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Kamala Harris is now—albeit obliquely—acknowledging the possibility of court packing. That’s something.
I have the impression that I worry more about the Supreme Court than most people do. At least, I’ve been worried about it longer. And I’ve also believed, for the past fifteen years or so, that a lot of Americans don’t share that worry nearly enough.
I recall the day Anthony Kennedy stepped down the way people remember terrorist attacks or presidential assassinations, because that moment, a comparatively unappreciated event, was just as significant as the far more violent ones that would follow. The writing had been on the wall for years: things were going to change, sharply and for the worse. And they did.
It’s simple enough math. Presidents are gone in 4–8 years. By contrast, a single Supreme Court justice can influence national—and, by extension, global—affairs for generations. But while the current #SCOTUS’s excesses have become common conversation these days, there was a time when the prevailing opinion was that some matters, like Roe v. Wade, had been settled for good. No rational court, no matter how partisan, was going to tamper with that. It would shatter the sense of trust in the institution, the respect for precedent that everyone assumed was sacrosanct. American voters just wouldn’t stand for it.
I never bought that reasoning, because what pre-MAGA complacency didn’t consider was the possibility of a deeply irrational court that might not be concerned about American voters at all, especially if the opinions of those voters no longer mattered as much. And as American conservatism shifted in an ever-darker direction—Sarah Palin, the Tea Party, Donald Trump, and ultimately an entire Republican Party gone full-metal MAGA—followed by ominously vaporous platitudes from the resulting SCOTUS nominees and the inevitable final outcome that had, not so long ago, been considered unthinkable, I got at least as focused on Senate races as I was on presidential ones.
This is why, for years now, my ears always prick up whenever someone raises the possibility of court packing.
Court packing—forcibly modifying the composition of the Supreme Court—is a radical, nakedly partisan move. There is no way to do this without looking like you are rigging the system, because that is literally what you are doing. Understandably, court packing is a measure that a lot of people involved in politics, or writing about it, did not want to admit they were seriously considering.
Until recently. Mainly because there may not be any other options. Quoting Millhiser, “That price might be worth paying if the Supreme Court is so hostile to voting rights and to the Democratic Party that Democrats risk being shut out of power forever unless they change the makeup of the Court.”
My reaction was pretty much the same as when the Democratic Party finally started playing hardball regarding gerrymandering, which they should have been treating as a top-priority existential crisis since 2010: what took you so long?
The consequences of going down this road are not imaginary. Of course conservatives are going to respond by repacking the court, first chance they get. Of course conservative-dominated states are going to regard a packed court as illegitimate. Of course some of them are going to engage in terrorism.
What’s key here is that these outcomes are not hypotheticals that can be warded off by example-setting and good behavior. It couldn’t be clearer at this point that Republicans do not have one iota of compunction about doing all of those things anyway (and that’s assuming you don’t consider the current court to have already been packed. I do). This is no longer a question of whether or not to rig the system. It’s already rigged, just in favor of people who want to do bad things instead of good ones.
That is the problem when one half of a political system decides they are no longer part of that system. The transactional logic that governs civilization no longer applies. You can’t say “We need to obey the rules, because if we don’t, the other guys are going to disobey them worse.” Unabashed political breakdown is a radical binary; an event horizon at which tit-for-tat game theory ceases to matter.
If you’re still playing by the rulebook, and the other team is playing Calvinball, you are categorically losing.
