A Resignation in Time, that Saved Nine

To avert Court Packing, would the Chief Justice allow a President Biden to appoint his replacement?

|The Volokh Conspiracy |

On Sunday, I wrote that Court Packing is an inevitability when the Democrats win the White House, and majorities in both the House and the Senate. That post caused quite a stir, with 537 comments. (By way of comparison, the post on Reason-Volokh with the most comments has 556 comments). I appreciate that others have attempted to propose compromises and deals to forestall Court Packing. I am not sanguine. Politicians have very short time horizons. It is not feasible to strike a deal that may pay benefits years in the future. Any solution that requires collective action is, in my mind, off the table.

But there is one possible solution that does not require collective action. Of course, my proposal here is my proposal for all problems afflicting the Supreme Court. A resignation in time could save nine. Hear me out.

Imagine the Senate confirms Judge Barrett before election day and then three months later President Biden is sworn in with a Democratic-controlled Senate. At that point, the Court would have a 6-3 conservatish majority. There will be calls for Court packing.

At that point, in an act of selflessness, Chief Justice Roberts resigns. Then, President Biden follows the lead of President Reagan in 1986. Biden would elevate the de facto Chief Justice to become the de jure Chief Justice. With Chief Justice Elena Kagan in the middle seat, Biden would then be able to pick Justice Leondra Kruger, or someone else, to fill the Associate Justice seat. Biden would have two nominations in the span of a few months. Certainly those changes, in rapid succession, would quiet the waters for some time.

True, there would still be a 5-4 conservative majority. But, for the first time since Fred Vinson, there would be a Democratic-appointed Chief Justice. I think she could deftly guide the Court throughout these tumultuous times far more effectively than Roberts ever could. If she could manage Harvard Law School, she can manage the Supreme Court.

Think about it. Roberts would resign as the virtuous Cincinnatus–he resigned at the peak of his power for the sake of the republic. What better way to cement a legacy and foster bipartisanship? His place in history will be secure.

This post is written somewhat tongue-in-cheek, but I think it could possibly work if things get ugly after January.

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  1. So much pessimism

  2. While the departure of Roberts would be a net positive, replacing him with anyone but Senator Cruz would not

    1. In 2020 no senator with presidential ambitions (as unrealistic as they may be) is going to accept a Supreme Court appointment because one is expected to die on the bench…it is essentially a life sentence and it should come with a coffin, a really nice one. 😉

      1. David Souter didn’t die on the bench.

        “David Hackett Souter (/ˈsuːtər/; born September 17, 1939) is a retired Associate Justice of the Supreme Court of the United States. He served from October 1990 to his retirement in June 2009.”

        It is the lust for power that keeps Jurist on the bench, not any legal or moral obligation.

        1. Souter continues to sit on Appeals Courts by designation.

    2. ” replacing him with anyone but Senator Cruz would not ”

      Sen. Cruz seems to be the darling of the libertarians at the Volokh Conspiracy.

      Why do “often libertarian” men find it so attractive when someone repeatedly calls a guy’s wife a hideously ugly pig (and says the guy’s father killed Kennedy, and mocks the guy as “Lyin’ Ted”) and the husband responds by figuratively fellating the critic?

      (Does it have anything to do with the Jerry Falwell Jr. pay-and-watch saga?)

      Carry on, “often libertarians.” Especially “Beautiful Ted.”

      1. I met Cruz once at a candidate forum. Reminded me of a stereotypical used car salesman. Really don’t understand the appeal.

        1. He was apparently a wiz at college debate.

          Some things just don’t translate well into real life.

  3. So the prospect of court-packing allows the political branches to coerce the removal of the Chief Justice?

    More support for my theory that expansions that nullify a federal judge or SCOTUS justice’s decisions are prohibited by the good behavior clause. They allow the political branches to effectively (or in this example literally) remove judges from office.

    1. Personally, I think we should nuke the Dems until they glow so we can shoot them in the dark.

      This would be like Neville Chamberlain giving Hitler Czechoslovakia and it will last about as long.

      APPEASING BULLIES DOESN’T WORK….

    2. Historically, during President For LIfe FDR’s time in office, the prospect of court packing led to “The Cave-inSwitch in time that saved Nine”. I suppose if Roberts didn’t want to complete his move to the dark side he might resign instead.

      Strikes me as a bad idea to reward threats, though people do it all the time.

  4. Nice hypothetical, even sounds plausible except for how big a bruise Roberts’ ego can stand.

    But I still don’t think the Dems will pack the court, even if they get 60+ in the Senate. I think there are enough cooler heads to realize how it would appear; FDR’s Dems stopped him, and I don’t think today’s Dems are any dumber.

    OTOH, if the Dems are that stupid, the Republicans will retaliate in kind, and the vicious cycles will be a wonder to behold.

    1. The dems will expand the court no matter what, if they ever gain the White House and the Senate.
      And if they gain the Senate and White House, the Republicans will never again control anything. Goodbye electoral college, goodbye second amendment, goodbye first amendment, goodbye economy, hello direct election, hello complete control of the country by the coasts until they finally pass the final straw act and true revolution breaks out.

      1. I half-agree with your first statement: if the Dems are going to expand the court, it will happen regardless of this vacancy.

        But the rest is such hyperbole that it reinforces my belief that they aren’t that crazy.

        1. No, it’s people like that person that are nuts. So hyperbolic.

          In any case, the argument against court packing is….what? Republicans are already shredding every last norm and ethic available so who really cares if the Democrats do it in kind?

          1. What norm are they shredding?

            The norm is when the president nominates a supreme court justice and a majority of the Senate votes to confirm them then they are on the court.

            1. They shredded that norm with Garland. They excused it with a made up norm that everyone knew was eyewash, but that is now being made manifest.

              If the Dems don’t at least strongly consider packing the Court, consider what they would be letting the GOP get away with, and what it says about the legitimacy of Democrats’ participation in our republic. I hate this radicalism, but I don’t see an alternative.

              1. There have been, what, about 119 Supreme court justices in total? That’s not enough samples to establish the existence of a norm.

                Per wikipedia, 37 nominations to the Supreme court have been failures. Of these, 11 were rejected with role call votes, 11 were withdrawn without votes, and 15 lapsed at the end of session without a vote.

                So, contrary to hysterical pronouncements, Supreme court nominations have often been denied votes.

                1. Days ago, Chairman of Senate Judiciary Lindsey Graham said they have the votes to move the nominee out of committee. The nominee was not named at the time, and still isn’t.

                  But please, continue with the history lesson on failed nominees.

                  1. But seriously, when someone says “it often rains in September” what possesses a chap to retort “It’s sunny today, Haha, you liar !”

            2. Bullshit. The norm for 30 years was that qualified nominees get appointed. If you treat Bork as an exception (which you should, because he was a fanatic who lacked the temperament to be a justice, and because Reagan got to appoint Kennedy who was confirmed 97-0), that was the norm for at least the entire 20th century.

              1. Strange how such a norm – that for at least the entire 20th century until Bork, qualified nominees get appointed – can encompass two whole nominees being rejected by the Senate less than 20 years before Bork.

                Methinks “qualified” is bearing quite a burden in your norm.

                1. Bork was not qualified.

                  He was a right-wing fanatic. I’d think that those who spend a lot of time talking about defending the 1A would take a look at Bork’s view of it before going on and on about what a great Justice he would have been and how unfair it was to give him a hearing and then vote him down, 58-42.

                  The mythology is dishonest and disgusting.

                  1. Oh, he was qualified, alright. He wasn’t a good fit to the job, but he was certainly qualified. “Qualified” is the minimum threshold to consider somebody for the job, we need to expect more than merely qualified.

