For the Washington Post, E.J. Dionne has authored a column so dishonest he must be congratulated for having outdone even his more heralded mendacious colleagues. He begins:
Some years ago, he [Justice Stephen Breyer] put forward an admirable concept he called “active liberty.” It asked judges to recognize “the principle of participatory self-government” as the heart of the Constitution’s purposes.If I believed that today’s judicial conservatives shared Breyer’s inclination toward compromise and restraint, I might agree with his warnings last week against the movement to enlarge the Supreme Court.
Dionne steals first base here. Breyer’s quote has nothing to do with compromise or restraint, and he doesn’t explain how Breyer is substantively more prudent or willing to cross over and vote with his conservative colleagues than they are with him. He simply assumes his audience will agree with his unreasoned assessment. Next, he argues that:
The Supreme Court faces a legitimacy crisis not because progressives are complaining but because of what they are complaining about: a reckless, right-wing, anti-democratic court majority, and a conservative court-packing campaign marked by the disgraceful Republican blockade against President Barack Obama’s nomination of Merrick Garland in 2016 and the unseemly rush to confirm Justice Amy Coney Barrett just before President Donald Trump’s defeat last November.
Court-packing has a longstanding definition in American politics: It’s meant to describe efforts to increase the number of judges on a court and change judicial outcomes. It does not mean “the Senate exercising its right to confirm nominees it approves of, and reject nominees it does not.” Otherwise, under the Dionne definition, could Democrats not be fairly accused of having engaged in court-packing when they stopped Robert Bork and Miguel Estrada — the latter on the basis of his race — from being seated?
As for his quibbles with the conservative bloc on the Supreme Court, Dionne brings up only two cases: Shelby County v. Holder and Citizens United v. Federal Election Commission. Incredibly, Dionne does not bring up the legal issues at stake, or the arguments made by either bloc in either case — the decisions are simply assumed to be erroneous because the Republican appointees were on the winning side and the Democrats’ were on the other. If Republicans were similarly hysterical about losing cases, the Court would have been packed — under the traditional definition — long ago.
Even with the appointment of a Court-reform commission by President Biden, it seems unlikely that Democrats will move forward with a politically unpopular Court-packing scheme, but it’s remarkable that progressive elites in academia and the media have embraced such a radical measure so quickly, and feel at liberty to play fast and loose with the truth in pursuit of political power.