Disappointingly, yet utterly unsurprisingly, Brett Kavanaugh is now a Supreme Court Justice. Liberals, moderates, and anyone in favor of actually vetting nominees are furious. So, many Liberals are asking, where do we go from here? For some on Twitter or in opinion columns, the solution to this problem is add seats to the Supreme Court as soon as there is a Democratic majority in Congress. However, this is more than just a poorly thought out idea, it is potentially dangerous to democracy.
After fluctuating during the early years of the union, the makeup of the court stabilized in the 1860s at nine members. This number remained steady until 1937, when FDR threatened to pack the court with up to six new justices who supported the New Deal. This proposal was met with massive backlash, with some calling FDR a dictator, and for good reason. Why? Packing the courts is something that autocrats do. This practice has been common in authoritarian countries including Venezuela, Honduras, Hungary and Turkey, not in stable democracies. Packing is an undeniable first step towards the consolidation of power.
Packing the court also erodes confidence in the institution and its decisions. In the U.S., the judicial system lacks enforcement powers, and if the public has no confidence that the court’s decisions are legitimate, their rulings will not be followed. Right-leaning states could ignore rulings they did not like, and the court would lose all of its power. Judiciary validity rests on a fine line of public and institutional trust, and if it is pushed too far, it will topple.
However some would argue that Republicans have already severely undermined trust in our court system. Mitch McConnell arguably packed the Supreme Court when he held open Merrick Garland’s seat and when he refused to hold hearings for dozens of other appellate court nominees. Wouldn’t court packing be a justified form of resistance to brazen Republican accumulation of power? Well… yes. But, as a wise woman once said, “When they go low, we go high.” Yes, in the short term adding two liberal justices to counterbalance Brett Kavanaugh and Neil Gorsuch appears to be a good move, but it ignores potentially disastrous future consequences.
The precedent set by such an action is quite dangerous: any party controlling the White House and Senate would be able to stack the courts however they please. What happens the next time Republicans gain control of the government and decide that the Supreme Court would be better served with 21 justices instead of 11? Then President Kanye West can appoint every Kardashian to the court. Okay, while it’s not super likely that we’ll wind up with a Court of Kim, Khloe, and Kourtney, the first part seems right up the alley of Mitch McConnell. Thus an endless cycle of retaliation would begin, the court constantly growing in number, until democracy crumbles under the weight of an unruly, powerless Supreme Court, assuming it lasts that long in the first place.
So, if packing the court isn’t an option and Democrats should be taking the high road on this issue, then what can we do? Just because we shouldn’t take the most drastic step does not mean that we should accept the status quo. There are plenty of changes we could make to balance the court without toppling the country. Setting judicial term limits would dramatically reduce the stakes and overwhelming importance of a single nomination. However, adopting such a system would require a constitutional amendment, which seems incredibly unlikely in the current political climate. It’s easy then to see packing the court as the solution, since it would only require a majority in Congress, which would be much easier to attain. However, the easy solution is often not the best one.
Instead, there’s another, much easier, much more democratic solution. You may have heard this a few times from friendly faces on Locust Walk, or hopefully some of your friends, or a even certain former Vice President, but I’ll say it another time: VOTE. The only way to stop Republicans from filling the courts with conservative justices (there’s still plenty of circuit and appellate court seats to be filled) or to implement judicial term limits (or even pack the court if you’re not convinced yet) is by voting Republicans out of office. We can talk about what we’d hypothetically do all we want, but we can’t take any action without being in power, and that requires Democrats to turn out on November 6th.
The modern Republican party has slowly but surely chipped away at political norms that kept our government running (semi) smoothly. Joining them in this practice will only erode away our democracy further. Democrats now need to fight not only for advancement of progressive ideals, but for the salvation of democratic rule in the United States. So do America a favor: VOTE.
This post reflects the opinions of the author and is not necessarily representative of those of Penn Democrats.