Osita Nwanevu/October 19, 2020
It is an almost entirely foregone conclusion that Amy Coney Barrett will be seated on the Supreme Court, cementing a 6–3 conservative majority that will serve as an obstacle to Joe Biden’s policy agenda should he and the Democratic Party win full control of government in November. As everyone by now knows, that’s a majority Biden and Democrats could conceivably do something about. Progressives have been pushing court-packing for years at this point—it’s one of the major items of a structural reform agenda that also includes eliminating the Senate filibuster and adding new states. In recent days, a number of more moderate voices have joined in, backing court-packing as a strategy for rebalancing the judiciary specifically justified by Barrett’s nomination.
The most prominent members of this camp include Quinta Jurecic and Susan Hennessey of Lawfare, who wrote a piece for The Atlantic arguing that court-packing—an idea they had initially dismissed as “institutionally corrosive and politically unserious”—could force Republicans into making stabilizing concessions, provided Democrats add just two justices capable of winning bipartisan support, preserving a 6–5 conservative majority. “This would change the political environment from a situation in which one party routinely plays hardball and the other party gets rolled, to a situation in which both parties have an incentive to cooperate in order to avoid the disaster of an ever-expanding Supreme Court flipping back and forth between parties as power changes hands,” they wrote. “It also corrects the imbalance of a Court stacked with Republican appointees, returning both parties to something closer to an even playing field.”
Joe Biden, no procedural radical himself, has notably refused to reject court-packing outright as an option if Barrett is confirmed, despite having opposed the idea during the Democratic primary. All of this has incensed conservatives, few more so than National Review’s Charles C.W. Cooke, who contends that court-packing would amount to an embrace of the authoritarianism Democrats have seen and decried in Donald Trump. “If the coverage of the Trump era has featured a prominent theme, it has been that destructive ideas must be countered before they take hold, regardless of whether they are again presented or likely to be brought to fruition when broached,” he wrote. “Irrespective of the era, there are few more destructive ideas than Court-packing, and none so keenly in need of ubiquitous condemnation.”
If so, indignant conservatives are late to the game. As Arizona political analyst Hank Stephenson recently noted for Politico Magazine, at least 10 states have seen efforts, led mostly by Republicans, to change the size of their courts over the last 10 years. Additionally, the Supreme Court’s size has been altered seven times in our history; partisan politics influenced most of those occasions, including the very last change—when pro-Reconstruction Republicans who tried to shrink the court under Andrew Johnson expanded it to the current nine seats under Republican President Ulysses S. Grant in 1869.
There is, though, something genuinely strange about the notion that Barrett’s nomination has established a novel and unexpected rationale for packing the court. Conservatives and legal scholars have criticized Biden and his surrogates, entirely fairly, for claiming that Barrett’s confirmation process is somehow “unconstitutional”—it plainly isn’t. Jurecic and Hennessey don’t argue so themselves, but they do make the case that Barrett represents a transgression offering more reason for dramatic reform than the structural defects and inequities progressives have long identified within the constitutional system, some of which they list explicitly. “The Court has come to more closely represent the interests of a powerful minority,” they wrote. “Justices are confirmed by a Senate in which rural, predominantly white states are overrepresented; the Electoral College amplifies the same effect in producing presidents who win elections despite losing the popular vote. And Republican-appointed justices have been able to perpetuate conservative control over the Court despite periods of Democratic control of the White House and Senate by timing voluntary retirements to effectively bequeath seats to their political party.”
“But,” they add, “none of this necessarily meant that the number of justices on the Court should be increased—until now.” Why not? What changed? “The constitutional system has always been full of contradictions, after all, and, idiosyncratic as it is, it has been more or less functional as the basis for a common agreement on how things should work,” they explained. “Today, though, a president who resoundingly lost the popular vote has filled two seats on the Supreme Court. He has since been impeached. If Barrett is confirmed and Trump goes on to lose the election—or if Trump loses the election and Barrett is confirmed after the vote but before he leaves office—the Senate will push that common agreement, already strained, beyond its breaking point.”
Of course, the idea that there had heretofore been a common agreement about “the way things should work” is belied by both Barrett’s nomination and the consternation over it. The dead norms that critics of Republicans are outraged about have atrophied over time because the stakes of holding the court have gotten higher, and the stakes of holding the court have gotten higher because the ideological divide between the two parties on just about all things, constitutional matters included, has gotten deeper. If Republicans felt they shared basic premises with Democrats about how our system should work, they probably wouldn’t have spent the past several decades constructing an infrastructure within the legal profession aimed at totally dominating the judiciary.
