Supreme Court

The Case Against Court-Packing Revisited

Current liberal court-packing proposals are dangerously misguided - and for much the same reasons as last year's conservative court-packing plan.


The Supreme Court.

The retirement of Justice Anthony Kennedy has stimulated renewed liberal interest in "court packing" - the idea of increasing the number of Supreme Court justices in order to get a majority more favorable to their views. Many on the left fear that this is the only way they can prevent a conservative majority from dominating the Court for a long time to come. While I can understand their distaste for conservative jurisprudence (and even agree with it on some points), court-packing is a cure far worse than any likely disease.

Last year, ironically, it was a conservative court-packing plan that made waves in legal circles - one offered by famed conservative legal scholar Steven Calabresi (in a paper coauthored with Shams Hirji), who hoped to pack the lower federal courts with Republican judges. Most of what I wrote in criticism of the Calabresi-Hirj plan applies equally to today's progressive versions of the idea:

If either the Republicans… or the Democrats…. succeed in packing the courts, the opposing party is sure to do exactly the same thing the next time they control the White House and both Houses of Congress. This is even more likely if court-packing can be enacted through the reconciliation process (as Calabresi and Hirj argue), and thus requires only a narrow Senate majority to pass.

Ending the norm against court-packing ensures that the judiciary will not serve as an effective check on the other branches of government at the very time when it is most likely to be needed: when one party holds both Congress and the presidency, and can thereby push through its agenda with relatively little opposition. Especially in a highly polarized era like our own, it is precisely at such times that the ruling party is [particularly] likely to violate constitutional constraints on its power in order to score victories against the hated opposition….

[T]he case against court-packing does not depend on the proclivities of any one president. As James Madison famously warned us: "Enlightened statesmen will not always be at the helm." Indeed, dangerously unenlightened politicians are all too common. The norm against court-packing is an important bulwark against their depredations – and those of the political majorities who put them in power.

I fully recognize that many Democrats regard court-packing as justified retaliation for the GOP's "theft" of the Supreme Court seat that went to Neil Gorsuch as a result of the Republican-controlled Senate's refusal to hold hearings and vote on Barack Obama nominee Merrick Garland. Republicans, in turn, argue that their treatment of Garland was justified by past Democratic misdeeds in the judicial nomination process (including refusal to hold hearings for a number of prominent GOP circuit court nominees), and that the Democrats themselves had signaled they would refuse to consider a GOP nominee in circumstances similar to those surrounding the Garland appointment. The truth is that, for a long time, both parties have shamelessly violated a variety of norms surrounding judicial nominations almost any time it seemed like they might gain an advantage to doing so. And both are equally shameless in shifting back and forth on procedural issues whenever the political winds dictate. The latest example is the contrast between GOP Senate leader Mitch NcConnell's insistence, in 2016, that the then-open Supreme Court seat should not be filled until after the November election, and his current claims that the present vacancy must be filled quickly, and certainly before the GOP might potentially lose its Senate majority in this fall's election.

But whatever we might think about the history of these shenanigans, court-packing is qualitatively different from any of them. Holding up nominees (as the GOP did with Garland), filibustering them (as the Democrats did with several Bush nominees, and as many - including Barack Obama - tried to do with Justice Samuel Alito), or "slow walking" them through the nomination process (many examples from both parties), are all potentially problematic. But all still leave the judiciary intact as a serious check on the power of the other branches of government. Court-packing, by contrast, would not. Once the norm against it is broken, both parties will resort to it whenever they have simultaneous control over Congress and the presidency, thereby foreclosing any significant judicial review of their policies.

When it was proposed last year, the Calabresi-Hirj plan sank like a stone. Even many on the right rejected it. That reaction showed the continued vitality of the norm against court-packing. But conservatives are likely to rethink their position if they believe liberal Democrats will pack the courts the first time they get a chance. And they will almost certainly do so (and retaliate in kind) if the Democrats actually do resort to court-packing the next time they get the chance.

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

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

While court-packing does not violate the Constitution, the norm against it has held for almost 150 years now, surviving even Franklin D. Roosevelt's 1937 effort to pack the Court, at a time when FDR was extremely popular and Democrats had large majorities in Congress. His plan was killed, in part, by congressional Democrats,who feared the negative long-term consequences of acceding to it. As Democratic Senator Burton Wheeler put it in a speech attacking FDR's plan:

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

That warning seems no less appropriate today than in the 1930s. Certainly, the current president and many of his likely successors don't strike me as the sorts of people in whose "conscience" we should put much faith.

It is also important to recognize that much of what liberals fear at the hands of a conservative Supreme Court majority is the undermining of judicial protection for rights of special importance to progressives, such as the right to abortion (imperiled by a possible overruling of Roe v. Wade) and the right to same-sex marriage (which would be undermined by an overruling of Obergefell v. Hodges). For reasons well summarized by Josh Barro, I think it's actually highly unlikely that Obergefell would be overruled. Roe v. Wade is, I believe, far more likely to be overturned, or at least seriously weakened.

But both these rights - and others valued by liberals - would be far more imperiled if the entire institution of judicial review is gutted by court-packing. That would ensure that these rights would never again get significant judicial protection - at least not if their adversaries control Congress and the White House. The same applies to a wide range of other constitutional rights, especially those that protect unpopular minorities, who are especially likely to face a hostile president and Congress, sooner or later. Like most liberals, I hated the Supreme Court's recent travel ban decision. But undermining judicial review through court-packing is a great way to ensure that future presidents will continue to be able to institute whatever discriminatory travel ban policies they want. A flawed Supreme Court decision can be overruled in the future, as many have been. It will be much harder to restore the institution of judicial review, once that is lost.

