On Supreme Court Packing

Guest Post by Steve-O-in NJ

Yesterday, the Democratic party, or at least an element of it, unveiled legislation which is history- making, but not in what I think is a good way.

I’m talking about Jerry Nadler and Ed Markey’s proposed legislation to add four justices to the U.S. Supreme Court. The Supreme Court has been composed of nine justices since before the beginning of the 20th century. The last time anyone even considered anything like this was in 1937, when FDR developed a plan to add six more justices to “pack”  Court so that he could continue to push through his ambitious New Deal programs. SCOTUS had been slapping them down as unconstitutional. He cloaked is as an attempt to make the court more efficient, since justices tended to serve well past the average retirement age even then, and the idea was that the institution would benefit from younger judges. Both his own party in Congress and the public saw this for what it was, and the backlash was swift. The President would not get to stuff the Supreme Court with his own judges with rubber stamps in hand.

Still, some said that the message was sent and received, as  Justice Owen Roberts, who had previously sided with the conservative block on the Court, known as “The four horsemen,” suddenly sided with the liberal wing of the Court in the matter of West Coast Hotel v Parrish, upholding the constitutionality on minimum wage legislation We will really never know, since the earlier Justice Roberts took the unusual step of burning his notes and papers before the end of his life. Supposedly, however a memo he provided to Justice Felix Frankfurter indicates that he was planning to rule that way before FDR threatened to pack the court.

In any case, FDR continued past two terms and was able to stuff the federal judiciary with his own people more than any President, since the rest were limited to two terms either by self-restraint, tradition or law. The influence of his justices  and those appointed by his successor Harry Truman cast a very long shadow over the Supreme Court for quite a while, although not as long a while as you might think. In fact, Richard Nixon was the president who appointed Harry Blackmun, author and longtime defender of Roe v Wade,  arguably before the question of liberal versus conservative justices became so pronounced. It wasn’t until Carter couldn’t nominated a single Supreme Court Justice and Reagan and Bush the Elder nominated five between them that the question of liberal versus conservative justices versus qualified justices became as divisive an issue as it is now.

No president has had enough slots open during his administration since then to decisively move the court one way and give it either a solid liberal majority or a solid conservative majority. Part of that, no doubt, was due to so many justices hanging on to their seats long after they should have retired, so as to not allow a President who disagreed with them to appoint their successors. That’s why Harry Blackmun remained until Bill Clinton was safely elected; that’s why Antonin Scalia died in the saddle, and that’s why Ruth Bader Ginsburg gambled and ultimately lost her  battle to last until the 2020 election before her 86-year-old, cancer ravaged body giving out.

Neither party likes the idea of the needle moving farther away from them on the Supreme Court and possibly undoing their significant and important legislative accomplishments. The Democratic party is particularly bitter now, since it had counted on Hillary being elected right after Obama and being able to add more liberal justices on top of the two that Obama had appointed.

They are also bitter because of the dangerous but ultimately successful gambit that Mitch McConnell managed to pull off after the death of Justice Scalia. The Democratic party believes Merrick Garland should be sitting on the Supreme Court right now, and two more liberal justices should have joined him. They should be enjoying a solid liberal majority on the Supreme Court and be watching Hillary lick her chops waiting for the three remaining conservative justices to die or retire, with the dream that either she or her Democrat successor can create a fully liberal and transformational Supreme Court.

That dream has been pushed out of reach now, and the Democrats are facing a 6 to 3 conservative majority on the Supreme Court that is likely to foil many of their plans. So they are ready, willing, and able to use the political capital that they  have from this past election and the Black Lives matter movement to change the rules so they don’t have to wait for the Court to change the old fashioned way.

