Packing The Court Is The Nuclear Option — Democrats Should Treat It That Way
If and when Democrats win control of Congress and the Presidency in next week’s general election, this Monday’s confirmation of Amy Coney Barrett to the Supreme Court will result in enormous pressure to pack and “re-balance” the court.
After the refusal of the same Republican Senate majority that confirmed Barrett to even consider Barack Obama’s nomination of Merrick Garland in similar circumstances four years ago, there is understandable anger from Democratic partisans at the path that has led to the Supreme Court’s new 6-to-3 conservative majority. And creating additional seats is the most straightforward fix within the bounds of the Constitution.
But while Republicans have flouted long-held norms in leading to this moment, court packing would obliterate them entirely, potentially setting off an endless cycle of partisan escalation whenever executive and legislative power changes hands. Think of a political version of the nuclear Doomsday Machine of Stanley Kubrick’s imagination. If one bomb goes off, they all go off (albeit in much slower motion), and everyone loses.
Instead of going through with court packing as soon as they might gain power, to continue the nuclear analogy, Democrats should use the threat in the manner modern sovereign nations use their weapons arsenals, to gain leverage in negotiations. Ultimately, that threat could do more political good than the action itself.
The newly conservative composition of the Supreme Court, and the increasingly conservative lean of the lower levels of the federal judiciary, are the result of a half century of Republican crusading that began with Nixon’s Southern Strategy. But while the right has expended so much energy toward the goal of a conservative judiciary, the left has successfully moved public opinion in favor of many of its preferred social policies. Time and again, contemporary opinion polling shows Americans support upholding Roe vs. Wade as the federal standard for abortion rights, and keeping the Affordable Care Act and marriage equality in place.
With previous versions of the court upholding those policies, that success in moving public opinion has not resulted in increased participation at the ballot box. Instead, conservatives have maintained more unity despite their smaller numbers by mobilizing around the judiciary cause.
That may all be about to change. Evidence already suggests the composition of the courts is more important Democratic voters in 2020. If the judicial branch remains conservative-leaning for the foreseeable future, the result may be that the nation’s majority party is also the more unified one. Without the ability to elect federal judges, Democrats would take their frustrations by voting out state-level policymakers supporting laws against abortion access, gay rights and healthcare. All the while, the awkward marriage between evangelical and free-market Republicans would make even less sense that it does currently without the need to unify around voting for a court that is already reliably conservative.
Of course, Democratic voters will demand the leaders they elect do something to address what they see as the theft of a Supreme Court appointment. So Democratic politicians should make this their stance:
Court packing as a last resort which we are hesitant to use because it may very well unravel the last bit of trust which holds together our political system. But we will deploy it if Republicans are unwilling to work with us to negotiate other reforms, including …
- A more robust and less Constitutionally vulnerable healthcare law
2. Supreme Court term limits to eliminate the randomness of the appointment timeline
3. Statehood for Washington, D.C. and potentially Puerto Rico dependent on a referendum by Puerto Rican voters
4. The elimination of gerrymandering of congressional districts in both Democrat- and Republican-governed states
5. Restructuring or eliminating the electoral college
Democrats need to be willing to press the red button if all efforts at bi-partisan cooperation are exhausted (and if they’ve already achieved what they can through the elimination of the Senate filibuster, which should come first.) If they have to make good on their threat, they can do so incrementally, adding one justice at a time, allowing Republicans to come back to the negotiating table before the situation gets worse.
While all this occurs, Republicans may come to regret the creation of the conservative judicial majority they facilitated if its unpopular legal decisions will put their politicians in the direct line of fire. This could expedite the process of states like North Carolina, Georgia and even Texas in their transition from red to purple to even blue, and may necessitate both parties lurching back to the left to correct for each’s rightward lean that began in the Reagan years.
Democrats should be furious with the last four years of bad faith negotiations. But Republicans have laid their hypocrisy so bare with Barrett’s confirmation as to cede enormous ground in the battle for America’s conscience, opening several tactical avenues for Democrats in the process. Democrats should only go nuclear when all other possibilities are extinguished.
