Morgan Harper’s court packing is bad for the country

Senate candidate and Columbus attorney Morgan Harper wants to expand the Supreme Court beyond nine by adding multiple liberal justices, a move that would further politicize the institution meant to be an impartial arbiter of the Constitution and federal law. This partisan manipulation of the court would have a destabilizing effect: increasing polarization and resentment that further divides our country and paves the way for future escalation from the right.

Harper’s reasons for expanding the court

On her issues page, she defends reproductive rights saying “we cannot let an ultra-conservative Supreme Court take away our fundamental right to choose.” She says LGBTQ rights “cannot be overturned by an ultra-conservative Supreme Court”. Her solution: “the Supreme Court should be expanded to restore balance after Trump stole seats to push the Court far right.”

Some Democrats have offered the paper thin excuse that 13 Circuit Courts should have 13 Justices, but at least Harper is honest about her reasons for expanding the court: she wants her party to add enough new justices to gain a liberal majority that aligns with her values. However, the Supreme Court is supposed to interpret the Constitution and the law as written, regardless of their personal feelings or which President appointed them. It seems Harper has lost hope in that ideal.

Court expansion is legal, but is it good for the country?

She’s right that changing the size of the Supreme Court is Constitutionally allowed and has been done several times in US history. However, the number of justices has been set to nine since 1869, over 150 years of stability. Running over that norm could create a backlash more threatening to civil rights than this conservative court is.

Republicans did force a year-long vacancy in 2016, but it was not officially shrunk by Congress. That vacancy could have been filled by Hillary Clinton if she had won the presidency, although at least 3 Senate Republicans threatened to block appointments throughout her entire term as well. If Harper thinks that’s bad, imagine how she’d feel if they had just dropped in 4 brand new conservative Justices instead.

Payback for Republicans blocking Obama’s nominee

It’s true that Senate Republicans cheated to get one conservative Supreme Court seat by blocking the appointment of Obama-nominated Merrick Garland in 2016, and then filling that seat with Neil Gorsuch under Trump the following year. Their justification for blocking Garland was that 232 days before a presidential election was too close, but then hypocritically allowed the nomination and appointment of Amy Coney Barrett just 35 days before the 2020 election, the closest in US history. Our own outgoing Senator Rob Portman supported blocking Garland’s nomination, saying, “We should let the people decide. This is not about the person, it’s about the principle”, but then ignored that principal by supporting Coney Barrett’s appointment without hesitation.

This maneuver is Constitutional, because Article II Section 2 says “with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court”. However, their deceitful “principal” was certainly not fair nor impartial.

An eye for an eye?

As bad as that was, one Supreme Court seat was “stolen”, not multiple seats as Harper says. Coney Barrett was ultimately nominated over 100 days before the end of Trump’s term, within his right to do so, and it mainly feels unfair because it contradicted the false pretenses of the seat they cheated in 2016. The norm of holding a vacancy open during an election was suggested by Joe Biden in 1992, but was not established until Republicans used it in their favor in 2016, only to brashly disregard it the very next election. The norm was a lie that stole 1 seat, not 2.

Note that McConnell also blocked 71% of Obama’s federal court judges and removed a filibuster rule to push through Trump’s nominees. However, this was only after Democrats removed the filibuster for other court appointments, which was a reaction to McConnell stalling tactics, which was after Democrats stalled appointments during George W. Bush’s presidency. The problem with escalating feuds is that you can always go back one more step to say “they started it” to justify your own side’s unfair actions. That’s why this site discourages cheating on both sides.

Although keeping a vacancy open is cheating, directly adding a new justice is worse, and immediately adding 4 new justices as proposed by Democrats is much worse. No matter which party does it, cheating is cheating.

Harper disagrees with characterizing it as “court packing”, calling it “expanding”, “restoring balance” or “unpacking” instead. However, stealing up to 4 new justices is multiple times worse than McConnell’s 1 stolen seat, so it literally is packing the court with liberal justices. Furthermore, there’s nothing stopping Republicans from “unpacking” the court again from their perspective by adding multiple new pro-life justices when they inevitably regain the majority.

Counter-reaction to Texas 6-week abortion ban

Her recent push for court packing came after the Supreme Court decided 5-4 not to block a Texas 6-week abortion, determined by the one seat that Republicans stole. Merrick Garland, who is now US Attorney General, said, “[Texas Senate Bill 8] is clearly unconstitutional under longstanding Supreme Court precedent.” If Senate Republicans hadn’t blocked Garland’s appointment, that decision would have gone the other way.

