State AGs Are Right: Court Packing Is Wrong – Real Clear Politics

Mar 12, 2021

In a recent article, state Attorneys General Eric Schmitt, Chris Carr, and Steve Marshall (of Missouri, Georgia, and Alabama) rallied the American public to reject the left’s radical idea to pack the Supreme Court. Court packing, they argued, will destroy the rule of law in America. They are 100% correct. The public must stop such a politically motivated miscarriage of justice.

Court packing means that Congress and the president create additional seats on the Supreme Court with the aim to fill those new seats with justices whom they believe will vote the “right” way. Court packing rests on the cynical view that justices are policymakers who rule according to their politics rather than the law.

Radical progressives seethe that they have not captured the Supreme Court. And so they seek to increase the court’s size from nine to 13. By adding four more justices, they can change the court from a so-called 6-3 conservative majority into a 7-6 liberal majority. That option is what President Biden will soon form a commission to consider.

We should all be alarmed by this sweeping power grab.

As Schmitt, Carr, and Marshall argue, court packing and its consequences will destroy the rule of law in America.

I have written elsewhere that court packing “will subordinate every citizen’s constitutional rights to the fickle mercy of politicians.” The fluctuation in size will lead to unstable legal doctrine. Just as new presidential administrations undo the policies of their predecessors, a new bloc of justices surely will seek to undo existing law. After all, that’s the point of court packing.

In concrete terms, this means that free speech rights will vacillate based on whether woke social justice advocates hold a majority on the court. Religious and educational liberties too. Property rights, civil rights, and victims’ rights all will ebb and flow based on the court’s new majoritarian impulses. We enjoy a written constitution precisely to avoid such mobocracy.

As Schmitt, Carr, and Marshall put it: “We don’t need the Supreme Court to be turned into a political institution, with its justices acting as politicians in robes, deciding cases based on their politics instead of the words of a statute or the Constitution.”

The court’s perceived legitimacy will suffer if Democrats pack it. A recent poll showed that 65% of Americans believe the Supreme Court “has the right amount of power.” The responses were nearly identical among conservatives and liberals. Imagine what those numbers will look like if politicians pack the court. Likewise, the reasonably strong support the court enjoys today (53% overall approval rating) will nosedive after court packing.

So long, judicial independence. So long, legal stability. And so long to the rule of law.

Not only are the long-term effects dangerous to the rule of law, but the claims being made to support court packing are flat out wrong. Those making them should be ashamed. Consider former American Constitution Society president Caroline Fredrickson. She reportedly once justified court packing by asserting: “the Supreme Court is not defined as a ‘nine person body’ in the Constitution, and it has changed size many times.” While Frederickson is correct that the Constitution does not require a court of nine, she is absolutely wrong to say that it has changed size “many times.”

Over the Constitution’s 233-year history, Congress and the president changed the court’s size only seven times. Seven changes over 233 years. That’s a yearly average of 0.03. For context, a 0.03 probability is the same likelihood as getting a perfect SAT score. It’s also roughly the same probability as getting a four-of-a-kind in five-card poker. That hardly happens “many” times. The claim is false.

Moreover, the last time Congress and the president altered the size of the court was 1869. It has remained at nine for over 150 years. A court of nine has become a norm whose violation requires serious justification. Such justification does not now exist.

Others have justified court packing on the grounds that a conservative Supreme Court needs to be reined in. But that claim is a fairy tale. As the Figure below shows, the Supreme Court in recent years has been one of moderation.

Attorneys General Schmitt, Carr, and Marshall are correct when they say, “Democrats are attempting to obscure historical facts for political gain.” The left’s radical and wrongly justified attempts to pack the court will destroy the rule of law.

Ryan Owens is a professor of political science and faculty affiliate in the Law School at the University of Wisconsin-Madison.

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