Court packing should be DOA

The California Congressman Ro Khanna is only the latest high-profile Democrat to insist that the time has come to pack the Supreme Court by adding new justices. The plan, of course, is for justices who can be appointed by some future Democrat president and confirmed by a Senate controlled by the same party. Before him, former presidential nominee Kamala Harris proclaimed the need for a “no bad ideas” summit that would prominently include court packing on the agenda. The claim Democrats have repeatedly made is that Republicans “already packed the court” by denying President Barack Obama an appointment after the death of Justice Scalia.

While the Democrats had a reasonable ground upon which to protest when Republican Majority Leader Mitch McConnell announced he would not proceed with a confirmation for Obama’s choice (Merrick Garland), it is deeply misleading to claim the move amounted to “court packing.” McConnell essentially argued the Senate could leave the appointment up to the American people with the upcoming presidential election. Were Democrats to do the same should they control the Senate when a Republican president is in office, the GOP could raise no protest. That, let us be clear, would be an even-handed response.

But to take what happened and to attempt to leverage it into some kind of right for Democrats to engage in an expansion of the court to their advantage is disproportionate and wrong. It should also be noted that Republicans have generally dealt fairly with the Democrats’ nominees (or at least did not attempt to defeat them via manufactured scandal), while the American left mounted massive campaigns to defeat Robert Bork, Clarence Thomas, and Brett Kavanaugh. Only the first effort succeeded, but the other two came close. Further, it could be argued the left virtually never misses with a nominee, while the right has often gone wrong with Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, David Souter, and Anthony Kennedy proving to be justices who moved the needle significantly in a liberal direction. If anything, it may be the case that the American left has dominated Supreme Court selections for 75 years. This recent complaining is a bit rich considering the broader history.

In addition, there is little doubt that the single greatest grievance of American liberals with regard to the court is the Dobbs decision that overruled Roe v. Wade. Roe has been treated as a kind of citadel of constitutional right with possibly greater protection than rights of speech or religious liberty. Although various legal scholars pointed out the extremely shaky foundation (based on textual “penumbras” and “emanations”) of the decision, protecting it quickly became the greatest priority of American progressives. It also explains the desperate attempts to derail Bork, Thomas, and Kavanaugh. While secular progressives treat Dobbs as a kind of judicial activism, the reality is that it simply restored the original understanding of the founding document by returning the issue to the democratic consideration of the states. It is strange that the court is pilloried as though it violated some great democratic inheritance by returning an issue to American citizens and the governments under which they live.

The justification for court packing is lacking, but what about the idea, itself? If each side of the American political contest were to mount such campaigns every time they felt they deserved to do so, then the Court would be transformed into little more than a political instrument, a kind of extra legislature. Does anyone seriously believe that nine, after being expanded to 13, would result in an equilibrium? Is it not far more likely that each party, upon gaining control of the senate and the presidency, would expand the court again to obtain an upper hand for as long as it might hold it. Nine would surely make its way to 29 or 39! Donald Trump could go ahead and begin right away!

The simple reality is that the Supreme Court has admirably maintained its status as a court of law and not as a mere enactor of political programs. Whether one agrees with the court’s decision on tariffs, for example, it should be more than clear that a conservative court voted decisively against President Trump’s signature public policy initiative. It has done so again with regard to the president’s executive order attempting to abolish birthright citizenship. Narratives from the left that the Supreme Court is a mere MAGA court have become so contrary to empirical reality as to become risible. To make the case is almost automatically to engage in bad faith.

Should we move into a new era of the super court, one that expands with the will of presidents, such independence is likely to become a relic rather than a guarantor of the rule of law. We need a court, not a super legislature bound to the passing winds of democratic passion. Let’s keep it that way.