PACK THE COURT!

The President of the United States had every right to nominate Amy Coney Barrett to a vacant seat on the Supreme Court. That decision was entirely within his enumerated Constitutional powers.

And the Republican-led Senate has every right to confirm the President's nominee before the November 3 election, or in the lame duck session afterwards.

The problem lies in the hypocrisy of the Republican decision to confirm a nominee within 45 days of the presidential election. While it is within Mitch McConnell's right to do this, it is unethical, dishonest, and politically offensive, given the exact opposite ruling he announced when President Obama nominated Merrick Garland within nine months of the end of Obama's second term. The statements made at the time by McConnell, and by the Senator-formerly-known-as-Lindsey-Graham, are at great sacrifice to their integrity, be that consequential or not.

So much for ethics and politics.

The Democrats have no ability to block the confirmation of Barrett. She is apparently a highly intelligent and qualified nominee. The fact that she is a member of something called the Charismatic Christians, and a small group called People of Praise, that believes that the man is the head of the household and that abortion is a sin, speaks to her desirability as a Justice, not her competence.

Barrett's confirmation will produce a 6-3 conservative majority on the Court. The Affordable Care Act, reproductive rights of women, and a host of other rights we now enjoy will be at risk.  Barrett's adherence to so-called "textualism" or "originalism" is a serious problem and raises the question of how far this conservative majority would go. If we are really going to limit doctrine to the 1797 meaning of the words in our Constitution, then clearly we risk re-legitimizing separate-but-equal schools for blacks and whites, criminal penalties for the use of birth control devices, prosecutors hiding exculpatory evidence from defendants, and losing a host of liberties and freedoms the Court has added to our Constitution in the last 200 years.

So what shall we do? The answer, I suggest, is obvious. We cannot stop the Republicans from doing their dirty work this year. But we can reverse the consequences next year. To do that, we must:

 i) take back the Senate and the White House, and

ii) Enact legislation adding four Justices to the Supreme Court.

When I have advanced my "pack the court" proposal, some friends have challenged me. Their principal argument is that it will politicize the court. We will develop a see-saw, and succeeding administrations will delegitimize the court by adding members to suit political aims. The result? The court will be seen as just another political entity, and lose its "Supreme" status.

To which I say: Huh? Add politics to the Court's deliberations? Are you kidding? Do the names Garland, Gorsuch, Kavanaugh, Barrett mean anything to you? Is there any more blatantly political conduct this administration could have engaged in respecting the business of the Court?

Politics has been part of the Supreme Court's genome since day one. In the opening week of law school, one learns that the most significant case in all of Supreme Court history was the 1803 decision in Marbury vs Madison.  In truth, this was an entirely "political" decision wherein Justice John Marshall, appointed by former President Adams, severely criticized Adams' successor, Thomas Jefferson, and his Secretary of State James Madison. But at the same time, Marshall made an outrageous power grab. He declared the Court's right to veto executive and legislative action by asserting that action was inconsistent with the Court's view of the Constitution's provisions. Jefferson was apoplectic.

 Nowhere in the Constitution is there language suggesting that the Supreme Court was given authority to do that. Marshall just "reasoned" the power was there, even if not in plain sight. There is no acceptance of "textualism" or "originalism" in that decision – only political power.

Unsurprisingly, the decision has gone unchallenged in the 200+ years since. No court has ever come forth and argued that Marbury v. Madison was wrong. Not even the "textualists" aka "originalists." Why not? Because the case is not about the original meaning of Constitutional words. The case is about John Marshall's staking out the boundaries of the Court's power with respect to the other two branches of government. And no successive Court has been willing to cede away the power Marshall seized for the Court in 1803.

Interestingly the Marshall Court consisted of six Justices. Their unanimously declared right to strike down statutes as "unconstitutional “was neither challenged nor followed for 54 years thereafter. 

Then Chief Justice Taney, writing for a 7-2 majority, employed Marshall's power-grab to favor the political wishes of the South. The Court struck down the Missouri Compromise on the ground the Constitution did not authorize Congress to declare any state or territory to be slave free. Like Marbury, Taney's Dred Scott decision was an out-and-out political reach. He did not need to strike down the statute to reach his decision because he concluded the Court had no jurisdiction to hear Scott's claim in the first place. Why? Because, the Court ruled, Scott was a black man, and black men could not be citizens. Therefore, the Court had no jurisdiction over Scott's claim for freedom because there could not be diversity of citizenship!

Politics in the Supreme Court? Nah!

Historians believe the reprehensible Dred Scott decision had much to do with instigating the Civil War.

Which, in turn, brought about more Court politics. In 1863, President Lincoln, in an effort to further his goal of winning the war and ending slavery, buttressed the Supremes with a slight court pack: he added a tenth Justice.

And in 1866, to prevent the despicable Andrew Johnson from adding any more Justices during his term of office, Congress reduced the number of Justices (by attrition) to seven! And in 1869, when Johnson was out of office, they raised the number back to nine, where it has been ever since.

And when the conservative Supreme Court consistently struck down FDR's New Deal legislation, and the President threatened to pack the Court, the majority magically changed its view.

 Politics? Nah!

Bottom line: the Court has withstood centuries of political manipulation and survived in good health. 

Besides, there is nothing the Democrats could do to the image of this Court that is more corrosive than what the Republicans are doing today. And if packing the Court does diminish its stature in the eyes of the public, who bears the true responsibility for that?

The Democrats need to toughen up. They need to win, and then act.

I am convinced they will accomplish the former: it's the latter I worry about.

A bientot.

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