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Packing and Unpacking the Court

In response to President Trump being called upon, once again, to exercise his constitutional power to fill a seat on the Supreme Court, Democrats broke the outrage meter. University of Baltimore Law School teacher Garrett Epps wrote at The Atlantic that “on the day the Democrats hold power to alter the makeup of the court by bare-knuckle means, they will do it. And they should.” “‘Eleven Justices,” writes the Huffington Post’s Zach Carter, “is the next ‘Abolish ICE.’”

After all, as journalist Michael Hiltzik tells us, “The fact of the matter is that the current court already is packed.” Senate Majority Leader Mitch McConnell (R-Ky.) and his fellow Republicans refused to hold hearings on President Obama’s nominee, Judge Merrick Garland, to fill the vacancy left by Antonin Scalia. The Senate “unpacked” the court—it held the court to eight members until after the 2016 presidential election, whereupon President Trump chose the young but white-haired conservative Neil Gorsuch to replace the deceased conservative Scalia.

Some of our conservative friends, such as John Yoo and Robert Delahunty, writing in a once-influential conservative fortnightly, think the Democrats’ current craze for court-packing is “foolish.” Indeed, in the run up to the 2018 midterms, with the Democrats out of power in Congress and the White House, it is electorally foolish. The liberal but cool-headed dean of UC Berkeley’s Law School, Erwin Chemerinsky, has explained why: “Progressives should be very careful about suggesting this might happen. Exit polls from the 2016 election indicated that the Supreme Court was the most important consideration for Trump voters, but not for Clinton voters . . . If they perceive Democrats might try and take the Court by changing its size, it will provide a strong appeal to conservative voters.”

But a little political science can help us distinguish between foolish and sensible occasions to pack the court. Empirical studies of the justices’ rulings shows that they are generally careful never to place the court as whole to the right or the left of both the president and Congress. This literature is much more coy about the explanation for this “moderation”: the president and Congress, if they are willing to act together, can make the Supreme Court they want.

Had President Obama replaced Scalia with Garland, the Republican president and Republican Congress actually elected in 2016 would have faced a court that, on the average, was well to the left of them both. Perhaps one or more of the liberal justices would have moderated their rulings, yet another “switch in time that saved nine.” Chief Justice Roberts can plausibly be viewed as swinging his vote on Obamacare in 2012 for similar reasons, though at that moment the House of Representatives was already under Republican control.

But if not, and if in 2017 and 2018 the liberal majority had sought to thwart key elements of a program that a Republican president had managed to push through Congress, court-packing—actual or threatened—would have been a wise response to restore constitutional democracy.

Surely Yoo and Delahunty are correct that it is better for the justices to restrain themselves and leave vital matters on which the text of the Constitution is silent to the elected branches, the states, or the people. It would be even nicer if we could all go back to the pre-Bork rule where clearly qualified men and women were confirmed for judgeships higher and lower without inquiry into every jot and tittle of their views. But failing a niceness revolution, constitutional officers must always be ready to use their full constitutional powers to realize their constitutional agendas.

Israel and India have genuinely independent judiciaries, where the Supreme Court is entirely (India) or largely (Israel) selected independent of the elected branches. America’s Founders were wiser, and left the responsible politicians to check the “least dangerous branch”—and defang it, when necessary, through packing and unpacking.