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SCOTUS Hocus Pocus

by Caleb Baumgardner | June 24, 2021 at 10:50 p.m.

You may think I’m dreadfully cynical for what I’m about to say, and in this case you’d be right.

When I hear politicians and those who parrot them (both those who are paid to do so and those who happily do it for free) talk about the rulings of the rulings of the courts, I have grown accustomed to hearing certain words and phrases used. These words and phrases have nothing to do with legal analysis or jurisprudence. They are mere politispeak, sometimes uttered with great and solemn admiration and other times with sound and fury.

I will define two of them for you below:

A “judge who faithfully interprets the law” and does so “without a political agenda” is a jurist who has rendered a decision with which the speaker agrees.

An “activist judge” or a judge who “legislates from the bench” is a judge who has rendered a decision with which the speaker disagrees.

It really is just that simple. I have often discovered that people who use such terms have not read the judicial opinion which they are lauding or decrying, but that doesn’t stop them from having very big feelings about it.

Lately I’ve heard more and more people think we need to add a few seats to the Supreme Court of the United States so that it can accommodate more “judges who faithfully interpret the law.” This is more colloquially known as court packing. It has been discussed by progressives of late because of the three Supreme Court justices appointed by former President Trump over the course of his term. The Court needs more liberal justices, they maintain, to balance things out.

It is an absolutely terrible idea. Let me tell you why.

The Supreme Court of the United States was formed in 1790. Since 1869, the Court has had nine justices. But between 1790 and 1869 that number changed six times. That probably surprises a lot of you, but it’s true. So, nine justices is not a hard and fast number, hallowed and unchanged since the dawn of the Republic. There is nothing particularly special about it.

I don’t think that the Court should stick with nine justices because nine is some kind of magic number. I think that because I don’t want the Supreme Court to become a political football, nor do I want it to become subject to the whim of politicians or even voters.

Think about it. Let us suppose that we add four new seats to the SCOTUS, all of them filled by reliable liberals, so that the progressives have a slight edge and things are balanced out in the way they want them balanced out. Okay then. Enter our next Republican president, whenever he or she may take office, and a Republican controlled Congress. What was good for the goose will be good for the gander, and with the policy precedent in place, three new justices are added to the Court, all of them faithful devotees of the Federalist Society. Now the Court has gone from nine to sixteen justices.

And who knows? Maybe more will be added the next time the Democrats are in power. Or maybe they’ll eliminate the seats added by Republicans, who will add them back next time they can.

The number of seats on the SCOTUS will just change every few years subject to the political whims of the politicians who happen to be on top at the moment. Where would it end?

Or maybe things will go a different way. Perhaps once the four new progressives justices are appointed, Republicans in Congress will vote to make SCOTUS justices elected officials voted upon every four years the same way we vote for president. People complain about how SCOTUS justices have power without being unelected. But what if they were? Would that put a check on judicial tyranny?

Well, “judicial tyranny” is another one of those polispeak phrases that has nothing to do with legal analysis or jurisprudence, and it’s a particularly stupid one at that. The Dixiecrats of yesteryear believed that Brown v. Board of Education, the SCOTUS decision that racially integrated America’s schools, was judicial tyranny. Should they have not had to live with it simply because they didn’t want to?

And what if the justices on the Warren Court, who handed down the decision, had been subject to election? That decision was controversial enough in its time that they all could have been replaced by voters with different justices who would have reinstated segregation.

Just because a lot of people want to do something really awful doesn’t mean they should be legally allowed to do it, and stopping that from happening is part of the reason we have the judiciary. And that judiciary should absolutely not be subject to constant political manipulation.

If we open up the door to court packing, that’s what we’ll have. I am sure we’ll wish we hadn’t, even those of us who, at least right now, think it’s a good idea.

Caleb Baumgardner is a local attorney. He can be reached at [email protected]

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