Democrats Need to Drop the Idea of Packing the Supreme Court

Since the day President Trump took office, the Democratic Party has tried to market itself as a counterweight to the authoritarian impulses behind the president’s most extreme proposals, rhetoric, and behavior. Many of the party’s successful 2018 midterm campaigns were characterized by a return-to-normalcy motif fashioned out of the ashes of the political firestorms that defined the first two years of Trump’s presidency. Elect us, and we’ll bring balance to the force. Trust us, and we’ll vanquish this existential threat to American democracy

But some on the left have not gotten that memo, as evidenced by arguments like the one raised last Monday in a Washington Post opinion piece authored by Paul Waldman. In the piece, Waldman addresses the theoretical scenario that Republicans lose the White House and Senate in November, another Supreme Court seat opens up shortly thereafter, and Senate Republicans manage to fill that seat with another right-wing justice before the Democrats take back control in January. It is, of course, extraordinarily unlikely that this scenario will ever materialize. Nevertheless, Waldman insists that Democrats should continue to publicly float the idea of packing the Supreme Court with left-wing justices to try and discourage the GOP from even entertaining the idea of appointing a new justice to the court in the final year of Trump’s first—and perhaps only—term in office. 

The argument that Democrats should pack the court in response to the theoretical, lame-duck appointment of a conservative justice is, on its own, not that radical of an argument, especially since that particular set of circumstances will almost certainly never come to fruition. But this isn’t the first time Waldman has pushed the idea of packing the court, and he’s not the only notable left-wing voice who has called for its consideration. Multiple progressive organizations, including the Sunrise Movement, the Progressive Change Institute, and Friends of the Earth have come out in support of packing the court. Former Democratic presidential primary candidate and billionaire businessman Tom Steyer has endorsed the idea as well, as has Representative Alexandria Ocasio-Cortez

The fact that the argument in favor of packing the court has continued to grow in popularity within some left-wing circles signifies a troubling trend within the Democratic party itself. Some progressives have unfortunately become open to arguments that favor the consolidation of power at the expense of the checks and balances designed to safeguard the nation against unscrupulous political actors. The primary theme that cuts across these arguments is that the institutions, regulations, and traditions standing in the way of the progressive agenda must either be circumvented or rendered impotent. To that end, more and more progressives are gravitating towards the ideas that Democrats should pack the Supreme Court with justices loyal to the left, abolish the Electoral College altogether, strip religious institutions of their tax-exempt status for opposing gay marriage, and criminalize hateful speech.

That these sorts of arguments are being made is not all that surprising. The left is by no means immune to the authoritarian impulses that drive much of President Trump’s own behavior. What is surprising, though, is that so many on the left continue to float these ideas in front of an electorate that has already soured on Trump’s authoritarian populism. It is as if they are all but certain of a Democratic victory in 2020 and are preemptively trying to warm voters up to the idea that the most effective antidote to Trump’s divisive brand of right-wing authoritarianism is a heavy dose of progressive authoritarianism.

But it is far from certain that Biden will defeat Trump in this year’s election. Yes, he has a major advantage over Trump in the polls. And sure, with the pandemic still raging and the economy shrinking, it’s hard to imagine a scenario in which Trump somehow comes storming back to pull off a second major upset against an experienced Democratic contender. But the journey from now to November is a long one, and Democrats should have learned in 2016 to never take victory for granted no matter what the polls might say. They should instead be focused on building a coalition that can tip the scales in their favor, a coalition that includes disaffected moderates and centrists whose support could be the deciding factor in battleground territories like Ohio and Florida. Trying to sell those voters on a future in which Trump’s authoritarian vision is replaced by a more progressive authoritarian vision is not the way to do that. 

Furthermore, even if Biden wins in November, it will be only a matter of time before Republicans get their next turn at the plate. Democrats pressing their party to take radical action should keep in mind that when—not if, but when—Republicans move from the on-deck circle back into the batter’s box, they will doubtlessly be eager to stretch the boundaries of acceptable politicking even further than their predecessors, just as they did when they cited former Democratic Majority Leader Harry Reid’s invocation of the “nuclear option” as justification for appointing Neil Gorsuch to the Supreme Court with just 54 votes in the Senate

In the game of politics, any shortcut you create towards your goals is bound to be exploited by your opponents at some point in the future. If Democrats try to follow through on the court-packing scheme that Waldman and others keep bringing up, Republicans will find a way to capitalize on it later. Either that, or the Supreme Court will lose all credibility, which could inspire conservative governors to refuse to comply with the court’s rulings and provoke a political crisis the likes of which has not been seen in generations. That is perhaps why Joe Biden himself has explicitly rejected the idea of court-packing.

The Democratic Party needs a coherent, anti-authoritarian message to rally around, a message that makes it clear to “Never Trumpers” and swing voters that a vote for a 2020 Democratic ticket is not a vote for a power-hungry stack of progressive leaders looking to advance their agenda by taking a sledgehammer to the institutional constraints that stand in their way. Joe Biden has already figured that out. The question is, is the rest of his party prepared to follow his lead? Only time will tell.

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