Cease the tit-for-tat
Expanding the Supreme Court would be disastrous
Some Democrats, including former U.S. Attorney General Eric Holder, are advocating an expansion of the Supreme Court to undercut the court’s current 5-4 conservative majority. If Democrats were to take control of the White House, maintain control of the House and take over the Senate in 2020, they’d theoretically have the votes necessary to add seats — and left-leaning justices — to the court.
How many seats they’d add to dilute the current court’s conservatism is unclear. But court packing is a terrible idea, like so many other ideas motivated by political expediency instead of the country’s welfare.
Case in point: Six years ago, Senate Democrats eliminated the filibuster for most presidential nominations so they could get leftleaning judges onto lower-level federal courts. It’s come back to haunt them because Republicans, who now control the chamber, are stacking the judiciary with conservative judges.
In 2016, Senate Majority Leader Mitch McConnell, R-Ky., refused to allow confirmation hearings on Judge Merrick Garland, lameduck President Barack Obama’s Supreme Court nominee. Democrats will take the same tack with a Republican president one day.
Where does the tit-for-tat end? If Democrats were to expand the court and pack it with liberals after 2020, what would stop Republicans from doing the same the next time they control the government? Perhaps the court would grow to 19 justices or 29 or more.
With the ugliness of the Brett Kavanaugh confirmation proceedings still a fresh memory, Americans have zero appetite for more hearings or more nominees. And what a circus a larger court would become with a greater number of concurring and dissenting opinions.
Ironically, the court has assumed an outsize importance only because Congress, perpetually gridlocked, has ceded much authority to the judiciary.
While the Supreme Court’s rulings are the most important in the land, the justices hear only a small number of cases. Most issues still are settled in lowerlevel appellate courts. After expanding the Supreme Court, what’s to stop the political partisans from tinkering with the makeup of the 12 circuits, too?
The Supreme Court’s purpose is to adjudicate disputes and interpret law, not codify one faction’s political goals. In Federalist 78, Alexander Hamilton described the federal courts as “bulwarks ... against legislative encroachments” and a tool for keeping lawmakers “within the limits assigned to their authority.” Manipulation of the Supreme Court’s size is exactly the kind of thing Hamilton feared from “designing men.”
Franklin Delano Roosevelt was one of them. He tried to expand the court so he could get approval for New Deal legislation. His effort failed, and this latest one should, too.
Courts may lean left or right, but it’s a mistake to consider them hopelessly partisan — witness the Supreme Court’s recent 9-0 ruling limiting asset forfeiture by law enforcement agencies.
The court has had nine justices since the Judiciary Act of 1869, and there’s no good reason to change that now. This is a time to heed Hamilton’s warning against “dangerous innovations in the government.”