The Packing of the Supreme Court: A Slippery Slope

The once-fringe idea of packing the Supreme Court has gained mainstream traction, with Kamala Harris’s recent endorsement serving as a stark reminder that even radical proposals can become acceptable to the Democratic establishment. However, as the party’s most recent presidential nominee weighs in on this contentious issue, it is worth considering whether court-packing is a viable solution or simply perpetuates a cycle of partisan retribution.

The Constitution makes it relatively easy for Congress to add seats to the Supreme Court, with precedents aplenty for such actions. However, the consequences would be far-reaching and not necessarily salutary. A diluted legitimacy would likely result from packing the Court, rendering it less effective in undoing some of its most egregious decisions.

Harris’s proposal is one manifestation of a broader trend: Democratic support for court-packing has grown significantly over the past decade, with even relatively moderate politicians like Pete Buttigieg and Graham Platner weighing in on the issue. The Utah Republicans’ decision to pack their state supreme court after it ruled against GOP-friendly congressional maps highlights the perils of this approach.

One benefit of court-packing is its constitutional ease: Congress could simply pass a law adding seats to the Supreme Court, bypassing the need for a constitutional amendment. However, this fact raises concerns about the potential for partisan retribution down the line. If Democrats pack the Court in 2029, Republicans would almost certainly retaliate should they regain control of Congress and the White House.

The Constitution’s Conundrum

The Constitution does not provide clear guidance on the number of justices that should sit on the Supreme Court, leaving room for interpretation and debate. This ambiguity creates challenges for more moderate reforms, such as term limits for justices or an ethics code. Article III provides that Congress has the authority to regulate the Supreme Court, but this provision is subject to judicial interpretation.

Justice Samuel Alito’s recent claims about the unconstitutionality of an ethics code are a case in point. While some argue that the Constitution does provide for such regulations, others contend that five justices could strike down a law regardless of its constitutional merits. This highlights the inherent tension between the legislative and judicial branches when it comes to reforming the Supreme Court.

A Cycle of Retaliation

The prospect of packing the Court raises questions about the long-term implications for the institution’s legitimacy. Would a diluted Court be less effective in addressing some of its most egregious decisions, or would it simply become embroiled in further partisan battles? The potential consequences are far-reaching and multifaceted.

A More Nuanced Approach

Rather than resorting to court-packing, Democrats might consider more moderate reforms that address the underlying issues plaguing the Supreme Court. Term limits for justices, an ethics code, or even a modest expansion of the Court’s jurisdiction could provide a more targeted approach to reform. However, these proposals face significant constitutional hurdles and would require careful consideration.

In conclusion, while packing the Supreme Court may seem like a viable solution to some, it is essential to consider the long-term implications for the institution’s legitimacy. A more nuanced approach that addresses the underlying issues plaguing the Court may be necessary to ensure its effectiveness in upholding the Constitution and protecting individual rights.