There is an unambiguous reality about the Supreme Court and the Democratic ticket that must be understood by all. When a campaign goes out of its way to avoid the answer to a question, the answer becomes as apparent as if they’d actually said the words. Joe Biden, Kamala Harris, and their proxies have done everything they can to not answer the question of whether they would pack the Supreme Court if Amy Coney Barrett is confirmed. That means the answer is clearly, “You betcha.”
If the answer were “no,” they would say that. It would help their campaign to do so because the only people who would be upset by it are the radical leftists who want the court packed, and there’s no chance they’d switch their vote to President Trump over the issue. Therefore, the Democrats abstaining from answering a very simple question is an answer unto itself.
But you knew all of this already. If you’re reading this site, you’re probably a conservative. If you’re a conservative, you’ve watched Biden, Harris, and others refuse to answer the question and you’ve already figured out why. Now, the task at hand is to go forth with a message of why packing the court would be a very bad thing. It has nothing to do with ideology; if President Trump said he wanted to pack the court with Barrett and two other originalist judges to make sure his agenda was protected by the highest court in the land, I would be just as against it. As should you. Here’s why…
If more than nine, why not 99?
Our founding fathers got it right. Mostly. They intentionally made the judiciary a slightly less powerful branch of government for a reason. They knew that if judges were empowered to intervene too much, human nature would demand that they do so. The only real mistake they made with Article III of the Constitution was to not set a limit on Supreme Court Justices.
Nine is the right number. It prevents a disastrous balance; there must always be a definitive judgment and an odd number is the easiest way to do that. Fewer than nine and each individual justice becomes too powerful. More than nine and we run the risk of an ideological shift one way or the other that can be insurmountable for decades… except through further court packing.
Our republic has stayed together largely through unwritten agreements. A nine-Justice Supreme Court is one of those. So what happens if that unwritten covenant is broken? If (God forbid) Joe Biden wins and starts packing the court with two additional Justices, that would put it at 6-5 in favor of leftists. But Democrats do not consider Chief Justice John Roberts a leftist, so they would need to add two more to make it a 7-6 leftist majority (though in reality it would be 8-5 with Roberts).
Assuming that all happens in the four years of a Biden-Harris administration, the backlash from conservatives will be harsh. They’ll make sure a Republican candidate wins in 2024 and will flip back the Senate. That means they would have to add 2-4 more Justices to pack the courts in favor of originalists. And the trend goes on and on.
Couple all of this with the likelihood of deaths or retirements sending the court into further lopsided disarray and we could find ourselves with 15, 23, 37… 99 Justices within a couple of decades. That’s not a Supreme Court. That’s a circus.
Singular election purpose
The judiciary branch is separate from the legislative and executive branches for a reason. The founders wanted checks and balances in place that would make it as fair as possible to the Constitution and the American people. In every way possible, the judiciary was intended to be apolitical.
Unfortunately, it has become very political since FDR made it so. As a result, we’ve seen continuous fights over the makeup of the court. While that’s not necessarily a terrible thing in its current form (bad, not terrible), it would get exponentially worse when we start holding national elections with the sole purpose of reshaping the bench. Today, it’s already a major consideration in elections. If court packing becomes a thing, it will be the only major consideration.
We need a judiciary that is neither beholden to nor determined by the state of politics of the day. Supreme Court decisions span over long periods of time, often indefinitely, and must never be made due to immediate political considerations. That’s what the legislative branch is for, to handle the issues of the moment and set a direction for the future. All the judiciary branch is supposed to do is determine if the actions of the legislative and executive branches at the national, state, and local levels are aligned with the Constitution.
Once you introduce court packing into the equation, politics of the day will be all that’s taken into account.
Okay, so it won’t be everything. But many rulings of the past will be reconsidered as a result of the aforementioned political considerations of the moment. That should terrify everyone, including hardcore leftists. Why? Because a Supreme Court that is built on political considerations will be a Supreme Court that acts as activists of the moment.
One thing of particular interest is Roe v. Wade. Even with Amy Coney Barrett confirmed, it would still be next to impossible for the abortion ruling to be overturned. Why? Because originalists need a compelling reason to overturn past rulings. That’s in their nature. There may be six pro-life Justices, assuming Barrett is confirmed, but that does not mean they will overturn it based on laws coming from the states.
However, if court packing becomes a thing, it’s almost certain that Roe v. Wade will be overturned. Why? Because a conservative future president will run on it as a campaign promise to go along with other forms of judicial activism. With America reeling from the results of a Biden-Harris packed court, they will accept and elect a Republican, likely in 2024, who promises to “reverse” the damage by packing the court even more. And what will be at the top of the list of prerequisites placed on potential Justices by this hypothetical future president? A willingness to strike down Roe v. Wade among others.
Some on the right may argue that this is a good thing. I want Roe v. Wade overturned as much as anyone, but I want it done without sending the nation down the dangerous path of court packing. The reason is simple. If a packed Supreme Court strikes down Roe v. Wade, a future court packed by Democrats will not only reinstate it, but will likely take it even further. We need to win this battle culturally and politically, and that means doing so within the constraints of a nine-Justice Supreme Court system.
Between socialism, open borders, a Green New Deal, and Medicare-for-All, it’s hard to imagine Democrats doing anything more dangerous should they win in November. Sadly, packing the court is the most dangerous of all, and few are addressing it.
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JD Rucker – EIC