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
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.
Conclusion
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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