Court-packing might still be attractive to people who believe that it's more important to eliminate "bad" judicial review as an obstacle to beneficial policies, than to preserve the "good" kind as an obstacle to oppressive ones. That theory has advocates on both right and left. This longstanding issue cannot be fully settled in a blog post. But I believe the history of American government - and government elsewhere - shows we have more to fear from state oppression than from excessive exercise of judicial review. Given widespread voter ignorance and prejudice, majority public opinion - and the politicians it elects - often cannot be trusted to avoid deeply oppressive and unjust policies. Judicial review cannot prevent all such wrongs, but it has historically done a good deal to at least alleviate them.

Court-packing was a terrible idea when FDR advocated it in 1937 and when some conservatives pushed it last year. It remains a terrible idea today.

NOTE: I am unable to link to last year's original Calabresi-Hirj court-packing article because the authors took it down from the SSRN website, indicating that they would repost it after making revisions in response to criticism. But they have not posted a new version so far. When and if they do so, I will be happy to link to it here.

NEXT: Building an international "potluck" cyber coalition?

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  1. Until you revise your insane open borders stance, please stop calling yourself a libertarian.

    1. Big L libertarians are generally very much in favor of open borders. Ilya's stance is not inconsistent with the Libertarian party.

      1. Big L libertarians used to be in favor of open borders after we'd gotten rid of the welfare state. We understood that opening the borders while still a welfare state was suicidal.

        So, while you're not entirely wrong in principle, in practice it marks a huge change.

        1. What Brett said. Ilya has almost zero posts regarding the welfare state. he never mentions it as a consideration in his open border rants. He's not a big L libertarian.

          1. Faux libertarians -- standard-issue right-wingers who for various reasons do not wish to be known as conservatives, and therefore prance about masquerading in unconvincing libertarian drag -- are customarily the most strident people when it comes to self-identification as libertarians, and the most vicious when attacking genuine libertarians for opposing right-wing authoritarianism.

            Carry on, clingers. A bit more rouge, perhaps.

            1. Your continued use of 0blama's favorite descriptor of fly-over Americans shows your political position to be "progressive" - the furthest from libertarian of all.

              "Progressive is what communists call themselves, when they don't want to admit they are communists."

              1. Please explain why progressives are further from libertarians than are authoritarian, right-wing bigots. Thank you.

    2. I had a very libertarian economics professor in college that was in favor of open borders. He was extremely pro-free trade, and people were considered a resource like anything else. Thus, if you consider people to be part of the open market, he would advocate that you freely let the market dictate where people end up. In the end, the market would theoretically balance (i.e. in the case of the U.S. people would voluntarily stop streaming into the U.S. once there was no longer a greater benefit of going to the U.S. versus staying in their present country or going to a different country).

      1. In theory that would be fine if all of the other countries had open economic systems and generally decent governments that respected individuals rights, but they don't.

        I personally favor a secure border with very liberal immigration policies allowing in far more people that we do now. At least then we would know who came in and could screen out the criminals.

        With fully open boarders it would only be a short time until people in very large numbers began emigrating in very large numbers from very populous and very poor countries. The early 20th century Atlantic steamship trade was built on transporting large number of emigrants to the US at very low prices. A cheap ticket on the Titanic was ?9.

        Modern aircraft could deliver 6-700 emigrants a day each, even if the US would not allow such flights Mexico might not have not a problem with them landing in Tijuana and the passengers walking across the border.

        The only issue I see the Mexican government having would be if it reduced the number of their citizens emigrating to the US, since that helps the Mexican government by increasing remittances and by offering a safety valve for their large and growing poor population.

        1. "A cheap ticket on the Titanic was ?9."

          But at least you got to make out with Kate Winslet before you drowned.

        2. It also doesn't work because most of the world's population do not share our culture or values. It might work in theory if we somehow prevent them and their progeny from ever voting.

          1. Nobody shares your values because you're a fucking miserable cave troll.

          2. So there we have it -- pro-liberty, except for all those brown people with different cultures and values.

            1. You know, if cultures and values don't matter, you have a hard time explaining why every country isn't just like the US.

              And, what's this obsession you have with brown people? My son is darker brown than half the population of the world, and American as can be.

              1. One of our values is that we don't politically target a particular culture, even as our policies are informed by each of us voting our values. We certainly don't target races.

                AWRP doesn't share that core American value. He also hilariously pointed out exactly why people that reply to him might mention him and brown people once in a while.

                1. No, we don't "target" cultures or races, but prior to 1965, America understood that race matters. Now we don't, and it's destroying our country.

                2. "One of our values is that we don't politically target a particular culture"

                  "What you mean "we", white man?" ISIS is a culture. So is the Taliban. Like hell we don't target particular cultures, that's mindless multiculturalism. Culture matters.

                  1. What makes white supremacists so annoying, is that they, on race issues, sound identical to SJWs. You just put different races in the fill-in-the-blanks _______ and one can sound transposed from the other.

                    Instead of arguing for punishing whitey for the sins of the past and present, like the SJWs do, white supremacists argue for punishing darky....for the sins of the past and present.

                    1. I'm not arguing for "punishing" anyone. I'm arguing to contain different people in their own lands, where their alien cultures and value system won't have a deleterious effect on us.

