Elections,” the man once said, “have consequences.”
In 2016, the need to fill a vacancy on the United States Supreme Court was a consequence foremost in the minds of voters. That the pick ended up being made by Donald Trump’s and not Hillary Rodham Clinton helped stoke the partisan rancor that has the country divided and beleaguered.
A Clinton pick would have turned the court to the left for the first time in decades. Trump’s first nominee preserved the originalist wing of the court. His second appointment solidified it. And the voters apparently approve. Pollster Scott Rasmussen recently found 61 percent of voters approve of the way the court is doing its job. The high level of confidence, he says, tracks back at least as far as August 2018, and 59 percent of those surveyed think the court’s power is at about the right level.
Chief Justice John Roberts, whom some conservatives regard as the weakest of the adherents to originalism currently on the court, has been accused of making compromises on legal points to protect the court’s reputation. The Rasmussen numbers suggest the strategy’s worked, at least to this point. Still, as Roberts’ deciding vote to uphold the constitutionality of the tax/penalty piece of Obamacare illuminates, the court’s power to decide legislative disputes is now firmly entrenched in the American system. This may not have been the founder’s intent, but the court now has the last word on controversial matters that many continue to argue should be settled in and by the legislature.
Right now, with the court stacked five to four against for the foreseeable future, the Left is up in arms. Seeking a fix, several candidates running for the Democratic presidential nomination have embraced the idea of expanding the size of the Supreme Court, formerly an obscure idea emanating from the academy. “Plain and simple, the Democrats are seeking to get through legislation what they couldn’t achieve at the ballot box,” says Brad Blakeman, a former Bush White House staffer. “They are seeking to add judges, not fill vacancies, which is totally subverting the system.”
This is why the confirmation of new justices has been, since Reagan-appointee Robert Bork was defeated, so confrontational. Everything happens with outcomes in mind. Blakeman’s point is well taken. If the court really did need to be expanded, it could be done now. Massachusetts Sen. Elizabeth Warren, who wants to follow Trump in the White House, could drop a bill doing that next week. But what she and others intend is pure politics: Win the election first, then pack the court with liberals, end critical debates once and for all, and leave the Left in power forever.
It’s a powerful temptation. Franklin Roosevelt famously proposed the addition of new associate justices to the court to assist its older members who, surprise, surprise, would probably also be voting to uphold the constitutionality of New Deal measures the court had been striking down.
That, says David Norcross, a former Republican National Committee general counsel and former head of the Republican National Lawyers’ Association, was a bad idea then and would be now.
“Presidents have suffered from this since Chief Justice Marshall declared the independence of the courts. Fortunately, Congress, including some Democrats, thought the better of FDR’s court-packing scheme and acknowledged the Constitution and the founders’ reasoning,” Norcross says.
To thousands of other legal and presidential scholars all over America, the point of the court is its independence – and always has been. Packing the court would upend that.
“Democrats keep criticizing the president for trampling all over political “norms” and call him a dictator. But here we see them so upset at losing the last election they want to trample all over the “norms” and completely change the rules of the game to favor themselves, says political strategist Mike Shields.
The irony is the cure is worse than alleged disease. Just as Democrats have continued to protest, to “resist” the outcome of the 2016 election even though Trump was, famously, the only candidate ever asked about it in televised debates. It is those who oppose him who have come with the idea of loading up the court with compliant liberal justice in order to produce desired outcomes in a way that demeans if not erodes the constitutional system.
“Once Congress decides to add justices the race to chaos commences. Add two new justices, then if not satisfied with the outcomes, add two more. It will get easier to do so each time until the Court resembles a third, albeit smaller, legislative body which has become entirely political,” says Norcross. “An independent Court is an indispensable ingredient of the system of checks and balances. A Supreme Court concerned that a politically unpopular decision or decisions will result in adding new justices isn’t independent anymore.”