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How Court Packing Would End Americans’ Constitutionally Secured Rights


One of the many questions Raphael Warnock refused to answer in Sunday’s Georgia Senate debate was whether he would vote to pack the Supreme Court with left-leaning judges. Three times, Warnock refused to commit to either side of the issue, much as Joe Biden did throughout his presidential campaign. With the Senate in the balance, this issue is one of the most important of the campaign, and the voters deserve answers.

It’s important not just because of the immediate impact a handful of leftist judges would have on the Supreme Court, but because it negates the entire purpose of an independent judiciary. Furthermore, while the idea of court-packing destroys the separation of powers that has long worked to preserve American liberty, the exact kind of judges Democrats would appoint to pack the court are even worse.

In creating a new majority of “living constitutionalist” progressive judges, the Democrats reject the very idea of a written constitution. The result would be unrestricted power for any party with a slight temporary majority. In such a situation, no natural right would be safe.

Obliging Government to Control Itself

Separation of powers was one of the original means the Constitution’s framers devised to keep the federal government from becoming too powerful. Besides limiting the powers granted to the federal government, they created a system of divided power spread across three branches of government, each independent from the others.

No other nation had ever gone so far to avoid the concentration of power in one person’s hands, and the effort spoke to the real concerns about a return to tyranny the delegates at the Constitutional Convention feared. To avoid a dangerous concentration of power, they chose to rely on what mankind had learned about existing human nature rather than hoping that people suddenly began to behave better. James Madison explained in “Federalist” No. 51:

What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

In giving different branches independent powers, the Framers controlled the government by redirecting humanity’s imperfections. “Ambition,” Madison wrote, “must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.” Theoretically, officers in the different branches would jealously guard their power, and thereby prevent any other branch from accumulating it.

Not long after the Constitution was ratified, the Supreme Court showed exactly how an independent judiciary worked to preserve its power. In Marbury v. Madison in 1803, the court struck down federal law and cemented for all time the idea of judicial review by an independent system of courts. This is still the greatest limit on Congress and the president. Both of those political branches are more powerful than the courts and either can exercise their powers in myriad ways, but the independent judiciary provides that the Constitution remains a check on them.

In contrast to the power of Britain’s Parliament or the various absolute monarchs of continental Europe, America’s executive and legislative branches were limited, not just by text (which could be ignored by unscrupulous politicians) but also by the ambition and power of another branch.

Court-packing would overthrow this ingenious political scaffolding. If every time the Supreme Court disagrees with Congress, Congress simply adds more justices, the court will cease to exist as an independent constitutional power.

It must be said that, yes, while enlarging the court would not explicitly violate the letter of the Constitution, it would still commit violence to its spirit. What would remain would be unrecognizable to the Founders or even to modern Americans.

It would not take many such additions to render the Supreme Court a non-entity. Even where a majority of justices disagreed with some future government action, they would not bother to stop it, knowing that to do so would only invite another round of court-packing. The independent judiciary would cease to exist, and with it, the entire concept of separation of powers.

Preserving American Liberty

It is possible to have a constitution that does not separate powers. Many nations have such things. But removing that safeguard imperils the liberty the American government was created to preserve. Moreover, the type of justices the Democrats would send to the new packed court would undermine another aspect of the constitutional order: the written nature of the document itself.

No, a packed court would not rule that the words of the Constitution do not exist. They would, however, likely rule that those words do not truly mean anything unless the Supreme Court wants them to, which effectively amounts to the same thing.

We already know that presidents appoint judges whom they hope will rule in accordance with some constitutional theory. Yet the extra judges added in a Democratic court-packing scheme would be put on the court explicitly to do so, and in a manner that is uniquely destructive to the rule of law. These political judges would not feel bound by the words of the Constitution’s text, only by the will of those politicians that gave them their jobs.

This is the evil that originalism was revived to prevent. When the Constitution was enacted, judges assumed that the words of a law meant what everyone plainly knew them to mean at the time the law was passed. That is, after all, the whole point in writing our laws down: everyone can read and understand the words that have power over our behavior.

Yet as the left stopped winning huge majorities in the 1950s and 1960s, they turned to courts to do what they could not accomplish themselves through constitutional means. Where there was no majority in the legislature for some new right, they manufactured one in the courts to imagine that such a right was always and already protected by the Constitution.

A ‘Living Constitution’ Means No Constitution

Originalism, the theory that the words of the Constitution should be interpreted consistent with the public understanding of them at the time they were enacted, is a rigorous judicial philosophy to explain something everyone already knows to be true. Even the cynical opportunists on the left who would make the Supreme Court into a subservient minor legislature know that what a legislature enacts in law has a set meaning. Often, however, they just don’t like either the meaning, the people who wrote it, or, though they lack the votes to do so, they wish the law changed.

Thus the “living constitution” theory is born. Words cease to mean anything in particular and only the currently popular opinions of a legislative majority hold any weight. With a packed court, anything is possible and the ends justify the means. Limits on our government’s power over us would last only as long as the government itself feels like preserving them.

Court-packing is the difference between having a written constitution and not, between our rights being protected and our freedom guaranteed, and a government that will know no limit on its power. Warnock owes Georgians an answer to the question, just as Biden still owes one to all of America.