It surprises me not that Alexandria Ocasio-Cortez and the Squad spoke loudly this week in support of an outright plan to pack the Supreme Court. It’s just the kind of radical move she and her crew would exploit to raise money, but it does surprise me that the idea has already gained majority support within our Party. Prior to the nomination of Amy Coney Barrett, polling suggested that very few would support such a move, but as of this writing, 58 percent of Republicans oppose court packing, while 57 percent of Democrats favor it. This radical shift in polling suggests many things and not many of them good, but actually following through with such a plan would mark the end of the United States government as we know it. The Supreme Court, rather than an independent body of jurists driven by the law, would become a super-legislative entity just as susceptible to whim as Congress. It would be a move in direct opposition to the design and intent of our Founders and mark an irrevocable step toward the end of public trust in our Courts – the last bastion that remains.
With the addition of Justice Barrett, the conservatives will have a solid five justice advantage. Chief Justice Roberts has of late been a swing vote, but he was a Republican appointee. That would leave the three liberal justices in a clear minority position, which could potentially put in jeopardy a few standing precedents, most notably Roe v. Wade.
Article III of the Constitution was the least well thought-out of the “Separation of Powers” Articles. It was left vague in terms of exactly what the Court was to do and how it was to do it, but it gave considerable oversight authority to Congress. They started with six Justices, which effectively required a two-thirds advantage for a majority decision. As the nation expanded, Congress expanded the Court in correlation to the growth in judicial circuits – seven Justices in 1807, nine in 1837 and ten in 1863. In 1866, they passed legislation to thin the Court to 7 Justices but rescinded that directive in 1869 and returned to nine. It has remained so since.
Franklin Roosevelt was faced with an antagonistic Court in the 1930's that struck down many of his New Deal provisions, so he floated the idea of “packing” the Court to give him a favorable majority. There was never a serious expectation that the plan would be successful. All of the sitting Justices opposed the effort, and the people voiced a not inconsiderable outrage at the thought of it. Roosevelt eventually backed-off to avoid wasting political capital, and since that time, nine Justices has been viewed as the traditional and optimum number to compose the Court.
But in this era of win-at-all-cost methodology and damn the republic, full steam ahead mentality, anything could happen. So, how would it look? We would need to overcome a six to three disadvantage, so Congress would need to pass simple legislation appointing four new Justices to the Court, giving us a total of 14. But to paraphrase Robert Burns, the best laid plans of mice and men may still blow-up in our face.
In spite of appearances, it might be very difficult to get such a measure through Congress, and even if we did, there is no guarantee that President Biden would sign it. Throughout his career he has been quite conservative on such matters. He could very easily nix the idea with the smoke and mirrors of a “Bipartisan Commission of Scholars.”
But what if we were successful in packing the Court? Midterm elections are always tough on the party in power after a contentious presidential election, and an actual effort to pack the Court could result in catastrophic consequences. What if the majority in Congress flipped again? The Republicans would have no reluctance in retaliating to regain a Court majority, and what’s to stop the saga from repeating with every change of power in Congress? Precedent would soon come to mean nothing, and the Court would be ruined for ever.
Let’s be real, Democrats are primarily concerned about the Court overturning Roe v. Wade. I’m not at all sure they would do that, but they may very well chip at it from the edges. Politically, that may not be such a bad thing. Late term abortion is a very difficult position to defend, and liberal think tanks have had quiet discussions for years about the upside of overturning Roe. Their contention is that with over 75 percent of the American electorate favoring at least some limited abortion, forcing the issue into Statehouse and Congressional elections could serve us well.
The Radicals in our Party seem to be calling a lot of the shots these days, and they don't seem too concerned about history, tradition or even democracy. Their singular goal is to topple the system and worry about what to replace it with later – just as long as they are the ones who get to decided. They talk a good game, as Marxist revolutionaries always do, but the welfare of the people is their last concern. They want power. They want the perks that come with that power, and they don’t much care who or what they have to destroy to get there. You’ve seen the movie.
After the election, there is going to be a battle for the mind, body and soul of our Party. If tempered minds don't prevail, there is no question that the ramifications will be devastating to our Party and our nation.
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