The death of the late Justice Ruth Bader Ginsburg could very well reverberate and affect our democracy for years to come. This would not be because of the Justice's death per se, but the implications of how and when to fill the vacancy. President Trump is looking to fill that seat with another conservative justice. If the Republicans are successful, that would result in a 6-3 conservative majority on the Supreme Court. It's interesting to see both sides react. The Left thinks that a conservative grip on the judicial branch would harm the country for decades. The Right thinks that the Left is acting like a bunch of sore losers and that "it's our turn to be at the helm." Since the Democrats are unlikely to block a nomination (either before or after the presidential election), they are looking at another solution: court-packing.
The term court-packing dates back to Franklin D. Roosevelt. FDR tried passing various legislative initiatives (most notably the New Deal), but the Supreme Court struck down a number of these initiatives as unconstitutional. To deal with the frustration of his vision of government largesse, he attempted to increase the size of the Supreme Court from nine justices to fifteen justices. This has rightfully been portrayed as a political ploy and a power grab to gain influence over the judicial branch.
Since the Democrats do not want to acquiesce power to the Right, they are looking to "pull an FDR" by packing the Court if they gain a majority in the Senate. The last Judiciary Act, passed in 1869, set the number of justices at nine. The number of justices has been adjusted on more than one occasion, so it is not as if there is not any historical precedent for changing the number of justices. Constitutionally speaking, all the Democrats would need to do is pass another Judiciary Act to modify the number of justices. The question is not so much whether the Democrats could gain enough power after the 2020 elections, but rather whether they should go down this path.
For one, the Supreme Court's popularity is at an all-time high (Gallup). If the Democrats opt for court packing, the political costs for the Democrats would be high. It could help to bolster the Republican's narrative on the Supreme Court.
But let's think of this in terms of political calculus. After all, the call for court-packing is a political process and it would be foolish to think that the call for court-packing is about restoring "good governance." To quote the late Justice Ginsburg, "If anything, it [court-packing] would make the court look partisan. It would be that--one side saying, 'When we're in power, we're going to enlarge the number of justices, so we would have more people who would vote the way we want them to."
As the Brennan Center for Justice, which is not exactly a conservative institution, brings up, it would be dangerous to "tamper with the mechanisms of democracy to thwart a single political figure." Since the impetus for court-packing is political in nature, you better believe that if the Democrats strike the first blow, the Republicans will retaliate with even more court-packing once they regain power. Since the Court would appear more partisan as a result of court-packing, it would end up eroding the legitimacy of the judiciary branch.
If the Supreme Court cannot be seen as or act as a check on the other two branches, that erodes separation of powers, and ultimately the constitutional republic that was envisioned by the Founding Fathers over two centuries ago. Since the Left is concerned about such causes célèbres as the right to an abortion or the right to same-sex marriage, it seems peculiar that you would undermine the very judicial protection that has held those rights in place.
To be sure, both parties feel justified in retaliating when it comes to court nominees. The Democrats feel like they were robbed when it came to nominating Merrick Garland in 2016. The Republicans feel like they have been robbed of multiple federal court nominees, including Miguel Estrada. Let's be for real. Both parties have chucked procedural decency out the window when it was politically convenient. Partisan politics can be summarized by saying "it's okay when we do it, but not when they do it." Harry Reid created the "nuclear option" in 2013. Senator Mitch McConnell extended the "nuclear option" to Supreme Court justices in 2017.
Even so, court-packing is a whole different animal. At least with filibustering or holding up nominees, the judicial system was held intact. If we throw the norm against court-packing out the window, we also through our capacity at judicial review out of the window. As the Left-leaning Vox illustrates, multiple political scientists have pointed out that there have been multiple examples of court-packing by would-be or eventual autocratic countries: Hungary, Honduras, Poland, Venezuela, Argentina, Turkey.
For those who complain about Trump bringing down the country, it seems hypocritical for various anti-Trumpers to advocate for a policy that would most likely erode democratic institutions. Those on the Left might want to retaliate in response to their animus towards Trump, but if successful, it would be one of the more myopic things to come from the Left, which is saying something given a look at the economic policies so many of them cherish.
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