Counterplan backfires and kills court legitimacy

The most famous example of attempted court-packing is, of course, FDR’s maneuver in 1937. The president was fresh from a massive reelection—the famous “as goes Maine, so goes Vermont” year, when Roosevelt won all but those states—but he was unhappy about a series of rulings against his New Deal programs. He proposed adding a new justice for every sitting justice older than 70½, up to a maximum bench of 15. The plan met heavy bipartisan resistance in Congress and faced public opposition by the justices, including ur-progressive Louis Brandeis and FDR’s own vice president, John Nance Garner. The move led to huge Democratic losses in the 1938 midterm elections, with Republicans gaining 81 seats in the House and eight in the Senate.

Until recently, no real attempts at court-packing had been made since the 1930s, though calls to “Impeach Earl Warren” were heard in the Jim Crow South. As with most such proposals in our history, the partisan appeal is both evident and heavy-handed. But if Democrats think they’d be “rebalancing” an “out of whack” Court, then they deserve the political losses that such ends-justify-the-means radicalism would inevitably cause. And if they think that packing the Court would restore “norms”—accepting their premise that either Senate Republicans or the Court itself broke those norms—then they really don’t understand the nature of governance.

Just as two wrongs don’t make a right, you can’t depoliticize institutions by further politicizing them. As Bernie Sanders (of all people) put it two years ago, if the Democrats go through with their plan—which would also require ending the legislative filibuster in the Senate—“The next guy comes in, maybe a Republican, somebody comes in, you have two more. [Eventually], you have 87 members of the Supreme Court. And I think that delegitimizes the Court.”