Don’t let the GOP make ‘court-packing’ a mortal sin

As Amy Coney Barrett’s confirmation hearings begin and the 2020 presidential election enters its final stretches, Republicans are accusing Democrats of wanting to manipulate the size of the Supreme Court to achieve political ends. Let’s be clear about one thing, though: It is Republicans who have tried to warp the court’s dimensions in recent years. And they’re doing it again right now.

Whether Democrats would consider returning the favor at some point in the future is entirely hypothetical and depends on a host of unknowable variables. Joe Biden and Kamala Harris are right not to be baited into answering a question — “Will you orwon’t you?” — that presently has no meaning.

Ask them again if and when Biden is president and Democrats control both houses of Congress. Then, and only then, will Biden’s view on expanding the number of Supreme Court justices be meaningful— because then, and only then, will court-packing be an actual possibility.

But there is more than oneway to skew— or unskew — the ideology of the high court bymanipulating the number of sitting justices.

You could do it by effectively reducing the number of seats on the court to eight, keeping one seat vacant for more than a year and refusing to give an eminently qualified nominee even a committee hearing — as Republicans did with Barack Obama’s nominee Merrickgarland in 2016. Or you could rush someone through a hasty confirmation process at a time when voters are already casting ballots in an election that your party, according to polls, is likely to lose — as Republicans are doingwith President Donald Trump’s nominee this week.

If one party did such outrageous things, cementing a conservative majority on the court for a generation, the other party, assuming it had the requisite power, might theoretically believe it is justified to add seats to the court to restore its ideological balance.

The Constitution, which does not specify the number of seats on the court, allows all of the above. Republicans have tried to paint “court-packing” as an unthinkable horror, an unprecedented departure from norms and traditions. Having transformed itself from the Party of Lincoln into the Party of Trump, however, the GOP has no standing to lecture anyone about norms and traditions. And the fact is that a decision by Democrats to expand the court would be nothing more than a variation on the “court-warping” that Republicans would achieve with Barrett’s confirmation.

Ifdemocrats were to win the White House and Senate and keep control of thehouse, they would have options for howto respond to the long Republican campaign to capture the courts and the shenanigans they’ve used to pursue it. Expanding the size of the Supreme Court wouldn’t be their only option.

Democrats could and should enshrine rights the high court might no longer recognize— among them women’s reproductive freedom, same-sex marriage and unobstructed access to the ballot box — in legislation. That would almost surely require eliminating the legislative filibuster in the Senate, which would occasion more GOP howling about, yes, norms and traditions. But the Senate under Majority Leader Mitchmcconnell, R-KY., has become little more than a smaller, less efficient version of the House: a chamber in which the majority steamrolls the minority as a matter of course. Why should Democrats pretend otherwise?

It will still be a problem, however, for the highest court in the land to be seriously out of step — perhaps for decades — with the nation whose laws it interprets. Conservatives used to denounce “judicial activism” when they saw it being practiced by liberal justices. They now embrace such activism by justices who share their conservative ideology and who try to pull the country back into the past.

The Supreme Court presently takes a view on Second Amendment rights that not long ago would have been considered extreme or even loopy — and that thwarts thewill of a majority of Americans for meaningful gun control. The court takes a radical position on the role money can play in politics by limiting what Congress can do to level the field. Of course, we should want justices who will follow the Constitution, not the opinion polls. It makes sense to have both conservative and liberal justices on the court, reflecting the ideological divide in the nation. It does not make sense, though, to have a durable majority tilting the scales of justice in one direction only.

I could argue against the notion of adding seats to the court — the GOP could make a tit-fortat response when it gets the chance — and I have no idea what Biden thinks. But there is no reason for the Democratic Party to engage in unilateral disarmament — and no reason to answer hypotheticals. Let’s have the election first.