                2. Perhaps “qualification” is in the eye of the beholder for SCOTUS nominees. But Haynsworth and Carswell were inveterate racists who were rejected on a bipartisan basis. Carswell was reversed 58% of the time as a district judge. Blackmun (Nixon’s third try for that seat) was confirmed 94-0.

                  Bork was radical but qualified. Haynsworth and Carswell were radical and unqualified. There is a reason Republicans complain about “Borking” and not “Haynsworthing” or “Carswelling.”

                  1. Right, so killing Bork and Carswell’s nominations and putting in two liberals, Kennedy and Blackmun, proves that the Democrats did not violate norms.

                    Remember, Kennedy is the author of the opinion that held it a Constitutional right for a gay man to erupt in another man’s tuchis.

    2. Cooler heads might only prevail IF the court packing did NOT require adding 4 seats.
      Otherwise it will happen. Full stop.

  5. “…Court would have a 6-3 conservatish majority…”

    I’m not a wildly conservative law professor hunting for a federal judgeship or administration position. Is this shorthand for “a deeply deeply conservative and partisan 6-3 majority?”

    1. Well, it’s short for a majority composed partly of people who uphold Obamacare and rule that the Title VII prohibits discrimination against gays. Is that “a deeply deeply conservative and partisan” or “conservatish”?

      1. Yeah, it’s still very conservative, just not 100% outcome-oriented.

        1. Yeah, some outcomes are very liberal. Hence conservatish.

          Heck, even with respect to some of the most partisan issues, the court might take quite a moderate position.

          For example, even if they overturn Roe, they’ll leave the matter to the states instead of ruling that Equal Protection protects fetal life. And they probably won’t overturn Obergefell. That’s pretty moderate.

          1. So all you care about are outcomes, in the final calculus.

            And you’re sure that’s all I care about as well.

            1. OK, fine. It’s a deeply deeply conservative and partisan court, except for the outcomes. Better?

              1. With Barrett replacing Ginsburg, I would expect the lion’s share of the controversial outcomes to be conservative.

                1. Agreed . . . for six or eight months.

                  1. And then we have martial law….

                2. With Barrett replacing Ginsburg, I would expect the lion’s share of the controversial outcomes to be conservative.

                  Perhaps the jackal’s share rather than the lion’s.

                  Roberts is not a RINO squish per se, he’s a tactical squish when he thinks going against the DC cocktail party circuit is risky. Kavanaugh is made from the same cloth. So both of them will go with the libs on some high profile cases. Abortion certainly, guns probably, but on things like voting cases probably not.

            2. Roe is not going to be overturned. Neither is Obergefell.

              1. Roe is in grave danger. Overturning Obergefell would require a state enacting a statute which prohibits same sex marriage, which is less likely than a direct challenge to Roe.

                1. True, but “less likely” is not the same as “very unlikely.”

                  I expect some state legislators to introduce a bill banning SSM, though it might fail.

          2. some outcomes are very liberal

            Where “very liberal” means TIP doesn’t agree with them.

      2. Obamacare is conservative…it was crafted by the Republicans’ 2012 presidential candidate.

        1. No, it wasn’t.

          1. You know what he means.

            1. Nah, if you read Cremmington he has a dumb conspiracy theory about the ACA and Trump.

              Though I do know what you were getting at – the ACA’s form was presaged by some conservative offerings to create a market-based solution to health care coverage.

          2. Whether it was or not, it sure looks a lot like Romney’s MA plan.

            Whether it’s “conservative” or not doesn’t seem to be very important.

  6. ” There will be calls for Court packing.”

    You must have forgotten, the two things Democrats are known for, whining and caving.
    https://reason.com/2019/12/30/meanest-pun-of-the-year/

    1. The outrage on the other side, that said, Ok, this is the way the democrats want to play it, with a Supreme Court as a pseudo-legislature, and so engaged on a many-decade effort to slowly, slowly turn this crypto legislature to one that favors them, will be larger than imagined.

      Unable to win the key elections, and slowly, slowly losing ground in the political power grab bed they made, when they are about to lose, they threaten a new game.

      I generally prefer a liberal court for social issues, but not for economic ones, and am terrified of the left’s new position on speech censorship. However, many do not share this. It is proof it has been about power all along, and decency and standards be damned.

      1. What new position on speech censorship?

  7. First time for everything…. I’ve never seen someone who posts here brag about the number of comments he got. But given the post in question was pure trolling, why am I not surprised?

    1. I wonder if Prof B might be The Donald’s long lost son ?

  8. Sounds like something Roberts might do. He’s been playing pseudo-political games as Chief Justice for quite some time. I don’t think Kagan could do as well as he’s done with the balancing act.

    Here’s a different idea. If the Democrats tried to pack the SCOTUS, Roberts could just not seat the new justices. Give a reason why they were not allowed to sit. And if Congress disagrees with Roberts interpretation of the law, Congress can bring it up in court…Where they can appeal to the SCOTUS, and the same decision can be made.

    1. Sure, or Congress could just impeach Roberts.

      1. They would need 2/3rds of the senate to do that…

    2. If the Democrats tried to pack the SCOTUS, Roberts could just not seat the new justices. Give a reason why they were not allowed to sit.

      What would that reason be?

      And how is the Chief Justice authorized to refuse to seat a new Justice who has been duly nominated and confirmed?

  9. Jesus, you really do hate that guy.

    1. lol ya think?

  10. Wow. Hatred for Roberts from the right wingers seems to be increasing. Which seems peculiar, given how effective Roberts has been in furthering right wing politics. You guys, Roberts is pursuing long-term power maximization for Republicans, and doing it extraordinarily well.

    1. I know the ‘Roberts is secretly preserving Conservatism by voting the way Dems want on everything’ theory is a thing here but it never made much sense to me.

      1. That’s because you keep moving the goalposts re: what a conservative looks like.

        1. At confirmation time, Roberts presented the front of conservative Justice, that is to say not a Justice committed to conservative policy ends, but a Justice committed to “calling balls and strikes” honestly. A Justice committed to conservative judicial philosophy – the judge as neutral umpire rather than Judge as combatant, a la Ginsburg.

          And he’s turned out to be precisely the opposite. On controversial cases, he weighs the politics and calls a ball a strike, or a strike a ball, according to the baying of the crowd.

          Even less honest than the liberal Justices who are more or less open about the fact that they are umpire and pitcher.

          The tragedy of John Roberts is that he sincerely believes in SCOTUS as an institution, and his role in protecting it – he has simply failed to grasp that his politically attuned ball and strike calling is not protecting his baby by keeping its polling averages in a pleasant range. It’s drowning the baby in a soft soapy bath of politics.

      2. voting the way Dems want on everything

        Oh give me a break.

        This is deranged. Shelby County? Gerrymandering? Wisconsin mail-in ballots?

        Roberts is a reliable Republican vote on anything affecting voting rights.

  11. Here’s a wonderful deal.

    First, the Democrats agree with Rubio’s proposal to pass a constitutional amendment that limits the number of SCOTUS seats to 9. And pass it, in the House, and the Senate.

    Then Trump will hold off on nominating someone to the empty SCOTUS seat. Democrats better move fast, this is a deal that’s running out.

    1. I wish there was a way to play poker on this blog. You’re a terrible bluffer.

    2. The thing is the Dems have no constitutional or legal grounds to stand on so the only thing left for them to do is to run a PR campaign to convince the public that the Senate handling the appointment of Justices the way it chooses to like the Constitution specifies is a horrible atrocity. .

      Proposing a compromise simply plays into the idea that its unfair and the Republicans are in the wrong and Dems are in the right taking the exact opposite positions. Probably unwittingly for Blackman but exactly why Ilya is posting article after article about this.

      1. Yep.

        What’s odd is Ilya was so against Court Packing, but by proposing his “deals”, he appears to be supporting it.

