Packing the Supreme Court Could Destroy the US Legal System

By Shaun Tan

By Shaun Tan

Founder, Editor-in-Chief, and Staff Writer

11/10/2020

For a long time, the notion of packing the Supreme Court seemed so absurd, so self-evidently insane, that neither Republicans nor Democrats would seriously consider it.

 

That is, until the death of Supreme Court Justice Ruth Bader Ginsburg (RBG) last month. Since then, several prominent Democrats have said their party should pack the Supreme Court if they win the White House and Congress in the upcoming election and the Republicans proceed to fill RBG’s seat with their own nominee. Senate Minority Leader Chuck Schumer said that “nothing was off the table” if Republicans move forward with their nomination. When they were asked if, given the opportunity, they’d pack the Supreme Court during the debates, Democratic presidential nominee Joe Biden and his running mate, Kamala Harris, repeatedly and transparently dodged the question and refused to answer. Sensing weakness, President Donald Trump and Vice President Mike Pence repeatedly hammered them for their evasiveness on this point.

 

And, really, why wouldn’t they? By refusing to abjure something as nuts as packing the Supreme Court, Biden and Harris have gifted Trump and Pence a cudgel to hit them with, and you can be sure they’ll be bashing them with it every day until the election. Campaigning in Arizona, Biden made matters even worse by telling voters they’d know his opinion on court-packing “when the election is over.” To try to justify this, Biden said that “the moment I answer that question, the headline in every one of your papers will be about that.” And so instead the headline in every paper is about Biden’s refusal to disclose his policy on court-packing.

By refusing to abjure something as nuts as packing the Supreme Court, Biden and Harris have gifted Trump and Pence a cudgel to hit them with.

Threatening to pack the Supreme Court is nothing less than trying to undermine the independence of the judiciary. It’s a naked threat to the judges: rule against my wishes and I’ll make you a minority in your own court by stacking it with people who agree with me. The last attempt by a president to do this was Franklin Delano Roosevelt’s in 1937, and it failed miserably: the Senate voted against it by 70-20 (even though FDR’s Democratic Party held a supermajority there), and the Senate Judiciary Committee rightly condemned it as “an invasion of judicial power such as has never before been attempted in this country.” In a 1983 congressional hearing, Biden called FDR’s gambit “a bonehead idea…a terrible, terrible mistake to make and it put in question for an entire decade, the independence of the most significant body…in this country: The Supreme Court of the United States of America.”

A 1937 political cartoon captioned “Do We Want A Ventriloquist Act In The Supreme Court?” depicting FDR’s attempt to pack the court

It will also, obviously, trigger a cycle of escalation with no end in sight. If the Democrats raise the number of Supreme Court judges from nine (the number it’s been since 1869) to 11, the next time the Republicans win the White House and Congress, they raise it to 13, which prompts the Democrats to raise it to 15 the next opportunity they get, and so on and so on until the court comprises of a ridiculous, and ever-increasing, number of judges, which will likely make considered deliberation much longer and more difficult. Ilya Somin, law professor at George Mason University, called court-packing “a terrible idea,” warning that “it would lead to a spiral that undermines the institution of judicial review. I don’t see any likely way of avoiding the spiral, once one party has passed a court-packing bill once.” Biden himself recognized this, saying as recently as September 2019: “I would not get into court-packing. We add three justices, next time around, we lose control, they add three justices; we began to lose any credibility for the court as it all. [sic]” This is likely why RBG herself opposed packing the court, saying: “Nine seems to be a good number, and it’s been that way for a long time.”

 

Most dangerously of all, as both parties take turns to pack the Supreme Court, the entire nomination process will become more and more partisan, and candidates will likely increasingly be selected primarily for their allegiance to the party nominating them. This will undermine not only the court’s independence, but also its professionalism, especially if this is coupled with equally harebrained moves to end lifetime tenure for the judges.

 

Critics of the Supreme Court should reflect on how, for all its failings, it’s the only branch of government that’s held up in the Age of Trump and continues to function more or less as it’s supposed to. The justices continue to conduct themselves according to professional standards, and with decorum and dignity. Despite obvious and vast political and ideological differences, they can function effectively as a panel, and maintain an atmosphere of collegiality, such that even polar opposites like arch liberal RBG and arch conservative Antonin Scalia were great friends and respected each other. Consider how even Trump’s court picks, Neil Gorsuch and Brett Kavanaugh, who were confirmed in the most divisive of circumstances, have demonstrated their independence by voting against Trump’s wishes on matters as contentious as the disclosure of the president’s tax returns and employment discrimination against LGBT people, much to Trump’s outrage.

