Supreme Court

Dangers of Growing Support for Court-Packing

There is growing support for packing the Supreme Court among liberal Democrats, including some presidential candidates. It's a terrible idea that would severely damage the institution of judicial review, if ever implemented. Thoughtful liberals would do well to reject it.

|The Volokh Conspiracy |

The Supreme Court.

In recent weeks, there has been growing support for court-packing on the left. A number of prominent liberal Democrats, including several presidential candidates, have either endorsed the idea of expanding the size of the Supreme Court to reverse the current 5-4 conservative majority among the justices, or at least indicated they are open to it. Those expressing such views include presidential candidates Pete Buttigieg, Kamala Harris, Elizabeth Warren and Kirsten Gillibrand. Former Obama administration attorney General Eric Holder also argues that the idea should be "seriously" considered. Presidential candidate Beto O'Rourke has suggested a plan to increase the size of the court to fifteen justices: five Democrats, five Republicans, and five more justices selected by the other ten.

Liberal advocates of court-packing argue that it is a justifiable response to previous Republican bad behavior on judicial confirmations, most notably the GOP-controlled Senate's refusal to hold hearings on President Obama's nomination of Judge Merrick Garland in 2016, which eventually enabled to President Trump to fill the open seat with Justice Neil Gorsuch in 2017.

Both parties have engaged in skullduggery on judicial nominations in recent years, the GOP most certainly included. In my view, the refusal to consider Garland was understandable in light of previous Democratic actions (including their own refusal to hold hearings on a number of prominent Bush-era judicial nominees). But it is also true that it was a risky escalation of the judicial nomination wars.

Be that as it may, court-packing would be a dangerous step beyond previous judicial nomination shenanigans because, unlike them, it threatens to destroy the entire institution of judicial review, by creating a pattern of escalation under which each party would pack the court any time it simultaneously controls both Congress and the presidency. That would ensure that the Court would almost never rule against any significant initiative of the party in power, no matter how dangerous and unconstitutional. I discussed the flaws of court-packing in more detail here, here, and here. Prominent liberal Harvard Law School Professor Laurence Tribe summarizes the danger well:

Larry Tribe likewise argues against court-packing. "I'm not in favor of trying what FDR sought to do — and was rebuffed by the Democratic Senate for attempting," he tells me. "Obviously partisan Court-expansion to negate the votes of justices whose views a party detests and whose legitimacy the party doubts could trigger a tit-for-tat spiral that would endanger the Supreme Court's vital role in stabilizing the national political and legal system."

Similarly, Democratic Senator and presidential candidate Cory Booker "caution[s] people about doing things that become a tit for tat throughout history… So when the Democrats expand it to 11, 12 judges, when Republicans have it, they expand it to 15 judges." Booker and Tribe are right. And indeed these sorts of structural concerns are exactly what led a Democratic-controlled Congress to bury Franklin D. Roosevelt's 1937 court-packing plan—the last serious attempt to expand the size of the Court in order to shift its ideology. Critics rightly feared that court-packing would create a Supreme Court subservient to whatever party controlled the presidency and Congress at the time.

As Democratic Senator Burton Wheeler put it in a speech on FDR's plan:

Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.

For what it is worth, my opposition to court-packing is is not limited to plans put forward by liberal Democrats. I first wrote about the subject when prominent conservative law professor Steven Calabresi and his coauthor Shams Hirji put forward a plan for Republicans to pack the lower federal courts back in 2017. It was a bad idea when raised by some on the right two years ago, and it's no better now when it is gathering steam on the left.

Undermining judicial independence might be a feature of court-packing rather than a bug if you believe that judicial review does more harm than good, in any event (as do a few legal scholars on both the right and the left). Such people contend we would have a a freer and more just society if the courts let the political branches of government do as they please. I believe that is a dangerous delusion, for reasons I summarized here:

For all their serious differences and very real flaws, mainstream liberal and mainstream conservative jurists still agree on many important questions, including protection of a wide range of freedom speech, basic civil liberties, and ensuring a modicum of separation of powers, among others. History shows that these are the sorts of restraints on government power that the executive (sometimes backed by Congress) is likely to break during times of crisis, or when they have much-desired partisan agendas to pursue. Such actions are especially likely if the president is a populist demagogue with authoritarian impulses. And, as the current occupant of the White House demonstrates, the safeguards against such people getting power are not nearly as strong as we might have thought before 2016. As specialists in comparative politics emphasize, it is no accident that court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela.

As a libertarian, I have a long list of reservations about both conventional liberal judges and conventional conservative ones. But even if the judiciary is staffed by flawed jurists, it is still a valuable safeguard against illiberalism and authoritarianism.

Some liberals who value judicial review generally might believe that conservative judges will not act to curb the abuses of Trump and other Republican presidents. If so, it might be better to risk blowing up the judiciary than allow conservatives to continue to have a majority on the Supreme Court.

It is indeed true that conservative judges have sometimes let Trump get away with violations of the Constitution, most notably in the egregious travel ban case. But conservative Republican judicial appointees (along with liberal Democratic ones) have done much to curb the administration's excesses in other important cases. Notable examples include the numerous rulings against Trump's attempts to coerce sanctuary cities, the recent Ninth Circuit decision against the administration's efforts to severely restrict migrants' opportunities to apply for asylum (authored by prominent conservative judge Jay Bybee), and a variety of decisions on such important issues as DACA, the administration's family-separation policy (struck down by a Republican-appointeed judge who ordered the administration to reunite the separated children with their families), and freedom of speech. If Trump had had a free hand to pack the courts as he likes, things would likely have been much worse. And the same goes for future presidents inclined to abuse their power.

Some on the left argue that the Democrats can expand the size of the Court without generating retaliation in kind by Republicans if they repackage court-packing as "court balancing" or some other similar euphemism. This is unlikely to work, for reasons I discussed here. Those attracted to such ideas should consider whether they themselves would forego retaliation the GOP tried to pull a similar trick.

Fortunately, the left is far from monolithic when it comes to court-packing. As the above quotes by Laurence Tribe and Cory Booker reveal, some liberals do recognize the danger. Other notable liberal critics of court-packing include former Obama White House Counsel Bob Bauer, columnist Damon Linker (who calls it "the dumbest Democratic idea yet") and well-known legal scholar Richard Primus. Whether Democrats actually move forward with court-packing the next time they have a chance to do so depends in large part on who becomes the next Democratic president and whether he or she decides to make this an important part of the party's agenda.

Some Democrats are instead promoting other, far more defensible, reforms to the Supreme Court. For example, Cory Booker has called for imposing 18-year term limits on the justices. I have no problem with that idea, which enjoys widespread (though certainly not universal) support from legal scholars on different sides of the political spectrum, such as Sanford Levinson on the left, and Steve Calabresi on the right. It would limit the power of individual justices without giving the president and Congress a blank check to pack the Court as they like.

Beto O'Rourke's plan to increase the size of the court to 15 justices (mentioned above) is far less problematic than standard court-packing proposals. Because it would require a balance between five Democratic and five Republican justices, with five more chosen by the first ten, it would not enable either the president or Congress to simply pack the Court with their own minions. There are, however, many practical problems with the plan. For example, it is not clear how the Democratic and Republican justices would be selected. In addition, if independents or third parties ever gain a significant foothold in Congress, they would be shut out of the judicial selection process. O'Rourke's proposal would also require a constitutional amendment to enact, which I think is highly unlikely to happen.

On the other side of the political spectrum, GOP Senator Marco Rubio plans to propose a constitutional amendment limiting the Supreme Court's membership to nine justices, which would prevent future court-packing. I am happy to support any such amendment. But I doubt that it can get enacted without some sort of quid pro quo for the Democrats. If it were up to me, I would be willing to pay a price to remove the danger of court-packing forever. But most Republican politician probably think otherwise.

For the moment, therefore, the main barrier to court-packing is the longstanding political norm against it. It has lasted for almost 150 years, and survived an assault by Franklin D. Roosevelt, one of the most popular presidents in American history. The next Democratic president is unlikely to be as commanding a figure as FDR was. On the other hand, the Democratic Party is arguably more ideologically cohesive now than in the 1930s, and the relative youth of the conservative Supreme Court justices (combined with increased life expectancy) makes it less likely that the Democrats can quickly retake control of the Supreme Court by "natural" means in the near future, than was the case back in 1937. And we should not underestimate the risk that liberal anger over the Court could help generate a "crisis of legitimacy" at some point in the next few years, which in turn could pave the way for court-packing. Nonetheless, I am guardedly optimistic that court-packing can still be staved off. But that happy outcome is more likely the more people understand the gravity of the danger.

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318 responses to “Dangers of Growing Support for Court-Packing

  1. Ilya, if you wish to complain about a man’s views, at least bother to spell his name correctly. Pete Buttigieg. You omitted the first i.

    1. At least he didn’t omit all the final 5 letters.

      1. At least he didn’t replace “gieg” with “plug”.

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        2. Maybe he did for his online persona. How do we know this Buttgag guy isn’t Shreek/PB/moneyshot?

      2. Thing is, I might be compelled to vote for a President Butt, just for how powerful that metaphor is.

        1. Only if the VP candidate were Mr. or Ms. Head. I think a Butt/Head ticket would be very successful, given popular opinion(s) of politics.

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    2. In Prof. Somin’s defense, he does no better with the spelling of Cory Booker’s name, and Booker agrees with him.

  2. It seems pretty clear that the living constitution has evolved to fix the size of the court at 9. Perhaps a majority of the court will agree.

    1. It’s just a plot to get Trump re-elected in 2020. The one thing his base is completely united on is nominating originalist judges to all levels of the judiciary. But rather than let them get complacent with Gorsuch and Kavenaugh the Russians are agipropting a supreme court packing scheme to revitalize his base.

      1. How did the Russians get the Dems to cooperate?

        1. Same way they always get them to cooperate: The check cleared.

        2. I guess the same way dems comply with their anti agenda policy. Fund liberal think tanks and it flows from there.

          1. Anti energy*

    2. That isn’t how liberal constitutional theory works.

  3. O’Rourke’s proposal would also require a constitutional amendment to enact, which I think is highly unlikely to happen.

    If it is to be enforceable it would require an amendment, however there could simply be an agreement between the parties to nominate and confirm justices per this arrangement. Of course it would only take one president to refuse to play ball to either blow the whole thing or leave the court under-staffed

    1. In other words, the whole thing blows up as soon as one party thinks they can get an advantage by not playing ball, which means the first time it’s time to nominate someone for an empty seat.

      1. It wouldn’t necessarily be the first time, maybe the first time it ends up being a Republican president nominating to replace a Republican justice. We might even get 2 or 3 nominations out of the agreement lol

  4. Beto’s proposal as a constitutional amendment would enshrine the two party system, with the present parties, into the constitution. I can’t condone that.

    If it is done is a gentleman’s agreement, it could be somewhat stable, but if somebody dies or retires from one party while the presidency and senate are held by the other party, how do you choose the replacement? If the president nominates from his own party, that is a breakout. If the president nominates from the other party, who actually makes the choice?

    -dk

    1. Beto’s proposal as a constitutional amendment would enshrine the two party system, with the present parties, into the constitution. I can’t condone that.

      I would like to think it said something like “the 2 largest parties of Congress” rather than specify them.

      Anyway we already have a permanent 2 party system because of the presidency, whose veto power is a necessary asset to legislation, and thus what would be smaller parties in a parliamentary system band together to try for it. Eat your wheaties because it only rolls over to a new party nudging an old every 100 years or so.

      1. The presidency with veto power goes all the way back to the ratification of the Constitution in 1788 but the current political parties do not. While I concede that the two current parties have ossified, the presidential veto does not seem plausible as the causal factor.

        1. Ironically, I blame it on the LP. Back in the 70’s we knew that we’d have to grow really fast, or else the major parties would have time to erect barriers.

          Well, we didn’t, and they did.

          Now they’re secure against any threat an insurgent 3rd party can realistically offer. And they act like they know it, too.

