By Chris Satullo

“Packing” the U.S. Supreme Court is a flawed idea.

Packing the Supreme Court may be an idea whose time has come.

It’s a sign of these chaotic, clenched-jaw times. We’ve reached a pass where those two seemingly contradictory statements can be equally true.

The McConnellite majority in the U.S. Senate (I decline to honor this crew of hypocrites with the name of Lincoln’s party) is days away from consummating the peculiar court-packing scheme that the senior senator from Kentucky has pursued since 2013.

In response, agitated progressives shout out – against all political common sense – that Joe Biden and Kamala Harris must declare – loudly and right now – their intent to retaliate once in office. They must, woke Twitter insists, promise to add seats to the high court and fill them with, I don’t know, Bernie, AOC and Diane Lockhart.

Biden and Harris have evaded the question – aware that bringing up this topic when you’re leading big and your opponent’s team is demoralized is, well, dumb as dirt.

Political journalists, activating their honorable but outmoded instinct for bash-both-sides fairness, have pummeled Biden and Harris for these evasions. Never mind that Donald Trump, shouting “fake news” at every turn, routinely evades fair questions about his lack of a health plan, his zig-zagging on stimulus, silence about Russian bounties on American troops, tacit support of QAnon, and on and on. But, hey, let’s show we can be tough on Joe.

Granted, his evasions surely could have been more deft. Mr. Soon-to-be-President, why not say something like this: “I’m on record as being dubious of the wisdom of what’s being termed court packing. But I’m more than dubious, I’m appalled, by Mitch McConnell’s unholy, hypocritical rush to confirm a new justice in the middle of a national election without anything resembling proper process. Let’s see how that situation and this election play out before we talk about the Supreme Court. I will say this: It’s up to Congress first to say whether the Court should be expanded. I’ll let them do their job. My job is to put up an outstanding nominee for every vacancy that occurs, and I intend to do just that.”

Just to review the basics: The Supreme Court has nine members, all on lifetime appointments. Nothing in the Constitution stipulates that number. The first Supreme Court had six members.   The term “court packing” usually refers to the idea of offsetting or reversing an ideological tilt on the high court by adding seats to be filled by jurists of opposite views.

Court-packing disputes are nearly as old as the nation itself. The first produced a spat between those famous frenemies, John Adams and Thomas Jefferson.  Franklin Roosevelt famously got spanked by public opinion for talking about packing the court after a reactionary majority on the high court began thwarting elements of the New Deal.

One important takeaway, though, from that episode: FDR didn’t get to add new seats, but the existing court, chastened by his threats, miraculously got more cooperative and the New Deal unfolded apace.

McConnell’s court-packing plan is the culmination of a decades-long project by the American right, embodied in the founding and nurturing of the Federalist Society. This campaign has been rhetorically clever, stoutly persistent, lavishly funded and brilliantly executed. And it’s been aided by Democrats, including Biden, who were slow to grasp how the right was changing both the rhetorical framing and the parliamentary mechanics around the making of federal judges.

First, the parliamentary mechanics: Senate Democrats blundered in 2013 when, frustrated by McConnell’s unprecedented, prolific use of the filibuster to block Barack Obama’s federal circuit court nominees, changed the rules. They opted to allow confirmation of such judges by simple majority vote, with no filibuster allowed, thus no need to garner 60 votes. That worked for the Dems for a short while, but McConnell saw the chessboard more clearly. 

After he took over as majority leader, in 2015, he just swept all the Democratic pieces off the board. It became easier for a camel to pass through a needle’s eye than to get an Obama nominee past Mitch. It was equal parts hilarious and enraging when Donald Trump, in the one presidential debate, taunted Obama for “leaving” him “128” federal court vacancies, as though Obama somehow forgot to fill them. No, McConnell wouldn’t let any of them be filled.

(BTW: Trump naturally got the number wrong; it was a still hefty 105, but not 128. The man is constitutionally incapable of not exaggerating; it’s the only constitutional thing about him.)

Then Mitch took things nuclear, after Justice Antonin Scalia died, refusing to even offer a hearing to Obama’s moderate, Social Security-eligible nominee, Merrick Garland. The senator claimed that March 2016 was far too close to a presidential election to consider such a momentous matter.

Then, changing the rules for Senate review of high court nominees to eliminate filibuster, Mitch pushed through Trump’s nominee, Neil Gorsuch, lickety-split. Now he’s wielding the battering ram to get Amy Coney Barrett through in October of a presidential election year, just a week or so before the president who nominated her gets buried in a landslide.

