Democrats should not pack the Supreme Court
As tempting as it might be, any such move would set a dangerous precedent and undermine a vital institution.
Before proceeding, I should clarify that I am a liberal who wants to see Joe Biden win the presidential election. I would also want to see the next Supreme Court justice be appointed after the election, as Democrats are now demanding. I, of course, also would want that justice to be a liberal in the same mould as the late Ruth Badger Ginsburg.
However, one thing I would be absolutely opposed to is a potential President Biden proceeding to pack the court if President Trump appoints a conservative justice next month. The commentariat needs to calm down and not resort to blowing up American institutions whose innate conservatism has protected the country from a dangerous turn to more radical politics.
I realise this opinion is not popular on the left, but it is worth studying the court’s history to understand why the potential fears of a new conservative justice on the court would not be the end of the world. Contrary to many people’s wide assumptions about American politics, the Supreme Court has been innately sensitive to public opinion.
Despite having consistent conservative majorities since its founding, the court has not acted in such a reactionary way that it would be alien to the public mood. For example since the 1973 decision on Roe v. Wade that legalised abortion in American under the privacy clause of the Constitution, the conservative dominated Supreme Court has not reversed the decision. Yes, it has attempted to weaken it but it will not ever fully rescind Roe v. Wade.
The answer as to why the court has never once come close to a full repeal comes down to the position of the current Chief Justice, John Roberts. Roberts is very concerned about the legacy of the court under his leadership, given it will always be known as the Roberts Court. It’s why he voted to rule a law from Louisiana that tried to restrict abortion rights as unconstitutional. He was appointed by President Bush to the court in the understanding that he would be a conservative justice yet he has voted with the liberals on many occasions. The same is true of Associate Justice Brett Kavanaugh, who was appointed by President Trump but has voted on several occasions on the court in a way that is similar to Roberts. The same is true of LGBT rights, health care and Miranda rights in America, as the binding principle of stare decisis means that the court does not overrule its previous decisions.
It is almost as if the Achilles heel of conservatism is that, as a legal philosophy, it is not about returning to status quo antebellum, but one of not rocking the boat so much. The combination of being hyper sensitive to public opinion and the conservative philosophy being one of stare decisis, means that the court is not going to tear up past decisions on a sort of right wing crusade, especially if Biden wins the election.
Intriguingly almost ninety years ago another Democrat candidate for President was weighing up adding justices to the Supreme Court to help protect his legislation. President Roosevelt attempted to increase the number of justices on the Supreme Court in 1937, after much of his New Deal legislation had been struck down by the conservative dominated court. However his attempt to pack the court failed as the Senate decided not to support the plan as it would have fatally weakened the independence of the judiciary from the executive branch. Yet a pyrrhic victory was achieved as one of the conservative justices, along with the Chief Justice suddenly changed their jurisprudential views, subsequently voting with the liberal justices to uphold Roosevelt’s legislation.
The conclusion here is prescient for the current situation, as the importance of maintaining the independence of the court is vital for it to function properly. The justices on the court are sensitive to public opinion and always take it into account when coming to their decisions.
Finally, the biggest risk of packing the Supreme Court under a Biden Presidency is that it sets a dangerous precedent. If a Republican President was elected in the future they would follow this Biden’s precedent of stacking the court by appointing their own justices. The already politicised court would become even more so and would end up being so big that it cannot make a decision and ceases to be of any use in the future.
The Supreme Court is essential in America for ensuring that the federal and state governments do not violate the Constitution that is there to protect civil liberties and prevent tyranny of the majority. Biden should instead accept whatever decision is made by President Trump. He should wait for Clarence Thomas to leave at some point in the future and appoint a liberal successor which would negate the replacement of Ginsburg by a conservative. This would preserve the Supreme Court’s independence and allow it to function properly in the future. The hyper partisan nature of American politics in recent years has meant more emphasis is given to the Supreme Court than is actually needed.
