Supreme Court

Notorious RBG Opposes Court Packing

In recent interview, Justice Ginsburg says it would be a bad idea to increase the number of justices

|The Volokh Conspiracy |

Some progressive pundits and policymakers have embraced the idea of increasing the number of Supreme Court justices in order to offset the confirmation of Justices Neil Gorsuch and Brett Kavanaugh and enshrine a liberal majority on the Court. To some, this is a proper response to the Senate's failure to consider President Obama's nomination of Merrick Garland to replace the late Justice Antonin Scalia.

Unlike other Court reform proposals, such as the imposition of judicial term limits, increasing the size of the Supreme Court could be achieved by ordinary legislation. Article III of the Constitution does not specify how many justices the Supreme Court must have.

My co-blogger Ilya Somin has argued against these court-packing proposals on this blog. It turns out that Justice Ruth Bader GInsburg agrees with him.

In a recent interview with Nina Totenberg, Justice Ginsburg explained that increasing the number of justices would be a bad idea and could further undermine the Court's legitimacy.

From the interview:

"Nine seems to be a good number. It's been that way for a long time," she said, adding, "I think it was a bad idea when President Franklin Roosevelt tried to pack the court." . . .

"If anything would make the court look partisan," she said, "it would be that — one side saying, 'When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to.' "

That impairs the idea of an independent judiciary, she said.

The whole interview is worth a listen.

NEXT: This School District Threatened To Take Kids Away From Parents Over Lunch Debt. Then It Refused a Businessman's Offer to Pay Those Debts.

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  1. Robert Conquest’s First Law of Politics: Everyone is conservative about what he knows best.

  2. It’s obviously a great idea to increase the size of the Court every time control of the other branches of the federal government changes hands.

    No more 5-4 decisions. But we’ll enjoy 13-12, 27-26, and 152-151 decisions about the same, except that everyone who wants to be a federal judge will get the chance.

  3. Ginsburg is correct on this one,

    She also got Gamble right regarding double jeopardy, Though Gorsuch’s reasoning was much better.

    1. She’s also said that college campuses don’t give enough due process to students accused of sexual misconduct.

  4. Never could figure out why Obama didn’t pack the court with more lefties especially after Scalia committed arkancide? The two yentas, frail Ruthie and the sleeper agent, Roberts are a very slender margin of error now.

    Unfortunately for We, the People, Kavanaugh (remember he said he adheres to Jesuit teaching) will probably vote with the left most of the time and even replacing Ginsberg won’t be enough. Let’s hope Thomas remains in good health and Breyer retires to spend more time with his great grandchildren in the very near future.

    1. The left have always been anticipating that a time would come when they’d take control of the government, and never relinquish it. Obama thought that time had arrived, until he lost Congress. Clinton thought that was a momentary glitch, and 2016 would mark the true beginning of perpetual Democratic rule.

      That’s one of the reasons they went so berserk when Trump won, AND the Republicans held onto Congress. They were already counting their winnings.

      1. “They” went berserk when Trump won because he is an utterly corrupt bigot, an ignoramus, and an incompetent ass, not to mention a prolific liar and a bully.

        You don’t give a FF about any of that though, because you get to gloat over his win. You’ve been on a gloat for approaching three years now.

        1. “’They’ went berserk when Trump won because he is an utterly corrupt bigot, an ignoramus, and an incompetent ass, not to mention a prolific liar and a bully.”

          He is indeed all those things, but the only thing that matters is the little letter in the brackets after his name. The R’s “reluctantly” welcomed him because he says he’s one of them. If he didn’t, there’d be no end of the complaints about his extensive infidelity and difficulty handling truth. On the other hand, Bill had those same qualities and was welcomed by the D’s.

          1. Well, not “just” because he says he’s one of them.

            The R establishment accepts him because the R voters did, and it would be political suicide to stop pretending that they care what their political base thinks.

            The R voters accepted him because the R establishment have such a terrible track record of actually delivering on their campaign promises that the voters were ready to gamble.

            And the gamble largely paid off, Trump, while no real Republican, has actually governed as more of a Republican than the last couple establishment Republicans did.

            1. It has paid off in the short term, but the Republican Party is properly being branded with bigotry and ignorance for at least a generation in an electorate that is becoming increasingly demographically inhospitable to a platform of intolerance and backwardness.

