Since the death of Supreme Court Justice Ruth Bader Ginsburg, the question of “court-packing” (increasing the number of seats to 11, 13, or 15, with all additional members being of one ideological stripe) has been a subject of discussion by the political and chattering classes. Will they or won’t they? Should they or shouldn’t they? What about American norms? Why can’t Joe Biden answer a simple question?
All of that is very interesting and important. The electorate deserves to know whether a presidential candidate supports of significant change to one of the other branches of government. There are good reasons why tinkering with the membership of the Court should be avoided, especially in a time of deep division. Norms are, in themselves, of consequence, and changing them can have unintended results. But what I haven’t seen discussed at all, whether in mainstream or conservative media, is the most crucial question of all: what is it that a packed Supreme Court is likely to do?
The answer to that question depends, in large part, on whom Biden (this isn’t happening under Trump, of course) picks. He’s been unforthcoming on that score as well, which leads one to suspect that he 1) doesn’t have a clue; 2) doesn’t really care; and/or 3) will leave that job to those around him. If it’s the latter, it’s easy to assume any new or open seats will go to some of the most left-wing legal thinkers in the country. Why? Because Kamala Harris, as a former state attorney general, is likely to have a disproportionate say in the matter. Ascendant leftists in Congress, the media, and academia will also have their voices heard. The trend in legal thinking in the Democratic Party, if the Obama administration and post-Obama politics are any indication, is increasingly along a path that will result in justices that will take this country in directions that would have been unthinkable just ten or fifteen years ago.
The media has been unwilling to look in the abyss to see how far down it goes–the mainstreams because they know they would scare the straights, as it were, and the conservative media because, I suspect, they are afraid of sounding like lunatics or conspiracy theorists. But what I’m going to outline is no conspiracy theory, and it’s not lunacy if there really are supposedly serious people discussing or even doing something to bring it about. So crawl with me to the edge of the cliff, and let’s take a look.
Critical Legal Theory: This is where the mischief all begins. CLT, a cousin of Critical Race Theory, posits that laws are an expression of the interests of the ruling class (made up largely of wealthy white, male, Christian, heterosexual, cis-gender, able-bodied individuals), and that laws must be deconstructed to be put in the service of the poor and those who have been historically oppressed. It is entirely results-oriented, and holds traditional standards of logic, consistency, coherence, and linguistic lucidity and transparency in contempt as social constructs designed to enable the ruling class to maintain power. New Court appointees will be required to be adherents of this legal philosophy, which now dominates leftist academic and political activist circles.
Abortion: Christians have sought for decades to rein in the abortion license with a variety of restrictions, from age-of-consent to parental consent, from mandatory ultrasounds to beating-heart and born-alive protections, from partial-birth prohibitions to mandating doctors have hospital privileges. All of those will go out the window. Abortion will become essentially unregulated, permitted until birth, and government subsidized.
LGBTQIA+: Because packing the Court will require the end of the Senate filibuster on legislative matters, the Equality Act will be passed in short order thereafter. Once the Court is packed, no challenge to any of its provisions will succeed, whether on freedom of religion, freedom of speech, freedom of association, due process, or any other grounds. Feminist challenges on grounds of sexual discrimination will also not succeed, because transgenders are higher up the progressive victim ladder than women. Parental challenges to gay and transgender-positive sex education in public schools will be dismissed. Even private religious schools might be forced to teach such curriculum (that’s already happening in Canada) if mandated by state departments of education. Objections to service of any kind based on religious objections will be rejected. Churches will be required to perform same-sex weddings for non-members if they conduct weddings for heterosexual non-members. The so-called “ministerial exception” for churches in hiring may not be repealed (though it will undoubtedly be challenged again), but it will be restricted to houses of worship, and perhaps just to clergy, and denied to schools, colleges, hospitals, publishing houses, etc. The Equality Act’s prohibition on appeals to the Religious Freedom Restoration Act will result in the Court treating the latter as a dead letter.
