An Intellectual Exercise: Would ‘Court Packing’ Really be the Worst Thing Ever?
Tags: Mitch Mcconnell, Trump, Politics, Supreme Court

Today, I want to begin my post-IDW phase by trying to think about a controversial issue from a truly above left vs right, a truly fair and pro-liberty perspective. I’m going to try to do what the IDW couldn’t. I thought, where else to start this exercise, but with the current controversy, the very controversy that has tainted the IDW in my view. Of course, as of right now, things have already dramatically changed since a few days ago. Mitch McConnell has now secured the numbers to push through the new Trump nominee, and most people now expect it to be done rather soon. Therefore, discussion has moved on to what might happen next. There’s a lot of talk about whether the Democrats may pack the court with new justices, should they be in a position to do so next year. In response, there’s been dire predictions about the end of respect for the Supreme Court or even American democracy itself from opponents of court packing. Now, let me offer some independent thinking, a possible balanced solution to this mess. Remember that we are doing this right now as an intellectual exercise, no more, no less, and from an impartial perspective as much as possible.

Firstly, we need to identify where the core problem is. Assuming that Trump and McConnell successfully fill the seat, the core problem would be that they achieved a win based on blatant hypocrisy, comprised of two bad-faith moves from McConnell in 2016 and this year, respectively. And this is not just any win: it’s a win for the very long term, given that Supreme Court justices have lifetime appointments, and typically sit on the bench for decades. Plus there’s the fact of moving the balance of the court to 6–3 in favor of the Republicans, after the balance being 5–4 for as long as many people can remember. Given that the Republicans don’t actually represent 66% of the American population, there is a good case that this is an imbalanced outcome. For people to accept an imbalanced outcome, especially those on the losing side of the imbalance, the outcome must have come about via a process that the vast majority of people would consider fair. Of course, there will always be sore losers who won’t accept clearly fair outcomes they don’t like, but what matters is that a clear supermajority of people agree that the process has been fair, even if begrudgingly. Given that this outcome would have been the result of the bad-faith double standard moves from Mitch McConnell, I don’t think there could ever be a supermajority of people accepting this particular outcome as fair. And if you look at the people crying foul right now, I think it’s clear that most of them won’t ever come to accept this particular outcome as fair. Therefore, as long as this outcome still stands, the core problem will still be there. It wouldn’t go away without some form of remedy.

Opponents of court packing have asserted that, to increase the number of justices in any way would set the dangerous precedent to open the way to even more court packing from both sides going down the road. They imagine a slide down a slippery slope, where the Court could end up with 100 justices one day. So, for them, its either 100 or 9, and they clearly prefer 9. Except that the sacred number 9 is no argument that would ever calm down those who feel wronged. There is indeed a strong aspect of human nature where, if a blatant injustice has occured, remedy needs to be sought. If this isn’t provided for in the system, the pressure would just transfer towards other points of lesser resistance, which would likely be the culture wars, given that cultural conflicts are not governed by any laws or norms. Therefore, if Trump and McConnell’s controversial gain is allowed to stand, and no remedy could ever be given because of the need to keep the sacred number 9, then you can expect an escalation of the culture wars across America to a whole new very toxic level, with major flow-on effects to the rest of the Western world.

Let me tell you what I’m sincerely fearing: every hot button issue would become an intense battleground, where the middle ground would become no-man’s land. Cultural politics in the Western world could come to resemble the intense, non-negotiable conflicts in parts of the world where religious and ethnic rivalries rule over the everyday lives of people. Of course, things like free speech, independent thinking, and rational debate, indeed most of the Enlightenment classical liberal values, would likely be buried in the dustbin of history for good. It’s clearly a very dystopic future. Therefore, it is very clear to me that a cycle of court packing is far from the worst thing that could result from the current crisis.

Which would logically mean that, at least from what I see, having some remedy would be much preferable over having no remedy at all.

The next question then becomes, is there a way to implement a satisfactory remedy, which would not create a precedent for future cycles of court packing? And there apparently is. Let’s start with the fact that it is McConnell’s hypocrisy that has led to the current crisis. That hypocrisy is made up of two decisions: firstly, his refusal to let Merrick Garland be confirmed in 2016, and secondly, his decision to allow Trump’s nominee to be confirmed this year. The crisis could be fixed by remedying either one of these two actions. Assuming that we are talking about a scenario where the seat of RBG has already been filled, there is no way to remedy McConnell’s second action, because Supreme Court appointments are for life. However, there is a way to remedy his first action, so that it would be as if it had never happened: that is, to expand the Court by the minimum amount so that Merrick Garland can be immediately processed for possible confirmation to the court. Given that it is unwise to have an even number of justices, the new number of justices would have to be 11. A Biden administration would appoint Garland, and one more moderate judge, to the benches. The Republicans would still have a 6–5 majority, which would be functionally equivalent to the 5–4 majority they would have had if McConnell had not been a hypocrite. This would also set no precedent for future court packing, firstly because there would be a need for a similarly strong justification for any further expansion, and secondly because the prior status quo is effectively restored and the Republican majority is left intact, which gives the Republicans no justification at all to seek retaliation.

Of course, this is all an intellectual exercise only, and the way reality proceeds can depend on many other things. But then, if more people were willing to engage in intellectual exercises like these, I think our world would be a better world, because there would be more independent and critical thinking, and less identitarian-based fighting. In turn, there would be more fair and effective solutions that would bring people together rather than tear society apart.