Pack the Court 3

Much of the discussion about Barrett’s nomination has focused on social issues, like abortion, guns and same-sex marriage. They’re all important, obviously. But they are not the issues that animate many activists and wealthy campaign donors who have spent decades pushing for a conservative overhaul of the courts.

Koch gave that speech in 1974, and in the almost five decades since, the conservative judicial project has made a lot of progress. The Supreme Court and lower courts have made it harder for labor unions to organize, harder for consumers and workers to fight corporate fraud and easier for wealthy Americans to give millions of dollars in campaign donations, often secretly.

These rulings are one reason that the incomes of the very rich have risen so much faster in recent decades than incomes of the middle class and poor. “For the past half-century, the Court has been drawing up plans for a more economically unequal nation,” Adam Cohen, a former member of the Times editorial board, wrote in his recent book, “Supreme Inequality.”

David Leonhardt in the NYT Daily Briefing

Liberals and Conservatives are so caught up in culture war issues that they don't understand the real dangers posed by the 1% where they share common ground. I've been preaching that for years, but liberal elites don't care because they benefit, the poor don't care because they're in despair, and cultural conservatives don't care because they'd prefer to stew in their resentments. And all the while the Koch brothers manipulate the legislative and judicial infrastructure in such a way that while all the political energies are focused on arguing about abortion and guns in the front parlor, they sneak in through the back to clean the house out.

The Kochs' long game is to anticipate that their ALEC agenda in the legislatures will break down and people will finally start to push back. When they do, they'll be thwarted in the courts suffused now at every level with right-wing political hacks or constitutional fundamentalists from the Federalist Society. When there is a conflict between the interests of property and the interest of human beings, you can count on these originalist to side with property. They have "respectable" arguments not because they're interpretation of the constitution aligns with what is truly just, but because the constitution is a deeply flawed, indeed 'unjust', document that in most respects favors the interests of capital over the interests of ordinary citizens.

So given that the only remedy for these constitutional flaws is within the context of the constitution, the perfectly constitutional means of increasing the size of the courts must be taken to neutralize the impact of the fundamentalists to allow for the legislatures to do the will of the people who elected them.

Some will argue that we should wait until we see how the court rules, but I fear that everybody is so focused on abortion, guns, and gay marriage, that no one will care when the court thwarts legislation that addresses income inequality. Liberal elites will back off court packing as a remedy if the courts punt on the cultural issues but remain aggressive on protecting the interests of the Kochs and other one-percenters against the interests of the rest of us.

After the Future

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