Democrats are in an awful tizzy at the prospect of the pending confirmation of Amy Coney Barrett to the Supreme Court. Their consternation is understandable, given the potential policy implications, but it is worth considering that a Supreme Court appointment only bears major policy implications because the Left has long demanded that it do so.
What’s keeping them awake at night, drenched in a cold sweat, is the fact that Barrett is a conservative jurist. What is a conservative jurist? The best definition I have ever read is this one offered decades ago by William F. Buckley Jr: “One who respects the authority of Congress and the authority of the Executive and conscientiously asks himself whether a pending case properly invokes judicial intervention.”
That doesn’t sound so bad, until you realize the damage such a definition could do to the ability of the court to pronounce itself the ultimate determinant and instrument of social innovation. Having such an institution on hand to navigate around the constraints of an intractable constitution and unreliable electorate is a tough thing to give up.
The pushback from Senate Democrats during Barrett’s confirmation hearing is sure to be vigorous, to put it mildly, and one can only hope, furtively, that it does not descend to the depths witnessed during the Robert Bork and Brett Kavanaugh hearings. But some Democrats are looking beyond the present battle in their bid to preserve the transformative function of the Supreme Court.
There has been a resurrection of the specter of court-packing: a Democratic president and Congress increasing the number of justices who sit on the bench. This concept has floated around for a while, well before the passing of Justice Ruth Bader Ginsburg (who personally opposed the idea). Vice presidential candidate Kamala Harris flirted openly with the idea back in March 2019, as did several of her primary opponents for the Democratic presidential nomination.
Other ideas, marginally less flagrant in their aims, are emerging with something of a sense of urgency. House Democrats announced last week their intention to introduce a bill to impose term limits on Supreme Court justices, and to limit any president to only two Supreme Court appointments. Details of the proposal, being sponsored by Rep. Ro Khanna, a California Democrat, and co-sponsors Joe Kennedy III, a Massachusetts Democrat, and Don Beyer, a Virginia Democrat, are expected this week.
One of the immediate difficulties the bill will need to contend with is its conflict with the U.S. Constitution, which says that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” The Good Behavior Clause was intended as the foundation of the independent judiciary, so that judges did not sit merely at the whim of the sitting executive. The bill appears to deal with this by the simple expedient of relegating justices to lower courts after their terms are up. It’s a fairly clever bit of maneuvering around the letter of the Constitution, which is, of course, what the bill ultimately intends to effect in any case.
Other aspects of it are less well thought through: For instance, what happens if more than two justices inconveniently die or choose to retire during a single administration? Does the spot remain vacant until the next president? Apparently, these are minor considerations when such power is up for grabs.
How likely any of these proposals to reinvent the Supreme Court radically are to becoming reality is an open question. Overt court-packing schemes come with pretty high political costs, and it is doubtful that any president would want to risk that much political capital on a single gambit. Besides, the precedent would then be set, and there would be little keeping a future Republican president and Senate from either doing the same or simply stripping back the new seats. Does anybody really want to see that political game played out over the next generation?
What is causing these convulsions among the Left (and why Democratic leadership seems willing to grant tacit approval to proposals disregarding 250 years of constitutional tradition) is the prospect of losing semi-permanent control over what now amounts to, to use the words of Justice Learned Hand, a third legislative chamber: one unencumbered by constitutional constraints or democratic oversight.
The irony is that the Left has its own judicial philosophy to blame for its current panic. If Senate Democrats are truly fearful that the Supreme Court could be in a position to take away rights, as they claim, then perhaps they ought to join the Republicans in confirming justices, like Barrett and her mentor Antonin Scalia, who respect their own limits.
Kelly Sloan (@KVSloan25) is a Denver-based public affairs consultant and columnist.
