Still smarting over the election of President Trump, some on the Left have concocted another scheme to gain the arbitrary and unlimited power they believe they deserve. One of the writers pushing the plan calls it “a classic authoritarian maneuver used by aspiring dictators who seek to consolidate their power by dismantling democratic institutions.” Naturally, he endorses it.
The proposal is simple: when Democrats next hold the presidency and Senate, they should pack the courts to ensure that the Left can achieve its goals. Instead of only nominating judges for existing vacancies, they would expand the courts and fill the new positions with left-wing judges. These “living constitutionalists” would reinterpret the laws and the Constitution to advance the Left’s agenda. Just keep adding new Supreme Court justices who believe the Constitution means whatever the Left wants, until they add up to a majority.
It was reasonable to dismiss this as an idle thought when it was just Twitter chatter among left-wing media figures and activists. But with the idea gaining traction in multiple left-wing outlets, it must be taken seriously.
To ensure the rule of law that ensures a republic instead of the rule of whim that fosters a banana republic, we have long established that judges are supposed to be umpires, not political players, who call balls and strikes according to rules that apply equally to everyone and have been decided by elected representatives. Politicians make the law, judges apply the law. That’s an intrinsic part of justice. Well, not any more.
Those promoting the plot acknowledge it is banana-republic stuff. They claim that they do not want to use these methods, but may be forced to use them because…Donald Trump, with the aid of the Federalist Society, has kept his promise to pick judges like the late Justice Scalia. That is all. That is what has leftists urging Democrats to attempt “a classic authoritarian maneuver” when they regain power.
Democrats Have Been Playing This Game for a While
This proposal is extreme even for Democrats, who have spent decades escalating the fights over judicial nominees. They blocked the superbly qualified Robert Bork on ideological grounds, and attempted a “high-tech lynching” against Supreme Court Justice Clarence Thomas on trumped-up charges.
They first used the filibuster as an ideological weapon against George W. Bush’s judicial nominees. They then abolished the use of the filibuster for lower-court nominees when Republicans used it against some Obama selections. And they are still using every remaining procedural trick to delay Trump’s nominees.
Given this history, it was entirely justified for the Republican Senate majority to reject President Obama’s lame-duck appointment of Merrick Garland to the Supreme Court and muscle through the confirmation of Neil Gorsuch. When Democrats started this fight, they should have known that the other side would eventually hit back.
But instead of accepting this as the price of hardball politics, some of them are plotting a judicial coup. Although expanding the federal courts, including the Supreme Court, is not in itself a coup against our constitutional order, doing so to secure arbitrary and unlimited power would be. And that is what these leftists want.
Law Is Meant to Constrain Power, Not Manipulate It
The Constitution is meant to constrain power. It settles things—providing rules, structures, and limits—and is intentionally difficult to change. This does not always lead to the right outcome as a matter of policy, which makes the case for the living constitution simple: judges need to be able to use their judgment to ensure the right outcome in a case.
But it is impossible for judges to do so without also having arbitrary power to disregard the law. Consequently, the idea of a living constitution, with its exercise of arbitrary power by unelected judges, is fundamentally tyrannical.
The essence of tyranny is not oppression. That is only a byproduct. The essence of tyranny is arbitrary power and the elevation of will over law. This is what the Left aims at with their notion of the living Constitution—that the Constitution means whatever they want it to mean at whatever moment they decide it, and that the law is whatever they desire it to be.
This legal theory is a negation of the law. As the British statesman Edmund Burke put it, “arbitrary power is treason in the law” for there is “eternal enmity” between the two. As he observed, “it is a contradiction in terms, it is blasphemy in religion, it is wickedness in politics, to say that any man can have arbitrary power.”
Our American system of government was designed by men who know this and deliberately sought to limit the power of any person, faction, or branch of government. Packing the courts with living constitutionalists would be a tyrannical attempt to destroy the American republic, subjecting it to the capricious wills of unelected judges who acknowledge no limits on their own power to remake the law.
Limits on Arbitrary Power Are Crucial to Justice
Much of the motivation behind the Left’s court-packing plot is due to projection. They use judicial power arbitrarily, so they believe everyone will. They cannot believe that anyone would relinquish power. But originalism is the antithesis of arbitrary power. Rather than trying to twist the law to align with policy preferences, it restricts policy preferences in accordance with the law. This does not mean that the best policy (as judges see it) always wins in court. But it provides something of inestimable worth in human affairs—limits on arbitrary power.
Originalists want judicial opinions that are legally correct, even when they dislike the policy outcomes. They condemn opinions that are legally wrong, even if they like the policy outcomes. The Supreme Court’s recent ruling regarding sports betting law is a case in point. Originalists cheered it not because they are all big fans of gambling, but because it was legally correct. A lawyer who cannot quickly provide examples of such cases is one who has no respect for the rule of law.
Originalists follow the example of Scalia, who declared that many laws are “stupid but constitutional” (and by implication, that some good laws are be unconstitutional). For example, I think that many occupational licensing schemes across this nation are terrible policy—it is asinine for DC to require childcare workers to have college degrees—but I am skeptical of claims that they are unconstitutional.
The Rule of Law Protects Everyone Equally
Of course, some legal scholars disagree, and originalism does not always provide easy answers. There is ample room for good-faith disagreement over meaning and interpretation. This is why originalists so frequently debate among themselves. Much of what the Federalist Society does is facilitate such discussion. But what all originalists share is a commitment to the rule of law. Judges are to be the servants of the law, not its masters, even when they think they know better than those who wrote and ratified the laws.
This truth has been somewhat obscured by the language of judicial activism and restraint, which has at times given the impression that what really matters is how aggressive judges are at striking down laws as unconstitutional. This is incorrect. Statutory laws should be struck down when they clearly conflict with the Constitution.
Some deference to the other branches of government is due in uncertain cases, but the real role of judicial restraint is in restraining the will of a judge, and binding it to the law. The measure of good judges is not how often they affirm or strike down laws, but that they are trying to faithfully interpret the laws, especially the Constitution.
The rule of law protects us all. A less-principled Right could easily adopt its own version of living constitutionalism, which the Left would find far worse than originalism. The American system of government is meant to provide for exchanges of limited political power under the Constitution. Schemes to use one electoral victory to seize indefinite arbitrary power are a betrayal of our nation, and may destroy it if attempted.