Supreme Court

Court-Packing Plans Threaten Civil Liberties and the Separation of Powers

Ilya Somin of "The Volokh Conspiracy" discusses the dangers of liberal proposals to pack the Supreme Court.


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After the death of conservative Supreme Court Justice Antonin Scalia in 2016, President Obama nominated Merrick Garland to replace him. A moderate liberal, Garland likely would have shifted the balance of the high court to the left. But Senate Republicans refused to hold a hearing on Garland's nomination until after the presidential elections—which saw Donald Trump elected to the White House, effectively ending any hopes for Garland's appointment to the highest court in the land.

Once in office, Trump nominated the conservative judge Neil Gorsuch to replace Scalia. When Justice Kennedy—the high court's most frequent swing vote—retired, Trump chose the solidly conservative Brett Kavanagh to take his spot. Liberals, concerned that a conservative majority may dominate the Court for a generation and overturn key precedents like Roe v. Wade, have responded by calling for expanding the Supreme Court to include as many as 15 justices. Several presidential candidates, including Pete Buttigieg, Beto O'Rourke, Kamala Harris, Elizabeth Warren, and Kirsten Gillibrand have all endorsed proposals to alter the makeup of the Supreme Court, with former Obama Attorney General Eric Holder saying the idea of court packing should be "seriously" considered.

The idea of expanding Supreme Court membership hearkens back to the 1930s when FDR aggressively pushed the idea of court-packing because his New Deal policies were being declared unconstitutional.

"If court-packing does happen and you get this cycle of retaliation, this quite valuable institution would be undermined," says Ilya Somin, a law professor at George Mason University and contributor to The Volokh Conspiracy blog. "Protections for our civil liberties, for separation of power, for limits on the power of federal government—all of that would be significantly weakened over time."

Somin sat down with Reason to discuss the revival of court-packing proposals on the left and how they could undermine the institution of judicial review.

Produced by Alexis Garcia. Camera by Meredith Bragg and Todd Krainin.

Photo credits: Pete Souza/ZUMA Press/Newscom, Cheriss May/ZUMA Press/Newscom, Ron Sachs/picture-alliance/Consolidated/Newscom, Doug Mills/picture-alliance/Consolidated/Newscom, Between the wars/UPPA/Photoshot/Newscom, Kevin Dietsch-Pool via CNP/MEGA/Newscom, akg-images/Newscom, Mark Hertzberg/ZUMA Press/Newscom.

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  1. Power mad morons.

    1. And people here still don’t understand my militant outlook towards the progressives. They literally seek to enslave us to their Soviet dreams.

      People committed to our enslavement cannot be bargained with. They have to go.

      1. No they don’t. That’s right wing media talking again. Both ends of the political spectrum in the U.S. are hyperbolic well past the point of usefulness. I think the Democrats (and I include Progressives in that) are simply sick and tired of the will of the majority being subjugated to the will of the minority. Through demonstrable voter suppression (see the ongoing argument that Pennsylvania’s mail-in voting should be thrown out on technical grounds), political gerrymandering and the electoral college the right has been able to cling to power despite being a distinct minority. If the loaded, inaccurate “packing the court” by Democrats scares you, imagine how it felt to see Mitch McConnell simply refuse to give Garland a hearing. If there was a bad precedent, it didn’t start with adding justices. Enlarging the court does two things: it gives Biden an opportunity to appoint moderate and liberal justices to right the wrong McConnell began. But more than that, it gives greater voice to the branch of government that’s being used to determine laws that Congress is too afraid to pass on their own. At least it waters down individual opinions. I would like to see 20-25 Supreme Court Justices to further add to the chances that their decisions will reflect the will of the people.

        The problem with politicians like McConnell, et al. is their atempt to use rules to get around the will of the people. The U.S. should be governed by people. Not land mass or lucky breaks. The fact that The Peoples’ will is often far more liberal than the right wing fringe is to be expected. And it should be respected.

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  2. Well, I actually watched the video, and Prof. Somin isn’t opposed to increasing the size of the court per se, he’s just opposed to one president getting to appoint a whole bunch of justices on an instantly expanded court. Which is quite reasonable, I wouldn’t want one president to appoint even a majority of the court.

    But still there is nothing magic about the number 9. The court has been as small as 6 in the past, and as large as 10.

    1. The biggest argument against expanding the size is all the arguments in favor of expanding the size. They all hinge on controlling the ideological balance of the court, to deliberately move it one way or the other. Once you set the precedent of expanding the court to adjust it’s ideology it never ends. Democrats expand to appoint some liberals, Republicans expand to appoint some conservatives, Democrats expand again to appoint more liberals, and so on.

      No one president ever has to appoint a majority, because as long the court remains closely split it only takes 2 new justices to swing it

      1. Well let’s dispense with that “all” then.

        We should expand the size of the court by giving each presidential term a fixed number of appointments such that, on average (accounting for deaths and retirement), the court stays around whatever final number is termed to be “ideal”. Throw in a bit about how the president gets to appoint at their discretion if the senate refuses to give consent before their term is up (to avoid another Garland situation).

