Why court packing spells disaster
Down this path lies political breakdown and ungovernability
Among the many things to look forward to after the likely defeat of Donald Trump in next week's presidential election is progressives regaining their heads after four years of frequent derangement.
Note that I didn't say "Democrats." Rank and file members of the Democratic Party chose the steadfastly center-left Joe Biden as their standard-bearer this year, and he and his campaign have proven themselves to be remarkably even-keeled in responding to a range of partisan provocations.
The same cannot be said of the party's progressive wing of activists and very-online journalists. This has been demonstrated most recently by a wave of indignation about the confirmation of Amy Coney Barrett to the Supreme Court. I'm as infuriated as any liberal over how it unfolded. But this isn't the indignation of someone who's been the victim of a crime. It's the indignation of someone who has suffered a bit of bad luck and been forced to accept the consequence of a foolish decision. Ruth Bader Ginsburg could have retired from the high court in 2014, when a Democratic president and Senate had the power to confirm a liberal successor. Instead, she gambled that Democrats would maintain control of both branches or that she'd be able to stay alive until they did again. She lost that gamble, and so have the rest of us.
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It's agonizing that Republicans have now gotten to name Ginsburg's successor. But it isn't anything that Democrats wouldn't have done in the same situation. If Clarence Thomas had died in mid-September of an election year when Democrats controlled the Senate and White House, there's no way they would have held off from naming a liberal jurist to succeed him.
In this respect, what Senate Majority Leader Mitch McConnell did four years ago to Merrick Garland, Barack Obama's nominee to succeed conservative Antonin Scalia, who died in February of 2016, was much worse. That was a genuine escalation in a long series of them on both sides, with a (since abandoned) nonsense principle — no Supreme Court appointments in an election year — concealing the true principle at work, which is that Supreme Court nominees will henceforth only be approved when the presidency and Senate are held by the same party.
That's bad, because it significantly raises the likelihood that the court will regularly shrink in size, as deadlocked executive and legislative branches find it impossible to move forward with nominations to fill vacant seats on the high court. But very soon, Democrats will face a much graver decision — one that, if taken, would escalate things quite a bit further into outright dysfunction.
I'm talking, of course, about court packing — the act of one party unilaterally adding seats and confirming justices to the Supreme Court to ensure outcomes more to its liking. This is an idea that many progressives have talked themselves into considering an absolute necessity, both to punish bad Republican behavior and to ensure that the left receives compensation for Supreme Court seats that the GOP has "stolen."
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Court packing was an atrocious idea when FDR tried it in the 1930s, and it remains an atrocious idea now.
For one thing, it is broadly unpopular. When it comes to intra-Democratic politics, pushing for court packing in the opening weeks or months of a Biden administration would risk badly dividing the party. The fact is that a significant portion of the Democratic base (especially the part of it comprised of white working-class voters in the Midwest) is relatively conservative on social and cultural issues, and certainly uninterested in sparking a constitutional crisis in order to exact revenge on Republicans for their good fortune and hardball tactics.
How do we know that a good portion of the party would either actively oppose or fail to support one of the most precipitous constitutional moves in more than a century? Because there's precious little evidence that Democratic voters are anywhere near as agitated about the judiciary as the progressive activists and journalists driving the push for court packing or the Republicans they're reacting to. Was Merrick Garland's name even mentioned during prime time at the 2016 Democratic convention? Was a vote for the Biden/Harris ticket linked at the 2020 DNC to the need to nominate liberal justices? The answer to both questions is an emphatic no — which points either to the rank incompetence of the people running the party or, more likely, to an important truth about the priorities of the party's voters.
And if that isn't enough for you, consider the more recent, astonishing fact that in a time of intense partisan polarization, just a few short weeks before a hotly contested presidential election, confirmation for the deeply unpopular Republican president's staunchly conservative nominee to succeed a broadly popular liberal icon on the high court was supported not just by 51 percent of the American people as a whole and 44 percent of independents, but by 32 percent of Democrats.
But even if progressives could persuade a requisite number of Democrats to fall in behind a push for court packing, the move would be incredibly short-sighted. The reason the court matters so much to activists in the first place is that they rightly see a strong, left-leaning judiciary as crucial in certain areas of policy — above all, abortion, anti-discrimination, due process, and voting rights. But as my colleague Noah Millman has argued, that vision of proud, muscular judicial activism stands in fundamental conflict with packing the court.
In these areas, the Democrats want a strong court that isn't afraid to overrule the elected branches. And a strong court means a respected court, one that is widely viewed as legitimate and that elected officials would pay a political price for crossing. That view of the court, though, is incompatible with remaking the court in a blatantly political manner, which is precisely what court-packing would do. [The Week]
The moment that a progressive majority on a newly expanded Supreme Court ruled decisively on any of these issues (or on any of those conservatives care most about, including gun rights, religious freedom, and economic liberty), red states would simply disregard the opinion as illegitimate, nullifying it on the grounds that the decision was made possible by an explicit act of cheating.
That Pyrrhic victory would then be followed by an outright rout the moment Republicans retook control of the White House and Senate (perhaps riding, in part, a backlash to court packing), a position from which they could pack the court with even more conservatives to surpass the number of newly added progressives. By this point, no one on either side would feel any obligation at all to defer to the authority of the nation's highest court. Every one of the disputes in our politics that the Supreme Court had if not settled then at least placed in abeyance would surge back into the political arena at the local, state, and federal levels, with no authority capable of adjudicating the clashes.
Down that path lies political breakdown and ungovernability.
That's why the only viable way forward is the one Joe Biden proposed last week: The appointment of a bipartisan commission to study and propose reforms that aim toward both fairness and de-escalation in the judicial wars. If the court is going to be expanded, it needs to happen in a way that doesn't benefit only one party. But there are other proposals for reform far smarter and much less incendiary than expanding the number of justices. Let the commission look at them and make recommendations, with Biden himself standing ready to help persuade public-spirited members of Congress from both parties to act on the proposals in a way that will benefit the political community as a whole.
That's how a country capable of self-government settles disagreements and disputes.
Damon Linker is a senior correspondent at TheWeek.com. He is also a former contributing editor at The New Republic and the author of The Theocons and The Religious Test.