OPINION | COLUMNIST: A worse idea

Democrats are understandably furious and fearful over the likelihood that President Donald Trump and the Republican-controlled Senate will replace the late Justice Ruth Bader Ginsburg with a conservative.

That does not justify packing the Supreme Court with progressives in retaliation.

The judicial branch’s primary virtue, and the reason it is a separate branch of government, is that it’s nonpolitical. Packing the court would de facto end the independence of the American judiciary.

It would establish the norm that when the opposition controls a majority of the court, it is legitimate for the ruling party to add as many members as necessary to ensure that the government’s friends control it. There is also nothing to prevent the government from adding multitudes of new judges to appellate and district courts to remedy perceived imbalances.

Every judge would thus know that their controversial rulings would never last; the reigning government would immediately reverse them by stacking the courts with new, malleable members. The rule of law as we know it would be gone.

This isn’t idle speculation. The British House of Lords was never a court, but it shows how such political dynamics could play out. The institution was once a fully co-equal branch of government with the House of Commons.

In 1909, however, it refused to pass the Liberal government’s “People’s Budget,” which proposed the first national welfare state measures for the United Kingdom. A general election was called, which returned a Liberal government. Even though the Lords approved the new budget, Liberals sought to remove the Lords’ coequal status and passed what would eventually come to be known as the Parliament Act of 1911.

King George V ensured its passage by threatening to pack the House of Lords with sufficient Liberal peers. The threat worked, and the Lords surrendered their independence.

Democracy advocates have sharply criticized efforts to pack the courts in other countries.

Democratic presidential nominee Joe Biden has shown he understands that. Last July, he stated that he opposed court packing, telling Democrats that they would “live to rue that day” if they walked down that path.

He doubled down on this sentiment at a debate in October, saying, “We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.” He’s right.

Biden says he is running to save America’s soul and American democracy. Court-packing would do more than anything Trump has done to ruin the rule of law, thereby poisoning our soul and our democracy.

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