Opinion | No, the Democrats Won’t Pack the Court

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Opinion | No, the Democrats Won’t Pack the Court

For the Democrats, packing in court would be suicide. It would end the Supreme Court as we know it and almost certainly bring a swift and determined end to the majorities in Democratic Congress. There’s a reason Republicans don’t take the threat seriously in their calculations – it’s doubtful that Democrats would seriously try to go that route, and if they do, every expectation is that they will fail.

No matter how outraged a party is, the rules of political gravity still apply. A president is at the height of his power to begin with and is steadily losing juice until an almost inevitable medium-term reprimand diminishes his influence significantly.

Would Biden be so determined to grab the court that he would spend valuable capital on it early in his presidency? If so, the laws on voting, green energy, and health care would take a back seat and, depending on the severity of the backlash, might not take place at all.

If instead all these laws came first, the trial would be sidelined if Biden had less political power than it did at the beginning. This would make packing in court, a daunting task under the best of circumstances, even more difficult.

The question of timing would arise in a different way. Let’s say there’s a bloody trial over the trial that the Democrats win sometime in their second year of a Biden presidency. How much time and political capital would they then have to occupy? Enough to fill them all up before halftime? If not, they certainly would not be filled if the Republicans retook the Senate, a scenario that is easy to imagine.

And of course, when the Republicans got the presidency and Congress back, they would add their own seats or subtract the Democratic ones, rendering the whole exercise null and void except for the permanent degradation of the court’s reputation.

It is also true that, as a rule, major changes in our system occur when a party makes a sustained public argument for them before an election. Very few elected Democrats are even willing to campaign for the court to be wrapped up to make it a key issue in the election campaign. Biden recently expressly refused to support this.

If an idea is too toxic to talk about, this is a good indication that it is a non-starter. While proponents of what they euphemistically refer to as “judicial reform” rightly point out that the number of judges is not set in stone, it will take a lot of work to convince people that the abolition of the Justice Act of 1869 will take a lot of work A post office is equivalent to renaming.

It would be uncomfortable for Biden at all levels to make the trial the main initiative of his presidency. It would confirm criticism of him as weak and prone to being pushed around by the left. It would blow up his apparently sincere hope of bringing some normalcy back to Washington. Introducing himself as an institutionalist would inexorably make destroying the Supreme Court’s legitimacy part of his legacy.

As for counterintuitive presidential movements, it wouldn’t be Nixon going to China. Nixon becomes a member of the Red Guard.

The argument that Republicans have already “grabbed the court” is a play on words in the service of false equivalency. Yes, Republicans have used hardball tactics to hold open positions on the pitch or are now trying to fill them. But these seats opened in the natural course of events. They were not conjured up out of nowhere in a fit of pique or vengeance.

Basically, the Republicans were simply using the power entrusted to them through control of the Senate. The fact that they have held the Senate since 2014 is now another count against the system, as the Senate disproportionately represents small rural states. Some progressives are calling on the Democrats to create more seats in the Democratic Senate by adding new states, a proposal in the same vein as a trial that would likely be just as radioactive.

It is one thing, like Republicans, to benefit from a system of government that each party has long accepted and competed under, with partisan control of the presidency and Congress reliably changing hands. It’s a different matter to make radical partisan-based changes to explicitly increase your partisan power.

It’s easy to knock on the table as an outsider and demand these types of changes when you have no power and don’t face the consequences. It is a different matter in the face of fierce opposition and nervous public officials in outskirts or states looking for a way out to act on them.

No matter how many progressives want Democrats elected to write a ransom note, they won’t capture the Supreme Court next year, let alone kill the hostage.

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