Packing the Supreme Court  by Tom Reynolds

With Amy Coney Barrett’s appointment to the Supreme Court (SCOTUS), there is talk amongst Democrats about “packing” SCOTUS.  Biden’s silence on the subject confirms that, if elected President, he will probably go along with this idea.  The purpose behind “packing” is to create more justice positions and fill them with anti 2A liberals in order to gain a liberal political majority on SCOTUS.  They may go beyond that and increase the number of other federal judges (over 600 now) to add even more anti 2A judges at all levels

The Founding Fathers created two branches of government that are political and representative in nature: Congress and the Presidency.  The third branch of government, Judicial, is supposed to be the non-political, non-representative branch.  Its’ role is to make impartial non-political decisions based solely on the rule of law, as written in the Constitution or passed by Congress.  Being non-political gives the Judicial branch a moral authority as well as a Constitutional authority. 

To insulate justices from political pressures and keep decisions non-political, the only way to remove a justice is for Congress to impeach that justice.  Congress has been very loath to impeach judges since that would open the door to Congress threatening impeachment in order to get a political judgement. While Congress could legally do it, political impeachments would destroy SCOTUS’ moral authority. Only fifteen federal judges have been impeached in the entire history of the USA. Congress has, until now, usually recognized the need for the Judiciary’s moral authority by not using its impeachment power to influence the judiciary.

Supreme Court decisions are obeyed by the other two branches and by American citizens because those decisions are, theoretically, based on non-political judgements.  Americans – and especially legal gun owners - want to obey the law.  If SCOTUS reflected the whims of a temporary majority, rather than upholding the principles of law, it would soon lose its moral authority. If the court is packed, it becomes just another instrument of partisan politics and loses its credibility as the defender of our fundamental, constitutional values.

The main difference between justices is in the way they interpret the Constitution; some are Strict Constructionists and some are Loose Constructionists.  Political definitions are flexible but, in general, Strict Constructionists believe the Constitution and laws passed under the Constitution mean what the laws meant when passed.  They do not believe in legislating from the bench since the ability to pass laws belongs only to Congress, which is elected by the citizens.  Loose Constructionists believe the law can be changed by judges to fit current needs - as the unelected judge sees those needs.  That is not a democracy!  The issue should only be the Constitution and not a judge’s feelings.

Democrats justify court packing to “even the playing field”.  With SCOTUS divided 5 to 3 between Strict Constructionists and Loose Constructionists, (no one knows what John Roberts is), would Democrats add only 2 more justices to even the playing field or leap at the opportunity to tilt the playing field in their favor by appointing more than 2?  Everything in Democrats’ recent history indicates they would do the latter!

Some Democrats justify court packing if Obamacare is struck down because millions of Americans are on it.  But the number of people on a plan does not and should not affect its constitutional status.  It’s either constitutional or it’s not.  

Stare Decisis is a legal term that gives great weight to previous decisions when making current decisions on the same subject.  If the law is constantly changing with every change in political power, the law will not be viewed as impartial and loses its moral authority.  SCOTUS has consisted of 9 justices for over 150 years, through both Republican and Democrat political majorities, and only Franklin Roosevelt tried to change that for political purposes.  That consistency has helped preserve SCOTUS’ position as the final arbiter.  Shouldn’t Congress apply Stare Decisis to its own decisions on SCOTUS, in order to keep SCOTUS’ moral authority intact?  

For 2A supporters, a “packed” SCOTUS would be a disaster as the Democrat Party and Joe Biden and Kamala Harris have consistently been anti 2A and you can be sure they would appoint like-minded, anti 2A judges to the court.  Our temporary opening to strengthen 2A would close in a flash.

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