        Make that ideal number high-enough and you can organize the SCOTUS more like the appeals courts, where only a small panel of justices will hear a case, with an “en banc” option if the court decides the original panel got it wrong.

        This idea has nothing to do with ideological “balance”, just in (A) enabling the court to hear more cases, (B) reducing the importance of any one judge, (C) removing randomness and morbid partisanship from the process.

        1. The problem with your idea is that odd numbers of justices are preferable to minimize the odds that lower court decisions will get upheld due to ties at SCOTUS.

          1. The vast majority of cases aren’t close partisan cases. Those cases just get more press.

            And hey, we already have a situation where one party can keep it at even number of justices for partisan reasons for almost a year, so it’s not like we don’t know how bad it can be (hint: it wasn’t that bad).

        2. And the first party to get 3 terms in a row wins! That’s not a good idea.

          1. Already the case.

        3. “Make that ideal number high-enough and you can organize the SCOTUS more like the appeals courts, where only a small panel of justices will hear a case, with an “en banc” option if the court decides the original panel got it wrong.”

          1. I don’t think Congress has the authority to force such organization on SCOTUS. Congress gets to create the lower courts, so they can specify their organization, but I’m not sure that they specified this organization for the Circuit courts or if the Circuit courts adopted that procedural organization for themselves.

          2. Even with only 9 justices there is nothing to stop SCOTUS from organizing itself like that if the justices were interested in maximizing the number of cases they review. All of the Circuit courts use that 3 judge panel with the option of en banc review, and the 1st circuit is only has 6 slots for judges.

          1. @1
            Yeah, it’d probably take an amendment.

            “nothing to stop” is different from “encourage to do”.

        4. Isn’t that pretty much what we have though? Since 1970 the average length of term is 26 years, which means a president appoints 1 to 2 justices per term, or 2-4 for an 8 year president, which generally prevents any single president from appointing a majority to the court

          The problem with trying to limit to a fixed number per president is you can’t always predict when someone will die or retire, so you run the risk of a president running out of appointments while there are still vacancies

          I think running it like an appeals court is a bad idea, since an opinion authored by a minority panel won’t have the same finality as the current set up, and you’d probably see most cases going to en banc just for a sense of getting a true mandate from the high court

          1. “Isn’t that pretty much what we have though?”
            Which is hopefully be why it isn’t terribly disruptive in the beginning. But the intent is that the number would increase over time, leading us to your second paragraph… there would be no vacancies, just regular new appointments. Unless a plague sweeps through DC killing most of the justices, deaths would not cause a new appointment.

            To your third paragraph… I suspect it would be much like current appeals court. People request en banc all the time, but it’s rarely granted. And the full court denying en banc would have just as much “finality”.

        5. Trump should just nominate 100 more justices to the Supreme Court as a preemptive strike. When a Republican congressperson retires or loses an election nominate them too.

          If you’re gonna play dirty pool, you gotta expect the other side to do it too.

          1. How would that help the Republicans’ position?

            1. “How would that help the Republicans’ position?”

              Bigoted asshole reveals stupidity!
              No surprise.

              1. You figure losing 106-105 would be better than 6-5?

                Losing the culture war may be impairing your judgment.

        6. As Schumer was keen in telling the president, ‘elections have consequences’. Dems would be suggesting the idea if Clinton had won in 2016. This is just the Dems and their sour grapes because they have no control in the selection or approval of judges to the supreme court. The way the Dems are behaving right now, threatening Barr with prosecution for not supplying them with a full unredacted report when it is illegal for Barr to provide grand jury testimony is pathetic. None of the Dems have even bothered to read the report Barr has already released, so why are they making such a big deal of the stuff Barr is legally not allowed to release.
          The fact is, they know there is absolutely nothing in the released portion which incriminates Trump so they are hoping there may be something in the unredacted part which could be harmful to Trump. They are fishing for anything they can get. This is not oversight. It is harassment and blatant abuse of power. This level of scrutiny is unprecedented in American history. They have absolutely no right to Trump’s financial records without just cause.
          Trump needs to counter by threatening to request the financial records of every single Dems in congress and the senate. I’m certain Pelosi, and Waters will be locked up for their corruption. Pelosi was on the finance committee which approved a bail out of a bank her husband had shares in. She is as corrupt as it gets.
          We are also aware that while VP Biden used the threat of withholding tax payers money in aid to the Ukraine to stop an investigation into his son. This is a clear abuse of power.
          The Dems are as guilty as hell of many of the crimes they are accusing Trump of, but with the Dems there is an abundance of evidence.
          Now that Barr has appointed a special prosecutor, the Dems must be sh*tting themselves. I hope the whole lot of these scum are hauled before a judge.

        7. The fix is a lot easier than that (equal appointments per president and a varying number of justices on the court). Just make appointments fixed for a term of 8 years, instead of for life. Then maybe they can start appointing the best judges again, instead of the youngest judge with a strong ideological leaning that isn’t yet reflected in his or her public record.

