By Alexander Yalcin, Staff Writer
This article was originally featured in our November 2020 magazine, (p.6) released 30 November 2020, which you can view here.
Ever since the death of Justice Ruth Bader Ginsburg and Amy Barrett’s subsequent nomination, a new, sinister plan to pack the court has surfaced among Democrats able to stomach a “conservative” Supreme Court majority. I put conservative in quotes, for it is a gross misrepresentation of the judicial process to claim a justice votes on his/her policy preferences. Fortunately, the proposed court packing seems unlikely in light of the election. Both Democratic Senate candidates from Georgia would have to win the runoffs, and all Democratic senators would have to vote in favor of an undemocratic power grab. In this work, I hope to demonstrate how undemocratic court packing would be.
In 1986, Justice Antonin Scalia was confirmed by a vote of 98-0. Seven years later, Justice Ruth Bader Ginsburg was confirmed by a vote of 96-3. Both Ginsburg and Scalia are often regarded as having exemplified the epitome of their judicial philosophies, which were very much at odds with each other. These days, such a vote seems out of the question. In 2016, Neil Gorsuch was confirmed by a vote of 54-45, with only three democrats voting across the aisle. Two of these democrats were not re-elected, while the third is Joe Manchin. For context, the senator from West Virginia often votes with the Republican Party, and has unsurprisingly voiced his opposition to the expansion of the supreme court.
So what has changed in the past thirty years, to so severely politicize what was once a mostly bipartisan process? To be clear, the justices themselves play little role in the matter. According to their Martin-Quinn scores, a metric used since 1937 to assess the ideology of supreme court justices, both Kavanaugh and Gorsuch vote more liberally than Scalia ever did. The stakes have hardly changed either. The matter of overturning Roe v. Wade resurfaces every time a conservative justice is nominated. Indeed, 34 years, ago, Senator Ted Kennedy asked Scalia, “Do you expect to overrule the Roe v. Wade Supreme Court decision if you are confirmed?” As with all justices since, Scalia declined to comment on a case which might eventually appear in his courtroom. As part of his reasoning, he said “I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter.”
And this is precisely the crux of the issue. The Supreme Court was never meant to be a political tool, and no supreme court justice with due respect for their profession would adjudicate a case from their personal viewpoint. Jurisprudence differs among justices, and politicians use this to their advantage; however, the role of the Supreme Court is to have the final say on the law—which is already written by Congress. Passing laws is how Congress is meant to change policy; not by further corrupting an institution that already struggles to prove its legitimacy with each passing day.
This isn’t the first time a president or presidential nominee has considered packing the court. With the Judicial Procedures Reform Bill of 1937, President Franklin Delano Roosevelt planned to increase the number of supreme court justices as to receive favorable rulings for parts of his New Deal previously ruled unconstitutional. Although ruled overwhelmingly by democrats, it was the Senate that voted against the legislation, and, according to future Chief Justice William Rehnquist, “stepped in and saved the independence of the judiciary.”
Politics are politics, and indeed there is no constitutional stipulation that there be 9 supreme court justices. Yet precedent matters, and packing the supreme court with up to 4 new justices would be a power play without pretense. Regardless of the immediate outcome, it is impossible to deny that such measures will lead to the delegitimization of an institution, which has played an integral part in upholding the sanctity of our constitution. It is integral to our Republic, that both sides first and foremost uphold the legitimacy of the system.
If we continue down this path, how long until we realize that the constitution too is no more than a few sheets of paper, as flammable as any others?
Alexander Yalcin is a Junior majoring in Political Science. He is from Raleigh, NC.