Packing the Supreme Court has become a hot topic on the left since Justice Anthony Kennedy announced his resignation last month. Allahpundit wrote about the various left-wing outlets, Jacobin, HuffPost, etc., which have embraced the idea and suggested that once the norm against court packing is gone we could see the number of Justices increase every time the White Houe and Senate shift control.

Since we’re expecting a nomination to replace Kennedy to be announced in a few hours, I thought I’d review some of the arguments against court packing, which seems likely to catch its second wind this week as progressives become more desperate.

Vox published a piece a week ago which looked at the case for and against court packing. The case for it was pretty simple: It’s a way to stop the GOP domination of the court for 10-20 years. The case against began with the fact that court-packing is usually associated with nation’s run by an autocrat. Here’s a sample:

  • In 2004, Hugo Chavez’s allies in the National Assembly of Venezuela expanded the Supreme Court from 20 members to 32 and packed it with Chavez loyalists.
  • In 1946-47, Argentina’s populist president and former military coup conspirator Juan Perón successfully impeached four out of the country’s five Supreme Court justices in a bid to consolidate power.
  • In 1989, Argentine President Carlos Menem, fearing Supreme Court opposition to his privatization schemes, expanded the court from five to nine members and packed it with sympathetic judges…

The pattern is clear: Court-packing is what autocrats do as they begin to consolidate their power. And it’s been a particularly popular method in the past couple decades.

So that’s one argument against pursuing this path. But that’s really just the lead up to the other major argument: Packing the court reduces its credibility as a neutral arbiter and invites a partisan backlash. What happens if people decide to ignore the court’s decisions as illegitimate?

Let’s say that President Bernie Sanders packs the court in 2021, and the court subsequently overrules Milliken v. Bradley and forces white suburbs across the country to bus their kids into inner-city public schools, and to accept (disproportionately black and Latinx) students from poor neighborhoods bussed into their own schools. This would be the correct result, in my opinion. Milliken v. Bradley was a disastrous decision that drastically undermined the cause of school desegregation. But if such a ruling followed a court-packing effort, how much do you want to bet that the rich suburbs of Chicago’s North Shore would actually start bussing their kids to Englewood? Or that Beverly Hills would let students in from Compton? Or would they view the ruling as illegitimate and simply not obey?

Why would anyone obey the rulings of a packed, progressive court as if they were legitimate? This potential damage to the institution is something Barack Obama’s former White House counsel pointed out last week in a piece for the Atlantic:

Note, first, what court packing is not. It is not reform: It is not a response to concerns about the Court’s wider and controversial role in resolving political and policy conflicts. In other words, there is no institutional dimension to a packing maneuver. To pack the Court—to stuff the judicial ballot box—does not serve to strengthen the institution, even if it maximizes the chances of winning particular cases.

In the current situation, progressives may be willing to dispense with the institutional argument and go straight to the point—they don’t want the Court dominated by a hard-right conservative majority for years to come. They should factor backlash into their calculation of costs and benefits. As FDR discovered, the move may well go over very badly with the electorate. Even in a period of intense distrust of institutions, and perhaps even because of that distrust, a dramatic escalation in the politicizing of institutions would trigger strong opposition…

A packed Court might render decisions, or block outcomes, to the satisfaction of the proposal’s supporters, but its actions on the controversial issues would carry less authority, with unpredictable consequences for the rule of law. Court packing would only aid Donald Trump and politicians of his ilk in legitimizing attacks on institutions that are unresponsive to political preference (or, in Trump’s case, personal whim or will). The Court seems to have rebounded from the 30-year low in trust it experienced in 2015, but the Court is clearly no longer immune to the decline in confidence other institutions have experienced. Its recovery of public confidence will not survive the appearance that, in the words of Jeff Shesol, the author of a major work on FDR’s court-packing venture, it has become “territory to be seized and held by whatever means.”

This is another instance where the left is looking at the short and medium term and thinking hard about the nuclear option. But you can’t seize the legitimacy of the court and expect it to remain legitimate. Yes, I know the left feels that’s already happened with Merrick Garland but when McConnell refused to consider Garland until after the 2016 election, just about everyone believed Hillary was going to win the election. If she had, McConnell would have had to deal with whatever nominee she put forward. McConnell gambled on a delay and won. Packing the court is something else. Progressives are working themselves up to the point where they could cross this particular Rubicon whenever they eventually retake power. But if they do, it’s likely to come back to haunt them.