      2. Not all the arguments hinge on controlling the ideological balance. At least one proposal predates the current controversy by years and argues that we should have the same number of Supreme Court Justices as we have District Courts. It’s a workload balancing and judicial efficiency argument.

        The question is how you’d implement such a neutral policy without it being exploited by those who do want to control the ideological balance. But implementation is (or should be) a different question from the academic question of the Court’s optimal size.

        1. I could see setting the size of SCOUTS by the # of Circuit Courts, # of District courts makes no sense to me as a work load argument, as District courts can’t send cases directly to SCOTUS, so the number of District courts has no bearing on the workload of SCOTUS.

          1. Apologies, I was sloppy in my wording. What Matthew said is what I meant.

      3. the biggest argument against liberal nominated justices is the most overturned court in history, the 9th federal district court.

    2. call me when it’s zero.

    3. Pedo Jeffy, the sole purpose of the democrat plan to pack the court is to ensure their agenda is ascendant. Period.

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  3. If the court moves even further to the right then it’s already lost it’s credibility.

    1. If you’re opinion becomes anymore ignorant then you will lose youre… wait you’ve already lost it

    2. With liberals, who parcel out “credibility” entirely on the basis of whether they win. The Court can pull rights out of its ass where crimes existed before, (Abortion) and that’s just fine. It enforces the actual text of the Constitution where liberals don’t like it, (Citizens United, Heller.) that’s an outrage.

      Liberals’ ideas of credibility and legitimacy are entirely results oriented.

      This is actually understandable: Almost everybody on the left is some form of utilitarian, Rawlsians mostly. And usually the worst sort of primitive act utilitarianism, too.

      From that perspective, there’s nothing AT ALL that even theoretically could matter, except results. It’s not just “The end justifies the means.”, it’s “There isn’t anything to justify means except ends.”

      I don’t think most of them even comprehend any other viewpoint.

      1. That you can witness what Republicans have done over the last couple decades, especially with respect to the court, and make this statement is truly beyond my ability to grasp. Ends justify the means? Seriously? Garland? Hello?

        They’re doing ends justify the means, so we have to do it first before they do it!

        1. I am curious. What have the Republicans done over the last couple of decades that has you upset?

          Garland didn’t get a hearing because Joe Biden said he shouldn’t get a hearing.

          Not having a Garland hearing was a VERY risky thing for McConnell to do because everybody (yes, EVERYBODY) knew that Hillary would ascend to the imperial throne after which she would have appointed Putin or Darth Vader to the empty seat.

          1. Garland didn’t get a hearing because Joe Biden said he shouldn’t get a hearing.

            I think you misspelled “McConnell”. Personal responsibility, right?

            1. Biden established the principle, McConnell applied it.

              1. His hand was forced, I’m sure. Ol’ Mitch, slave to precedent.

                1. Shitbag made up an excuse, I’m sure.
                  Please go somewhere far away and die.

                2. Tomy, just admit how evil you are and that you want your way. We know you’re a giant hypocrite. If you admitted these things I would at least respect you for that. As it stands, you can’t even manage to own up to your evil.

        2. Really?? You’re complaining about results oriented reasoning from Republicans in the last couple of decades and then saying “so we have to do it first before they do it!”

          The problem with this is that the Dem appointed liberals on the court, HAVE been doing it, not for the last couple of decades, but at least back to WWII, more than half a century ago.

          1. I have no problem with playing hardball, and I admire Republicans for being better at it.

            I’m just blinking in disbelief that someone would accuse Democrats of being the worse actors with respect to the courts. Republicans have sacrificed almost literally all of their credibility and interest in governing for the sake of “packing” the judiciary with ideologues. I’m not even sure they know why anymore. Abortion? Corporate whoring? This is governing?

            1. “Packing” does not refer to filling normal vacant seats. It refers to creating new seats to fill in order to achieve a majority.

              Republicans haven’t packed anything. They won control of the Senate in elections, and thus control of confirmations. They won control of the Presidency in an election, and thus control of nominations. The normal course of events means that results in getting to fill vacancies.

              And, yes, the Democrats ARE worse actors. Roe v Wade was pulled out of some Justices’ rear ends, turning crimes into rights without even the slightest textual fig leaf. Republicans have done nothing comparable.

              1. Yeah, since 1973, Republicans have done nothing but preserve precedents and a close reading of the constitution.

                You don’t get to wear the halo of respect of precedent and then say it was perfectly normal to hold up a president’s SC nomination with not even a hearing for over a year.

                Just admit you like Republican policies (god only knows why) and that you’re OK with whatever legal tactics they employ to achieve them. I’d respect you more if you did that than simply lied and covered for them.

                1. Tony
                  May.15.2019 at 9:30 pm
                  “Yeah, since 1973, Republicans have done nothing but preserve precedents and a close reading of the constitution.
                  You don’t get to wear the halo of respect of precedent and then say it was perfectly normal to hold up a president’s SC nomination with not even a hearing for over a year.”