          1. I’d blame campaign finance laws more than anything. Only billionaires can run outside the system with any efficiency. Parties can raise money continuously to feed their candidates. Third party independents run on single election cycles outside of incumbency benefits. End campaign finance if you want viable third parties.

            1. My understanding is the biggest obstacle is first past the post. That prevents third parties who do fairly well in elections from winning any seats or any power.

              In systems with proportional representation, third parties become power brokers.

              (New York’s cross-filing system is good too and would increase their power.)

            2. I blame the current two-party system on the kettle-and-pot situation during the Cold War. The parties weren’t all that different until the end: they had the same goals, same big policies, same support, and the same need to stay in power. I don’t think the situation will be the same in a few decades, with the Democrats breaking in half and the Republicans feeling the stress of being a big tent for increasingly divergent views.

            3. “I’d blame campaign finance laws more than anything. Only billionaires can run outside the system with any efficiency.”

              Trump being the obvious counter-example.

            4. Campaign finance laws are one of the WAYS they rigged the system against third parties. They weren’t really much of an issue back when the LP got its start.

              And they were adopted with conscious intent to hobble third parties and challengers.

            5. Blame the voters. They only vote for candidates the media tells them have a chance to win.

          2. “Now they’re secure against any threat an insurgent 3rd party can realistically offer. And they act like they know it, too.”

            Just wait. Both the major parties we have now are dealing with problems that could split them. The economic conservatives and the social conservatives have never been natural allies, and only stay together to oppose the D’s… who also tend to be more like a herd of cats than a monolithic unity.

            If either one goes kerbluey, the other one will celebrate for a couple of elections, and then shatter itself.

            After that, I foresee an alliance between moderate D’s and the economic-policy R’s, with the rabid social-conservative anti-everybodies as a second party, and the more socialist-leaning D’s pushed out into a third.

            There’s a chance that in that world, maybe grownups will run things.

            1. Gary Johnson was going for that, and got 3 percent. Not the best salesman, but people here seemed to think he was a plague on the LP.

        2. The American political system always stabilizes around two parties. The power of the presidency is a big part of this. Another is the committee system which has lasted a long time. There is simply no point to a third party that controls maybe ten seats in the House and two in the Senate. You are much better off working within one of the existing parties.

    2. My thinking of a gentleman’s agreement would be that if a nominee is needed from the opposition party the leaders of that party in Congress would tell the president who they want to nominate (or give a list of candidates) and the president would nominate that person, or someone from the list. Similarly if its from the 5 that the court selects the president would nominate whomever the court suggests (although a court selecting its own justices seems a violation of the principle of separation of powers)

      Of course in this day and age we don’t seem to have many gentlemen in politics, particularly not in the White House lol

  5. Be it a bad idea or a good idea, the climate today is different from the ’30s.

    “[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath”, said Alan Dershowitz.

    Anyone trying to believe that the Supreme Court was ruling on the law there would have been disabused when they reversed themselves and said state election laws overrode Federal powers in Shelby County v. Holder. Clear and unambiguous authority from the Fifteenth Amendment they threw out in favor of a doctrine that Judge Posner said with amazement he had never heard of before. In 2000, a state was not allowed to order recounts, but in 2013 states were allowed to make racist voting rules that could only be challenged after it was too late. The only principle in common was that Republicans must win at all costs.

    The Supreme Court has sacrificed the credibility they had in the 30s and made themselves vulnerable to packing or to more benign reforms. As an arm of the Republican Party, which just now allowed what Scalia called “indefinite imprisonment at the will of the Executive”, they face their institutional future without respect or bipartisan allies.

    1. The question in Bush v Gore was whether Florida’s supreme court could make it’s own law, overriding the legislature.

      I’d been as upset as anyone if the US Supreme court overturned established state law to meddle in an election, but overturning an activist state court trying to change the rules between an election and a final count is the way things should be.

      1. My only quibble was that this was a job for the House and state legislature to deal with. Constitutionally, it’s the House, not the Supreme court, that rules on the legitimacy of a slate of electors, and the state legislature had already decided to send up the Bush electors regardless of what the state supreme court said, and was looking into impeaching some state supreme court justices, too.

        I can understand the tendency to think, “The judiciary caused this problem, the judiciary should fix it.” but it really wasn’t their job.

        1. “My only quibble was that this was a job for the House and state legislature to deal with.”

          It was a classic political question. The political question doctrine has completely been vitiated. Courts hate having to say that they can’t rule on things. They want to be in the middle of the action.

      2. The fact that the supreme court has been silent on Ohio’s state court usurping the means and manner of federal elections is shocking. They are now letting courts violate the constitution at will.

      3. Meh. The principle that one cannot declare the winner of an election until all the votes have been counted* seems important to me. If you’re willing to sacrifice it because it looks like your guy will benefit, I’m not impressed with your arguments about Constitutional law, regardless of what they might have been.

        * except in cases where the margin of victory is greater than the combination of margin of error and remaining uncounted ballots.

    2. The 15th Amendment requires “appropriate” legislation. Using a 50 year old formula for determining preclearance is not appropriate, even if you can’t politically get through something that is appropriate.

      1. Exactly. The Court explicitly ruled as they did because the list of states subject to preclearance hadn’t been updated in decades.

        1. It was retarded. For example, in New York, Brooklyn and the Bronx were subject to preclearance, but Manhattan and Queens were not. I showed that to several liberal friends and none of them could even come close to defending it. Their responses were always something like “The list is very out of date, but it’s better than nothing.”

          No. The Constitution doesn’t work that way. I’m okay with preclearance in limited cases, but it has to apply to EVERY jurisdiction, not just some. I’d agree to VRA preclearance in exchange for gun law preclearance. Right now, liberals know that they can pass unconstitutional law after unconstitutional law, and it’ll take years for anything to happen.

          1. The problem with that reasoning (and I agree the VRA’s formula for coverage was outdated) is that there has never been a principle that the Congress has to treat the states or different localities equally. Congress can decide to build a military base in Oregon and not in Idaho. Congress can decide to protect farmworkers but not factory workers. Congress can decide to subsidize solar plants but not oil refineries. Congress can place an Interstate highway in central Pennsylvania and not put one in western Alaska.

            So there’s really no constitutional violation in Section 5’s coverage formula. Sure, it was stupid. Sure it was outdated. But the Constitution doesn’t prohibit everything that might be stupid or outdated.

            1. The difference there was that all of the examples you use are “disparate impact” type arguments. Here, you explicitly had a law applying to one state and not another. That’s fairly unprecedented, even if a subsidy to corn farmers advantages some states over others.

              Second, Congress has no constitutional authority to pass voting laws period, EXCEPT for ones that are “appropriate” in order to further the rest of Amendment 15. If Congress had general police power, you’d have a stronger argument.

              1. Let’s start with your second point. It’s false. Totally false.

                Congress can pass all the voting laws it wants, so long as they EITHER fall within the 15th Amendment power OR the enforcement power of some other amendment OR the enumerated powers of Article I OR the portion of regulation of elections that is granted to Congress OR the necessary and proper clause.

                There are a lot of sources of congressional power over elections. The Constitution is to be given a broad interpretation and federal powers are expansive. We don’t live under the failed limited government theory of the Articles of Confederation, which was emphatically rejected by the framers.

                But having said that, the only requirements under the 15th Amendment are congruence and proportionality. Prior to Shelby County, there was no requirement of equal dignity of states. Nor could there be. Some states restricted voting rights more than others. Indeed, the 15th Amendment was specifically targeted towards particular states that were being particularly disrespectful of voting rights despite the provisions of the 14th Amendment punishing states for the denial of voting rights.

                So there’s no reason whatsoever to construe the 15th Amendment as requiring that jurisdictions that historically respected the franchise are to be treated the same way as jurisdictions that disrespected it.

                1. I’m not talking about your bullsh_t liberal interpretation of the Constitution, but the actual Constitution.

                  On the first point, congruence and proportionality was the City of Boerne bullsh_t test for the 14th, not 15th. If the Constitution grants Congress limited powers, they have to be exercised appropriately. Period.

                2. No, NOT “OR the necessary and proper clause.” The necessary and proper clause is not, and never was, an independent source of Congressional authority. In order to fall within the authority of the necessary and proper clause, legislation must be necessary and proper for carrying into effect the exercise of Congressional authority under some other Article I power.

                  1. 1. The “Constitution” IS the interpretation of the courts. Your personal opinion about what the Constitution means isn’t worth shit. Seriously. Everyone should get out of the habit of thinking that ordinary citizens get to decide what the Constitution means. We don’t. The judicial power of the United States was invested in one Supreme Court and such lower courts as Congress might create, and THEY decide what the Constitution means. Not the rest of us.

                    2. Congruance and proportionality is the test for enforcement powers under any of the amendments that contain such language.

                    3. The necessary and proper clause IS a source of authority. It doesn’t matter if it is independent; the point is something might not, say, be within the commerce power, but it could still be necessary and proper to the exercise of that power.

              1. That just means there aren’t classes of states based on when they were admitted. The original states couldn’t lord it over the newly admitted ones.

  6. Here’s my suggested constitutional amendment:

    “Sec. 1. The Supreme Court shall consist of nine members, provided, that this Article shall not affect any person serving on the Supreme Court at the time this article comes into effect.

    “Sec. 2. This Article shall take effect five years after the date of ratification.”

    That would give until five years after ratification for one party to expand the court and add its own people, who would serve until they drop off, and the court wouldn’t get back to 9 until the excess justices had left – they simply wouldn’t be replaced unless the number of Justices dropped below 9.

    That would give the court packers a sporting chance without making court-packing a permanent feature of the system.

    1. Why? So they can completely trash the courts legitimacy with a bunch of partisan political decisions, the maybe in a hundred years or so the court can recover?

      1. Which “they” are you referring to?

    2. Mine would be:

      “Sec. 1. The Supreme Court shall consist of no more than nine members and no fewer than seven members, provided, that this Article shall not affect any person serving on the Supreme Court at the time this article comes into effect.

      “Sec. 2. All Supreme Court nominees must be confirmed by at least a two-thirds confirmation vote in the Senate.

      “Sec. 3. This Article shall take effect six years after the date of ratification.”

      That way you get the court packers to come on board because they believe that nothing will change in such a short span of time and their opinions will be enshrined forever…and then when it turns out that whoops, four years down the road that’s not the case, there still won’t be enough agreement among members of the new ruling party to get any significant majority in place. Plus, it would (hopefully) make members of the Senate more inclined to compromise.

      1. My suggestion is admittedly a gamble, hoping that the Repubs will be able to hold onto at least the Presidency and one branch of the legislature, so as to fend off court-packing for five years, after which that option will be off the table.

        But I am not so sure I’m as impressed by my own cleverness as I was when I just recently posted my idea.

        All the procedural arguments miss the point that, while both parties are bad, the Dems are most especially bad when it comes to judges, and allow for the possibility that they’ll be able to pull of court-packing just before a ban on any counter-packing comes into effect… that would not be a fun thing.

        And such an amendment would rest on the assumption that control over the Supreme Court means control of the Constitution – ignoring the potential of, say, states and juries to defend the Constitution.

  7. So, you finally noticed? They’ve been raving about it for a bit over two years, after all.

    Sadly, I think that, at this point, it’s too late to talk them down from it. Barring a constitutional amendment, they WILL back the Court at the next possible opportunity.

    And it’s probably too late for the amendment, barring a constitutional convention. Democrats in Congress won’t vote for such an amendment so long as they think they’ll have the opportunity to pack the Court first; The best chance to get such an amendment out of Congress was two years ago, when Republicans controlled both chambers, and nearly enough state houses to ratify, and could have credibly threatened to pack the Court themselves if Democrats didn’t get onboard with such an amendment.

    Now? The Democrats control the House, which means Court packing is off the table until after the 2020 elections, and the Democrats anticipate unified Democratic government after that election. They have no reason to support such an amendment.

