Updated: Sep 5, 2022
Justice Ginsburg’s death on Friday represented the end of an era. As all Court-watchers know, Ginsburg and Justice Scalia — despite their deep political differences — were close personal friends. In 2015, a comedy-opera was written about their friendship: Ginsburg gave the opera a rave review. I saw Ginsburg speak in 2017 and when she spoke of how she missed the late Scalia, I could hear genuine warmth in her voice.
With both Scalia and Ginsburg gone, however, an era of civil disagreement has died with them. There are now two separate Americas, and each views the other as its global moral enemy: a role once occupied by the Soviet Union. We are heading towards tragedy rather than comedy.
Ginsburg’s death could result in a bloodless coup that, as I’ll explain in this column, would end America’s tripartite system of government. The inevitable outcome would be either a dangerous civil conflict or totalitarian rule.
Our Era is Akin to the Last Decades of the Roman Republic
Now is the time to learn from history in order to avoid repeating it. American politics today has strong parallels with the last decades of the Roman Republic — when polarization led to a bloody civil conflict which brought the Republic to its end.
With the collapse of the Soviet Union in 1991, America emerged as the world’s sole superpower. In the same way, the late Roman Republic defeated its only global rival, the Carthaginian Empire. Over the following decades, Romans were increasingly polarized along political lines similar to our own left- and right-wings. The global enemy was no longer a foreign power: it was now the other side of the political aisle.
In this bitter climate, conservatives rallied behind a leader named Sulla — a maverick known for ignoring political norms. Sulla’s central message was that Rome should return to the traditional virtues of its past, although he did not always live by these virtues himself. In 88 BC, Sulla became the first Roman leader to march on Rome. Once he had captured the city, however, Sulla proved surprisingly docile, even allowing some of his worst enemies to hold high office.
Yet the Roman left-wing was apoplectic at Sulla’s actions. They united behind Gaius Marius, an elderly establishment politician long past his prime. In 87 BC, the left seized control of Rome. Filled with hatred, they implemented a reign of terror and openly massacred their conservative political enemies. The slaughter launched decades of civil war from which the Republic never reemerged.
If Joe Biden is elected in November, his administration will of course not involve the public massacre of his political opponents. But it could very well involve packing the Supreme Court: an action that would end America’s constitutional government and lead inevitably to future violence.
Court Packing Would Be a Coup, Abolishing the United States Constitution in All But Name
Since Trump’s election in 2016, many progressives have discussed ways to create a permanent one-party regime in the United States. The most popular proposal is “to pack the Court.” This means that Democrats would arbitrarily increase the number of seats on the Supreme Court, then load the seats with judges who will rubber-stamp their agenda.
The New York Times has spent years trying to prepare its readers to support Court packing, pushing the idea through opinion columns and book reviews. Many Democratic politicians are already on board. In a 2019 legal document, known to Court-watchers as the “Enemy of the Court Brief,” a group of Democratic senators — including Dick Durbin and Kirsten Gillibrand — threatened to “restructure” the Court if it did not limit gun rights: a thinly-veiled reference to packing the Court.
If there is a single unchanging law of human history, it is that unlimited power inevitably becomes unlimited evil.
For progressives who dream of wielding authoritarian power, Court packing would be a brilliant move. The strategy would abolish the republic while, at the same time, hiding behind most Americans’ ignorance of civics. Americans might not realize, until it is too late, that Court packing is simply the end of constitutional government.
Many, perhaps most, Americans probably could not name a Supreme Court decision other than Roe v. Wade —one of the Court’s most unusual and uncharacteristic decisions. To understand what Court packing would accomplish, we need to look closely at how the Court works.
Court Packing Would Create an Authoritarian Regime by Abolishing Checks and Balances
The U.S. Constitution pointedly splits power between three branches. Its first three Articles create Congress, the President and the Supreme Court — with each Article listing the separate powers of its branch. Article III creates the Supreme Court, giving the Court power over all cases “arising under this Constitution.”
If Democrats pack the Court, this power-sharing system will cease to exist. After the Court is packed once, there is no going back: the ruling party might, at any time, simply double the Court’s size and remake it to their liking. The Supreme Court will never again be able to check the power of a united President and Congress.
Progressives argue, with unconcealed smirking malice, that Article III does not specify that there will be “nine” justices. This hardly warrants dignifying with a response. The very structure of the Constitution — with its first three Articles creating three centers of power — shows that the Framers did not intend the Court to be eliminated as a distinct branch of government.
This is especially important given the role of the Supreme Court. Civics surveys show that millions of Americans do not really understand what the Court does. Its most important function is to apply the U.S. Constitution by striking down unconstitutional laws. Without the Court, the Constitution would simply be a piece of paper.
