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The Quiet Menace of Court Packing

The Supreme Court has a credibility problem: a 40% approval rating, to be precise. Such a number is par for the course for President Joe Biden (whose approval hovers at 41%) and enviable for Congress, whose approval rose to a paltry 23% this year.

But for the Supreme Court, 40% approval marks a seismic 19-point drop from last year’s Gallup survey. In the wake of the Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade, many progressives have called for expanding and packing the court to overcome the conservative supermajority. On Face the Nation following the decision, Senator Elizabeth Warren (D–MA) declared that “we need to get some confidence back in our court and that means we need more justices on the United States Supreme Court.”

What a wonderfully simple idea! Let us protect abortion, stick it to Samuel Alito & co., and “get some confidence back in our court,” all in one fell swoop of expansion. 

Like all glittering panaceas, this “solution” of court packing is too good to be true. It is predicated on magical thinking about the institution of the Supreme Court and the prospects for future Democratic control in Washington. Further, it is a politically foolish proposal that has and will continue to sink Democratic candidates in tight races around the country. 

To fully expose the folly of court packing, it is prudent to examine the liberal grievance underlying it. Much of this anger predates the Dobbs ruling and centers on the unscrupulous tactics of former GOP Senate Majority Leader Mitch McConnell. When President Obama nominated current Attorney General Merrick Garland to the Supreme Court in February 2016, the Senate GOP under McConnell refused to consider his nomination on the specious premise that it was too close to the 2016 presidential election. Such obstruction was unprecedented and without constitutional basis. 

Fast forward to October 2020, and McConnell is ramming through the confirmation of Amy Coney Barrett in the middle of early voting in the 2020 presidential election. Apparently, confirming a justice eight months before a presidential election is beyond the pale, but holding hearings during an election—for a Republican nominee—is wholly proper. Few instances of such glaring political hypocrisy come to mind. Senator Mitch McConnell has shamelessly perverted the confirmation process, installing ideologues at every level of the judiciary, up to and including the Supreme Court. His duplicitous actions have weakened the court and eroded its credibility. 

The question for us liberals: what to do now? Faced with the crumbling institution of the Supreme Court, do Democrats give in to impulsive anger—shooting themselves in the foot politically—and stack the bench with sycophants for short term-advantage, wreaking irreversible long-term damage to the court and our system of government? Let us hope that cooler heads prevail and an alternate path is ultimately chosen. But while court packing still has life, it must be discredited and opposed. 

In the long term, court packing in no way protects civil rights or ensures a liberal (or functional) court. As soon as Democrats increase the size of the bench, Pandora’s box is open. Republicans will create and pack seats as soon as they return to the majority. In no time, we will have a twenty-five-seat court mired in dysfunction and unable to reach consensus—at least it will be in good company in Washington.

Furthermore, the GOP’s record of Supreme Court political hardball—from the obstruction of Merrick Garland to the sham confirmation of Amy Coney Barrett—far surpasses the Democrat Party’s. This suggests Republicans will probably triumph in most of the future court packing wars. Therefore, expanding the court will likely solidify—not diminish—its present medieval bent in the long term, imperiling other constitutional protections and meaningful action on climate change.

Court packing has also been political poison for Democrats in close races. In the closing weeks of the 2020 election, Republican Senate candidates hammered their Democratic opponents over court packing in critical battleground states. In Iowa and Maine, for instance, respective GOP Senators Joni Ernst and Susan Collins exploited their rivals’ equivocation on the issue, tarring them as bitter unconstitutional radicals. Senators Ernst and Collins handily won reelection, with their opponents significantly underperforming the polls. By contrast, Democratic candidates in other close races who forthrightly opposed court packing—notably Jon Ossoff and Mark Kelly—triumphed in 2020. 

Put simply, court expansion is not a winning issue. A PBS NewsHour/Marist poll in the days after the Dobbs decision found that 54% of registered voters opposed it. This included 60% of suburban voters, a critical bloc in battleground races. 

However, the institutional repercussions of court packing dwarf any political effects. The late great Justice Ruth Bader Ginsburg warned in a 2019 interview with NPR that “if anything would make the court look partisan, it would be that [court packing]—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.'”

With an inflatable and theoretically infinite number of justices, partisans will pack the bench to effect through the Supreme Court what they cannot advance through Congress. Thus, the supreme judicial body will operate as an unelected legislative body, upending the separation of the executive, legislative, and judicial branches. The President and party controlling Congress will attempt to read their policy priorities into the constitution and—with a subservient Supreme Court—they will succeed. 

Even the threat of court packing—resounding through the progressive mainstream—has a chilling effect on judicial independence. In effect, it threatens justices: if you don’t vote the right way, we will add ten of our people to get the result we want and dilute your influence. That is why we need a bill—and ultimately a constitutional amendment—that will prevent Congress from ever expanding the Supreme Court. Commonly called the Keep 9 Amendment, it simply defines the bench as nine seats. For Democratic candidates who do not support court packing, endorsing Keep 9 would allow them to repel deceptive attacks by Republican opponents. 

With the Supreme Court in need of extensive restoration, it is important to note that such an amendment would not preclude other reforms. Term limits for justices and nominations every four years are intriguing ideas that merit further consideration. It is also past time for a formal Supreme Court code of ethics to ensure integrity in its decisions.

As the current judicial term enters its third month, the highest court in the land finds itself in a perilously low moment. Much of this crisis of credibility can be attributed to the GOP’s dishonest tactics and politicization of the confirmation process. Even more can be laid at the feet of the radical precedent-breaking decisions issued by this conservative supermajority. But these grievances do not license liberals to destroy what is left of the court out of spite, which is precisely what court packing will do. Instead, Democrats should focus on winning elections and crafting meaningful reforms that will restore and preserve the institution of the Supreme Court. In that, we must repose our hopes for a truly judicious court.

Featured Image Source: The Week

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