Wednesday Morning Rant

Whenever the Supreme Court has one of its fairly rare good rulings - and especially when that ruling isn't part of an obvious horse trade behind the scenes (e.g., "we'll give you your Title IX reforms in exchange for birthright citizenship") - the Left never hesitates to propose "packing the Court" and adding a couple of more communist justices to the bench so that such unusual defeats become impossible. The threat has also worked when it's been credible. The "switch in time that saved nine" cleared the decks for Roosevelt's New Deal after he legitimately threatened to pack the court. Once exclusively the domain of the Left, non-Leftists also sometimes call for packing the Court because of how beholden the Court is to the Leftist powers that be and ensuring that they never become the powers that were.

The non-Left increasingly see the same tactic as viable: add a couple of non-communist justices to the bench so that the non-left more often gets what it wants out of the Court. This is a flawed strategy. If there were a way for the non-Left to so pack the Court, it would play into the Left's hands. How many "good" - on paper, anyway - justices have been seated in the past 25 years, only for them to be more or less immediately exposed as wolves in sheep's clothing? Without being able to guarantee that the extra two or three justices would be Clarence Thomases, the risk outweighs the reward. That style of Court packing is likely to backfire.

So, if this upcoming election goes well, we ought to consider packing the Court - not like the Left proposes it, but in a different way and with a different purpose. The traditional notion of packing the Court so as to ensure - or improve the odds of - victory for your side is too timid. Better to obviate and humiliate the Court than try to co-opt it by padding the numbers. So think big. Don't add a few justices. Add a lot of justices and adapt the quorum rules to grind it to a halt. Make the Court far too unmaneuverable to avoid gridlock - and too absurd to command respect.

Grow the number of justices not to 13 or 17 or 19, but to 100,000. Build them a stadium to work in, and they can travel around to major college football stadiums for trials until it's constructed. With the new count would come new quorum rules, as those are also set by legislation. Right now, there are nine justices, with six required for quorum. Make the new quorum requirement 75,000 justices. Without at least that many justices confirmed and present, no cases can be heard. The odds of SCOTUS hearing any case again under such a scenario are fairly slim. Since such a large number would make seating good justices impossible, it would also simplify confirmation. Nominate anyone. Take a page out of Caligula's book and put a horse on the bench. It just wouldn't matter anymore.

Even if the new mega-SCOTUS could be filled and enough of them show up to form the quorum, it would be a circus. That many people in a single deliberative body could never reach a meaningful decision. It would be arbitrary and absurd. It's arbitrary and absurd now, of course, but there will be no way to hide that in the new Supreme Circus of the United States. Trials would take forever. The grandstanding would be continuous. The preparation materials and limitless variety of opinions would keep International Paper and Georgia-Pacific farting through silk until the end of time. The new trees that would need to be planted to overcome the sudden run on copy paper would even keep the environmentalists happy!

It would also show very clearly just how valuable the SCOTUS is, and effectively eliminate the consequences of ignoring it. Who cares what 100,000 circus monkeys think? It could rule any way it wanted and it would be ignored. It would immediately lose any gravitas it has and would go from Elite Institution of Very Serious and Thoughtful Men to the side show it is in all but reputation. This would, of course, open the doors for any and all bad behavior whereas today it opens the doors only for some bad behavior that continues the game, but so be it. With communism resurgent among the youth and in our urban hives, and with the Left no longer pretending that law or righteousness matter, why not?

If the game is now pure will to power, then cut it off at the knees. Reduce the Court - and its power - not by shrinking it, but by growing it to absurdity.

posted by Joe Mannix at 11:00 AM

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