                    2. The word "punish" was rhetorical in this instance, but advocating taking away the franchise is indeed a form of punishment. If I recall, you were advocating for removing the franchise from certain groups, and when I asked you to be specific, you demurred.

                  2. It certainly does. Look how far this country has fallen since we stopped beating down marxists. Our individual freedoms are massively eroded in favor 'collective rights' and 'political correctness'.

                3. "One of our values is that we don't politically target a particular culture"

                  Didn't you just claim last week that Arthur was one of your own? He targets particular cultures almost every post.

                  1. Sorry, I thought it was clear - 'we' means us as a polity, as in policy.

                    AK, and you, can rail against other cultures all you want. As can I - nothing wrong with admitting that there are cultures that suck. Fundamentalist Islam and the alt-right spring to mind. But we don't politically target them for oppression or elimination.

                  2. Which culture do I target?

                    Bigoted culture? Backward culture? Uneducated culture? Stale-thinking culture? Can't-keep-up culture?

                    Mostly I prefer culture and oppose lack of culture.

                    1. What you mean by "culture" is difficult to discern. You offer a variety cultures that you seem to hold in little regard, but still deem to be cultures, thus meeting your preference.

                      Since you seem to prefer bigoted, backward, uneducated, etc. cultures over lack of culture, what do you mean by "lack of culture"

            2. Sorry if the truth hurts, but 80-90% of "brown" people vote for Democrats and support Marxist wealth redistribution, gun grabbing, and other statist schemes along with a complete lack of respect for the concept of individual rights, including the right to make "hate speech."

              You allow enough of these people in, you no longer have America. It's that simple.

            3. Hit post too soon. If a person cares about a culture and certain set of values, it would be lunacy to allow people in who will vote away that culture and those values.

              1. While culture matters....*a lot* you're again conflating race with culture. They are two separate things. The classic example is to look at the island of Hispaniola. One one side you have the Haitians, the product of the was/is fractured culture coming out of brutal slavery and even more brutal uprisings, and on the other side of the island is the Dominican Republic, a product of the Spanish, with a racial make-up about the same as the Haitians, but a reasonably prosperous country as far as the 3rd world is concerned.

                Granted, Dominicans are the largest users of welfare than any other immigrant group into the U.S., but that's not the point, the point is that culture is more important than race and that race =/= culture.

                1. Of course, culture is more important than race. But to the extent that racial groups have very different IQs and innate capabilities, their cultures are almost definitely going to be very different as well.

                  1. As long as any group is willing to live under our constitutional republic without undermining it, I'm fine with them. If they aren't, then they are the enemy, no matter what they look like or believe.

                    Anyone who is against the constitution is by definition a traitor and has no place in America.

                  2. Then shouldn't we discriminate about who we let immigrate here, if culture is more important than race, on the basis of national origin (as a proxy for culture) rather than on race?

                    1. Then shouldn't we discriminate about who we let immigrate here, if culture is more important than race, on the basis of national origin (as a proxy for culture) rather than on race?

                      Aren't we doing exactly that?

                      I don't think anyone is saying "Mestizos from Venezuela are welcome, but Blacks from Venezuela aren't." (OK, almost no one. I'm sure there's someone out there who would advocate such a policy.)

                    2. ARWP is, and he is a regular commentator here. I engage him in this topic that he is perhaps very, uh, loosy-goosy about what race/ethnicity should be allowed in America and which groups while here should have full rights as citizens.

                    3. I do not advocate any strict rules on which races should be allowed here.

                    4. Then you're speaking out of both sides of your mouth, if you look just upthread and your bit about "brown" people. If not "strict" rules, what 'loose' rules?

                    5. When I reference "brown people," it means I don't want to fill America with the average "brown person," which is what advocates of unlimited Hispanic immigration are doing.

                    6. We certainly should discriminate. We should be bringing in people who add value, not suck up welfare. And no leftists should EVER be allowed in. No communist should ever be imported here.

                    7. Yes, but with an individual determination of IQ. If we randomly let non-whites immigrate, we'll by definition get a lot of low IQ people.

                    8. Then we don't take people from shithole countries, they correlate at about a .1

                    9. I don't follow.

                    10. Shithole countries are ones with average low IQs, the national average has to be 90 or about for a functional country.

                  3. But to the extent that racial groups have very different IQs and innate capabilities, their cultures are almost definitely going to be very different as well.

                    "Racial groups" do not have very different IQ's and innate capabilities.

                    1. I'm sorry, but yes, there are measurable differences in average IQ with a standard deviation difference between some groups and others, which is what makes this all so difficult to discuss. Though the within group variation is such that individual discrimination is morally wrong, the group differences are real and measurable.

                    2. I would actually like to see a big legitimate study on that subject. Unfortunately, the mere suggestion causes progressives to throw themselves on the floor in fits.

                    3. That's just it. They've as much as admitted that they don't want to do research on it, because, even if it's scientifically proven that there is a major IQ deficit between the races, it would either be used to discriminate against individuals or it would hurt people's feelings.

                      The party of science, indeed.

                    4. it's scientifically proven that there is a major IQ deficit between the races,

                      Except it's not "scientifically proven that there is a major IQ deficit between the races."

                      The Bell Curve is nonsense.

                    5. Wishful thinking on your part doesn't change reality for the rest of us.

                    6. Wishful thinking on your part doesn't change reality for the rest of us.

                      What reality do you live in? Calling shoddy research scientific proof doesn't make it so.

                    7. Exactly. If you control for IQ, there is almost no socioeconomic measure gap between the races

                    8. Yes, they do. There's a reason why some countries are the way they are and other countries are the way they are.

        3. "In theory that would be fine"

          Well, yes, the problem with both libertarianism and communism is that they work "in theory" but fail in real life.

