For many progressive opinion-makers, the only way to save the Supreme Court is to destroy it.
They believe the best response to the Republican-held Senate confirming a Trump nominee to fill Justice Ruth Bader Ginsburg’s seat on the Supreme Court is to pack the court if Democrats win in November. Holding out the court-packing threat, they argue, also might give Republicans second thoughts about filling the vacancy.
As a medium-term strategy, court-packing is a woefully misconceived fantasy, and as a tactic in the fight over filling RBG’s seat, it is already an abject failure. It is a lesson in what happens when you let your outrage do your thinking for you.
For the Democrats, court-packing would be a murder-suicide. It would end the Supreme Court as we know it, and almost certainly bring a swift and decisive end to Democratic congressional majorities. There’s a reason Republicans aren’t taking the threat seriously in their calculations.
No matter how infuriated a party is, the rules of political gravity still apply. A president is at the high point of his power at the outset, steadily losing juice over time.
Would Biden spend precious capital on court-packing early in his presidency? If so, voting, green energy and health care legislation would take a back seat.
If, instead, all of that legislation went first, then court-packing would be pushed toward the back of the line, when Biden would have diminished clout for the political fight of a lifetime.
The question of timing would enter in another way. If Democrats managed to add court seats in the second year of a Biden presidency, how much time and political capital would they have left to fill them before the midterms? If Republicans took back the Senate, they certainly wouldn’t fill them.
And, of course, when Republicans hold the presidency and Congress again, they’d add their own seats or subtract the Democratic ones, making the entire exercise a nullity.
It’s also true that, as a general rule, big changes happen in our system when a party makes a sustained public case for them prior to an election. Very few elected Democrats are willing to come out in favor of packing the court, and Biden the other day pointedly refused to endorse it.
Even though the advocates of what they euphemistically call “court reform” rightly point out that there’s nothing written in stone about the number of justices, it’s going to take a lot of work to convince people that jettisoning the 1869 Judiciary Act is the equivalent of renaming a post office.
Making court-packing the major initiative of his presidency would be an awkward fit for Biden. It would validate the critique of him as weak and prone to getting pushed around by the left. It would blow up his hope to bring some normality back to Washington. It would inexorably make the destruction of the legitimacy of the Supreme Court part of his legacy, when he imagines himself an institutionalist.
As far as counterintuitive presidential moves go, this wouldn’t be Nixon goes to China; it’d be Nixon becomes a member of the Red Guards.
The argument that Republicans have already “packed the court” is a false equivalence. Yes, Republicans have used hardball tactics to keep open, or now to try to fill, vacancies. But these seats opened up in the natural course of events. They weren’t conjured out of nowhere in a fit of pique or vengeance.
It easy to pound the table and demand an incredibly momentous change to our system when you don’t have power and don’t have to cope with the consequences. It’s another to act in the face of vigorous opposition and with nervous officeholders in marginal districts or states looking for a way out.
No matter how much progressives want elected Democrats to write the ransom note, they aren’t going to take the Supreme Court captive next year, let alone kill the hostage.
Rich Lowry is editor of National Review