Capitalizing on National Teaching Moments
… in this case, on the number of Supreme Court justices
Neither Vice President Biden nor Senator Harris took the bait during the recent debates to answer whether they would support expanding the Supreme Court if Hon. Amy Coney Barrett is confirmed. It is hard to dispute their strategic choice not to answer that question. Polls have them in a substantial lead, the future remains unwritten, and whether Court expansion is a necessary or viable option to advance the interests they represent is not ripe.
But there was a missed opportunity to put an important subject in context. The country needs leaders who embrace a more pedagogical role. It might be too much to ask for a sensationalized professorial type like The West Wing’s Jed Bartlett, but we ache for strong national voices who can help contextualize the complexities we face today. To be fair, Vice President Biden and Senator Harris have shown genuine penchants to try to verbalize forward-looking visions and to connect more directly with the American voter. And demanding erudite exposition on intricate subjects may be too much to ask in the immediacy of a tense campaign. Ever-present soundbites and tracking polls push candidates into safety zones and counsel in favor of risk avoidance.
Still, though, we crave leadership that supplies a broader perspective. Presidents during crises and transition have provided “teaching moments” that ground us on how the struggles of the day fit within our national story. Washington, Lincoln, Franklin Roosevelt, Kennedy, Reagan, George W. Bush, and Obama during times of varied crises (and surely others too) each seized the lectern to provide insight in ways needed today.
This month’s vice presidential debate provided one example where more of a teaching role could have helped. Susan Page asked the “Court-packing” question whether Democratic candidates — if they prevail — would aim to increase the number of justices if the Senate confirms Judge Barrett. Vice President Pence incorrectly suggested such a move would flout “separation of powers” by ending 150 years of nine Justices. Senator Harris replied by invoking President Lincoln and pressing a different theme about the current administration’s rampant untrustworthiness. That, too, may have been an understandable tactic given the track records.
Yet there was another reply that could have been given — one that could have provided a teaching moment regarding our structures and dispelled the implication that something constitutionally improper would occur if the number of justices changed. Expansion of the Court would not violate “separation of powers.” It would be an application of them and the accompanying checks and balances, irrespective whether it would be wise as a policy matter. Setting the number of justices is a “power” of Congress under Article III § 1. The Court’s “powers,” by contrast, do not include maintaining its composition at a particular number. Its primary power is to interpret the law — “to say what the law is,” as the Court itself held in Marbury v. Madison in 1803. That power is going nowhere, whatever the number of justices. The question whether changing the number is a good policy decision could be left for another day.
Imagine that this had been the response to the accusation that increasing the number of justices would violate separation of powers principles:
“Not so,” might be the answer. “We hear a lot about the Founders and their wisdom. They saw best not to fix the number of justices, but to leave it to an elected Congress. The original number of justices was six by act of Congress in 1789, almost went to five by another congressional action, was moved to seven by Congress in 1807, nine in 1837, ten in 1863, and back to nine in 1869. There was a strong but tabled push in 1937 for Congress to increase it to fifteen because of Court politicization. If Judge Barrett is confirmed but the White House and Senate go to Democrats, then there will have been three justices confirmed during a single-term presidency (of one who did not receive a popular majority). Plus there is a contradiction between how the Senate approached Judge Garland in 2016 versus Judge Barrett in 2020. This means we may find ourselves a politically affected situation that might be just what the Founders had in mind when leaving the number of justices up to an elected body. Of course, in the end, the power to say what the law is will remain the Court’s in its constitutional role, regardless of the number of justices. Americans watching should know this is all an example of the checks and balances that make our constitutional system work and that protect against imbalances. We can leave for another day whether changing the number would be a good choice. Let’s just be clear on which branch has what ‘powers.’”
Regrettably that particular teaching opportunity was missed. And again, perhaps it is too much to request at this particular moment or from candidates who do appear to be trying hard to engage. But more opportunities to teach will come on any number of topics, whether during the election cycle or thereafter. We can only hope that the opportunities are seized. There certainly appears far greater likelihood that more efforts to capitalize on such chances will come with a Biden-Harris administration than the current one — though this column is not intended to be an overall assessment of the candidates.
If ever there were a time when sound bites need to be left to the dustbin, this is it. As the fictionalized Bartlett once offered, “there aren’t very many un-nuanced moments in leading a country that’s way too big for ten words.” We need leaders capable of marshaling history and context and life’s experiences and synthesizing them all into clearly stated visions — under our principled foundations — of how we move forward together into the next chapter of this country’s growth.
John J. Hamill, October 2020
[A modified version of this piece appeared on Michael Smerconish’s website at https://www.smerconish.com/criticalthinking/we-no-longer-have-teachable-moments-from-our-leaders]
(image credit Miguel Henriques @miguel_photo)
