I wrote this tweet because I thought I would become apoplectic when I saw that some Democrats were referring to expanding the Supreme Court as “court packing” or tacitly accepting the use of the phrase when asked about it by reporters. Any Democrat who uses this phrase should be, metaphorically at least, hit over the head with a stick.
The simple fact is that “court packing” is a pejorative phrase. It is nonsensical to use it as a description of something you’re considering supporting or actively supporting. If you decide to support a certain politician you don’t refer to deciding to ‘carry their water.’ Someone who supports expanding the estate tax doesn’t call it the ‘death tax’. This is obvious. Doing so is an act of comical political negligence. But of course the error is far more than semantic. No one should be using this phrase because it is false and turns the entire reality of the situation on its head.
The conservative movement has worked consistently and concertedly for roughly five decades to pack the federal judiciary with conservative ideologues. This is almost wholly novel in all of American history. Conservatives argue that they began this effort simply to undo the liberal dominance of the federal judiciary. But to the limited extent this was true in mid-20th century America, it was the product of a far more organic process. There was never a liberal equivalent of the Long March of planning, recruiting, funding and singular focus on taking over the third branch of government.
But the story takes a new turn in the first decade of the 21st century. Republicans have become increasingly pessimistic about their ability to win majority elections and have looked to the Court’s to lock in present political power for the future.
In this sense, Republican court packing is of a piece with the anti-majoritarian turn of the party as a whole – the increasing focus on voter suppression, aggressive and baroque legislative redistricting, the valorization of the electoral college and the unequal apportionment of the federal senate. These gambits may outrage you. But their most telling message is that they come from a party with little confidence in its ability to win majority elections. Indeed, almost the entirety of Republican politics today is based on the assumption that winning majority elections is hard and will only get harder. Extraordinary measures to limit voting or the impact of voting is one countermeasure and the other is taking hold of the federal judiciary to lock in political power now as a hedge against this unwelcome future.
The message has been received. Over the last decade federal courts increasingly entertained facially absurd arguments to overturn Democratic legislation (Obamacare) or pursue the electoral restrictions essential to Republican rule (Census, redistricting, apportionment). Republican appointed judges on the federal judiciary have – unsurprisingly – become increasingly open not only in deciding cases to advance conservative ideology but to advance the electoral interests of the Republican party.
This is the backdrop to the extreme and increasingly corrupt methods Republicans have used to stack the federal judiciary in the last decade. The refusal to even consider the nomination of Merrick Garland gets the most attention. But this was simply the most blatant example. Republicans kept numerous judicial vacancies open under Barack Obama to make possible the spasm of court-packing which has been the central preoccupation of the GOP under Donald Trump.
The formula was and is simple: use every ounce of raw political power to stack the federal judiciary with conservative ideologues. Refuse to consider nominations; then rush them through. No nominations within a year of an election; but quickie confirmations within a month of an election. Republicans have taken the constitutional framework and abused it to the maximum extent possible to achieve this transcendent goal. While these are almost universally abuses, none are clearly illegal or unconstitutional. At the most generous they amount to using every tool that is not expressly illegal to maximize control of the federal judiciary.
The untimely death of Ruth Bader Ginsburg in the final weeks of an election Republicans seem likely to lose has cast the whole drama in clarifying light. Republicans are now on the cusp of securing a 6-3 conservative High Court majority which will act as an effective veto on Democratic legislation using arguments no less facially absurd than the list used to attack Obamacare.
This is all the work of decades. But it is particularly the work of the last decade, 2010 to 2020. And it is all guaranteed, locked in, final on the assumption that Democrats will not even consider much milder and expressly constitutional remedies to repair the damage wrought by Republican judicial corruption. Indeed, conservatives are now reacting with something like apoplexy at the idea all this work, wrecking half the government in the process, could be voided with a simple majority vote to expand the federal judiciary and the Supreme Court. The Republican program is raw power for me, norms and prudence for you. Few things show how much Washington DC remains wired for Republican power than the idea that anyone can with a straight face call the possibility of Democrats taking some remedial action “court packing.”
People can call things anything they want. Partisans will use phrases to advance their partisan interests. It is comically inept to use the phrasing your opponents adopt in the hopes of knee-capping you. “Court packing” on its face means an illegitimate action. It means acting to secure favorable judicial decisions by political means. But this is not what’s happening. The point of expanding the Court – in addition to being a good idea in general – is simply to get the Court out of the business of overruling majority legislation for corrupt partisan purposes, a power they have acquired through a perversion and abuse of the constitutional process.
We have gotten to this point by Republicans using every political power that is not expressly illegal to maximize their drive to dominate the courts to retain power while losing elections. That illegitimate gain can only continue if Democrats refuse to use legitimate and expressly constitutional means to undo the damage. Not doing so is not only political folly it is a danger to the constitutional order inasmuch as it encourages more Republican abuses.