NYT: Court-Packing is Cool!

Brendan Nyhan rightfully slaps around NYT op-ed contributor Jean Edward Smith for suggesting that a Democratic president would need only a simple majority to increase the number of Supreme Court justices ("court-packing"), but he gives her a pass on the absurdity underlying her argument.

Now to begin with, prior to reading Smith's op-ed, I was unaware that the practice of court-packing has a long history (though I suppose I shouldn't be shocked). But let's just look at the opening and closing paragraphs:

WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.
[snip]
If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

I don't know whether to vomit or to laugh, though I suspect the two together would be highly unpleasant. Put more bluntly, Smith says "We the coastal liberals don't agree with the Supreme Court. We used to, but now that we don't, we should find ways around them." It also pays no attention to the fact that this court doesn't have a "manifestly ideological agenda" any more than any previous court did (and significantly less so than the Warren Court). Her claim that the "five-man majority" is "thumbing its nose at popular values" is also absurd. Let's consider one decision that has produced much wailing and gnashing of teeth on the Left, Gonzales v. Carhart, the decision that outlawed partial birth abortion. In doing so, was the Roberts Court "thumbing its nose at popular values?" Well if polls are to be believed, not exactly: a May Gallup poll found that 72% of respondents believed the partial-birth abortion procedure should be illegal. Popular values, perhaps, if you poll only Greenwich Village, Beacon Hill, Chapel Hill, and San Francisco.
It reminds me of Pauline Kael's infamous distress in 1976 - "No one I know voted for Nixon!" Times change, liberals don't.

But let's also look at this hare-brained scheme in the bigger picture. What other recent Democratic caper does this remind you of? If you guessed the "fairness" doctrine, you're right! In both cases, Democrats are throwing temper tantrums that they aren't getting their way - whether it's being blasted on talk radio or having their glorious social engineering projects judicially neutered - and they're determined to change the rules. And why does this happen? It may be tritely stated, but it's because liberal ideals aren't popular values, but rather the values of an insular elite - the academe, the media, etc. - which cannot be enacted through the usual channels. Thus they have to use other means, such as the courts. And when people call them on their BS, they'd rather muzzle the opposition rather than try and win an honest debate.

This thing ain't going anywhere, much to the dismay of the Upper East Side, but in his critique, Nyhan really missed the boat.