The unanswered question in the current US candidate debates so far, - despite Senate Minority Leader Chuck Schumer saying ‘everything is on the table’- is Supreme Court packing. The issue is of some moment. Here is why.

Former US prosecutor, Andrew McCarthy, in the National Review (8 October 2020) has this noteworthy article: https://www.nationalreview.com...
Court packing is to ensure a majority of votes in Supreme Court cases. The Republican appointments are looking to form a majority. But Judges do not always vote as expected. Justices Gorsuch and Kavanagh have not always done so and neither should we expect them to do so. Seldom can you get a group of lawyers to all agree on something.

Presently, following the death of Ruth Bader Ginsburg, who incidentally was against Court packing, there is the prospect of Mr Trump’s nominee Amy Coney Barret being appointed, a Catholic, a conservative, an originalist and textualism (that cases and the law has to be construed in accordance with the words used Constitution) the tradition of the late Justice Scalia for whom she had clerked for.

The originalist and textualist approach thwarts the creative policy ‘judicial legislation0 approach favoured by the Democrats. On clear example of that is the abortion case of Roe v. Wade, 410 U.S. 113 (1973). Mrs Coney-Barret’s religious faith is seen by her detractors to conflict with the decision. Abortion entitlement is part of the Democrat mantra. Democrats see Roe v Wade under threat.

The Scalia position, to clarify, has this to say. If a piece of social policy of substantive change and import is to be implemented as law, it is not for the Supreme Court to do so, but for Congress (the House of Representatives and the Senate). The matter is for the electorate and democratic choice. Legislation is for Congress not the Court.

The Democrats have long favoured imposing controversial social policy by judicial legislation that the electorate might not guarantee by normal legislative process. Judicial legislation has been an important part of the Democrat political armoury. It does seem inimical to good Democratic process.

Court packing is an important “need to know” question for this election given the more radical left agenda from the Democratic Socialist wing of the party which might not have an electoral Green Light.

To not answer the question is evasive and purposefully misleading in terms of voter ‘need to know’ and choice. Mr Biden as McCarthy points out says he does not want Court packing to become an issue. The reason for that is clear. The Democrats are a house divided. To fall either way is to alienate part of the Democrat voter base.

There is another take on the VP’s debate on this question and that is the smug glibness of a political-legal elite that thinks it knows best-indeed considers itself to have superior insight- , will not communicate and will do what it wants anyway. Sometimes you encounter this with politically correct people who believe they have arcane insight come knowledge and that you have false consciousness or phobic; or white privilege or are fascist/ racist or sexist.

Polices are imposed on people not ‘systems’ because ‘systems’ are made up of people. Imposing a policy is a matter of power: Dictate over consent.

As Mr McCarthy says:

,“What I found most striking about last night’s vice-presidential debate was the contrast between how objectively outrageous it is that the Biden-Harris ticket will not answer the court-packing question and how unabashedly, even glibly, they go about insulting our intelligence while demurring.”

Most significantly on the genius of the US Constitution he adds:

“It is inconceivable that Republican candidates could get away with such smugness, even on issues of far less consequence. Here, we are talking about blowing up any semblance of the Supreme Court’s role in our Constitution’s separation-of-powers equilibrium as the non-political branch that decides issues of great importance in accordance with the law, not partisan or ideological considerations.”

Some credit needs to be given to Judges to exercise their constitutional and rule of law function, as stated earlier, and decide cases according to the law.

Graham Hill.
Nelson.
9 October 2020