There is an interesting phenomenon in the media where the current republican’s attempt to confirm another Supreme Court judge is being labelled as “court packing” and the epithet of “court packing” is increasingly being used to simply refer to any attempt to appoint judges “on my side” to the bench.

Of course while those of us who are more informed knows that court packing strictly refers to increasing the number of sitting judges on the Supreme Court beyond its “usual” number, it would be worth spending some time considering why this all inclusive epithet has caught on.The thought process here is simple: your side is doing whatever it takes to appoint judges to the bench, why can’t my side do exactly the same thing? That your attempt to appoint judges to the bench goes beyond the “usual” size of the bench is a mere technicality. The number of judges is no more entrenched in the Constitution or law than is the former “rule” that you need 60 senators to confirm a federal or supreme court judge. These are mere conventions which both sides can simply dispense with at will in order to achieve their political objectives. Coming from this angle, the expanded meaning of “court packing” as simply referring to any attempt to appoint one’s own people to the bench, even if it deviates from the “usual” practice makes sense. Of course we can all debate and discuss what were the “usual” practices when it comes to judicial appointments and who deviated from the usual practice first. These are ultimately childish “He hit me first!” schoolyard arguments. The material point is that both sides accept and agree that it is fair game to do whatever it takes, within the limits of the Constitution of course, to pack the bench with their own political supporters. The usual practice of having 9 judges is no more written on tablets from Mount Sinai than is the rule of needing 60 senators to confirm supreme court judges is.

Objections against court packing as such appear rhetorically hollow as people, even senators sitting on the very judicial committee, can’t appreciate the difference between deviating from customary practice when it comes to the number of senators needed to confirm judges and deviating from customary practice when it comes to the number of judges on the bench. Again, the logic or premise here is astonishingly simple: every side is doing whatever it takes to populate the bench, even if it deviates from customary practice. That I am breaking one customary practice to get my guy is no more a crime than you breaking another one to get yours.

Of course, the arguments about court packing actually belies much more fundamental problems with the American political order as a whole, and is fundamentally a distraction from the core issue. To even argue about court packing is to fail to realise that these customs are gentlemanly agreements, not the product of rigorous partisan debates, to begin an argument about them is to dissolve their essence as agreements of goodwill.

The reality is that all those bipartisan stringent rules about judicial appointments were the product of a belief that the courts were supposed to be apolitical, they are not matters of partisan debate but merely a matter of deciding which technical expert of the law is the most competent, like appointing doctors or engineers. It was thought to involve no political component and was not part of the political arena. The Law, with a capital L, supposedly has an objective existence independent of political prejudices, intentions, wills, or desires.

However as early as the 19th century the British jurist A.V. Dicey has already observed the growing politicisation of the courts. As he notes in his sage words:

…no legislature throughout the land is more than a subordinate law-making body capable in strictness of enacting nothing but bye-laws ; the powers of the executive are again limited by the constitution ; the interpreters of the constitution are the judges. The Bench therefore can and must determine the limits to the authority both of the government and of the legislature ; its decision is without appeal ; the consequence follows that the Bench of judges is not only the guardian but also at a given moment the master of the constitution.

[…]

From the fact that the judicial Bench supports under federal institutions the whole stress of the constitution, a special danger arises lest the judiciary should be unequal to the burden laid upon them. In no country has greater skill been expended on constituting an august and impressive national tribunal than in the United States. Moreover, as already pointed out, the guardianship of the Constitution is in America confided not only to the Supreme Court but to every judge throughout the land. Still it is manifest that even the Supreme Court can hardly support the duties imposed upon it. No one can doubt that the varying decisions given in the legal-tender cases, or in the line of recent judgments of which Munn v. Illinois is a specimen, show that the most honest judges are after all only honest men, and when set to determine matters of policy and statesmanship will necessarily be swayed by political feeling and by reasons of state. But the moment that this bias becomes obvious a Court loses its moral authority, and decisions which might be justified on grounds of policy excite natural indignation and suspicion when they are seen not to be fully justified on grounds of law.

Introduction to the Study of the Law of the Constitution

As such, judicial decisions, supposedly based on mere technical tinkerings of an impersonal or indifferent legal machine, begin to appear to be decrees of political policies. The political arena has effectively entered the courts, which is now a legitimate partisan battle ground in the game of the advancement of one’s political objectives.

As judicial appointments become increasingly political partisan affairs, the impartiality of the court between the political contenders become impossible to maintain. No politician worth their salt would tolerate a court which is dominated by one’s political enemies, and liberals, unlike conservative, are not fools about the acquisition of political power.

Imagine if the democrats win not only the presidency but Congress. Imagine if they passed a gun confiscation bill and the Supreme Court strikes it down. Do you think they would just shrug their shoulders and say, oh well, we’re going to respect the SC’s decision? Of course not, they will say that this is a court “packed” by the Republicans and is unfair and biased against them, they would most certainly going to even the score to ensure that their legislative agenda, the very platform they were voted on, goes through. It would be naive in the extreme to think that they are simply going to lie down and take it.

Of course I don’t think this would be the “end” of the American political order. It would certainly change the traditional understanding of the judiciary as a sort of bipartisan politically neutral branch into a sort of European style administrative tribunal: they are just there to administer the wishes of the legislature. Of course, whether American can “evolve” and make that transition into a more European style judiciary peacefully is the million dollar question. But needless to say, we live in interesting times.