              What evidence indicates that Republicans are to be competitive in national elections in a relatively near American future that is less rural, less superstitious, less white, less intolerant, and less backward? Young Americans — especially the educated, skilled, accomplished, modern Americans — don’t like bigots.

              1. Here was the real choice: A woman who will do 95% wrong vs.a loudmouth who will do “only” 90% wrong.

                That was the decision a lot faced.

                1. Maybe a few felt that way, Krayt, but even a lot of that was swallowing the Hillary demonization whole.

                  I don’t think most Trump voters were holding their noses. You don’t cheer loudly and wear hats and generally demonstrate massive enthusiasm for someone you think is only 90% wrong.

                  1. The enthusiastic, cheering masses must either be actually believing the bullshit, or they just love the fact that Trump drives intellectuals and liberals nuts, and not actually care that he’s not got a clue what he’s doing.

            2. “The R establishment accepts him”
              Maybe but they don’t support him.

              1. No, they just tolerate him because getting together with the Democrats to impeach him would be political suicide.

                1. The D establishment has less interest in impeaching him than does the R establishment.

            3. “The R voters accepted him because the R establishment have such a terrible track record of actually delivering on their campaign promises that the voters were ready to gamble.”

              True, the R establishment has a terrible record of delivering what they promise. This is because what the base wants is largely incompatible. They want much more spending but also much lower taxes, for example. So they promise both and deliver only one… spending goes up on R priorities. Trump is even worse at actually delivering, but he drives those darn liberals absolutely nuts, and that’s what they really want. Sure, his stupid trade war with China means that products Americans want to buy cost more, and producers of products that Americans sell to China are seeing falling prices… but it bugs the failing NY Times, so it must be good somehow.

  5. “…increasing the number of justices would be a bad idea”

    Yes indeed; perhaps RBG isn’t as mentally frail as some have speculated.

    “. . . and could further undermine the Court’s legitimacy.”

    Or maybe not–once something is fully undermined, is there any further to go in that direction?

    1. “Yes indeed; perhaps RBG isn’t as mentally frail as some have speculated.”

      I haven’t heard anyone speculate that she is mentally frail.

      On the other hand, she is physically frail to the point that she is starting to resemble the Monty Python dead parrot skit.

      1. “I haven’t heard anyone speculate that she is mentally frail. ”

        It’s an R talking point What they mean by that is “dammit! She keeps ruling in ways we do not appreciate.”

        Strom Thurmond was older and frailer. But also more than 5 minutes ago, so the short-memory folk don’t remember the shoe on another foot.

        1. I seem to have missed that talking point, unless you mean the bit about her dozing off, which she DOES do, but that’s not necessarily mental incapacity.

        2. re: “It’s an R talking point”

          Citation, please?

          Preferably something an influential Republican Party leader actual said, not some D-sympathetic talking point attempting to discredit the Rs?

          1. “Preferably something an influential Republican Party leader actual said”

            If I’d said it was an influential R party leader proclamation, I might bother to respond to your demand.

  6. I wouldn’t mind enlarging the Court to 10, or reducing it to 8, even if it resulted in more split decisions that didn’t finally resolve the issue. A mature circuit split is one of the best ways to get review, which pretty clearly demonstrates that on most issues the Republic can survive even if the rules may vary across circuits.

  7. As activist a leftist judges have become already, an expanded court intended to “enshine” a liberal majority would only accomplish one thing, a second civil war. Progressives think the key to achieving power and transforming this country i to their socialist, statist dream is through the courts. The think if they get legal decisions to support them, everyone will have to comply. The problem is it only further shows they do not understand those people they love to dismiss and mock , those of us in the middle of the country.

    1. Democrats have no greater or lesser desire to control the courts than Republicans.

      Since we are apparently in a free-for-all fight for that control it is ridiculous to criticize Democrats who want to pack the courts while supporting Republican efforts to fill them with partisan hacks.

    2. “an expanded court intended to “enshine” a liberal majority would only accomplish one thing, a second civil war”

      All-talk, disaffected right-wing gun nuts are among my favorite casualties of the culture war.

      Those who wish to go ‘the full LaVoy” have my blessing. They’re going to be replaced by their betters eventually as America continues to improve against their wishes and efforts, so the issue is merely when these losers are to be replaced.

    3. ” Progressives think the key to achieving power and transforming this country i to their socialist, statist dream is through the courts.”

      Whereas Conservatives think the key to transforming this country to their non-socialist, but still statist dream is through the courts. This isn’t even a recent parity, they’ve been obsessed with appointing anti-Roe-v-Wade justices since Reagan.

