For the first time since 1937, the issue of packing the Supreme Court has entered mainstream political discourse. It was a bad idea then, and it would be an even worse idea now. In fact, court-packing is such a terrible idea that it could lead to the end of the republic as we know it.
Several prominent Democrats have said they are or would be open to adding more justices to the U.S. Supreme Court should their party win the White House and both houses of Congress in the upcoming election. If this scenario comes to pass, the American experiment could go by the wayside with the single stroke of a president’s pen.
Packing the Supreme Court with justices amenable to the Democrats’ governing philosophy would transform the court into a legislative rubber-stamp. This is ominous because the nation’s highest court would no longer act as a check against the executive and legislative branches. In effect, it could simply become an extension of these branches by sanctioning any and all laws passed by Congress, regardless of their fidelity to the Constitution.
A Supreme Court packed with activist judges who are amenable to the Democrats’ interpretation of a living Constitution, also known as loose constructionism, would be a watershed moment.
As Sen. Burton Wheeler, a Democrat who opposed then-President Franklin D. Roosevelt’s 1937 court-packing plan, said, “Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guarantees of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.”
Burton’s words on the perils of court-packing are as true today as they were 83 years ago.
More recently, Lawrence Tribe, a Harvard Law School professor and outspoken liberal, described the dangers of court-packing, “Obviously partisan Court-expansion to negate the votes of justices whose views a party detests and whose legitimacy the party doubts could trigger a tit-for-tat spiral that would endanger the Supreme Court’s vital role in stabilizing the national political and legal system.”
Tribe is right. This is not how constitutional republics operate. It is how banana republics function. Throughout history, despotic regimes have utilized court-packing as a scheme to reinforce their political power.
One of the most recent and egregious examples occurred in Venezuela, where President Hugo Chavez packed his nation’s highest court in 2004. Ever since, Venezuela’s once-independent judiciary has become a tool of the regime to “legitimize” its blatantly unconstitutional decrees.
In 1937, the Democratic Party held the White House and super majorities in both houses of Congress. But congressional Democrats adamantly opposed FDR’s court-packing plan because they realized it was a political Pandora’s Box.
Throughout American history, the make-up of the Supreme Court has been like a pendulum, swaying from liberal to conservative. Packing the Supreme Court, on behalf of either party, would undo this balance in one fell swoop.
Constitutional republics are fragile; they are not guaranteed to thrive in perpetuity. Packing the Supreme Court would deal a blow to one of America’s most hallowed institutions, and the long-term consequences are foreboding for the preservation of the world’s longest-running constitutional republic.
Chris Talgo (ctalgo@heartland.org) is an editor at The Heartland Institute.