The Supreme Court, as we know it, might be doomed. Not because President Trump will get to nominate a third associate justice and not because some as yet inconceivable change to our system of government will render it obsolete. Nevertheless, the court’s current incarnation as a nine-justice body could be entering its last years. Why? Because, for Democrats, the most logical way forward is to pack the court at the first opportunity.
Packing the court – appointing additional justices with acceptable ideological leanings to ensure favorable majority decisions – is no easy thing to do. Still, Democrats may decide that it is the answer to the problem that has plagued them for so long; the problem of not being able to ensure that the judicial branch bends unerringly to their will.
The ideological left is still smarting from being denied a Supreme Court pick in 2016 when Senate Majority Leader Mitch McConnell (R-KY) denied Barack Obama’s nominee, Merrick Garland, a confirmation procedure. Then Trump gave the seat that Democrats considered theirs rightfully to Niel Gorsuch.
Despite pulling out all the stops and going for full, no holds barred character assassination, the left was thwarted once again when the Senate placed Mr. Trump’s second nominee, Brett Kavanaugh, on the high court. Of course, Kavanaugh’s confirmation merely brought ideological balance to the court. Obama, during his eight years as commander in chief, also got two Supreme Court picks. The left’s unbridled fury at Kavanaugh, then, may have been for naught.
It is worth remembering, of course, that Supreme Court justices do not always rule the way people expect them to. Despite being a Bush appointee Chief Justice John Roberts has dismayed conservatives on several occasions. Even Gorsuch and Kavanaugh have done the same – siding with the left-wing of the court on big cases. Though less common, Obama appointees, Justices Kagan and Sotomayor, have also crossed the aisle, so to speak. This is how it should be, perhaps. Even Ruth Bader Ginsburg herself once said that it would be better if Supreme Court nominees were vetted on their qualifications and experience, rather than by guesses of how they might vote on any particular issues.
The difference, of course, is that the political right – for the most part – wants justices who interpret the Constitution as written, while the left wants the court to constantly reinterpret the Constitution with each new generation.
After a string of defeats, then, with regard to Supreme Court appointments it is far from inconceivable that Democrats could be looking to a future in which they control the White House and Congress once again. At that point, might they decide to implement the only plan that will ensure them a loyal court in perpetuity? How would this be done? By expanding the body from nine to, say, 11 – or perhaps even 15 – associate justices for good measure. Why not 17? With a majority of eight or 11 or 13, the left will never again have to worry about the court restraining its excesses.
No Easy Task?
Again, this would not be a simple thing to do. Expanding the Supreme Court would be a process requiring a broad and sustained public-relations campaign and, of course, a compliant Congress. A president does not merely snap his or her fingers and place additional justices on the court – as a previous president found out.
Surely, such an idea is beyond contemplation – except that it is not. There is no Constitutionally-mandated number of Supreme Court associate justices. Originally, there were six, but, as the nation grew, so did the court – at one point having ten jurists. Court-packing is not a new concept, either. FDR wanted to do it in his second term, having been frustrated by a court hostile to many components of his “New Deal.” Roosevelt had plans to expand the court to 15 justices, but that idea did not end well for him.
Are today’s leftists likely to see FDR’s failure as a cautionary tale? Unlikely. As they try to promote the benefits of socialism – a system that has failed without exception – they tell themselves and us that “this time, it’s different.” So it will be with the idea of packing the Supreme Court with politically sympathetic jurists.
A third Trump appointee will finally give conservatives a somewhat reliable majority on the court, and, realistically, only one or perhaps two vacancies are likely to open up within the next decade – or longer. The passing of Ruth Bader Ginsburg – and her replacement by another justice with conservative tendencies – might just be the last straw for a party that has always wanted to bend the Supreme Court permanently to its will.
Read more from Graham J. Noble.