Judiciary

The Left's 'Grand' Idea: Expand SCOTUS

Political science professor David Faris surmises that "saving the court's legitimacy requires breaking some norms."

Jordan Candler · Jul. 10, 2018

We knew this week’s Supreme Court nomination would result in renewed calls from leftists to eradicate long-standing norms in order to resist an originalist makeup on the Court. Sure enough, in a Washington Post op-ed, Roosevelt University political science professor David Faris surmises that “saving the court’s legitimacy requires breaking some norms.”

According to Faris, “The GOP’s brazen act of democratic sabotage will almost certainly deliver the high court to the far right for a generation. In the years ahead, the court will probably further erode reproductive rights, gay rights and voting rights, ushering in the darkest era in American history since the post-Reconstruction period.”

Faris observes, “The remaining conservatives on the court are young — Clarence Thomas is the oldest at 70 — and Trump is insistent on naming young justices.” Which means “a two-term Democratic president could serve from 2021 to 2029 without being able to replace a single Republican-appointed justice.” So what might #Resistance entail?

According to Faris, “That grim reality is leading many on the left to contemplate radical ideas, including an idea considered and discarded 80 years ago: court-packing. The idea of court-packing — adding extra justices to the Supreme Court to change its ideological makeup — causes most Americans to blanch. But if done right, it would actually offer a crucial avenue for safeguarding American democracy.”

The Roosevelt University professor goes on to argue:

Court-packing has a dim reputation in American politics, largely because of a flawed understanding about President Franklin Roosevelt’s 1937 effort to pass a law authorizing the president to add a justice to the Supreme Court for every existing justice over the age of 70. …

Roosevelt repeatedly rejected entreaties from his backers to tone down the proposal. After he unveiled it, Vice President John Nance Garner and Democratic congressional leaders offered a compromise plan that would add two or three justices to the court. The president flatly refused. …

Before contemplating such unprecedented action, Democrats should offer Republicans a truce in the decades-long judicial wars: the illegitimate Neil Gorsuch resigns, and both parties support a constitutional amendment eliminating lifetime tenure on the Supreme Court, capping service at 18 years. Routinizing court appointments would eliminate their zero-sum character and ensure all presidents get to influence the future of jurisprudence, rather than relying on the randomness of retirements and deaths. …

[I]f the offer falls flat, Democrats should move to implement exactly the sort of narrow court-packing plan that Roosevelt refused to accept.

The New York Times’ David Leonhardt writes, “Progressives can still win many of these issues. They simply will have to do so in a small-d democratic way, by winning elections.” But that’s the problem — the Left’s radicalism is a major turnoff to voters. Yet Democrats continue to believe that the Supreme Court’s makeup, not the Left’s radicalism, is the problem. It’s not “fairness” leftists are after; it’s control via judicial diktat.

No wonder Thomas Jefferson warned, “The Constitution … is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.” Faris says “saving the court’s legitimacy requires breaking some norms.” On the contrary, expanding the Court with jurists who desire to turn the Constitution into “a mere thing of wax” will further undermine its legitimacy.

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