                  Shitbag, your claim of “precedents” is nothing other than moving the goal posts (no surprise from fucking lefty ignoramuses), so the rest of your pathetically stupid post is, well, pathetically stupid.
                  Please go somewhere far away and die. The world will appreciate it.

                  1. I keep telling to drink his fucking Drano. The bitch just don’t listen.

                    1. You guys…I do appreciate your middle of the night postings; it makes starting my day so much better!

                    2. Late evening anyway. My local time is three hours earlier than the time stamp.

                  2. Bro, do you even ‘super-precedent’?

                2. god only knows why

                  Well, Democrats are currently campaigning against all the amendments and against other principles of freedom, many culminating in the notion of private property. Favoring slightly statist Republicans* over full-on Commie Democrats is favoring the lessor of two evils.

                  *Of course Team Red is actually advancing 1A and 2A while Team Blue is trying to eliminate them.

                  1. You don’t know what the fuck you’re talking about because you consume rightwing propaganda and think it’s the truth instead of a cynical means of turning your brain into jelly.

                    1. More nonsensical bullshit.

                      Fuck off Tony.

        3. I know this has been explained to you before, but lets try again. Garland was completely different circumstances. If Team Blue held the Senate, Garland would be on the court. Unfortunately for you, Team Red held the Senate at the time and they were fully within their constitutional authority to not consider Garlands nomination. The same will go for Team Blue the next time they hold the Senate.

      2. Heller does not enforce the actual text of the constitution.
        The actual text says “shall not be infringed”.
        Heller leaves several infringements.

        1. Oh, I agree. But even the slight nod to the actual text it represented has Democrats outraged. They’d probably have blown up the Supreme court chambers if the Court had upheld Tench Coxe’s right to “every terrible implement of the soldier.”

    3. Poor OP. He knows that the time of the Democrats is over forever.

      1. Because Republicans have no shame about cheating to win?

        1. Haha. Cheating? Your citation fell off.


        2. Well, it is pointless to cheat if it doesn’t get the win.

      2. The rightwingers of the past would hardly recognize your version of winning.

        1. States banning abortions even after Roe v. Wade was imposed on America via judicial fiat is a great example of how youre wrong.

          OP, it is a pleasure every day watching you Lefties squirm as the Democratic Party implodes into a national political party with no power.

          1. love1789 it is DEMOCRAT no DEMOCRATIC party. they are far from democratic. If the republicans want to be nearly invincible they need to get rid of the anti abortion plank.

            1. Then the abortion debate in this country would change to how many days after childbirth vs in utero. Progs will never tire of moving that overton window. Well, until someone points out that they might be aborting their own voter base

              1. Yeah. Ever wonder how many Clinton supporters got aborted?

                1. I wonder how many potential Bill Clinton Jr.s got aborted?

                2. 61 million abortions since Roe v Wade, given the demographics, probably somewhere in the neighborhood of 40 million Democrats.

                  But they don’t care, because they were able to replace them with illegal immigrants.

        2. “Ordinary Person
          May.15.2019 at 4:26 pm
          “The rightwingers of the past would hardly recognize your version of winning.”

          Scumbags like you have no idea regarding what you post.
          Fuck off and die.

        3. Democrats cheat their own, just like the party cheated Bernie out of the nomination in 2016

      3. Soon enough, not even gerrymandering, voter suppression, census manipulation, and our system’s structural amplification of backwater votes (Senate and Electoral College) will be able to keep the Republican electoral coalition afloat, especially in national elections. The American electorate continues to change predictably in manners destined to doom the Republicans in all but the most desolate, can’t-keep-up jurisdictions.

        Education, reason, tolerance, modernity, inclusivity, science, and progress — the liberal-libertarian mainstream — for the win!

        Clingers are free to move to Alabama, Wyoming, or Mississippi if they wish to reduce their exposure to American progress.

        1. Soon enough bigoted assholes will be known for bullshit posts, bigoted asshole.

          1. Crushing conservative positions in the culture war has been the important part, but observing the limp whining and hapless ranting of vanquished right-wingers is enjoyable.

            1. Arty, the backlash has begun. Soon republicans are going to take your tampons away.

        2. This the unmitigated glee over gate crashing along the Southern border.

          One of my favorite stories of poetic justice concerns a British academic named Malcolm Caldwell; he preached Marxism from his academic pulpit for years, and was a big supporter of the Khmer Rouge. While visiting that pleasant little country in the 1970’s he had finally come to accept the extent of death and devastation that arose from the reign of Pol Pot, but stated “it was worth it” to achieve the realization of communism. That evening he was murdered by his hosts. I wondered if, in his final moments, the irony occurred to him…I suppose it was “worth it” for millions of nameless little brown peasants to die for the cause, but not a professor and political critic of some renown?

          When theory meets reality, it ain’t always pretty. Be careful what you wish for less the horde you champion turn on you.

        3. backwater votes (Senate and Electoral College)

          Playing by the rules makes the game illegitimate?

    4. Ordinary Person
      May.15.2019 at 2:28 pm
      “If the court moves even further to the right then it’s already lost it’s credibility.”

