JONATHAN TURLEY: Ex-conservative icon joins Left's ruthless court-packing scheme
"Let's get ruthless." Those words are, unfortunately, nothing new in this age of rage. In just the last few weeks, various liberal pundits and politicians have been calling for radical and even violent action. Even comedian Margaret Cho publicly declared this week that "we need a feral, bloodthirsty, violent Democrat."
However, these words came from Bill Kristol, the founder of the Weekly Standard and the current editor-in-chief of The Bulwark. Kristol was a leading conservative figure in the Republican Party.
Kristol left the Republican Party and is now a vehemently anti-Trump writer. There are certainly good-faith reasons why some conservatives have broken with Trump on a variety of issues. However, in this column, Kristol was writing to endorse the Democratic plan to pack the Supreme Court with an instant liberal majority to force through a slew of political changes in the country.
Various Democrats have been pledging to not only impeach Trump (and a long list of other figures), but to pack the Supreme Court as soon as they regain power.
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James Carville declared that, "If the Democrats win the presidency and both houses of Congress, I think on day one, they should expand the Supreme Court to 13. F**k it. Eat our dust." He added, "Don’t run on it. Don’t talk about it. Just do it."
This Nike School of Constitutional Law is catching on with a wide array of pundits and professors. Just do it.
Years ago, Harvard professor Michael Klarman laid out a radical agenda to change the system to guarantee Republicans "will never win another election." However, he warned that "the Supreme Court could strike down everything I just described." Therefore, the court must be packed in advance to allow these changes to occur.
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Former Obama Attorney General Eric Holder has put packing the Supreme Court front and center, explaining, "[We’re] talking about the acquisition and the use of power, if there is a Democratic trifecta in 2028."
Years ago, I wrote an academic piece on the possible expansion of the Supreme Court, but there is a world of difference between that and a court packing plan. Under my proposal, the Court's expansion would take almost two decades to ensure that no president could pack the Court.
It was not just the company that Kristol is keeping on the issue, or his endorsement of the long-anathema concept of court packing, but also his rationale for the move. Kristol cited the successful Democratic gerrymandering efforts in California and Virginia as triumphs that should now propel the left to pack the Court: "Expanding the Supreme Court is no different from redistricting in California and Virginia. It is a proportionate response to Republican attempts to degrade liberal democracy and move America toward a post-liberal order."
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Praising governors Gavin Newsom and Abigail Spanberger for their "ruthless" leadership in response to Republican gerrymandering, Kristol insisted that Democrats must meet "force with force" and must now pack the Supreme Court. Being ruthless, he argues, is the "only road to preserving liberal democracy."
There is, of course, a considerable difference between altering political districts and packing the courts. Political gerrymandering has been around since the earliest days of the Republic.
The courts are not the same political fungible units. Indeed, the favorite term on the left is "illiberal democracy" to refer to democratic systems used to curtail rights and weaken checks and balances. Yet this illiberal means is being cited by Kristol as essential to save liberal democracy.
Liberal justices have spoken out against these calls for court packing.
The late Supreme Court Justice Ruth Bader Ginsburg said it would destroy the continuity and cohesion of the Court. She added: "If anything would make the court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’"
The political districts are precisely that: political. They are part of the two political branches in a tripartite system. It is the courts that keep these political branches within their proper constitutional orbits.
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There was, of course, no movement to pack the Court when a series of liberal majorities rewrote major areas of constitutional law in the 1960s and 1970s. These demands from figures like Sen. Elizabeth Warren were only heard when the Court began to rule against their chosen outcomes. Warren explained that the Court had to be packed to bring its rulings in line with "widely held public opinion."
Of course, Article III was designed precisely to blunt such pressures to rule according to "widely held public opinion." The Supreme Court is a counter-majoritarian body that was created to protect rights against the passions or demands of the majority.
As I discuss in my book, Rage and the Republic, the founders sought to avoid "democratic despotism" and "mobocracy" by creating barriers to direct democratic powers. The Supreme Court is essential as a bulwark against such impulse politics. Those pushing for an instant liberal majority would convert the Court into the type of partisan judicial bodies seen in states like Wisconsin where jurists are selected to robotically vote for party priorities.
There is a reason why "ruthless" was not an attribute cited by anyone in the constitutional convention to be fostered in our Republic. On the contrary, the system is designed to temper ruthless passions for reasoned debate.
The Court itself may be the ultimate test of the lingering capacity for reason among our citizens. Of course, we can be ruthless and tear down our institutions on the 250th anniversary of our Republic.
No democratic system is ever immune from self-inflicted wounds. That is why Benjamin Franklin reminded us that this remains our Republic if we can keep it. This year, we can celebrate that Republic, or we can ruthlessly destroy it in a fit of blind rage.