        Just think. With a packed Supreme Court, the Democrats can ban guns, make religious worship illegal, eliminate freedom of speech, and make it legal to imprison and jail reporters. Hope Ilya’s happy with all that.

      2. I mean, it is unfair. Rs blocked it in 2016 for a bs reason and then go back on it in 2020 since it goes into their favor.

        The pure definition of unfair.

        1. Would it have been more fair if R’s had just voted Garland down?

          1. Not if the vote was based on a categorical rejection of any Obama nominee.

            1. Categorical rejection? I’ll bet the R’s would have confirmed Gorsuch or Kavanaugh, if Obama had nominated either one.

              1. Given that McConnell’s argument would require a rejection of Gorsuch or Kavanaugh as well, assuming you are right then we have another example of bad-faith.

        2. Lets overturn gay marriage because Obama lied about it before and that lie set a holy precedent which will endure forever.

      3. You do know that the “ground to stand on” that Dems are using is mostly 2016 quotes of Republican senators, right?

        All this could have been avoided if Republicans in 2016 had admitted that there was no principle, it was simply because “we can”.

        1. In fact, what they said was that when the Senate and Presidency were of opposite parties….

          1. Bullshit.

            You want to know what they said? Here you are.

            A nice compendium of quotes, including, from the odious Ted Cruz,

            For 80 years it has been the practice that the Senate has not confirmed any nomination made during an election year, and we shouldn’t make an exception now.

            Thom Tillis:

            It is essential to the institution of the Senate and to the very health of our Republic to not launch our nation into a partisan, divisive confirmation battle during the very same time the American people are casting their ballots.

            Mitch McConnell:

            The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.

            That “different party” is a transparent lie.

    3. Such an amendment, sans any strings, is just the kind of thing Americans need to do. Put on their big boy pants and inform the politicians this is the way it’s gonna be.

  12. No reason to negotiate with spoiled babies. If they have their heart set on doing it they’ll do it. Trump could rip up his list right now and and let Occasional Cortex personally handpick the replacement herself. And they’d still find some excuse down the line to pack the Court the second it stands in the way and they think they have the political capital for example when there is some massive astroturfing campaign to rip up the 2nd Amendment in the wake of some shooting.

  13. Biden would have two nominations in the span of a few months. Certainly those changes, in rapid succession, would quiet the waters for some time.

    What BS. As you well know, for practical purposes it’s one nomination. There’s also your slight of hand implying that a new 5-4 conservative majority sans Roberts would be remotely comparable to the one in which Roberts was the fifth conservative. Make Alito your voluntary resignation and then we can talk. Until then this is just one more pathetically transparent attempt to fake evenhandedness, with a cherry-on-top ass kick for your bête noire Roberts.

    1. like you guys have any leverage.

      1. Based on the sturm und drang here, clearly we do.

        Oh, we can’t stop it, but we can make it a pretty high political price. And it’s clear this is making some on the right uncomfortable.

      2. The threat of court packing is the leverage.

      3. Don’t need leverage. Just need the votes to enact the entire enchilada — enlarged Supreme Court, enlarged lower courts, statehood, universal health care, elimination of filibuster, criminalization of voter suppression, enlarged House of Representatives (and Electoral College) — next year.

    2. “There’s also your slight of hand implying that a new 5-4 conservative majority sans Roberts would be remotely comparable to the one in which Roberts was the fifth conservative.”

      OK, fine, how about Roberts agrees not to resign before the election?

  14. Isn’t the whole point of locking in that 6-3 majority before election day to make sure there isn’t going to be a President Biden? Otherwise, why bother with all the rush?

    1. Many Republicans fear that President Trump is going to lose. And while President Trump has threatened to not respect an outcome where he doesn’t win, most Republicans in office have rebuked him on that.

      That is to say… no. The point is to get a 6-3 majority in case there is a President Biden, not to forestall a President Biden.

      1. No – what President Trump has said is that he would look at the level of cheating by the Democrats if he loses the election to determine whether he should continue fighting. And Crooked Hillary is advising Biden not to concede the election, regardless of how badly he appears to have lost.

      2. That doesn’t explain why you’d want the new justice seated before the election. Under a normal timeline, there’d be plenty of time to do the confirmation hearings etc in November/December. The only reason to rush and do it in October is to make sure the new Justice can be on the Republican side in the 2020 version of Bush v. Gore.

        1. If you’re not satisfied with the volume of Dem whining to the tune of
          “we must wait until the people have spoken !” , imagine how many more notches they’ll be able to crank it up if the tune changes to
          “we won and now they’re pushing it through in the lame duck !”

          It would certainly be worse for the body politic to confirm a Trump appointed Justice after an election in which the Ds win White House and Senate, than before. And since the Rs intend to confirm one anyway, then it is better that they do so when the outcome of the election is uncertain.

          The long history of lame duck judicial confirmations notwithstanding.

          1. Dem whining to the tune of
            “we must wait until the people have spoken !

            See above. If that’s whining, then what were the Republicans doing in 2016?

            1. No, you whine when you’re losing.

              Whatever sound you emit when you’re winning isn’t whining.

  15. Your assuming a Biden presidency. Something, that at least for me, will take the first debate to settle. Again, not just for me, but for the country. Trump regularly does well when he has to, the question is, what or how does Biden do? Anything less than passable will probably doom him, and the Democrats.

    1. Don’t be silly. In this election, there are only Trump voters and anti-Trump voters. As long as the Democratic candidate has a pulse, they will win.

      1. Frankly for me even the pulse is negotiable.

        1. People were swearing up and down that the US would be an irradiated crater two months in if Trump was elected and here you are still banging on your keyboard and life goes on as usual.

          I remember back when Bush II was worse than Satan and then Bush Senior and Reagan before that. Even McCain and Romney were to be the end of civilization in their own times.

          1. Trump just refused to commit to a peaceful transfer of power. Tell me what Obama, Bush or any other president ever did that was comparable and we talk about how mean the libs are for picking on poor beleaguered Donald. Also tell me with a straight face that if Obama had said something similar you wouldn’t still be picking pieces of your exploded brain out of your keyboard.

            1. These idiots couldn’t stomach if Obama did 1/100 of what Trump has done but they’re fully commited to Trump shitting on the constitution daily.

            2. So did at least Crooked Hillary. And she is only one of many on the Dem side saying this. Trump didn’t say that he wouldn’t leave office if he loses, but rather he would look at it. Why? Because of the massive cheating being planned on the Dem side.

              Why are we being forced into mail-in voting across the country? We go to stores every day, and are just fine. For much of the population, COVID-19 is more benign than the flu. The only rational reason for requiring mail-in voting (versus allowing absentee voting) is that it lacks a chain of custody and lends itself to massive fraud.

              If the Dems weren’t expecting to cheat, then why the tens of millions of dollars, and thousands of attorneys lined up to litigate the election?

              1. Why would the Dems anticipate Trump might contest any result he doesn’t like? It is a mystery!

              2. “If the Dems weren’t expecting to cheat, then why the tens of millions of dollars, and thousands of attorneys lined up to litigate the election?”

                Donald Trump did promise that 2020 would be the most corrupt election in history.

              3. “Why are we being forced into mail-in voting across the country?”

                The simple answer to that question is, if you don’t live in one of the states that has all-mail-in elections, you aren’t (and strictly speaking, even in the all-mail-in elections states you can still hand-deliver your ballot to the elections office.)

            3. Of course he refused to commit to a peaceful transfer of power. If you look at what he said, it was basically, “Maybe I’ll win, why would I commit to a transfer of power if I win?”

              If they had asked him, “Will you commit to a peaceful transfer of power in the event you have clearly lost? they’d have gotten a different answer.