However, the court didn’t overturn the Roe vs Wade or PP vs Casey precedents. In fact, they said explicitly it was not a ruling on the constitutionality of the ban, but merely declined to provide an emergency relief due to Texas’ “unprecedented statutory scheme” and “novel questions”. That’s because the Texas law uses citizen enforcement mechanisms which need to be properly considered in a full hearing. Maybe it will be better in the long run to have proper deliberation of that, rather than a rushed, emergency order that leaves an ambiguous precedent. Although, this ban does seem to violate precedent regardless of how it’s enforced, and AG Garland has already filed a lawsuit challenging it. That case may come before the Supreme Court for full consideration, and it’s feasible that the Texas ban could ultimately be struck down.

It’s unprincipled to react to a court ruling you don’t agree with by demanding that new justices be added until it agrees with you. Legal abortion has been precedent for about 50 years now, but pro-life advocates didn’t expand the court with new pro-life justices. Instead they ran pro-life candidates and worked within the system. Similarly, we should not expand the court with pro-choice justices now either.

Will the “far-right, ultra-conservative” court overturn precedent?

On 7/2/21, 2 out of 3 Trump appointed Justices, Brett Kavanaugh and Amy Coney Barrett, allowed the State of Washington to penalize a florist for refusing service to a same-sex couple, suggesting some amount of impartial application of anti-discrimination laws, rather than an anti-LGBT upheaval by the court. It is yet to be seen if they would actually reverse abortion or same-sex marriage precedents.

It’s a distortion of the separation of powers to expect the makeup of the court to closely reflect the current population’s partisan preferences, or to rely too much on court precedent to reflect the will of the people at any given time. The courts should uphold the Constitution and the law as written. It is up to Legislatures and Congress to represent the will of the people instead.

The legislative approach to represent the people

The right way to address reproductive rights to reflect the will of the American people is through representative democracy: enacting laws or by Constitutional amendment. The majority of Americans support legal abortion: 59% according to Pew Research Center. That includes 55% of Catholics, 44% of Protestants and 35% of Republicans. Note that the exact moment when a fetus becomes a full human being is an unsettled philosophical question, which cannot be answered by the Constitution.

Harper supports the Women’s Health Protection Act, which was just passed by the House of Representations and would protect pre-viability abortion access from State restrictions without having to rely solely on court precedent. That’s how we represent the will of the people in America; by proposing a bill and letting our representatives vote on it on our behalf. Of course this requires a functioning democracy and non-gerrymandered districts, which is a whole other subject that we must work to defend.

However, minority opinions should never be disregarded out of hand. The belief that abortion should be illegal in all or most cases is a minority opinion nationwide and in 32 states, but it is a majority opinion in 11 states, according to Pew Research. Arkansas has a 60% pro-life majority, and it would be an overreach for the national majority to force doctors in that state to perform late-term abortions. On the other hand, Massachusetts has a 74% pro-choice majority, and it would also be an overreach for a national minority to prevent a 13 year old victim of rape in that state from ending his forced impregnation in its early stages. Ohio is equally split on the question, 48% want it mostly legal, while 47% want it illegal in all or most cases. Both pro-life and pro-choice sentiment should be carefully considered in our legislation. That’s why we should not pack pro-choice nor pro-life Justices onto the court. Instead, we should appoint well-qualified, impartial justices when vacancies arise.

Impartial court reform?

We can imagine a less partisan way to expand the court. For example, we could add new Justices 1 per 4-year term over the next 4 presidential terms starting January 20, 2025. Then we can say it was not done for partisan reasons, unlike Senator Markey’s bill that would make 4 new appointments immediately available to Joe Biden. However, this would also make the court even more political than it’s supposed to be, essentially making a Judicial candidate the third running mate on a presidential ticket. Furthermore, an opportunist majority could find ways to exploit such an incremental expansion, by blocking nominations for a term or changing the rules to fill the remaining new seats immediately. That’s why it’s probably best to just leave the size of the court alone for another 150 years.

An alternative reform is 18 year term limits for the Supreme Court, staggered so that every president appoints a Justice every 2 years, as introduced by California Congressman Ro Khanna last year. This could encourage nominating a more experienced Judge over someone younger and avoid the high-stakes decision of aging Justices on when to retire.

