How To Destroy A Nation, In One Act
A friend recently shared an analysis of the "Court-Packing" matter, which got me thinking about what would happen if the Democrats went ahead with the demands of the Angry Left's harridans, harpies, and hellions.
First, for the sake of this thought exercise, let's stipulate that the Democrats succeed, not just rattle cages or sabers. That'd require a no-defections 50+1 vote in the Senate to kill the filibuster, and a similarly Dem-unanimous string of 50+1 votes to add several Justices to the Court, with a hearing for each of those Justices. With only five months to the mid-term elections, and the reality that politicians want and need to be glad-handing in their home states and districts during part of that time span, this is a very tall order, and that's before we consider that some Democrats might actually be smart enough to realize what a huge mistake this would be.
So, Congress passes a law increasing the size of the Court from its existing nine Justices to... let's say thirteen for the sake of this exercise. That'd tip the presumptive "balance" from 6-3 conservative to 7-6 liberal.
Obviously, this exercise also presumes that the President signs the law that expands the Court.
What happens next?
There will absolutely, positively, certainly, without a doubt be legal challenges mounted immediately. Where and how they get filed is beyond my legal ken, but it doesn't matter - let's assume it ultimately gets to the Court.
The Court has two options in the face of such a law:
1 - Accept Congress's action, i.e. either find the law constitutional or deny certiorari.
2 - Rule the packing law unconstitutional.
Neither option has any sort of happy ending.
If the Court gets packed by one party in order to shift ideological balance, that's the end of the Court as an independent check on the Legislative Branch. Whereas our government is supposed to be tripartite, with separation of powers to co-equal branches, this move would forever subordinate the Court to the legislature and Presidency. Any ruling of sufficient magnitude to irk the majority party will invite more "packing," and that alone would have an intimidating effect on the Justices who’d side against the ruling part. Apart from that, every swing of the pendulum will almost certainly result in Justices being added to "rebalance" the Court to the President+Senate Majority's liking.
In other words, it would break our government.
If the Court opines that the packing law is unconstitutional, we get ourselves that "constitutional crisis" we've been warned about so many times:
a situation in which a major political dispute cannot be clearly resolved on the basis of the particular government’s constitution or established practice.
What happens next?
Does the President order DoJ to arrest the Justices who voted "unconstitutional?" Do he and Congress try to impeach all those Justices? Remember - they only have a 50+1 majority in the Senate, not the two-thirds required to convict, so that’d be futile. Do we witness a massive walkout by the Congressional Democratic delegation, and a vow to let the nation seize up until they get their way?
How would this be resolved?
An "unconstitutional" vote would be seismic on the order of Marbury v Madison, which "established for the first time that federal courts had the power to overturn an act of Congress on the ground that it violated the U.S. Constitution." It would also utterly inflame the Left.
As polarized as the nation is right now, this could be the proverbial final straw, the thing that cracks the nation in two, and the beginning of a Partition similar to India's in 1947.
If those who want to collapse the nation (look to Critical Theory and the Frankfurt School, Cloward-Piven, and more modern subverters) have enough influence, this would indeed be their moment, the inflection point they've been chasing for decades.
Fortunately, it does appear that the Democrats don't have the numbers. Even if we discount the likelihood that other Senators are smart enough to recognize the peril of such a move, we have Joe Manchin and Kyrsten Sinema standing against ending the filibuster, and that's enough to halt any court-packing notion in its tracks.
The aforementioned harridans, harpies, and hellions will nag and shriek and tantrum, of course, and insist that the voters put more Democrats into the Senate - Democrats ready to nuke the filibuster and start the doomsday chain reaction - but I doubt they'll get their way.
So, fortunately again, I do believe this won't go beyond thought exercise. It does serve to remind us that there's really no room for common ground between those who love liberty and respect the nation and those who spew their hate of both on a daily basis.
If you enjoy The Roots of Liberty, please subscribe (if you have already, thank you!), and please recommend the blog to your friends! While I share it as much as I can on social media, subscribing ensures you won't miss a post.
If you really like The Roots of Liberty and want to help keep it rolling, please consider becoming a paying subscriber here at Substack, or at a lighter level as contributor to the blog via Patreon.
Thank you for your support!
Yours in liberty,
Peter.
I would wager that fewer than half of Americans understand what the term "packing the court" means. If we take the time to explain the concept and what would result, I imagine an overwhelming majority would agree it is not wise to do it, let alone even *consider* it. But as you say, we are currently protected against it by Senators Sinema and Manchin. As to your thought experiment wherein the Democrats packed to achieve a bare majority at 7-6...really! They wouldn't be pikers - they'd pack to create a huge majority - put at least 20 justices in there.
Once again, ignoring the wisdom of two recently departed liberal members of SCOTUS.
An interesting intellitual exercise, but I'd guess Manchin would squash this.
And as the Constitution is silent on expansion of the court, I would venture to guess any challenge would be 0-9 or perhaps 1-8, thus upholding an expansion.