              It’s like 4 years ago, when Hillary tried to get him to commit to just conceding on election night, ruling out any court challenges or recounts.

              1. There truly is no bottom with you, is there? Was he asked if he would transfer power if he won, Brett? Before you get started, the answer is “no.” Even if Karan did not specifically ask “if you lose by a billion votes,” the “if you lost” would be the implication for any basically sentient adult.

                1. “the ‘if you lost’ would be the implication for any basically sentient adult.”

                  So, not including Trump. You can’t blame him for not understanding the words that were not in the question. He’s so out of it, he thinks he lives in a world where his performance as President is considered “great” by people who hate him but nevertheless are careful to address him as “sir”.

                  1. He wanted it out in the open that his interviewer was assuming he’d lose.

                2. He was, literally, asked if, “Win, lose, or draw, he’d commit to a peaceful transfer of power”. WIN, lose, or draw.

                  So, yes, he was asked if he’d commit to a peaceful transfer of power if he won. He literally was asked that.

                  Ultimately there is no “draw”, if it’s close, there will be recounts, court fights, maybe it gets decided in the House, but in the end there isn’t going to be a “draw”, he either wins or loses.

                  If he wins, there’s going to be no transfer of power. Is anybody asking Biden to commit to a peaceful response to THAT?

                  No, they’re not asking him that. There’s no question at all: If Trump wins, there will be riots.

              2. Brett,

                he is clearly saying that he doesn’t consider mail-in votes legitimate, so if he loses because of them he’s not going to go quietly.

                “Get rid of the [mail-in] ballots, and you’ll have a very — we’ll have a very peaceful, there won’t be a transfer, frankly. There’ll be a continuation,” Trump said. “The ballots are out of control. You know it. And you know who knows it better than anybody else? The Democrats know it better than anybody else.”

                So he’s not waiting for evidence or anything. Just asserting that he’s not leaving because of mail-in ballots.

                Resign from the cult, Brett.

                1. “The ballots are out of control.”

                  By which he means they’re out of HIS control.

              3. Brett, that’s so disingenuous you should be embarrassed. No honest person believes he was being asked if he’ll vacate the White House if he wins the election.

                1. No, he was being asked a question which was premised on his losing being a fore ordained conclusion.

                  1. hypothetical =/= fore ordained

            4. ” Tell me what Obama, Bush or any other president ever did that was comparable and we talk about how mean the libs are for picking on poor beleaguered Donald.”

              The outgoing Clinton team pulled all the “W” keys off the keyboards of all the computers in the white house. Whereas for Donald, what they did was check all the furniture for loose change under the cushions before he took over.

          2. I agree with you the Democrats are guilty of crying wolf in the past. But, as in the fable, the wolf has now arrived. While you can plausibly argue the Democrats deserve to be eaten, the analogy falls apart when you realize the country is being eaten too.

            1. I think you have your fairy tales awry. What Democrats are currently being chewed up ? What innocent sheep ? None.

              This is just the 347th cry of “WOLF !” No chewed sheep, no savaged shepherd boy. No actual wolf.

              Maybe this time a real wolf will appear, but the point of the story is that if you use up your credibility with false cries of “Wolf !” – the villagers require an actual wolf before they believe you.

              And there is still no actual wolf. Just hysterical cries that a wolf is coming, uttered by naughty shepherd boys from whom we have heard before.

              If you’re really afraid of wolves you should have taken a strap to the shepherd boy long ago. And – since he’s shouting “wolf ! ” again, when there’s no actual wolf in the fold, you should be taking a strap to him now.

              1. Trump is the wolf and it is quite sad that most conservatives, libertarians and republicans don’t see it.

                1. Show me the savaged sheep and the wolfy jaws dripping with blood.

                  1. 200,000 dead thanks to Trump responding based only on his own interests.

                    1. Oh dear. You’re normally fairly sensible.

                    2. Trump’s inaction during February and the first half of March, his talking down of the mitigation efforts recommended by the professionals in his administration, his talking up of getting everything back to normal as early as Easter, his egging on of governors to getting everything back to normal after Memorial Day, his mocking of wearing masks, his bragging about what a great job he has done rather than being straight with the American people on crucial facts, and his insistence on getting a vaccine before election day without regard to safety or effectiveness have all contributed (or in the last case may contribute) to many more deaths than if we had an president (including Jeb, Cruz or Pence) who was a normal functioning adult rather than a petulant child who cares only about himself.

                      And yet, so many people cannot see this wolf and the sheep he has devoured.

            2. “I agree with you the Democrats are guilty of crying wolf in the past.”

              Reagan said there was a bear in the woods, instead.

          3. “People were swearing up and down that the US would be an irradiated crater two months in if Trump was elected and here you are still banging on your keyboard and life goes on as usual.”

            Turns out Iran hasn’t made as much progress as we thought they would after Donald told them it was OK if the developed atomic bombs.

    2. Passable is likely a low bar.

  16. This article is based on the faulty premise that Biden is going to win the election.

    1. You figure Trump is going to sink another Electoral College longshot?

      There just aren’t enough bigoted dullards and superstitious rubes left in America to position him for another three-cushion trick shot. The electorate has been improving steadily — less rural, less religious, less White, less bigoted, less backward — each day for four years.

      1. “The electorate has been improving steadily — less rural, less religious, less White, less bigoted, less backward — each day for four years.”

        It’s cute how the left-wing bigots think they’re better than the right-wing bigots.

        1. Do you really want to compare Arthur to Aktenberg?

          1. I’m sure aktenberg has fucked way more. That’s a pretty good standard for judging people. Sexual frustration of the level Kuckland brings is a huge warning sign.

            1. What a shock. Someone who says “Kuckland” stans for the resident white supremacist. Go give yourself a swirly, you racist POS.

              As for what you think you’re sure of, here’s what I’m sure of: Aktenberg has fucked exactly as many times as his mom left him alone in the basement with his body pillow.

              1. Lol look at this nerd.

      2. I would challenge you to compare U Haul rates of reciprocal trips between LA, SF, NYC, etc and cities in TX, ID, etc. the populace of the Dem controlled big cities, allowed by their governments to burn, are rapidly fleeing. Millions of new gun owners.

        Dems have sided with Blacks in the BLM riots and arsons. That doesn’t appear to be sitting well with Hispanics. Some polls are showing Trump doing significantly better with them this time, maybe 10% or more. And they are pushing open quotas for blacks at state schools, which disadvantages in particular Asians. Etc. You talk bout the demographic shift between POC and whites, but as important, working class has moved significantly towards Trump and the Republicans, while losing the rich and the urban upper middle class.

        Trump appears to be running ahead of where he was 4 years ago in most of the swing states that he barely won or lost. Meanwhile you don’t really have a candidate. Not when he doesn’t get out of his basement to go a state or two away a couple times a week, to talk to small, hand picked crowds. His dementia is at the point now where his handlers declared a LID on his politicking at 9 am earlier this week. It is getting downright pathetic, when Sundown Joe can’t even read his teleprompter correctly when reading his staff’s answers to the questions he pretends to answer.

        I think that another thing that you aren’t considering is that the violent AntiFA and BLM rioting is alienating a large part of the country. Biden won’t forcibly condemn it, while his staff and VP running mate are supporting the violent protesters and rioters, going so far as to contribute to bail funds that allow them back on the street to immediately continue their rioting and burning. Much of the country really wants a restoration of law and order in this country. Biden hasn’t shown himself capable of being any sort of leader there, and the people around him still look to be facilitating the lawlessness and lack or order.

        1. To be fair, the millions of new gun owners could be Antifa and BLM arming up for the revolution. In fact, I’d guess half of it is that.