      1. Whatever the merits of your tu quoque claim generally, picking Roe as your example seems like an odd choice. Overturning Roe takes the issue away from the courts.

        1. “Overturning Roe takes the issue away from the courts.”

          They’re certain that they’ll be the only ones writing statutes afterwards? I’m an observer of what they do publicly, not a participant in their planning efforts. If you prefer, they’d also like to overcome the ACA via lawsuit because their representatives abjectly failed to use control of the legislative and executive branches to achieve this goal.

  8. The fact that all the current justices do what they can to keep the courts debates as non partisan as possible shows the current system and court size are working well. Despite a lot of public perception to the contrary their are about 25 discrete voting blocks on the court depending on the issue, only one of those voting blocks meets the straight line party perception.

    If we expand the number of justices it just increases the chances we will get a party line primadonna that will cause more division not less.

    1. Republicans should have taken that thought seriously a few years ago. But they did not, so conservative views on enlargement should be largely irrelevant to the liberal-libertarian mainstream.

      1. What mainstream?

        Court packing polls 27-57 negative. It would just be a disaster for Dems. Just as the Obamacare power play gave the GOP control of the house 2010-2018 and the Senate 2012-?, it would put the democrats in the wilderness for most part of a decade with a bonus of having the Dems nuke the filibuster before they went.

        1. Have you checked how some of the items clingers rammed through (or defeated) when they had the votes have polled?

          1. Things that are already popular don’t have to be “rammed through”. Rep. Fatcat is going to vote yes on the “Mom and Apple Pie Act”.

        2. You’d like to think that, but the whole point of packing the Court is that, afterwards, you can do all sorts of things that the Court wouldn’t previously have let you do.

          Political censorship, for example.

          First you pack the court, and THEN you pass all the legislation to turn the US into a one party state, but which would have been struck down without a packed Court.

          1. Paranoia alert on Aisle One.

  9. Unless someone can produce evidence of advance objection to Republicans’ recent enlargement of the Arizona Supreme court, I see no reason to think much of partisan whining about prospective enlargement of the United States Supreme Court.

    One-vote majority in the House, one-vote majority in the Senate, plus lack of a veto = an enlarged Supreme Court. Let the wailing of the conservatives (and the self-described “libertarianish”) begin!

    1. So basically you’re position is “some idiots think this is a good idea, so I’m going to think its a good idea too”

      1. Excellent inference. And deployment of contractions.

        Get an education, clinger.

  10. Unlike most progressives RBG seems capable of considering what the opposition will do when they come back to power

    1. Partisans (of both flavors) seem to have trouble remembering that sometimes the voters don’t side with them and always assume that once they manage to get a majority, and impose their version of ideal legislation, that there will ever be a time when the other guys control anything.

      During his early months, Obama thought he could break that cycle by including R’s in his government. He put some into cabinet posts, for example. I think we all remember how well THAT worked out.

  11. Nine is too small a number. It means that every appointment made by every president significantly skews the Supreme Court.

    Twenty-one would be a good number. It would make it very, very difficult for a single president to significantly affect the make-up of the court.

    1. Why? They all get old at the same rate. Since 1869, the average has been for each president to replace one-third of the Supreme Court’s members. Whether you have 9 or 21 or 211 on the court, you’ll have the same average fraction being replaced within any given presidential term. Changing the size of the court will have no effect on the power of a single president to affect the make-up of the court.

      1. “Why? They all get old at the same rate”

        But they choose to retire in a predictable fashion, too… stepping away when they believe the President will appoint a substantially similar justice, hanging on if the President seems unlikely to do so. Throw in the new “you don’t get to pick a new justice if you’re within 4 years of the end of your term as President” McConnell rule…

  12. To some, this is a proper response to the Senate’s failure to consider President Obama’s nomination of Merrick Garland to replace the late Justice Antonin Scalia.

    I do not think it is a proper response. I think it is an improper response, which would lead to endless further politicization of the Court, and a proportionate further plunge in the Court’s already-depleted legitimacy—and thus invite catastrophe. But alas, doing nothing in response leads to the same awful outcome. So the status quo is no better.

    For that reason, the McConnell/Trump attack on Court legitimacy should not stand. The trick will be to undo Court politicization already inflicted, without triggering a tit-for-tat cycle of Court degradation, which would deliver an outcome just as bad, or worse.