      You, OTOH, have zero credibility, so stuff it up your ass.

    5. You’re entire premise is flawed and shows how pitifully ignorant you are. Justices were never intended to be political. They were intended to uphold the constitution the way our founders wrote it, and their successors amended it. Period

      Dumb fuck liberals like you only think court justices should rule with their political opinions because so many bullshit ideas your side floats are unconstitutional you just wish people stopped paying attention to it like that hack-of-an-old-cunt Ginsberg. Stupid cunts an enemy of the constitution and should be treated as such. She can’t die soon enough.

  4. “Several presidential candidates, including Pete Buttigieg…have all endorsed court packing proposals”

    You know what else…?

      1. My side wins the culture war and establishes the rules. Your side gets to make fun of gays while toeing our line.

        I am content.

  5. SCOTUS will always be criticized for being either too far left, or too far right, or too “in-between” by somebody. Allowing the President to pack the SCOTUS will only exacerbate that problem. In my lifetime, I have seen the court go back-and-forth a couple of times. It’s a feature we need to learn to live with if we are going to have any stability at all in our court system. It’s not perfect, but nothing is.

  6. this quite valuable institution

    Um. Ok. Sure.

    1. Well, they are sitting on some choice real estate.

  7. There wont be a Democrat majority taking over all 3 branches ever again.

    1. Unless their illegal invasion scam gets them Texas. That cannot be allowed.

  8. I would be for expanding the number of justices in the pool, and randomly selecting 9 for each case. And perhaps limiting each presidential term to 1 or 2. Might encourage more to step down before they become senile.

    As there are more cases than time for hearings, maybe we could eventually get to having multiple sessions (ie two teams of 9). The numbers worked when we were a nation of under 100 million, but it is pretty ludicrous at this point that the judicial infrastructure hasn’t grown in kind.

    1. Small problem, while Congress get’s to set the number of justices, I don’t think they have the constitutional authority to force specific operational procedures on SCOTUS. For the lower court on the other hand, they are created whole cloth by Congress per the constitution, so Congress would have more control over their operational procedures.

      1. A president would have to sign any law changing the makeup of the SCOTUS.

        The SCOTUS has absolute power over making its own rules. The SCOTUS could make a rule that all incoming justice do not get to rule on cases for 1 year.

        All 3 Branches of government have the power to set their Branches own rules.

        Congress does have the power of the purse and the power of impeachment. Ultimately Congress could win if they simply impeach all the justices that they disagree with.

  9. We wouldn’t want anyone messing with the separation of powers.

    I guess that article will be out tomorrow.

    1. Or how gerrymandering undermines the legitimacy of the legislative branch.

      1. Yeah, you cunts should stop doing that.

        1. It’s called “Sue till your blue” and Democrats are doing it all over the country.

          1. Everything is lawfare with them.

  10. The time for calling it court packing is gone with the 1930s. And anyway, it isn’t court packing if the decision to do it comes from congress, to which the constitution gives that power. If some president tries to do it, then that will be soon enough to renew the epithet.

    The time to oppose the inevitable is also past. The Garland business was merely an exclamation point at the end of a long paragraph of political abuses and usurpations served up by right-wing control of the court. The first time the Democrats can assemble sufficient political power to strike back, they will do it. Everyone should understand that clearly.

    So the right focus for concern will be on how to reform the court without creating an unending tit-for-tat cycle of provocation and retaliation—while wrecking the court’s legitimacy in the process.
    One good place to start would be by recognizing that the present court is already wildly out of line, on both sides, with regard to political partisanship. On cases featuring an overt political valance, there is barely a shred of judicial temperament to be seen on either side. But by political happenstance, for a long time, the right wing has been winning all those cases.

    Those facts of recent history point toward the shape of the solution. The objectives should be to restore to the court the primacy of judicial temperament, to purge the court of its partisan character, and to begin anew in such a way that these old partisan problems do not carry over, and in such a way that retaliation becomes difficult or impossible.

    None of that can be accomplished during Republican control of the political branches. At present, Republicans simply have everything going their way with the court, and will not give that up on their own. So court reform must await a political wave of sufficient strength that it empowers Democrats to pack the court at will. And then Democrats must back off and not do that—while using the threat of doing it to force Republicans to back off too, and cooperate on a better project.

    With that accomplished, the shape of that better project is not too hard to imagine:

    1. To get rid of entrenched partisanship, let both parties work together in congress, and impeach the entire present court, for their partisan misdemeanors. Or do that, but let each party choose 1 existing justice to hold over, to retain a bit of institutional memory.

    2. Then let the parties in congress agree whether or not 9 members, or some other number, is an ideal size. Probably a notably larger court would ease temptations to go back to the bad old days, because with a bigger court, each appointment will matter less.

