Some links on the current constitutional predicament

Democrats need to win elections, full stop.  As I wrote here, this may mean “heightening the contradictions”.  Michael Dorf:

If there is a path back to sanity, then, it probably must travel through a change of heart by the people who support Trump’s assault on democracy. They will not likely be won over by appeals to the rule of law, especially when elite-educated lawyers like J.D. Vance and Tom Cotton are muddying the waters in their social media feeds by telling them that judges are the real threat to democracy. But maybe if Trump’s tariffs spark a costly trade war that drives up inflation or RFK Jr.’s insanity unleashes a bird flu pandemic by gutting support for health care and vaccines, there will be enough misery that Trump’s support will diminish sufficiently to the point at which elected officials in his own party no longer fear him and can thus rein him in. That said, it is more than a little unsettling to have to depend on an economic or public health catastrophe as the means of averting a political catastrophe.

In the end, there may be no solution. Democracies can die. The Senate ruled Rome for nearly five centuries before Augustus became Rome’s first Emperor and began the process of reducing the power of democratic institutions. The U.S. republic hasn’t lasted nearly that long, but we’ve had a pretty good run.

Bill Sher argues that it’s a good thing the Democrats didn’t pack the courts, because if they did Republicans would do the same and Trump would be entirely unrestrained:

Suppose Democrats had succumbed to the temptation, which would have required abolishing the filibuster to ram through a partisan court-packing bill. In that case, the first thing the current Republican trifecta would have done is pass legislation along party lines to gut the entire judiciary. Every level would have been packed to negate any power held by judges untethered to Trump. All constitutional guardrails would have been eradicated. Then, Trump would have gotten to work issuing executive orders without regard to the Constitution or the law, and no one would have been able to stop him. 

During the Joe Biden presidency, Democrats were still fuming about how former Senate Majority Leader Mitch McConnell denied Barack Obama the ability to appoint Merrick Garland—or anybody else—to the seat vacated by Antonin Scalia upon his death in 2016, then not only let Trump fill that seat in 2017 but also the seat opened up after Ruth Bader Ginsburg’s death in near-record time ahead of the 2020 election. The rage led many to believe that the worst damage to the independent judiciary had already been inflicted. 

This overlooks the fact that if Democrats had packed the Court, Trump might be in jail.  But this underscores how uncertain politics is, and how important it is for Democrats to win elections.

Sher points us to an article by Kermit Roosevelt III, a member of Biden’s Supreme Court Commission, arguing for court packing:

There are political considerations here, to be sure. The one put forward most often is that if Democrats expand the Court, Republicans will do so in response as soon as they get the chance. That’s possible, but battles over the court are already in a downward spiral of retaliation—just ask Merrick Garland. Game theory actually suggests that the way to prevent an opponent from repeatedly taking advantage of you is to show that you will fight back. The concern that Republicans might manipulate the size of the Court for partisan advantage in the future if Democrats do it now overlooks the fact that they’ve already done it, in the very recent past. Refusing to consider any Obama nominee (and pledging to do the same to Hillary Clinton if she won) is exactly that.

I have doubts about his game theory analysis, which assumes that both parties prefer the outcome without court packing and entrenched one-party rule so strongly that they are willing to forgo court packing when they have the chance to indulge.  Polarization and fear of the other side has reached such an extreme point that it is not clear that the threat of a downward spiral of constitutional hardball and retaliation can support the cooperative outcome. 

As unpleasant as it is to let Republicans get away with court packing, Democrats need to avoid retaliation and tack to the center, which will reduce polarization and help them win elections.  If they win elections, they can control the Supreme Court.  There is no other path forward.