Don’t Pack the Court


Monday, November 9, 2020

Justice Barrett. That newly-minted title given to a woman who has displayed nothing but grace, poise, and expertise through her confirmation hearings, has struck outrage within the ranks of the Democrats and liberal pundits alike. Justice Barrett’s confirmation has driven them to desperate, and revealing conclusions. 

The day after her confirmation, the New York Times opinion section posted numerous pieces explaining to their readers how the Supreme Court is broken and “needs saving” before laying out prescriptions of what should be done. Writers opined under headlines like “Create A New Court,” “Don’t Let the Court Choose Its Cases,” and most tellingly, “Pack the Courts.”

Incidentally one might ask how long the Court has been “broken.” If advocates of court-packing are being truthful, the answer is another question: “How long has it been since Amy Coney Barrett was confirmed?” 

And therein lies the problem.

In their heart of hearts, the court-packing advocates of history and today know that some of their most aspired policy wishes are constitutionally dubious at least, and outright illegal at worst. The fear that Americans’ right to own semi-automatic rifles would go unabated or that serious challenges to Roe will be granted certiorari, fuel these calls to pack the courts with judges who are sympathetic to progressive causes not solely to the law. 

Court-packing, though iniquitous, is completely constitutional. The number of justices on the Supreme Court is not set in stone. Article III Section I gives great discretionary power to Congress to shape the federal judiciary saying that the judicial power shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

That being said, the last time the number of justices was changed was in the 1869 Judiciary Act when the number rose from seven to nine. To increase the number of seats today would be the political equivalent of changing the rules of baseball so when one team goes up by a run, their opponents start the next half inning with the bases loaded and nobody out because, as Joe Biden said, something seems to be “getting out of whack.” 

Indeed the American tradition of nine justices is as old as baseball itself, 1869 is the same year that the Cincinnati Red Stockings became America’s first professional baseball team. Such a blow to normalcy and convention would only be the beginning of an unending road of retaliatory politics. As power changes hands, the Court would gain more seats. If the Democrats add 4 seats then the Republicans will add 6. From there the Democrats will call a lid on the lifetime appointments for judges to a set court and gain a whole slew of new appointees, but soon the Republicans would surely retaliate. A capricious Congress would rumble so on and so forth, rendering the judiciary unable “to secure a steady, upright, and impartial administration of the laws” as Alexander Hamilton warned.

The unfair attacks on Justice Barrett throughout her confirmation process were ubiquitous. Attacks on her faith were predictable, yet somehow still shocking. Those who wished to thwart her confirmation could do so because the public largely does not understand the role that judges and justices play in American life. Neither do they know how innocuous they are when they interpret the law with an originalist or textualist approach. 

Originalism, the constitutional interpretation to which Barret ascribes, is the belief that “constitutional text ought to be given the original public meaning that it would have had at the time that it became law.” It is not a nefarious approach to the law taken by those who secretly wish to take away women’s voting rights or reimpose segregation. It is a humble approach to the law taken by judges whose allegiance is to the text and not to their own policy considerations.

When the public lacks understanding or the ability to think for themselves, deceitful campaigns and Instagram infographics are empowered. No matter the falsity of the claims or sketchiness of the sourcing, fear is dispatched and does damage. Fear spreads fast and so do protestors shouting their newly-discovered grievances and holding signs explaining in little detail their outlandish solutions to imagined problems. Take this concept and apply it to other events of 2020. It has been a year of alarmism, whether it be related to coronavirus, World War 3, mass protests, or judicial appointments made at the end of a presidential term, this cycle is becoming all too familiar. 

The American people have nothing to fear in Justice Barret or her originalist philosophy. Nothing to fear except being driven by fear itself. 


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Nate Gorman is the interim Editor-in-Chief of Lone Conservative. He is a third-year senior at Towson University in Maryland. Nate is currently working for the Federalist Society as a research associate and is exploring the prospect of going to law school.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Nathan Gorman

Nate Gorman is the interim Editor-in-Chief of Lone Conservative. He is a third-year senior at Towson University in Maryland. Nate is currently working for the Federalist Society as a research associate and is exploring the prospect of going to law school.

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