        2. In a free country, Bruce Hayden is free to spend his time (the time he has remaining before he is replaced by his betters) waiting for the Great Clinger Revival And Awakening to sweep America back to the ’50s . . . and for the return of Pat Boone atop the charts.

        3. “I would challenge you to compare U Haul rates of reciprocal trips between LA, SF, NYC, etc and cities in TX, ID, etc. the populace of the Dem controlled big cities, allowed by their governments to burn”

          Is there a particular reason you didn’t mention U-Haul rentals that ended in, say, Oklahoma City?

  17. appeasement never works. It only emboldens people. More likely: Roberts resigns attempting to appease people, and after he resigns they go ahead and pack the court anyway.

    1. “More likely: Roberts resigns attempting to appease people, and after he resigns they go ahead and pack the court anyway.”

      Which, according to current standards (anything you can get away with is fine) is not a problem. This is the price of your support for McConnell.

  18. When Dems pack the court, they should think big. Twenty or thirty new seats, filled with judicial-activist left-wing progressives, sounds about right.

    1. The size of the pack is irrelevant, so long as it produces a liberal majority. Winning cases 35-6 doesn’t win them any more thoroughly than winning them 9-6.

      As and when the Rs get back in, they just repack with however many it takes. If they don’t get back in, there’s still a liberal majority.

      1. The size of the majority absolutely matters, which is why you didn’t propose 7-6. With a majority of one, you lose any time you go for something that is extreme enough that you lose a vote. Larger majorities, (Like 9-6!) can remain majorities even in the face of defections.

        1. Liberal judges sometimes die. They never defect.

          1. No, that’s not true. They defect a lot less often than conservative justices, but the do it occasionally anyway.

            And I’d say that some of the current batch would probably have to think twice about some of the entrenchment proposals that are being kicked around right now.

  19. I hope you’re all ready for Kamala Harris’s America….

    Where inmates are kept in crowded prisons longer than needed, in cramped crowded conditions, so they can work as cheap labor. And when they appeal to the courts…Well, Kamala’s packed the courts with her supporters… She’s gotta keep the cheap prison labor.

    https://www.thedailybeast.com/kamala-harris-ag-office-tried-to-keep-inmates-locked-up-for-cheap-labor

    1. Nice off-topic nonsense.

    2. “I hope you’re all ready for Kamala Harris’s America….

      Where inmates are kept in crowded prisons longer than needed, in cramped crowded conditions, so they can work as cheap labor. And when they appeal to the courts…Well, Kamala’s packed the courts with her supporters… She’s gotta keep the cheap prison labor.”

      Kamala Harris is a Republican, is what you’re claiming?

  20. If the dems want to pack the court and make states in a transparent power grab let them do it. I don’t think they are going to like the results when it is there turn to get up against the wall….

    1. You keep talking about killing people. It’s pathetic.

      1. And you lefties actually do it. It’s pathetic.

        1. Using whataboutism to excuse someone talking about political violence? You don’t need to defend that trash.

          Also: I’m pretty sure I haven’t killed anyone.
          And I manage to avoid making threats about it on the Internet as well. It’s easy, Jimmy should try it!

          1. So, you believe that political violence is acceptable on the left, with a number of our cities burning, police being assassinated, etc, but somehow and armed response to that lawlessness is somehow horrible?

            This isn’t whataboutism, but rather that turnabout is fair play.

            1. No, I don’t believe that it is acceptable on the left. I’ve said many times here that rioters and other such criminals should be thrown in jail and undermine the BLM movement.

              Turnabout is fair play to excuse calls for violence will allow you to nutpick and excuse anything.

              You okay with putting the libs up against the wall?

              1. “I’ve said many times here that rioters and other such criminals should be thrown in jail and undermine the BLM movement.”

                While mostly refusing to identify rioters and other such criminals as what they are.

                1. Right, because according to Brett, all of BLM and the folks who identify as BLM are rioters and criminals. Brett is an ass.

                2. And, of course, if you don’t go along with the story that all the arson and looting is conducted by people who were just protesting police misconduct, you are supporting the rioters.

        2. Fuck you. Talk about pathetic.

          The right has committed vastly more political violence than the left, including killings. The body count isn’t close.

        3. “And you lefties actually do it.”

          Like at Chancellorsville, when those fiendish leftist protesters kept throwing their heads at the the proud patriot’s car, trying to break the car, or in Portland, where Jeremy Christian was just defending his inalienable right to harass teenage girls on public transit against leftist interlopers.

      2. Where above did I talk about “killing people…” Why do you keep on making up stuff? Do you need to lie in order to justify your politics?

        1. Yeah, we all know what up against the wall means, you coward.

          1. Up against the wall motherfucker this is a stick up?

            A reference to left wing violence?

            1. It is funny to see Sarcastro flail about with hysterics. Perhaps he should learn the history behind the expression.

              https://en.wikipedia.org/wiki/Up_Against_the_Wall_Motherfucker

              1. You’re not fooling anyone.

                1. Himself.

    2. All-talk right-wing pussies are my favorite culture war victims.

      Well, them and the ‘free speech advocates’ who moonlight as hypocritical censors, and the movement conservatives dancing around in silly libertarian drag.

  21. “I wrote that Court Packing is an inevitability when the Democrats win the White House, and majorities in both the House and the Senate.”

    Of course the Deomcrats winning the White House and majorities in both the House and the Senate is far from inevitable.

    In fact, the more Democrats assume that this is inevitable, the less likely it is to happen.

    This is exactly how Trump won in 2016. Hillary assumed that her victory was inevitable and planned her campaign strategy around that assumption.

    1. Who’s treating a Democratic victory as inevitable? I hope you aren’t taking Josh’s predictions at face value, and I certainly hope you aren’t mistaking him for a Democrat.

    2. “Of course the Deomcrats winning the White House and majorities in both the House and the Senate is far from inevitable.”

      It is not inevitable. It is likely.

      1. Correct. In 2016 it was inevitable.

    3. Well…

      Unless the Democratic Party ends sometime soon, then yeah, it is “inevitable”. Maybe not in 2021, or anytime in the 2020s, but sooner or later.

      Same thing with Republicans.

      Note, he said “inevitable”, not “immediate”.

      1. Well, no: A Democratic party victory is almost certain eventually, but I wouldn’t say a Republican resurgence after that victory is inevitable, if they go ahead with their various partisan entrenchment schemes.

        “IF”; I suppose that, if they gain a razor thin majority, then even with the level of party discipline they’ve demonstrated in the past, they might not be able to pull off their threats.

        1. ” I wouldn’t say a Republican resurgence after that victory is inevitable”

          Depends on how successful they are at disenfranchising groups of voters who tend to vote for (not-republicans).

    4. “Of course the Deomcrats winning the White House and majorities in both the House and the Senate is far from inevitable.”

      Donald Trump has spent years trying to bring it about.

  22. ” I think it could possibly work if things get ugly after January.”

    I think things are going to get beautiful after January.

    1. Hope that you have enough guns and ammo to survive then. It’s too late, of course, if you haven’t. The other side already has them. Though, I did see a nice G22 at a very good price today. But no .40 S&W to feed it. The .40 sold out before even the 9 mm did. I might buy it anyway, since I do have plenty of that caliber, purchased long before the market got insane.

      Don’t plan on depending on the police to protect you either. It’s your side that has been assassinating and defunding the police. For obvious reasons, they are mostly voting for Trump. Ditto for the enlisted ranks in the military.

      1. These all-talk, trigger-happy, right-wing pussies are your peeps, Conspirators.

        This is why the conservative law professors at strong schools are curiosity pieces at their workplaces, their ideas and politics at the fringe of legitimate academia. It’s why their colleagues avoid sitting with them at faculty meetings; their deans wish they would leave for Regent, Liberty, or Ave Maria; and their schools are unlikely to accept the ‘Heterodox Academy’ invitation to emulate weak schools by hiring more movement conservatives.

