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Systemic Structural Court Reform Or Something Similarly Anodyne

So, there’s nothing particularly special or elevated or delightsome about the United States Supreme Court. Nor is there anything sancrosanct — or mandatory — or obviously preferable — about the present composition of the Nine Riders cloaked in black. For all I know, it might be better some other way than the way it is right now. As we’ve all heard a million times now, the U.S. Constitution doesn’t say anything in particular about that,[1] and historically Congress has expanded, and has clipped, the nose-count of the court, on more than one occasion. The reasons for doing so pretty much every time were political, and indeed part of a fairly nakedly partisan power-grab, by temporarily triumphant Congressional factions or by long-frustrated Congressional majorities.[2]

Now there are plenty of righteous reasons why political Progressives have gotten so furious and ended up feeling so utterly, desperately frustrated over the last few years. There are some stupid and invidious reasons too, but that’s hardly the point. Even if every Progressive political demand is legitimate, just and wise in its substance, — whether a faction is wrong-headed or right-on, under the circumstances or in general, — still, the fact is, in a partisan political order, it is almost always going to be pretty grubby, and short-sighted, and dangerous, and really very destructive, to govern as if your own faction or political party is just never going to lose another election, nor ever wish, on some future day, that you all had abided some hindrances to the government’s power to ride roughshod over opposition, or had some remnant left of conventional restraints on the momentarily triumphant faction’s naked wielding of political power.[3][4]

  1. [1]Even if the U.S. Constitution did say something about it, so what? If it should require something that’s a bad idea in general or under the circumstances, well then written constitutions can and should be amended, altered or abolished.
  2. [2]See for example Timothy Huebner’s post at SCOTUSBlog.
  3. [3]Suppose you just knew that you will be the Government more or less continuously, more or less forever, and never have to think about being in the opposition, or the resistance, in the future. Maybe you know deep down that you represent the Emerging Majority, and you can be certain that so long as every vote is counted, then tomorrow belongs to you. If you think that, then you might also think that conventional restraints on big exercises of political power will serve as little more than a hindrance to the achievement of your just and legitimate claims. Maybe you should get rid of them, and to hell with the Emerging Minority. I’d say there’s something deeply wrong, and really kind of sad, about that attitude. But in any case, if you really think that you know you will be the Government more or less continuously, more or less forever, — or that if you can once become the Government then you’ll be able to fundamentally change the structures so that you’ll be sure to be the Government forever after, — and never have to think about being in the opposition, or in the resistance, in the future, — then I’d say that is a pretty foolish and short-sighted belief. In the real world, extraordinary powers are not just a rifle that you can just aim at the opposition. They are like setting a fire, which doesn’t always go where you expect it to go, which runs backwards as well as forwards, and which easily burns on with a life of its own, beyond the direction or control of them what set it.
  4. [4]For future reference: the phrase in the title of this post is an allusion to a Slate interview in October 2020, in which the journalist and political commentator Dahlia Lithwick suggested that the thorny issue of court packing wouldn’t be so thorny if proponents of partisan court packing would just call it something other than that, like systemic structural court reform or something similarly anodyne.

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