There has been a great deal of discussion of late on court packing in relation to Amy Coney Barrett’s upcoming confirmation. The mainstream media has been pushing the narrative that court packing no longer means what it has meant for decades, the Democrat party is threatening to pack the court if ACB is confirmed, and Biden and Harris either agree with the media narrative or refuse to answer entirely. With everything so focused on these issues, it can be difficult at times to sift through fact from fiction, and furthermore, it has become obvious that many either do not understand how this process works or are trying to actively deceive others as to how it works. So what are the facts?
Definition of Court Packing
To begin with, we need to define court packing. Most of us should know what this is, but we also heard Kamala Harris say the following in the vice presidential debate: “And do you know that of the 50 people who President Trump appointed to the court of appeals for lifetime appointments, not one is Black? This is what they’ve been doing. You want to talk about packing the court? Let’s have that discussion.” (See article with transcript from Politico)
So, first of all, whether we like it or not, we do not find very many black lawyers and judges who have the same vision and beliefs regarding the Constitution as the Republican party. This is because most are contextualists, not textualists. They tend to be overwhelmingly supportive of the Democrat vision of the Constitution, in which it can be interpreted in whatever way best suits their values and judgement (context in modern day versus text’s actual contents). This is not to say there are no black justices who are textualists or conservatives. We do have Justice Clarence Thomas, most notably, who was nominated and affirmed under Bush’s administration.
Second of all, and most importantly, this is not what packing the court means! She implies that it is and all but outright states it when she equates a lack of black appointees to packing the court. Not only does this ignore any factors that might make the lack of minority nominations actually understandable instead of some heinous sin on the part of the Trump administration, but it is a gross abuse of terminology as she twists a well-established term with a well-established meaning to fit her agenda. Furthermore, the media picked up on this and has been touting it ever since. This has been the rhetoric coming out of the Democrat party as they repeatedly refuse to answer whether or not they will pack the court.
So what is the definition, then? The definition is literally adding more seats to the Supreme Court under any partisan administration and then filling it with justices in line with that party’s judicial views. That’s it. If you do this, you fundamentally break the system, make it a partisan organization, and invalidate it, but the definition itself is straightforward and has been the same for decades. Changing the definition to suit your purposes is nothing short of intellectually dishonest. The word has a meaning and should be used properly according to that meaning. It has never been and should never be used to mean the adherence to some set quota of ethnic minority appointees.
The Issues With Court Packing
Non-Political/Bi-Partisan
There are several issues with court packing, but to begin with, the first issue is that the American people have historically (and still do even today) viewed the Supreme Court as a relatively bi-partisan organization. It was never meant to be a political branch in the sense that Congress or the Presidential branch are, nor was it meant to be a legislative branch. Instead, the Supreme Court was designed to bring a check to the power of Congress and the President in ensuring that laws already made did not overstep their Constitutional bounds.
This means that, by definition, the purpose of the Court is only to rule on whether a law is in line with the Constitution or not, not to rule based on their religious beliefs, preferences, or any other contextual reason. This is, historically, the position that Republicans have looked for in their nominees, and it is the position that Democrats have completely rejected due to an overwhelming push to treat the judiciary branch as just another legislative branch to push through policies they couldn’t get passed through official laws alone.
This can be demonstrated in various hot-button cases where the justices ruled in favor of their views over the literal text of the Constitution. There are also notable instances of left-leaning justices upholding unconstitutional legislation using reasoning that twisted the Constitution. Cases such as Roe v. Wade or cases regarding rights to privacy in specific areas are good examples of this. Even if we agree with the decision made, the reasoning is still the most important piece of the decision. (For more information on Supreme Court cases, see my suggested reading list for courses on the Constitution and Constitutional Law.)
Balance of Power
If we pack the court, then the balance shifts in favor of the political party who packs it. Should the right do this, we will see a larger number of textualist justices. The court will return to a relatively powerless institution just as the Founding Fathers envisioned it. If the left does it, the court becomes just another arm of the Democratic party’s legislation and only gains power.