    That can be done. But it will require Democrats to recognize that their ambitions must start with Court reform—with an eye to comprehensively depoliticize the Court, including undoing Democrat’s own partisan influence, along with that of Republicans—and there Democratic ambitions must end. There can be no new lunge for partisan advantage.

    For their part, Republicans must be made, probably against their will, to see advantages in giving up what they take to be legitimate gains in partisan advantage on the present Court. That can be accomplished by politics.

    Exceptionally good political outcomes for Democrats will be a necessary predicate to reform. Strategy or happenstance must deliver to Democrats sufficient political power to remake the Court at pleasure. To do that, Democrats must control all the political divisions of government—the presidency and both houses of congress. Perhaps that cannot be expected soon. It may require patience, but the opportunity will surely come.

    With that Democratic political power in place, reform begins with a a stark choice. Democrats say to Republicans, and announce to the nation, that their agenda is to depoliticize the Court completely and permanently, and to do so with Republican cooperation. Or, Republican cooperation failing, the alternative choice will be to enlarge and pack the Court as comprehensively as possible, on behalf of Democratic partisanship.

    It should be made plain that in the event Republicans refuse cooperation, new Democratic justices to be added to an enlarged Court would be drawn from the darkest reaches of Republican nightmares—all of them young, diverse, left-wing ideologues. Judicial temperament would play no part in their elevation. They should instead be tested Democratic Party political operatives. All should pass a pro-choice litmus test. There should be a committee, composed of delegates from left-wing think tanks and labor unions, appointed to advise the president on which nominees are most recommended. In other words, these new justices should be appointed according to standards and practices which mirror those used to appoint Justice Kavanaugh.

    The Democratic Party threat should be extreme enough to implicate prompt overturn—by the packed Court and the political branches working together—of Republican corporatist plutocracy. Dismantlement of antidemocratic political practices, such as partisan gerrymandering, should also be a given.

    The alternative proposal—reform to completely depoliticize the Court—will thus become an offer Republicans cannot refuse, and with which they must cooperate. Present advantages Republicans enjoy would stand to be wiped out anyway. The gain for Republicans will be the self-constraint offered by Democrats, by opting for reform, instead of a packed Court.

    With bipartisan cooperation in place in the congress, it would be time to clean house at the Court. Congressional leaders should call on all existing justices to step down, citing the good of the nation and depleted Court legitimacy as reason. During their tenures, when they should have kept aloof from politics, all the presently sitting justices have instead associated themselves with partisan organizations and causes. If necessary, those associations could be made grounds for the impeachment and removal of any justice who did not cooperate.

    With a blank slate of Court seats to fill, there would be no need for court enlargement. What would be needed, and indispensable, would be a new, more-stringent standard for confirming nominees. The aim should be to establish and enforce a super-majority requirement so lopsided that any trace of political partisanship in a nominee would guarantee rejection. Under that standard, only judicial qualifications and temperament should matter. It ought not make the slightest difference which party the appointing president belonged to. The Democrats’ aim in refilling the Court should be to establish and hew to a standard of confirmation sufficient to let them comfortably invite Republicans to nominate a majority of the new justices.

    It might perhaps make sense for each party, with the consent of the other, to choose one previous justice, to be reappointed as a holdover, to provide the reestablished Court with institutional memory. It would certainly make sense to institutionalize the new confirmation standards, preferably by constitutional amendment.

    I suggest that such a reform, once in place, would prove durable. Neither party would have an interest in trying to upset it. Public memory of the present state of the Court would inflict an imposing political price on anyone trying to go back. The nation would gradually become accustomed to a depoliticized Court, and stop looking to it to short-circuit political contests. The People would thus restore to a renewed Court the legitimacy the present Court can no longer claim.

  13. OK – so give us term limits. Or age limits. 75 would be fine. Fluid IQ starts going down in the mid-20s, and by 60s you’re looking through smoked glasses. People love to talk about how sharp their favorite oldies are, but they never see them put to a real test. Most of these grumps couldn’t find their car keys in their pockets – if they were still driving.

    Age limits would drive younger candidates, but I see no problem there – let them get on the job experience. And in the end, the same people will end up on the court. More battles over confirmation, but less riding on each nomination. I’d love to see a hot soccer mom on the court.

  14. […] The Volokh Conspiracy‘s Jonathan Adler directs us to these comments about the proposal from his co-blogger Ilya Somin: […]

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