Nina Turner also wants to pack the court

Congressional candidate Nina Turner also pushed for court packing, in 2020 saying, “Biden should make it clear that he will fight back by expanding the court if he wins.” Since then she has characterized the move as protecting democracy:

She makes the argument that expanding the court to 13 Justices for 13 circuits would prevent the GOP from adding even more of their own later, but it’s naive to think that Republicans wouldn’t just invent a justification like 2 Justices per circuit in order to retaliate.

She takes her partisan approach even further by demanding that Trump-appointed judges all be impeached, for saying that Roe v Wade was settled law during their hearings before later overturning it.

In case packing in 4 liberal Justices isn’t enough to divide our country, Nina Turner is here to send us over the edge by removing 3 conservative Justices as well.

Nina Turner twice lost her primary bid for OH-11 to Shontel Brown. Brown has not cosponsored the bill to expand the court. Although she has criticized the court’s recent decisions, she has called for legislation rather than court packing.

Other candidates on court packing

Self-described “anti-establishment” Senate candidate Josh Mandel equates abortion with murder and calls for Roe vs Wade to be overturned. He has said “the time has passed for civility in DC. Now is the time for FIGHTERS” and has promised to “blow up the swamp” in Washington. Since he promotes the Big Lie and says he would have overturned Biden’s election victory, there’s little hope that he would show good faith restraint in the Senate regarding judicial appointments. The Keep Nine org lists him as a supporter.

Harper’s Senate primary rival Representative Tim Ryan said last year, “No, I think the Supreme Court should stay at nine. … To think that we’re going to be able to change the size of the Supreme Court or get rid of the Electoral College or any of these other issues I think is moving us away from the real arguments that can help us win the elections.” Ryan also characterized Republican appointments as “court packing”:

Senator Sherrod Brown has accused McConnell of “want[ing] to pack the court in a way that will put another corporate special interest judge on the court who always rules for corporations over workers.” He told Politico he’s “focused on COVID and infrastructure” rather than expanding the court. In an interview with Dan Rather, he wouldn’t answer if he would support court expansion, but instead blamed McConnell for packing the court and said he “will do whatever it takes next year to preserve the Affordable Care Act and preserve Roe v. Wade.”

Senator Rob Portman said, “The attempt to turn the Supreme Court of the United States into another legislative branch should be soundly rejected by the American people, no matter their political persuasion.” He supports a new Constitutional Amendment which simply says “The Supreme Court of the United States shall be composed of nine justices.” Portman claims it would avoid both expansion and contraction, but this amendment would do nothing to prevent obstruction of appointments which Portman supported in 2016. The primary sponsor of the Amendment resolution is Senator Ted Cruz, who vowed to block Hillary Clinton’s appointments indefinitely if she became president, which could have effectively contracted the court for several years.

Governor DeWine also supports the 9 Justice amendment, along with Attorney General Dave Yost. According to the Keep Nine organization, almost all of Ohio’s Republican Congressional and statewide officials and candidates support it.

Nine is fine

There is some logic to tit-for-tat fairness: what one party may do, so may the other. A Democratic Senate would be completely justified in blocking a Republican president’s Supreme Court nomination in an election year, or blocking their federal court appointments just like McConnell did. However, when retribution escalates, the result is not balance but perpetual one-upmanship. If Democrats add 4 new justices, there’s nothing to stop Republicans from raising the stakes with 6 or 8 new justices. Let’s just keep it at nine.

However, Senator McConnell has already vowed to block Biden’s nominations if they regain the Senate in the midterm, in order to steal another SCOTUS seat if they retake the Presidency in 2024. We can hardly blame Democrats for responding with their own threats, and not binding themselves to ideals of fairness that the other side won’t abide. However, somebody has to stand up to both sides to stop with the threats and the cheats, to instead act in good faith, fill seats when vacant and leave the number of Justices alone.

Harper loses primary

5/3/22 Update: Morgan Harper lost the Democratic Senate primary election to Tim Ryan. This comes just a day after a Supreme Court decision draft was leaked to overturn Roe v Wade and allow states to ban abortions, one of Harper’s main issues. She again called to expand the court:

On 6/24/22, federal abortion rights protections were officially struck down by the Supreme Court.

References

If reproductive choice matters in Ohio, I am the right U.S. Senate candidate at the right time: Morgan Harper

Morgan Harper: Radicalized Supreme Court’s abortion rules reason to expand the court