If Leftists Pack the Court, They Destroy the Republic

If Democrats are able to recapture the White House and Congress in the coming years, it now seems all but unavoidable that they will look to pack the Supreme Court with progressive justices in order to neutralize Gorsuch and Kavanaugh.  Whether or not they will attempt this is barely an open question at this point.  They'd been telegraphing this long before Kavanaugh's confirmation.

In May of this year, prior to Justice Anthony Kennedy's retirement, Scott Lemieux of the New Republic wrote that if "Trump gets two nominees, this Court is likely to be well to the right of the current Roberts Court and likely to go to war with a Democratic Congress."  Therefore, "Democrats have to leave all options on the table," in case Democrats have to blow up the Supreme Court's power dynamic by adding more leftist justices when Democrats regain federal power.

In late June of this year, Zach Carter, a senior reporter at the Huffington Post, went a step farther in his article "Hey Democrats: Pack the Court," saying, "[W]hat remains of the legacy left by former President Barack Obama" would never "survive a Trump-friendly Court.  Roe v. Wade is gone.  Democrats have no choice but to implement structural reforms to the judiciary," meaning, "at a minimum," "expanding the Supreme Court to 11 Justices under the next Democratic president."

This all raises incredibly interesting questions.  If it's all just politics as usual to expand the number of justices on the Supreme Court due to popular election results, what prevented a Republican White House and Congress from packing the Court to overturn Roe v. Wade at any time between 2001 and 2006?  What is preventing Republicans from adding two more justices in the next two years if they are able to keep Congress in November while Donald Trump is in still in office?  What would be the left's response to that

I'd wager that these same hypocrites would declare any such effort to be an act of tyranny and an affront to our constitutional republic's balance of federal powers.  They'd be right. 

But Democrats seeking to pack the Supreme Court with additional progressive justices in order to advance a massive expansion of federal power is a time-honored strategy for the left.  In fact, it's right out of the political playbook of Franklin Delano Roosevelt, who is "arguably America's greatest president," writes Richard Rubenstein over at Counterpunch, suggesting that Democrats follow FDR's example in his article "How to Pack the Supreme Court."

However, too few Americans know that the decision to pack the Court with as many as six judges of his choosing in 1937 was a shocking revelation for Congress at the time, because it overtly signified FDR's dictatorial desire for federal power -- and even many of his own Democratic Party allies thought it a bridge too far. 

Feeling emboldened by his victory in the 1936 election and angry that the Supreme Court had been thwarting his New Deal policies, FDR "invited six key Democrat leaders to the White House," writes Burton Folsom, Jr.* in his essential book, New Deal or Raw Deal? How FDR's Economic Legacy Has Damaged America.  He didn't seek their counsel, but only invited them to say he was going to pack the Court, which some of them received "in horror."  Hatton Sumners of Texas reportedly said after, "Well, boys, this is where I cash in my chips."

FDR had, by this time, implemented a massively corrupt system of federal patronage, where federal dollars were routinely divvied out for individual states that played ball with his political experimentation in national economic policy (experimentation that, by 1937, had already proven destructive), and he attempted to leverage that power, as he had done so many times before, with naysayer Democrats to get them to support his packing of the Court.

Republicans didn't even have to fight this battle – they "shrewdly decided to be quiet," letting men like Burton Wheeler, a Democrat from Montana, take up the fight.  "Most members of the Senate are lawyers," Wheeler told Harry Byrd of Virginia.  "Deep down, they agree with you and me, but they're like a lot of mercenaries.  They want patronage.  A small army that believes in principle can lick a bunch of mercenaries, and we'll lick them."

That's exactly what they did.  The Judicial Procedures Reform Bill of 1937 ended unceremoniously in a crushing defeat, with the Senate voting down the measure to pack to Court by a final vote of 70-20.  There were 74 Democrats in the Senate at that time, meaning that it was, in fact, largely principled Democrats who killed FDR's attempt at tyranny.  (This attempt, anyway.)

Unlike Democrats then, Democrats today approve of, and now celebrate, FDR's threat to pack the Court for political gain.  Scott Lemieux of New Republic says:

[W]hile FDR's initial Court-packing proposal – which was presented in an uncharacteristically ham-handed manner – failed, the constitutional crisis that compelled it quickly faded as Justice Owen Roberts started voting with the Court's liberals to uphold New Deal programs.  Soon after, retirements allowed FDR to make enough nominees to ensure a Court that would not interfere with the core New Deal agenda.

Did you catch that?  According to the left, Supreme Court rulings that "interfere" with an elected federal government's desire to exceed its constitutional boundaries represent a "constitutional crisis."  It's difficult to imagine anything more opposite a "constitutional crisis," or more ignorant to the purpose of the Supreme Court, or more dangerous for the future of the republic.

The Judiciary is the one branch of government that is, by design, not meant to be a political body involved in making laws or expressing the dynamic will of the American people.  The Court, as described by Hamilton in Federalist 78, "may truly be said to have neither FORCE nor WILL, but merely judgment" and "liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other two departments."

Contrary to that simple observation, leftists like Scott Lemieux are now arguing that the Court should be unified in purpose with the executive and the legislative bodies.  To do any less amounts to a "constitutional crisis" like the one that "compelled" FDR to pack the Court.

...but only when Democrats are in power, of course.  Today, the left would have no problem with the Court "interfering" with the policy ambitions of this elected president and this elected Republican Congress.  But when progressive Democrats regain federal power, any sign that the Court wishes to "go to war with a Democrat Congress" must be met by Democrat efforts to ensure its compliance – by packing the Court with more leftist judges. 

The argument to pack the Court is remarkably inconsistent, and it requires oceans of shameless hypocrisy.  That will not stop Democrats from arguing for and defending it.  As the left becomes increasingly radicalized and desperate, it's becoming ever more likely that Democrats will sacrifice everything to destroy and reshape the Court toward their preferred political ends.

Who will stop them if they regain federal power?  How many principled Democrats would stand up to defend the republic against such a subversive attempt to undermine and destroy the Court's constitutional purpose today, as they did in 1937?  The likely answer to that question, given the gaggle of current Democrats we just saw leading the political mob to destroy Justice Kavanaugh, is troubling, indeed.

Now, more than ever, in this hyper-polarized political environment, it seems that conservatives' hope to preserve our constitutional republic, as well as the progressive left's hope to destroy it, hinges upon the ballot box in the coming years.

William Sullivan blogs at Political Palaver and can be followed on Twitter.

* Folsom, Jr., Burton. New Deal or Raw Deal? How FDR's Economic Legacy Has Damaged America.  Threshold Editions, 2009, pp. 192-193.