‘Court-packing’ idea did not begin with Amy Coney Barrett’s confirmation, regardless of what the press would have us believe

Back in mid summer, a few of us guys sat around a campfire, discussing the looming presidential election and the consequences that might result depending on which side is victorious.

“If Joe Biden wins and the Democrats retake the Senate, both of which are likely, we’re going to see a policy push unlike any we’ve ever seen before because the left wing feels more emboldened than ever before,” I predicted. “One of the first things they’ll try to do is expand the Supreme Court.”

More than two months before the death of Justice Ruth Bader Ginsburg, that conversation either proves me a soothsayer or someone who was merely rambling and managed to trip over the proverbial nut that the blind hog sometimes finds.

I’m certainly not a soothsayer, but I wasn’t blindly rambling, either. Despite what political pundits and the mainstream news media (but I digress…) would have us believe, the notion of “court-packing” did not begin with RBG’s death and the subsequent nomination of Amy Coney Barrett.

To hear the news media tell it, proposals to expand the Supreme Court to erase the supposed 6–3 conservative majority that currently exists is deemed necessary because Republicans broke the rules of engagement by ram-rodding the ACB nomination through the confirmation process. Coney Barrett was confirmed by the U.S. Senate earlier this week.

But it’s a false narrative based on a faulty premise.

The premise is that the Republicans were in the wrong to confirm Coney Barrett so close to the election. There’s little argument that the GOP-led Senate is rife with hypocrisy. Republicans played their hand in 2016, when then-President Barack Obama nominated Merrick Garland to replace Justice Antonin Scalia and the same GOP-led Senate refused to take up confirmation hearings due to the looming presidential election.

All of the arguments offered by the right as to why President Donald Trump’s nomination of a Supreme Court justice in an election year is different from Obama’s 2016 scenario are incredibly weak. Republicans had an opportunity to be the bigger person — persons, in this case — and help America rise above the tit-for-tat partisan follies that we’ve been engaged in for the past generation, and they refused to do so.

But hypocrisy and politics are perfect bedfellows; a stunning display of hypocrisy by one political party or the other is hardly illegal or stunning. However hypocritcal they may have been, Republicans didn’t change the rules of engagement by confirming ACB to the Supreme Court; they abided by them and used them to their advantage.

Besides, Republicans are in control of the Senate. “Playing nice” and politics don’t go very well together. The GOP is going to take advantage of its power to push through its agenda, just as the Democratic Party takes advantage of its own power to push through its own agenda when the pendulum has swung the other way. As Obama himself said, “Elections have consequences.”

So let’s make no mistake: the idea that Republicans somehow cheated to get Coney Barrett on the court before the election is a nonsensical idea that’s being propagated by the other side to build support for an idea that was already in the offing: expanding the court to erase the perceived conservative advantage.

The modern version of packing-the-court, the political maneuver that is usually attributed to President Franklin D. Roosevelt as a method to counter conservative opposition to the New Deal, dates back to the confirmation of Supreme Court Justice Brett Kavanaugh. No sooner than was Kavanaugh seated on the high court after surviving searing personal allegations during the confirmation process did the progressive left begin formulating plans to expand the court.

That’s not how the media tells it now. Consider this piece in The New York Times, published last month. It ledes like this:

“The idea of expanding the Supreme Court has caught fire among some Democrats since the death of Justice Ruth Bader Ginsburg ignited a Washington power struggle that could drag on for months, long after the Senate votes on President Trump’s nominee to replace her.”

But just two paragraphs later, the same story offered this assessment: “Former Vice President Joseph R. Biden Jr., the Democratic presidential nominee, has long opposed that idea, known as court packing.”

It would be hard for Biden to oppose something that hadn’t already been proposed.

In fact, it was a fairly central topic during the Democratic presidential primary campaign. Pete Buttigieg endorsed expanding the court, as did Beto O’Rourke. Both proposed expanding the Supreme Court to 15 seats.

Former attorney general Eric Holder also endorsed expanding the court, saying that two seats should be added.

U.S. Sen. Kiersten Gillibrand, D-N.Y., has talked openly about the idea of expanding the court.

All of this was being discussed in March 2019, a year and a half before RBG’s death. “Democrats cannot sit back and accept the status quo of a partisan Republican five-seat majority for the next 30 years,” Brian Fallon, a former adviser to both Hillary Clinton and Chuck Schumer, said at the time.

There have even been lobbying groups — like Pack the Courts — set up to push the idea.

So “old” (relatively speaking) is this idea that Senate Majority Leader Mitch McConnell, R-Ky., took to the Senate floor after Kavanaugh’s swearing-in ceremony in 2018 to say, “Some left-wing publications are already trying to lay the groundwork for, you guessed it, literally packing the court with more justices.”

There are those who would argue, of course, that “elections do have consequences,” and Democrats acting to expand the court after their theoretical victory on November 3 is merely a consequence of the election — not unlike Republicans using their Senate majority to cancel Merrick Garland in 2016.

Fair enough. After all, the Constitution doesn’t dictate how many seats there are on the court, although we’ve been at nine since 1869.

But where does it end? The reputation of the Supreme Court has already been tattered enough by political rancor, and both major parties are to blame.

The idea that there is a 6–3 conservative majority on the court is a fallacy. There is a 6–3 Republican-appointed majority, but that hardly equates to a conservative majority, and the court’s rulings spell that out. For all the opposition to his nomination, Kavanaugh is a moderate jurist, and those who are convinced that Coney Barrett will be a reliable conservative vote on the court might want to remind themselves that most were convinced Chief Justice John Roberts would be the same — before his deciding vote on the constitutionality of Obamacare’s individual mandate, before his deciding vote that required California to reduce its prison populations, before his deciding vote that determined intellectually-disabled persons cannot be executed for crimes they’ve committed, and et cetera.

In the meantime, expanding the Supreme Court is the surest way to take its tattered reputation and completely illegitimatize it. There’s no end to political gamesmanship. For every tit, there’s a tat. If Democrats expand the court to gain an ideological advantage once they have control of the Senate and the White House, Republicans will do the same once they’ve regained control. And to what cost?

If we’re going to go down this rabbit hole, let’s at least be honest with ourselves and admit that it has little to do with Amy Coney Barrett’s confirmation to the Supreme Court — even if that’s not what the mainstream media would have us believe.