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The Court Conundrum: SCOTUS and Institutional Breakdown

After a quite chaotic last few months, I am back to contribute once more to this fine project. I trust you have all kept safe and well (mentally as well in these trying times). The issue I want to look at this time is the Supreme Court of The United States (SCOTUS). Specifically, I want to look at suggestions from certain Democratic lawmakers and commentators that additional Justices be added to the Court.

The Argument, Part One: A Court Hijacked

In an opinion piece for the Washington Post, commentator EJ Dionne begins to make the case for Court expansion. The insightful opening of the piece is worth quoting in full

Liberals are…, by nature, institutionalists.

They are wary of upsetting long-standing arrangements for fear of mimicking the destructive behavior of the other side and, in the process, legitimizing it.

But the aggressiveness of the right has turned this procedural delicacy into a rationalization for surrender.

This commentary is interesting because it exposes, intentionally or otherwise, Democrats’ (they are not liberals) obsession with procedure, decorum and civility. Democrats are, as he states, institutionalists. They are wary of rocking the boat and upsetting the delicate balance holding the system together. Quite a conservative outlook really, but I digress.

Republicans, by contrast, have no such quibbles, as Dionne outlines

Without fear or shame, McConnell (1) blocked consideration of then-President Barack Obama’s nominee, Merrick Garland, to replace Antonin Scalia for 10 months until Donald Trump took the oath of office in 2017 and could name Neil M. Gorsuch; and (2) McConnell rushed through Trump’s final appointee, Amy Coney Barrett, holding a confirmation vote just eight days before Election Day 2020 – even as millions had already cast their ballots

The United States Senate’s role in the appointment of Judicial nominees is to provide ‘advice and consent’. Former Senate Majority Leader Mitch McConnell (R-KY) utterly abused the process by blocking Mr Obama’s nominee to replace that wild-eyed partisan Scalia, saying that the election should happen before any other judges were confirmed. Hypocritically, Mr McConnell ‘rammed through’ Trump’s nominee, Justice Barrett, eight days before an election. The double standard is amazing. McConnell effectively stole two seats on the highest Court in the land.

What do We Make of This? Part One: They Did it First!

It is difficult to see past a charge of ‘but they did it first’ in the justification for this Court-packing suggestion from Dionne, Senator Elizabeth Warren and others. The difference is that McConnell did, in fact, do it first. His considered decision to place power over institutions was (or perhaps is) the cause of the current situation. But does that legitimise the Democrats doing the same thing? Dionne mentioned this too: does ‘packing the Court’ in emulation of McConnell legitimise his behaviour? He disagrees, but I am not so sure; particularly in light of what we said above about adding precisely the number of Justices to the Court necessary to flip the majority.

What do We Make of This? Part Two: Knife to a Gun Fight

The other side of the coin here is that Democrats’ ongoing insistence on what is essentially insutitonalism, with its focus on norms (good Sir), decorum and all that is the political equivalent of bringing a knife to a gun fight. The Republicans simply do not care about all that crap you prattle on about. They care about power, and will do what is necessary to gain and perpetuate it, institutions be damned.

This brings to mind for me an aspect of the politics of the Late Roman Republic: so much of their politics was grounded in custom (mores) and expected patterns of behaviour. A form of institutionalism if you will. The arrival on the scene of a young man named Julius Caesar who said ‘the Republic is but a word; a concept without substance’ was the true death knell of the Republic. Caesar saw through the crusty old elitists who insisted on tradition for its own sake. The analogy is not perfect, but the Republicans have seen that power can be gained and maintained if you utterly ignore institutions that have only expectation and custom backing them.


I hope I have presented a somewhat balanced view of the issue of ‘Court-packing’ here. The issue is complex, and there are arguments for and against. To not respond in some way to a crude power grab such as McConnell’s makes you look weak. But then there is the idea of responding in kind and legitimising such behaviour. The conservatives appear to have their opponents over a barrel here: do nothing and look weak, do something (which is actually more counter-institutional) and become the monster you oppose. As a side note, the concept of ‘they did it first’ is how wars start, so let us not go there.

Perhaps the compromise (the Democrats’ favourite word) between doing nothing and instituting a power grab is to add two Justices. This avoids the accusation of a crude power grab (that is actually worse than the Republicans since the Democrats will have given themselves four seats). Unfortunately, a charge of hypocrisy (which would be forthcoming if McConnel raised hell) when you do something more extreme kinda makes you look like an idiot. The Democrats are caught in a bind here, and I do not envy them their decision.


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  1. New England Cocky

    The same strategy was used in the German elections of 1933 when the National Socialists became the dominant political power, naturally supported by the heavy industrialists who would benefit from subsequent political policies.

    Perhaps the ”best thing” about this strategy is that it occurs without warfare, but really it leaves everything to be desired because it is an abuse of democratic principles. An elite of persons gets political power then maintains themselves in that power by whatever means are necessary. The best interests of the nation or anybody else for that matter are irrelevant.

    Consider neo-liberalism or trickle down economics where asset stripping public infrastructure for the benefit of corporate supporting the elite and a national tax policy that reduces taxation of the rich thus pushing the cost of peaceful trade onto the wage slaves caught up in the economic system occurs.

  2. Kerri

    Mc Connell is an evil and unprincipled man.
    How on earth anyone ever votes for him I will never understand.

  3. Phil Pryor

    The fascist type of mind, miniscule but swollen with self inflating ego, is nasty, dark, selfish, greedy and, in Mc Connell’s case, full of frothing faecal fulminations. Such a Dirty Dud should not be in public life. FDR had schemed to get up fifteen justices to outflank the set conservatism of the Supreme Court he inherited. Too many USAns, many dullards and deviates, worship the founding fathers and the sayings, the constitution, the old speeches. Not one joke, recipe or advice and interpretation of that old gone generation is likely fitting or useful anymore. People who would not listen to sense from parents, elders, preachers, police, professors, seem to think that some miraculous universality still applies. Those old schemers were highly deficient, empty mostly. So is USA culture and society cursed.

  4. wam

    I cannot see the complexity of the American system they elect almost every position in the legal system making non-mainstream decisions risky. Obama was thwarted of some 105 chances to appoint after 2014 when the republicans won control of the senate and Obama’s % success went from 90% to 28%. It is men like trump, O’Connell the rabbott and Scummo who twist left, right, socialism and communism into vote attracting fear. He is able to lie, cheat and bully, like most chrisrians, because his goal is good for all, whether the society knows it or not.

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