          1. Communism should be exterminated anywhere it is found.

        4. A cheap ticket on the Titanic was ?9.

          For a laborer, about 9 weeks pay, give or take. But that's all the money he's got for everything, and just about everything adds up to mere subsistence. Saving that much? Not so cheap.

          1. Stephen, what do you think the costs are to coyotes to get across the border? For many of the travelers it is about the same cost.

        5. Mexico has a special transit Visa for people to cross it to attempt to illegally enter the US. Yeah, I think they'd be ok with that, especially with the new president

      2. Freedom of association means the freedom to exclude those who would not associate according to group norms.
        The local B'nai B'rith is free to keep out the klansmen as they would distinctly alter the nature of the association. Likewise germans are equally uncomfortable with migration from africa altering their preferred culture. And in America, most prefer a culture where english is the spoken language, and mexican is a style of food mostly unlike foods found in Mexico. And quite expectedly, Mexicans in mexico seem not to want Americans making cultural and policy decisions for their country.
        In short, it is human nature to prefer the familiar and prevent outsiders from coming to upset the status quo. Xenophobia is not qualitatively bad nor good; it simply is the natural state of who we all are.

        1. Of course. Liberalism seeks to override human nature. It never, ever works.

      3. Free Trade is when countries exchange goods at zero taxation/ borders is when countries have a level playing field and exchang of people goes both ways.

        That is Libertarian,,,with the taxes/tariffs being what they are and countries like Mexico having dracobiab Immigration laws but demanding USA to open it;s borders is not Libertarian.

        more like Special Olympics.

    3. It is always interesting when a so-called libertarian wants to dictate who has the liberty to call themselves libertarian over a disagreement on one issue. It is almost as if such a person wants to be the absolute monarch of libertarianism.

      1. So far as I know, no one is attempting to disband these groups:

        Libertarians For Government Micromanagement Of Wombs (And Certain Clinics)

        Libertarians For Authoritarian, Bigoted Immigration Policies And Practices

        Libertarians For Torture And Pre-Emptive Invasion (Of The Wrong County)

        Libertarians For Drug Warriors

        Libertarians For Massive Military Spending

        Libertarians For Government Gay-Bashing

        Some people are inclined to mention the faux libertarianism angle, though. Seems congruent with libertarianism.

        1. Rev Arthur, hows that trade war between your mom and her pimp working out?

          1. Life is good for me, TeamsterX. American society has been improving in line with my preferences throughout my lifetime. Despite an impoverished background, I have been able to build a fine life. I dodged becoming an ignorant, intolerant, superstitious, disaffected, struggling yahoo. I have enjoyed a half-century of liberal-libertarian progress in America.

            How about you?

    4. Guy with right wing in his name who wants to contract the franchise maybe shouldn't be policing who gets to call themselves libertarian.

      1. I'm not a libertarian, and have never claimed to be.

        1. Then who are you to be claiming the authority to decide who can and cannot call themselves libertarian?

    5. Insane or stupid positions don't prevent someone from belonging to a group that broad, if they're based on sincere beliefs compatible with it.

      What Somin wants would utterly destroy libertarianism here, but he is in denial

    6. I call myself a libertarian - small-L flavor - and I believe I came by my libertarianism legitimately, by studying and thinking about the libertarian and classical liberal philosophers, from John Stuart Mill, Adam Smith (yes, he was very much a philosopher in adition to being the father of modern economics), John Locke, Rousseau, Mises, Hayek, and others. And I think that open borders is very much a libertarian position, and an economically well-founded policy. Your presumption that an open borders stance is inconsistent with libertarianism is just plain misinformed.

      1. Allowing an unlimited number of people, who are accustomed to a lower standard of living and income, into the country with the highest of those must result in a lowering of the overall of both of those categories.
        Open borders will result in a "market balance" that is far below what America has built for itself in relation to the rest of the world.
        Open borders means the end of America as the economically exceptional country it has become.
        That is the leftist's desire, just as they want America to cede its military power to organizations that give the weakest of nations an equal vote with ours.
        American libertarians are supposed to be in acceptance of what this nation was founded on - a Constitution that limited the power of government over individual liberties, but only the liberties of "We the People of the United States of America", not the liberties of the entire world. Thus the Congress was empowered to, democratically decide who may, and may not enter the country, as those who don't have the liberties that Americans enjoy.
        Open borders rejects the Constitution and would be anarchy.

        1. Allowing an unlimited number of people, who are accustomed to a lower standard of living and income, into the country with the highest of those must result in a lowering of the overall of both of those categories.

          No. This is a baseless assertion.

          As a matter of arithmetic it might lower per capita income, but that is not at all inconsistent with an increase in per capita income for both the immigrants and those already here.

  2. "If either the Republicans... or the Democrats.... succeed in packing the courts, the opposing party is sure to do exactly the same thing the next time they control the White House and both Houses of Congress."

    That's why the proposal, as I'm seeing it described, is not to just pack the Court. Instead it's proposed to pack the Court, and enact various OTHER measures intended to make sure Republicans never again control Congress or the White House.

    Naturalizing all illegal immigrants. Making Puerto Rico and D.C. states. Maybe splitting California into several new states gerrymandered to all be Democratic. These are measures which could also be accomplished by legislation, which would make it extraordinarily difficult for Republicans to win elections for a generation or more.

