Journalists have developed an elaborate taxonomy to describe Donald
Trump’s subversions of truth, distinguishing “exaggerations” from
“misleading claims,” and “false statements” from bald-faced, flat-out
“lies.” There is not yet, however, a term for Presidential boasts that
sound like lies but happen to be true. Such statements are rare, but
Trump uttered a notable one on October 16th, during a joint press
conference with Mitch McConnell, the Senate Majority Leader, in the Rose
Garden of the White House. “There has never been anything like what
we’ve been able to do together with judges,” Trump said. This assessment had all the trappings of a typical Trump whopper: vagueness and smugness. And yet he is right. McConnell’s strategy of
shutting down the judicial-appointments process during Barack Obama’s
last two years in office gave Trump, at the time of his Inauguration, a
hundred and three vacancies to fill—more than twice as many as Obama had
in 2009. The number of openings has continued to grow,
and Trump has been filling them at an unprecedented rate. His nominees,
as a group, are the youngest, whitest, male-est, and most conservative in modern memory. Newt Gingrich observed in a recent op-ed that “the importance of this dramatic reshaping of the entire federal
court system cannot be overstated”—another hyperbole that is, very possibly, accurate.

Still, for some conservatives, Trump’s reshaping of the courts is not
nearly dramatic enough. Steven G. Calabresi, a law professor at
Northwestern University and a founder of the Federalist Society, has
described Trump’s achievements so far as a mere “pin-prick.”
On November 7th, Calabresi published a sweeping plan to pack the federal
courts—not just by filling vacant seats but by increasing the number of
seats for Trump to fill. The proposal,
co-authored by Shams Hirji, a recent graduate of Northwestern’s law
school, is dressed up with data and charts about judicial caseloads, but
its stated premise is straightforward: to create “a sufficient number of
new judges that would help change the balance of power . . . back to a
conservative majority” and would clean up the “damage done to the rule
of law” by Obama’s appointees. How many new judges? Thirty to fifty per
cent more than we have today, Calabresi suggests, and he would like them
right away, please—before Democrats have a chance, in 2018, to take back
the Senate. As the former Clinton and Obama adviser Ron Klain has pointed out,
in the Washington Post, this would, “almost overnight,” make the
number of Trump-selected judges on the federal bench nearly equal to the
number appointed by the last nine Presidents combined.

Calabresi’s proposal owes a great, if unacknowledged, debt to Franklin
Roosevelt’s failed attempt to increase the size of the Supreme Court
from nine Justices to fifteen, a plan put forth in 1937. The defeat of
F.D.R.’s plan required a massive, months-long battle by courageous members of Congress who were in the President’s own party,
and a bipartisan commitment to the sanctity and independence of the
judiciary. What makes Calabresi’s proposal alarming is that such
resistance is practically inconceivable in the party that controls
Congress today.

The most effective argument against Roosevelt’s plan—which aimed to
expand the lower courts as well as the high one—was that it would
concentrate too much power in the hands of the President. Dorothy
Thompson, a much-admired foreign correspondent who had been expelled
from Nazi Germany, told a congressional panel that “this is the way”
that dictators seize power. “The modern coup d’état . . . does not destroy
the legal apparatus of the state,” she said; it simply absorbs it. With
an eye on Europe, Senator Edward Burke, a Nebraska Democrat, told a
crowd at an anti-court-packing rally that “democracy is face to face
with death” when courts are made mere instruments of the political
branches. Few Americans considered Roosevelt a homegrown Hitler, but
many agreed with C. C. Burlingham, a prominent attorney, who warned that
“as the political pendulum swings we may have reactionary presidents and
reactionary senators” who might follow F.D.R.’s lead and pack the courts
for their own purposes. In an editorial, one Chicago newspaper imagined
a President who was “the creature of a Ku Klux Klan party, with all the
fanatical belief in racial and religious intolerance which goes with
it,” and what he might do with control of the courts.

In June, 1937, ten members of the Senate Judiciary Committee—seven of
them Democrats—condemned Roosevelt’s Court plan in a fiercely worded
report. Court-packing, they wrote, “applies force to the judiciary. It
is an attempt to impose upon the courts a course of action” and would
“make this Government one of men rather than one of laws.” It should
therefore, they concluded, be “so emphatically rejected that its
parallel will never again be presented to the free representatives of
the free people of America.” In the end, the Court plan was undone
mainly by the Court itself. Its famous “switch in time that saved
nine”—a well-timed reversal of recent, unpopular decisions—weakened
Roosevelt’s rationale and his supporters’ resolve. But the clarity and
intensity of the Democratic opposition to court-packing made a crucial
difference. In defeating the plan, they and their Republican allies
reaffirmed a notion of constitutional government that endures, eight
decades on, despite its vulnerabilities.

But perhaps it was too much to ask that “its parallel will never again
be presented.” Last week, Judge William H. Pryor, Jr., a George W. Bush
appointee on the Eleventh Circuit Court of Appeals, published an anguished Op-Ed in the Times, attacking Calabresi’s proposal and
insisting that “there is nothing conservative” about it. (Pryor
ridiculed Calabresi’s notion that the “optimal” number of judges on the
Eleventh Circuit is not twelve, as it now has, but fifty-six.) Yet
Calabresi’s plan is consistent with the way many conservatives have come
to view not only the courts but all institutions of government, from
independent agencies to state legislatures: as territory to be seized
and held by whatever means. Trump, for now, seems to be getting all he
wants out of the judicial-appointments process: he is indeed likely to
“set records in terms of the number of judges,” as he exulted in
October. But that satisfaction will be short-lived if the courts
continue to stymie his initiatives, as several have done with his travel
ban, and if they prove receptive to arguments made by the special
counsel, Robert Mueller, or any of the numerous lawsuits that have been
lodged against the President. In that event, Trump might well be tempted
to apply a little more “force to the judiciary” and swamp it with even
more of his own appointees. If Trump were to pursue a court-packing
plan, would any Republican stand up to stop him?