From WSJopinion: Court packing is in vogue in some progressive circles, writes kewhittington. But it is still a bad idea and should be pushed back to the margins of political life.
The view of the U.S. Capitol from the portico of the Supreme Court in Washington, March 1937.The idea of packing the Supreme Court had been relegated to the political fever swamps ever since Franklin D. Roosevelt’s unsuccessful attempt in 1937. “Court packing” became such a term of opprobrium that it was even repurposed to smear ordinary judicial appointments that the opposition party disliked.
The U.S. Constitution takes several steps to set up an independent judiciary. Judges are given life tenure so they don’t serve at the whim of government officials. Their salaries can’t be reduced while they serve on the bench to protect them from bullying and corruption. Their rulings on constitutional matters can’t be appealed to elected officials, so that individual legal rights aren’t held at the mercy of legislatures.
Altering the size of the court to reverse constitutional rulings that politicians don’t like can be done by simple legislative majorities. Powerful constitutional norms have helped restrain legislators from blowing up the court when they were unhappy with the justices or a new party assumes power. The erosion of these norms would have long-term consequences for how the constitutional system works and how effective the court can be at remedying constitutional violations.
There is little doubt that political polarization breeds distrust. Ordinary disagreements become magnified. Faith that opponents will behave reasonably and continue to play by the constitutional rules becomes strained. Common ground, even on supposed constitutional verities, becomes hard to find.