    Additionally, with a rubber stamp Supreme Court, the Democratic party could enact all manner of campaign "reforms" which would handicap Republicans. Such measures are now being prevented by the Court's 1st amendment respecting faction, but the party that a year or two ago proposed to amend the 1st amendment isn't going to pack the Court, and still leave it with a majority in favor of free speech.

    I think it's important to understand that Court packing isn't being proposed in isolation. It's part of a well thought out program to make America a one party state.

    1. I keep seeing references to Puerto Rican statehood as a way to give the Democrats more votes in Congress, but I'm also told that there is no consensus among the residents of Puerto Rico about statehood, and also that the two major political parties in Puerto Rico (which are affiliated with the two major parties in the States) are fairly competitive with each other. I don't think Puerto Rican statehood would necessarily be a slam-dunk for the Democrats, even if a majority there favored it.

      1. Completely separate issues. PR statehood would give the Democrats more votes in Congress. Whether or not PR wanted it

      2. Agreed. And while splitting California would likely give the Ds a bump in the Senate, it could well be a temporary bump as people migrate to jurisdictions that better align with their values. Gerrymandering works for voting districts because they get redrawn so often. State boundaries, once set, are pretty permanent.

        1. Yeah, but California is so heavily Democratic at this point, (About 150% of Hillary's popular vote margin came from there.) that it wouldn't be hard to break it up into three or four pieces that were comfortably Democratic, enough to be stable for at least a couple decades. In which time who knows what they could do.

        2. CA should be so,it into several states. One for all the blue areas and five split amongst the red areas. To destroy their chances at ever controlling the senate again. Although ideally the de ocrat party should be forcibly disbanded for all the traitors rerunning it and their rampant criminal activities.

          If we had an AG with some balls, maybe we could get the massive swath of democrat prosecutions needed to break their party.

        3. This just isn't true. The last proposal I saw to split California up would have resulted in 3 states with two pure blue ones and one that would lean significantly blue. And it's not like people who aren't already fleeing California are going to start because you split it in three and now it's *less* ideologically extreme

    2. enact various OTHER measures intended to make sure Republicans never again control Congress or the White House.

      It's the Republicans who re working hard to entrench themselves, Brett. And the Supreme Court is giving them a nice helping hand.

      Naturalizing all illegal immigrants

      You really believe all that crap you read somewhere, don't you?

      Maybe splitting California into several new states gerrymandered to all be Democratic.

      No GOP gerrymandering ever, per Brett. Since the whole Senate is in effect a giant national gerrymander I don't sympathize with your complaint. Splitting CA would make things more equitable, not less.

      Making Puerto Rico and D.C. states

      Republicans seem to favor statehood for Puerto Rico:

      in 2016 the Republican Party has kept its promises by declaring full support for Puerto Rico's admission as the 51st State in its platform.

      1. "Naturalizing all illegal immigrants

        You really believe all that crap you read somewhere, don't you?"

        It's being proposed by some of the same people as court packing.

        I don't want people thinking, "This will never happen, because of the obvious prospect of retaliation." The people proposing court packing aren't all idiots, they're not proposing it in isolation, but instead as part of a coherent plan to render the US a one party state.

        Do I believe this sort of thing is imminent? Of course not. But things like this remain a fantasy until suddenly they happen. And the number of Democrats talking about Court packing is comparable to the number talking about abolishing the filibuster for confirmation votes a few years before Democrats did THAT. More, even.

        If we don't want the court packed, we should act now to stop it. Propose a constitutional amendment locking in the size of the Court, and tell the Democrats right up front, that they either support it, or Republicans will take the failure to support it as proof of intent, and do it first.

        1. It's being proposed by some of the same people as court packing.


          1. Sorry it took so long, been kind of busy.

            1. OK. You found one guy, maybe two, with that on a laundry list. No Democratic leaders or groups at all. Not very convincing.

              Is it your opinion that any suggestion by any Democrat anywhere is a Democratic policy proposal? If so, do you apply the same standard to conservative loonies?

              I mean, right here in this comment section we have more than one person advocating killing liberals, which you seem to endorse, as well as fomenting a revolution if the Supreme Court makes decisions you don't like.

              Standard Republican policy? I hope not, but given the respect violent racist nutjobs get from Trump and his gang it's not too much to say i'm not sure.

        2. or Republicans will take the failure to support it as proof of intent, and do it first.

          Do it first? You have no idea how this works, but please keep opining publicly about how Republicans should or could prevent Democrats from enlarging the Court by 'doing it first'

          1. Sounds like you don't know how it works.
            It would take a simple majority in the House and a filibuster-proof majority in the Senate and a same-party president to enact legislation that would make the SC whatever size was proposed, and that same-party president, with a filibuster-proof Senate, to put whatever ideologues would be needed to ensure a generation of favorable decisions.
            Currently, with ten Senate demoncrap seats, in states that went for Trump, and the increase in the Republican portion of the "generic" vote preference, it is the side of good that is in the best position for that circumstance to be achieved.
            Fortunately for you communists, conservatives are too honest to do something like that.
            If your side was in the same position, I would worry that your side would do it and claim justification, just as you claim that all the "progressive" decisions by the SC, that go against what the voters want, and the Constitution, are "justified". The "right side of history" and all that garbage.

            "Progressive is what communists call themselves, when they don't want to admit they are communists."

            1. Ensure a generation of favorable decisions?

              You genuinely don't understand how this works. A Democratic Congress and Democratic president would be adequate to overcome anything the Republicans do (short of a constitutional amendment) to try to prevent enlargement of the Supreme Court. In an America whose electorate is improving in a manner that favors Democrats, confidence about continued Republican control of the levers of our national government seems daft.

