Amping Up the Polarization – Big Court, Small Court

 

1937 Headline as FDR Attempted

     to Stack the Supreme Court

“The U.S. Department Of Justice on Monday [9/21] labeled New York City, Portland, and Seattle as ‘anarchist jurisdictions’ permitting violence and destruction of property.
The DOJ says the three cities have permitted violence and destruction of property to persist and have refused to undertake reasonable measures to counteract criminal activities.” ABC News (NYC), September 21^st. That “antifa” obsession again. Three cities with Democratic mayors in blue states.

The White House has certainly deployed federal forces to provoke greater violence, and when the feds have been used in these venues, they were most certainly not welcomed. But even the FBI has officially stated that “antifa” is a philosophy and not an organized group, noting that domestic terrorism far outstrips foreign operatives as a threat to our nation.

This name-calling and labeling are nothing more than affirmation that there are two Americas, one “red,” mostly rural and heavily white America – where Trump enjoys solid support – and “blue,” mostly urban, where Trump finds strong opposition, even in red states. President Trump, by his own admission, does not represent any constituency that opposes him. Worse, he embraces notions of racial superiority, as recently and blatantly confirmed in his September 19^th rally in Minnesota, where he actually said: “You have good genes, you know that, right?” Trump said during his Saturday rally in front of a nearly all-white crowd in Bemidji. “You have good genes. A lot of it is about the genes, isn’t it, don’t you believe? The racehorse theory. You think we’re so different? You have good genes in Minnesota.”

As noted in my recent Rules Don’t Apply to Me! blog, the Republican Party which blocked a Democratic nomination for a Supreme Court vacancy in 2016 nine months before the election on the grounds that such election year nominations should not be processed until after the election, is hell-bent on nominating and confirming a Supreme Court replacement before an election that takes place in a month and a half. Someone young enough to last decades in an appointment for life position. Should that occur, you can pretty much bet the gloves are off, thrown away, and there will be an “anything goes” bare knuckle Democratic response. Another impeachment effort? Mega-gridlock in Congress?

Or if the election goes in favor of the Democrats, despite GOP efforts to suppress any ballot effort that could even slightly favor the Democrats and is very likely looking to refuse to accept any result except Trump’s reelection? Having one more right-wing Supreme Court justice might just make that Court the arbiter of a right-wing victory, even if the votes are heavily skewed against the President. But let’s assume that, notwithstanding this blatant effort to rig the election, Democrats are so furious at what is happening that they pour out in droves and ultimately take the Presidency and both houses of Congress. And assume that that right-wing judicial appointment has taken place. What then?

First, note that there is no constitutional requirement as to the number of justices for the Supreme Court. “The U.S. Supreme Court hasn’t always had nine justices—it started with six, went briefly down to five, back to six, then seven, then nine, and, during the Civil War, ten. Now, if Trump confirms a replacement for Ruth Bader Ginsburg and Democrats later regain the presidency and Senate, Democrats are threatening to change the number again.” Adele Peters, writing for FastCompany.com, September 22^nd. But adding justices by Congressional mandate is fraught with risk and longer-term issues. Peters explores history and discusses some alternatives with major legal scholars:

“The current size of the Supreme Court has been in place since 1869. During the Great Depression, after the court repeatedly struck down New Deal legislation, Franklin D. Roosevelt proposed ‘packing the court’ with more justices. ‘There’s a subsurface argument that’s going to surface soon that, in fact, since the failure of the court-packing plan in 1937, a kind of constitutional convention has been created that you can’t change the size of the court merely for political reasons,’ [Harvard Law Professor Emeritus Mark] Tushnet says. Still, he says that the standard legal opinion now is that the president and Congress can choose to change the number of justices at any time they want.

“There’s no reason that nine is a magic number. ‘If you look around the world at constitutional courts, the number varies between 7 and 15,’ he says. ‘And courts with sizes larger than 9 manage to work as well as our court does. So as an issue of simply managing the institution, going from 9 to 11 or 13 probably shouldn’t be a difficulty.’

“But making the change has an obvious risk. Democrats may be able to do it next year to try to rebalance the court ideologically, as a way to help correct for the fact that Mitch McConnell blocked Barack Obama’s attempt to appoint Merrick Garland. If that happens, Republicans could later do the same thing when they regain power, and the court could swell over time… Samuel Moyn, who teaches jurisprudence at Yale Law School and history at Yale University, argues that it’s not a true solution.

“‘The first question is, what’s the goal?’ he says. ‘Court-packing, in most of its versions, is an attempt either to put the court back the way it was, before Neil Gorsuch came, or it’s more radical, like what they’re doing in Poland, taking over the court and making it like an arm of the Democratic Party. My view is that both of those are bad goals, and that what we should really want is to make the court less significant in American politics, so we don’t have to have these cycles of converting national politics into a debate about which judges are going to make policy. Maybe judges shouldn’t be making as much policy.’

“Other proposals involve adding term limits, so that each president automatically gets to make an equal number of appointments, instead of leaving that up to chance (though the Constitution says judges must serve for life, they could possibly be transferred to other courts). Moyn says this is the same kind of reform as court-packing, solving a short-term problem instead of a fundamental one: ‘They’re aimed at getting the people right. Not the institution’s power.’

“Rather than packing the court, Democrats could consider reforms such as requiring a new supermajority when the court rules that a law is unconstitutional. Six or seven justices would have to agree, instead of five, giving the court less power to invalidate laws—a power that the Constitution never explicitly gave it. ‘If we don’t like what the legislature does, we have to oppose it through getting our representatives in the legislature, not fighting over what judges have this extraordinary power to rewrite the law,’ Moyn says.”

Precipitating a Constitutional crisis with a nation as polarized as it was immediately before the Civil War, amplified by the economic and health decimation from an out-of-control pandemic, cannot be good for us. Perhaps, it will fracture the United States into smaller republics (or autocracies), which just might precipitate another Civil War. Perhaps. What will life be like after this election anyway, no matter who is elected President?

            I’m Peter Dekom, and we seem to have reached a place in history where major American political parties are so willing to take uncompromising stands that are so diametrically opposite so as to threaten the very existence of the nation state itself.