The court packing scheme is risky, it is against the will of at least half the country, or at least a substantial block of voters, and it is a major break with precedent and tradition. It is almost certain that to make this happen they will need to eliminate the legislative filibuster. That’s both a very tall order and a fairly obvious step towards an attempt at one party rule and tyranny. Packing the Court is also not favored by some very liberal figures, including Nancy Pelosi, reliably leftist Justice Stephen Breyer,  Justice Ginsburg when she was alive, and even earlier versions of Joe Biden, who once pronounced the idea of packing the Supreme Court a “boneheaded idea.” Then again, Biden has historically gone whichever way the wind was blowing. Never mind, say the advocates of this plan, eventually we will bring everyone around that we need to, and this isn’t packing the court, it’s unpacking the court and correcting the judicial balance.

I don’t know whether to laugh or try to pick my jaw up off the floor hearing all of this. It’s one thing to have a crazy plan for achieving an achievable goal. It’s one thing to have a crazy goal but a plan for achieving it that has a chance of succeeding. Having a crazy goal and a crazy plan for getting there is something that you expect from idealistic people in their twenties, not high ranking and long serving members of a legislature who know or should know how the game is played, and what’s doable and what’s not with what resources.

Long serving public servants should know what the parameters of the government of this country are under the Constitution, under all the precedents. This has always been a country of many interests and many voices. It’s also been a ship of state where everyone eventually gets their turn at the helm. It is not and has never been intended to be a one-party government where a few very large cities or a few oligarchs press their vision down upon everyone else while everyone has little say in it. 

Yet that is exactly what the people behind this plan want. They want unshakable control of the executive, unopposable majorities in the legislature, and courts that will tell them everything they do is just fine.

I ask you, name me a regime in history where one party rule was a good thing? I can think of quite a few in the 20th century, ranging from the not so heavy-handed tyranny of Tito and Honecker to the very brutal tyranny of Chairman Mao, Nicolae Ceausescu, and some other names we don’t need to mention. I can also think of some tyrannies that hid behind the trappings of monarchy in the 19th century, where personal freedom was very limited. I can reflect on the days of the French Revolution, where the upper echelon of government ranged from the simply brutal like Robespierre to the insane like Marat, and where the deprivations and decapitations finally had to end with “a whiff of grapeshot.”

While you’re at it, please name me two or three regimes where limited free speech and disarmament of the populace led to anything good. I can’t think of  one, but the whole idea does make me think of the Armenian genocide,which started with silencing the leaders and collecting weapons. When your targets are unarmed, leaderless, and cowed, it’s much easier to wipe them out.

What bothers me is that what we are seeing now from this element of the Democratic party should make everyone’s alarms ring. Too many alarms aren’t ringing, and too many are saying this is the way to go.

I say beware. You never know which step toward tyranny will be the one that you can’t step back from

9 thoughts on “On Supreme Court Packing

  1. Always remember-

    The blatantly partisan and activist lean of the Supreme Court for decades has never been “a problem”.

    It’s an emergency now that there’s a decent block of “constitutionalists” on the court now.

    ceterum autem censeo, factio democratica esse delendam

  2. Another excellent one, Steve-O!

    There’s a ray of sunshine in this gloom. It seems Countess Orlok sees it and fears it more than many of her fellow ideologs, as it could remove her from control of the House.

    The left is in significant danger of overplaying their hand; they may have already done so. BLM, defunding the police, packing the court, endless “mostly peaceful” riots, open borders, speech suppression, killing jobs and energy, gun grabbing, racial pandering and renewed discrimination, broken budgets and rising prices, a feeble puppet president….all the recent insanity is cumulative, and isn’t playing well with much of America. 2022 and the mid-term elections are rapidly approaching, and the democrats can’t afford many losses.

  3. The alarm bells aren’t ringing because too many people WANT this. Every loyal Democratic voter I know is in favor of this. The truth is, they have ALWAYS been in favor of this, they just all didn’t want to admit it. This is what the Democratic Party has stood for…well…at least as far back as the 70’s. In FDR’s day, they just wanted complete control of the government and minorities. With the addition of Communism to their ideology, they want complete control of YOU. All the loyal Democrats think that rest of the country will be reduced to slavery while they get to sit, elevated above it all. Communism is the modern, more socially acceptable form of slavery and slavery is what the Democratic Party stands for.