Freedom of Speech: As traditionally conceived and protected by the First Amendment, freedom of speech is seen by the left as being dangerous to minorities and designed to maintain entrenched establishments. As such, it must be transformed. The Citizens United decision will be overturned, and regulation of all political donations and spending given into the hands of the federal and state governments. All “corporate” entities will be prohibited from spending money to express political speech, with exceptions carved out for unions and “community-based” activist organizations. “Hate speech” laws will be enacted and upheld upon challenge based on their ostensible protections of minorities. International standards defining free speech (and prohibiting such offenses as “Islamophobic” or “homophobic” speech and writing) will be utilized by the Court to justify hate speech legislation. The “heckler’s veto” will be allowed as a way for public officials to decide what kinds of speech to restrict, based on supposed threats to public safety.
Voting rights: So-called “disparate impact” theory will be used re-order the electoral system in a variety of ways. Certain forms of redistricting for state legislative and congressional districts will be prohibited based on the claim that a given party’s voting strength is being diluted (this has already been argued unsuccessfully in Wisconsin). While currently under the Voting Rights Act only race may be taken into account in redistricting, other minorities will be included among those whose “voting strength” may not be “diluted.” In conjunction with revised redistricting standards, California’s “jungle primary” system, which has turned it into a one-party state, may be mandated as a matter of “fairness.” All voter ID laws will be struck down.
Freedom of association: Private clubs that have restrictions of any kind on membership will be prohibited. Single-gender schools and colleges, as well as single-gender student organizations, will also be prohibited. Single-gender sports will be abandoned because of Court decisions mandating that transgender individuals must be allowed to compete with whatever sex they identify with, rendering women’s sports untenable and pointless.
Affirmative action: Racial and other mandatory minimums will be enacted and upheld on Fourteenth Amendment grounds. All hiring and firing decisions will be required to take race, sex, sexual orientation, gender identity, and possibly religion (specifically Islam) into account, and give them equal or greater weight with traditional consideration. Justice Sandra Day O’Connor’s statement in Grutter v. Bollinger that affirmative action will no longer be needed in 25 years will be explicitly repudiated, and preferences made permanent.
Criminal justice: “Disparate impact” will again be used to drastically limit the tools of law enforcement. Any prosecutorial or police actions or methods that are shown to “disproportionately” affect minorities will be prohibited under the Fourteenth Amendment. The death penalty will be struck down in its entirety, as will mandatory sentencing and “three-strikes” laws, and the use of life imprisonment with parole strictly limited. Prison or jail terms for drug offenses will be ruled counter-productive and banned. Most if not all laws against drug distribution, use, and possession, other than large-scale sale, will be struck down.
Immigration: All restrictions on immigration will be struck down as violations of the Fourteenth Amendment. Deportations for criminal offenses committed in the U.S. will be deemed “cruel and unusual punishment” and barred. “Immigrant status” will become a minority designation alongside race, sex, etc.
Gun ownership: The Court will declare that the National Guard now fulfills the role of the state militia spoken of in the Second Amendment. Therefore, it is no longer necessary for the civilian population to own firearms. State buybacks or, in some circumstances confiscations, will be allowed, and prohibitions on the sale of most if not all rifles and handguns will be upheld. Most if not all regulations, such as requirements for weapons to be kept in locked gun safes with trigger locks attached, will be permitted by the Court.
There are undoubtedly other issues on which a packed Supreme Court can and will wreck havoc, but this should be sufficient to demonstrate the threat. Virtually everything described here has been advocated for or litigated by left-wing lawyers, legal foundations such as the ACLU, law school professors or other academics, prominent members of the media, or politicians. Finding potential nominees committed to this kind of agenda will not be hard, nor will it be difficult to find the activists to bring the issue before the newly enlarged Court. This is what is at stake in the debate over court-packing.