LAL #009 — Court Packing: What Vision of the Public Good Makes It Necessary?

Law and Legitimacy

When the Supreme Court opened its doors in 1790, there were six (6) justices.

The number of justices changed six times until the 1860s, and has been steady at nine (9) since then. The Constitution does not set the number of justices; Congress gets to do that. The last time there was a threat to increase the number of justices was when President Franklin Delano Roosevelt threatened to propose legislation to do so in the 1930s because the Court stood in the way of the his vision of a good society—a society in which the federal government would have the right to regulate the economy as we struggled to emerge from a devastating depression. Before Congress could act, the Court changed course, known as the "switch in time that saved nine," and Roosevelt dropped his court-packing plan. The Court abandoned a doctrine of "substantive due process" that made sacrosanct such things as the right to contract, recognizing the broader imperatives of the collective good. Congressional Democrats announced a hope to increase the number of justice to thirteen. Why? What vision of the public good makes this necessary? A new theory of "substantive due process" animates the law now, one which leaves to each the liberty to define their own "conception of the meaning of the universe."

This bizarre notion is every bit as corrosive as the old untrammeled right to contract; a society without a concept of excellence cannot endure. The bonds of community are already fraying under the weight the discordant demands of identitarians. When everything is precious, nothing is valuable. The burden should be on those who want to make the Court to do what Roosevelt did: Tell us what vision of the good society requires such a change. Odds are, they can't do it. Until they do, nine will do, thank you.

--- Support this podcast: https://anchor.fm/norm-pattis/support