    The worst part? Court packing isn’t the finish, it’s the start. It’s just meant to clear the judicial path for things far worse. (I’m guessing you’re familiar with Tushnet.)

    He who hesitates is lost, and we took way too long about taking this threat seriously.

    1. “Democrats anticipate unified Democratic government after that election”

      They anticipate a lot of things, like Trump being too weak to win or Clinton rolling to victory.

      The 2020 map in the Senate is not especially bad for the GOP. Colorado is lost and probably Arizona but Doug Jones in Alabama ain’t running against Moore this time. Its mainly Plains and Southern GOPers otherwise, all are likely to win.

      That is one net change, not enough.

      1. When you consider how many seats the Democrats had up for the Senate in 2018, compared to how few the Republicans were risking, gaining only as many as they did was a case of horribly under-performing. Given a less tilted playing field, the Democrats would have slaughtered them.

        If the Republicans perform that badly in 2020, on a roughly even field, they WILL lose the Senate.

        Unfortunately, there’s this dynamic, we’ve been through several cycles of it, where the Democrats get control, do something totally crazy, (’94 AWB, Obamacare) and get kicked out by horrified voters. Then the Republicans, swept into power, proceed to blow off everything they’d been elected promising to do, and after a couple election cycles, the public forgets how terrifying Democrats in power really are, and kick out the Republicans.

        It looks to me like 2020 may be a “kick out Republicans” election. The Democrats are talking about doing a lot of crazy things, but they haven’t been in a position to DO them for a while, and the public may be, aided by the media, forgetting the horror again.

        1. Except in Tenn., all the GOP incumbents are running again and 2108 showed that Tenn. is a very strong GOP state. All the states with GOP incumbents except for Maine, Colorado and Arizona are strong GOP states and Collins is not losing.

          I think they will be fine.

          Plus, of course, Trump may win. If the economy stays strong, he probably will win.

          1. I wouldn’t put much money on Collins if I were you, Bob.

            1. I have no time for Collins, but the notion that she’s in trouble strikes me as wishful thinking from the Kavanaugh Derangement crowd. Maine folk tend to like their Senators – for some unfathomable reason, and there’s a large chunk of middle of the roaders who go round setting applecarts upright again, rather than the opposite.

              Sure she could lose, but Ernst, Tillis, Gardner, Perdue and McSally would have to lose before Collins would. Which could happen on a bad GOP night. But the better bet, at present, is that the GOP keeps the Senate in 2020, and if they do, Collins will still be there.

              But if you have a different view, there’s money to be made on the betting markets.

        2. No it’s more that there are enough third worlders voting now that the things that horrify Americans don’t horrify the voter base in the same way.

          1. i honestly do not believe the SC will ever get packed. In the unlikely event that the Democrats capture everything in 2020, even a filibuster-proof Senate, the Republicans would obviously sue to prevent it. Once it reached this SC (or an even more conservative one), the members probably would not agree with the changes, and despite an absence of explicit guidance in the Constitution, they would easily “find” a reason why it was unconstitutional. Exactly as they did with Obamacare.

            1. Palatki: “In the unlikely event that the Democrats capture everything in 2020, even a filibuster-proof Senate”

              I think the only /sure/ thing standing in the way of court packing is Republicans holding on to the Senate.

              Democratic and Progressive sites have been kicking idea around — pretty steadily — since 2016, and now that leaders of the party are on it — including some who might become president — it will be hard for Democratic members of Congress to oppose it.

              Don’t expect the Senate filibuster to stand in the way. The venerable and much maligned institution is tottering on its last legs, and when the Court Realignment and Protection (CRAP) Bill comes to the Senate the first order of business will be to do away with the filibuster entirely. The second order will be to pass the bill and then begin the search for Progressive justices.

              You think it wouldn’t happen? Just how many Democratic senators or representatives would have to cross over — at the risk of political suicide — to stop it? And if it doesn’t happen following the next election, it could in 2022 or 2024, or whenever the D’s own all three “Houses.” We’re on the edge of a cliff have been edging toward for half a century.

              1. I don’t believe Manchin would vote for it, so the Ds would have to hold Alabama and flip 4 seats. Or lose Alabama and flip 5. doable but pretty hard. 10% probability at present ?

                Much higher if there’s a recession though.

            2. If it isn’t this it will be some other bit of bullshit that will be a bridge too far and then peple will finally get the message that progressives have got to go.

        3. “Unfortunately, there’s this dynamic, we’ve been through several cycles of it”

          I think you’re mis-analyzing it (likely do to partisan goggles).

          There’s a big middle ground of Americans who aren’t particularly political, and for the most part, they like the status quo. When either party gets cocky and starts trying to make big changes to suit their partisans, they piss off the centrists and get the boot.
          It has nothing whatsoever with what either party is promising to do; nobody believes a damn thing they say. R’s out of power are in favor of shrinking the government; then they get into power and suddenly remember that they LIKE running a big, powerful government. Out of power, the D’s talk up a storm about helping “the little guy”, then they get into power and suddenly they like the big guys, the ones with all the money.

    2. So, you finally noticed? They’ve been raving about it for a bit over two years, after all.

      I’m going to point out that you’ve apparently missed the numerous posts since the start where Somin has said that court packing is a bad idea.

      Well, you didn’t actually miss them because you commented on them, but you know what I mean.

      1. Honestly? I’m 60, now, and some days my memory isn’t what it used to be. Other days it’s great.

        1. That’s fine but it might be prudent to be less snarky.

          1. Indeed, and I’ll keep that in mind.

            If I remember I should…

    3. “Barring a constitutional amendment, they WILL back the Court at the next possible opportunity.”

      This acts like a constitutional amendment is some end around democrats, but you can’t have a constitutional amendment without their agreement. If you can talk them into a constitutional amendment, you’ve already talked them out of court packing. The amendment would be redundant.

      1. No, not really; An amendment only needs you to talk them into it now, a gentlemen’s agreement relies on them never changing their minds.

        But, like I said, the amendment isn’t happening now, barring a constitutional convention. The moment is passed for that, like for so many things the Republicans should have done in the last couple of years, and didn’t bother.

        1. They really couldn’t. Not with traitors like McCain (may he rot in hell), Murkoski and Collins at the helm.

          1. Agreed. That majority they had during Trump’s first two years was largely nominal. It wasn’t a working majority once you took into account the RINOs.

            1. That’s why I’ve always said I’d rather have a Democrat than a RINO. Having RINOs in place only ensures that the Republicans take the blame for liberal policies. If the policies are going to be put into place (or kept in place) anyway, let the Democrats take the blame.

              1. Exactly guys.

        2. An Article V Constitutional Convention by the states is still close to convening. Republicans lost a few Governors which they likely need. Also a few swing states would be needed to get to 3/4 of the states to ratify.

          I think holding a Constitutional Convention is the key to getting the ball rolling. Get 2/3 of the states on board with 10 good amendments (federal budget balance requirement with debt limits, Congress/SCOTUS term/age limits, etc) and you just need a few more states to ratify those amendments.

          1. A new constitution written at a constitutional convention in 2019 or 2020 would be far less libertarian than the one written in 1787.

    4. Easy solution. The Senate passes the Amendment, hands it to the House. The House either passes it, signalling that they want this game to remain sane, or Trump files nomination paperwork for the remaining 24 candidates on his short list.

      If having a much enlarged court is a good idea, no reason to wait, right?

      1. Get an education, clinger. Start with mathematics.

        Backwater religious schooling doesn’t count.

        1. Get a life, you shit gargling cum dumpster fire.

      2. The size of the Supreme court is set by law. Trump can nominate all he likes, but the Senate can’t enlarge the Supreme court without the House’s agreement.

  8. “So when the Democrats expand it to 11, 12 judges, when Republicans have it, they expand it to 15 judges.”

    I don’t see that as a logical, expected follow-on.

    How would that benefit Republicans?

    Anyhoo…my real point is I don’t know what the “magic” number is (or should be) and don’t think anyone can say either.

    7? 9? 15? 25?

    If anything, I would think a larger number would help reduce the pure, 5-4 ideological, decisions as there would simply be more room for nuanced decisions by separate justices.

    Also, if we did an amendment for cementing the number, then I would include a term limit, e.g 18 years.

    1. The Democrats aren’t proposing to expand it to 11, they’re proposing straight to 15, meaning 6 new Justices.

      That would be picking 3/4 of the new majority in one fell swoop. Basically, they don’t just want a majority on the Court, they want a super-majority, so that they can afford to lose a couple of justices on any given decision and still win; They’re aiming, not for a liberal Court, but a rubber stamp.

      The key thing here is that the tit for tat nature of Court packing is obvious, so nobody in their right mind proposes it without some plan for how the other side never gets to reverse it. For the Democrats, Court packing isn’t the end, it’s the beginning.

      After that comes naturalizing all illegal aliens, press ganging all the territories into becoming states, making D.C. a state, (Bingo, you’ve just packed the Senate, too!) overturning all the freedom of political speech decisions so that campaign reform can silence the opposition… See Tushnet’s various writings on this topic, he was gaming it out before Trump even won the election.

      Basically, they’ll prevent Republicans from doing it to them when they get control of government by seeing to it that that can never happen.

      The last election before Court packing is the last election that matters. It isn’t Court packing we should fear, but what comes after.

      1. Exactly Brett.

        The Democrats know that RBG will have a replacement named by Trump soon. Thomas might retire and be replaced by a Trump nominee. Breyer is pretty old too and might be replaced in the next 6 years of the trump Presidency.

        The writing is on the wall for Socialism in the USA and Trump’s election shows that incrementalism of Socialism did not create the win that they thought they had. Trump is able to roll back some government relatively easily and it might embolden other Americans to get elected and roll back government.

        Trump’s new SCOTUS justice appointees are likely to rule future plans like Obamacare unconstitutional. Since the Democrats cannot get popular support for many of their Socialist plans, they need bureaucrats and justices to help them. Which is why you have the dreams of packing the Court.

        1. “The Democrats know that RBG will have a replacement named by Trump soon. Thomas might retire and be replaced by a Trump nominee. Breyer is pretty old too and might be replaced in the next 6 years of the trump Presidency.”

          So, by your math, Trump is a 3-termer? Or is he President-for-life, like our new ally North Korea has?

          1. I think he rounded up where he should have rounded down. If he wins in 2020, it would be 5 years and a couple months from yesterday.

            1. Eh ? If he won in 2020, then the Reaper and Impeachers permitting, he’d leave office January 2025. Hence he’d have 5 years and 10 months left as of now. So 6 years is a perfectly reasonable rounding.

              The fact that it’s all been a madhouse since Nov 2016 makes you feel that Trump has been President for a decade. But in fact it’s only a couple of years.

              1. ” But in fact it’s only a couple of years.”

                It was two years a couple of months ago, so six more years gives him more than 8. Ergo, either a third term, or President-for-life.

                On the one hand, President-for-life is what he’d like; he’s jealous of people who have it (Putin, Kim, Saudi royals).
                On the other hand, President for life might be long enough for even his stupidest fans to come to realize he’s full of shit, and has been all along.

                1. Goddamn Pollock, you are tiresome and vexatious.

                  1. Gee, and I had such HIGH esteem for you, Shitty.

      2. That’s why a 2nd Amendment remedy is looking more and more unavoidable.

        I’m now up to 100,000 rounds of 5.56.

        1. You’re that bad a shot? Put the barrel directly in your mouth, and you only need one round.

          1. No, I’m a great shot. It’s just that there’s a lot of violent liberals out there.

    2. When Republicans have it? Seriously?
      Democrats intend PERMANENT control.
      There will be no “when Republicans have it”.

      1. Exactly. One more amnesty and the whole country is like California.

    3. Current US population is around 328 million (give or take a few million for non-citizens). We could end up with a Supreme Court numbering 328 million; then the only question is whether non-citizens can serve on the Court.

      1. Just vote on everything on Facebook. No more recounts.

  9. “Washington, 2030 – The Supreme Court today,, in the case of Tappa Kegga Fraternity v. Neighborhood Association, voted 150-50 that the a noise ordinance violated the constitutionally guaranteed right to party.”

