Why Republicans must stand up to Democrats’ court-packing power grab

In a 50-50 Senate that includes Sen. Joe Manchin (D-W.Va.) and still (as of now) retains the legislative filibuster, the Judiciary Act of 2021 is unlikely to advance very far. Indeed, for what little it may be worth, House Speaker Nancy Pelosi has already said she has “no intention to bring” the bill to the House floor. But the Democrats’ move on court-packing is still important for at least two reasons. First, it provides the clearest structural evidence yet for the transparently political approach the left takes to the judiciary. This has been obvious for decades, as a jurisprudential matter; what is “living constitutionalism” if not the thinnest veneer imaginable for jurists to bestow legal legitimacy to favored progressive policy outcomes? The right would be mistaken to respond with trite appeals to a purportedly neutral legal proceduralism — far better to argue for a more morally informed and substantively cogent jurisprudence, such as what I call “common-good originalism.” Second, the current bluster can be seen as a power play to cow into submission those weak-kneed Republican-appointed justices, such as Chief Justice John Roberts, who profess above all else a concern for the court’s ostensible “institutional integrity.” It is perhaps old hat to criticize the decades-long failure of Republicans to nominate consistently conservative, strong-willed justices, but maybe, just maybe, Republicans will respond to the now-inevitable further shift leftward of Roberts (and likely others) by finally prioritizing such important judicial nomination criteria as full-spectrum conservatism, commitment to resisting the proverbial “Georgetown cocktail party” and eagerness to aggressively correct course.