Legal Law

Unpacking by Packing the Court? The Left has a New Orwellian Mantra – JONATHAN TURLEY

As Democrats ramp up their efforts for the 2024 election, some are dangling an old enticement from 2020: if we win, we can pack the Court. In the last election, President Joe Biden refused to say if he favored packing the Court. Now the chatter has again started in the same quarters that a Democrat retaking the White House would allow the packing of the Court with an immediate liberal majority to force through sweeping court mandates.

Liberals are again stating that the Supreme Court is not fundamentally “broken” because a majority of justices do not share their views on legal questions. In the name of fighting ideological bias, they demand packing the Court with reliable ideological allies from the left.

This convoluted logic was on display in the Washington Monthly in an article on “how to fix the Supreme Court.” It is a must read for anyone interested in following the new rationalizations for destroying the independence of the highest court.

Author Rob Wolfe explains with alarm how a majority of justices now do not share his or Democratic views on various issues. Even though this Republican majority has repeatedly voted against conservative positions and often ruled unanimously, it is not enough for Wolfe. They have to be packed.

Wolfe rattles off extreme proposals matter-of-factly as all viable options:

Anyone concerned about the Supreme Court today should be working to prise that window open further. And to do so, they ought to draw on the robust and inventive debate that is brewing among scholars in law schools, think tanks, and advocacy organizations over how to fix the Court. Some of their ideas are bold structural changes: dividing the Court into rotating panels, stripping it of jurisdiction over certain issues, or controlling its certification process. Others are practical and based on policies already proven to work elsewhere, such as creating a “Congressional Review Act” for Supreme Court decisions, as already exists for executive branch regulations. What these ideas share is a recognition that the rights-giving 20th-century Court that liberals came to respect, even revere, is gone. Today’s progressives now realize that the high court is not an infallible fount of wisdom, and that it is historically more often a conservative force; and with that understanding comes a question that these scholars will help us all to answer: What is the Supreme Court even for?

That last question has been raised by Democratic members like Rep. Alexandria Ocasio-Cortez (D-N.Y.) who has questioned the need for a Supreme Court.

Once again, packing the Court with reliable liberal votes is being proposed to “save democracy”:

President Joe Biden and other Democratic leaders have not embraced this deeper reform debate, perhaps recognizing that the political moment hasn’t yet arrived. When the survival of democracy depends on each coming election, a little short-term thinking is understandable.

But one day that moment will come, and it may come suddenly: a wave election, a string of Senate vacancies, a scandal of new, earth-shattering magnitude, or a series of decisions as harmful as Dobbs. When that happens, reformers need to have a plan ready to go—a plan that will require broad public consensus about what problems need to be solved … and a detailed road map to achieve those goals through nitty-gritty policy…Being ready means spending years on movement building to bring together academics, policy wonks, and regular Americans, all waiting to grasp that perhaps fleeting and unforeseeable opportunity. Either that, or submit to being governed for another 30, 40, or 50 years by unelected partisans in robes.

However, what is most striking about the Washington Monthly article is how Orwellian the logic becomes once you admit that your are packing a court with ideological allies.  The argument is now that packing the Court is unpacking the Court.

The Supreme Court needs to be thought of as a neutral arbiter for political disputes, not just another player in them, the law professors argued—and so fixing it today is a question of restoring that aura of public trust. Right away, that goal disqualified the most talked-about idea at the time: court packing. Supporters of court packing like the political scientist Aaron Belkin argue that the Supreme Court has already been stacked with highly ideological conservatives who gained their seats through norm-breaking political brinksmanship, and so to add, say, six liberal or moderate justices would actually be to unpack it.

The article then adds the voices of the most radical elements of academia who support “resistance” by any means, including targeting and harassing justices.

“I want to suggest that courts are the enemy, and always have been,” Josh Chafetz, a Georgetown Law professor of the “disempowering” school, said on an afternoon panel with Doerfler, Sitaraman, and another Georgetown scholar, Victoria Nourse. In one exchange, Chafetz called for retaliation against the justices as individuals, wondering aloud whether Congress should consider withdrawing funding for law clerks or even “cutting off the Supreme Court’s air conditioning budget.” The quip drew a faint chuckle from the crowd, but Doerfler, deadly serious, interjected: “It should not be a laugh line. This is a political contest, these are the tools of retaliation available, and they should be completely normalized.” What put us here, he said, is the idea that the Court is an “untouchable entity and you’re on the road to authoritarianism if you stand up against it.”

It is certainly not “a laugh line,” it is a chilling call for mob rule and political harassment of jurists for not ruling as demanded. Harvard Law Professor Ryan Doerfler wants to show that individual justices are “touchable” by harassing them as individuals when they dare to defy our will. He is not alone in such extremist ideology among the “radical chic” of academia.

I previously criticized Georgetown Law Professor Josh Chafetz who supported more “aggressive” protests targeting justices “when the mob is right.” Such voices are common at Georgetown and other law schools.

The Washington Monthly’s article normalizes such extremist rhetoric and dangerous threats against the justices. It is another example of the license of the age of rage.

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