Monday, September 21, 2020

What is court packing?

Since my e-mail "interview" with NPR is showing up in lots of stories, let me say a bit more.

"Court packing" is typically used to refer to FDR's proposal in the 1930s to expand the size of the Supreme Court, which had been holding New Deal legislation unconstitutional.  The idea was that FDR would add justices sympatico to the New Deal, and thus change the political leanings of the Court that would, in turn, influence its constitutional decisions.

FDR's proposed method of court packing was to expand the court, which would change a century-old norm governing the court's composition.  But the essence of court packing is not expanding the size of the court, it is changing the norms governing Supreme Court appointments for partisan ends:  you can do that by expanding the size of the Court, or you can do it, as Senator McConnell did in 2016, by denying a sitting President even a vote on his nominee for a vacancy on the Court, also a massive violation of an established norm.

Senator McConnell could, perhaps, have been trying to start a new norm, but now it's clear (if anyone had doubts) that was not what he was doing:  he wants to pack the court for partisan ends by adjusting the norms for appointments to suit his political preferences, one rule for 2016 when a Democrat is President, another for 2020 when a Republican is President.

To be clear, U.S. Supreme Court Justices have enormous discretion:  they make law, far more than they apply law, as every insider knows (here is a popular explanation of the point and here is a more jurisprudential one).  That's precisely why these appointments matter:  Republicans want justices who will exercise their discretion in a Republican way, and Democrats want the opposite.   Senator McConnell began the current round of court-packing.  If the Democrats prevail in November, they should continue it next year or, as my colleague Ryan Doerfler has proposed, strip the court of its jurisdiction and thus reduce its political power.

There is a further dangerous game the Republicans are playing here.  The Constitution does not confer on the Supreme Court the final authority to say what is and isn't constitutional.  The Court has claimed that authority:  the first time two hundreds years ago, but most successfully since the late 1950s (despite some brief challenges by President Reagan's Attorney General Ed Meese).  Conventional practices can change, however, and this one might.  

Suppose a Biden Administration and a Democratic Congress enact a ban on assault weapons, and a packed Supreme Court strikes it down as violating the Second Amendment right of individuals to “bear arms” as interpreted in its decision in District of Columbia v. Heller (2008).  Put aside that Heller is dubious.  As the late Chief Justice Warren Burger, a Nixon appointee, the idea that the Constitution protected an individual right to gun ownership is simply a “fraud.”  And Judge Richard Posner, then sitting on the U.S. Court of Appeals for the 7th Circuit, described the Heller decision as “questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”  And even Heller did not declare that bans on assault weapons were off the table, so it would all depend on how that precedent is interpreted.

Given overwhelming popular support for a ban on assault weapons in civil society, given the dubious claim that such bans are unconstitutional, and given that the Court rendering such a judgment would have been "packed," does anyone really doubt that both the President and the Democratic majority in Congress would declare the Supreme Court mistaken about the constitutionality of the assault weapons ban, and proceed to its implementation?   In so doing, they would not violate the text of the Constitution, an irony for those (mostly conservatives) who profess fealty to the text.   Forward-looking Republicans might think about this wholly plausible scenario.

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