              Ask an educated person to try to explain it to you.

              Or just carry on, clinger.

      2. Tell us about the Democrats who have come out against a pathway to citizenship

        1. Not what Brett is complaining about.

          A long-term pathway to citizenship for people who have been here for years, not committed any crime, and led productive lives is simple common decency.

          Unfortunately, the guy in the White House lacks even a microgram of decency, as do many of his supporters.

    3. I think it's important to understand that Court packing isn't being proposed in isolation. It's part of a well thought out program to make America a one party state.

      Sounds like the type of structural package that, if advanced by conservatives, could include gerrymandering, proposing elimination of statewide judicial elections, discarding blue slips, race-targeting voter suppression, a constitutional convention, crippling unions, restriction of immigration, scrapping the 17th Amendment, and arrangement of a raft of conservative-friendly Supreme Court decisions.

      Sounds familiar, actually.

      I eagerly await our tenth and eleventh Justices.

      1. Why you want more Trump appointees is beyond me

        1. I couldn't care less how many justices Trump nominates or has confirmed, so long as the next Democratic president who has the chance appoints at least two more than that.

          1. You don't even pretend to remember your own writing? Wow

      2. Most of that sounds awesome. People like you should have no role in running this country. In fact, people like you belong in federal,prison for your sedition, or in front of a firing squad when it escalates into treason. Like your mistress Hillary Clinton.

  3. "And, as the current occupant of the White House demonstrates, the safeguards against such people getting power are not nearly as strong as we might have thought before 2016. "

    Note that it's not the current occupant of the White House proposing packing the Court, it's the opposing party.

    I know that you work really hard to try to find a way to blame everything on Trump, but this time it's a fail.

    1. The current occupant had no need to. McConnell stared the process for him, and Kennedy is continuing the job.

  4. There is also a big difference between packing the supreme court, and packing the lower courts. Chief among them is that expanding the circuit and district courts would speed up case resolution dramatically, which most people regard as a good thing. That would not be a benefit at the USSCT level as every case is heard en banc. Furthermore, because there are so many more lower court judges, the partisan effects of any packing scheme would be mitigated over a much shorter period of time that would be the case in the USSCT.

    1. Yes, I'd have to say that the lower court and Supreme court "packing" proposals are completely different beasts. If you don't pack the Supreme court, anything outrageous you accomplish at the lower court level just gets struck down. "Packing" the lower courts is more about making the 9th circuit less of an outlier.

      1. The 9th isn't the outlier you think it is.

        The 9th comes out as the outlier on the raw numbers, because it has twice the population of any other circuit and therefor twice the total case load.

        If you start looking at percentages the picture changes dramatically.

        The real outliers in terms of reversal rates at SCOTUS are the 6th and 11th circuits.

        1. It's also not a fair comparison to just look at the reversal rate without actually delving into the opinions themselves. For example, the Supreme Court reversed the 7th Circuit on the Janus case, but was not criticizing the 7th Circuit in any way. The 7th Circuit was bound by Supreme Court precedent, and the Supreme Court decided to overrule that precedent. Thus, in my mind, that reversal should not be counted against the 7th Circuit the same way the Supreme Court slaps down the 9th Circuit in a per curium order on a federal habeas case where the 9th Circuit outright ignores the law.

          1. In other words, I think the correct comparison is to look at reversals where the Supreme Court found that the Court of Appeals incorrectly decided a case on the facts or the law. If there is an open, undecided legal issue that the Court of Appeals decides as a matter of first impression, and then the Supreme Court reverses by deciding the legal issue differently, that wouldn't count against the Court of Appeals.

      2. "Packing" the lower courts is more about making the 9th circuit less of an outlier.

        This is more partisan yelling than an actual distinction between lower and upper courts. If packing one is bad, packing any is bad. Especially since you blatantly want to pack the court for partisan reasons. How are you less bad than the left?

        1. My point (I cant speak for BB) is that there seems to be a genuine problem in the lower courts stemming from a lack of actual judges, which leads to a lack of actual justice in terms of getting trials and appeals completed in months rather than years (or even decades). Most cases in the lower courts don't involve hot button political and social issues -- they just involve regular parties with ordinary issues. That is what I meant by partisanship being less of an issue.

        2. No, I just want to break up the 9th circuit so that it's comparable in population to the other circuits. I'd be fine with keeping the number of judges within it the same, or enlarging the number very gradually over the course of several administrations.

          I'm just pointing out that in terms of the potential for radical change in jurisprudence, packing the Supreme court is a much bigger deal than 'packing' the lower courts.

          1. As the OP lays out, the issue is a threshold one, not a functional one.

            I'm all for breaking up the 9th; it is indeed too big.

            And filling empty court seats is not packing.

      3. What really needs to happen is for congress to get off their ass and start a massive wave of judicial I peachments for all these activist judges. Like that idiot in Hawaii that improperly blocked Trump's temporary travel ban, based on bullshit.

        1. You need 2/3 of the Senate to convict. Good luck with that.

          I am usually all for Congress wasting time on things that do not make life measurably worse for large swaths of people, but Rs wasting time on politically motivated impeachments tends to lead to negative publicity, and the election of Ds who are likely to make my life measurably worse.

          1. Quite true: The problem here is not that the judiciary aren't lousy with jurists who merit impeachment.

            It's that they're doing the dirty work for a major party, which thus has their back.