    3. Then, either by Constitutional amendment, or by a change in Senate rules (the former is preferable, but possibly unreachable) establish an imposing super-majority requirement for confirmation of new justices. Three-quarters would not be too much. The point is to make political partisanship completely irrelevant, because it will be so easy to block. At that point, both parties will be free to concentrate on qualities among the nominees that serve the ideal purposes of the court. It will scarcely matter which party the appointing president comes from. There won’t be any room in the president’s own deliberations to look among prospective nominees for the kinds of partisan qualities which will result in certain failure of the nomination.

    Other reforms of the sort which have often been suggested might also be considered—term limits, etc. But I suggest they wouldn’t really be needed if the reform structure outlined above were in place.

    To conclude, there is one key point which must be re-emphasized. This can’t happen unless the Democrats have won sufficient political power to pack the court to their hearts’ content, but in the interest of wisdom and the greater good, choose not to do it. Some will scoff at that, as an impossibility. I suggest otherwise. The pain of traveling the present years-long route to a dysfunctional court will not quickly be forgotten. And for Democrats, more than for Republicans, there is always an allure in the notion of improving government. Certainly, there would be many in the Democratic party who would strive to lead in that direction, and who would look for political rewards for doing so.

    Of course Republicans would hate being thus forced to give up the judicial advantages they have so long striven to accumulate. But forced they would be. Their alternative to cooperation would be to watch helplessly while the Democrats take it all away from them, and turn the tables besides. Better to go along, and get some of the credit for an urgently-needed reform that a grateful nation would applaud.

    1. >>>Of course Republicans would hate being thus forced to give up the judicial advantages they have so long striven to accumulate.

      Roe –> Casey –> Sebelius –> Obergefell

      (R) might take issue w/your idea of judicial advantages?

      1. Dillinger, anyone considering the Court’s possible political biases needs to note two different classes of arguably-political cases. The first class includes cases such as you mention. Those are cases which produce sharp partisan divisions about this or that‚ and on that basis seem highly political to lots of commenters.

        You cited cases where the Court decided in ways right-wingers disapprove. But in other cases among that class, the Court decided in ways left-wingers disapprove—Hobby Lobby, for instance. There isn’t much of a pattern that I can see, and maybe more important, the political effects of that kind of case tend to be confined to the subject matter of the case.

        I suggest it is the second class of political cases which really tells the tale. That is the class where the Court makes decisions that involve overtly political subjects, and the case actually affects political processes and outcomes—voting rights cases, political funding cases, redistricting cases, union politics cases, gerrymandering cases, and others like those—not to mention of course, Bush v. Gore.

        And of course with cases of that type, the effects expand to affect every subject matter encountered in politics. So that second class seems much the more influential of the two.

        My recollection is that at least since Roberts got on the Court, every case of that second type, without exception, has been decided in a way that advantages Republicans and dismays Democrats. (Thinking about it now, I wonder if it could really be that lopsided. Why can’t I think of a single exception? Maybe it’s confirmation bias, so help me out if you can, please.)

        And one further question. This is just a hunch, but don’t you think political-process type cases have become much more frequent on the Court’s docket than they were pre-Roberts? Seems that way to me. I really do believe (but tentatively, subject to rebuttal) that the Roberts Court has been going all out to give as many political advantages to Republicans as they can fit on the docket.

        1. I suggest you condense your rambling into a point or two.

        2. Or maybe you save all your wind and realize…

          “My recollection is that at least since Roberts got on the Court, every case of that second type, without exception, has been decided in a way that advantages Republicans and dismays Democrats. (Thinking about it now, I wonder if it could really be that lopsided. Why can’t I think of a single exception? Maybe it’s confirmation bias, so help me out if you can, please.)”

          Is because republicans more readily respect and understand the constitution. And liberals want to constantly throw shit at the judicial wall and see what sticks to advance their own political goals. The court isnt ruling republican as you imply. It’s just that republican views have more grounding in the constitution, and thus appear to be more represented in court rulings.

          It’s not hard to understand when you realize the left has been trying to circumvent the constitution almost since it’s inception.

          1. So you too came up dry on counter-examples, is that what you are telling me? I mean in addition to the stuff about how Republicans are better people.

            1. Hobby Lobby was substantive and went as it should have I named some landmark cases that were nonsensical w/i my lifetime … my point was more to Roberts leaning left already on the feelz cases … (R) is going to regret Roberts mho

            2. Counter examples to what? I simply told you why, in your mind, the court seems to rule republican. It’s because republican positions typically favor limited government and track with the ideas in the constitution. The problem isn’t the court being republican, it’s that the cases that are losing, and miffing you, are just not constitutional.

              The cases are the problem, not the judges.

              1. Conservative justices generally follow the law. Progressive judges largely follow the progressive agenda, hence the ‘living breathing’ constitution bullshit.

    2. You really are a trip. “purge the court of its partisan character” but no Republicans allowed.

      By your own argument, Republicans already had the power to pack the court at will – and didn’t do it. During the early Obama years, the Democrats had the power – and didn’t do it. But somehow, we can’t start until the D’s are again in power and don’t do it.

