What Would John Dewey Say About Court Packing?

In footnote 2 to the first post in this series, I noted that the American philosopher John Dewey rejects what we now call Social Contract Theory. I was taught this theory in school as an explanation of the rationality of the State, and it was reinforced when I read John Rawls’ A Theory Of Justice. Once again I find myself unlearning a principle I never thought to question.

When I say I was taught Social Contract Theory in school I overstate. My teachers in law school occasionally mentioned it without really arguing it out or describing alternatives. I’m certainly no expert on it. This article in the Stanford Encyclopedia of Philosophy gives an overly detailed discussion of contemporary views of the theory. Here’s the article I linked in the previous post from the Internet Encyclopedia of Philosophy which is more readable. As I noted, the social contract approach is dominant in political thinking.

Dewey flatly rejects this idea. I linked to one source for this in the first post. He discusses it in passing in his book Experience and Nature (1925). [1] Dewey discusses the nature of the mind of the individual, and illustrates it with a discussion of what he calls “social compact” theory. [2] Dewey thinks that human beings have changed as our understanding of nature and human nature have grown and changed.

The conception of the individual changed completely. No longer was the individual something complete, perfect, finished, an organized whole of parts united by the impress of a comprehensive form. What was prized as individuality was now something moving, changing, discrete, and above all initiating instead of final. P, 271 (references are to the Kindle Edition.)

He takes up what he calls the social compact, as a way of illustrating this change. He describes it this way:

The [social compact theory] declared that [the state] existed by means of agreements between individuals who willed the institution of civil order. P. 273.

Dewey says that the originators of this idea might have thought that their forms of government came about through war, accidents, personal interests and other natural occurrences, so naturally they were corrupt and warlike. A new arrangement brought about by actual agreements and enforceable covenants would be better. Dewey agrees with one aspect of social contract theory.

… [S]ocial institutions as they exist can be bettered only through the deliberate interventions of those who free their minds from the standards of the order which obtains. The underlying fact was the perception of the possibility of a change, a change for the better, in social organization. P. 274.

Dewey says that once people became aware of this, they began to change social conditions,

Social conditions were altered so that there were both need and opportunity for inventive and planning activities, initiated by innovating thought, and carried to conclusion only as the initiating mind secured the sympathetic assent of other individuals. P. 274-5

He is careful to point out that new innovative ideas don’t become reified until other individual minds come to agreement.

The wrong part of social contract theory is that once people established a form of government, the newly created form became fixed and immutable. The wrong idea is that there is only one right form, and that once it is in place, we don’t have to think about it again. Dewey thinks this idea is derived directly from social compact theory. It makes it difficult to change as time reveals new needs, new problems. It becomes a barrier to change. [3[

What does this have to do with court-packing?

Corey Robin says that the conservative movement has developed a three-legged stool to gain and hold power. He says they rely on the Electoral College, the Senate, and the courts, especially SCOTUS. Each of these is tilts grossly toward the power of the minority. They exploit these ruthlessly to control the exercise of government power. Robin calls this Gonzo Constitutionalism. That seems right.

It isn’t just the Constitution, though. Over the past centuries we have evolved a set of institutions and general theories of government to flesh out Constitutional provisions. Some are simply rules of varying degrees of formality, such as Blue Slips and the filibuster, or at the state level, the convention that redistricting is done only once every ten years following the census. Others are statutory, like the SEC and the Centers for Disease Control. Still others are the result of SCOTUS decisions, like the currently disfavored idea of substantive due process. [4] Robins says that conservatives exploit these, increasing their scope or destroying them as gives them more power.

Robin concludes that the Democrats will have to recognize that the institutions and norms that got us this far are failing because the conservatives have refused to accept them, and to work within their limits. Dewey would add that the point of government is to solve collective problems faced by the public, such as the climate crisis, the pandemic, the ugly disparities in wealth, income and life chances, and the failure to hold elites accountable for their actions. Conservatives deny that these as problems and do not offer any solutions.

Robin says that if the Democrats ever take control of government, they will have to be just as relentless in replacing failed norms as the conservatives are in destroying them. The Democrats will have to create new norms, new institutions, and new ways of understanding our democracy, all of which they will have to enforce remorselessly.

I’ll just add that if Robin’s solution includes court-packing, Dewey would approve. And so would I.

[1] This book is difficult even by Dewey’s standards. It’s a sort of Pragmatist metaphysics. I have hardly scratched the surface, but this part makes sense on its own.

[2] To put this in context, I’m reading from Chapter 6 titled Nature, Mind and The Subject . Dewey describes the views of Plato and Aristotle concerning the nature of the individual. He concludes that they did not look at psychological states. They say that the objects in the world and the patterns they create, and the patterns humans need to recreate them, all are given by nature. The mind of the individual is an observer and learner of those objects and patterns. The artisan follows those patterns to create objects. That is as true of the maker of clay pots as it is of the philosopher looking at human society. I think this means the self is not a subject as we use the term, not exactly a self-driven agent, but simply another kind of object in the world. I could easily be wrong.

He then turns to more modern ideas of the individual.

The idea that generalization, purposes, etc., are individual mental processes did not originate until experience had registered such a change that the functions of individualized mind were productive of objective achievements and hence capable of external observation. P. 270-1, Kindle Edition.

This is a tipping point in our development as a species.

