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The Ideological Blinders of Court Packing Proponents

Two Yale Law School professors, Ian Ayres, and John Fabian Witt, have written an op-ed calling for court packing when Democrats next gain unified control of government. Their reasoning suggests that Yale’s ideological bubble may limit their understanding of law and politics.

The proclaimed objective of their Court packing scheme, which would elevate two lower court justices to the Supreme Court for eighteen years, is to “balance” the Court. But they never provide any measure of how the Court is out of “balance.”  To be sure, it is out of balance with the views of the Yale Law faculty, which has less than a handful of right of center faculty, and none at all focused on the public law with which the Supreme Court is largely concerned. But by opinion polls, the public believes that the Court is relatively balanced with similar numbers thinking that it is too conservative or too liberal and a plurality thinking it is ideologically just right. And the Court today enjoys its highest level of approval in over a decade after a term in which Justice Anthony Kennedy sided almost entirely with other Republican justices, the kind of voting pattern that such professors fear  a Justice Brett Kavanaugh would continue.

Even more importantly, the professors do not show why the ideal Supreme Court should reflect some kind of ideological “balance.” Shouldn’t the Supreme Court be a court of law,  trying to reach correct rather than “balanced” decisions? Indeed, one reason for judicial review is for the judiciary to take decisions that reflect the higher law even when politicians and people in general would decry them as being unbalanced. As Justice David Brewer once memorably said, the Constitution is to protect Peter Sober from Peter Drunk.

These Yale law professors do not even attempt to tell us why current Court or a future Court with Justice Kavanaugh is wrong on the law. They thus reflect the left’s essential problem in complaining about what they feel is a rightward movement on the Court. They do not have any theory to beat originalism in determining the meaning of the Constitution or the concept of neutral principles in applying precedent. 

These law professors also claim that the their Court packing plan will do less damage, because it is a limited one—designed only to heal “the wound” of failing to give a hearing (and presumably a confirmation) to Merrick Garland. Instead of packing the Court with many Justices, they will pack the Court with only two, and only for eighteen years. But this limitation will not help prevent the post-packed Court from becoming an institution where the number of Justices would expand whenever a party gains unified control of government after a period of control by the opposition. Republicans will not passively accept a court packing scheme based on the premise that Garland was kept off the Court unfairly. Republicans believe that the Senate had no duty to consent to Garland and remember that Joseph Biden, as Chairman of the Judiciary Committee in 1992, had indicated that the Senate would not take up Supreme Court nominations in the last year of a Republican Presidency.

My point here is not to adjudicate the merits of the claims of the parties about Garland, just to observe that professors’ ideological blinders may prevent them from recognizing the obvious: there is no stopping point once Supreme Court packing begins. Moreover, disturbing the numerical equilibrium would likely change how the justices themselves regard their institution, moving their self-image to become more like that of another branch of the legislature. Happily, even when the Democrats once again enjoy unified control, their representatives are not likely to pack the Court because most elected officials have more political wisdom than that reflected in the professors’ essay.

Reader Discussion

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on July 31, 2018 at 07:48:20 am

Yale is the ultimate bubble—a Leftist echo chamber—oblivious to the outside world, and prone to caricature.

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Mark Pulliam
on July 31, 2018 at 10:22:44 am

McGinnis' last paragraph is a problem, it's only half true.

What's true is "...that professors’ ideological blinders may prevent them from recognizing the obvious (et cetera.)" Indeed, one might say that of most law prof's at most law schools on most constitutional law matters.

What's very likely to prove untrue is, " Happily, even when the Democrats once again enjoy unified control, their representatives are not likely to pack the Court because most elected officials have more political wisdom than that reflected in the professors’ essay."
T'aint so! As the Democrats showed disdain for bipartisan rule with ObamaRobertsCare and for the rights of a legislative minority in packing the Courts of Appeal and District Courts, once they regain unified control the Dem's will eliminate the filibuster, pack the Supreme Court and restore to the Obama/ Democrat majority the lower courts that Trump repaired.

They will do these things because Democrats for half-a-century have viewed Article III courts as a principal beltway around the unsavory traffic congestion of popular opinion and Article I legislators.

"Absolute power corrupts absolutely."

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Pukka Luftmensch
on July 31, 2018 at 15:53:04 pm

My point here is not to adjudicate the merits of the claims of the parties about Garland, just to observe that professors’ ideological blinders may prevent them from recognizing the obvious: there is no stopping point once Supreme Court packing begins.

