Please Don’t Pack the Courts – A Plea
By: Brady Condon
Ah, the Supreme Court. That great “apolitical” institution. That is, until (insert party or person here) ruined the whole damn thing and therefore democracy as well.
The Judicial branch has been the most revered, and most often forgotten about, part of the American government. Before the 70s, judges were voted in almost unanimously, simple rubber stamps to whoever the president was. These types of judges were mere checks on the rest of the federal government, preventing it from expanding its power too much.
This arrangement changed when the Supreme Court, led by Chief Justice Earl Warren, began to make more progressive rulings. Justice Warren, like many justices of his era, had a more progressive outlook to the U.S. Constitution. In their eyes, the Constitution was a “living, breathing document,” and should be more loosely interpreted, as the Founding Fathers could not have anticipated the developments in American society. It was through this viewpoint Brown v. Board of Education and Roe v. Wade were interpreted.
For most of America, this was fine. At the time, society was dominated by liberals and the Democratic Party. However, conservatives were uncomfortable with these developments, seeing the judges as “legislating from the bench.” Two prominent legal minds, Robert Bork and future Justice Antonin Scalia, formed the Federalist Society to see a scaling back of liberal rulings. In the Federalist Society, the idea of originalism took root. Originalism holds that the constitution should have a strict interpretation, and that each word of the Constitution should be read as initially intended. To do this, they read through other papers written by the Founding Fathers, as well as dictionaries from the time, to get each word exactly right. If the Founding Fathers were wrong, originalists posit, then we can amend the Constitution.
Over the 1970s and into today, Supreme Court nominations have gotten much more contentious. What used to be a unanimous decision is now almost entirely decided on party lines. In 2016, these tensions reached a peak when Mitch McConnell refused to bring President Obama’s nomination of Merrick Garland to a vote. On a greater level, Senator McConnell had refused to let Obama nominate over 100 judges to the lower courts as well, influential in its own right but a discussion for another day.
During his three years in office, President Trump has had the opportunity to nominate three Supreme Court Justices. Although somewhat controversial, Neil Gorsuch was confirmed with a 54-46 vote, with 3 Democrats voting for him. Brett Kavanaugh’s nomination was a whole other mess, partially because of his ideology, but mostly because of the allegations of sexual assault laid against him. Still, he passed with a 50-48 vote, with only one Democrat voting for him. Finally, after the death of Justice Ruth Bader Ginsberg, President Trump has yet another opportunity to push through a Supreme Court Justice. Although definitely controversial, the fight over her nomination is more against the Conservative tilt of the Supreme Court than the nominee herself. Maybe it’s the 2020 election, in all of its fiery glory, but her nomination process has not gripped the nation like Justice Kavanaugh’s did. Because the Senate has a Republican majority, it seems extremely likely that she will be confirmed.
This move would tilt the court to a 6-3 composition in the favor of conservatives. Such a move would no doubt affect America for the next 40 years. In the past, conservatives have tried to overturn Roe v. Wade, just to fall short at the Supreme Court. However, it is now entirely plausible that they do. The same applies to same-sex marriage and even healthcare.
This turn of events is a Democrat’s worst nightmare, and as a result, many have called for a packing of the court. In the constitution, there is no set number of Justices on the Supreme Court – Congress determines that number. As a result, Democrats, who are increasingly likely to take the Presidency and both houses of Congress, have suggested adding seats to push through as many liberal justices as possible. In the short-term, this would benefit the Democrats and liberals, who could feel secure in past rulings.
However, in the long term, there could not be a more bone-headed move. Seriously, does anyone not know the Golden Rule - Treat other’s as you want to be treated? What about the Hammurabi code – an eye for an eye? If Democrats pack the courts now, Republicans are going to do the exact same thing if and when they win back Congress. Don’t believe me? Look at how confirmations used to go. In the past, the Senate could filibuster the nomination of a judge. Harry Reid, the old Senate Majority Leader, got rid of the filibuster for lesser courts for his own convenience. This was the same process McConnell used for the Supreme Court. If Harry Reid didn’t push the envelope in his favor, McConnell may have never done that out of fear of precedent. The exact same thing will happen if the Democrats pack the court. In ten years, we could see the Supreme Court hold 100 judges.
This is extremely bad for democracy. Institutional integrity is necessary for a functional democracy. In other countries, when authoritarians want to consolidate power, they shift the courts in their favor. It happened in Poland, as well as countless other countries, and it can happen here, too. Eventually, one party wins two of the branches of government, gets sick of opposition parties, and packs the court until democracy is overruled.
Now fortunately, Joe Biden doesn’t seem to want to pack the court. For better and for worse, Biden is an institutionalist – he doesn’t like to change the entire system. Even if he did, it is still unlikely to happen. We can find an example of trying to pack the courts in our own history. In the 1930s, upset with the courts overruling his New Deal legislation, FDR tried to pack the court. After opposition from even his own party, FDR lost that battle. Hopefully, Democrats understand this. It’s a matter of losing the battle and winning the war. Eventually, there will be another opening on the Supreme Court, and they can nominate their own justice. However, if they are not patient, it will come back to haunt them.