By Charles C. W. Cooke
Tuesday, October 13, 2020
Joe Biden refuses to say whether he hopes to end a
century-and-a-half long political settlement and “pack” the Supreme Court with
judges upon whom his administration would invariably be able to rely. The
Constitution of the United States should answer his question for him.
A proposed 28th
Amendment reads: “The Supreme Court of the United States shall be composed of nine
Justices.” If ratified, these 13 words would put the case to bed for good.
Such a provision would be equivalent in form and intent
to the 22nd Amendment, which was introduced in 1947 and approved in 1951. In
effect, the 22nd Amendment serves to codify an important and longstanding American
tradition that progressives could no longer be trusted to respect: That two
stints in the White House is enough for any man. Since 1797, when George
Washington declined to run for a third term, presidents from all parties had
served two terms and then called it quits. In 1920, Woodrow Wilson tried to
break this pattern, and would, indeed, have run for a third time if his party
had acceded to his wishes. Thankfully, the Democrats declined to acquiesce, in
part because Wilson was no longer physically or mentally capable of doing the
job, in part because his influence and popularity had dwindled, and in part
because they were aware of the unwritten two-and-out rule as well. But their
resolve lasted for only two more decades. In 1940, Wilson’s intellectual and
partisan heir, Franklin Delano Roosevelt, received the Democrats’ blessing when
he ran for a third term. Four years later, the party again backed him when he
ran for a fourth term. In response to his death, early in that fourth term,
Congress began preparing to make official what had hitherto been understood. In
1807, as he neared the end of his second term, Thomas Jefferson proposed that
“if some termination to the services of the chief magistrate be not fixed by
the Constitution or supplied by practice, his office, nominally for years, will
in fact, become for life.” FDR had blown up the “supplied practice,” so “fixed
by the Constitution” it would be.
A 28th Amendment setting the Supreme Court at nine
justices would follow suit. Moreover, it would serve as a rebuke to precisely
the same people and modes of thinking that the 22nd did. The idea of expanding
the Supreme Court in order to neuter it was first proposed during the
administration of — surprise! — Woodrow Wilson. Wilson never seriously pursued
it, but, again, his heir, Franklin D. Roosevelt, did. Admirably, Roosevelt was
stopped in his tracks by his own party, which, despite enjoying supermajority
control in Congress, dismissed the notion as an enabling act for dictatorship.
Rejecting Roosevelt’s proposal in 1937, the Senate Judiciary Committee seemed
sure that the idea had been so “emphatically rejected that its parallel will
never again be presented to the free representatives of the free people of
America.” If the committee turns out to have been wrong, the states should step
in and take the option off the table for good. Alexander Hamilton observed
that, unlike in the elected branches, life terms represent an “excellent
barrier to the encroachments and oppressions of the representative body.” But
there is, of course, no virtue in this arrangement if judges can be added to
the Court at will.
It would be highly appropriate for such a rule to be
placed into the Constitution, given that what we are seeing unfurl now in D.C.
is not really a fight over the Supreme Court, so much as a fight over whether
we should keep that Constitution at all. It is remarkable that it has
taken this long to arrive. More than a century has passed since Woodrow Wilson
insouciantly announced that the highest law in the land was outmoded
and should be replaced, and it is only by chance that his worldview has seeped
into the law gradually. FDR may have been repudiated in his attempt to blow up
the Court, but, by the end of his life, he had served so long that he had
appointed eight of the nine justices, and the “problem” that he was trying to
“fix” had largely gone away. Since then, the desire to abolish the Court has
been less pressing, either because a majority of justices has been willing to
make up the law, or because enough justices have been willing to
consider making up the law to give those who wish to “evolve” the Constitution
into meaninglessness a shot at getting what they want. Sometimes, it has looked
as if that might change, and when it has, the Democratic Party has all but lost
its mind. (For examples of this, consider the cases of Bork, Thomas, Alito, and
Kavanaugh.) But, until now, there has been no real danger that the law would be
consistently read as written.
With the nomination of Amy Coney Barrett, that has changed.
In response, many within the Democratic Party have adopted a posture of open
revolt for the first time since the New Deal. Understanding that they cannot
say the quiet part out loud, both they and their enablers have resolved to flip
between refusing to answer the question and issuing Orwellian nostrums whose
meaning is precisely at odds with the truth. Joe Biden is a particularly
egregious offender on this score, having simultaneously declined to confirm
whether he will destroy the Court and described the standard operation of the
nominations process as “court packing.” Biden assuredly knows better: In 2005,
he described
Roosevelt’s court-packing plan as an outrageous “power grab” proving that
Roosevelt was “corrupted by power.” In his new stance, he is being joined by an
increasing number of journalists who also know better, but do not care. Perhaps
the most extraordinary newspeak has come from the Associated Press, which has
started describing the explicit desire to increase the number of judges for partisan
gain as “depoliticization” and casting those who oppose it as mere “critics.”
Thus are we arriving at a point at which the official position of the
Democratic Party is that Roe v. Wade is a “super precedent” but that
having nine justices on the Supreme Court is a recent quirk.
This extremism will not do. Given that whichever party
takes the Senate this year is likely to do so narrowly, it is highly
unlikely that court-packing will make it off the op-ed pages any time soon.
But, as history shows, free people often live just one unforeseen crisis away
from the edge. To prevent this risk from keeping us all up at night, we write
good rules down in transient law, and we write great rules down forever. A
nine-justice Court works. Let’s make it official.
No comments:
Post a Comment