      Next, you want to impeach everyone for “partisan misdemeanors” despite the majority of SCOTUS decisions being unanimous (which pretty much by definition means non-partisan) and a large fraction of the remainder split on lines other than the media’s liberal-conservative assumptions. And that’s before we get to the likelihood of a hyperpartisan Congress actually impeaching equally.

      Then let’s go back to supermajorities as a control – despite the fact that the rules in the Senate create exactly that control and the current partisanship occurred because of it according to, well, pretty much everyone.

      Do you even read the silliness you write?

      1. Pretty sure I took my comment right down the middle, favoring neither Ds nor Rs in my criticism—and looking for a solution to get the D and R stuff right out of the judicial system. Maybe Rossami doesn’t think that’s realistic. But that doesn’t seem to be his point. His point seems to be that he is outraged by my (admittedly far-fetched) proposal. Maybe that illustrates that at least some Republicans are avid to get still more political leverage out of the judiciary. I doubt the nation can stand much more of that.

        But anyway, Rossami, outrage or no, the Democrats are going to enlarge the court, and pack it, the moment they assemble the political power to do it.

        1. Stephen Lathrop
          May.15.2019 at 10:09 pm
          “Pretty sure I took my comment right down the middle, favoring neither Ds nor Rs in my criticism…”

          Pretty sure you’re full of shit.

        2. No, I’m not outraged by your proposal. I am frustrated because your proposal is not merely far-fetched but utterly impractical based on the very things you say in that same post. Far-fetched and unlikely is one thing. Self-contradictory or incoherent are something else.

          But no, I do not believe that the Democrats are going to enlarge and pack the court because there are still a few level heads in the party leadership who know that it would be bad for the country and bad for the party in the long term. My prediction is that some people will continue to talk about it during the primaries to fire up the base but it will be quietly dropped once the general campaigning begins.

    3. Term limits for judges is a great idea – all the way down to Magistrates. Give em 10 years, then GTFO. Oh – and no “retirement”, either.

    4. “The other team scoring totally justifies us cheating, because they’re not supposed to score, it was morally equivalent to cheating!”

    5. Stephen Lathrop
      May.15.2019 at 5:23 pm
      “The time for calling it court packing is gone with the 1930s.”

      The time for calling you on your constant bullshit is now.

    6. No, the republicans don’t need to give up a goddamn thing. You act as if republican and Democrat positions are of equal value. They are not. There is no equivalence whatsoever.

      With democrats we lose our individual rights since they spew their ‘living breathing constitution’ bullshit. Which is just a way of saying the constitution doesn’t say what it says. Or using foreign law conveniently to support their biases when us law does not.

      Fuck them. They should never have control again. Not if we want to be free.

      1. Last, what does what the Democrats “should never have,” have to with what the Democrats are going to have, and to do. And when they do it, and pack the Court, the Republicans are going to lose every bit of that Court political leverage you seem to prize, and it will all go over to the Democrats instead.

        At that moment, why wouldn’t it be better for Republicans, and for the nation, if Republicans gave up the political leverage they had on the Court, in exchange for the Democrats doing likewise? That’s what I am proposing. See if you can figure out why that isn’t a better outcome for Republicans than the alternative—which is to have the political leverage ripped away from them, and used against them.

        1. Because the courts role is to uphold the constitution and its amendments. And the only justices doing much of that have been the conservative ones.

          The point really is the court shouldn’t change its rules or setup. The only reason this is even being floated is because a bunch of whiney ass liberals, again, don’t want to follow the already constitutionally established mechanism of appointing supreme court justices. They want to change the rules, like the constitution, to fit whatever whim they currently believe in.

          1. Dizzle, I’m sure you think the Garland business was according to the “constitutionally established mechanism of appointing supreme court justices.” Nobody will convince you otherwise. But is it so hard for you to understand that Democrats do think otherwise? Or for you to understand that it isn’t what you think, but what Democrats think, that will control what Democrats do when they have the political power to act as they please?

            That’s the Republicans’ problem. It is entirely foreseeable that Democrats will, sooner or later, enjoy an interval where they have sufficient political power to enlarge the Court—and in the process abolish the court political advantage Republicans think belongs to them. I suggest the latest election for which the Democrats will have to wait to get that power will be 2024.

            Why is it better for Republicans, or for the nation, if Democrats go ahead and do that, instead of joining with Republicans to arrive at a permanent compromise on court reform?

            1. “Or for you to understand that it isn’t what you think, but what Democrats think, that will control what Democrats do when they have the political power to act as they please?”

              I presume they’ll act as they please in any case.

        2. Democrats never ever relinquish an opportunity to force themselves in the rest of us. Democrats don’t keep their word. Democrats won’t ever do any of what you think they will.

          This goes back to your delusion about equivalence. These aren’t reasonable people. The only times a democrat backs off at all is when they employ a long term incrementalist strategy.

          Democrats ultimately don’t compromise.

  11. There wouldn’t be any worries about packing the court if the government got its big ass out of the business of micromanaging every little thing people do.