    1. Chief Justice Brett Kavenaugh, writing for the majority “If it’s too loud, you’re too old!”

    2. The Beasties were right all along

  10. I don’t like the talk of court packing or rearranging and I wish Democrats would drop it. I could see a term limit of 18 to 20 years as acceptable. I think a number of good judges get over looked because they are too old. These days it not just your judicial record that is looked at but your age. A term limit might get these older judges some consideration. But the bottom line here is that Democrats have to start thinking about the courts. They treat it as an after thought and then are flaying for solutions after they have lost. If Democrats want to have more say they need to win elections for President and for the Senate.

    1. “But the bottom line here is that Democrats have to start thinking about the courts.”

      I believe they *have* been thinking about the courts. It is my understanding they’ve been thinking about it for some time – and not just thinking about it, but appointing judges of their own way of thinking.

    2. “I don’t like the talk of court packing or rearranging and I wish Democrats would drop it. I could see a term limit of 18 to 20 years as acceptable.”

      Nice pivot. A full 180 in just one sentence.

      1. Here’s another “pivot,” in the course of a post rather than a sentence:

        “court-packing…threatens to destroy the entire institution of judicial review…

        “Some Democrats are instead promoting other, far more defensible, reforms to the Supreme Court. For example, Corey Booker has called for imposing 18-year term limits on the justices.”

    3. I agree (with the bit about a time limit.) It’s not just overlooking old judges, it’s also oooooold judges hanging on till they’re drooling, until they’ve got a President they like to replace them. 18-20 years on SCOTUS should be plenty, as hubris sets in at about Year 5.

      I can’t immediately see – short term advantage aside – why anyone of either party should object.

      So all you need to do is get rid of the short term advantage. You could start the bidding at, say, Judges appointed after 1 February 2029. Since nobody’s got any idea whose going to be in control of what by then, the “expected value” of the change should be equal for each side. If one side is unhappy – move it out to 1 February 2033. And so on.

    4. Moderation4ever: “But the bottom line here is that Democrats have to start thinking about the courts.

      I’ve read Democrats who go on and on about how gentlemanly they have been while the Republicans have played ruthless politics. On the courts, it’s simply not true, but no one seem interested in the history of how we got here. Which is:

      1. Democrats pioneered partisan holding up judicial appoints in committee, during the Reagan and Bush I presidencies. After that Republicans joined it.

      2. Democrats pioneered partisan filibustering of judicial appointees. After that Republicans joined in.

      3. Democrats pioneer partisan filibustering of Supreme Court nominees — including William Rhenquist, Samuel Alito, and Neil Gorsuch. That is something Republicans have never done.

      4. Democrats pioneered using the “nuclear option” for court appointees.

      5. Finally the Republicans pioneered something! Refusing to advance Merrick Garland’s candidacy. It was (in my opinion) a terrible thing to do, but it also was fairly late in the game

      6. Republicans also pioneered using the nuclear option on Supreme Court nominations.

      7. Now the Democrats want to pioneer packing the Supreme Court entirely.

      1. Let me correct that :

        4a. Democrats pioneered using the “nuclear option” for changing Senate rules by a simple majority, rather than, as specified in the Senate rules, by a two thirds vote

        4b. Democrats pioneered changing Senate rules, using 4a, to abolish the filibuster for court appointees (except SCOTUS, there being no SCOTUS vacancies to fill at the time)

        5a. Democrats pioneered refusing to advance Appeal Court judicial nominees (Miguel Estrada et al)

        5b. Finally the Republicans pioneered something! Refusing to advance Merrick Garland’s candidacy. It was fairly late in the game, and long after the Democrats had done the same to Miguel Estrada

        6. Republicans then followed Democrat precedent 4a. to pioneer abolishing the filibuster on Supreme Court nominations

        1. Both sides are horrible and amoral when it comes to advice and consent. So I guess all the bad behavior is perfectly acceptable now, by your standards. It really only matters who did it first.

  11. Ever notice how Democrats look for ways to get around the Constitution while Republicans and Libertarians play within the limitations of the Constitution?

    -Americans don’t want national healthcare. Force it down everyone’s throats by forcing them to buy health ins.

    -There is a constitutional guarantee that the right to keep and bear Arms will be protected. Pass unconstitutional gnu control laws to undermine those constitutional protections.

    -Democrats lost election 2016 and their chance to put young justices on the SCOTUS. Threaten to ‘pack the court’ via unconstitutional processes that exclude Senate confirmations.

    Luckily, the Democratic Party is imploding and will soon not be a political threat anymore.

    1. More like they’re exploding.

      The problem is, for all their internal issues, they’ve very successfully taken the high ground of almost every mechanism for communications or the perpetuation of culture.

      The OWN the K-12 education system, and most of the universities. They own Google, Facebook, Twitter, and all the major networks. (FOX is moving into the MSM as we speak.)

      They can pick out people and groups to target, and, Bang!, their target is cut off, often losing not just their social media accounts, but becoming a financial un-person, too.

      All that internal stuff doesn’t get in the way of them fighting their enemies, they’re just squabbling who gets the winnings after their final victory.

      1. “[E]xploding”, for sure, could be (given demographic trends aggravated by open borders) the last best hope for “America” is that Trump gets to replace one more progressive justice which might enable a rear guard action for a few years to come

        1. If there were no progressives, there could them be no progressivism.

    2. The Democrat Party might be imploding, but the Democrat party is a symptom of a larger leftward tilt in American politics. Eliminating the Democrat party as a political rival won’t address the problem that many Americans are on the extreme left. It will take a long time to reverse that trend.

      The same can be (and has been) said about the Republican party, or President Trump.

      1. I think the Leftward tilt is only there in appearance.

        The moves by Lefties indicates to me a desperation that things are not going their way. If that is true, then the tilt is actually away from what Lefties want.

        For example, the fact that every Democrat running for President in 2020 is a Socialist does not mean that the USA has become more Socialist. It just means that Democrats are so desperate to save Socialism that they are running all their candidates as Socialists.

        A Democrat winning probably indicates that America shifted Lefty. Since Trump will win re-election in 2020, no worries.

        1. Democrats are so desperate to save Socialism that they are running all their candidates as Socialists.

          This does not seem to follow.

          I do like that you’re sanguine; it’s a nice change of pace (even if your Constitutional jurisprudence is quixotic as hell). But you might also want to check with the growing number of white replacement folks yelling crisis on this blog.

      2. Most people are still moderate independents.

  12. “Thoughtful liberals would do well to reject it.”

    An Oxymoron

    1. Yawn

  13. I think you’re conflating “willingness to consider the subject” with “support”, TBH. If you’re of the opinion that the notion should be unthinkable, then this is a reasonable mistake. Lots of candidates talk about things they want to do that aren’t in their actual power to do if they win the office they’re seeking, all the way down to grade-school student-council votes.
    In contrast, I promise that when *I’M* elected President, I’ll use Seal Team Six to deal with Internet spammers, starting with the chaps who make $7743 per month and drive brand-new BMWs working for Google at home.

    1. “I promise that when *I’M* elected President, I’ll use Seal Team Six to deal with Internet spammers, starting with the chaps who make $7743 per month and drive brand-new BMWs working for Google at home.”

      THIS gets my vote!

      1. Not me, he’d also have to send the special forces after the guys who keep trying to sell me an extended warrantee on my car.

        1. They’re trying to sell me an extended warranty for a car I haven’t had for two years.

        2. After ST6 deals with the Internet spammers in my first term, perhaps in my second term I can send them after the phone spammers. But I won’t pull a W and take my eyes off the prize before the fight is won.

  14. “it threatens to destroy the entire institution of judicial review”

    I thought you were arguing against court expansion?

    Since my preferred course, reducing the federal judiciary to the Constitutional minimum, is unlikely, there is nothing wrong with expanding the Imperial Judiciary. Obviously, I would prefer my side do it first but you take what you can get.

  15. I think that we need to expand the Supreme Court by requiring that there be one associate justice appointed from each of the geographic Circuits whose job would also include overseeing the operation of that Circuit, with the Chief Justice appointed “at-large” and overseeing the non-geographic Federal Circuit. The result would be greater geographic diversity (and, one would hope, educational and experiential diversity) than we see now. Is a court made up almost exclusively of individuals who have been educated in Ivy League institutions and served as judges in the Acela Corridor really the sort of body that encompasses the wisdom of the nation as a whole?

    1. I suppose I could understand why a disaffected American with retrograde views might figure that our system’s structural amplification of backward, rural voices in the Senate and at the Electoral College doesn’t stack the deck enough.

      1. You’re a moron.

        1. Are you refraining from mentioning anal sex because that would be too obvious?

  16. “Thoughtful liberals would do well to reject it.”

    There are no thoughtful Lieberals.

  17. “In my view, the refusal to consider Garland was understandable in light of previous Democratic actions (including their own refusal to hold hearings on a number of prominent Bush-era judicial nominees).”

    Not sure this is apples to apples, but how does the conclusion make sense? The purpose of political parties is to distinguish themselves from each other. If there is something wrong with filibustering an intermediate appellate judge, how can it be right to not vote on a Supreme Court nominee? The right thing to do for the GOP would have been to voted on Garland, so it can show that it doesn’t behave the same way as Democrats. Retaliatory politics is a loser, because it cedes the moral and political high ground.

    1. Tit for tat stops working if you don’t retaliate.

      I thought that they should have at least voted him down, but maybe McConnell privately counted votes, and found enough defections likely that Garland would have been confirmed. I’m sure Flake and McCain would have been happy to seat an extra Democratic Justice on their way out.

      1. I thought that they should have at least voted him down, but maybe McConnell privately counted votes, and found enough defections likely that Garland would have been confirmed.

        That is part of what will make Court enlargement so satisfying.

        1. And part of what will make the inevitable 2nd Amendment remedy so satisfying.

          1. All-talk vanquished right-wing malcontents are among my favorite faux libertarians.

            Carry on, clingers.

            1. “All-talk vanquished right-wing malcontents are among my favorite faux libertarians.”

              Dimbulb proggies claiming to be libertarians are mine, dimbulb p[roggie.

        2. But there are a lot of “satisfying” things that shouldn’t be done.

      2. In an ideological fight, tit for tat doesn’t work at all. The point being, if the first act was wrong, you can’t convince people that you’re ideologically correct by becoming the thing you said was wrong.

        I think you’re probably right about why the vote didn’t happen, but that just highlights the problem. Because of elections, the Republicans didn’t have the full party support to adopt the position they wanted. They couldn’t convince their own. And they didn’t want to convince the American people. So instead they made up a pretext about how the Democrats were really awful, and sold something untrue. They either: (1) didn’t believe in the superiority of their own position or (2) didn’t believe they could sell it. In neither event was their resulting strategy justifiable.

        1. “Because of elections, the Republicans didn’t have the full party support to adopt the position they wanted. They couldn’t convince their own. And they didn’t want to convince the American people. ”

          I think you’ve got that upside down. Flake retired because he didn’t expect to win his next primary. He wasn’t alone in that.

          The problem is that the Republican Senate caucus is to the left of the voters who elected them, a lot of them privately agree with the Democrats on a lot of issues, and lied their way into office.

          Come the crunch, you can’t count on them to vote the way they campaigned.

          1. “Flake retired because he didn’t expect to win his next primary.”

            Right, but he won an election in 2012. Is that not a real event, in your view?

            “Flake retired because he didn’t expect to win his next primary.”

            If this were true, why wouldn’t Republican leadership want to have a resounding no vote on Garland? That’s exactly what they would want to do if “the Republican Senate caucus is to the left of the voters who elected them”.

            1. Sure, it’s a real event. He won an election in 2012 pretending to be something he wasn’t, and well before 2016 had decided he’d rather enjoy his term not pretending than continue that career.

