Christopher Scalia has an excellent piece at USA Today debunking the specious grounds of the Democratic attempt to expand the Supreme Court to 13 justices. The grounds are so implausible as to raise another question: Why bother with the pretense? That is not a rhetorical question, at least not entirely. Expanding or contracting the Court is one of the legitimate tools at Congress’ disposal for constraining judicial behavior of which it disapproves. For a variety of reasons, I would oppose expanding the Court. But I would endorse being open about the reasons for proposing it. The Court’s power is swollen in no small part because the other branches have unilaterally disarmed against it. Even the threat of court-packing, if honestly expressed, could be a constraining force. More important, totally disallowing any check on the Court is an aggrandizing force.
The problem with the Democratic argument for expanding the Court now is its opportunism. The Democrats proposing court-packing have no problem with a bloated judiciary, only with a bloated judiciary that does things they oppose. (Many Republicans are similarly situational in their application of constitutional principle.) There is a principled argument for Congress flexing institutional muscle against the judiciary. But the principle should be articulated. It should also be consistently applied. The fact that Democrats do not like former President Trump’s appointments to the Supreme Court, and coincidentally want to expand its size by one more justice than he named, is not an adequately principled argument.
One thought on “Christopher Scalia on Court-Packing”
I think I agree largely on court packing. And the plan floated to raise the number of justices to 13 certainly has problems. Yet it also seems troublesome to ignore the fact that Republicans declined to move on Obama’s appointment of Garland, but then rushed forward on Barrett’s. That is a crucial part of the story. I don’t know that Democrats are in much of a position to do anything about it. But if Democrats are being situational, Republicans are being doubly so.