Agreed: I can see no stopping point once the Senate starts treating court appointments as simply a matter of power, not of principle.

Which is what the Senate did with Garland. Ergo there's now no stopping point.

For his next trick, perhaps McGinnis would like to caution California officials about the risk of wildfires. I'm told they can be really bad.

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nobody.really
on July 31, 2018 at 17:44:56 pm

"Which is what the Senate did with Garland. Ergo there’s now no stopping point."

Now, now Dear Boy, let us give credit where credit is due. Current Senate was only following the sage counsel of former VP Joey Biden who in 1994 announced that this is precisely what the Democrats would do in similar circumstances.

One should always be careful what they [advocate for].

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gabe
on July 31, 2018 at 17:48:06 pm

Good Lord, I must agree with nobody!
For once he's right (sorry) about something: "Agreed(there is no stopping point once Supreme Court packing begins.) I can see no stopping point once the Senate starts treating court appointments as simply a matter of power, not of principle."

Problem with your point, nobody, is that as a matter of historical fact the " Supreme Court packing" (not counting FDR's major 1937 packing attempt) started most recently, not with the Republicans' procedural ploy vs. Garland in 2016, but, rather, with the Democrats' " Court packing by obstructing" ploys, first in 1987, the marvelously successful Democrat Party-media conspiracy to Bork Bork (orchestrated by that drunken maestro, Ted Kennedy, "the (Cowardly) Lion of the Senate," and the Judiciary Committee's Conductor, Scarecrow Joe Biden) and thereafter in 1991 with the Democrats' attempted "high tech lynching" of Clarence Thomas ( "Yahoo, boys! We're a team. Just like the good old Democrat- KKK days!")

From then on, as McGinnis said and you said and you and I agree, "(T)here is no stopping point... once the Senate starts treating court appointments as simply a matter of power, not of principle."

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Pukka Luftmensch
on July 31, 2018 at 20:39:04 pm

First, I try avoid the Washington Post, and the links about Supreme Court history are perhaps better served at http://www.scotusblog.com/2013/07/the-first-court-packing-plan/.

But I want to cite a couple more profound ideological blinders.

First, the 1787 Constitution starts with a legal sentence that offers a clean break from English colonial tyranny. Only 2/3 of delegates from only 12/13 of 1784’s free and independent states signed the preamble and the articles that make its purpose and goals achievable. The most critical provision is amendment by the people, which as far as I can tell has been unconstitutionally nulled by Congressional rules.

The preamble is neutral to gender, race, and religion and thus is a civic agreement more than a civil contract. However, the human justice the agreement begs, if not drives, is individual liberty with civic morality. The preamble promises civic integrity. Reference to “founders” beyond the 1787 signers is an attempt to impose opinion rather than the essence of the 1718 Constitution. The U.S. Union of nine states under their people’s representatives terminated the U.S. Confederation of States on June 21, 1788.

Second, operations began with ten states on March 4, 1789, and by May, Congress had begun to re-establish British tyranny under Blackstone but with American factional Protestant ministers as surrogates for Canterbury. Congress, perhaps inventing political correctness, would unconstitutionally mimic England’s constitutional priest-politician-partnership, which I call Chapter XI Machiavellianism. More egregiously, with fourteen states, the U.S. ratified the Bill of Rights, with phrases that defend religion, a business institution, rather than integrity, a human opportunity.

Religion is an adult, private pursuit that many citizens find harmful to the human condition. Every human being has the individual power, the individual energy, and the individual authority (IPEA) to either develop integrity or not. He or she may or may not find comfort and hope in religion, spiritualism, or philosophy. But there is no incentive to negotiate private beliefs to collaborate for civic justice. To do so is a breach of civic integrity.

Developing integrity is a process of discovering the-objective-truth, understanding how to benefit, behaving accordingly, civically sharing so as to respond to improvements heard, and remaining open-minded to new discovery that demands change.

So far, this country’s ideology has changed from Canterbury, to American factional-Protestantism, to Judeo-Christianity, and, observing the Supreme Court, Judeo-Catholicism. African-American Christianity vies for dominant opinion. Civic integrity seems attractive for people who have discovered IPEA and would like to use it for fidelity.

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Phil Beaver
on August 01, 2018 at 06:44:04 am

One should always be careful what they [advocate for].

I disagree.