            Having the umpires cheating on behalf of themselves is considered just another tactic by one of the teams. The Democrats have rejected the desirability, the very possibility, of an impartial judiciary. The only merits they think judges should rule on is whether the outcome is what the left wants.

            They perceive any decision against them as just partiality in favor of the right, having rejected a priori the possibility of actual impartiality.

            Under those circumstances the whole system gradually breaks down. It can't function with a major party that rejects the rule of law. All I see ahead of us is an accelerating slide towards revolutionary violence.

            And I think the left has long seen that ahead of us, too, which is why they're so keen on gun control.

            1. You've lost it, Brett.


              The federal judiciary is a tool of the Democrats? That's what you think? Because some decisions don't conform to the Bellmore principles?

              All I see ahead of us is an accelerating slide towards revolutionary violence.

              Between you and Kacfm, and, MJBin AL, and one or two others, it sure sounds like the right is ready to resort to violence if it doesn't get its way.

              Fucking would-be brownshirts.

  5. Is there any (implied) requirement in the Constitution that the Supreme Court can only ever sit en banc?

    The UK supreme court has more than a dozen members, and has only ever sat once with all the Law Lords. (The regulations require an even number of justices in a panel, and so the court can't sit with everyone even if it wanted to unless it's a member short, as it was when the Miller case was heard.) Usually the supreme court sits with panels of five, and in rare cases with seven or nine.

    Just off the top of my head, the revered German Constitutional Court has two senates, which are responsible for different fields, and each senate consists of three chambers. Depending on the seriousness of the issue the case either gets decided by unanimity in a chamber or by majority in a senate. But never en banc.

    Slightly more modestly, the Dutch Supreme (but not constitutional!) court has no more than 38 members, who sit in four senates that cover the different fields, and from which panels are drawn.

    Point being, court packing need not make it impossible for the US Supreme Court to function. It just depends on whether it is allowed to adjust its ways of working to compensate, or whether there would be any prospect of Congress adjusting the ways of working at the time of packing.

    1. No, in fact there isn't such a requirement. The current procedure is due to legislation.

      Supreme court justices once rode circuit. And there are still certain types of cases that are heard by single justices, who have the option of either deciding the cases themselves, or referring them to the entire Court.

      1. Would be so nice to get the justices out of the hell hole that is D.C. One of the biggest problems we have is transporting all of our leaders to the biggest corrupt cesspool in America. Separate them out and let them video conference.

        1. Fun fact: I asked Roberts what he would do if he were king for a day, and he said taking the SCOTUS on the road was it.

          1. I offer that without comment on your unsupported connection between being in DC and becoming corrupt.

            1. Correlation may not prove causation, but it is hard to deny this correlation.

    2. The Constitution is exceedingly scant on details, requirements or procedures of the Supreme Court.

      1. Indeed, but that might not stop someone from arguing that the Supreme Court is not "supreme" or a (single) "court" unless it sits en banc.

        1. I'm sure many will say that especially after over 200 years of doing it as it is being done now.

          One possible out there is to require every case decided by a panel to be confirmed by the Court as a whole, but use a high standard to require the panel to be overturned.

          Another suggestion made is that the justices are nominated to a set term for the purposes of being a full time justice and after that period they would serve when there is a vacancy or sit on a lower court by designation. They would retain life tenure. Appointing a judge or justice merely for one position the full length of their tenure does not necessarily appear to be compelled by the Constitution.

          There can be nominations for "judges" with the "Chief Justice" position appointed for limited terms, by lot even. This all might seem iffy, but if the alternative is court packing, maybe it's better.

          1. 127 years of doing it as it is being done now. Under the original judiciary act the Supreme court could meet with as few as 4 members present, they just had to have a quorum.

            1. I took the issue at hand being one single Supreme Court, which was always the case, not circuit riding. Under the original Judiciary Act, there were six justices. There are nine now. So, yes, logically the quorum is higher now. 4/6 vs. 6/9 in fact is the same percentage.

              1. But it was a significant change in practice, that the Supreme court then would routinely decide cases without all the justices participating, while today that only happens under extraordinary circumstances. Or so I understand.

                Understandable given the travel difficulties, and, yes, the circuit riding.

                1. First, again, it wasn't what I was talking about.

                  Second, circuit riding -- the specific thing cited -- had limited effect on the number of justices that decided a particular case. The usual practice was for all the justices to be present, especially when the term(s) were much shorter, the rest of the time spent circuit riding. One justice might not take part if he was involved in the ruling below.

                  To the degree this level of "interest" was seen as a sort of disqualification, justices now and then these days don't take part either. In neither case, did it affect things that much regarding the specific thing that I was responding to.

            2. There is a different between a quorum of less than the total number justices (due to recusals or illness, for example) and the SCT (or congress) establishing 3-justice tribunals to decide cases, the way they do at the Circuit level. I don't think that would fly. The Constitution says there is one Supreme Court, and that would create multiple courts.

              1. Yes, I'd agree that a judiciary act that split the Supreme court up into multiple bodies would violate the Constitution. which calls for "a" Supreme court, not supreme courts.

                1. Yeah but that's because you're a hidebound textualist. If you were a living constitutionalist you would be able to see that the Republic has grown to need several Supreme Courts (most of them with D majorities) and that consequently that is what "a Supreme Court" means.

  6. "As a libertarian, I have a long list of reservations about both conventional liberal judges and conventional conservative ones."

    Professor Somin, who would you endorse to be a Supreme Court judge? Are there any current judges on the Court of Appeals that you would not have a long list of reservations about?