We have seen both to varying degrees, but the balance usually sways one way then the other and balances out. The court has made some good decisions and some bad in any event. However, the one thing that Americans relied on was a court that would not act as a legislative body. So that’s the first problem.
Destruction of Separation of Powers and Ill-Received
The second issue is that it is both ill-received by the American public and destructive to the separation of powers between legislative branches and the judiciary. It fundamentally skews the power toward one party or another, as we discussed, and no one is happy with that. FDR tried to do this very thing during his administration with disastrous results. There was a huge outcry against it, no one was in favor, and ultimately the attempt failed.
Back then, people still understood just how critical it was to keep the balance in the Supreme Court. Do we still understand that today? Maybe, but if we did, we should be seeing a much larger outcry from Democrats against their party’s radical leaders for the things they are doing. We would see this no matter who wanted to pack the court as it would fundamentally break a system that protects us all.
As Hamilton said of the courts in Federalist #78, “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
He continued on to state, “It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers”’ (Federalist Papers #78).
End Results?
So in the end, court packing leads to two major issues. The issues are exacerbated if done by any party that believes in contextualism instead of textualism. First, court packing leads to tipping the distribution of power within the Supreme Court. The result of this is a politicization of a branch that has historically not been intended to be political. The Supreme Court is strictly an apolitical body in that it rules based on the Constitution, not on political preference. Second, it leads to a breakdown of the checks and balances that were put in place to keep legislative branches in check.
As it happens, this system of checks and balances is key to preventing majority tyranny over the minority. This is true regardless of who happens to be the majority or the minority at the time. Court packing in combination with other things the Democrats want removed to make us more “democratic” is disastrous. It will lead to nothing short of the breakdown of our constitutional republic and to mob rule. That mob rule is ultimately capable of ignoring the wishes of any other minorities within the community. No matter who you are, this is not a desirable outcome. At any moment the winds of power could shift, putting you on the losing side.
The Response to Court Packing?
No matter which party you adhere to, court packing is a problem. It leads to the end result of a breakdown in our system of checks and balances, the politicization of the court, and a tip in the balance of power. All of these will lead to an increasingly legislative court instead of a judicial one. This ultimately leads to more and more restrictions on freedom based on who is in power. None of us want that. None of us, if we truly love our own liberty and freedom, wish to be ruled by democratic rule. History shows over and over, that a true democratic system is the antithesis of freedom for all. It always leads to the tyranny of the majority. The Founding Fathers built our system to avoid this.
Any party that wishes to pack the court deserves, at the least, a massive outcry against what they are doing from their voters. It is unacceptable for a candidate to claim, as Biden did in a town hall this past week with KTNV, that voters “don’t deserve to know” and that telling them would be “playing Trump’s game”. (Forbes transcript of exchange with reporter)
This issue is incredibly important, and voters do deserve to know where Biden and Harris stand. Unless you are in favor of destroying the foundations of our government, you should speak out against any court packing attempts. If necessary, speak out to the point that you won’t re-elect those threatening to do this.
Making Our Voices Heard Through Our Votes
At the end of the day, which party you vote for is obviously your decision. No one can tell you which party to vote for. No one can make you vote for any one candidate over another. But if you love your country and liberty, why would you not avoid voting in those who are threatening to tear both to shreds?
If you wish to vote Democrat, fine. But vote for those who will uphold our constitutional republic. Vote for those who do not threaten to destroy everything if they do not get their way in a procedure. Particularly since, in this case, the procedure is entirely 100% constitutionally valid. There is nothing that says a party cannot nominate and confirm a justice at any point during a President’s term. While an administration or a specific Senate may refuse to do so, they are under no obligation to continue that trend into the next term. The nomination of the justices is a constitutional right given to the President. Similarly, it is the Senate’s right to either confirm or deny them regardless of the time left before an election.
In the end, the threats to pack the court over ACB’s nomination are unjustified, childish, and unacceptable. All of us ought to be joining together to decry such threats and behaviors. Do not allow any party to “burn it all down” on your watch regardless of who they are.