First, if we want to use the singular word "one" as the subject of the sentence, then we need a singular self-referential pronoun--for example, "he or she." Alternatively, we could substitute a plural subject, such as "People."

Second, we do not "advocate for," except in the sense of advocating on behalf of/for the benefit of someone or something. Thus, we advocate for the poor, or for the Republican Party, or for our client. But we don't need the word "for" when advocating a policy or result. (Note that we could say, "An advocate for lower taxes supports Trump's agenda," where we use the word "advocate" as a noun. But then we'd say "he advocates lower taxes," NOT "he advocates for lower taxes.")

Thus, we might ultimately agree that people should always be careful about what they advocate.

Am I too harsh? Hey, it could be worse.

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nobody.really
on August 01, 2018 at 14:24:14 pm

Is Biden the scarecrow from The Wizard of Oz or from Batman Begins?

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djf
on August 01, 2018 at 15:14:52 pm

HaHa!

Good call. I was thing only of the "If I only had a brain" Scarecrow Joe, but looking back on the Democrat's Court-packing- through-demagogic obstruction scare tactic ("In Robert Bork's America..." et cetera ad nauseam) it's apparent that your literary allusion is spot on: spreading "fear toxin" was and is the Democrats' main political strategy.

The adage that one ought not attribute to malice that which can be reasonably ascribed to stupidity works, also, to suggest that the evil scarecrow not the stupid one was the force at work to destroy Bork then, help Obama later and destroy Trump now.

Scarecrow Joe seems affable because he seems harmlessly stupid, which history has shown is not the case.
Not as good as Gore at fear-mongering, not nearly as good a fear-mongerer as Obama and Hillary but, nevertheless, a darn good purveyor of fear toxin is Scarecrow Joe.

Thanks, we needed that insight!

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Pukka Luftmensch
on August 01, 2018 at 16:54:40 pm

Oh c'mon, nobody. Ya know it was just a crude play on the old adage, Be careful what you wish for"; a rather inept attempt to show the link between a certain type of advocacy and wishful thinking - noit that there is anything wrong with that Kramer!

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gabe
on August 01, 2018 at 17:14:37 pm

Apparently, back in the day you did not learn grammar or Latin at a Catholic school subject to the mind-clarifying effect of a Nun's threats. The Life of Brian skit is close to an accurate portrayal of that educationally-valuable experience.

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Pukka Luftmensch
on August 01, 2018 at 17:25:51 pm

"there is no stopping point once Supreme Court packing begins".

The liberal mind can't see beyond what is politically expedient.

Senate dems did the same thing by creating the "nuclear option" for Presidential appointments. It appears to have never occurred to anyone that the weapon they were creating would not always be in their hands. Now they're about to take a second hit from the biggest nuke in the arsenal, a Supreme Court appointment.

You get three wishes, then the lamp and the genie go on to someone else. Be careful what you wish for.

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JTravis
on August 02, 2018 at 09:18:43 am

With the diffidence of thought and the mildness of speech characteristic of that rare thinking person, the law school professor who's come out of the closet of academic solitary confinement and self-describes as a "classical liberal," Professor McGinnins says, "The Court may seem unbalanced to Yale professors, but that appearance is a function of Yale’s ideological bubble."

Talk about calling a lowly weed a botanically-challenged flower.

As the Boston Celtics' colorful Red Auerbach, chomping on his cigar, was once heard to say in properly describing a basketball play the analysis of which a Clark Kent-like TV announcer had just garbled, "WHAT THIS GUY MEANS TO SAY IS...."

What McGinnis "means to say" (but would never say due to the intellectual timidity of classical liberalism) is that all law schools, not just Yale, are ideological bubbles (including Northwestern from which I graduated) and almost all law school professors are ideological bubble-boys (I've known and worked closely with some up close and personal, and for decades I've read myriad of the law review articles of a great many.) The deplorable consequence of this miserabilis prorsus infirmitas is that the professional judgments of most law school professors (say, the vast majority) as to what is constitutionally "unbalanced" in the real world or as to what is true politically of the world outside the bubbles of their lives and the isolation of their institutions are but the visually distorted, intellectually myopic opinions of bubble boys, rarely right, usually wrong, almost always Left and always predictably so, especially those of the highly-paid, over-privileged, underworked, overpopulated, soi disant ruling "elites" of the legal academy, those legal bubble boys who are enclosed in the lavishly-endowed, sociopathic bubbles of Yale, Harvard, Columbia, Stanford and Duke.

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Pukka Luftmensch

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