by Jenna Ellis · July 6, 2018
As liberal fury over Justice Anthony Kennedy’s retirement continues to escalate, there’s a clear mindset behind the Left’s opposition tactics: “If we stop winning, we want to immediately change the rules.” In the week after Kennedy’s retirement was announced, some Democrats have revived their calls to “court pack”— increase the number of seats on the Supreme Court and fill those seats with justices sympathetic to their social agenda. This is something they also called for during the confirmation hearings for Justice Neil Gorsuch.
One Newsweek headline put it boldly and bluntly: “How Democrats can make Republicans pay for Justice Gorsuch.” We’ve seen this tactic before at times when liberals have lost. Immediately after the 2016 presidential election, liberals called for a popular vote victory rather than one based on the Electoral College.
They aren’t even trying to hide that their agenda is simply focused on stopping conservatives rather than playing fairly and genuinely arguing policy. Fair play recognizes both sides are constitutionally required to adhere to the same rules and stay within the margins of the Constitution. The Democrats’ rhetoric is a classic tactic to continue to move the goal posts and basically gerrymander favorability for one side.
What I find most incredulous about liberals’ argument is how they feign disgust at conservative originalist justices for “literal interpretation” but then their very own plan recognizes they have to interpret the Constitution literally and textually to achieve their results. In other words, they are actually using the very text of the Constitution to recognize it gives Congress power to set the number of justices on the Supreme Court, and it further gives power to the president to nominate a new justice and confirm with advice and consent of the Senate.
So why the outrage when conservatives are poised to have a majority on the Supreme Court? That’s actually a good thing for everyone. In the framework of the Supreme Court, conservatism acknowledges the only power the Constitution grants to the judiciary is the power to fairly and impartially apply the law. No side should be favored and certainly no policy preferences should be legislated from the bench.
And Democrats know this, they just admit it only when they want to and then deny it when they don’t like the rules. So when it works in their favor, liberals read the Constitution as plainly giving a particular power to a government branch or agent. When it doesn’t work to advance their agenda, they claim the Constitution is “fluid” and “outdated” or that all kinds of stuff “emanates from the vast penumbra.”
Textual interpretation isn’t some magical divination that originalists use to advance a particular policy preference. No attorney worth his or her bar license would, for example, object in court to a judge interpreting the terms of a custody arrangement that says “father has children Christmas 2018” to mean that a dad gets to have his kids on December 25. That’s plain in the textual terms of the legal document. Similarly, the Constitution plainly gives specific, limited powers to the federal government.
And the most ironic part of Democrats’ idea to court pack? Republicans could accomplish this right now if they wanted to, with the majority in both houses of Congress and a Republican president. So why aren’t we hearing this idea from the GOP? Perhaps because true conservatives are genuinely willing to respect and uphold the Constitution and rule of law.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution. She can be reached at firstname.lastname@example.org.