Ruth Bader Ginsburg is in chemotherapy for cancer again. She reports that she is responding well.
Ginsburg is the oldest member of the liberal minority foursome on the Supreme Court, determined to stay on the Court as long as she is able to work “full steam”.
If she goes before November 3, all expect a quick executive nomination and Senate confirmation of a comparatively young conservative, making this a 6-3 conservative majority Court of long duration.
If you’re a liberal, or simply a centrist desirous of a balanced Court, this looks like a worst case scenario.
Court Packing Is Nothing New
Thomas Jefferson
John Marshall
I’ll see your bet and raise you 42 judges…
Court packing is as old as American party politics. Facing a decisive shift in the electoral prospects of his Federalist party against the Democratic-Republican party of incoming President Thomas Jefferson, John Adams had his Secretary of State issue 42 midnight appointments of Federalist judges.
Jefferson’s incoming Secretary of State, James Madison, refused to deliver those letters of appointment. One of those thereby deprived of judicial office, William Marbury, sued Madison.
Thus arose the famous Supreme Court case of Marbury v. Madison, resulting in the equally famous majority opinion of Chief Justice, and Federalist, John Marshall, which provided the basis for the power of judicial review, crucial to our system of checks and balances.
Judicial review was actually a ‘poisoned pill’ Marshall had built into his opinion, for the opinion artfully used the power of judicial review to block those midnight appointments of Federalist judges, thus offering new President Jefferson a choice between a present advantage for the President’s party (dozens fewer Federalist judges) at the cost of a near-term advantage for Marshall’s Federalist party (leaving Marshall with the power of judicial review).
Jefferson either opted for the short-term benefit or took an even longer-term view than Marshall, judging that the power of judicial review would ultimately fall into Democratic-Republican hands.
So, we have a clear precedent for this kind of high-stakes political poker, this power-conscious and partisan gaming of the Constitutional system, acted out in the early years of this nation by a good handful of Founding Fathers.
This is how checks and balances really work, as power politics within limits that are not themselves wholly divorced from the game of power-politics .
Power Politics and Checks & Balances
Many of us were recently saddened to see a crucial element of checks and balances misfiring, by producing a predictably partisan result in the Senate impeachment trial. And, those who disagree with the assessment that this failure occurred in the Republican-run Senate see a like degree of failure in the bringing of the impeachment in the Democratic-run House. in the first place.
How ironic! The only point of agreement between opposing partisans is that the process was riddled with partisanship.
So, let’s consider how the impeachment process was supposed to work.
Didn’t James Madison himself, in Federalist Paper #51, argue that “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place”?
I had always thought this meant that, when push came to shove, Senators would set their partisan interests aside, to protect the prerogatives of the Congress against overreach by the President.
It was, after all, their power, and why should they let an overzealous President curtail it? Ambition would be sufficient to override partisan advantage.
But that’s not what happened.
Instead, Senators realized that their present power was contingent upon reelection, and that they would not survive their next Republican primary when the nation was this polarized, and the President had the support of his unfailingly loyal base within the Republican electorate, giving them an overweight power in our current state of national polarization. Primaries have become a bottleneck favoring the radicalized wings of both parties.
And, as always, the extremists on each wing feed off of one another, strengthening each other at the expense of the sensible middle.
So, ambition failed to counteract ambition, because ambition, a non-moral force, pointed elsewhere in the current reality of polarized politics.
But I was wrong in this initial analysis, in two ways:
Historically (i.e., empirically), impeachments, and their subsequent Senate trials, have never been anything but partisan: just look at the deserved, but unsuccessful, impeachment conviction of Andrew Johnson and the attempts on both Bill Clinton and Donald Trump.
The only impeachment process ever close to non-partisan was that of Nixon, which ironically never proceeded to impeachment, because when the White House tapes revealed the unambiguous (though unintentional) confession to the commission of crimes and abuse of power in pursuit of personal political ends, no Republican Senator would risk standing by Nixon, whatever their partisan preferences.
Now you might ask “What good is a check and balance that is effective only when direct evidence amounting to an indirect confession is available? ” If street criminals could only be convicted under such rare circumstances, prisons would be empty and criminals dancing in the streets.
And, going forward, no President will ever again leave unredacted tapes as evidence of misdeeds.
It is not, in Constitutional crises, the paper powers of the Constitution that underpin the system of checks & balances. It is, rather, the willingness of the populace to allow the system to be gamed.
A failure to convict of impeachment can be a decisive factor in a subsequent election, either by itself, or in combination with other perceived signs of the abuse or inept use of power. That was, after all, the pretext of Senate Republicans for what some might have seen as an abdication of constitutional duties, “Let the people decide”.
Real-World Checks & Balances
In this corner, FDR, President of the United States, and in this corner, Charles Evan Hughes, Chief Justice of the Supreme Court
To repeat, court packing is nothing new.
The possibility of an out-of-balance 6-3 conservative Court, here discussed as a worst case scenario, would seem to represent the same kind of rearguard defense of its power by a fading party that the Federalists executed from 1801 – 1803.
In that case, Jefferson gave up the near-term advantage to the Federalists, taking the shorter-term and longer-term benefits for his party.
A similar case arose when FDR and his Democrats achieved a sweeping electoral victory . Key legislation was consistently blocked by a conservative dominated Court (described either as 5-4 or as 4-2-3).
In frustration, FDR proposed legislation adding 6 new judges to the Court, which would have made the Court liberal-dominated, at the cost of openly gaming the existing system of checks and balances.
The move lost FDR much support and, though the bill was beaten in Congress, it achieved its purpose, as the Court — presumably, to undermine support for the FDR-sponsored bill that would limit its power — began to issue rulings supportive of the President’s policies.
To sum up, in the strategic game of power politics, that FDR’s bill was defeated, and that by pushing it he lost broad bipartisan support, are simply viewed as costs necessary to achieve larger political ends.
The moral of this story: the power of Constitutional checks & balances lies not in the letter of the law, but in their support or lack of it in the populace. Tacit consent is the magma under the crust of ‘parchment barriers’, to use Madison’s phrase.
Sláinte & L’Chaim: The Current Worst Case Scenario
Gorsuch & Kavanaugh, young and healthy
Should Ginsburg leave the Court, and should The Republican President and Senate create a 6-3 conservative-dominated Court, that will certainly make it more difficult for a more liberal agenda to be implemented, even if the electorate shifts decisively in that direction as a generation passes and demographic and economic trends, working quietly in the background, relentlessly tilt the electoral game board away from the present conservative control.
But should that change come about and persist, such a Court could no more stand alone against it than the Federalist courts of 1801 or the New Deal-opposing Court of 1930’s.
A move, or the threat of a move, against the paper checks & balances, that was supported by the general will or tacit consent of the populace, would, following historical precedent, suffice to bring that imbalance, like the imbalances of 1801 or 1937, back into a balance better reflecting the range of views in the electorate.
Because, as recent political events in the U.S. have shown, parchment barriers are not proof against the perceived interests of either power elites (Senate Republicans intimidated by the electoral power of Trump supporters in Republican primaries) or mass movements (Tea Party, Black Lives Matter).
When All Is Said and Dunn 