              “If this were true, why wouldn’t Republican leadership want to have a resounding no vote on Garland? That’s exactly what they would want to do if “the Republican Senate caucus is to the left of the voters who elected them”.”

              Ok, that’s just incoherent. Why would a Republican caucus to the left of Republican voters vote against a Democrat nominated justice? Did you think that through?

              1. To retain power. If the voters are going to pour out Republicans for not being sufficiently right-wing, voting down a Democratic nominee helps prove up bona fides.

                Have you thought through your theory? That the Republicans secretly supported a Democratic nominated justice but still didn’t vote on him?

        2. But politics isn’t an ideological fight. We often talk / act as if it where… but the truth of it is that it’s a fight over very real, visceral power to be used violently against anyone who objects to the powerful’s decrees. When that is what is at stake, it is no longer tit for tat but a trading of blows designed to completely knock out your opponent. And a trading of blows (not counting a one-sided fight in your favor) is what you WANT your side to do. If they don’t swing back, they WILL lose and that violence will be applied to you.

          1. Which is why conservatives made a huge error in not seeing the true ways of the left. After Roe v. Wade and the other activist decisions that preceded it in the 60s, THAT was the time for violence, not now.

            1. Nah, the golden age of violence was during the fight over Reconstruction, and during the Jim Crow era. Fond memories there for today’s violence-minded “conservatives.” Don’t you think, DLG, that states rights should rise again? Sure you do!

          2. “But politics isn’t an ideological fight.”

            This is circular. It can’t be if you abandon ideology. The assumption here is that unless you abandon your ideology, you’ll lose. But where’s the evidence? And even if you could prove it, if you have to abandon your ideology to win, what’s the point of winning?

            1. Well, you could experiment to see if it brings you any joy to win on the basis of experience and facts.

          3. sparkstable, you aren’t describing a political fight, you are describing a struggle for sovereignty. That’s where unconstrained power counts for political purposes. But you are unclear about which alternative sovereign you propose with which to replace the People of the United States.

        3. NToJ: “In an ideological fight, tit for tat doesn’t work at all. The point being, if the first act was wrong, you can’t convince people that you’re ideologically correct by becoming the thing you said was wrong.”

          But politics is war by other means. And in war you don’t win by being the good guy. Actually I’ve read a lot of Democrats saying that they have been far too nice while the Republicans have been ruthless. It’s not true, but saying it is a way of excusing — or even justifying — extreme measures.

          A case on point: Eric Holder (and not currently a nominee for the White House).

          Eric Holder: “When they go low, we kick them.”

          Eric Holder: “In response to a question, Attorney General Holder said that given the unfairness, unprecedented obstruction, and disregard of historical precedent by Mitch McConnell and Senate Republicans, when Democrats retake the majority they should consider expanding the Supreme Court to restore adherence to previously accepted norms for judicial nominations,” said spokesman Patrick Rodenbush.

          1. That’s the problem with utilitarianism, and almost everybody on the left is some form of utilitarian, either formally or instinctively.

            For utilitarians, “the end justifies the means”, what else could? Actions are only judged by their consequences. It’s teleologists who judge actions separately from consequences.

            They’re judged by the consequences they cause, and the consequences they avert. And that latter is the real weakness: The more you inflate the consequences your actions avert, the worse your actions can be, and the math still comes up positive.

            So you’ve got this built in incentive to exaggerate how bad the opposition is, view them as monsters in human form. Because if you’re just up against a perfectly normal person who happens to disagree with you within the range of normal policy options, you can’t justify breaking the rules and cheating.

            But if you decide to pretend you’re up against Literally Hitler, the Orange menace who is nothing but a shambling collection of bad traits, you can do basically ANYTHING, and still come up looking good in comparison. Lie about your policies, promote fake news, rig elections. Nothing is off the table if the alternative is Literally Hitler.

            And that’s where we are now, and why the left have convinced themselves everybody opposed to them is a NAZI in need of punching. Because if they believe that, they only have to be better than NAZIs to feel good about themselves.

          2. “And in war you don’t win by being the good guy.”

            In a “war” of ideas, this is literally the only way to win.

    2. “In my view, the refusal to consider Garland was understandable in light of previous Democratic actions (including their own refusal to hold hearings on a number of prominent Bush-era judicial nominees).”

      To back this statement up, Mr. Somin links to an article on a Democratic filibuster of the nomination of Miguel Estrada to the DC court of appeals, and the article makes no mention of any other judicial nominee. But Estrada had a confirmation hearing. The Democrats claimed that Estrada didn’t answer their questions. Well, that’s as may be, but Mr. Somin’s “evidence” for his statement is, uh, sorely lacking.

      1. I agree that the comparison is not entirely apples to apples. He still should have had a non-filibustered vote. He had 55, and that should have been sufficient. I did not agree with the bases for (some) Democrats keeping him out, even though he is not the judge I would have picked for that spot.

      2. Alan Vanneman: “Mr. Somin’s “evidence” for his statement is, uh, sorely lacking.”

        Yes — though I’ve a 9:31 pm comment that fleshes things out a bit. Democratic obstructionism goes back to the Reagan and Bush I administrations, and Democrats pioneered every form of obstructionism on judicial appointments before Merrick Garland.

        A good start s is Wikipedia. Look up “[name of President] Judicial Controversies.” Begin with Reagan and follow the history,

        1. Have Republicans really shrunk to the level of “Democrats did it, so it’s okay if we do it also?” I’ve never been more happy with my choice to register as unaffiliated with any political party.

  18. From a practical perspective, I expect Republican and conservative thoughts on Supreme Court enlargement to be just as important and relevant as were Democratic and liberal thoughts on the Garland nomination; on the recent installation of a series of 30-something ideological soldiers at federal appellate courts (often without the once-customary blue slips); and on congressional oversight issues during the initial two years of the Trump presidency.

    Educated and informed right-wingers might call prospects for Supreme Court enlargement the “Arizona model,” although not when lathering up the sovereign patriotic militia citizen rubes.

    As always, the losers will be free to whine and rant about ‘all of this damned progress’ as much as they wish.

    1. The “blue slips” were being used to keep conservatives off. Bad faith.

  19. They only have the power to do so because of immigrants that YOU supported admitting. Without Hispanics, Asians, Muslims, and Caribbeans, the Republicans could not lose.

    1. Without Hispanics, Asians, Muslims, etc. to blame for all the rank-and-file’s ills, the Republican party would look very different than the one you vote for. If those working class populist urges aren’t directed at Mexicans, they’re going to get directed at capitalists. We are seeing some of that.

      1. While you’re counter-factual is interesting, I think it needs more evidence to support it. What do you mean by “we are seeing some of that.”? There has always been a strong strain of anti-corporate rural-ism in the GOP base. Likewise, the democrats are also now becoming the party of big business, at least entertainment and silicon valley that is.

    2. The problem of nonwhite voters being primarily Democrat is mostly a Republican failure. The right had a good chance with Hispanics especially but we blew it on infighting during the Obama years. Even now many blacks and Hispanic voters are moderate but unwilling to vote Republican because of obvious hostility from part of the base. Muslims and “Caribbeans” are a drop in the bucket for our actual voters anyway. As for Asians, most have been high skilled immigrants or refugees from our own Vietnam War, both groups being supported by Republicans for admission.

      I also don’t think it’s a great idea to essentially state that if we had enforced a monoethnic state that our party would win. That was not true in the 20th century and there’s no reason to expect that it would be true now; we’d just have different issues to argue about. It’s also shitty PR.

      1. What makes you think that the GOP “blew it” with Hispanic voters during the Obama years? Do you think that if they had gone along with his agenda, Hispanics would have voted for another party?

        While I don’t discount the nativist base of the GOP is a turnoff to some, the Democrat party has some pretty racist roots and racist policies and items today, but I don’t see blacks (en masse) or put upon white liberals and Jews leaving the Democrat party.

        Reagan gave the hispanics amnesty, and they said “thank you” and continued to vote Democrat, because their cultural leanings are such that they support big government. Identity politics being what it is, maybe, maybe, Rubio as a nominee would have swung hispanic voting to 50 GOP.

        1. I don’t mean that Obama mattered at all. Instead, the GOP floundered about during critical years where anti-abortionism was still popular among Hispanics and couldn’t even attempt to figure out a border fix. It doesn’t even matter what that fix would have been: if the border was a settled issue it couldn’t be divisive anymore. They also didn’t call enough attention to Democrats screwing up the cartel situation in Mexico. Rampant opposition to drug legalization certainly didn’t help. The high cost of college keeps many immigrants from countries that have crappy schooling from attending. Other laws prevent those same people with few skills from working below a certain wage, and while I would say that Democrats deserve the blame here I also can’t expect people with low skills and bad education to understand the effects of wage legislation when well-schooled people don’t themselves. Without options you end up getting people working in the drug trade because minimum wage work isn’t meant for adults.

          What racist policies are you thinking of? I don’t think most liberals would agree that they are racist. We like to talk about permissive abortion being racist but Democrat voters certainly don’t view it that way. Jewish liberals obviously don’t feel that anti-Israeli legislation is anti-Semitic. White Democrats certainly did leave the party en masse or at least vote against it in the last election, largely because they felt Democrats were favoring nonwhite voters.

          1. Those are all very good points, but I don’t think you understand how much time, effort, and the overcoming of cognitive biases it takes for someone to vote for a different party than the one that they are used to. For example, it took decades of Democrats swinging left for Texas to go from Democrat to Republican. In the end, you would have had the GOP hollowing out its core message with the hope that fringe Democrats would come over to their side. It doesn’t happen like that.

        2. As for amnesty, obviously Reagan didn’t get a chance to run again but Bush rather squandered the opportunity. He didn’t play it up very well, which wasn’t a good choice considering that he was running against a dude from an immigrant family. He also enjoyed the “law and order” rhetoric, which doesn’t sound as good when you think people like you are unfairly targeted by the law. It didn’t end up mattering for that election (would’ve been hard for Bush to lose in all honesty) but the emphasis on “hard on crime” for Republicans going into the 90s hurt them a lot in the long run.

          1. Cut the histrionics. The fact is, brown Hispanics see themselves, not as Americans, but as brown Hispanics, and will always feel a kinship to other brown Hispanics and want to legalize them. Period.

            1. Well that runs straight counter to what mad_kalak said. Either they only want other Hispanics around and would therefore vote for the party that provided that (Reagan Republicans) or they don’t (and would keep voting Democrat).

          2. There was this period, from about 1933 to 1980 where, with the exception of just a couple of terms, the Democrats utterly dominated Congress.

            If you were a Republican and you wanted to get anything done, you had to work with the Democrats, have a good relationship with them. And, as a result, a kind of Stockholm syndrome set in.

            Worse, because the Democrats were in control, if you were a Republican who happened to agree with the Democrats, and just lying to get elected, there wasn’t any way for the voters to know. You could fight the good fight, and lose, and get what you really wanted with the voters being no wiser.

            Then something horrible happened: The Democrats started losing their grip on Congress. By ’94, Congress was more often Republican than not.

            I say “horrible”, because it put the RINOs in a real bind. If they fought the good fight, they’d win! So, they started taking dives, the voters started noticing, and the GOP has been in civil war ever since.

            That’s why the GOP “flounders”; Because it must run on positions a large faction, maybe a majority of the leadership, don’t actually agree with. Ideologically? A lot of Republican members of Congress are just wishy-washy Democrats who had the bad luck of starting their careers in places where you had to run as a Republican to win.

            And they’ve never forgiven Republican voters for that.

        3. Well…. George W. Bush got a third of Catholic Hispanic votes in both 2000 and 2004. He got non-Catholic Hispanic votes to the tune of 44% in 2000 and 56% (!) in 2004. Getting larger shares of the Hispanic vote should be doable (and not by becoming a Progressive).

