Democrats are understandably furious and fearful when former President Trump and the Republican-controlled Senate replaced the late Justice Ruth Bader Ginsburg with a conservative. That does not justify packing the Supreme Court with progressives in retaliation.
The judicial branch’s primary virtue, and the reason it is a separate branch of government, is that it’s nonpolitical. The separation of powers preserves liberty because it prevents those who make the laws from applying them. Independence of the judiciary is perhaps the single most crucial innovation of modern liberal democracies. Virtually all tyrannies insist that judicial power be subject to the will of the government because they know that tyrannical power ultimately rests on force, and that means killing, suppressing, or imprisoning their enemies.
Packing the court would de facto end the independence of the American judiciary. It would establish the norm that when the opposition controls a majority of the court, it is legitimate for the ruling party to add as many members as necessary to ensure that the government’s friends control it. There is also nothing to prevent the government from adding multitudes of new judges to appellate and district courts to remedy perceived imbalances. Every judge would thus know that their controversial rulings would never last; the reigning government would immediately reverse them by stacking the courts with new, malleable members. The rule of law as we know it would be gone.
This isn’t idle speculation. The British House of Lords was never a court, but it shows how such political dynamics could play out. The institution was once a fully co-equal branch of government with the House of Commons. In 1909, however, it refused to pass the Liberal government’s “People’s Budget,” which proposed the first national welfare state measures for the United Kingdom. A general election was called, which returned a Liberal government. Even though the Lords approved the new budget, Liberals sought to remove the Lords’ coequal status and passed what would eventually come to be known as the Parliament Act of 1911. King George V ensured its passage by threatening to pack the House of Lords with sufficient Liberal peers. The threat worked, and the Lords surrendered their independence.
Democracy advocates have sharply criticized efforts to pack the courts in other countries. Poland’s ruling Law and Justice party has systematically used its parliamentary majority to install its own judges throughout the entirety of the judicial branch. This has been widely — and rightly — condemned as an assault on the rule of law and liberal democracy. That criticism would apply equally to any Democratic attempt to pack U.S. courts.
The United States has faced this dilemma before. The incredibly bitter election of 1800 featured Democratic-Republican Thomas Jefferson and incumbent President John Adams, a Federalist, who traded accusations that the other was undemocratic and would destroy the new nation. Federalists responded by expanding the number of judges with what derisively became known as the Midnight Judges Act. Adams also appointed a new United States chief justice, John Marshall, who was confirmed by the Federalist-controlled Senate only seven days after his nomination. Jefferson’s party later repealed the act packing the lower courts and terminated the judgeships, but did not seek to pack the Supreme Court to override the Federalist majority, even after Marshall authored the landmark Marbury v. Madison opinion establishing the judiciary’s power to declare acts of Congress unconstitutional. The result was the establishment of the norm we have come to treasure: judicial independence even in the face of fierce partisanship.
That independence must be preserved — especially because the judiciary has assumed so much power since our nation’s founding. The court’s composition is politically controversial precisely because it has used the power Marshall established to decide politically contentious questions — the rights to abortion and same-sex marriage among them. Once courts become political footballs, new governments will expand courts to ensure that court rulings never go against their will. That would eviscerate the Bill of Rights, turning it from a protection against majority rule into a mere parchment proclamation.