Restoring vs. Packing the Court: Metaphors Matter

Ruth Bader Ginsberg Receives LBJ Award for Righting Wrongs, Championing Justice, and Serving Humanity (LBJ Foundation Photo/Daniel Swartz)

With the death of Ruth Bader Ginsberg and the likelihood of her quick replacement by yet another Trump nominee, talk of packing the Supreme Court has intensified.  Of course, all such talk is rendered politically impracticable if Democrats fail to sweep the 2020 election.  Even if Democrats should win control of the government, talk of packing the court is fraught with troublesome connotations.  It is a bad metaphor for characterizing legislation to increase the number of sitting justices, unless one is opposed to changing the status quo.  Restoring justice to the Supreme Court is a more serviceable metaphor.

Enlarging the Supreme Court—even though there is no Constitutionally mandated size and Congress has acted before to increase (and reduce) the number of associate justices—is perceived, even by advocates, as risky business.  It is a radical departure from an institutional norm.  Violating this long-standing norm could set in motion an escalating chain reaction that might destroy representative democracy.  Risking a “death spiral” is justified only if and when a “rogue” Supreme Court is “likely to breed an illiberal nation,” the very circumstance Ian Millhiser (writing in the Winter 2019 issue of Democracy) suggested was already developing—even before Justice Ginsburg’s seat was suddenly vacated.

Rectifying swiftly by legislation an ideological imbalance on the Supreme Court, an imbalance achieved illegitimately over decades of voter suppression, extreme gerrymandering, ballot invalidations, blocking recounts, and, more recently, shady maneuvers by a Republican-controlled Senate, not only is institutionally risky but also a hard case to make even among Democrats. 

Millhisher provides a useful summary of the arguments for “packing” a nine-member court comprising a six-to-three deeply conservative majority of relatively youthful Republican appointees.  Such a court will allow Republicans to continue to win rigged elections.  In short, the Supreme Court is perceived by many scholars and activists as “a wholly owned subsidiary of the Republican Party” that is bent on dismantling voting-right laws to facilitate one-party rule and, more broadly, is at war with democracy itself.  Increasing the size of the court in order to create a new majority serves the purpose of returning power to the voting public.  Even the threat of packing the courts can serve the purpose of moderating the ruling majority, as it did when FDR’s attempt to add six associate justices may have motivated Justice Owen Roberts to switch from opposing to supporting New Deal legislation. 

FDR’s “court packing” scheme became notorious in the popular history taught to baby boomers and beyond.  The image is a rhetorical hurdle that is difficult to clear.  It burdens already taxing arguments with the suggestion of nefarious politics.  It implies blocking, jamming, obstructing, or otherwise thwarting the legitimate political process.  The very word imposes an extra burden of proof on Democrats and shifts the presumption to Republicans, who are transformed symbolically into defenders of the country’s sacred institutions against radicals. 

Metaphors matter.  “Packing” is a trope, a figure of speech that has become literalized by common usage.  Its negative connotations are allowed to operate below the threshold of critical reflection when it remains unchallenged as the conventional descriptor of a legislative initiative by Congress to increase the size of the Supreme Court in the service of democratic values that are increasingly under duress. 

There is no objective term for naming the work at hand.  This is political work in the public domain.   Political arguments require a supporting trope at their foundation if their merit is to be fully appreciated.  Tropes underpin and frame the case to be made. 

The trope of “packing” the court sets in motion the tonally analogous image of exercising the “nuclear” option, for example, an image that renders apocalyptic any proposal to alter the size of the court and concomitantly deflects public attention away from the rapidly eroding conventions of liberal democratic governance under Republican rule. 

To consider adequately the case for enlarging the Supreme Court, some thought needs to be given to how that change is named.  What verb other than “packing” signifies the democratic work of returning the vote to the people?  What word conveys an effort to recover rather than undermine the democratic processes and institutions of the republic?  What term affords the public and its representatives a better chance of understanding and deliberating the issue at hand?  Clear and thoughtful reflection requires a different trope than the literalized “packing” metaphor now buttressing illiberal rule. 

The trope for enlarging an ideologically stacked Supreme Court should, at a minimum, carry overtones of balancing, adjusting, moderating, recovering, repairing, facilitating, and opening the court to a representative range of political viewpoints conducive to a healthy democratic process for a pluralistic polity.  “Restoring justice” to the court is a more serviceable metaphor than “packing” it.  It is likely even more pragmatic than “reforming” the court in that fixing something broken is less threatening, more moderate, and more judicious in the public mind than reinventing, transforming, or structurally changing the system. 

This is not to say that adopting the metaphor of “restoring” to convey a sense of repairing, recovering, and balancing the Supreme Court is necessarily the best or only serviceable trope.  There very well are equally useful or better tropes available if only we go looking for them.  A rhetorical turn away from the sense of desperation embedded in the court “packing” image might even sustain the project of recovering lost ground beyond the instant between now and the election, regardless of its outcome.

RLI

Originally published in Public Seminar, September 25, 2020

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