I think the best I can say by way of response is that (at least) one of the two of us (Professor AAA and me) is wrong on this issue. All this discussion of escalation (and the purported loss of Queensbury [rules in the political sphere]) in regard to expanding the Supreme Court should only be a worry if the Congress and the President act absent democratic consultation at election time. But where there is a change in party control and candour at election time, then it is not a vice to implement the electoral programme the electorate supported. Characterizing carrying out a constitutionally permitted programme with a democratic mandate as mere “deference to electoral politics and what is legally allowed to Congress” strikes me as near tragic, if not actually tragic. It strikes me that if the programme is constitutional and has sufficient democratic backing to get past all our Constitution’s veto points, then norms to the contrary ought to give way. Might I point out that no one gets to vote on these so-called norms, and that judges and academics claim a near unique privilege in specifying the content of these norms? What Professor AAA sees as vice or abuse or an incipient danger, I see as virtue. Pure and simple.
If we have multiple rounds of Supreme Court expansion, and the Court goes from 9 to 11 to 15 to 21, or even to 33 members, the Republic will survive. The Treasury will find salary and pay for staff. The Court will find office space for its new members, clerks, and other staff. The Court (like the former UK House of Lords) might even find a way to meet in panels less than the complement of the whole Court. I don’t see this leading to radical transformation of American life or norms. It might be the only people who will face any profound effects will be Supreme Court practitioners and federal courts experts. Maybe not even them. I don’t see a radically expanded Supreme Court leading us to a dystopic future—at least, an enlarged Supreme Court will not (in my view) lead us there any more quickly than we are already heading. All this language of “escalation” is akin to Professor BBB’s (former) “fascism” language—it is misplaced hyperbole, rooted in the loss that is threatened by change—change which we do not support and cannot control. But not all such change is illegitimate, legally or morally, and not all such change should be feared.
There are some things which I do think are genuinely dangerous. Should the American people be told directly by the leadership of the two major parties, that an election can be held, a programme for reform be put forward, and that that programme is legal & constitutional, yet in the wisdom of the [permanent] bi-partisan leadership, the programme ought not, will not, and indeed, cannot be implemented because of so-called fears and norms … fears rejected by the electorate [e.g., Brexit], and norms that no one ever voted on … then I think certain very undesirable consequences are more likely than not to follow.
It is a question of your willingness to actually share your political fate with the “rider on the Clapham omnibus” or, to mix metaphors, the “first four hundred people in the Boston phone book.”
[Above I am quoting, Patrick Devlin and William F. Buckley Jr.]
Seth Barrett Tillman, Escalation, New Reform Club (Dec. 5, 2018, 5:48 AM),
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