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Law & the Courts

Democrats Dishonor RBG’s Wishes with Court-Packing Drive

On the menu today: Congressional Democrats make it official, introducing legislation to expand the Supreme Court to 13 justices, presumably establishing a 7–6 “living Constitution” progressive majority and disregarding the warnings from Ruth Bader Ginsburg, Stephen Breyer, and a farsighted former senator; and a look at the absolutely disastrous COVID-19 response in Russia that the rest of the world has largely ignored.

Congressional Democrats: Full Speed Ahead on Court-Packing!

House and Senate Democratic leaders, including House Judiciary Committee chairman Jerry Nadler of New York, have introduced legislation to expand the Supreme Court to 13 justices, an explicit embrace of court-packing.

I just cannot believe that House and Senate Democrats would dishonor the wishes of the late Ruth Bader Ginsburg like this.

“Nine seems to be a good number. It’s been that way for a long time,” Ginsburg said in an interview with NPR’s Nina Totenberg back in July 2019. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court. If anything would make the court look partisan, it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

That is, in fact, exactly what’s happening and what is being said.

Here’s where Ginsburg was particularly wise, even if you disagree with many of her opinions on the bench. The entire system of government in the United States is dependent upon on the consent of the governed — particularly the judicial branch:

“The court has no troops at its command, doesn’t have the power of the purse, and yet time and again, when the courts say something, people accept it.”

She recalled Bush v. Gore, the controversial case in which the Supreme Court stopped a Florida recount in the 2000 presidential election.

“I dissented from that decision,” Ginsburg said. “I thought it was unwise. A lot of people disagreed with it. And yet the day after the court rendered its decision, there were no riots in the streets. People adjusted to it. And life went on.”

When the court rules a certain way, why do Americans obey the ruling? Because we’ve all agreed — or at least, almost all of us have agreed — that under our constitutional system, the Supreme Court has the final say. If a majority of justices determine that a particular law is unconstitutional, then it is null and void, although Congress can start over again and attempt to pass a revised version that is consistent with the Constitution.

It didn’t have to turn out this way. Marbury vs. Madison in 1803 sorted out that the Congress did not have power to modify the Constitution through regular legislation because the supremacy clause places the Constitution before the laws, and established the principle of judicial review, i.e., the Court’s power to declare a law unconstitutional. For what it’s worth, some bright and not-crank legal scholars still disagree with the notion of “judicial supremacy,” and contend “this very lofty conception of [the Court’s] authority has largely arisen over the past several decades.” But for now, based upon precedent, if the Supreme Court says a law is unconstitutional, that’s it. The other branches of government do not have the option of ignoring or overruling their decisions. There’s no other court to file another appeal.

Recent events make clear it is possible that someday we could have a president or legislative majority who does not accept the Constitutional authority of the Court, who recognizes that the Supreme Court doesn’t have an army to enforce its rulings through physical force, and who could someday declare, “I reject this ruling as illegitimate, and will ignore it. The Supreme Court has no way to make me obey.”

If that ever comes to pass, the ability to enforce constitutional checks and balances will depend upon that other branch of government — and the American people — declaring, “No, you don’t have that power. You’re abusing the power and authority of your office, and you’ve violated your oath to preserve, protect, and defend the Constitution.” And for that to happen, the Supreme Court has to be widely trusted and respected — maybe not universally, but enough of the public has to see the Court as wise and measured, not just another bunch of political hacks on a power trip.

The Supreme Court’s job is not to please everybody. Plenty of conservatives were outraged, and remain outraged, by Roe v. Wade. Plenty of liberals were outraged, and remain outraged, by District of Columbia v. Heller. The fact that the Court reached a decision you disagree with is not evidence that the judicial branch is “broken.” Charlie Cooke has laid out how the rallying cry of the sore loser is that “the system is broken,” and how many Americans conclude that any result they don’t like must be the work of a nefarious hidden conspiracy.

But if you don’t believe Ginsburg, listen to Justice Stephen Breyer:

I hope and expect that the court will retain its authority, an authority that my stories have shown was hard won. But that authority, like the rule of law, depends on trust– a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust. There is no shortcut. Trust in the courts, without which our system cannot function. requires knowledge. It requires understanding. It requires engagement. In a word, it requires work. Work on the part of all citizens. And we must undertake that work together.”

(“Too many people aren’t willing to do the work” sums up a lot of problems in this country today.)

There’s an interesting book called The Presidents Club that describes the sometimes-surprising friendships and camaraderie between and among former presidents. Old foes from past presidential races realize that their predecessors weren’t so foolish as they looked before they stepped into the job, and those old foes are among the only people who truly understand the pressures and difficulties of the position. Even if you couldn’t stand the guy a few years ago, he understands you want to do your best to lead the country, and you now understand him and his decisions better. I suspect there’s a similar phenomenon among Supreme Court justices.

