Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
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.