Moreover, even if one assumes all that’s happened within the last three or four years—or, if you prefer, the last three or four weeks—violates some previously shared understanding about our system, what actually justified that understanding? As Jurecic and Hennessey note, it has always been the case that a candidate can win the presidency without winning the popular vote; nothing in the Constitution has ever proscribed a president who has—or a president who has been impeached and duly acquitted—from appointing justices. Having won a clear Electoral College victory, Trump has taken the opportunities he has been given to nominate three. Senate Republicans have been approving them through the process the Constitution set out. They acted strategically to hold one of those seats open. You will not find in the Constitution a prohibition against doing so, or, for that matter, any suggestion that the court should be evenly balanced between the appointees of two political camps or parties that didn’t exist at the Founding and that aren’t intrinsic features of our political order.
It is an almost entirely foregone conclusion that Amy Coney Barrett will be seated on the Supreme Court, cementing a 6–3 conservative majority that will serve as an obstacle to Joe Biden’s policy agenda should he and the Democratic Party win full control of government in November. As everyone by now knows, that’s a majority Biden and Democrats could conceivably do something about. Progressives have been pushing court-packing for years at this point—it’s one of the major items of a structural reform agenda that also includes eliminating the Senate filibuster and adding new states. In recent days, a number of more moderate voices have joined in, backing court-packing as a strategy for rebalancing the judiciary specifically justified by Barrett’s nomination.
The most prominent members of this camp include Quinta Jurecic and Susan Hennessey of Lawfare, who wrote a piece for The Atlantic arguing that court-packing—an idea they had initially dismissed as “institutionally corrosive and politically unserious”—could force Republicans into making stabilizing concessions, provided Democrats add just two justices capable of winning bipartisan support, preserving a 6–5 conservative majority. “This would change the political environment from a situation in which one party routinely plays hardball and the other party gets rolled, to a situation in which both parties have an incentive to cooperate in order to avoid the disaster of an ever-expanding Supreme Court flipping back and forth between parties as power changes hands,” they wrote. “It also corrects the imbalance of a Court stacked with Republican appointees, returning both parties to something closer to an even playing field.”
Joe Biden, no procedural radical himself, has notably refused to reject court-packing outright as an option if Barrett is confirmed, despite having opposed the idea during the Democratic primary. All of this has incensed conservatives, few more so than National Review’s Charles C.W. Cooke, who contends that court-packing would amount to an embrace of the authoritarianism Democrats have seen and decried in Donald Trump. “If the coverage of the Trump era has featured a prominent theme, it has been that destructive ideas must be countered before they take hold, regardless of whether they are again presented or likely to be brought to fruition when broached,” he wrote. “Irrespective of the era, there are few more destructive ideas than Court-packing, and none so keenly in need of ubiquitous condemnation.”
If so, indignant conservatives are late to the game. As Arizona political analyst Hank Stephenson recently noted for Politico Magazine, at least 10 states have seen efforts, led mostly by Republicans, to change the size of their courts over the last 10 years. Additionally, the Supreme Court’s size has been altered seven times in our history; partisan politics influenced most of those occasions, including the very last change—when pro-Reconstruction Republicans who tried to shrink the court under Andrew Johnson expanded it to the current nine seats under Republican President Ulysses S. Grant in 1869.
There is, though, something genuinely strange about the notion that Barrett’s nomination has established a novel and unexpected rationale for packing the court. Conservatives and legal scholars have criticized Biden and his surrogates, entirely fairly, for claiming that Barrett’s confirmation process is somehow “unconstitutional”—it plainly isn’t. Jurecic and Hennessey don’t argue so themselves, but they do make the case that Barrett represents a transgression offering more reason for dramatic reform than the structural defects and inequities progressives have long identified within the constitutional system, some of which they list explicitly. “The Court has come to more closely represent the interests of a powerful minority,” they wrote. “Justices are confirmed by a Senate in which rural, predominantly white states are overrepresented; the Electoral College amplifies the same effect in producing presidents who win elections despite losing the popular vote. And Republican-appointed justices have been able to perpetuate conservative control over the Court despite periods of Democratic control of the White House and Senate by timing voluntary retirements to effectively bequeath seats to their political party.”
“But,” they add, “none of this necessarily meant that the number of justices on the Court should be increased—until now.” Why not? What changed? “The constitutional system has always been full of contradictions, after all, and, idiosyncratic as it is, it has been more or less functional as the basis for a common agreement on how things should work,” they explained. “Today, though, a president who resoundingly lost the popular vote has filled two seats on the Supreme Court. He has since been impeached. If Barrett is confirmed and Trump goes on to lose the election—or if Trump loses the election and Barrett is confirmed after the vote but before he leaves office—the Senate will push that common agreement, already strained, beyond its breaking point.”