      2. “Don’t plan on depending on the police to protect you either.”

        From you and your (possibly) shiny new weapon?

        ” For obvious reasons, they are mostly voting for Trump. Ditto for the enlisted ranks in the military.”

        Pity they have to vote by mail, then, since election mail will be delayed until after the election at the request of the President. He’s counting on his supporters all trying to vote twice.

    2. In all seriousness, what would be wrong with a large number (25? 51?) of SCOTUS judges? Individual SCOTUS judges are way too powerful for a healthy democracy, imho.

      1. Nothing would be wrong with a largish number, it could even solve some problems we see right now with the lower circuits spamming the Court with too many “up yours!” rulings for the Court to deal with.

        The problem is going from the present number to “largish” in a short period of time, so that one party ends up picking a super-majority of the Court at one time, and can transform it into a rubber stamp.

        If somebody proposed a constitutional amendment that increased the size of the Court gradually, starting in 2028, adding a pair of seats every 8 years, until the Court had 15 members, or 17, that would be fine. Nobody would know who’d be in a position to gain from it, and the gradual nature of the expansion would likely preclude one party getting all the seats.

        The problem is doing something abruptly, when everybody knows up front who would benefit.

        1. “The problem is going from the present number to “largish” in a short period of time, so that one party ends up picking a super-majority of the Court at one time, and can transform it into a rubber stamp.”

          Your preferred outcome is that Mitch confirms another justice friendly to your way of thinking and thus transforms it into a rubber stamp.

          If you wind up with your feared giant rubber stamp, you will have Mitch to thank for it.

          1. You don’t see any difference between naturally occurring vacancies, and manufacturing vacancies wholesale?

  23. SPOILER ALERT
    Isaac Asimov’s very-short-story “A Loint of Paw” tells of one Monte Stein, who committed grand theft then hopped into a time machine which took him one day past the statute of limitations at which time he was apprehended. A week after Stein’s lawyer & the DA had finished wrangling about chronological vs physiological age, duration of fear & anxiety, etc., the judge rendered his decision, which was, in full:

    A niche in time saves Stein.

  24. It is amzing how most of the comments are one move deep at best. (Kirkland doesn’t actually thinks, he just spews his partisan crap).

    Lay out the possibilities in November and do the calculations.
    Assume that the D’s will enlarge the court IF THEY CAN.
    Scenario 1) Trump wins and the Senate stay R
    The Senate should confirm nominee immediately.
    Scenario 2) Trump wins and the Senate flips. The Senate and House pass enlarging SCOTUS. Trump vetoes.
    The Senate should confirm nominee immediately.
    Scenario 3) Biden wins, the Senate stays R.
    The Senate should confirm nominee immediately assuring a 6-3 Court
    Scenario 4) Biden wins, the Senate flips.
    The Senate should confirm nominee immediately assuring a 6-3 Court until Court packing legislation that requires 4 new seats. Numbers 3 and 4 especially would face brutal character assassination and public support of 4 new seats is questionable.
    So the Congress add two leaving a 6-5 quasi conservative Court.
    Unless the R’s decide that confirming would be a big factor in losing the Senate they should confirm a Trump nominee.

    1. The Dems will enlarge the Court no matter what as long as they feel there won’t be too big a backlash.

      The public perception is now the main battleground which is why you have people coming around here and Twitter (largely impotently since they are preaching to the choir or convinced opponents) trying to fan the narrative that its an injustice that the Senate exercises its rightful constitutional power.

      There is a minor alternate possibility that the court will somehow spontaneously go to Dem control either by several justices dying soon or going Souter etc. I could see Roberts going full leftist as part of a 4D plan to secretly preserve conservative hegemony as some commentators here seem to think.

      1. “trying to fan the narrative that its an injustice that the Senate exercises its rightful constitutional power. ”

        That’s you. The actual criticism is that Mitch announced a justification to not hold a vote, and then conveniently forgot ever saying any such thing when the rule he announced works against his party. The critics are saying if this rule was good enough in 2016 it’s good enough in 2020. There’s no way to go back and change 2016.

        1. Except if you go back and look at the actual working that Mitch used, it was not just about a presidential election year, he referred to a lame duck president, meaning a president in the last year of his second term and not up for re-election. That applied to Obama when he nominated Garland. It does not cover Trump this year.

    2. “Scenario 1) Trump wins and the Senate stay R
      The Senate should confirm nominee immediately.”

      Won’t matter because the Republic is doomed.

  25. If Republicans hasn’t engaged in unprecedented obstruction in 2016 with Garland we wouldn’t be seeing this VC freak out.

    1. Man you guys are trying to push this narrative really hard. I’m beginning to doubt even you fully believe it.

      1. ‘Why would you keep saying it so often if you didn’t think it was a lie?’

      2. simple you want simple-minded republicans to come out in vote in fear of their 6-3 majority being in jeopardy.

    2. It was not obstruction, and it was not unprecedented. Sorry. Plenty of judges nominated by a President never have gotten a Senate vote. And if Garland had gotten his hearing, he still wouldn’t have been confirmed. Collegiality went out the window when Bork was borked. Democrat controlled Senates have long been willing to reject nominations by Republican Presidents. What was new was that a Republican controlled Senate finally rejected the nominee of a Democratic President.

      Oh, and the other thing that was unprecedented was that Obama didn’t bother consulting with the Republicans in the Senate on his choice for a nominee. That is what is usually done when control of the White House and the Senate are by different parties. But Obama never figured out the bipartisan thing (not sure if Trump is any better). So, he threw his nomination over the wall, to the Senate, and expected the Republicans to roll over for him.

      1. There is not a single true thing in what you just said.

        I’ll just pick on one thing: that Obama never consulted. In fact he did. The Republican chairman of the Judicial Committee specifically cited Garland as someone they would accept.

        1. I actually looked it up: At least 26 Supreme court nominees have been denied votes. Either withdrawn without a vote, or the nomination expired at the end of session without a vote.

          It is literally more common for a nominee to be denied a vote, than to get a vote and lose it.

          1. Ok let’s see the list.

            1. Here it is, again.

              Granted, a few declined, or died before a vote, or whatever. But the Senate simply ignoring a nomination is hardly unprecedented.

              William C. Micou, for instance, nominated by Filmore. Granted, it was a lame duck nomination, but the only reason for that was that the Senate had already refused to act on two previous nominations for the open seat.

              What you’re looking at here is recency bias: Because something hadn’t happened recently until Garland, people act as though it never happened before. Really, the unusual thing about Garland is that Obama didn’t withdraw the nomination once it was clear he wouldn’t be confirmed.

              1. The list shows that yes, this is unprecedented.

                “Really, the unusual thing about Garland is that Obama didn’t withdraw the nomination once it was clear he wouldn’t be confirmed.”

                No, the unusual thing is that Republicans said they would not confirm anyone Obama nominated.

                1. The list shows that, yes, literally, Supreme court nominations have failed to get voted on. Many times. That constitutes precedent for a nomination not being voted on.

                  “Would not confirm anyone Obama nominates” is short hand for, “would not confirm anyone you might reasonably expect Obama to nominate”. Suppose that Obama had nominated O’Connell. You think that wouldn’t have gotten a vote? Of course it would have. You could throw out a half dozen names that would have gotten a vote. Nobody would reasonably have expected Obama to nominate any of them.

                  1. It didn’t matter, McConnell was declaring that he would not allow a vote on anyone Obama nominated.

                2. not just that they wouldn’t even give him a hearing. WHY NOT JUST VOTE HIM DOWN? FOR FEAR THE PUBLIC WILL LIKE HIM AND THEY WILL BE HURT IN THE ELECTION.