      2. I have heard this argument time and time again, and I couldn’t disagree more.

        I’ll paste from the late Larry Auster:

        In an America that is changing culturally and demographically, in which blacks and Hispanics don’t vote Republican, the GOP cannot be the majority party. So the GOP has to become more “pragmatic,” and talk about real people’s real needs. Blah blah blah blah blah blah blah. The same GOP illusion! As if the GOP has not done everything under the sun to win blacks and Hispanic support, as though that has not been a continuing GOP obsession for years and years. Hey, Pawlenty, you’re in a dream world. The only way the GOP can win among blacks and Hispanics is by becoming the Democratic party. That’s what happens when you let America be transformed into a country of low-skill, nonwhite people with high illegitimacy rates who look to government to provide their needs. So there is only one way conservatism and Republicanism can survive long-term in America: not by treating “demographic change,” i.e. the browning of America, as a god before whom we must automatically bow, but by treating it as an error that must be stopped and reversed.

        There is nothing we can do to get low-achieving people to vote for a Republican is to cease being conservative. Asians and Jews are a different story. They vote for Democrats out of resentment for white Christian America, but that could possibly be changed.

        1. I don’t see Asian or Jewish resentment. Where do you get that? Asians vote Democrat because culturally, they are more pro-big government, especially the ones from China. Hispanics vote Democrat for a similar reason, in that there is a strain of Catholicism that things that salvation comes from soup kitchens, which they outsource to government programs. Jews? I won’t even touch that.

          1. You haven’t been to any of my family holiday dinners. Listen to the way liberal Jews talk about white Christians when they think they aren’t listening.

          2. Maybe immigrants vote Democrat because Republicans come across as anti-immigrant.
            Many Asian immigrants are pro-business and natural Republicans, not socialists.
            Many Latin American immigrants are pro-family Christians and natural Republicans, not progressives.
            Republicans need to kick the racists to the curb to establish a permanent majority of pro-business, pro-liberty, conservative voters.

        2. Republicans supported crappy “hard on crime” policies throughout the 2000s when they weren’t even somewhat necessary anymore. That with the insistence on not even considering some legalization or decriminalization for drug crimes when we have other policies that restrict their ability to legally work in other occupations forced far too many people into prison and bad housing. Why wouldn’t they consider the government for providing their needs when our government prevents them from choosing other options?

          Demographic change is inevitable. Your focus is on color (a remarkably stupid way to view demographics) but culture has been changing for the entirety of our history. When we declared independence we were an isolationist backwater. Within decades we became an expansionist colonizer and securer of resources without regard to whoever we displaced. Within another few decades we decided to become hemisphere police, suddenly concerned about European exploitation. Then decades later global police and moral teacher not only to other countries but individual citizens everywhere. Our government has remained consistent on this even though the citizenry has changed its mind. All of these changes were due to cultural change. Bostonians now aren’t the same as Bostonians from 1776. Californians now aren’t at all similar to what California Republic citizens were. The Rust Belt went from breadbasket to industrial powerhouse to shitsack.

          1. No, demographic change is not “inevitable.” It was brought about by the 1965 Immigration Act. Had we kept the National Origins Act in place, we’d still be 90% white. Fact.

            1. Again, color isn’t the determiner: culture is. Whites in the 1700s were predominantly British descended but in the 1960s German and Irish. We also had been getting a ton of Soviet bloc and Jewish immigrants. The nation wasn’t even 90% white in 1965 and white people have had lower birth rates than other populations for a long time, so I don’t believe your “fact”.

              1. You can’t separate race and culture. Race implicates culture, to a huge extent.

                1. That’s backwards. If I tell you that somebody is white it’s most likely that they’re European with no chance of narrowing them culturally. If I tell you that somebody is black then they’re most likely to be a Muslim Nigerian, but right after that is a Christian Ethiopian. If I just tell you that somebody is dark brown it’s a half chance they’re Hindu. It’s a lost cause once you talk about East Asians. Usually Chinese but even then you can’t get their culture out of it, especially considering that East Asian cultures are very diverse.

                  However, if I tell you that somebody is culturally German, they’re almost definitely white. If I tell you they’re a Christian Ethiopian they’re black. An Afrikaner would be white, where figuring that out just based on the fact that they’re African would be nearly impossible.

                2. They’re completely independent of each other.

  20. Trump is an incompetent moron whose only broken norms are superficial and personality-related. The overreaction to Trump is far more dangerous and will be more damaging to our institutions in the long run.

    1. With a bit of luck, he’ll get re-elected, fill all the judicial appointments and two more SC seats, and these unhinged leftists will have to wait a generation before pushing their one world socialist utopia.

      1. I wish Janice Rogers Brown was 20 years younger. Imagine if Trump nominated the first black woman to the Supreme Court. It would be hilarious.

        1. If he nominates the first black woman to the Supreme Court, she’ll magically stop being “black”, and possibly even a “woman”. Kind of like Thomas doesn’t count as black, being an “oreo”.

          1. He also betrayed his race by marrying outside of it, they were also quick to point out.

            1. I oppose interracial marriage, but it should be consistent. They would never say that about a white man who married a non-white woman.

              1. Just to be clear, I don’t care what race you marry, but Democrat blacks who opposed Thomas saw a reason to oppose him in that he married a white woman.

              2. I oppose interracial marriage

                Let’s hear the argument that a person who opposes interracial marriage isn’t a bigot.

                That one’s always an enjoyable episode at The Volokh Conspiracy.

                1. Quite simply, I don’t think societies or families of mixed races can ultimately get along.

                  1. My wife and I are of different races, and we have been very happily married for more than 2 decades. It is theoretically possibly that we won’t “ultimately” get along, but given that we’re now in our 60’s, I’d say that the odds of that happening are virtually nonexistent. The idea that compatibility is somehow determined by race is shockingly ignorant and fundamentally incompatible with the founding principles of our society.

                  2. Feh, I think interracial marriage is our best hope to end racism. Can’t be racist if there aren’t any races anymore.

                    Anyway, you should find the best mate you can, and not artificially limit your prospects.

                2. Yes, Rev, let’s hear how love conquers all while the soundtrack to Titanic swells in the background. lol.

                  1. You guys stick with the bigotry and backwardness, with a side of superstition.

                    My side will continue to win the culture war. We’ve been shoving progress down right-wing throats throughout our lifetimes, and the American electorate gets less rural, less white, less backward, less religious, and less intolerant daily.

                    Educated, reasoning, modern Americans shouldn’t get completely overconfident, though. If the conservatives perfect a machine that mass-produces half-educated, economically irrelevant, backward, diffusely intolerant, superstitious, rural, downscale, southern, older white males — and the Conspirators and other right-wing lawyers figure a way to register the newly minted yahoos to vote — Democrats could have a real problem on their hands.

                    Enjoy the next half-century of American progress shaped by the liberal-libertarian mainstream, friends.

                    1. Are you some low functioning Asperger’s patient?

                    2. “You guys stick with the bigotry and backwardness, with a side of superstition.”

                      Tell us who supports affirmative action and a ‘healthy mud momma’, asshole.

                    3. healthy mud momma

                      …? Is this just more racism, I can’t even tell anymore.

  21. “Trump is a danger to our institutions!”

    Also

    “Let’s ditch the electoral college and pack the courts!”

    Can’t make this stuff up, there’s people who actually believe both of these things and claim sanity

    1. The right says the same thing – Dems are a danger to American institutions. Which is why we need Trump, who doesn’t care about our institutions.

      Crisis politics started on the right; the left’s response also sucks though.

      1. Example? Trump has been following the rules more than any of the other players

        1. Off the top of my head:

          Not going through security clearance process for his family.
          His family advising him while running his business.
          His family not obeying records retention laws.
          Courts are striking down his regs because he’s not following the protocol.
          Calling businesses and yelling at them to try and get them to keep their jobs here.
          Emergency declaration.

          1. These are all very normal for the Post War Presidency.

          2. No, they’re striking down his regs because he is the one who put them in place. Nearly every EO that has been enjoined has been on the grounds that it is “arbitrary and capricious,” which to liberal judges means, “I don’t agree with them.”

            1. You’re trying to reason with half-educated, gullible, right-wing yahoos, Sarcastro. You might as well yell at lamps.

              Except some of them there new-fangly lamps respond usefully to vocal command, or even to clapping.

              So . . .

          3. “Calling businesses and yelling at them to try and get them to keep their jobs here.”

            JFK sent the FBI on night visits to the homes of steel executives to pressure them.

      2. Sarcatr0: “Crisis politics started on the right”

        Not saying you’re right and not saying you’re wrong, mainly because the term is rather vague. Could you flesh out the thought?

        1. The idea that your side needs to break norms because the other side surely will; that your side must sacrifice the high ground because your side has all the virtue and the other side has none.

          Reagan started this with his time for choosing speech. Since then the right has been pretty innovative in what norms they’re willing to break, even as they talk about what awful things the left will do in hypothetical land. (e.g. this ugly replacement rhetoric everyone here has been picking up on)

          Now the left is getting in on it with court packing lest a conservative SCOTUS disenfranchise all nonwhites or something dumb like that.

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  23. Yes, it is a terrible idea. But if it weren’t for terrible ideas, the only thing the Democrats would have left is totally batcrap crazy ideas, like AOC’s Green New Deal, Elizabeth Warren’s Accountable Capitalism Act, and pretty much everything Kamala Harris has promised.

    1. Eh, they’re also almost uniformly anti-war now and willing to legalize recreational marijuana while pursuing other criminal justice reform. I was happy that Trump ran partially on a non-interventionist platform but the results have not been spectacular. A slight draw-down in wars we shouldn’t be involved in is nowhere near what should have happened.

      1. Agreed re: interventions.

        However… what (little) Trump has done is lightyears ahead of what we would have gotten with nearly any other person at the helm. He can at least say (so far, that I know of) that he hasn’t started anything new. That’s something that hasn’t happened in my lifetime. You have to start somewhere. And the fact he even MENTIONS draw downs and anti-interventionist rhetoric is also a huge cultural shift in the realm of elected politics. I will take what I can get. I may even vote for him next time around if he can keep this going (but I have my doubts recently) despite not liking him overall.

        1. “gotten with nearly any other person at the helm”

          I think the only candidate who would have done less than him this last election was Clinton. In the next election I think the Democrats will be reciting purity pledges to prove their commitment to anti-interventionism.

          “(so far, that I know of) that he hasn’t started anything new”

          I would honestly be surprised if he (or rather the Pentagon during his administration) hasn’t started anything at all. It seems that all of our presidents have had secret wars or interventions going on in the background, usually involving African nations, often without the President’s actual involvement. We do know that we’ve been cyber-sparring with the former Soviet bloc, China, and NK.

  24. This article has got to be satire.
    Democrats are trying to create new States with permanent democrat Senators and Electors;
    They are using illegals to pump up the census and steal House seats from actual American Citizens;
    And then using vote harvesting (et al) to make sure democrats occupy those seats.
    They want to end run the Electoral College by awarding electors based on national popular vote.
    They use leftist judges to strip the president of his constitutional power because they challenge his “motive”.

    And the author wants to warn them against packing the court?
    It’s a joke, right?

    1. Democrats are trying to create new States with permanent democrat Senators and Electors; constitionally allowed

      They are using illegals to pump up the census and steal House seats from actual American Citizens; constitutionally allowed

      And then using vote harvesting (et al) to make sure democrats occupy those seats; constitutionally allowed

      They want to end run the Electoral College by awarding electors based on national popular vote; constitutionally allowed

      They use leftist judges to strip the president of his constitutional power because they challenge his “motive”; constitutionally allowed

      Why do you hate the Constitution so much?

      1. Yea there has been no psychotic stuff going on for the last 2 1/2 years. All is normal

      2. Are you retarded?

      3. I never said it was not constitutionally allowed.
        I pointed out that democrats will do anything they can to take power, therefore warning them against packing the court was a waste of effort.

        If you were more intelligent you might have been able to understand my post.

