Say you’re faced with making a choice between two alternatives, but both are immoral in their own right. Is it possible to make an objective calculation of which one causes the least total damage? Is it moral to do so?
Thomas Nagel wrote “War and Massacre” (1972) with this idea in mind, though it’s currently relevant to a different issue than his title invokes. Of the plethora of major issues in this nation’s headlines right now, one of the most important is the Republican rush to fill the current Supreme Court vacancy.
In response to this threat, there is discussion of increasing the number of justices on the bench once the confirmation process is controlled by Democratic lawmakers, a strategy known as court packing. This strategy is notably less than desirable. If every unsatisfied congressional majority resorted to it, the court would have dozens of justices after a few election cycles. After a certain point, adding more people into deliberations might hinder the process of reaching timely, legitimate agreements.
Court packing is clearly not an ideal solution to this problem. But considering that Congress has the ability to protect the interests of millions by doing so, I think that it is equally, if not more, immoral to avoid court packing should the need arise.
We don’t live in a vacuum. The Supreme Court holds the power to both improve and disrupt many aspects of our lives. If it is the common belief that the court will not protect or prioritize these things, as seems likely if the current nominee is confirmed, all methods of intervention should be considered, including court packing.
This puts us between Nagel’s hypothetical rock and a hard place. The complexity of the situation and the lack of a clear, morally sound solution leads us to consider immoral ones.
The realization that none of our choices are entirely “right” is somewhat disturbing, though Nagel says it shouldn’t be. It only feels uncomfortable because we are accustomed to being able to achieve what we “ought” to do, while in this case “ought to” is not synonymous with “can.”
In situations similar to this one, the default reaction tends to be to do nothing. It is easier to ignore guilt, especially for an institution like Congress, when the guilt is caused by inaction and not a conscious step toward change.
This is one case, though, in which we cannot afford to do nothing. Not taking action to protect our nation’s most vulnerable would be much harder to remedy in the long term than doing some damage control after court packing.
Nagel says that “We have always known that the world is a bad place. It appears that it may be an evil place as well.” This definitely feels true when such high stakes force us to choose between multiple flawed options. But if one option makes the world less evil in the long run, it’s not such a bad decision after all.