      2. Collegiality went out the window when Bork was borked. Democrat controlled Senates have long been willing to reject nominations by Republican Presidents.

        Here’s a fun fact for you, Bruce.

        In the last fifty years, how many Republican SCOTUS nominees have Democratic Senates approved? Eight.

        How many Democratic nominees have Republican Senates approved? Zero.

        1. There haven’t been eight split President/Senates in the last fifty years. The only one I can find where a Dem majority confirmed a Rep appointment is Souter.

          1. Burger, Blackman, Powell, Rehnquist, Stevens, Kennedy, Souter, Thomas. (Burger was 1979, so 51 years.)

            1. Doh! Of course that’s 1969, not 79.

  26. I had a version of this idea several days ago, but with a twist: Roberts announces his intention to resign as CJ following the inauguration (of a new pres) should the Senate go forward with its rushed effort to confirm an RBG replacement. Kav, if he’s smart, might make the same pledge.
    The might head off the final act of political escalation that finishes the Senate once and for all as a workable legislative body, if it can even recover from McConnell’s reign. It would save the reputation of the Court, which is much more important than the number of justices, as an apolitical institution by showing its members are willing to get out front to make that point. (I won’t believe that, but others will.)
    Hard-core conservatives will hate Roberts (and Kav) for this, but it will give him more room for his mission to do real harm to voting rights and various causes of Dems. Dems surely couldn’t object. It would even partially rehabilitate Kav, that smirky frat boy and perjurer.
    And, it would save Reps from an electoral trap that they seem to have set for themselves with swing voters. It’s so damn tricky that I half expect Roberts to be thinking about it.

    1. One ‘conservative’ and a ‘moderate’ judge being replaced by two screaming leftists for a 5-4 Dem majority preserves conservative control? Huh? I think you guys need to warroom a bit more so the scripts make sense when you organize your astroturfing sessions.

      1. Did you miss the part where it’s the THREAT of a resignation that brings Mitch to his senses?

    2. The idea that Roberts would retire to save “his Court” is just so much fantasy. Little doubt that he thinks that the D’s will add more justices if they can, and if he does think that he’d be delusional to think that his “suicide” would stop it.

      It is all power politics with no brakes because only a sizable number of centrists in both parties could stop the downward spiral, And there are essentially no centrists in either party any more.

      The only question for Trump is who to nominate. A Latina would do a lot to throw the slander circuit off its game.

      1. Trump has had his list out there long enough that they’ve probably compiled a script for every person on it. That the nominee will be slandered is a given, the only question is the nature of the slander.

        It’s probably not going to be a guy, so recruiting people to claim they were raped by the nominee decades ago is probably not going to happen. Probably… If the nominee is religious, they’ll be a religious fanatic. They’ve already used that playbook in lower court nominations. If no determinable religion, they’ll have to go with something else.

        But there will be something, and we’ll hear it almost instantly because they’ll have already gamed out everybody on the list.

        1. The nominee absolutely cannot be of Hispanic origin, or the durn libs will just start playing sound clips of Trump raving that judges of Hispanic origin can’t possibly be impartial, because border wall.

        2. I don’t think you have a hope of understanding people who disagree with you, so long as you’re committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

          1. I’m unclear about what about my comment implicates horrific motives. I’m suggesting the Democrats are proactive; Do you find that offensive?

      2. Good grief. It’s not a fantasy. It’s an idea. Senate Reps are so determined to politicize the Court (oh no, Bork and Kav and Miguel Estrada, boo hoo) that it risks losing its legitimacy. Read Art 3. It only says there will be a Supreme Court, but nothing about its makeup or its role. The Court invented judicial review (the ultimate irony for textualists) for itself in Marbury. Congress has the authority to add to change its makeup and even rein in its authority.

        So why hasn’t it? Because ultimately the Court has not been seen as too overtly partisan. I personally think it’s been pretty partisan for quite awhile, but that’s not the wider view. Moscow Mitch and his grasping sycophants are so determined to overplay their hand that lots of people will be coming over to my way of thinking.

        Roberts knows this is a disaster both for the judiciary in general and for the conservative movement in particular. I think he’d be smart to step out from behind the robe to tell everyone to cut it out and use this particular threat to make them do it. But doing so comes with a cost, too, as we can see from the comments.

        I don’t believe for a second he’ll do it. As a liberal, I’m not especially disappointed to watch the grasping overreach explode in conservatives’ faces as I think it will. But I’d also rather not have to try to rebuild governmental institutions from scratch after McConnell and co have savaged the Senate and the federal judiciary.

  27. It is interesting that the extreme wing of the democrat party went straight to the “civil war” line when it looked like Republicans were going to put through a nominee. Just go to Twitter for a representative, unrepresentative sampling. They think it is cool and edgy to be like “we will shutdown the country and take over the streets” as a keyboard warrior not realizing a substantial amount of the other side actually think that is going to be the ultimate conclusion. And it scared the heck of them when they realized the hyperbole and met with ‘OK if that is what you want…’.

    1. Funny thing there is that neither side can, at this late date, affect in any significant degree, their ability to wage civil war. Guns and ammo essentially disappeared from the shelves months ago, when AntiFA and BLM started violently rioting and burning down Dem controlled cities. Self defense caliber ammunition (with the exception of 12 gauge) typically disappears off the shelves within an hour or so of being put out. Hunting ammunition is still generally available, but is not overly useful in an urban setting.

      So, if there is a civil war, one side is sitting on hundreds of millions of guns, tens of billions of rounds of ammunition, and the training to use them effectively. The other side might have millions of guns, several boxes of ammo per gun, and the ability to shoot themselves in the groin when they put their gun down their pants.

      1. Again with the masculinity issues.

        1. Who is the one engaging in the majority of rioting and violence and wanton destruction at this point?

          1. Except for the murdering. You guys got that locked up!

            This is a time of civil unrest. If you think your side is clean in all of this, your partisanship is blinding you to reality.

            1. “Except for the murdering. You guys got that locked up!”

              Jeremy Christian wants to know why you have forsaken him. He killed two people in defense of his right to harass teenage girls for having skin darker than his.

          2. The right wing militias have bigger guns though. We’ve all seen the photos. Big, stiff, hard guns. We left wingers only have itty bitty ones. That shoot tiny bullets, or sometimes don’t shoot at all.

            1. Then there was that embarrassing moment (caught on film) where the barrel of an Antifa attacker’s gun actually went limp and wilted toward the ground, jamming the bullet and causing the gun to explode. Fortunately Antifa has ties with the human services community and he quickly got therapy.

      2. 1. Considering the last 30 year history of political violence — spoiler alert: per the FBI it’s predominantly right wing — I wouldn’t think the Trump brigade would be so anxious to talk about which side is more violence prone. Apparently there’s no rest for the shameless.

        2. Your homicidal wishcasting is reprehensible. Congratulations, you’re winning the race to the bottom with the liberals in your head.

        3. All of that is commentary. Nutpicking either side is as easy as it is meaningless. Some guy who looted a drug store is no more on the ballot than is the Boogaloo Boy who murdered an ICE Agent. Joe Biden and Donald Trump are, and only one of them categorically condemns violence and stands behind the rule of law. The other one throws metaphorical bombs at every norm and institution that undergirds our democracy, while winking at every act of lawlessness that serves his despotic fantasies. Deal with that.

      3. “The other side might have millions of guns, several boxes of ammo per gun, and the ability to shoot themselves in the groin when they put their gun down their pants.”

        Fortunately, your guys weren’t using their groins for anything else, wanting to stay pure for the Rapture, when Jesus comes back and scolds y’all for not understanding his teaching.

