Court-Packing Would Be the Very Tyranny Democrats Have Warned About

By Charles C. W. Cooke

Monday, October 05, 2020

 

It is a testament to the extraordinary myopia of the American press corps that, day in and day out, it manages to miss not only the biggest story of the moment, but the biggest story that has presented itself within American politics for decades: the threat, currently being issued by many within the Democratic Party, to blow up the United States Supreme Court.

 

It is almost impossible to convey in words the monstrous enormity of what is being proposed, and yet it cannot be the case that our journalists lack the vocabulary with which to discuss it. For four years now, almost everything that President Trump has said and done has been met with language of the utmost urgency. We have heard about “shredded norms” and “threats to democracy” and “creeping fascism.” We have been warned that we are flirting with “totalitarianism” and “dictatorship” and even “concentration camps.” We have heard comparisons to Reichstag fires and the “secret police.” We have been told “This is not normal.” We have been informed that political parties that “ignore the law” are to be shunned. We have been regaled with lurid accounts of how nations decline. Often, this has been deserved, and, even when it has not, it has been justified on the grounds that free people remain free by acting prophylactically against encroachments. Now that it is the Democratic Party doing the threatening, however, the prose has become tentative, prosaic, and dull. Has there been a national recall on thesauruses?

 

Equally unlikely is that the lack of interest is the product of a lack of concern for the courts, for, when President Trump has criticized judicial decisions — or, worse, individual judges — he has been rightly lambasted. In a typical piece in The Atlantic, Garrett Epps described Trump’s verbal attacks as part of a “sordid war,” lamented that “the independent judiciary hasn’t faced such a direct attack since the Jeffersonians,” warned readers that we’re headed toward “mortally dangerous constitutional territory,” encouraged Americans to fall into “uproar,” and asked whether Justices Kavanaugh and Gorsuch would see fit to stand up against Trump’s rhetoric. If not, Epps inquired, “who will speak up for them when their time comes?”

 

One might now ask the same question of The Atlantic, which has started running pieces in favor of Court-packing, and of everyone else who has refused to engage. If, as Epps proposes, it was crucially important that John Roberts denounce Trump’s rhetorical provocations, surely it is utterly critical that the media and the legal profession assail the Democrats’ concrete threat until it is no more? We now have a series of prominent political figures who are not merely criticizing the Supreme Court but promising to destroy it, along with a presidential candidate who refuses to say whether he is on board — and still the matter is covered as if it were a minor dispute. Why? There is no honest calculation by which it can be more alarming for a president to rail impotently about judicial decisions than for the core of a political party to threaten to destroy the entire settlement.

 

And destroy our settlement it most assuredly would. First, the party would abolish the rules that have governed the Senate for more than a century, and then they would abolish the Supreme Court as a useful check on the government — a destructive binge that would kill two branches for the price of one. Surely, this would be the moment that the nation’s guardians have been waiting for? Surely, this would represent the Rubicon? The crossroads? The all-important fork in the road? Only once in American history has a political party been so contemptible as to raise the possibility of destroying the Supreme Court, and, having considered the proposition, it recoiled in horror — not because it lacked the power, but because it recognized that to use it would be to dismantle the American system of government.

 

That reversal was not the product of obstruction or of filibuster or of perfidious “minority rule.” Under Franklin D. Roosevelt, the Democrats enjoyed supermajorities of the sort we have never seen since, controlling more than three-quarters of the seats in both the Senate and the House, and having won 46 out of 48 states in the previous election. And yet, despite those advantages, the party recognized its depravity before it was too late. Rejecting the idea in 1937, Congress pulled no punches. In the House, Democrats lined up to denounce the president. The Chair of the House Rules Committee described the plan as “the most terrible threat to constitutional government that has arisen in the entire history of the country,” while Joseph O’Mahoney, an enthusiastic and partisan New Dealer, told a friend that it “smells of Machiavelli and Machiavelli stinks.” The Senate Judiciary Committee was even more blunt. Roosevelt’s proposal, it wrote, “violates every sacred tradition of American democracy,” corrupts “all precedents in the history of our government,” runs “in direct violation of the spirit of the American Constitution,” represents “an invasion of judicial power such as has never before been attempted in this country,” and, if enacted, would serve to “make this government one of men rather than one of law.” “It is a measure,” the report concluded, “which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

 

Will it be? If the coverage of the Trump era has featured a prominent theme, it has been that destructive ideas must be countered before they take hold, regardless of whether they are again presented or likely to be brought to fruition when broached. Irrespective of the era, there are few more destructive ideas than Court-packing, and none so keenly in need of ubiquitous condemnation. If that condemnation is not forthcoming, Americans might fairly ask whether the denunciations of the last four years were in earnest, or whether they, like so much these days, were wholly contingent upon the letter in brackets at the end of the subject’s name.