October 12, 2020 | Reading Time: 3 minutes

The GOP is packing the court right now

The truth is obvious to anyone with a sense of fairness.

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I don’t care for mantras generally, but I do live by one. When it comes to paying attention to politics, most people most of the time will find something better to do. That goes double for matters of law. They’d rather open a vein than talk about it. I’m not scolding anyone. In fact, it’s healthy. Most people trust their representatives to work things out, whatever the problem is, even if the outcome is the status quo. Most people will leave it to attorneys, prosecutors, judges and professors to understand statutory law, constitutional law and whatever the hell stare decisis means. Trust is central to a republic’s healthy functioning, and most people have that much faith.

Faith, however, depends on fairness, specifically a fair process. You don’t need to know anything about Amy Coney Barrett, the president’s choice to replace Ruth Bader Ginsburg on the US Supreme Court, to know the process of confirming her is hinky. You don’t need to know anything about her record as a federal appellate judge to know the Republicans are ramming her through before Election Day. (Indeed, Americans have already voted, by mail or in-person, in some states to decide the next president.) You don’t need to know much to know what the Republicans are doing is wrong. Your sense of wrongness might even be doubled by the fact that no one can stop them.

Sensing defeat and scrambling to install a justice before the American people have had their say is court packing.

The Republicans know what most people know, and they fear it. They fear the majority losing faith in the GOP. They fear how it might retaliate when given a chance to (on Election Day). That’s why they spent considerable energy drawing attention away from what they are doing toward what the Democrats might end up doing. The effort began Wednesday during the vice presidential debate and continued through the weekend. They hope to create conditions in which court-packing is fair when they do it but unfair when it’s the Democrats. “We need to preserve a Supreme Court that has 9 justices,” wrote US Sen. Marsha Blackburn, Republican of Tennessee, on Twitter.

Here are a few facts. First, the US Constitution does not say how many justices should sit on the Supreme Court. That’s up to the US Congress. (The court started with seven.) Second, court-packing has been done in the past. Third, the court could have 11 or 111 justices. Big numbers like that probably don’t matter except that they might nominally reflect the views of the majority. Fourth, the Republicans themselves were prepared to downsize the court if Hillary Clinton had won. The late John McCain was especially clear: “I promise you that Republicans will be united against any Supreme Court nominee that Clinton would put up.” All things being equal, if Ginsburg had died during Clinton’s first term, the court would probably have to carry on with seven.

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At root, adding or subtracting justices is about norm-busting. The norm right now is nine. Expanding that number is a deviation, hence a violation, arguably, of the norm. The Democrats can’t stop the Republicans from installing Barrett, securing a 6-3 conservative supermajority. The Republicans, however, can’t stop the Democrats from retaliating after returning to power. That’s why the Republicans want you to see court-packing as dangerous. The gambit depends, however, on your forgetting that court-related norms were vaporized the day the Senate Republicans sabotaged Merrick Garland, Barack Obama’s last nominee. If the Democrats under a President Biden end up packing the Supreme Court (assuming they have control of the Senate), they will not be setting a court-packing precedent. They will be following one already set.

Mike Pence thought he had Kamala Harris against the ropes when he demanded during last week’s debate that she admit to a court-packing plan. He didn’t. She pivoted masterfully to what the Republicans have been doing since Donald Trump took office: confirming anyone who can fog a mirror to the federal bench. Biden is doing the same. Rather than talk about the possibility of court-packing, he’s giving voice to a truth obvious to anyone with a sense of fairness. The Republicans fear Trump will lose the election. They are therefore scrambling to install a justice before the people have had their say. That’s court packing. That’s a gross violation of popular sovereignty. That’s a grave injustice that demands an equal and opposite reaction.

You don’t have to know much about much else to know that.

—John Stoehr

John Stoehr is the editor of the Editorial Board. He writes the daily edition open and available to all. Find him @johnastoehr.

4 Comments

  1. Jim Prevatt on July 30, 2021 at 11:21 pm

    Excellent piece. I’d like to see President Biden appoint Mr. Obama and Mr. Garland to the Supreme Court as soon as the new Senate has a Democratic Leader and whatever has to be done by Congress to have 11 members of the Supreme Court.

  2. hw on July 30, 2021 at 11:21 pm

    Elie Mystal has written extensively about the benefits of a much larger SCOTUS, which would 1) be far more representative of the changing demographics of the country, and 2) if large enough, would more closely resemble appellate courts, where 3-judge decisions are standard unless an en banc hearing is necessitated. In this case, partisan judicial activism is reduced by the arbitrary choice of judges for any given case. We must push to have progressive SCOTUS experts like Mr. Mystal flood the airwaves to explain why judicial expansion is far more democratic than the current norm, and to rebut the badly uninformed MSM which seems incapable of a nuanced discussion about the heart of democracy.

  3. Jeff Baker on July 30, 2021 at 11:21 pm

    I still don’t understand why the Democrats are not playing hardball here. They should boycott the entire confirmation process. They should refuse to meet with the nominee. They should refuse to show up for hearings. The whole thing is just a dog-and-pony show for the GOP where they get to pretend they are upholding some kind of sacred duty. Refuse to participate! And if they get in a position to, expand the Supreme Court and don’t be apologetic about it in the slightest.

  4. Thornton Prayer on July 30, 2021 at 11:21 pm

    The Republicans and their various political warriors masquerading as legalists (the Federalist Society, Judicial Crisis Network, etc.) chose to make the SCOTUS and the overall federal judiciary a political and partisan institution. The Democrats simply need to build the political case of taking steps to restore SCOTUS and judiciary as legal bodies exclusively and therefore must expand the number of seats throughout the judiciary and especially on the Supreme Court.

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