How the Dems should answer the Court-packing question

Hint: it is about democratic checks and balances, and turning the question around.

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Over the last few weeks even the most charitable supporter would have to admit that Joe Biden and Kamala Harris have both dodged the “court packing” question. Harris, when asked about it, launched into a discussion of Lincoln’s appointment practices. Biden recently suggested that he’d give his opinion “when the election is over.”

The campaign seems to have decided that no answer is the best answer. And maybe it is — having spent some time in politics myself, I know the tolerance for answers that require any thought is next to nothing. But consider this a thought experiment: if we lived in a different kind of democracy, where merits of the answer mattered, what would a good answer look like?

As I see it, the key lies in one of Michael Pence’s pronouncements. At the VP debate he said “if you cherish the Supreme Court and the separation of powers, you need to reject the Biden-Harris ticket. …This is a classic case of, if you can’t win by the rules, you’re going to change the rules.”

But respect for the separation of powers means the precise opposite. For threats of court-packing are part of the rules. Such threats of legislative action have been used by Republicans and by Democrats for decades, to signal that the Court is reaching the limits of authority. And, contrary to what Pence is saying, such threats aren’t an attack of the separation of powers. They are part of the constitutional design, as one of the few ways a democratic majority can signal to the Court that it is going too far. To be sure, actual court packing should be understood as last resort and a last recourse. Yet, as part of the Constitution’s system of checks and balances its existence cannot be denied.

Hence I’d answer the question this way:

“The Biden administration, unlike this administration, would fully respect the Constitution’s system of checks of balances, which includes the possibility of legislative checks on Supreme Court. Such checks should be understood a last resort, a democratic response to a Court that repeatedly flouts the democratic majority’s right to govern on matters within its legitimate sphere of authority. If the Trump / Pence campaign doesn’t accept this, they either don’t understand the Constitution’s system of checks and balances or don’t respect it.”

A few more details that matter. First, it isn’t, of course, as if the President can actually pack the Court, so the question is hypothetical to begin with. At best, a President can threaten. But that threat is an important signal.

Second, as aggravating and unprincipled as McConnell’s maneuvers have been, I believe that Court packing shouldn’t be threatened for personnel changes. (I realize some may disagree with this quite furiously). As I said, it it should be used in response to persistent patterns of overruling the majority’s right to legislate and govern on matters within its legitimate sphere of authority.

But wait — didn’t the Warren Court, in the 1960s, go further than any other in overruling laws passed by a majority, usually in individual States? Is this just a question of Democrats believing in legislative action when they don’t agree with the results?

The classic answer to this objection is that the Court’s defense of the fundamental rights of minorities within a majority structure enjoys its own, independent legitimacy. Consider the right of the Jehovah’s Witnesses, under the First Amendment, to refuse to salute the flag, even if a majority insists that they should. There’s much more to this topic, but the basis premise is that there is a fundamental difference between upholding the rights of those — such as racial and religious minorities — who cannot be expected to find representation in a majoritarian system, and the use of the Constitution to enact political preferences.

So: the Biden-Harris campaign should say that they respect the Constitution’s design and the separation of powers, and therefore respect the reservation to Congress of the ultimate power to control a Supreme Court that has gone rogue, gone way too far in replacing democratic will with its own political preferences. It is the kind of power that you’d hope not to use, yet it is contrary to the Constitution to deny its existence.

Written by

Professor at Columbia University; author of “The Curse of Bigness,” “The Attention Merchants,” and “The Master Switch;” veteran of Silicon Valley & Obama Admin.

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