    2. Feckin’ hilarious. You and a few other bozos here have been screeching “Civil War” since at least Obama. But it’s the EXTREME wing of The Left who are jumping all over the idea? Piss off.

    3. “as aeyboard warrior not realizing a substantial amount of the other side actually think that is going to be the ultimate conclusion. And it scared the heck of them when they realized the hyperbole and met with ‘OK if that is what you want…’.”

      Poor, poor Jimmy. It’s OK that you admit you’re scared, you were always able to get by on bluster alone so of course you’re not sure you can perform at “put up or shut up” time. Surely your guys will recognize your noble service at the keyboard and give you a pass rather than expect you to go outside where the Scary Black People are…

  28. JFC. SMDH. Delete your account.

    1. The accounts that get deleted around here are liberal-libertarian accounts, not conservative accounts. The Volokh Conspiracy Board of Censors sees to that.

      (If Prof. Volokh would acknowledge the mistakes and apologize, this hypocrisy and authoritarianism would be less of an issue going forward.)

      1. Arthur, just yesterday we saw an extreme right wing commenter reporting that he was banned by EV. Back in the glory days of VC, I recall more right wing than left wing accounts getting banned. I undersand that you take EV’s moderation personally, but surely you must see that accusing him over and over of doing it in an ideologically biased way looks a lot like sour grapes.

  29. First, it is by no means clear that court packing is inevitable. Even if the Democrats flip the Senate, it would still take only a handful of moderate Democrats opposed to such a measure.

    Second, Biden himself clearly personally opposes it. For obvious political reasons he doesn’t want to divide with his more liberal base by discussing it. But it is by no means clear his natural position won’t come out after he is elected.

    Assuming there is an unstoppable wave to pack the court, why would Chief Justice Roberts’ resigning change that? He currently provides a 5th vote to support key Democratic priorities like a full-strength Roe v. Wade. If a strong conservative on such issues is appointed, his resignation would make no difference in the outcome. The Democratic Party’s left wing is as capable of counting to 5 as anyone else. If they have the political strength to overcome Biden and other moderate Democrats’ natural reluctance, (which for the reasons above I doubt) I can’t imagine why this would change because of a gesture everyone would recognize as symbolism rather than substance and which will not change the way the court actually decides things.

    Obviously it would be to Professor Blackman’s advantage if the Democrats bought the bill of goods. But they are not stupid. They will see it as a bill of goods, symbol without substance, and not buy.

    1. I don’t know why so many people believe Roe is the only matter The Left cares about. It’s important, sure, but so are voting rights. And restricting, if not eliminating, broad voting rights is Roberts’s raison d’etre. Protecting Roe while disenfranchising millions is not a Dem priority, and neither is a trade-off for the other.

      1. Personally I find Shelby County more disturbing and consequential than I would Roe being overturned. And yet somehow I manage not to relegate Roberts to pin-cushion-voodoo-dolldome! I guess hell hath no fury like a hack law professor scorned.

        1. ^

          Roe is a right-wing thing.

      2. “I don’t know why so many people believe Roe is the only matter The Left cares about.”

        Shhh! misunderstanding what other people care about (and why they care about them) is a big part of right-wing politics.

    2. “First, it is by no means clear that court packing is inevitable.”

      No, but the support for it, and thus the likeliness of occurrence, goes up if Mitch confirms a nominee before the election.

  30. As for the nominee, Barrett is being discussed as inevitable, but Lagoa makes far more sense. The evangelicals are not going anywhere and Florida is hugely important.

    1. Does it really matter which right-winger will be writing seething, impotent dissents for thirty years?

  31. I mean, sure, if you start from the proposition that having originalist justices on the court doesn’t matter, contrary to everything conservatives have said for decades.

  32. Given the current political climate, do you really think that a Democrat Chief Justice will stop agitation for a bulletproof Supreme Court achieved through court packing?

    FDR abandoned his plan after reading the political tea leaves. Progressives believe that conditions are different now.

    1. The nerve of these guys , believing that conditions are different now just because conditions are significantly different now!

    2. plus let’s be honest this is the perfect time Biden does not want a second term.

  33. Why does Blackman hate Roberts so much?

    Because he wasn’t interested in Blackman’s suggestions for spectator seating at hearings?

  34. What would make Kagan the de facto Chief Justice if Roberts resigns? Is it some tradition of the physical seat she occupies? Because wouldn’t Thomas, as the most senior Associate Justice, become acting Chief

    1. Yes, that’s the question I was coming to ask. She’s not the most senior Associate, or even the most senior liberal Associate. Her name seems picked out of a hat.

  35. I don’t see why this would forestall court packing by those who want to pack the courts. Even if Roberts resigns, once they have the idea of packing in their mind, they would know that it’s an opportunity to not only tip toward a liberal majority now, but to keep it for some time regardless of what happens in the 2022 midterm elections or further into the future.

    Of course, freezing in a majority of your choice in this way is precisely what is wrong with court packing. Once this is done by expanding the court to 11 or 13 there is no legitimate argument for later President/Senate combinations not to increase to 15 or 17 and eventually onto infinity.

    1. That’s why the first thing you do after packing the Court is pass a bunch of laws (That would never survive review by an upacked Court.) to make sure the other party never gets that chance.

      I keep saying this: Court packing makes no sense in isolation. But it makes perfect sense if you’re planing on rigging things going forward, so that the opposing party will never get the opportunity to retaliate.

      1. “That’s why the first thing you do after packing the Court is pass a bunch of laws (That would never survive review by an upacked Court.) to make sure the other party never gets that chance.”

        What kinds of laws have dems proposed that fit this description?

  36. DO you eve even read you own articles?

    You spend the better part of a year trashing Roberts, then oh, you rbrilliant idea is that he resign

    uhh, yeah

  37. ” Biden would then be able to pick Justice Leondra Kruger, or someone else”

    Bet someone else. There’s amusement just in imagining the gnashing of the teeth over Justice Obama or Justice Rodham.

  38. Stopped reading this when I got to: “At that point, in an act of selflessness, Chief Justice Roberts resigns.”

    Prof. Blackman, you really need to get off this anti-Roberts hobby-horse. I write this as someone interested in the other things you have to say.

    But this is obsessive.

    1. For someone with a lot going for him, this is just one of several ways Josh is his own worst enemy.

      1. That said, his animosity for Roberts couldn’t be more predictable or routine. Tribal extremists almost always detest a moderate apostate more than they do an antipodal enemy. If you doubt it, check out Pacifica radio sometime and hear what they say about Obama and Biden. It’s pretty hilarious.

  39. All hell will break loose after the election no matter what. If Trump wins, cities will burn (good riddance). If the Dems win the House, Senate and Presidency, we will see decades of one party rule – just like Russia, China, Cuba and Venezuela. Best outcome is Trump wins and keeps the Senate. The country can live without Portland & NY.

  40. A more bipartisan approach would be to change the voting requirements so that cases require a 6 person majority concurring in a single opinion without any separate opinions from those voting in the principal opinion. If there are not 6 votes, the lower court opinion is affirmed just as in evenly divided votes currently.

  41. I have been given this some taught. Why dont we add a justice evrey time a sitting justice reaches the age of 75. That way we know when an election will yield a Supreme Court justice and a justice who wants another younger memeber of his ideology could retire before he reaches 75. That way we always have a minimum of 9, but a cap of no more than 18. The preocess would be fair because presidential candidates will know when a sitting justice is close to 75 and it takes some of the guessing game out. Plus sitting justices could avoid a nomination at 75 by simply retiring before when a president that is favorable is in power. Yet some justices could stay on to ensure that whoever comes on to the court is properly broken in of the non-partisan methodology of the court because lets be honest these justices keep getting younger and have little to no experience.

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