Many Democratic elites will be reluctant to pursue a court enlargement scheme, for good reason. Court packing is a classic authoritarian maneuver used by aspiring dictators who seek to consolidate their power by dismantling democratic institutions. Most recently, Hungarian Prime Minister Victor Orban forced judges into retirement, stripped the Constitutional Court of its jurisdiction over certain matters, and packed the court with appointees from the ruling Fidesz Party. Orban was not trying to rectify electoral injustice, but rather to aggrandize power for himself and his allies. In political science, this process is known as “democratic backsliding.” With far-right parties on the rise in Europe, and with Republicans in Washington bent on eroding norms and constitutional restrictions on their power, there is newfound popular interest in how democracies fall apart. Earlier this year, the august, non-partisan Freedom House lowered America’s score on its benchmark index of democracy, yet more evidence that U.S. democracy is in peril. Would enlarging the courts contribute to the unraveling of the republic?
Not necessarily. Just because a maneuver is reminiscent of authoritarianism does not mean that it should be automatically out of bounds under all circumstances. And the reality is that it is Republicans who have been treating the federal judiciary like aspiring Orbans and Erdogans for the better part of two decades. Ask yourself a question: what is the functional difference between stealing the swing seat on the Supreme Court and adding justices? Both have the same result: flipping the majority from appointees of one party to another. What Republicans did in 2016 was every bit as transgressive and cut-throat as anything attempted by elected authoritarians seeking to take apart the architecture of democracy piece by piece. This act of thievery will soon result in a major blow to organized labor, depriving workers of critical rights and the Democratic coalition of a key institutional force for election turnout. Yet everyone in the Republican Party went blithely along with this act of sabotage, because they gambled that they would get away with it, and they were proven correct.