How to Create a Legitimacy Crisis

“If you want to build a democracy that works for everyone, you must have an honest judiciary. If you want an honest judiciary, you #PackTheCourts

— @PackSCOTUS Twitter account

Two weeks ago, David A. Kaplan warned that the judicial branch had become far too powerful. I agreed.

We’ve felt the effects in the form of bitter partisanship over judicial nominations. When Mitch McConnell gambled on denying Merrick Garland a hearing until after the 2016 election, Democrats saw it as their responsibility to respond in kind by turning Kavanaugh’s nomination into a circus. Since that failed to stop his nomination, some have escalated their rhetoric even further — going as far as reviving FDR’s failed court packing scheme.

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Ilya Somin says this is a terrible idea. The Professor of Law at George Mason University School of Law and blogger at The Volokh Conspiracy (now hosted at Reason.com) has written several articles explaining why.

Dangers of Growing Support for Court-Packing

The same logic that ultimately put the idea to rest back in 1937 holds today. Somin quotes a Democratic senator who put it concisely back then:

“Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.” — Sen. Burton Wheeler (D)

But the political heat of the moment has apparently made some Democrats forget that the power to turn 9 into 13, 19 or more, could backfire in the hands of the “wrong” president. And without judicial independence, “right” and “wrong” are all a matter of perspective.

Even liberal scholars and politicians, he notes, have opposed the idea — from Noah Feldman and Lawrence Tribe of Harvard Law School, to Senator Corey Booker of New Jersey. They say that court packing is not a proportional response to the failure to give Garland a hearing, and note that it would only worsen the legitimacy crisis that the court’s detractors claim as the reason for packing it.

Somin’s take on the legitimacy crisis is more subtle. He thinks it’s overblown, but with so many mainstream Democratic candidates talking about court packing, it’s not as unthinkable as it once was.

The primary race has barely just begun, but this already seems to be an area in which Democrats have started a race to the bottom.

Ilya returned to the show to talk about the the history of court packing, and why it’s just as bad an idea today as it was 80 years ago.