Court-Packing Is a Fringe Fantasy

By Charles C. W. Cooke

Monday, July 02, 2018

At the Weekly Standard, Adam White notes that court-packing is the Hot New Idea in progressive circles:

some legal scholars, are calling on Democrats to commit to “pack the Court” by adding new seats to the Court as soon as Democrats recapture the presidency and Congress—and filling those seats with extra Democratic-appointed justices. These calls preceded Kennedys’ retirement (they began shortly after President Trump was inaugurated, as Josh Blackman observed at the time). But they seem to be taking on new urgency now: Fordham’s Jed Shugerman, for example, announced on Twitter that if President Trump succeeds in appointing a replacement for Kennedy, then the next Democratic president and Congress should add six(!) new seats to the Supreme Court in 2021. (And abolish the filibuster for legislation, if it’s necessary to get the six bonus seats.) Ian Samuel, a Harvard Law fellow, staked out a similar position immediately upon Kennedy’s retirement.

I can’t say I’m surprised by this substantively. This is how progressives behave. There’s always an excuse for why progressives lost power, and there’s always a plan to regain that power by “fixing” perfectly fine institutions. This is just the latest one. When I saw this muttering getting louder, I thought, “isn’t it a bit odd that the American Left believes that Donald Trump is a fascist and that the next president it likes should seek to remove all judicial — read: constitutional — checks on his power?” But then I remembered that they don’t care about any of that, and they never did. They want power when they have it, and restraint when they don’t, and the long-term consequences can go hang. Besides, they did this once already and they pretty much got away with it. What’s there in the record to dissuade them from giving it another shot?

That said, I am surprised by how few of the idea’s promulgators can see that they’re peddling a political fantasy. At present, the Republicans’ Senate majority is 51-49 — as thin as it can be without needing a vice-presidential nudge — and yet it still seems likely that Trump’s nominee will gain 54-55 votes. For all the talk of “fighting!” and “Borking!” and creating a “national crisis,” the pressure is in fact running the other way. And it’s not just Heitkamp, Manchin, and Donnelly who are flirting with Mitch McConnell. Bill Nelson is, too. Absent a disastrous nominee or a totally botched process, Republicans are going to get their choice. And if they don’t get their choice, they’re going to expand their Senate majority on the back of the Democrats’ refusal, and get their nominee after November. Chris Matthews can vent all he likes. Blocking this nominee is a lost, lost cause.

Quite what it is within our political climate that has led so many to conclude that partisan court-packing is on the horizon is beyond me. Court-packing, remember, would not just require an aggressive Democratic Senate. It would require the entire federal government acting in concert while under the most withering fire from a unified opposing party. To add more justices to the Court, Democrats would have to amend the Judiciary Act of 1869. And to amend the Judiciary Act of 1869, Democrats would not only have to have complete control of the government, but be willing to abolish the filibuster for legislation, to put the easily-flippable House of Representatives on record as favoring the scheme, and to convince a Democratic president to gamble his or her presidency on what, to most voters, would look like an obvious power-grab.

The chances of this happening are tiny. For a start, the move would be extraordinary unpopular — lest anyone wonder, it would cause a constitutional crisis — and the backlash would be both swift and considerable. Even in times of prosperity, it is tough for either party to keep full control of the government, and, given the geographical distributions within our politics at the moment, it is especially hard for the Democratic party to do so. To so much as try a court-packing scheme would be to invite every Republican voter in the country to line up at the voting booth, along with a good chunk of independents in their endless search for “balance,” and to permanently irritate the very “conservative” justices whose influence the plan was supposed to destroy. Just two years elapsed between the 2008 “blue wave” and the Republican resurgence of 2010, and, since then, things have gone from bad to worse for the Democrats. If, in 2020, the party regains control of both Congress and the executive, its relieved power-players are not going to start indulging Daily Kos revenge fantasies. And if they do, they won’t stay relieved for very long.