    1. We have to get rid of the democrats first.

      1. What is your plan, in a nation whose electorate becomes less rural, white, religious, intolerant, and backward?

        1. Yes, it will take quite a cleansing. Fortunately this is a big country, with lots of landfills for those of you who won’t clear out.

  12. Any day now – a tweet.
    I have determined to enact, as a bi-partisan gesture, one of the Democrat’s key proposals of their primary campaign season.
    Today I have signed an executive order expanding the Supreme Court to 15 justices, and sent the following names to the Senate for confirmation by a simple majority. (list follows)
    Done deal before November 20202.
    Welcome to the revolution.

    1. An executive order would not enlarge the Supreme Court.

      How would increasing the Court’s size now help the Republicans when it counts — when Democrats have the opportunity to enlarge the Court?

      Other than that, though, great comment!

      1. “An executive order would not enlarge the Supreme Court.”
        It will if the enlarged court says it did.

        “How would increasing the Court’s size now help the Republicans when it counts — when Democrats have the opportunity to enlarge the Court?”
        With the newly enlarged court, the democrats will never again get elected. Voter registration as restrictive as a gun permit is now, require proof of having paid taxes to vote, the possibilities are endless.

        “Other than that, though, great comment!”

        Thank you. Now get back to your congregation, they are in deep mourning.

  13. Oh, please spare me. SCOTUS is a useless pile of fucking politicized trash right now, so not only do I think “court-packing” to a more liberal court is a great idea, but I support the inevitable collapse of the corrupt US political system under its own weight anyway. Sooner the better!

    1. Indeed comrade, indeed.

      1. Disaffected, all-talk malcontents may be my favorite faux libertarians.

        1. Neo Stalinists are my favorite kind of corpse for mass burials.

  14. So the Republicans went scorched earth and you don’t expect the Democratics to want to retaliate? Get real. No one could blame them.

  15. House majority + Senate majority + presidential signature = enlargement of the Supreme Court.

    If Republicans wish to avoid this, they should focus on persuading a majority of Americans to embrace conservative positions. They probably also should not have enlarged the Supreme Court of Arizona recently. I expect them to regret that one, bigly.

    Enlargement seems likely. Playing by the rules can be enjoyable and profitable!

    1. Rev. Arthur L. Kirkland
      May.15.2019 at 8:51 pm
      “House majority + Senate majority + presidential signature = enlargement of the Supreme Court.”

      Bigoted asshole post = bullshit assertion.
      We got it, bigoted asshole.

      1. Your rants will be the background noise when better Americans are enlarging the Supreme Court. I will be content.

        1. Could you be content in the privacy of your own bedroom? Who else wants to witness you being content?

          1. Did Arty finally find a hamster with an anus tight enough to be satisfying to him?

  16. “…Liberals, concerned that a conservative majority may dominate the Court for a generation…”

    Liberals, unwilling to accept they lost an election, can go get fucked with a rusty, but running, chain saw.
    ‘Elections have consequences’ according to that lying POS who was termed-out in 2017

  17. It’s almost as if the Democrats are all whiny children who can’t stand it when they lose or something… But that can’t be because they’re supposed to be the intelligent adults in the room right?


  18. It’s like leftists practice lawfare for power.

  19. Dictators have a tendency to rewrite the constitution to fit their agendas. You can see such imperialistic impulse thriving in America’s left.

    These people don’t like to lose, and they lost a single election in such shocking fashion (owing mostly to their complacency and disrespect for the rust belt) that they feel compelled to action.

    So you can see them calling for the electoral college to be repealed, the SC to be expanded to prevent conservative takeover, allowing 16 year olds and felons to vote, and urging thousands of economic migrants to be admitted as refugees despite a lack of credible asylum claim.

    There is no AOC and the rest of the democrat. AOC is just a democrat who refused to wear a mask. All of them are loony partisan hacks who think 20 dollars min wage and the country becoming less white will be a key to unlocking the next Shangri-la.

    1. You’re not supposed to come out and say you’re afraid of the country becoming less white.

      Any halfway intelligent person knows that this is the single motivation for every rightwinger in America. But you’re supposed to use code and dogwhistles.

  20. “Court-Packing Plans Threaten Civil Liberties and the Separation of Powers”

    No, it doesn’t. The number of Supreme Court Justices is set by Congress. It’s in the Constitution. The Supreme Court has the same function, no matter how many justices. If we are going to be literal about the Constitution (as in the Senate has no affirmative duty to consider and vote on a nominee, despite 200 years of precedent.

  21. “A moderate liberal, Garland”

    the problem is that this is a meaningless statement these days, and especially with respect to the judicial system. Garland may be liberal, but the key to his decisions is a penchant for enabling government power and authorities, whether explicitly granted in law or not. that is a dangerous perspective to have in the high court. he should have received his confirmation hearing, but the vote should have been overwhelmingly against. I’ll reluctantly call it a win.

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  23. When you play political hardball, you have to expect it in return

    I would not blame the Democrats for freezing Republicans out completely

    Why not?
    A Republican Senate that did not have the support of a majority of Americans stuffed the Supreme court with trumpistas

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