The recent appointment of Amy Coney Barret by Donald Trump was an obvious example of the not very new phenomenon of court packing.
The idea of court packing, in the sense I am referring to, is the appointment of a Supreme Court Justice in order to gain favorable advantage for a political party. Although court packing is not unique to the Supreme Court, I would say court packing on the Supreme Court is the most detrimental to the democratic process.
Recently, Donald Trump appointed a new justice to the Supreme Court, in the wake of the death of justice Ruth Bader Ginsburg. However, the issue with this appointment is that it came just eight days before the national elections. It is evident that in doing this Trump was trying to gain support for both the republican party, and a Supreme Court that is sympathetic to his claims of election fraud, were a suit to reach the Supreme Court. Both reasonings would lead to the erosion of democracy.
Trump trying to create a Supreme Court that is sympathetic to him and his lawsuits is an erosion of democracy as it would be a decision that could give Trump powers outside of those legally granted to him in the constitution. On top of this the citizens of the United States would not be the ones choosing the leader in this case, it would instead be justices appointed by, or sympathisers of, the leader himself. This obviously erodes the process of democracy and sets a precedent that the president can abuse the constitution in order to keep power or increase power. This process of using the constitutional powers granted to you to erode democracy fits under the term that has been coined as “abusive constitutionalism”.
Packing the Supreme Court in it of itself is a form of abusive constitutionalism, which has been used in countries, such as Venezuela, to gain power for the government in charge as was done with Hugo Chavez. In this case the form of abusive constitutionalism was not rewriting, or amending the constitution as was done by Hugo Chavez, but instead abusing the powers granted to the president in order to gain control unconstitutionally (in the case that the elections were to be in favor of Biden, but Trump won via court order).
In appointing Amy Coney Barret only eight days before the 2020 election it could very well be argued that the reason for this was to gain favor in government for the republican party going forward before the election during which the majority of power in government may sway towards the democratic party. This action is worsened by the fact that Obama’s appointment of a Supreme Court Justice 4 years prior, but 9 months before the 2016 elections was blocked in the Senate. The Majority leader in the Senate, senator Mitch Mconnel even went as far as to state“They won’t be able to do much about this for a long time to come.” in reference to democrats. His words show that the mindset of our government is a competition for power rather than what it was meant to be, a representation of the beliefs and needs of the people. The idea of court packing also furthers the worsening “us vs. them” mentality that causes a deal of political polarization in the United States, to the point that the senate majority leader is referring to the democratic party as “them”.
Court packing allows a great deal of distrust to form amongst citizens as it seems a political party is trying to consolidate power rather than allowing power to be in the hands of the people. Trump’s packing of the Supreme Court, or any court packing for that matter, are staunchly against what the founding fathers had intended for the court system, which was a non partisan court system. This also causes distrust in the court system itself as it creates distrust among citizens of the court system and its legitimacy. Without legitimacy in one of the three branches of government the democratic process cannot be trusted, therefore, democracy will have been heavily degraded in the United States.
The idea of packing the court is not a phenomenon unique to one political party or another. However, the most recent case of court packing is largely different in the sense that it had been done after months of the Trump campaign sewing doubt into voters of the legitimacy of the electoral process in hopes that the idea would gain enough support to have a suit make it to the supreme court in order for the election to be decided. However, the idea of filling court seats to gain advantage in government for a political party is harmful to democracy no matter what party is doing the court packing, especially just before an election. This is because it is essentially not allowing the representative that would be picked by the people to fill the seat.