Webster’s is rushing a new edition of the dictionary into print, with Mitch’s photo as an illustration next to the entries for hypocrite and chutzpah.

All that norm-smashing is bad enough, but what makes it intolerable – and changes the idea of Democratic court-packing from unwise, impetuous revenge into possible remedy – is the nature of the new court supermajority that McConnell’s slow-motion court coup has fashioned.

Back to the rhetorical framing: The Federalist Society, whence all these McConnellite justices spring, has done an outstanding job of describing its radical, revanchist program in innocent terms. Not all members of the Society think alike, but a large faction hungers to trash a century of precedents and dismantle the governmental practices that have, over the last 100 years, made America more just, equal, prosperous, safe, resilient, and powerful.

The Society excels at describing its wrecking-ball aims as some sort of modest, reverent tidying up of liberal excesses. Its members are pleased to describe their approach in terms such as strict constructionism, textualism and originalism. But this shtick is deceptive and ahistorical:

Originalism – Look,  I revere the incandescent moment when, in my home city, the Framers gave America its durable national charter. But from our vantage, 200-plus years on, it’s clear their effort had some savage flaws (indulging slavery) and slapdash moments (the Electoral College). 

No less a scholar of the Founding than Joseph Ellis writes in his book American Dialogue that James Madison left Philadelphia feeling defeated and disappointed, consoling himself that the flawed document he’d helped cobble together could be amended and improved. Luckily, the Constitution we have now is the one that’s been amended 27 times. It’s still imperfect, but much better suited than the parchment original to the needs of a diverse, vast 21^st century superpower with a hunger to be more just.

Yet jurists of Federalist Society stamp sometimes seem to pine for the 1787 version which, for all its brilliance, was written by a small group of affluent white men who were nervous about democracy and thought the “liberty” they were guaranteeing applied mainly to people like themselves.

Today’s “originalists” seem often to conclude that the “intent of the Framers” miraculously coincides with their own preferences, which in turn often coincides with the interests of the rich white men who funded their rise. I’m not saying the “originalists” are not sincere; I’m saying they are deluded.

Modesty – Ha! Federalist Society jurists love to talk about not substituting their judgment for the letter of the law, the intent of Congress or the Constitution – just “calling balls and strikes” as John Roberts famously put it. This is hard to square with their penchant for overturning laws and precedents that helped build the diverse, dynamic, evolving America of today – the modern nation with which these justices seem to have such an angry quarrel.

Or their ability to find in the Constitution things that centuries of jurisprudence never before detected. It was Scalia – Barrett’s mentor – who in Heller discovered in the Second Amendment an individual right to bear arms that previously existed only in the NRA’s dreams. (If you’ve never read the critique of Scalia’s sloppy history and legal reasoning by Judge Richard Posner – himself hardly a wild-eyed liberal – it’s worth your time.)

The alarmed chatter about Barrett’s likely ascent to the high bench focuses mostly on Obamacare, abortion and gay marriage – big topics all. But understand that one of the Federalist Society’s main quests is to rein in, even dismantle, what it calls the “administrative state” – or, as Trumpian fulmination would have it, “the deep state.”

By that they mean the whole apparatus through which capable, loyal public servants help the executive branch “faithfully execute the laws”: keeping air, water, food and drugs safe; combating climate change; protecting workers from injury and exploitation, as well as consumers and investors from fraud; enforcing laws against bias in hiring, housing and lending, and so on.

All of this is annoying to people who have lots of money and power – and prefer never to be told how they may use those assets to gain more money and power.

These 1-percenters will soon have a safe majority of friends on the high court, whom they’ll count on to block much of what a Biden-Harris administration and a Democratic Congress will try to do to fulfill their mandate from the majority of voters.

If you want to see a glimpse of what that looks like, take a look at the Federalist-inspired pretzel logic the Michigan Supreme Court used to undo all the executive actions that Michigan Gov. Gretchen Whitmer took to curb, quite successfully, the spread of the pandemic in her state.

So, yeah, Joe Biden – a real traditionalist – is correct that court packing is a norm-shattering move which risks setting off a chaotic cycle of payback with no clear end. But McConnell & Co. have already shattered the norm, packed the court and invited destabilizing chaos into America’s living room.

Faced with serious illness, doctors often turn to invasive procedures and powerful drugs they would never apply to a healthy patient. American democracy and society are in the ICU. Stay quiet for now, Joe – but once you’re in, pack the court.  Pack the court.

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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia.