McArdle: One of FDR’s idea that shouldn’t be resurrected

By Megan McArdle

The Washington Post

Ideas, like clothes, come in and out of fashion, and we seem to be living in a moment of ideological retro chic. President Trump has brought back isolationism and industrial policy, while the left has hauled socialism out of the attic and is busily trying it on to see how it fits. Even court-packing is having a bit of a renaissance, despite the fact that the last U.S. president to attempt it, Franklin D. Roosevelt, utterly failed to carry it off.

FDR lost his bid to add as many as six new justices to the Supreme Court because fellow Democrats told him to knock it off. And many of Roosevelt’s most devoted fans eventually conceded that trying to cram the court full of yes-men was a bad look for the leader of a democracy.

But times change, and so does the Supreme Court, which once again has a conservative majority. The left is not unjustifiably aggrieved about this, given that Senate Republicans created that majority by blocking Merrick Garland, President Barack Obama’s nominee to replace Antonin Scalia. And thus a growing number of people on the left — most notably former Attorney General Eric Holder — are saying that next time Democrats hold both the White House and Congress, they should ratchet up the number of justices until they achieve a majority willing to ratify the party’s most exuberant impulses.

Some things should never be resurrected — mullets, bell-bottom trousers and court-packing among them. And it seems frankly bizarre that the left is raising the idea now, under this president. Do you believe that Trump is the worst president in U.S. history, a would-be dictator? Have you cheered as courts have checked the president’s more constitutionally dubious moves on immigration policy? Why, then, would you want to gut the independence of the judiciary?

For that would be the inescapable endgame of this scheme: Any time a president’s party controls Congress, they would add enough justices to gain a comfortable majority willing to endorse the president’s desires — and to strike down whatever their predecessors got up to.

The left, of course, would argue that is the situation they already face, thanks to Republican court gamesmanship. Court-packing, the argument goes, simply makes explicit the truth currently hiding under the hypocrisy of “impartial” courts. One wants to engage with this argument charitably but — no, this is weapons-grade balderdash.

For one thing, the modern Supreme Court isn’t nearly as political as the left likes to imagine it. Yes, the court leans conservative and, yes, ideological priors do influence the votes of both liberal and conservative justices. But if conservative-appointed justices were really as blindly partisan as the left believes, the Environmental Protection Agency wouldn’t have been given the authority to regulate greenhouse gasses, any consideration of race in college admissions would have been banned long ago and the Affordable Care Act would have been struck down in 2012.

Pay special attention to the Obamacare cases, because in them Chief Justice John Roberts, not the recently retired Anthony Kennedy, was the swing vote. Initially, Roberts seemed to have been ready to strike the law down on constitutional grounds, but apparently shied at the last minute because he worried that such a sweeping blow to the president’s signature initiative would undercut the court’s democratic legitimacy. This was certainly a political act — but not a partisan one.

But that sort of politics is the politics of a court that sees itself as something other than a purely partisan institution. Even if you think that this view is more lie than truth, you should recognize that the lie is itself acting as something of a check on the court, and thus on the other branches of government.

Yet if the left keeps saying it’s all a lie, a con, a great civic sham, they will remove those constraints. If the court’s tattered aura of nonpartisanship is ripped away entirely, there will be every reason to rule simply as a matter of politics. And if the court is packed with reliable majorities every time the opportunity arises, it will become a remote office of the White House.

That would be bad for the country, obviously, and what does the left get out of it? In the short run, some favorable rulings. In the longer run, when the political tables turn, the left would lose all the ground it gained, and then some. And in the longest run, they would have opened the door for something far worse than conservative rulings on abortion or campaign finance.

Megan McArdle is a Washington Post columnist. Follow her on Twitter @asymmetricinfo.