Fact Check: Josh Shapiro Falsely Claims Trump ‘Packed’ Supreme Court

CLAIM: Gov. Josh Shapiro (D-PA) claimed at a rally for Vice President Kamala Harris that former President Donald Trump “packed” the Supreme Court when he was in office.

VERDICT: FALSE. Trump never “packed” the court, which would entail breaking the statute of nine justices that has been in place since 1869. He did appoint three justices to fill three vacancies during his term, leaving the court with nine justices when he left office.

Shapiro’s false claim came in Philadelphia, Pennsylvania, at the first rally for Harris and her running mate, Gov. Tim Walz (D-MN). Shapiro had been a finalist for the position before Harris made her selection of Walz on Tuesday morning.

Trump entered office with one vacancy on the court left by the late Justice Antonin Scalia. Former President Barack Obama appointed now-Attorney General Merrick Garland to fill the seat after Scalia died in January 2016. Then, Senate Majority Leader Mitch McConnell had already made clear that the Senate would not confirm an Obama appointee to fill the seat, citing the election season as his reasoning.

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said, as CNN noted.

Per the outlet, many Republicans at the time pointed to Joe Biden’s remarks as a senator in 1992 that “once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”

After Trump entered office, he appointed Justice Neil Gorsuch to fill Scalia’s seat. On July 31, 2018, retired Justice Anthony Kennedy left the court and was ultimately replaced with Justice Brett Kavanaugh. Lastly, Trump appointed Justice Amy Coney Barrett to fill the seat of the late Justice Ruth Bader Ginsberg after her death in September 2020. The Republican-led Senate then confirmed Barrett.

Democrats have notably threatened to actually pack the court, a scheme that would require legislation to add seats and break away from a statute that has been in place for more than half the nation’s existence. Former Attorney General Eric Holder, who served under President Barack Obama, for example, called for packing the court with two more liberal justices at the start of Biden’s term.

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In his false claim that Trump “packed” the court, Shapiro spread another falsehood that the court’s 6-3 ruling in favor of Trump in the presidential immunity case puts Trump “above the law” and “outside of the law.” The ruling did not place him “above the law” and merely clarified that presidents have limited immunity when it comes to criminal prosecutions over actions they take in office.

“The Supreme Court held that no one is above the law, but in doing so also clarified what protections the Constitution secures for presidents, just like those serving in Congress or as federal judges,” said Breitbart News senior legal contributor Ken Klukowski.

“Every branch of the Constitution has immunity,” Klukowski continued. “The Speech or Debate Clause of the Constitution makes members of Congress totally immune for anything they do on the floor of Congress or as an integral part of the legislative process.”

“Likewise, all federal judges are absolutely immune as well for any execution of their official duties as judges,” he added.

“But the Supreme Court’s decision does not make anyone above the law,” Klukowski explained. “Taking bribery as an example, after this ruling, a president can still be prosecuted for bribery, just like congressmen or judges can be prosecuted, because the act of taking money is not an official act.”

“All the Supreme Court did in the Trump decision is clarified when a president is immune for official acts and when he is not, no better and no worse than the other two branches of the federal government,” he concluded.