Why packing Supreme Court is dangerous
Amy Coney Barrett is likely to be confirmed as a Supreme Court justice today.
In opening the Senate hearings just over two weeks ago, Judiciary Committee Chairman Lindsey Graham offered a temperate statement recognizing the deep divide between Democratic and Republican positions on the nomination process and said he hoped the bitterness and acrimony of more recent hearings, e.g., the Brett Kavanaugh nomination, could be avoided.
Sen. Graham admitted both sides could put forward a reasoned argument as to whether a nomination should be considered at this time, with the presidential election so soon upon us. He did not mention, so I will, that Sen. Chuck Schumer, the minority leader, were positions reversed, would have done exactly the same thing.
Sen. Graham’s hope for a more calmly conducted hearing was largely realized, allowing Judge Barrett’s inquisitors the opportunity to voice their own political messages and occasionally pose a question to the nominee.
Justice Barrett’s confirmation means that, in popular imagination, there are now six conservative justices and only three liberals on the court. Some fear this means Roe v Wade will be overturned and those with preexisting conditions will find themselves bereft of affordable health insurance.
Let’s not panic too soon; there is a long history of appointed justices disappointing the presidents who nominated them. Wemust wait and see how all of this will unfold.
Soon, if the polls do not beguile and deceive, Joe Biden will be elected 46th president of the United States and may well have a Democratic House and Senate to support, guide and bedevil the start of his tenure.
Some Democrats suggested an appropriate response to Justice Barrett’s confirmation will be to change Senate rules and pass legislation to expand the number of justices on the Supreme Court. An expansion from nine to 13 would accomplish that goal.
Such legislation would require a presidential signature. What will a President Biden do?
His opinion on this question has been regularly sought by his Republican opponents. But he and his running mate have successfully evaded the question with the consummate skills that wehave come to expect in our political candidates and representatives.
Some background and worrisome speculation as to future consequences seems warranted. In 2013, then Democratic Majority Leader Harry Reid employed the so called “Nuclear Option” to eliminate the 60-vote rule on all judicial appointments, excepting only Supreme Court nominations. Sen. Mitch McConnell, the Republican minority leader, did not have to wait too long before his party regained control of the Senate and he could extend simple majority rule to Supreme Court confirmations.
The number of justices sitting on the Supreme Court has changed over the years, starting with six in 1789, going up to ten in 1863, and settling on nine in 1869. Only once was there an unambiguously politically motivated attempt to increase the number of justices to achieve positional advantage.
President Franklin D. Roosevelt, frustrated by a string of unfavorable court decisions, proposed packing the court to achieve his political and social objectives. That he did not succeed, nor persist in his efforts, is partially attributable to the court’s willingness to change their “obstructionist” objections. But the president’s failure to succeed in packing the court is equally attributable to the strong opposition he encountered from members of his own overwhelmingly Democratic congressional majority.
Sometimes, Roosevelt’s failure is used to alleviate concerns about the court packing schemes now being considered. But the situation is much different today; the initiative is not coming from the president but from Congress.
There are few senators today who are sufficiently confident and independent to withstand the demands of party unity, unlike yesteryear whenthere were many who were willing to stand up to and oppose an overreaching President Roosevelt.
Suppose four more justices are added to the Supreme Court and that a politically liberal perspective is thereby achieved. Will a Democratic majority be now and forever? Or, as always has been, will one party’s majority yield to that of the opposing party?
From a Democratic-leaning 13 justices will wemove to a Republican 15? Anyone for 17?
In politics, I may be cynical but I still believe that the Supreme Court’s politically unbiased assessment of the law is not a complete fiction. The proposed expansion of the court will make denying that fiction (almost) impossible.
In the above outlined and too easily imagined scenario, the Supreme Court soon loses any semblance of an independent, equal branch of government. The proposed packing of the court, unlike the appointment of another originalist justice, fundamentally changes the government of the United States.