Court packing: “Is it good for the Jews”?

For Jews, the expression goes, many things are often reduced to the question directly posed by the title. Should Jews so often decide that a particular candidate or public policy is “good” or “bad” depending on whether Jews are benefited or harmed? Trump. Biden. Affordable Care. Roe v. Wade. Broad lockdowns. Masks.

Although the expression didn’t come out of thin air, I imagine that it really doesn’t matter why Jews, as a group, often make decisions about life that way. Unquestionably other societies or communities do too – many religious, racial or ethnics groupings think and vote that way — but Jews are uniquely bold enough to say so. And they typically say it to anyone among them who will listen.

All this said, what about “court packing” — the possibility that a President Biden would try to balance the current Supreme Court disequilibrium created by Trump and McConnell’s ram through of Judge Amy Coney Barrett (to replace her ideological polar opposite, Justice Ginsburg) on the eve of a possibly impending Biden victory?

Will court packing by a Democrat President, Joe Biden, along with a Democrat legislature (especially Senate, if it turns), that would invariably result in two additional “liberals” on the Court, alongside Trump’s three conservative appointments, be something Jews should want — even if many affirmatively want what Coney Barrett offers?   Should Jews, liberals in particular, ideally want to keep balancing the scale in the manner being proposed by packing proponents whenever the Court appears to be out of kilter — for them?  Meaning a court packing precedent, when a next-election conservative executive/legislature could and would do the same thing when the governing power shifts back toward them.  Put otherwise, do Jews (in particular) gain, or ultimately lose, when those in power can totally shift government institutions back in their favor whenever they come into office?

But put aside the unbending reality of “what’s good for the goose is good for the gander” — that if a Democrat Administration can turn the Supreme Court balance of power in one direction, the see-saw inevitability when Republicans come into power will ultimately end up in the opposite direction. Just imagine sitting on a see-saw and its up/down movements.

A real question, put simply, though, is: who are the Jews?  Many Orthodox Jews are actively pro-Trump, for whatever reason. They, many of them, also want Coney Barrett. She’s strong on religious rights; actively anti-abortion; likely opposes gay rights.  Many other Jews, however, Reconstructionist, Reform, Conservative or more modern Orthodox — are actively anti-Trump and anti-Coney Barrett. They’re simply on the opposite side – differing from their more Orthodox brothers and sisters.  Jews are no longer a monolith. All Jews oppose anti-Semitism and support the right for Jews to worship. And virtually all favor the existence of the State of Israel.  But beyond that, and even within those issues, they have differing views.

That said, the question should probably revert to whether packing the Supreme Court is good for society as a whole, composed of people of different beliefs at opposite ends of the political and social spectrum. Would it, for example, be good for society if a president and legislature in the same party could somehow constitutionally pass legislation to restrict the Supreme Court’s jurisdiction in certain cases because the political party in power wants such cases off the Court’s docket? Or age-limiting members of the Congress because an inordinate number of Republican (or, on the other hand, Democrat) legislators are over 70?  Or limiting education grants to universities in blue states (or, contrarily, red states) because of the political party in power?

Changing the structure of government entities shouldn’t depend on the party in power and that it or its leader oppose something that the branch of government under attack is doing at a particular time. Notably, the Jewish New York Governor, Herbert Lehman, a confidante of President Roosevelt, spoke out strongly against Roosevelt’s plan to pack the Supreme Court in 1937, which was consistently striking down New Deal programs that both Roosevelt and Lehman wanted. An apostasy on Lehman’s part in the view of many.

Perhaps as a Jew, Lehman knew, better than most politicians in Roosevelt’s inner circle, that when you fool around with time-tested institutions of government, you risk hurting them immeasurably because a future administration, perhaps less noble-minded, may well choose to “take it up a notch.” It is, after all, the courts, that have traditionally been the bulwark that Jews have turned to in times of strife.

I, for one, don’t like what President Trump has done with the courts, in particular his three nominees to the Supreme Court. Still, I recognize that to the victor belongs the spoils. Those, like me, who don’t like what the newbie (appellate-judge-for-life) courts have been doing, must instead concentrate on moving the other branches of government to pursue goals more consistent with our own, doing so at the voting booth. Not by changing the institution of the courts simply because we don’t like their composition at a particular moment in time.

By the way, the great Justice Louis D. Brandeis, the best we have ever had to offer , allowed his name to be used to help uphold the nine justice makeup of the Supreme Court during the skirmish over the court packing plan — even though his colleagues were simultaneously authoring majority opinions that were striking down Roosevelt’s progressive legislative agenda.  Legislation that Brandeis himself wanted to stand.

Shortsightedness doesn’t work. Brandeis had it right – and that was usually good for the Jews.

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” Dale J. Degenshein assists in preparing the articles on this blog.The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.