The Corner

Law & the Courts

Move Fast and Break the Judiciary

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For a long time, “move fast and break things” was the mantra of Facebook. It has also become the motto of the current “reckoning.” For this movement of ideological cleansing, every institution of the U.S. government and American society is tainted and so must be purged. The nuclear option on the filibuster must be detonated, which in turn means blowing up the institutional character of the Senate. Now, this revolutionary ethos sets its sights on the courts. A Court-packing proposal unveiled today by leading congressional Democrats — including House Judiciary chair Jerry Nadler and Massachusetts senator Ed Markey — would add four seats to the United States Supreme Court. After the chaos of the Trump administration, many of his opponents want to double down on the project of political disruption.

Partisan polarization feeds a willingness to break norms and blow up institutional capital. Ed Markey’s career represents these polarizing tendencies — and the cognitive whiplash they can inspire. In January 2021, he said that it was “seditious” to object to the counting of a state’s electoral votes; in January 2005, he himself voted to object to the counting of Ohio’s electoral votes.

Whether or not this Court-packing proposal succeeds is partly beside the point. Republican challenges to the counting of the electoral votes in January 2021 were mostly messaging votes (there was no real chance of throwing the election to the House), but that doesn’t mean those challenges were a good idea. A functioning democracy requires institutional capital, and rabid ideology and factional warfare attack that capital. And even a Court-packing proposal waiting in the wings can act as an implicit threat: Nice judicial branch you have there. Shame if something happened to it . . . 

The fact that a Court-packing proposal has even been floated gives support to the claims by Joe Manchin, Kyrsten Sinema, and others that restraining factional passions is especially important now and that the filibuster plays an important role in preserving constitutional stability. In his 2005 speech denouncing the nuclear option, then-Senator Joe Biden argued that court-packing would “lead inevitably to autocratic dominance” and that preserving the Senate as an institution meant protecting the filibuster. Nuking the filibuster buys a ticket on the train of institutional destruction, and the cultural revolutions of recent years indicate that, once you’ve gotten on that ride, it’s incredibly hard to hop off before it goes hurtling over the cliff.

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