The case against court packing

 
By Susan Estrich
Posted4/20/2021 1:00 AM

This week, liberal Democrats, led by Jerry Nadler, chairman of the House Judiciary Committee, and Sen. Ed Markey of Massachusetts unveiled their proposal to increase the size of the Supreme Court by four justices. House Speaker Nancy Pelosi rejected it out of hand. "I have no plans to bring it to the floor," Pelosi said of the legislation, adding that she supported the president's executive order creating a 36-member commission co-chaired by his campaign's chief lawyer, Bob Bauer.

"I don't know that that's a good idea or a bad idea," she said. "I think it's an idea that should be considered."

 

There is a reason that Nancy Pelosi has been one of the most effective speakers of the House. The commission will report within 180 days of its first public meeting. Good luck on that.

In 2016, then-President Obama nominated Merrick Garland to fill the vacancy on the court. The Senate, controlled by Republicans, refused to hold a hearing on Garland, claiming that lame-duck presidents should not be nominating justices. Consistency being the hobgoblin of small minds, the Republicans had no trouble turning on a dime when the lame-duck Donald Trump rushed to fill the vacancy left by Ruth Bader Ginsburg's death with Amy Comey Barrett, who was supposed to be the fifth vote that could have ensured his second term. Barrett was confirmed without a single Democratic vote.

But a funny thing happened to Donald Trump on his way to reelection. His Supreme Court didn't help him one bit.

In December 2000, the Supreme Court was divided 5-4 on whether to stop the manual vote recounts, which were mandated by Florida law. It probably didn't hurt that George W. Bush's brother was the governor of Florida, but the irony, lost on no one after the fact, was the conclusion that a recount of the entire state would have handed Al Gore victory, while a recount limited to the two most Democratic counties -- which is what the Gore campaign wanted -- would have given the victory to Bush.

Of course, if you were to ask my mother -- may she rest in peace -- she might tell you, regretfully, that it was all my fault. Around noontime, she called and told me that I should call Al Gore right away because quite a few of the women in her condo building had a great deal of difficulty with their ballots, with some of them saying they might have voted for Pat Buchanan by mistake. "Call right away," my mother told me. I didn't. What were the chances that my mother and her friends would decide a presidential election?

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She lived in Palm Beach County.

Former Justice John Paul Stevens, who died in 2019 at the age of 99, told me at a clerks' reunion held on his 90th birthday that no decision of the court had undermined its credibility as much as Bush v. Gore. The court should not be picking presidents. Donald Trump got that wrong, too.

In a speech to Harvard Law students last week, Justice Stephen Breyer (for whom I was special assistant when he was chief counsel of the Senate Judiciary Committee, and for whom I have great respect and affection) sounded the same note. Referring to Democratic efforts to increase the size of the court, he argued that these proposals risk eroding public trust in the court, cautioning advocates to think "long and hard" before moving forward.

During the 2020 presidential campaign, liberals repeatedly pressed then-candidate Joe Biden to endorse a plan to increase the size of the court. Biden resisted. Instead, he said he would appoint a commission to consider the issue. Say good night, Gracie.

I am as troubled as anyone by the reality that Chief Justice John Roberts no longer has a court he can control by joining the four liberals, as today, there are only three liberals (Justices Breyer, Sonia Sotomayor and Elana Kagan), and Breyer is 82 years old and facing pressure from liberals to resign before the next election. It is a terrible situation: This Supreme Court is one you avoid if you are a civil rights lawyer.

The only thing worse could be an effort to pack the court with Democrats, turning it into an even more politicized institution and further politicizing the rule of law. Steve is right: When respect for the rule of law is at stake, proponents should think "long and hard" before increasing the size of the court.

© 2021, Creators

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