The retirement of Supreme Court Justice Anthony Kennedy revitalized liberal interest in the dirty tactics of increasing the number of Supreme Court justices to obtain a majority more favorable to Democratic views. This proposition that Democrats should resort to court-packing if they win in 2020 is unconstitutional.

Admittedly, nothing in the constitution specifies the number of judges in the federal judiciary, and Congress successfully packed the courts several times in the 19th century. However, since the late 1800s, a strong political norm against court-packing has emerged, which has been largely followed by both political parties.

In 1937, Democratic President Franklin D. Roosevelt, famously sought to pack the Supreme Court in order to reverse judicial decisions invalidating his New Deal programs. That effort was blocked, in part by senators of his own party, led by Senator Burton Wheeler who warned, “Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction.”

They started it

Another popular rationale is retaliation for the Grand Ole Party’s (GOP) “theft” of the Supreme Court seat to which Barack Obama nominated Merrick Garland, eventually filled by Neil Gorsuch, after the GOP-controlled Senate refused to hold hearings on the nomination. Republicans, in turn, point to the Democrats denying a hearing to Bush nominee Miguel Estrada and signaling refusal to even consider any GOP nominee. The latest being Senator Chuck Schumer, announcing just 23 minutes after Justice Kavanaugh’s nomination, “I’ll oppose judge Kavanaugh’s nomination with everything, I hope a bipartisan majority will do the same.”

In truth, both parties have a long history of shamelessly violating a variety of norms surrounding judicial nominations. But to legislate partisan changes to the Supreme Court’s structure will simply fuel further escalations. Democrat’s 11-justice court would become a 13-justice court under the next Republican president. And so on with each turn of the partisan wheel. For all the talks surrounding President Trump destroying the institutions, changing the Supreme Court’s structure for mere partisan advantage would be nothing but ruinous for the judicial branch.

Progressive Hysteria

“The choice between court-packing in 2021 and international fascism should not be difficult,” argues Huffington Post journalist Zach Carter. According to Jeffrey Toobin of CNN, the remade Supreme Court will spell doom: “Abortion illegal; doctors prosecuted; gay people barred from restaurants.” The left will have you believe that President Trump’s Supreme Court pick means apocalypse now.

The reality, however, is far less sensational. As senator Susan Collins pointed out, “that Judge Kavanaugh is more of a centrist than some of his critics maintain is reflected in the fact that he and chief judge Merrick Garland voted the same way in 93 percent of the cases that they heard together.” No number of Handmaid’s Tale costumes will change the fact that Kavanaugh, explicitly stated Roe v. Wade is “an important precedent reaffirmed many times.” Trevor Burrus of the Cato Institute indicates, “even more conservative justices, such as the liberal bête noire Justice Antonin Scalia, were reticent to overturn settled precedent, disrupt expectations, and imperil the legitimacy of the court.”

This, however, didn’t stop Senator Elizabeth Warren from declaring this nomination “the fight of our lives.” Even the left’s beloved justice Ginsburg lamented the “highly partisan” nature of this confirmation process, pointing out that she was confirmed 96-3 despite her prolonged history with the ACLU and Justice Scalia was confirmed 98-0 despite his conservative leanings.

The Trump Card

The contention is that Trump should not be permitted to appoint a new Supreme Court justice until the Muller investigation is concluded. Will similar disapproval be expressed for all judges appointed by under-investigation presidents: Kennedy, Roberts, Alito and Breyer? Would Breyer’s role in Clinton v. Jones in 1997 be denounced?

Ending the norm against court-packing ensures that the judiciary will not serve as an effective check on the other branches of government at the very time when it is most likely to be needed: when one party holds both Congress and the presidency and can thereby push through its agenda with relatively little opposition.

Bhavya Pant is a Collegian columnist and can be reached at [email protected].