  25. The problem is that the Republican Party has made it a point to fill the courts with judges and justices who support their political and philosophical agendas and to block any nominees who don’t. The judicial nomination process has been thoroughly politicized and to think that Democrats will not turn the tables when they get a chance is a fantasy. is this a good thing for the country and the rule of law? No. The only hope is that the judges themselves will behave with integrity and in the spirit of Judge Learned Hand, “not too sure that they are right.” And that would include all of you Originalists.

    1. The fundamental problem with your comment is that it starts with the premise that the GOP is the only one putting into place ideological judges. The most reliable indicator of how any judge will vote on a case (liberal or conservative) is who appointed him. This holds true for both parties. Moreover, the smallest variation we see is that Republican appointed judges, but a small percent more than Democrat appointed judges, will vote a “liberal” position because of a stronger support for stare decisis.

      The point of the appointment process is to keep the courts an approximation of public opinion. So it’s no suprise that judges vote the way they do, and in fact they are supposed to. It’s an old, old “problem”, which is to say it’s not a problem, but a feature; ask Jefferson how he felt about Federalist judges, for example.

    2. Not to sound like a child, but the Dems started it. They’ve been using the judiciary to force through their agenda for the past 50 years.

      1. While the Warren Court was the high point of legal liberalism and living constitutionalism in our modern times, the decisions emanating from the Warren Court as a way for liberals to force their agenda upon us were no different than the Dred Scott decision and the Democrats of that era trying to force the rest of the country to have to accommodate slavery.

        1. Agreed, but the post 1960s rulings waded into the cultural wars way more than anything in the 1800s.

          1. Dude, the country went to war in 1861 (partially) because the Supreme Court waded into the cultural war in a way that has never been done since. Slavery, and in some ways *is* the biggest faultline in America.

            Without Dred Scott, it’s unlikely you would have gotten Lincoln, and with no Lincoln, no secession. No secession, and you maybe would have been able to prevent a way over slavery like the Brits did, by manumission.

            1. Yes, 1861, maybe get a little bit more current in your thinking ? Relevance?

              1. If you had read the comment thread, silly, you’d have seen that it was about comparing judicial intervention and supremacy complaints in the modern era to similar complaints in the past. I was saying that for all the complaints about a Supreme Court weighing in where it shouldn’t with too much power, that it’s an old issue. Relevance? Let’s ask the anti-federalist Brutus.

                “I have said that the judges under this system will be independent in the strict sense of the word… [T]here is no power above them that can control their decisions, or correct their errors… [I]n many cases their power is superior to that of the legislature.” He said that “[t]he supreme court under this constitution would be exalted above all other power in the government, and subject to no control.”

                1. Yea but at the moment he 4 libs are the activists. The 5 conservatives are restrained. As has been pointed out to you its been that way for quite a while.

                  Dred Scott was a compromise given the fact hat slavery was legal at the time. Bad example. The South wanted slaves counted 1:1 to increasing their representation

                  1. Dred Scott was anything but a compromise, it was Taney seeking to impose his will upon the free states, who wanted nothing to do with the South’s peculiar institution. It was as bad as Roe, which “compromised” by allowing a woman to kill her baby…but only in the first trimester, taking the issue completely out the hands the state legislatures.

                    1. Sure it was. It was 1861 and is not really relevant to the discussion at hand but it was a compromise versus the alternative which was 1:1.

                  2. “Yea but at the moment he 4 libs are the activists. The 5 conservatives are restrained. As has been pointed out to you its been that way for quite a while.”

                    I’m sure you believe this, as an article of faith. But objectively, it is laughable.

            2. It’s too bad we didn’t split the country up then. That was Lincoln’s biggest mistake.

              1. Naw, I’m glad the North won, when one looks at the sum total of human freedom being expanded by the victory, despite the costs. What would have been better for the nation, though, is if the South lost power as more and more free states were brought into the Union and the slaves freed and properly integrated into proper society over time.

                1. I think we’ve seen enough post 1960s to realize that blacks cannot coexist in a white society.

                  1. Wrong, they just have to be integrated properly. Booker T. Washington’s approach was the right one, but white racists never allowed it to actually happen. Do you think that 300 years of abject poverty and ignorance can be reversed overnight with a “here’s your freedom” statement on a piece of paper?

                    1. Right away? No. In 10 generations, with trillions in wealth transfers and racial preferences? Yes, if they were genetically capable. They’re not.

                    2. Millions of middle class and well educated black Americans belie your absolute. If blacks were just left alone, no handouts but no racism putting them 10 yards behind the starting line of the race, they would get along just fine.

      2. So the solution, I guess, is for conservatives to do the same thing – use the courts to achieve policy goals that cannot be achieved through legislation,

  26. That’s unfortunate. I think the better focus would be on lowering the number of juatices, possibly to 6 or 4 (preferring an even number). Second, the focus should be on restructuring the lower courts, which is a power exclusively given to Congress. If the Democrats really wanted to cause an uproar they could put forward legislation abolishing current courts and then creating new courts in their place and filling them with Democratic appointees.

    Congress may not be able to remove a judge (except for impeachment) but it can take away the judge’s seat, create a new seat, and give it to a different judge

  27. Somin is right, of course, about the dangers of tit for tat. But wrong to suppose they can’t be avoided.

    And in the meantime, court packing is not the only separation of powers issue the nation faces. The current imbalance on the Court?together with the expectation that it will only increase, or at least solidify?is right now imperiling the ability of Congress to act as a counterbalance to the President. Indeed, fear of how the Republican-stacked court might overrule Congressional investigative efforts is also hampering the impeachment power.

    Things can’t be left as they are. I will add another comment later to suggest a possible solution?one that could treat both political parties fairly, and avoid tit for tat retaliation.

    1. You mean, things can’t be left as they are because my side is not “winning” (however temporary Trump’s winning likely is). I’d like to see what you propose, as the treatment may be worse than the disease.

      That said, the issue is Congressional abdication due to a collective action problem inherent in a legislature as opposed to a unitary executive. The simplest “fix” is to give more power to the Speaker of the House and the President Pro Tem of the Senate.

      1. How is he “not winning”? He’s put to justices on the court. RBG is starring in Weekend at Bernies at the moment, more winning is possible.

        1. Was the tax cut a success? Yes. Is the economy good and deregulation coming along? Yes. Trump’s victories are a delaying action, at best, unless immigration is virtually stopped. Do you see a wall going up? I don’t. Do you see an end to chain migration and birthright citizenship? I don’t. How about and end to massive deficit spending?

          These latter fights are the fights that really matter.

          1. You point out other wins. Good. Congress has to be willing to change immigration law. His “Emergency” on the wall is the best he could do for now.

          2. That’s not enough. The current crop of non-Europeans need to be removed before anything can get better.

            1. Define “non-European” such that it can be implemented.

              1. Are you ARWP with a sock puppet account?

                1. Not sure what ARWP is.

              2. Admittedly, I don’t know how to draw the line.

          3. “Was the tax cut a success? Yes.[…] How about and end to massive deficit spending?”

            Irony alert.

            1. Somebody never heard of the Laffer Curve. Please do a search on it.

              If the government takes in the money, it spends it on things other than paying down the debt, at least since Andrew Jackson. The only way to end the deficit problem, is to reduce spending.

              1. “Somebody never heard of the Laffer Curve. Please do a search on it.”

                Seems it’s you who needs more research, if you’re citing the Laffer Curve as a real thing that works.

                ” The only way to end the deficit problem, is to reduce spending.”

                Duh. Even more correctly, the only way to end the deficit problem is to increase revenues, cut spending, and increase the efficiency of the spending that still happens, AND THEN KEEP DOING IT for a period of decades, at least.

                1. Right, the Laffer Curve is fake. Next you’re going to tell me incentives don’t matter either, and that supply and demand is over-rated as a concept.

                  Huh. In you’re rush to try to score some internet points, you’re ignoring historical reality. The American government is incapable of not spending all that it receives…and then some. The more it takes in, the more it spends, rather than paying down the debt. And long term economic planning to control deficits is virtually impossible in system where every 2 years there exists the possibility of any grand bargain being undone, and when politicians want to bring home the bacon to get re-elected. But please, tell me more, about this world you live in where the federal government can control spending.

                  1. The Laffer curve is true at the extremes, but not probative of anything in any realistic regime since you cannot know where you are on that curve. Even Laffer says that.

    2. “current imbalance on the Court”

      In 1950 every S/C justice was appointed by FDR or Truman.

      Its 5-4 now. How do you equally balance an odd number?

  28. I don’t dismiss the discussion because of an overwrought concern about severely damaging the institution of judicial review, which never occurred during previous adjustments to the court. No, I dismiss it because pursuing it is a waste of time and energy that will be needed to start picking up the pieces of the leftover pieces following the Trump regime and inching toward solutions to far more pressing matters. And there are many.

    An effort to increase the size of the court will take up every possible bit of oxygen in the room and will allow for little to nothing else. In the end it either won’t pass, never be ratified, or won’t be ratified for decades to come. Dismiss it as a waste of time and energy.

  29. The court is imbalanced because it has 9 members. But its 5-4 and one could argue Roberts is a squish.

    And how rock solid is the lib 4 voting block.

    They don’t even pretend to follow the constitution or the law. Their hero RBG thinks we should consider foreign law.

    So maybe Trump should add a justice now

    1. Exactly. The liberals never “stray,” especially not on issues of great import like third-trimester abortion and same-sex sodomy.

      1. As far as I can tell they never stray at all. If someone brings a case l declaring the infanticide bills as unconstitutional, which of course they are, it will still probably be 5-4 good guys depending on how goofy Roberts feels.

        1. Check opinions – none of the justices is in lockstep with any other.

      2. “…same-sex sodomy.”

        And there it is. Please tell us again what should happen to all Americans who are registered Democrats.

  30. Its psychotic. Get over the 2017 election already.

  31. Correction 2016, feels like it has continued non-stop

  32. Trump could kill this liberal idea in an instant by embracing it. “Fifteen? Good idea. i’ll nominate 6 more tomorrow.”

    Note that not filling vacancies can have the same effect. (Would that be called unpacking? depacking?)
    Kavanaugh is the youngest, so chances are if we wait long enough with zero new confirmations, he will be the one and only justice. Pundits can all it “the unitary judiciary.”

    1. In 1866 we called it reducing.

    2. Trump could kill this liberal idea in an instant by embracing it. “Fifteen? Good idea. i’ll nominate 6 more tomorrow.”

      You do not understand how this works. Other than that, though, great comment!

    3. “Note that not filling vacancies can have the same effect. (Would that be called unpacking? depacking?)
      Kavanaugh is the youngest, so chances are if we wait long enough with zero new confirmations, he will be the one and only justice.”

      Assuming that Supreme Court justices only die from natural causes. I wouldn’t take that bet if your plan were attempted in the long-term…

      1. Maybe not a good bet. Kavanaugh was not my point. The point would be that as the justices die off, the left/right balance shifts. Leaving seats vacant can have the same effect as packing. Doing so selectively even more so; say leaving RBG’s seat vacant but appointing a young replacement for Thomas.

        1. The R’s made a bald power grab by flatly refusing to consider any nominations. An extended run of this behavior would bring out the loonies, and the dwindling would become rapid. Some nut takes out one of ours, then some nut takes out two of theirs, and then…
          I’m not pining for this. But I think it’s possible, and I don’t think we’ll get the best possible political leaders when body armor becomes as common as the business suit amongst their wardrobes.

          (Nor do I foolishly assume that the distribution of firearms is as one-sided as some partisans like to amuse themselves by joking about.)

  33. I’m not interested in pointers on this subject from anyone who can’t document an objection to the recent enlargement of the Arizona Supreme Court.

    In any event, I doubt Democrats are going to be swayed by Republican-conservative commentary on this issue. They learned the value of dissenting views in the recent debates concerning Merrick Garland, blue slips, Gorsuch, Kavanaugh, Congressional oversight, and the like.

    The prospect of Supreme Court enlargement, especially when coupled with the likely consequences of predictable demographic trends, is enough to make me content.

    1. You realize that your third world puppets commit tons of crime, don’t pay taxes, and don’t share any values, don’t you? How do you think you’re going to fare?