In the Heller and McDonald cases, for example, the Supreme Court held that the Second Amendment protects private firearms ownership, striking down gun bans in D.C. and Chicago. If these cases had been different by one vote, the Second Amendment would be unenforceable. President Obama could have legally enacted total gun confiscation during the 111th Congress.
Likewise, secular progressives increasingly believe that traditional Christians should not be tolerated in American society. Without Supreme Court decisions applying the Free Exercise Clause, like Hosanna-Tabor and Lukumi, the government could force Christian churches to hire non-Christian ministers, or simply close down churches that it disliked. “The Constitution does not protect your right to discriminate,” we can imagine the left intoning. “Hate speech is not free speech.”
Progressives Could Plausibly Create a Totalitarian State Without Serious Resistance
Unfortunately, many conservatives naively believe that, whatever happens in American politics, tyranny is simply impossible in the Untied States. “The American people are armed,” we think. “They will never let tyranny happen.” But this assumption is naïve.
This reasoning ignores the way that tyrannies actually work in history. Real totalitarians do not suddenly announce that all guns and dissent are banned. Instead, they systematically divide and conquer their opponents.
For example, during Saddam Hussein’s 1979 coup, Saddam ordered that the names of ten enemies be read out, all of whom were arrested. But as his other rivals breathed a sigh of relief, another ten names were read out. Then another ten, and so on.
In ancient Rome, Sulla — after defeating the left-wing Marians and coming to power a second time — did the same thing on a larger scale. Sulla posted a short list of people who were to be killed, followed by a longer list, followed by another. The point was that, if you were a Marian whose name was not listed, you would cower and hope for the best while your friends died. Once your friends had been killed, your name would appear on the next list. In this way, Sulla exterminated all of the Marians in Italy.
This kind of strategy could work very well against American conservatives, who are highly individualistic, and who do not usually defend anyone who is further to the right than themselves. To see how this might work, consider the following plausible scenario, based on law and history, that could lead to totalitarian government in the United States.
An Example of a Plausible Scenario Leading to Totalitarian Rule in the Untied States
Suppose Democrats pack the Court full of left-wing justices. The fake Court holds that the Heller case is now overturned, and the Second Amendment no longer protects the people. The Court’s decision is not the same as an actual law banning guns. The media reassures the public — correctly — that guns have not been banned. Conservatives go about their daily lives, and do not engage in any kind of mass pushback.
Next, Congress — citing the need to stop far-right organizations — directs federal agencies to create a kind of “No Fly List” for firearms: a secret, no-appeal list of Americans who cannot own guns. Most gun owners convince themselves that the list will not affect them. But “I’ll be fine because I’m not a racist” soon becomes “I’ll be fine because I don’t comment about politics on social media.” Pro-gun groups and informal networks of gun-owners are steadily disarmed.
While the list expands, cultural progressives realize that nothing is stopping them from finally eliminating dissent. The first “hate speech” prosecution is against a neo-Nazi or some other universally loathed person who no one wants to defend. The fake Supreme Court approves the prosecution to little fanfare.
This time, the escalation happens quickly. A wave of prosecutions for hate speech takes on the character of a national catharsis. When pastors and scientists are prosecuted, all non-progressives realize — too late — that the situation is irretrievably lost. There is no reason this could not continue until United States resembles the Soviet Union. America was not protected from evil government by the Statue of Liberty, or by the flag or even by social norms. She was protected by her laws.
Court Packing Must Be Prevented At Any Cost
If there is a single unchanging law of human history, it is that unlimited power inevitably becomes unlimited evil. In the past, many people did not have access to historical documents, and might be forgiven for not knowing this. But today, the entire history of the world is available for free to every American. If Americans allow Democrats to usurp absolute power, it will be history’s most ridiculous and unnecessary failure to learn history’s lessons.
To preserve the republican order that Scalia and Ginsburg, together, represented, Americans must speak up now. If the Court is packed, it will likely be too late to turn back. Once the false justices are seated, and the fake Court convenes to hear its first case, the country will be caught between the two horns of either civil conflict or totalitarian rule. If America fails to heed the warnings of history, history will force us to learn its lessons the hard way.
This must be prevented at any cost. We must stop Court packing by making it clear, well in advance, that a packed Court would be seen as fundamentally illegitimate. The more people clearly understand that Court packing is a coup, the less viable a strategy it will become. Ian Huyett is a litigation attorney and a commentator on law, religion, and technology for Staseos and other outlets. You can follow him at @IanHuyett.