Of course, the idea that there had heretofore been a common agreement about “the way things should work” is belied by both Barrett’s nomination and the consternation over it. The dead norms that critics of Republicans are outraged about have atrophied over time because the stakes of holding the court have gotten higher, and the stakes of holding the court have gotten higher because the ideological divide between the two parties on just about all things, constitutional matters included, has gotten deeper. If Republicans felt they shared basic premises with Democrats about how our system should work, they probably wouldn’t have spent the past several decades constructing an infrastructure within the legal profession aimed at totally dominating the judiciary.
Moreover, even if one assumes all that’s happened within the last three or four years—or, if you prefer, the last three or four weeks—violates some previously shared understanding about our system, what actually justified that understanding? As Jurecic and Hennessey note, it has always been the case that a candidate can win the presidency without winning the popular vote; nothing in the Constitution has ever proscribed a president who has—or a president who has been impeached and duly acquitted—from appointing justices. Having won a clear Electoral College victory, Trump has taken the opportunities he has been given to nominate three. Senate Republicans have been approving them through the process the Constitution set out. They acted strategically to hold one of those seats open. You will not find in the Constitution a prohibition against doing so, or, for that matter, any suggestion that the court should be evenly balanced between the appointees of two political camps or parties that didn’t exist at the Founding and that aren’t intrinsic features of our political order.
It is of course true that Republicans have been working to stamp out inconvenient portions of the Constitution elsewhere. Their efforts to prevent minorities from voting have expanded to encompass as much of the Democratic electorate as they can manage under the coronavirus pandemic. But in the dramas that have occupied the Senate over the last half-decade, Republicans have managed to topple norms evidently built out of sand while, clearly, playing by the only rules that actually matter—the rules undergirding political institutions that structurally advantage them. Republicans haven’t flouted the constitutional order. They’ve made use of it. Things haven’t gone wrong because a system that was humming along fine until recently has been damaged in some fundamental way. The system is humming along essentially as it always has with increasingly dire results. The crisis is not that the American constitutional system is broken but that the American constitutional system is working—perhaps not as the Framers intended but, as a legal and administrative matter, mostly as it was designed to.
(con't)
The Constitution Is the Crisis
There’s no reason why a rigged Supreme Court should have the final say on the law of our land.
It is an almost entirely foregone conclusion that Amy Coney Barrett will be seated on the Supreme Court, cementing a 6–3 conservative majority that will serve as an obstacle to Joe Biden’s policy agenda should he and the Democratic Party win full control of government in November. As everyone by now knows, that’s a majority Biden and Democrats could conceivably do something about. Progressives have been pushing court-packing for years at this point—it’s one of the major items of a structural reform agenda that also includes eliminating the Senate filibuster and adding new states. In recent days, a number of more moderate voices have joined in, backing court-packing as a strategy for rebalancing the judiciary specifically justified by Barrett’s nomination.
The most prominent members of this camp include Quinta Jurecic and Susan Hennessey of Lawfare, who wrote a piece for The Atlantic arguing that court-packing—an idea they had initially dismissed as “institutionally corrosive and politically unserious”—could force Republicans into making stabilizing concessions, provided Democrats add just two justices capable of winning bipartisan support, preserving a 6–5 conservative majority. “This would change the political environment from a situation in which one party routinely plays hardball and the other party gets rolled, to a situation in which both parties have an incentive to cooperate in order to avoid the disaster of an ever-expanding Supreme Court flipping back and forth between parties as power changes hands,” they wrote. “It also corrects the imbalance of a Court stacked with Republican appointees, returning both parties to something closer to an even playing field.”
Joe Biden, no procedural radical himself, has notably refused to reject court-packing outright as an option if Barrett is confirmed, despite having opposed the idea during the Democratic primary. All of this has incensed conservatives, few more so than National Review’s Charles C.W. Cooke, who contends that court-packing would amount to an embrace of the authoritarianism Democrats have seen and decried in Donald Trump. “If the coverage of the Trump era has featured a prominent theme, it has been that destructive ideas must be countered before they take hold, regardless of whether they are again presented or likely to be brought to fruition when broached,” he wrote. “Irrespective of the era, there are few more destructive ideas than Court-packing, and none so keenly in need of ubiquitous condemnation.”
