Disruption is great, but there is a difference between creative destruction and just plain garden-variety destruction. Some things should change quickly, like communication and transportation technology. Some things should not change quickly. The law is one of them. With that in mind, let’s talk about the recently in vogue idea of court-packing. The idea that the number of Supreme Court justices should be increased or changed is suddenly picking up steam in Democratic circles. But why? Does anybody actually believe the Supreme Court of the United States (SCOTUS) is doing a poor job right now, or that adding justices is going to do anything other than alter the ideological balance of the bench?
Packing SCOTUS is only going to do two things: one, force the court to ideologically represent whichever side is in power at that moment, and two, create giant swings in what the law is. Yes, yes, I see you waving the bloody shirt of Judge Merrick Garland. Yes, I can hear you saying that the court is already political. Let me just—can I just?—okay. To those of you are shouting “But Garland!” at your newspapers, take a breath and bear with me for just a minute. (If, on the other hand, you are asking who this Garland character is, oh sweet country mouse.)
I think we can all agree that Garland didn’t deserve what happened to him, but with that said I don’t understand the idea that his nomination was either ideal or nonpartisan. If you believe that Garland, an 60-plus-year-old white, male, moderate was President Obama’s top choice, please see the above parenthetical starting with the final clause. Garland was merely the candidate most likely to get confirmed by a Republican-controlled Senate. Moreover, the idea that the seat was “stolen”—that Congress derelicted its duty by not holding a vote for his confirmation—is kind of dishonest.
One, it assumes the legislative branch is a junior partner in selecting members of SCOTUS, which is disrespectful and, at this point, clearly not true. Two, that seat never belonged to Garland. In fact, the most recent occupant was one Antonin Scalia, and if you were to ask me which person was a “truer” fit for Scalia’s seat, Gorsuch is a much closer mold (FiveThirtyEight, “Just How Conservative Was Neil Gorsuch’s First Term?” 07.25.2017). Here, I admit my own bias: I hold Gorsuch in high esteem, but for good reason. His dissents in both Carpenter v. United States and Gamble v. United States are exemplars of judicial reasoning, and while I don’t always agree with his decisions, they are well thought-out and respectable.
Which brings me to the point. Even if I agree that SCOTUS is a political body—something I will go to the grave denying with my last breath—do you really think court-packing will fix undo that? Do you sincerely believe that if we increase the size of SCOTUS, the other side will never gain power, and never do the exact same thing? To borrow from James Gordon, “[The police] start carrying semi-automatics, [the criminals] buy automatics. [The police] start wearing Kevlar, [the criminals] buy armor piercing rounds” (“Batman Begins,” 2005). In other words, do you want escalation of the political war currently raging? We have one apolitical branch. I don’t care who started it, we’re not playing a game of chicken with our entire legal structure.
Assuming we do pack the court at every opportunity which arises, suddenly we have a precedential game of ping-pong. Do you like the ability to choose whether to get an abortion? Better hope you don’t get pregnant during the eight-year window when it’s banned. Do you like having healthcare? Surely having that entire fourth of the economy starting and stopping just about once a decade won’t cause any issues. Want to start a business or nonprofit and figure out what regulations you have to have in place? Good thing that the Consumer Protection Bureau is popping in and out of existence like Casper the Friendly Ghost.
Believe it or not, there can be honest disagreement about what policy is best for the long-term welfare of the country, and indeed the world. These are things that need to be hashed out in the democratic process, not imposed top-down by a set of unelected judges. The idea that because you’re right, you should just impose your view on everyone is dangerous. There is no quicker way to authoritarianism. If you give more and more power to the executive and turn one of its most significant checks into a gallery of sycophants, well, then things are going to turn out badly for you.
The law is supposed to move slowly. It’s supposed to be a sturdy, stable set of rules in which to live your life. “Move fast and break things” is not a good policy when you’re the referee. Calvinball, a game with no rules except those that are invented as you play, is a terrible way to govern. If you really want to make long-term changes, the judiciary is not the place to do it. That wasn’t the idea when it was designed, and it’s not a better idea now. Reviving ideas like court-packing is not the way to win hearts and minds. If you want that, put out solid policy ideas, pass those, and win people over to your side.