[3] Dewey writes: “The fact that the intent of the perception was veiled and distorted by the myth of an aboriginal single and one-for-all decisive meeting of wills is instructive as an aberration…”. P. 274. So much for John Rawls’ Original Position. Dewey accepted the basic idea of evolution: that there is no purpose to natural evolution, no drive to some perfect state. Purpose comes from people.

[4] Another example is Marbury v. Madison in which the slave-holder John Marshall decided that SCOTUS was the final arbiter of questions of constitutionality. That hasn’t worked out well especially in the protection of our democracy. Consider the absurd holdings in Shelby County v. Holder and Citizens United v. FEC. For serious criticism see The Case Against The Supreme Court by Erwin Chemerinsky.

7 replies
  1. earlofhuntingdon says:

    “the deliberate interventions of those who free their minds from the standards of the order which obtains.”

    Here, Dewey seems to presage Pierre Bourdieu and his argument that a system’s elite structures its educational system so as to hide from the public the system’s order, to make it less vulnerable to change unwanted by the elite.

    One way the elite hides a system’s true order is when it proposes frequent distracting alternate explanations for it. Social Darwinism and its contemporary forms is an example. Constitutional originalism is another, in that it permits only the elite to vary the system in its favor. The Democrats need to realize the power that may shortly come to them, and to do the right thing with it.

    • Ed Walker says:

      Democrats operate in a theory-free political universe, unguided, and essentially thoughtless. Republicans have a theory: power is good and we should have all of it and use it for our purposes.

      Dewey offers a practical view of small-d democracy that is both hopeful and realistic. His views of political theory have been submerged since the New Deal. We need them now as much as we need new theories of economics, like that of Stephanie Kelton in The Deficit Myth.

  2. Franktoo says:

    The Supreme Court’s most important job may be to protect minorities from the tyranny of majorities when they pass laws that conflict with the rights enshrined in the Constitution. Court packing is the ultimate form of tyranny of the majority. The alternative is to use the threat of court packing to pass an amendment that reforms the process of selecting Justices: 9 justices serving 18-year terms, 60 votes needed for confirmation (of all judges), and nominees are seated unless Senate votes within 75? days. SC justices be under 56 when term begins. Presidents would begin nominating early in his first and third years for the vacancies opening 18 months later. Extremist judges would know they can’t get approved, so they and the president will stop wasting time being repeatedly rejected. SC Justices don’t exist to implement the policies of the president who picks them or the voters, so potential nominees mentioned during campaigns should be disqualified from serving. If a candidate advertises a litmus test, justices appointed by a litmus-test President must recuse from litmus test cases.

    If Breyer resigns and is replaced early in 2021, under such an amendment, Biden could be nominating a replacement for Thomas who would begin serving near the end of 2024. Alito and Roberts would leave in 2026 and 2028 – all of three leaving much earlier than they might otherwise. If the amendment fails to pass quickly, then pack the court.

    The alternative is for the current circus to continue: for more Senates to stymie nomination, for the Dems to pack the court now and the Republicans to re-pack the court later, for Roe v Wade to be over-ruled and then re-instated. If we do nothing, the Court will continue to lose credibility in the eyes of the American people, a real threat to a packable Court charged with protecting minorities for the tyranny of majorities

    Yes, we might end up needing to privately fund transportation of women with unwanted pregnancies to more enlighten states. And the reality of an abortion ban might end the viability of the Republican Party outside of a few states.

    • bmaz says:

      Calling it “court packing” is ludicrous. Using that term plays right into the hands of the GOP monsters who would do it in a heartbeat if roles were reversed, and they effectively have for the last five years.

      The term is court reform, and it has been done many times since the founding. You know what is worse than “tyranny of the majority”? Tyranny of and by the minority. Talk of an amendment to the Constitution is laughable. It is not possible. Your fear of having a court that can actually represent the nation and function appropriately is confounding. And ridiculous.

    • earlofhuntingdon says:

      A constitutional amendment is a non-starter. If it weren’t, it would require most or all of Biden’s first term to pass it. So doing something with it in 2021 is a non-starter.

      The “ultimate form of tyranny” is NOT court “packing.” It is to be devoid of restraint, to separate norms from their purpose and to impose your will, regardless of consequences. That defines Trump and the current Republican Party, which holds that it’s president can do no harm and do whatever he wants. Watch how that perception of presidential power inverts itself under a Democratic president.

      The Dems absolutely need to expand the S.Ct. and enlarge the lower courts. The purpose would be to UNDO the court packing by McConnell – and rebalance the Court’s ideological make-up – and to do the volume of work modern America demands of them. It would be to add important voices to the S.Ct. that are now absent – criminal defense counsel, public interest lawyers, lawyers with technical expertise in privacy and computer law, and representatives from the LGBTQ community .

      Democrats need to ignore the filibuster and work through simple majority votes. That would ignore past norms – because those norms have already been discarded or lost any productive purpose. Not doing such things would be to accept the tyranny of the minority.

    • Ed Walker says:

      If you think SCOTUS protects the Constitutional rights of minorities, I suggest you read Erwin Chemerinsky’s excellent book The Case Against the Supreme Court. The record of SCOTUS in this regard is abysmal and embarrassing.

      • bmaz says:

        It is one hell of a lot better than what Franktoo contemplates. The idea is to make it better, not to remove any and all credibility of the Article III branch. And I will literally fight anybody that thinks otherwise. People who believe in that do not actually believe in the Constitution and should be scorned and laughed at.

        Instead of blithely and stupidly trying to tear down the courts, try to fix them. work to make them better. Jesus.

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