If so, indignant conservatives are late to the game. As Arizona political analyst Hank Stephenson recently noted for Politico Magazine, at least 10 states have seen efforts, led mostly by Republicans, to change the size of their courts over the last 10 years. Additionally, the Supreme Court’s size has been altered seven times in our history; partisan politics influenced most of those occasions, including the very last change—when pro-Reconstruction Republicans who tried to shrink the court under Andrew Johnson expanded it to the current nine seats under Republican President Ulysses S. Grant in 1869.
There is, though, something genuinely strange about the notion that Barrett’s nomination has established a novel and unexpected rationale for packing the court. Conservatives and legal scholars have criticized Biden and his surrogates, entirely fairly, for claiming that Barrett’s confirmation process is somehow “unconstitutional”—it plainly isn’t. Jurecic and Hennessey don’t argue so themselves, but they do make the case that Barrett represents a transgression offering more reason for dramatic reform than the structural defects and inequities progressives have long identified within the constitutional system, some of which they list explicitly. “The Court has come to more closely represent the interests of a powerful minority,” they wrote. “Justices are confirmed by a Senate in which rural, predominantly white states are overrepresented; the Electoral College amplifies the same effect in producing presidents who win elections despite losing the popular vote. And Republican-appointed justices have been able to perpetuate conservative control over the Court despite periods of Democratic control of the White House and Senate by timing voluntary retirements to effectively bequeath seats to their political party.”
“But,” they add, “none of this necessarily meant that the number of justices on the Court should be increased—until now.” Why not? What changed? “The constitutional system has always been full of contradictions, after all, and, idiosyncratic as it is, it has been more or less functional as the basis for a common agreement on how things should work,” they explained. “Today, though, a president who resoundingly lost the popular vote has filled two seats on the Supreme Court. He has since been impeached. If Barrett is confirmed and Trump goes on to lose the election—or if Trump loses the election and Barrett is confirmed after the vote but before he leaves office—the Senate will push that common agreement, already strained, beyond its breaking point.”
Of course, the idea that there had heretofore been a common agreement about “the way things should work” is belied by both Barrett’s nomination and the consternation over it. The dead norms that critics of Republicans are outraged about have atrophied over time because the stakes of holding the court have gotten higher, and the stakes of holding the court have gotten higher because the ideological divide between the two parties on just about all things, constitutional matters included, has gotten deeper. If Republicans felt they shared basic premises with Democrats about how our system should work, they probably wouldn’t have spent the past several decades constructing an infrastructure within the legal profession aimed at totally dominating the judiciary.
Moreover, even if one assumes all that’s happened within the last three or four years—or, if you prefer, the last three or four weeks—violates some previously shared understanding about our system, what actually justified that understanding? As Jurecic and Hennessey note, it has always been the case that a candidate can win the presidency without winning the popular vote; nothing in the Constitution has ever proscribed a president who has—or a president who has been impeached and duly acquitted—from appointing justices. Having won a clear Electoral College victory, Trump has taken the opportunities he has been given to nominate three. Senate Republicans have been approving them through the process the Constitution set out. They acted strategically to hold one of those seats open. You will not find in the Constitution a prohibition against doing so, or, for that matter, any suggestion that the court should be evenly balanced between the appointees of two political camps or parties that didn’t exist at the Founding and that aren’t intrinsic features of our political order.
It is an almost entirely foregone conclusion that Amy Coney Barrett will be seated on the Supreme Court, cementing a 6–3 conservative majority that will serve as an obstacle to Joe Biden’s policy agenda should he and the Democratic Party win full control of government in November. As everyone by now knows, that’s a majority Biden and Democrats could conceivably do something about. Progressives have been pushing court-packing for years at this point—it’s one of the major items of a structural reform agenda that also includes eliminating the Senate filibuster and adding new states. In recent days, a number of more moderate voices have joined in, backing court-packing as a strategy for rebalancing the judiciary specifically justified by Barrett’s nomination.
The most prominent members of this camp include Quinta Jurecic and Susan Hennessey of Lawfare, who wrote a piece for The Atlantic arguing that court-packing—an idea they had initially dismissed as “institutionally corrosive and politically unserious”—could force Republicans into making stabilizing concessions, provided Democrats add just two justices capable of winning bipartisan support, preserving a 6–5 conservative majority. “This would change the political environment from a situation in which one party routinely plays hardball and the other party gets rolled, to a situation in which both parties have an incentive to cooperate in order to avoid the disaster of an ever-expanding Supreme Court flipping back and forth between parties as power changes hands,” they wrote. “It also corrects the imbalance of a Court stacked with Republican appointees, returning both parties to something closer to an even playing field.”
