How Court Packing Gave Us the Modern Supreme Court

John Marshall’s opinion in Madison vs. Marbury, the foundation of its role as a co-equal branch, is magisterial. The case that inspired it was anything but.

Silhouette portrait of John Marshall by William H. Brown / Library of Congress

Ain’t it something? What makes it special — this whole moment came from nothing.

— Bubba Sparxx, “Ugly”

The left has been feeling its oats in the past year, and has every reason to — while standard-bearer Bernie Sanders fell quickly to Joe Biden in the primaries, the left (and Sanders in particular) has been able to push the new president. His administration has treated left-wing econ think-tanks like a farm team.

Recently the Biden administration announced a “Supreme Court commission” to address one of the left’s shoot-the-moon ideas, upzoning the highest court in the land and packing it with Democratic appointees to balance its rightward shift. The left’s judicial infrastructure isn’t as robust as its economic infrastructure — reflecting, perhaps, the interests of its standard-bearer — and certainly isn’t as robust as the right’s, and the commission’s roster reflects that.

So it’s probably not going to go anywhere the left wants, or anywhere at all. The lower ranks of the judiciary are perhaps a better target, though the whole operation is generally treated like the ark of the covenant rather than a politicized branch of government. But it wasn’t always so. At first even the Supreme Court was treated like a backwater. There was always the potential for it to become what it is, but that power had to be seized — and it was an egregious act of court packing, in the midst of the United States’s first peaceful transfer of power between parties, that was the catalyst.

You have probably heard of Madison vs. Marbury. Maybe you even had to read it in college to get to the good stuff. The Supreme Court had to write it to get to the good stuff — it’s the Genesis 1:1 of high-court decisions. If you’re like me (lazy, dumb) you had to recognize it as the Supreme Court defining what it is allowed to do (a lot) before it got to do all the things it’s done, which seemed a lot more interesting at the time.