Job 4:9 teaches that “…those who plow evil and those who sow trouble reap it.” Christian culture has internalized this lesson for centuries. The truth of this belief is very clear when compared with the historical cycles of government.
Governments go through cycles; democracies become societies of mob rule, monarchies become tyrannies, aristocracies become oligarchies. The constant tug-of-war over power in governments leads them to devolve into the harmful institutions named above. Although the theory is not a significant part of political science literature today, the explanation for these shifts was named “anacyclosis” by Polybius. [1]
These power struggles are dangerous and ought to be avoided, if possible. Sadly, many of our politicians do not appear to be heeding this lesson of history because they have refused to condemn efforts by congress-members to introduce so-called “court-packing” bills that will re-start a long-dormant struggle for power over the judiciary.
In April, several members in Congress, like Senator Ed Markey, introduced a billed they called “The Judiciary Act of 2021,” to expand the Supreme Court of the United States to 12 Justices. [2]
Markey openly tweeted that, due to his displeasure with the Supreme Court ruling in Brnovich v. Democratic National Committee regarding laws meant to preserve election integrity, he and others are justified in attempting to expand the Court so that they can appoint “correctly-minded” Justices. [3]
The problem with Senator Markey’s thinking is that he is affirming a dangerous precedent that will turn around to bite him and his allies once they are no longer the kings-of-the-mountain. As a famous analogy states, you cannot put a genie back into a bottle.
Colloquially-speaking, everyone who hears the phrase “court-packing” should instinctively feel revulsion. Why? Because it has been tried and done before in American history, usually in such a way that left people questioning the integrity and legitimacy of the politicians who used the tactic.
In 1801, the Federalist Party pushed hard to “unpack” the Supreme Court (as it had originally been established) and reduced the size of the High Court from six to five Justices. In 1837, after several decades of intermittent squabbling where attempts were made to expand and contract the number of appointments each administration had, a bill was passed which established a nine Justice Supreme Court.
The most egregious example of this political tug-of-war ultimately occurred in 1937 with President Franklin D. Roosevelt, who attempted to pack the Court because the Supreme Court was not “behaving” when they struck down his New Deal legislation. Since then, things have been fairly quiet, but it appears that this struggle has started all over again. [4]
All that Senator Markey and those who support this legislation will do is re-start the power-games that created institutional uncertainty in the 1800s and early 1900s.
As Jesus says in Matthew 26:52 “‘Put your sword back in its place…for all who draw the sword will die by the sword.’” Perhaps this heavenly wisdom should be paraphrased in modern terms as, “politicians who win by court-packing will also die by court-packing.”
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[1] Stephan Podes, “Polybius And His Theory Of "Anacyclosis" Problems Of Not Just Ancient Political Theory,” JSTOR (1991), https://www.jstor.org/stable/26213908
[2] “H. R. 2584,” Congress.gov (April 15, 2021), https://www.congress.gov/bill/117th-congress/house-bill/2584/text?q=%7B%22search%22%3A%5B%22Judiciary+Act+of+2021%22%5D%7D&r=1&s=1
[3] Ed Markey, [no title], Twitter (July 1, 2021), https://twitter.com/SenMarkey/status/1410605592721313797
[4] “Packing (And Unpacking) the U.S. Supreme Court: A Brief History,” MSBA (October 13, 2020), https://www.msba.org/packing-and-unpacking-the-u-s-supreme-court-a-brief-history/