Joe Biden, no procedural radical himself, has notably refused to reject court-packing outright as an option if Barrett is confirmed, despite having opposed the idea during the Democratic primary. All of this has incensed conservatives, few more so than National Review’s Charles C.W. Cooke, who contends that court-packing would amount to an embrace of the authoritarianism Democrats have seen and decried in Donald Trump. “If the coverage of the Trump era has featured a prominent theme, it has been that destructive ideas must be countered before they take hold, regardless of whether they are again presented or likely to be brought to fruition when broached,” he wrote. “Irrespective of the era, there are few more destructive ideas than Court-packing, and none so keenly in need of ubiquitous condemnation.”
If so, indignant conservatives are late to the game. As Arizona political analyst Hank Stephenson recently noted for Politico Magazine, at least 10 states have seen efforts, led mostly by Republicans, to change the size of their courts over the last 10 years. Additionally, the Supreme Court’s size has been altered seven times in our history; partisan politics influenced most of those occasions, including the very last change—when pro-Reconstruction Republicans who tried to shrink the court under Andrew Johnson expanded it to the current nine seats under Republican President Ulysses S. Grant in 1869.
There is, though, something genuinely strange about the notion that Barrett’s nomination has established a novel and unexpected rationale for packing the court. Conservatives and legal scholars have criticized Biden and his surrogates, entirely fairly, for claiming that Barrett’s confirmation process is somehow “unconstitutional”—it plainly isn’t. Jurecic and Hennessey don’t argue so themselves, but they do make the case that Barrett represents a transgression offering more reason for dramatic reform than the structural defects and inequities progressives have long identified within the constitutional system, some of which they list explicitly. “The Court has come to more closely represent the interests of a powerful minority,” they wrote. “Justices are confirmed by a Senate in which rural, predominantly white states are overrepresented; the Electoral College amplifies the same effect in producing presidents who win elections despite losing the popular vote. And Republican-appointed justices have been able to perpetuate conservative control over the Court despite periods of Democratic control of the White House and Senate by timing voluntary retirements to effectively bequeath seats to their political party.”
“But,” they add, “none of this necessarily meant that the number of justices on the Court should be increased—until now.” Why not? What changed? “The constitutional system has always been full of contradictions, after all, and, idiosyncratic as it is, it has been more or less functional as the basis for a common agreement on how things should work,” they explained. “Today, though, a president who resoundingly lost the popular vote has filled two seats on the Supreme Court. He has since been impeached. If Barrett is confirmed and Trump goes on to lose the election—or if Trump loses the election and Barrett is confirmed after the vote but before he leaves office—the Senate will push that common agreement, already strained, beyond its breaking point.”
Of course, the idea that there had heretofore been a common agreement about “the way things should work” is belied by both Barrett’s nomination and the consternation over it. The dead norms that critics of Republicans are outraged about have atrophied over time because the stakes of holding the court have gotten higher, and the stakes of holding the court have gotten higher because the ideological divide between the two parties on just about all things, constitutional matters included, has gotten deeper. If Republicans felt they shared basic premises with Democrats about how our system should work, they probably wouldn’t have spent the past several decades constructing an infrastructure within the legal profession aimed at totally dominating the judiciary.
Moreover, even if one assumes all that’s happened within the last three or four years—or, if you prefer, the last three or four weeks—violates some previously shared understanding about our system, what actually justified that understanding? As Jurecic and Hennessey note, it has always been the case that a candidate can win the presidency without winning the popular vote; nothing in the Constitution has ever proscribed a president who has—or a president who has been impeached and duly acquitted—from appointing justices. Having won a clear Electoral College victory, Trump has taken the opportunities he has been given to nominate three. Senate Republicans have been approving them through the process the Constitution set out. They acted strategically to hold one of those seats open. You will not find in the Constitution a prohibition against doing so, or, for that matter, any suggestion that the court should be evenly balanced between the appointees of two political camps or parties that didn’t exist at the Founding and that aren’t intrinsic features of our political order.
It is of course true that Republicans have been working to stamp out inconvenient portions of the Constitution elsewhere. Their efforts to prevent minorities from voting have expanded to encompass as much of the Democratic electorate as they can manage under the coronavirus pandemic. But in the dramas that have occupied the Senate over the last half-decade, Republicans have managed to topple norms evidently built out of sand while, clearly, playing by the only rules that actually matter—the rules undergirding political institutions that structurally advantage them. Republicans haven’t flouted the constitutional order. They’ve made use of it. Things haven’t gone wrong because a system that was humming along fine until recently has been damaged in some fundamental way. The system is humming along essentially as it always has with increasingly dire results. The crisis is not that the American constitutional system is broken but that the American constitutional system is working—perhaps not as the Framers intended but, as a legal and administrative matter, mostly as it was designed to.
(con't)