  4. “Never mind, say the advocates of this plan, eventually we will bring everyone around that we need to, and this isn’t packing the court, it’s unpacking the court and correcting the judicial balance.”

    I’ve heard this starting to circulate, and before it really takes off, I want to get ahead of it by pointing out that if you believe that there is such a thing as a conservative justice, and if you believe that the current balance of conservative to liberal justices is 6 to 3, and you want to unpack the court, the correct number of justices to consider increasing the court by would be 3, not 4. Even that would have issues, but those issues are moot, because Nadler and crew proposed 4, which makes this obviously, invariably, explicitly about actually packing the court, and don’t ever let them lie to you about it.

    • Absolutely. Funny thing is, the Court’s essentially five to four right now. Roberts is not a conservative. The only thing he’s interested in is “conserving” is the Court’s “institutional integrity” among lefties. Which is a fool’s errand if ever there was one.

  5. I attended college from 1969 to 1973 in upstate New York as, to some unknown extent, “a geographical factor,” having been born and raised in Miami, Florida. I’d never seen snow. I’d only been to the northeast and mid west on two week car vacations. I guess I wanted to see what the real part of the country and its people were like for myself. Miami was, and remains, essentially unreal. It’s now a Latin American capital. I came of age among refugees who’d left behind their lives and livelihoods when the Castro brothers stole the country they’d run (not terribly well, but still).

    I arrived in Clinton, New York (DeWitt, not Hillary) and was promptly pitched to join a group going to Cuba to help with the sugar cane harvest. I thought I’d fallen into a parallel universe. The vast majority of my class mates were from greater New York City. It became evident pretty quickly that almost all those kids had an unshakeable belief that being from metropolitan New York City they simply knew better. About everything. Certainly how to run the country. New Yorkers are the most provincial people the United States. To them, everyone more than thirty miles west of the Hudson River is worthy of nothing but utter contempt. None of this attitude is spoken, it’s simply the environment in which they live, the air they breath. Anyone who is not a liberal Democrat is an idiot. Democrats are right, Republicans are wrong. It’s really very simple. Single party rule is the solution to every problem in the United States. The only thing standing between these people and heaven on earth is the Republican party and its idiot supporters.

    It really is breath taking. This attitude was in full bloom fifty years ago among that demographic and now they and their children are in charge and making their assumptions reality. The naivete and arrogance is mind boggling but it’s been there forever. Chuck Schumer, Jerry Nadler, Nancy Pelosi, Ruth Bader Ginsberg, Thomas Friedman, Liz Warren, Bernie Sanders and Edward Markey and their ilk are simply the champions of this insufferable crew, carrying their banner forward.

    In any event, these are not reasonable, rational people. To them, nothing is negotiable.

  6. Very good post. I admit that the bill introduced in the House doesn’t seem likely to succeed, for a variety of reasons (not least of which is that Pelosi said she wouldn’t let it come to a vote, possibly because she is sure it would be defeated).

    However, I cannot help but recall that I was pretty certain the Democrats wouldn’t sweep the Georgia runoff elections — that was a nasty shock.

    Any reasonable person has got to know that packing the Court is a bad idea — sadly that leaves out much of the Democratic party this year. Those Democrats seem to be thinking, ‘Let’s kill the filibuster, which lets us pack the court, all will be great, what could possibly go wrong?’

    I think perhaps they might want to talk to Harry Reid, who made a similar calculation. Perhaps also they should listen to Mitch McConnell, who had some words recently on that subject.

    I really don’t want to see a Supreme Court in a few years handing down 17-16 verdicts only to be reversed on a 19-17 vote the following year. But that is the direction this sort of bill will point us toward.

    Why can they not see that?

    • Oh, and I am pleased to state that I have figured out how to post here without needing to log in to Facebook. One of the few uses for my account was to give me a convenient login without subjecting my primary email account to needless spam (not from EA, but we all know that the simplest interaction with a company seems to give them what they see as a license to bombard you with endless emails).

      My log in here is no different, but it no longer goes through Facebook. 😎

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