Professor Rick Hasen’s editorial in the L.A. Times, titled “In the future, John Roberts could be the Supreme Court’s swing vote,” buries the lede. The first eight paragraphs recount the decision not to hold a hearing for Judge Garland, and discusses how the Court’s precedents may be altered if President Trump appoints replacements for Justices Kennedy, Ginsburg, and/or Breyer.
Then, in the final paragraph, he writes:
The only real solution is for Democrats to pray for the current justices’ good health — and then to take back the presidency and the Senate. And once they do, perhaps they’ll play hardball themselves by increasing the number of justices on the court and packing it with liberals.
The linked points to a post by Elie Mystal, titled “Court Packing Is The Way To Save The Court From The U.S. Senate.” Mystal offers something of a bipartisan proposal:
But court packing doesn’t have to be partisan, and if we do it right it will fix our whole pathetic confirmation process. Let’s say we had a bipartisan committee come up with five “conservative” justices and five “liberal” ones to add to the Court. That would swell its numbers to 19, yet preserve the current balance of conservatives and liberals. Now let’s say that Ruth Bader Ginsburg or Anthony Kennedy leaves the Court, and President Trump gets to nominate the replacement.
This, however, is not what Hasen was referring to. Rather he wrote that when the Democrats “take back” the White House and the Senate, “perhaps” they can “pack it with liberals.” Here, the word “perhaps” does a lot of work.
“Perhaps” is one of my least favorite academic phrases, along similar lines as “interesting” and “I think.” The term allows a scholar to advocate for a position through implication, without expressly advocating for it. Consider the same sentence, slightly rearranged, swapping the word “perhaps” with “should.”
The only real solution is for Democrats to pray for the current justices’ good health — and then to take back the presidency and the Senate. And once they do, they should play hardball themselves by increasing the number of justices on the court and packing it with liberals.
Hasen, stops short of explicitly telling the Democrats what they “should” do. Rather he is merely suggesting, “perhaps” what they can do. But this is not idle speculation. Hasen, who is a very careful writer, is attempting to take an off-the-wall idea–Court packing–and lend to it his academic gravitas.
My initial tweet, drafted in about 15 seconds, stated that Hasen “calls for #scotus Court packing.” This was imprecise, and I’ve deleted the tweet. This post accurately conveys my read on Hasen’s op-ed.