The current US Supreme Court bench (including the late RBG)

Contrast that with Congress, where Republicans and Democrats largely seem to have nothing but hatred and contempt for each other, and habitually vote against each other’s initiatives for no better reason than that they were initiated by the other side. Contrast that with the absolute circus both sides made of Kavanaugh’s confirmation hearing, such that Democrats acted like they knew he was guilty of trying to rape Christine Blasey Ford (some of them, including Kamala Harris, before even bothering to hear the testimony of either side), and Republicans (apart from Jeff Flake and Susan Collins) acted like they knew he was innocent (when it was impossible to know either way), and then proceeded to vote along party lines. Consider how most congressional Republicans are unwilling to perform their constitutional duty to check the president because they’re terrified that Republican voters, who are in Trump’s thrall, will vote them out of office if they do. Consider how (with the heroic exception of Mitt Romney), they all voted against impeaching Trump, despite his blatant abuses of power, including obstructing investigations into his misconduct and soliciting a bribe from a foreign government.

 

Packing the Supreme Court will likely infect it with the kind of dysfunctional partisanship we see in Congress, such that the judges there might begin to vote solely along party lines too. “If anything would make the court look partisan,” RBG said last year, “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.’” This partisanship would undermine public confidence in the judiciary. It would also undermine the rule of law, one of America’s greatest assets. This will in turn erode any sense of certainty in the law. How, after all, can anyone know with any confidence what the law says on a contentious issue if another party can come into power in the next election and pack the nation’s highest court so that it comes to a completely different conclusion on the subject? As Thomas Jipping and GianCarlo Canaparo of the Heritage Foundation wrote: “Legislative and constitutional questions would be decided, undecided, and re-decided with every swing of the electoral pendulum.” The likely result of packing the court is a spiral into legal anarchy. As Jonathan Turley, law professor at George Washington University, noted: “It is a curious way to honor Justice Ginsburg by destroying the institution she loved.”

 

So why, oh why, would anyone think packing the Supreme Court is a good idea? Some Democrats have promoted court-packing as playing hardball – revenge against congressional Republicans for their despicable refusal to vote on Merrick Garland’s candidacy in 2016. Whilst anger against Republicans for this betrayal of their constitutional duty is perfectly justified, retaliation cannot take the form of sabotaging the last remaining functional branch of government. Others have argued that even threatening to pack the court might make centrist Republicans hesitate to push through their nominee, allowing the Democrats to fill the seat if Biden wins the upcoming election. This might make sense if it’s almost certain Biden will win. It’s not. Biden may well lose, and this reckless threat to pack the Supreme Court, something centrist Democrats, especially those in swing states, view as “electoral suicide” because it alienates moderate and independent voters, may be the decisive factor in his loss – and if Biden loses, the Democrats lose all. Another argument is that the prospect of packing the court “excites the Democratic base,” but this is equally dubious. Who does this prospect excite? Those on the far left, like the hipsters in Brooklyn and San Fran, whose votes will make virtually no difference in the upcoming election. Who does it repel? Everyone else, including moderates and independents, especially those in swing states, whose votes Biden desperately needs to win. Such an irresponsible and nakedly partisan power-grab is the last thing Democrats should support when they’re trying to convince wavering Republican voters to put country before party. And what happens if Trump gets reelected and Republicans win control of Congress? What if, into his second term, he gets sick of the Supreme Court ruling against his wishes? What’s to stop him from packing the court with his own partisans then and using the Democrats’ position on the issue against them? Packing the Supreme Court, or even threatening to do so, is not just ethically wrong, it’s politically stupid.

Packing the Supreme Court, or even threatening to do so, is not just ethically wrong, it’s politically stupid.

Last year, Biden said he opposed packing the Supreme Court “because we’ll live to rue the day.” Indeed, Democrats will, and we need that nobler, saner Biden today. Biden, Harris, and other prominent Democrats need to end their flirtation with the idea of court-packing and unequivocally condemn it. Entertaining that idea benefits only the enemies of the rule of law and judicial independence – chief among them the current occupant of the White House, the very man Biden needs to unseat.

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