Antonin Scalia and Ginsburg disagreed on a lot, but in addition to their friendship, they both had an interest in ensuring the Supreme Court was a widely respected and trusted institution among the American people. Once you join an institution — particularly one with lifetime membership — you have a strong incentive to protect and enhance its reputation. Sure, Ginsburg and Breyer would have liked to see the Court move in a more leftward direction, but in their eyes, it’s not worth it if the Court loses the public’s faith along the way.

Perhaps for the final word of court-packing, we should heed the appraisal of a wise senator, who assessed the damage from Franklin Roosevelt’s attempt to do this back in the 1930s:

President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the court. It was totally within his right to do that. He violated no law. He was legalistically, absolutely correct. But it was a bonehead idea. It was a terrible, terrible mistake to make. And it put in question, if for an entire decade, the independence of the most significant body, including the Congress in my view, the most significant body, in this country, the Supreme Court of the United States of America.

That senator, of course, was Joe Biden.

Meanwhile, over in Russia . . .

Continuing the comparison of the imagined-a-year-ago post-pandemic world of Hunting Four Horsemen to the gradually getting-past-the-pandemic world of today:

By April 15, Katrina and the gang have run across a team of Russian mercenaries in Salzburg, Austria, chasing the same rumors of a scientist calling himself “Hell-Summoner” who promises a genetically-engineered virus that can target people with a particular genetic sequence – from a precise as one individual, to as large as whole ethnic groups.

Katrina stared at him with withering suspicion. “Your way of protecting the world, huh? Grab the guy, and keep his virus- engineering knowledge for yourselves?”

“I am certain your mission is the same,” Sergei replied. “A weapon this dangerous and terrible cannot be allowed to fall into the hands of the one government in the world that used atomic weapons in war. The world will be endangered until this virus is in safely in the responsible, peaceable, benevolent hands of Vladimir Putin.”

Alec scoffed. “Crimea, Georgia, the Baltics, and Ukraine could not be reached for comment.”

Katrina shook her head in exasperation. “In a better world, you and I would be working together. You would think the way both our countries suffered from the virus would have taught us a hard lesson about the need to cooperate in response to threat like this. But it’s your move, comrade. Some of my colleagues always expect the worst of you. This is your chance to prove them wrong.”

In the real world of today, the official COVID-19 death toll in Russia is 104,398 — ranking seventh in the world, according to the official numbers from governments around the world, free and not free. But as the New York Times reported this weekend, the official death toll probably dramatically understates the number of lives lost to the virus:

The official Russian coronavirus death toll of 102,649 as of Saturday — reported on state television and to the World Health Organization — is far lower, when adjusted for the population, than that of United States and most of Western Europe.

However, a far different story is told by the official statistics agency Rosstat, which tallies deaths from all causes. Russia saw a jump of 360,000 deaths above normal from last April through December, according to a Times analysis of historical data. Rosstat figures for January and February of this year show that the number is now well above 400,000.

In the United States, with more than twice the population of Russia, such “excess deaths” since the start of the pandemic have numbered about 574,000. By that measure, which many demographers see as the most accurate way to assess the virus’s overall toll, the pandemic killed about one in every 400 people in Russia, compared with one in every 600 in the United States.

Four-hundred thousand dead from COVID-19 would make Russia’s death toll the second highest in the world. In The SpectatorOwen Matthews notes that Russia’s response was as spectacularly wrongheaded as China’s at times:

Russia also took a leaf from China’s book in arresting whistleblowing doctors such as Anastasia Vasilyeva, who had publicly called for healthcare staff not to work without PPE equipment and raised millions of rubles from the public to provide it. Dr Vasilyeva was arrested in April last year as she delivered a carload of PPE gear to a rural hospital and was charged — apparently without irony — with breaching lockdown regulations.

He also notes that a recent poll found “close to two out of three Russians believe that the coronavirus is a man-made biological weapon and less than a third are willing to get vaccinated. . . .

The U.S. government earned a lot of fair criticism of its management of the coronavirus pandemic. But the stumbling response of the U.S. government — and the British, and most of Western Europe, and the better-at-containment, slower-at-vaccination allies in Asia — look like a well-oiled machine compared to the responses of authoritarian regimes around the world. Because authoritarian regimes are better at coverups, intimidation, and suppressing information, the catastrophic responses of Russia and Iran are largely ignored, and somehow China is perceived as a role model in far too many Western circles. A recurring theme of Hunting Four Horsemen is that the pandemic has left the world’s worst and most bloodthirsty regimes even more dangerous than before — and that most citizens in the West haven’t noticed.

ADDENDUM: Over at, I sort through my thoughts about what the New York Jets should do with their second first-round draft pick in flowchart form which . . . looks an awful lot like an endless circle.


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