Pack the Court? Don’t Pack the Court, Baby

By: James West

Hamilton wrote in Federalist No. 71, “When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.” While many modern progressives would jump at the chance to quote a fictionalized version of Hamilton, it may behoove them to maintain a stricter adherence or understanding of his words.

To say that the fabric of our nation is under attack is not hyperbolic, though the sentiment needs some clarification to make it more well understood. What do I mean by “fabric of the nation?” An answer in two parts: first, Federalism. The delegation of powers and responsibilities between the Federal and State governments in order to ensure a more even-keeled spread of power. This has, of course, been “under attack” – and perhaps even partially destroyed – by the 17th Amendment and progressive agendas dating back to Wilson. That being said, the philosophical martyr that is Federalism is not the subject of this writing.

The second part of the “fabric of the nation” is the Separation of Powers, the delegation of powers and responsibilities between the three branches of government. It is an unfortunate reality that this foundation of our country’s government has been relegated to, essentially, a footnote in the American education system. We learned the branches, but never why they were separated in the first place, the philosophy behind why they were given the responsibilities they were and the dangers in blurring the lines between them. And so therein lies a major contributing factor as to why our fabric, as described above, is “under attack.” Now, perhaps there is some nefarious agenda to pool power in a massive oligarchical scheme. Perhaps there is a coordinated attack by outside parties to dismantle and disrupt how we operate in order to make us weaker. And, perhaps, there are elected officials and influential policy makers who know the risk of what the say and say it any way, not for a benevolent goal, but for selfish ends. While I am sure there is no shortage of the latter, Hanlon’s Razor presents a simpler explanation: never attribute to malice that which is adequately explained by stupidity. The “attack” is not like a line of missiles aimed at the front line, but more akin to a bear aimed at a screen door when it smells a fresh baked pie. The screen door is collateral damage to the bear’s end, and the bear knows not what it does – only the reward of pie.

With one party heading the Executive Branch, controlling (though less so than a few months ago) the House, and now the Senate, one obstacle poses a threat to the only bastion of objectivity blocking their agenda: The Supreme Court. The knob on the screen door. The pie is the agenda, and the claws and snout with which they rip through the screen like a less-competent Winnie the Pooh is court-packing. To quote a colleague, “I can’t believe we’re actually talking about that in 2020.” And we should not be – court-packing is logically incoherent, futile at best, and antithetical to American principles.

I understand how a “slippery slope” argument could easily become fallacious, and so I hold myself from saying “What are we going to have? A million Supreme Court justices?” But the argument holds that simply adding more justices leads to an incoherent outcome. The problem with court-packing is that it does not solve a problem of “not enough justices,” but solves a problem of “not enough justices that rule how we want, right now.” It is a permanent solution to a temporary problem (“problem” being used loosely). It does not address that there will always inevitably be some sort of inequity within a court – any court – with regard to the judicial philosophy being applied when rendering decisions. The closest mechanism for eradicating that inequity can be found in the Delaware State Constitution, which requires that no more than a “bare majority” – a “one-seat advantage” – may be held by the same political party on any given Delaware court. This mechanism (which made its way to the Supreme Court in December in Carney v. Adams, but was remanded based on standing of the plaintiff) ensures that on a five-member court, for example, there can only be a 3-2 majority. However, therein still lies some inherent inequity in the judicial philosophies of the judges. This inequity is impossible to eradicate, only to swing in the other direction. Like any pendulum, it will inevitably swing back.

The incoherence of idea of court-packing is supplemented by its futility – as stated above, the result of the endeavor would only be temporary until judges die or retire and new judges are appointed and the pendulum swings again (or worse, that precedent for packing is established and each cycle we add more judges – maybe not a million, but 15? 17?). But moreover, court packing assumes that each judge is going to rubber stamp an opinion and will inevitably rule one way every single time. To the unenlightened, this would assumedly be accurate and happen all the time. Fortunately, it’s not true. Justice Breyer often spoke in his debates and discussions with Justice Scalia however the Supreme Court rules unanimously – *unanimously* –  about 40% of the time. That’s 9-0 opinions, 40% of the time. It speaks nothing of the unexpected 8-1’s or 7-2’s, or even 6-3’s. We’ve been led to believe that the Court ruled 5-4 on everything, with a liberal wing and a conservative wing and one or two swings in the middle, and that that’s way it has to be and should be. The narrative now is that “balance” has been thrown off by the Court’s alleged 6-3 inequity, and that must be resolved. The facts dictate this is an exercise in futility. Not only is there no *guarantee* that the Court will rule 6-3 on the issues, but history suggests that they would not. We have seen that in action – Gorsuch, Kavanagh, and Barrett have issued rulings contrary to Trump’s interests. It’s almost as if they believe they are an independent, neutral branch of government.  

Court packing has no pragmatic end – except one. The threat of court packing is more combustible than the packing of the court itself. That much is historically true – see, FDR’s plan to add a justice every time one reached 70 and would not retire (a switch in time that saved nine, indeed). It was antithetical to American principles then, and its antithetical now. There is always going to be an inequity in the court, but in the same way attempts to remove that inequity are futile, the line is fine between a natural inequity over the progression of time and an inequity as a result of one Executive’s undue influence over a completely separate branch of government. Court packing – especially FDR’s plan – is a complete blurring of the separation of powers. It would grant undue influence from one branch over the other, and it would cause the judiciary to be a tool of the Executive to effectuate the rulings that they want. You may ask, “But James – isn’t that already the case? Doesn’t the President appoint who sits on the Supreme Court, and so the influence is Constitutionally based?” Yes and no. The problem is not the *influence* of the President on the Supreme Court. That influence is always there, just as each branch influences the other as they keep themselves in check (or are supposed to). But packing the Court would lead to an *undue* influence, and influence so great that it can only be called control. Many on the Left already view the Supreme Court as a Plan B Legislature, a way to get things done when the pesky Democratic process just will not move quickly enough. That is not what it is, and it is what it can never be. The sanctity of the Court’s objectivity must be maintained.  

And, of course, the undue influence would be shifted once a President from a different party was elected. The pendulum swings. What makes our country our country, or our Union our Union, has been eroded for decades. Mobs burn and torch small businesses, mobs storm the Capitol building, and the trust in our electoral system is at an all time low. Our division is stark, social media is making it worse, and everyone has opinions, but no one has convictions. After years of calling Trump a fascist and a dictator, the same people will be complacent or supportive of power continuing to centralize and acquiesce in the Executive. Court packing now would be just as if not more dangerous than when it was threatened by FDR. It’s a danger to the Separation of Powers and I implore all to think twice, especially Majority Leader Chuck Schumer, before suggesting it further.

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