While I was writing these points, Nancy Pelosi did a patriotic thing! A peacemaking and constitutionalist thing. If she did so at President Biden’s request, then he did also. She indicated she would not bring the court-packing bill unveiled by several Dem reps this morning to a vote. She doesn’t entirely and finally remove the idea from the table, promising to wait until after the presidential commission has spoken. So maybe it was merely a tactical thing. A matter of timing.
During the hours before this move, however, these were my immediate reactions to learning about the bill:
1.) If the court-packing bill is not quickly opposed by more than half the Dem reps, never again pretend, even for the sake of politeness, to take any Democrat seriously when they lament polarization or speak of the need for American unity. If they do not squelch this quick, they will be letting their leaders rip up the social contract in our faces.
[Thank you, Nancy Pelosi. For now, what I wrote there must be withdrawn.]
2.) Court-packing is constitutional. The number of justices is not set in Article III.
3.) However, if passed, this law will be the most egregious violation of the constitutional order’s customary rules since the late 19th-century. Given today’s context, this packing law would be a worse violation of that order than the infamous one FDR attempted to push in 1937.
4.) Do not approach this in a spirit of despairing anger. Steeliness and determination are what is needed. (Do not say “we are now at war!” That is what they want you to say, and it is not true. War has a very specific definition, and any civil war today can only occur by means of a revolution initiating it.) Actually, this court-packing move is a sign of their desperation. Right is with us. Public opinion is with us.
5.) Sternly demand pledges of retaliation from every GOP politician. They add four justices when they have Congress and Prez, then everyone in the GOP promises they will add eight whenever they next have Congress and Prez.
6.) GOP reps should also draw up a pledge to retaliate at a lower level even if they simply try to court-pack: say, if 75% or more of the Democrat reps vote for this court-packing bill, but don’t get it through, we still retaliate whenever we have the chance, in this case with 1 or 2 extra justices. We are done playing this game of only one-side gets to roll the dice to see if it can get away with a major change to the constitutional order’s rules. They try to change the rules to their benefit and barely fail, then we do our best, first chance we get, to make an equivalent change that benefits us, and we make sure we win. We will retaliate not from vengeance-desire nor out of tactical glee, but from a sobered judgment that this has become the only way to defend the constitutional order.
7.) If they do pass it, also demand and join massive national-strike type actions of bring-the-nation-to-a-halt civil-disobedience. No more business as usual. Plainly say to your fellow-citizens: you have broken the social contract.
[So nice to be able to instead say to them, for the time being: “Perhaps Speaker Pelosi was thinking of those words of Jesus, ‘Blessed are the peacemakers.’” I see no contradiction in my cherishing those words, and yet also preparing conservatives to support the kinds of retaliation moves I sketch above if worst were to come to worst.]
We really need to just start a list of the Constitution-killer bills this Congress has proposed this term. This court packing bill and HR 1 federalizing elections are up there.
I doubt even the people proposing these bills take them seriously- but they are serious. These are real bills being proposed in Congress, not some off the wall opinion from the 9th circuit you know the Supreme Court will overturn
C.J., very good idea!
Anyone who can write something sensible about HR1, or bring together some of the good writing on this--I'd be grateful.