Why Court-Packing Wouldn’t Work
By Ian Millhiser has an interesting piece for Slate, putting the potential for a Supreme Court ruling gutting the ACA in the context of the constitutional struggle that led to FDR’s (legal but not normative) proposal to pack the Court.
Despite the title, it should be emphasized that Ian concludes that the failure of FDR’s proposal “was for the best.” Leaving aside the normative question of judicial independence — which, when dealing with an high appellate court that issues constitutional rulings but is not limited to constitutional rulings, is a complicated one — I agree, and I think it’s worth addressing another reason. Court-packing would not have been an effective long-term response to the Four Horsemen + the sporadic winger version of Owen Roberts. This is true for the same reason that the idea briefly beloved of Romney- and/or Paul-curious lefties that a Republican president is no big deal because a 40+ Democrats in Congress could just serially reject all of a Republican president’s judicial and executive branch nominees was really dumb. Once court-packing was established as an acceptable norm, Republicans certainly wouldn’t abjure using it. So perhaps Congress would have added some Supreme Court seats in 2009 and gotten Obama nominees confirmed, only it probably wouldn’t have helped much because they would have been dealing with a Court where the justice at the 25% quartile of conservatism had to turn to his metaphorical left to see Sam Alito. The more ideologically homogenous Republican Party conference in the Senate would be better advantaged in the long-run to take advantage of court-packing, so on balance Republicans would almost certainly get a disproportionate share of nominees confirmed and this nominees would be more ideologically consistent and radical. And, in addition, the disequilibria produced by constitutional hardball generally favors conservative interests over liberal ones in the long run.
The real point of bringing up court-packing is to remind the public that the Supreme Court is a fundamentally political institution. If this exercise in making law out of nothing at all being taken seriously by the Supreme Court doesn’t convince you, nothing will.