By David Harsanyi
Tuesday, October 06, 2020
To this point, Joe Biden hasn’t offered any position on
court-packing, one of the gravest threats to the constitutional order in modern
American history. Whether he is too scared of offending a significant faction
of his party or he believes it’s an idea worth considering, his silence is a
reflection of a dangerous shift on the left.
Progressives, of course, have a point. If the Supreme
Court adheres to even the most rudimentary constitutional limits on state
power, rather than surrendering to the impulses of majoritarian politics, it’s
going to be a huge impediment to their agenda. Indeed, they have the same
motivation as President Franklin Roosevelt had when he attempted to expand the
Court in 1937: One-party rule.
FDR revived a Woodrow Wilson plan to arbitrarily place
political allies into the courts, one for every judge over 70 years old, which
would have meant 50 additional political allies on the federal bench, and six
additional Supreme Court justices. Like today’s Democrats, he first softened up
the public by attempting to delegitimize the Court — claiming, for instance,
that the justices were incompetent geriatric cases incapable of performing
their duties. (It is somewhat ironic that the most reliably pro–New Deal
justice at the time, Louis Brandeis, was the only octogenarian on the Court.)
In those days, there were still enough politicians who
valued the separation of powers to stop him.
Of the ten members of the Senate Judiciary Committee who signed a document
opposing FDR’s scheme, seven were Democrats. They didn’t merely maintain that
FDR was wrong or misguided; they argued that the court-packing plan was an
“utterly dangerous abandonment of constitutional principle,” a transparent
scheme to punish justices whose opinions diverged from the executive branch,
and “an invasion of judicial power such as has never before been attempted in
this country.”
If enacted, the senators wrote, court-packing would
create a “vicious precedent which must necessarily undermine our system.” They
concluded that the plan “should be so emphatically rejected that its parallel
will never again be presented to the free representatives of the free people of
America.”
FDR, whose popularity would plummet to historic lows
after the court-packing threat, ultimately went on to appoint eight justices,
and to largely have his way in fundamentally changing American governance. But
he was prevented from destroying the Court as an institution, and modern-day
Democrats are now seeking to finish that job.
Today, every instance in which Democrats are denied a
political victory is immediately transformed into a national “crisis” in which
the public has “lost faith” in a system that worked perfectly fine when they
were in power. Not that long ago, self-interest was a motivation for defending
deliberative politics and republican order. But these days, undeterred by
reality, partisans have convinced themselves they’ll be in power forever.
It’s not merely the progressive fringe that demands
Democrats blow up the courts. It is the partisan, self-proclaimed defenders of
“norms.” In a recent piece in The Atlantic, the nation’s leading
periodical of intellectual anti-constitutionalism, Lawfare’s Quinta Jurecic and
Susan Hennessey argue
that “if Republicans continue the smash-and-grab approach to confirming
Barrett,” court-packing “may be the only way for Democrats to save the Court.”
The duly elected president and the duly elected Senate
are observing the constitutionally stipulated guidelines for placing a highly
qualified jurist on the Court. Someone will need to do a better job of
explaining how dismantling the Court will “save” it. Now, perhaps if you’ve
lost the ability to differentiate between ends and means, the idea makes
intuitive sense to you. Perhaps you nod along as Biden spuriously argues that
Amy Coney Barrett’s nomination is nothing more than the exploitation of a
“loophole” to undo the Affordable Care Act, ignoring the fact that we don’t
know how she’ll rule on the Obamacare lawsuit (and the fact that either way,
Obamacare isn’t some untouchable edict handed down from Mount Sinai). But back
here in the real world, we know that court-packing would be far more
destructive to our political order than anything Donald Trump has done,
Barrett’s nomination very much included.
The notion that the Senate shouldn’t confirm Trump’s
nominee because Biden might win the election or Trump lost the “popular vote”
is highly dubious. Justices do not need the consent of the majority, nor should
they seek it. As Clark Neily, the vice president for criminal justice at the
Cato Institute, recently noted, some of the Supreme Court’s “most reviled
cases—including Dred Scott (slavery), Plessy (separate-but-equal), and Buck v Bell
(eugenics)—involved acceding to democratically enacted policies. I can think of
no higher compliment to pay a judge than to characterize her as
antidemocratic.”
And that’s if Democrats take the charge seriously, which
all evidence suggests they don’t: Remember, they had no problem with this
“anti-democratic” institution when it was creating constitutional rights to gay
marriage and abortion. It only becomes a problem for them when it threatens to
defend the Bill of Rights.
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