Court Packing Would End the Federal Judiciary
And considering that the federal judiciary has quite a while back become an unelected legislative and executive branch that has built its rulings into a body of law that must be respected, while failing to base them on the Constitution, that would not be a bad thing at this point.
The Democrat response to a potential Trump SCOTUS pick has been to either rig the judiciary or denounce it.
It's one of those strange Overton Window moments where one of the more unhinged lefties at the New York Times is singing my song.
Down With Judicial Supremacy - The Supreme Court was never meant to be the only arbiter of the meaning of the Constitution. - Jamelle Bouie
That's the theme of quite a few articles I've written. Like this one.
During the Lincoln-Douglas debates, Abraham Lincoln asserted that the decision of the Supreme Court in the Dred Scott case did not suffice to “have the citizen conform his vote to that decision; the member of Congress, his; the President, his use of the veto power”.
Lincoln then quoted Thomas Jefferson’s warning that, “to consider the judges as the ultimate arbiters of all constitutional questions” would be “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy”.
And that is exactly what judicial supremacy has done.
Thomas Jefferson cautioned that judges have “the same passions for party, for power” and “their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.”
He stated firmly, “The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign with themselves.”
Of course what Bouie really means is that Congress or any Democrat in the White House should be able to toss out the Constitution without the courts being able to stop him, her or it. And that's the flip side of shattering norms and the rule of law. The Overton Window can keep on opening until everything ends up falling through it. And then it becomes more of a black hole for Communists and Nazis.
Noah Millman argues in The Week that the Democrats won't utilize the alternative option, court packing, that they're threatening.
If Democrats tried to pack the Court, Republicans could respond by packing in turn when they next won a majority. But they could also respond by nullification — i.e. red states could decide a federal ruling is unconstitutional and simply refuse to comply — as happened in the 1830s.
Of course the big Dem plan wouldn't be to just pack the court, but to Californicate the country and make it impossible for Republicans to win another election. They're already calling for treating D.C. as a state and then inducting Puerto Rico. That's four senators. Follow it up with more states, nationwide ballot harvesting, and every gimmick they can come up with, and they'll build a national one-party system.
That's the only way this works.
Between court packing and discarding the Supreme Court, the federal judiciary is headed for destruction with no exit ramp.
The train has been headed to this station for a while. Roberts accomplished little except convincing both conservatives and lefties that the Court is a horrible institution that we would be better off without. Alternate court packing schemes by Democrats and Republicans would destroy the Court's legitimacy and thus of the rest of the federal judiciary leaving behind even fewer checks and balances.
Quite a few Democrats are ready to bite that bullet, but an increasing number are moving in that direction. And that means their only possible endgame is to lock down the government.
And that would lead to a civil war.