Court-packing is back in vogue

Erin Schaff/The New York Times via AP, Pool

After the Supreme Court’s recent refusal to strike down a Texas law that severely restricts abortions in the Lone Star State, liberals around the country found an excuse to reintroduce one of their favorite themes from the 2020 election. It’s time for Joe Biden to pack the Supreme Court. There’s another example of this strategy in a column this week at the Guardian penned by Amherst College professor and author Lawrence Douglas. With the unsubtle title of “It’s time to pack the court,” Douglas argues that the 5-4 decision demonstrates some sort of clear and present danger to freedom or something. The details don’t appear to matter quite as much as the opportunity to take back control of the court majority from conservative appointees. He envisions a two-step process because of the realities of the current balance of power in both the House and the Senate. First, they need to eliminate the filibuster. Then they can vote to add two more seats to our highest court, presumably to be filled by Joe Biden.

Biden, however, could now fairly and legitimately propose expanding the number of justices from nine to 11. Such an expansion would counterbalance the abuse of constitutional rules that enabled the confirmation of Neil Gorsuch and Amy Coney Barrett and the installation of the hardcore conservative bloc responsible for the Texas decision.

This is not to say the effort would be successful. Assuming Biden could find support in the House, expanding the number of justices would require Democratic senators to first eliminate the filibuster, something that Senators Joe Manchin and Kyrsten Sinema staunchly oppose. And we know that Republican lawmakers, led by Mitch McConnell, would accuse Biden of dangerously politicizing the court.

To which we may respond: pah-leeze. After all, it was McConnell who, in the wake of Antonin Scalia’s death nine months before the 2016 election, announced: “The American people should have a voice in the selection of their next supreme court justice. Therefore, this vacancy should not be filled until we have a new president.”

Liberals like Lawrence Douglas are engaging in an exercise in tilting at windmills that will likely not even be standing by the time the rider arrives. The author even admits that the single-paragraph unsigned majority opinion goes out of its way to point out that the ruling was not a statement on the constitutionality of the bill, but rather a procedural step in a longer process. Honestly, I will be deeply shocked if the Texas law stands in the end based on a variety of factors. But that likely doesn’t matter much to the Democrats who are howling most loudly over this. They have bigger fish to fry.

What we’re seeing here is another of the negative, downstream effects of the Texas abortion law. I’m hardly the first to point this out, but Texas Republicans probably threw a lifeline to Joe Biden and the Democrats by passing that bill. The President has been back on his heels over the botched handling of the evacuation of Kabul and most of his spending agenda is in limbo, as polls show growing uneasiness over the radical agenda that’s being pushed in Congress. One-fifth of Biden voters are now regretting their decision to support Uncle Joe and those are the type of numbers that tend to sink some down-ballot races.

But now both the Democrats and their stenographers in the mainstream media have been handed a gift. Nothing seems to energize the far-left like the abortion debate. (Something that has always left me scratching my head.) If Biden’s handlers can manage to craft a narrative depicting Uncle Joe as a warrior enacting dramatic measures to “protect women’s constitutional right to choose” and painting all Republicans and conservatives as de facto Texans, he could quickly herd all of those regretful sheep back into the party’s corral. We can ignore for the moment the fact that Roe was passed based on a hypothetical “penumbra of privacy,” despite the fact that the word “abortion” doesn’t appear anywhere in the constitution, nor does any reference to healthcare as a fundamental right.

What most of the Democrats seem to be either unaware of or purposely ignoring are the long-term effects that their court-packing scheme would almost certainly produce. First of all, it is basically a certainty that if the legislative filibuster is ever thrown out, it will never, ever come back. Senators don’t vote to limit their own power when they are in the majority. And the reality is that neither party will be holding either the White House or the majority in either chamber indefinitely. Frankly, assuming America’s attention span isn’t as short as Democrats seem to believe and based on most current polling, their control of both chambers may currently have a lifespan measured in months rather than decades. Also, a second term for Joe Biden (or Kamala Harris or the first term for any other Democrat seeking to replace them) is hardly assured. If you hand control of the Senate back to the GOP without the filibuster in place, Katie bar the door.

And what happens after that? The next Republican president who is backed up by a GOP majority in the Senate will simply add two more seats to the court, expanding it to 13 members. (Or however many are required to retake the majority, depending on which members die or retire first.) And so on and so forth until the court eventually outgrows the Senate itself. Any “victory” achieved through a foot-stamping, breath-holding tactic like this is destined to be temporary by definition. Wouldn’t it be preferable to simply make a better, more convincing argument in favor of your policies and expand your control of the legislative branch to the point where the minority can’t block your agenda? It’s been done before and without any extreme measures such as court-packing or driving the filibuster to extinction.

Sadly, asking politicians in the current era to look at long-term, gradual solutions rather than instant gratification is probably a lost cause. If that’s the case and the Democrats actually take Douglas’ advice and somehow pull it off, try to keep your arms and legs fully inside of the car. The coming roller coaster ride may be a bit sketchy.