16th April 2021
Over in the United States there is a discussion about ‘court-packing’.
In particular, the question is about the new president should seek to nominate additional justices to the supreme court.
Some liberals and progressives are aggrieved at the current composition of the court.
A number of justices were nominated by Republican presidents who had not won a majority of the popular vote.
The Republican majority in the senate delayed one vote on a nomination and then rushed through another, with no regard to political consistency.
From a liberal and progressive perspective, these grievances are well-made.
From a constitutionalist perspective, there was nothing unconstitutional in a (Republican) president nominating new justices and a (Republican) senate deciding when to have the votes.
Both the delayed vote and the rushed confirmation were politically distasteful and discrediting.
But they were not unconstitutional.
Conservatives, however, should not take too much heart from this – as there is also nothing inherently unconstitutional about a president seeking to add justices.
This is because the constitution (though not federal legislation) is silent on the maximum number of supreme court justices.
If the Republican shenanigans about the appointment of supreme court justices was within the scope of the constitution, so may be any attempt to add new justices.
A more fundamental question is about the role of the supreme court.
On the issue of abortion, for example, liberals and progressives have long depended on supreme court jurisprudence, especially Roe v Wade.
Yet it would be better and more sustainable to have fundamental rights sets out in legislation, rather than on the fragile basis of supreme court decisions.
A conservative majority on the supreme court is only as illiberal as the questions that will come before it.
If liberal and progressive policies are promoted and implemented by the route of legislation rather than litigation, then a conservative majority on the supreme court is less of a concern.
Liberal and progressive policies are always better secured by means of legislation rather than by court rulings.
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