Roe v. Wade but then keeps striking down legislation passed by the next unified Democratic government — is expanding the size of the Supreme Court. The constitution does not fix the size of any federal appellate court, and the number of justices can be changed with simple majorities of both houses of Congress. Doing so isn’t hypothetical: After the Civil War, congressional Republicans manipulated the size of the court to ensure that it wouldn’t interfere with Reconstruction.
In July 2018, Yale Law School professors Ian Ayres and John Fabian Witt laid out the case in the Washington Post for expanding the Supreme Court, referring to the tactic as “court balancing.”
“Democrats need a Plan B for the Supreme Court. Here’s one option,” their oped was titled.
The duo advocated for Senate Minority Leader Charles E. Schumer (D-N.Y.) and House Minority Leader Nancy Pelosi (D-Calif.) to announce a plan aimed at “balancing” the Supreme Court if the Democrats can win a majority in Congress and take the presidency in the 2020 election.
Ayres and Witt note the Constitution does not stipulate the Supreme Court must have nine seats and they reference historical precedent for expanding the nation’s highest court:
The court originally had six seats. It expanded and contracted in the first half of the 19th century, then settled on nine. It has remained there since 1869, partly as a political norm and partly to preserve competitive equilibrium.
At crucial moments in U.S. politics, parties have acted to change the size of the Supreme Court. Often the tactic was a political power play. But sometimes it was undertaken for the good of the country, as during the Civil War, when the Republican Congress in 1863 added a seat to the court in part to protect the success of the war effort against formidable legal challenges.
The Democrats’ court-balancing proposal for 2020 should commit the party to expanding the size of the Supreme Court by appointing two new federal judges who, by statute, would be designated to sit on the court for 18 years; thereafter, the constitutionally required life tenure would be served in lower federal courts.
While pushing their proposal under the banner of “balancing,” the Yale professors do not disguise their goal of packing the court with two new liberal judges:
If Democrats took control of Congress and the presidency in 2020, the new administration would effectively have two Supreme Court slots to fill immediately. The party should commit to nominate one liberal (say, the liberal analog of Justice Neil M. Gorsuch) and to fill the other spot by renominating the liberal-centrist Garland himself.
Ayers and Witt were referring to the nomination of Merrick Garland, who was the pick of Barack Obama, then a lame duck president, to fill the slot left vacant following the death of Justice Antonin Scalia.
Secretive Arabella Advisors
Demand Justice has played a central role in leading activism against Kavanaugh.
Demand Justice is fiscally sponsored by the Sixteen Thirty Fund, one of four nonprofits run by the secretive, massively funded Arabella Advisors strategy company that pushes the interests of wealthy leftist donors. Arabella specializes in sponsoring countless dark money pop-up organizations designed to look like grassroots activist groups, as exposed in a recent extensive report by conservative watchdog Capital Research Center.
Soros’s Open Society documents that it provided financing to Sixteen Thirty specifically earmarked for Demand Justice activism.
The Capital Research Center’s expose documented that from 2013-2017 alone, Arabella’s four nonprofits spent a combined $1.16 billion with the aim of advancing “the political policies desired by wealthy left-wing interests through hundreds of ‘front’ groups.”
“And those interests pay well: the network’s revenues grew by an incredible 392 percent over that same period,” the report related.
“Together, these groups form an interlocking network of ‘dark money’ pop-up groups and other fiscally sponsored projects, all afloat in a half-billion-dollar ocean of cash,” states the report. “The real puppeteer, though, is Arabella Advisors, which has managed to largely conceal its role in coordinating so much of the professional Left’s infrastructure under a mask of ‘philanthropy.’”
Even before President Donald Trump first announced Kavanaugh as his official nominee, Demand Justice committed to spending about $5 million to oppose any eventual Trump nominee for the Supreme Court. The organization sought to raise $10 million in its first year.
Breitbart News reported that within less than one hour of Trump’s announcement that Kavanough was his nominee, Demand Justice had already put up the website stopkavanaugh.com, exclaiming: “We need to demand that the Senate defeat the Brett Kavanaugh nomination.”
The news media has routinely produced articles on Demand Justice protesters, with many pieces failing to inform readers that this is not a grassroots group but an organization spawned by professional organizers and tied to deep leftist funding.
Brian Fallon, the head of Demand Justice, served as press secretary for Clinton’s 2016 presidential campaign. The group’s digital team is headed by Gabrielle McCaffrey, who was a digital organizer for Clinton’s campaign.
In an interview with the New York Times, Fallon would not comment on the source of the group’s financing, but the newspaper noted that he was recently a featured speaker at the conference of the Democracy Alliance, a grouping of progressive donors.
Aaron Klein is Breitbart’s Jerusalem bureau chief and senior investigative reporter. He is a New York Times bestselling author and hosts the popular weekend talk radio program, “Aaron Klein Investigative Radio.” Follow him on Twitter @AaronKleinShow. Follow him on Facebook.
Joshua Klein contributed research to this article.