Court Packing

There has been a slow drumbeat on the left to begin using similar hardball tactics to counter those used on the right. Republicans have changed voting rules, decreased an elected position’s power as they leave it for an incoming Democrat, and denied constitutional duties in order to win battles. This last tactic has led some to propose that Democrats should “pack” the United States Supreme Court in order to counter the two Justices that they consider illegitimate. I do not agree with this idea, but first, let’s look at how we got here.

In the past three years, we have seen President Trump appoint and have confirmed two new Justices of the Supreme Court. These two appointments have been contentious to say the least. First, there was Neil Gorsuch who, under different circumstances, may have been a perfectly reasonable conservative choice for a Justice. However, it was the circumstances under which he was appointed that drove Democrats, myself included, up the wall. Justice Antonin Scalia died in February of 2016, a conservative Justice who many remembered as a champion for the sometimes-illogical constitutional interpretational method of “textualism”. The following month, President Obama appointed Judge Merrick Garland to be Scalia’s replacement. This appointment occurred a full eight months before the 2016 election between Hillary Clinton and Donald Trump. Yet Senate Majority Leader Mitch McConnell claimed that this was a perfectly legitimate move because Obama was a “lame duck president”. McConnell said that it was clear “President Obama made this nomination not. . . with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election”. And so, the Senate dragged their feet for eight months, disregarding the choice that the voters had already made in 2012, and instead hoping on the decision voters might make in 2016. Because of this tactic, Democrats have taken to labelling his seat as “stolen”. I agree with this characterization.

Justice Brett Kavanaugh was nominated under very different circumstances. In June of 2018, Justice Anthony Kennedy announced he would retire after more than 30 years on the Court. Several days later, after consulting with a list of potential Justices given to President Trump by the Federalist Society, he nominated Judge Brett Kavanaugh of the D.C. Circuit. While Kavanaugh had begun to lobby senators for their votes in his nomination, Senator Dianne Feinstein received a letter from Christine Blasey Ford. Ford was a professor from the University of Palo Alto, CA and had claimed to have been sexually assaulted by Kavanaugh in high school. Despite this letter, her later dramatic testimony in Congress, other accusers coming forward, and Kavanaugh’s oddly emotional backlash in the same hearing, he was confirmed on October 8^th, 2018. The Senate made their vote along party lines with only Joe Manchin (D-WV) voting to confirm, 50-48. Unlike Gorsuch, Kavanaugh was opposed by Democrats because of the nature of the man being nominated. In his testimony he demonstrated an unusual vindictiveness against Democrats that would be looked down upon by other Justices. It was compounded by the Republican Senate’s lack of empathy when it came to sexual assault allegations, chalking the entire effort up to, in Kavanaugh’s words, a “last-minute character assassination”. Justice Kavanaugh might be a repugnant person whose emotional composure during the hearing was a disqualifying quality, but he was still legitimately nominated and approved by the Senate. This seat was not stolen, only given to one who may have not deserved it.

In response to these two seats which arguably should not be in conservative hands, a small number of Democrats have proposed “packing” the court. This means essentially adding new seats to the Supreme Court to dilute the impact of these two seats. Technically, there is nothing but a vote that prevents this from happening. There is no rule on the number of Justices the Supreme Court requires. Article III of the US Constitution vests the power in Congress to create a Supreme Court as they see fit. The details of its existence are very sparse, only stating “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” There is nothing said about the number of Justices on the court, only that it shall exist. Though its number has fluctuated between five and ten, the Judiciary Act of 1869 set the number at nine and it has not moved since. This means that only an act of Congress would be needed to amend that law to increase the number. While it might be a simple process that isn’t necessarily steeped in tradition, I disagree that this is the right path to take.

I disagree for two main reasons: this opens up the door to more tactics that would destabilize our institutions, and it would Democrat’s position in history.

There is something to be observed when one side continues to take action that nearly all raise their eyebrows at. Although cheating at a game may allow one side to win, those who watch the game start to think of them as cheaters. But if both sides start to cheat, observers may start to wonder what the point is of the rules. While court packing might not be the equivalent of cheating, it will be spun by the right to appear to be cheating, which may be almost as bad. An important part of the power of our institutions, like the courts, is the public’s confidence in them. The courts have no power of their own to enforce their rulings, they only have power because we agree to it. If the judicial branch becomes just another political chip in the partisan game, it will undermine that power that has been so carefully constructed over the last 200 years. Democrats stacking the Court would inevitably be followed by Republicans doing the same or impeaching the added Justices and bringing the number back to nine. Though it could also signify an even greater departure. Republicans could very well undermine the power of the courts entirely by reducing the congressionally expanded jurisdiction, cutting out an avenue for redress. Taking this first step would result in far greater consequences, throwing the courts into the ring of something that is “in bounds” to be messed with. I understand that those on the right have “fired the first shot” with Gorsuch, but this goes into my second point: we must rise above.

When they go low, we go high. Those words, spoken by Michelle Obama at the 2016 Democratic Convention, belie a deeper and much more important meaning than most give credit. Nearly every action taken by those in power is, in a sense, a battle for the eyes of history. In our age of computers and television, it starts as a battle for optics. It has been that way ever since the mass introduction of TV in every home. Remember back to the civil rights era. Though the picture was blurry and presented in faded black and white, it showed peaceful protestors being attacked by dogs, police, and firehoses. Though there can be no doubt that civil rights protestors fought back on certain occasions, what was presented was a calm and collected group asking for rights guaranteed under the constitution, and being met with violence. Many attribute this presentation to the passage of the Civil Rights Act in 1965. Our exposer to optics has only grown. Though some claim that they can just talk right on through it, optics matters. Various laws and regulations not only ban corruption, but even the appearance of corruption, which would just as effectively undermine the legitimacy of an institution. What Donald Trump has engaged in is clear corruption, but he does not try to deny it, rather he accuses the other side of the same thing, leading viewers to engage in the dismissal of the entire rulebook as analogized earlier. It simply looks better if Democrats float above the corrupted fray, continue to fight the good fight, and use the proper channels to engage with their political opponents.

We have a choice in how to engage civilly and politically. All must make the active decision, every day, that they will fight with honor and truth. I think we should continue to do so and abandon the idea of court packing.

#FitzFile