California’s current legislature look competitive. It received a public rebuke by FDR’s own vice president, John Nance Garner. Chief Justice Charles Evans Hughes even testified against it before Congress. Anger over the court-packing issue also led to huge Democratic losses in the 1938 midterms. Republicans gained 81 seats in the House and seven in the Senate, reducing the Dems to mere comfortable majorities. And yet, FDR still managed to pack the Court. By the end of 1941, only two justices remained from the Court he inherited eight years earlier. And even this was anticlimactic. In 1937 the Court turned more compliant toward New Deal policies after “the switch in time that saved nine.” The justices started narrowly upholding expansive new programs of the sort they had been striking down. (The name of the justice who switched his vote? Why, Roberts, of course.) Nobody has really proposed packing the Court since, preferring to either win elections or wait for Republican-appointed justices to move left. Modern Democrats, however, seem to have lost confidence in either of those strategies, instead turning to plans to “fix” the Court by adding a few ideologically friendly justices. But if Democrats think that doing so would reduce political tensions, they’ve been smoking too much of that plant that you should be able to grow in your yard for your own consumption but can’t as a matter of federal law because of an otherwise privacy- rights-inclined Court’s 2005 Gonzales v. Raich decision. (In Raich , a six-justice majority – including Antonin Scalia, with his Drug War exception to the Commerce Clause – allowed
Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. He’s also been P.J. O’Rourke’s pro bono lawyer in four Supreme Court cases – and worth every penny. administration stuff. There would also be less of a battle for each of the 53 seats than each of the nine – and presumably fewer divisive 27-26 rulings than 5-4 ones now. Hey, maybe I could even get appointed... Come to think of it, this Court-packing doesn’t sound half-bad. the feds to continue banning non-interstate non-commercial marijuana.) But I digress. The larger issue is that, even if Democrats win back both the White House and Senate next year – a big if, particularly given an unfavorable Senate map – they would have to do away with the legislative filibuster to pack the Supreme Court. And at that point, it’s “Nancy bar the door,” with everything from “Medicare for All” to the Green New Deal passable by simple majorities. It would also mean, however, that when Republicans regain control of Congress, they would do the same for their priorities, like repealing Medicare-for-All and the Green New Deal. Plus adding even more justices. By the time Barron Trump runs against President Beyoncé, we’ll have a 53-member Court. Of course, there might be some advantages to having that many justices. The Supreme Court would be able to hear more cases, process petitions more efficiently, and pay better attention to all that judicial-
American Consequences
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