When evaluating a policy proposal, we must ask ourselves the following questions: What are the goals? What are the trade-offs? What are the incentives this policy creates?
The goal of expanding the number of justices on the Supreme Court would be to alter the composition of the court such that it would become friendly to the agenda of the party doing the court packing. The trade-offs would involve destroying the public image and legitimacy of the Court in exchange for a politicized body with an agenda. Furthermore, an expansion of the number of SCOTUS justices by one party would simply incentivize reciprocal action by the other party when they regain power.
A basic cost-benefit analysis shows that the costs of court packing far exceed the benefits. The main area of benefit would be derived from decisions favorable to the agenda of the party doing the court packing. However, given that the opposing party could nullify any of these changes by adding more justices when they regain power, no “victories” would be won in the long run. In terms of costs, court packing would severely weaken the strength of public confidence in American institutions, while accelerating political polarization, which has already reached a boiling point.
Actions by Harry Reid and Mitch McConnell have certainly raised the temperature of partisan power wielding in the Senate, specifically when it comes to judicial nominations. There is plenty of blame to go around as to who has played the biggest role in creating the state of affairs we have today.However, none of this matters. What matters is what we do next.
We should move past short-sighted proposals like expanding the size of the Supreme Court. A New York Times-Siena poll in October found that only 31 percent of Americans supported expanding the Supreme Court. Instead of fixating on gaming the system with a policy not supported by nearly 70% of Americans, we should prioritize restoring legitimacy, responsibility, and functionality of our country’s law making process. This can only be accomplished if Congress retakes the many powers it has lost and delegated over time. Furthermore, this would be a more effective means of bringing balance to the law making process than filling the Supreme Court with unelected partisans.
Madison’s initial design of the Constitution did not have three co-equal branches. Rather, the legislature was designed as the supreme branch. He wrote in Federalist No. 51 that “in republican government, the legislative authority necessarily predominates”. Today, the distribution of power between the three branches is far from what it was intended to be. Over time, Congress has delegated powers to bureaucrats in the executive branch whilst relying on the Supreme Court to act as a supra-legislature, neglecting its power to actually make laws.
This dereliction of responsibility has created a broken legislative process where members of Congress spend more time generating YouTube clips than they do deliberating and legislating. Unsurprisingly, rather than providing a solution to this problem, court packing would simply exacerbate and accelerate the partisan arms race to wield raw power at the expense of the other side. This solves nothing.
The correct response to our current state of affairs is not to ask how the system can be gamed to promote a given set of preferred policies. Instead, members of Congress should determine and execute the necessary steps to reclaim their neglected powers. To start, sunset all powers delegated to unelected bureaucrats, cut the cameras, and establish term limits. These changes would go a long way, and begin to restore the Senate’s status as the world’s greatest deliberative body.
The preference for policies being crafted by a group of unelected partisans rather than the elected representatives of the states and the people is fueled by a zero-sum frame of mind. Wanting to win simply at the expense of the other side is not democratic; it is punitive, partisan, and motivated by a hunger for revenge.
As Madision wrote in Federalist No. 10, “so strong is this propensity of mankind to fall into mutual animosities” that “the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts”. We have allowed tribal instincts to dominate reason to the point where outlandish proposals like court packing have entered mainstream discourse. We must all reject this mindset, along with the conclusions it produces, if we value the principles integral to a free republic.