The rule of law for thee, but not me? To “fight fire with fire,” former vice president Kamala Harris is calling on Democrats to consider packing the Supreme Court with liberals and punishing conservative justices for lying during their confirmation hearings. “This is a moment where there are no bad ideas,” she said on a podcast this week.

In any moment, these bad ideas would endanger the constitutional order. No matter how much someone disagrees with recent decisions by the high court, threatening to subordinate judicial independence to the whims of a political party befits a banana republic. Turning the court into a partisan plaything would destroy one of America’s strongest bulwarks against tyranny.

The Supreme Court remains strongly independent of the legislative and the executive branches, as evidenced by rulings against President Donald Trump’s tariffs and National Guard deployments in unwilling states. In pending cases, the court also looks likely to frustrate his attempts to curtail birthright citizenship and remove Lisa Cook from the Federal Reserve Board.

Liberals and principled conservatives are understandably concerned about Trump’s executive excess. Yet targeting judicial independence in the hopes of getting a more ideologically appealing court is like trying to cure a cold by taking up smoking. The cure isn’t just worse than the disease; it isn’t even a cure.

Tribalism renders too many partisans unable to think ahead more than one election. This has been the case with the redistricting spiral Republicans recently started. It’s also what motivates shortsighted efforts to end the Senate filibuster. When Democratic leader Harry M. Reid got rid of the 60-vote threshold for lower-court nominees in 2013, it became inevitable that Republican leader Mitch McConnell would get rid of the 60-vote requirement for Supreme Court nominees in 2017.

If Democrats expand the Supreme Court in 2029, Republicans would do it when they return to power. Its size would metastasize as its authority collapses. Constitutional checks on executive power would disappear, as presidents would keep nominating new justices until they get the ruling they want. They might not have to bother if the justices know they can be removed any time they anger enough senators.

Presidential candidates would come under growing pressure to specify their choices in advance, effectively turning future justices into co-campaigners on the ticket. Beyond the norms of recusal, there’s nothing to stop a presidential nominee’s potential pick from appearing with him or her on the stump. If Harris got her way, the perception would be that these are administration officials, not impartial judges.

Since 1869, the court has had nine justices. It’s been 89 years since President Franklin D. Roosevelt tried to install six additional liberal justices after the Supreme Court blocked some of his unconstitutional overreach. FDR dropped the court-packing scheme amid blowback from allies, who recognized it as authoritarian.

Polls show most Americans understand that court-packing would take the country in a dark direction. Candidates who support it tend to be desperate for support from the left. When Pete Buttigieg floated a 15-member Supreme Court during his 2020 presidential campaign, for example, he was properly ridiculed by institutionalists. Sadly, protecting institutions has gone out of style.

In her 2024 concession speech, Harris said that “we will never give up the fight” for “the rule of law” and “equal justice.” What she’s suggesting would doom both.

— Washington Post