      1. So far, watching my liberal-libertarian preferences prevail in America for more than a half-century, and observing the related sacking of right-wing aspirations, reducing conservatives to a bunch of stale-thinking malcontents muttering bitterly about all of this damned progress, has been enjoyable.

        How has it been for you?

        1. Let me know in 30 years how it is.

        2. When Whittaker Chambers switched from supporting Communism to supporting freedom, he (Chambers) believed that he was defecting from the winning side to join the losing side.

          Such things make no sense to the likes of Kirkland, who seems to enjoy the sensation of being part of a mob which is marching to victory. Kirkland would make a good Brownshirt or Red Guard, but if his cause suffered any reverses I’m not sure he’d have the courage to endure simply for the sake of fighting for what he thought was right.

          1. I enjoy watching reason, tolerance, science, modernity, education, and inclusivity prevail.

            I enjoy watching backwardness, intolerance, ignorance, superstition, unearned privilege, and insularity continue to decline in influence as America improves.

            I enjoy watching more people have the opportunities associated with accomplished, educated, modern communities.

            I enjoy watching fewer and fewer Americans, especially young Americans whose only mistake was having losers for parents, be mired in the dysfunction of bigoted, can’t-keep-up backwaters.

            1. You realize that as election day approaches, the Democrats will wish more and more strongly that the likes of be seen and not heard?

            2. “I enjoy watching reason, tolerance, science, modernity, education, and inclusivity prevail.”

              More like you enjoy posting lies, asshole.

      2. Ahh yes, clearly a well reasoned argument from “DeleteGrossLiberals”.

        And I’d argue we have a first world puppet doing that right now here at home.

  34. 2055: President Barron Trump increases number of SCOTUS Justices to 36.

  35. The national Democratic Party is increasingly headed by revolutionaries. Not liberals. Not progressives. But revolutionaries with the usual totalitarian impulses. Or, as AOC put it, until this climate change thing is cleared up, she is THE BOSS.

    1. Read this thread and tell me where the reactionaries are.

      1. Frankly, I’m quite happy that conservatives aren’t just for conserving liberals mistakes these days.

        1. The death threats and racial rhetoric is a bit more than just some policy rollback.

          The irony of unabashed reactionaries yelling about how the other side is full of reactionaries is something, no?

  36. This (non-Democrat) progressive does oppose court packing, and I strongly prefer that the GOP stop doing so.

    1. Court enlargement need not be a precipitate for worry. Check the Arizona example. Relax and let Democratic leaders handle this.

  37. Yep- now you’re afraid of it after you screwed Garland and pushed through “I like beer” Kavanaugh who threatened those who dared question him.

    The best idea is still 18 year appointments with each president getting to appoint 2 a term. It’s fair, malleable, and less subjects elections to voting for terrible people for the wrong reasons.

  38. Meh, court packing is like vote packing, which Reasons supports via its open borders stance. ICE agents aren’t reporting caches of Libertarian Party pamphlets or well-thumbed copies of Reason have been found during their raids.

    Pack the court! Pack the vote!

  39. Here we go! Here we go! Court packing is really going to blow!

  40. “Thoughtful liberals would do well to reject it.”

    Liberals in the 70s and 80s.
    Progressives in the 90s and 00s.
    Postmodern Marxists in the 10s.

    Liberals believed in the rule of law.
    Progressives less so.
    Postmodern Marxists don’t believe in the rule of law at all.
    They believe in the rule of Postmodern Marxists.

    1. Which neatly allows you to believe only in the rule of anyone not on the left, by hook or by crook.

  41. I like Booker’s term limits idea.

    As it is, one of the major qualifications is youth. How long will my guy stay on the court?

    I’d extend term limits to *all* federal jobs but military.

    1. The military has “up or out”. Why not use that through the bureaucracy?

      1. The unions won’t allow for it.

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  43. Nobody is talking about what should be the real question, from a nonpartisan point of view — What size will yield the best decisions? By that I don’t mean the most liberal or most conservative decisions, but the most legally sound decisions. If the court is too small, there is a possibility that important arguments will be overlooked or that an aberrant individual will have an inappropriately broad impact. If the court is too large, the size may impair the court’s ability to function as a collegial body. (Although I’m a liberal, I think the 9th circuit is too large, which impairs its ability to function collegially.) Based on my experience as a judicial staff attorney at a 7-Justice court, I tend to agree with Illya that 9 Justices is about right. And I strongly agree with him that increasing the court’s size to make it more liberal or more conservative is unacceptable. I suspect (hope) that this court-packing idea is simply campaign strategy — Democrats move left (and Republicans move right) to get the nomination, and then head back to the center after they have been nominated. I doubt we’ll hear much about it after the conventions.

  44. A Constitutional amendment?

    If it’s something Republicans want, it could be done with about 65% of the popular vote.

    If it’s something Democrats want, they would need about 90%.

    1. The “popular vote” means that a disgusting homosexual in San Francisco get the same vote as a real Christian family man in the heartland. That’s why we don’t use the “popular vote.”

      1. You’re a left-wing troll in deep cover, aren’t you?

        1. Considering his deep-cut white supremacist citations, I’m afraid he looks pretty real.

          1. I’ve been ignoring it. Is there any reason to alter this choice?

            1. By Googling his sources, I’m learning a lot about the white supremacist writers of the 1990s, which has some hipster cred in liberal circles but has not much other value.

    2. How is Constitutional amendment relevant to Supreme Court enlargement?

  45. The “justice” system in this country is a complete fail/POS. Court-packing couldn’t possibly harm it any more.

  46. So, how to fix the Court. This comment will be about premises. Next comment about what to do.

    Here are a few premises:

    1. As a matter of original intent, the Court was put under the political oversight of Congress.

    2. Court packing was a justifiable epithet when the initiative to do it came from the President. It is not justified if a change in the size of the Court comes from Congress, which has the constitutional power to adjust the size of the Court.

    3. Congress is empowered to change the Court for political reasons.

    4. Congress is empowered to put broad areas of subject matter (or even specific legislation on many topics) beyond the reach of Court review.

    5. The legitimacy of the Court depends on broad willingness among citizens to accept its pronouncements as the law of the land?and that requires more popular buy-in than can be had on a partisan basis.

    6. Abuses of comity in the appointments process have for now damaged Court legitimacy to an unacceptable degree, putting its ability to perform its core mission in question.

    7. The legitimacy problem has been made worse by the current Court’s avidity to take on, and decide on a partisan basis, cases which have issues related to the political process itself as subject matter.

    1. I am not sure premise #1 holds. Congress has authority over lower courts, but the Supreme Court is intended to be co-equals. Congress is “first among equals”, but the other branches can be seen as having different intended time-frames… the Presidency exists to deal with the immediate, and the Court has long-term focus (which is why the justices have life tenure and, unlike the rest of the government, Congress isn’t allowed to use the power of the purse on the Court justices’ pay.

      Premise #4 is outright false. The Supreme judicial power is vested in the Supreme Court. Congress can’t remove it.

      1. Yeah, #5 is wrong too.

        The “legitimacy” of the Court depends on how govt agencies respond to its decisions, i.e. either they comply or they’re held in contempt.

        There’s no buy-in needed–from anyone.

        1. apedad, perhaps legitimacy means something different as a technical term in law than it does to someone interested in broad notions of government and sovereignty, as I am. My understanding has been that legitimacy is a tiered concept. At the top of the government heap sits a sovereign. The sovereign achieves sovereignty based largely on a demonstrated ability to use unconstrained power to constitute a government according to pleasure.

          The sovereign’s constituted government remains legitimate so long as its various parts act according to the sovereign will?circumstances which I take to encompass your notion of legitimacy. If the sovereign wants government agencies to obey the orders of a court, and they don’t do it, then the sovereign’s will is illegitimately frustrated.

          But unconstrained power, however successfully employed, is not the entire test of sovereignty. There is also the question of sovereign legitimacy, which is not the same as government legitimacy. Sovereign legitimacy is achieved when the sovereign’s subjects support the sovereign’s objectives, and make those objectives their own.

          In a case of popular sovereignty, where citizens are cast in a dual role, being at once co-sovereigns and subjects, that has complicated implications. One of them is that if the co-sovereigns (the People, in this nation’s case) are displeased with their Court’s performance, then the legitimacy of the Court suffers accordingly. That’s what I meant, and I think I have it right.

      2. Jame Pollock, what do you make of this? You can find it in Article III, Section 2:

        In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

        I’m not a lawyer. I have done a bit of poking around to see what that has been interpreted to mean. Apparently there was a flurry of interest in it at the time of the Johnson impeachment, and not much since. At that time, some among the Radical Republicans made the case that it proclaimed broad congressional discretion over what the Court could review. As I recall, the case ended for some other reason before that question got a final answer, but at one point in the proceedings the Court yielded to Congress on the basis of that argument.

        In previous comments here, I tested the meaning you say is false, and got a comment back from Bernstein who, as I recall, suggested there would probably be some constraints on using Congressional regulation to put off limits cases already before the Court, but also seemed to concede that otherwise I had read the meaning correctly.

        I’m happy to be corrected on some authoritative basis that specifically refers to the constitutional text I quoted. Do you know of any?

  47. FDR also tried to pack/destroy the Supreme Court. He should not be ranked highly because of this autocratic behavior.

    1. Do Lincoln next!

      1. Lincoln usually gets a pass because of the Civil War. But Taney deserved what he got, if I may say so.

        1. No you may not. Taney is a very underrated Chief Justice. Even Dred Scott wasn’t as misguided as modern interpreters claim. No less a figure than John Marshall had publicly endorsed the argument that free blacks could never be full citizens under the constitution as it was then. And Congress had been asking the SC for years to issue a constitutional opinion on slavery in the territories.

  48. Good luck getting Presidents to appoint judges who’s judicial philosophy does not align with their political views. It has been going on since the creation of our government.

  49. Stick with nine members, just mandate a retirement age, or a maximum term (16 or 20 years instead of life).

  50. Y’all who’ve proposed a Con amendment almost have the right of it. It could only be done by a party in power, and it would need to be as selfless as General Washington’s refusal to become King.

    It could take the form of “stop me before I …”. For instance, the Republicans write amendment to cap the supreme court at 9 and remove the most recent surplus justices (and send it to the states). Then, they immediately legislate a supreme court of 15 filled out with 6 new Trump appointees.

    Even California would ratify.

  51. Lots of pearl-clutching about this idea, but wait a minute.

    The Court is already being packed by whichever party, randomly, has the opportunity to do so. Six of he current Justices were appointed since 2000, two each by Bush, Obama, and Trump. Does anyone think these were not ideological appointments?

    Why doesn’t that “threaten to destroy the entire institution of judicial review?”

    The only major difference between current practice and court-packing is that the former occurs sort of randomly, but it’s not as if the parties don’t already take advantage when the opportunity arises.

  52. Let’s step back. Why is this even being considered as remotely acceptable? TDS whipped up even by academics who should know better. You have been running through the streets yelling FIRE for three years.

  53. The court packing scheme is again the Democrats wanting to change the rules so they can accomplish using the courts what they cannot through Congress. Look at Beto’s proposal. 5 Democrats and 5 Republicans? The problem now is we have judges deciding cases not on the law but political ideology and this idiot wants to entrench this mentality and overt violation of Article III. Judges intepret the law, they do not write it. What we need it a Constitutional convention to change Article III and clearly define the role of the Federal judiciary and its judges. Abolish the concept of super legislators as well as the ability of a single judge to impose a nationalwide injunction. Federal courts, especially those in the west coast have become much to politicized and are stepping far beyond their constitutional authority. The problem is no one in Congress or the SCOTUS is attempting to rein them in. Like it or not, the decision by the 9th circuit on the travel ban was a travesty. When EVER IN US HISTORY has the comments by a candidate been the basis for a decision about a executive order as President? The court did not rule in the actual wording of the document in front of them but rather the “intent” of why they beleived it was written which is not their role.

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