I didn’t want to publish this today. But since it just published when I reloaded, what the heck. If anyone knows how to save a draft and not publish it when you close and reopen, please let me know in the comments. No longer an OT anyway. Enjoy. My new mantra–“No problem!” :O)
Yes, I, too, was taken aback when I saw the headline. Now that I’ve read and reread the article, I’m smitten. I still have some doubts, sure–this is a new love and I don’t want to fall head over heels. I want to read more of the arguments against it (and welcome them here), ponder, discuss, etc. But I’ve yearned for a progressive agenda for so long that this just grabbed me and won’t let go.
Hasan lays it out well, so I don’t want to write much. And I want to keep the main text somewhat limited, so I’ll put each argument in a comment below. Maybe there’s a future diary out there with all the arguments against or even more for? Note that Erwin Chemerinsky is for it.
Hasan begins with what brought him to this point. Kavanaugh!
So it’s past time for liberals and the left to consider court packing: When they next have control of the House, the Senate, and the White House, Democrats should add at least two new seats to the Supreme Court and then fill them, ideally, with left-wing, well-qualified women of color. They could even call it “court balancing.”
“Pack the courts as soon as we get the chance,” tweeted Indiana University law professor Ian Samuel, the co-host of the popular Supreme Court podcast “First Mondays,” on the the day Anthony Kennedy announced his retirement from the Supreme Court in June. “‘Pack the courts’ should be a phrase on par with ‘abolish ICE.’”
This might sound extreme, but it isn’t. The Constitution allows for Congress to decide the number of Supreme Court justices. “There is nothing magical about the number nine,” HuffPost’s Zach Carter observed in June. “The court was founded in 1789 with just six justices and has included as many as 10, from 1863 to 1866 — when a Republican legislature intentionally shrank the court size to seven justices to prevent President Andrew Johnson from making any appointments.”
“The idea of expanding the size of the Supreme Court will get traction if the Democrats take the White House and Congress in 2020,” constitutional scholar Erwin Chemerinsky, dean of the law school at University of California, Berkeley, told the Los Angeles Times in July. “It is the only way to keep there from being a very conservative Court for the next 10-20 years.”
Now let’s move on to objections.
Isn’t court packing a tactic associated with authoritarian or dictatorial governments? Wouldn’t such a move undermine the Supreme Court’s legitimacy? Why go for the “nuclear option” of court packing when there are other less radical reforms on offer? And, of course, what’s to stop Republicans from doing the same when they’re back in charge?
Let’s deal with each of these in turn….
Arguments are in the comment section.
Hasan makes a passionate conclusion. The thing that really got to me is that we will never get the most important programs because the Court will always chip away at them unless we stack it. And I agree with those of you who say it’s near impossible right now. That’s true. We won’t get a Court that represents our will until we get enough progressives in office that don’t care what Republicans think and are willing to fight for what America so desperately needs.
Court-packing has to be near the top of a progressive agenda for 2020. Democrats will have to learn to “connect court-packing to popular progressive programs,” Samuel told me. For example, will “Medicare for All” ever be a possibility if there’s a decades-long conservative majority on the highest court in the land? Lest we forget, a Republican-led Supreme Court, without Kavanaugh and Gorsuch, was only a single vote away from abolishing Obamacare in 2012. How about fixing gerrymandering or voter suppression? Will progressives even manage to get elected to the White House or Congress if an emboldened and unchecked conservative-dominated Supreme Court ratchets up its defense of such practices, thereby bolstering the Republican Party’s electoral prospects?
Forget procedures; forget norms. There is too much at stake. Playing by the old rules while the Republicans tear them up won’t cut it. Deferring to a court composed of conservative ideologues masquerading as impartial judges, to an explicitly political yet unelected body bent on making sweeping, reactionary, unpopular changes to the United States, is a betrayal of liberal, democratic, and progressive values.
There is a perfectly legal and viable solution to all this: Pack the Supreme Court. Pack it as soon as possible.
Arguments against packing are most welcome!