  7. In hindsight, FDR's support of court packing was misguided in large part because the justices he was concerned about were aging anyway and (for a somewhat lesser reason perhaps) long term their strong position against the New Deal was likely to run its course over time anyway. There were already some signs that a majority accepted a broader view of public regulation of the economy etc. as is.

    The situation looks different at this vantage point, especially if one more liberal resigns and Thomas decides to go out on a high point. You will have a strong 6-3 majority there with three to four Trump picks and two Bush43 picks who can be on the Court at least for another decade or more. This doesn't JUSTIFY anything by itself, but it makes the situation different. It also is a matter of how the Roberts Courts decides to operate though without full Democratic control, we won't fully know for sure there.

    Court packing is strong hardball and I still don't think there is the majority will in place to pass it. The fact some liberals are talking about it doesn't change that. It also serves as a warning for others to try to reach an alternative path. In that sense, there is a positive nature. Ideal or not, simply out waiting a new conservative majority -- which (wrong-minded as some will think this is) many will deem illegitimate for ten or more years without anything else being done is not going to do it for many people.

    1. Part of this is going to have to be debating how bad the situation is.

      Take the FDR precedent. There was no controversy over a tainted pick there. Again, people here will deny the pick was tainted; resist the hypo. But, if at least one seat is tainted, it really changes the calculus a tad.

      It is also a matter of what is done. I don't think we will turn into Venezuela if a 6-3 Trump Court (four Trump appointees ala the "Nixon Court") that granting for argument has one or more tainted seats is expanded to let's say to eleven. This would be a modified "court packing" that might be the sort that gets full support in Congress and doesn't even totally switch ideological control. Plus, the change can be part of a bigger package of things such as dealing with gerrymandering or the like that is not merely ideological. Again, we can debate merits of any one thing, but it changes the debate some.

      Any precedent can be expanded, but that would counsel against never doing out of the norm sort of things in special situations. In historical experience, extreme sounding things some times need to be done. Anyway, again, I think we need to see what happens 2018-22 or so to fully tell what is "needed" here.

      1. If the democrats really plan on packing the SCOTUS. Then perhaps Teumo should beat them to it and expand the court to 13 justices. Then we will have at least a decade of a 10-3 court. And just to pour salt in the de ocrats wounds we could have the following justices:

        Justice Coulter
        Justice Limbaugh
        Justice Hannity
        Justice Cruz

        Proggie tears would flow like rivers.

    2. The FDR court packing scheme, even if it failed, had the effect of intimidating the Court, which subsequently began to have decision that upheld New Deal legislation. It's called the "switch in time to save nine."

      While I failed legislatively, it still succeeded. The appointment process, as you note, did the rest.

      1. I would argue that the lesson is not that court intimidation works, it's that courts are amenable to public opinion, even though politically isolated.

      2. The "intimidation" is questionable. The 1936 elections alone showed the justices in the middle where the wind was blowing. I know the saying. It has been argued to be exaggerated.

        The justices beforehand was already open to more regulation. Just tweaking things somewhat could have fit in an already emerging trend.

        1. I think you might not understand the profound change in the understanding of the Commerce Clause that the Court flip-flopped on. Yes, an alternate argument is that the Court was following the election returns and flipped, and that it wasn't FDR's jawboning of them.

          However, they happened sequentially, in that FDR used the political capital from his victory in 1936 as leverage for his jaw-boning and threat to pack the Court, which caused the flip. FDR thought it was the election victory and popularity that caused the flip of Justice Roberts, where as Robert's contemporaries, of course, denied that any political pressure would cause a man of judicial integrity to switch the way he voted. Never mind that just a year earlier he had voted against minimum wage legislation in a similar case. The various defenders of judicial integrity were also shocked, shocked, to find that gambling was going on in the back room.

          But ask, if the 1936 election victory were closer, would FDR thought to influence the Court like he did?

          1. There was not merely a sudden flip.

            There were already signs that the two centrist justices (Roberts/Hughes) were accepting of New Deal legislation including a broad understanding of public interest (Nebbia), the Contract Clause (Blaisdell and the Gold Clause Cases) and so on.

            Some New Deal policies were seen as going too far but it didn't require too much of a shift, especially if the policies were toned down and the right cases were taken (such as a Commerce Clause or taxation case involving a major national matter, not "sick chicken" that seemed local), for those two justices to move their votes. The basic "reasonableness" of legislation is in part a reflection of understandings of the times and major elections are a big sign.

            People realistic about how judges decide things knew that current understandings influence votes. As to the minimum wage ruling, there was stuff written about Roberts votes there, including his openness to change, the earlier ruling decided on narrower grounds. It is quite possible he was influenced by various things there. The court packing could have been a factor, but it wasn't the only one.

            1. So now we're debating how flippy the flip was?

  8. "Once the norm against it is broken, both parties will resort to it whenever they have simultaneous control over Congress and the presidency, thereby foreclosing any significant judicial review of their policies."

    IIRC the norm has already been broken by the Progressive Democrats under President Obama along with Sen. Reid using the "nuclear option".

    1. That's not the same norm.

      There is nothing more corrosive to democracy than the declaration that your side has been so wronged that anything you do is justified.

      1. Drop Tushnet a line, then. That's his take on things.

        Has been ever since before Trump was elected, as a matter of fact.

  9. The truth is that, for a long time, both parties have shamelessly violated a variety of norms surrounding judicial nominations almost any time it seemed like they might gain an advantage to doing so.

    It's almost enough to make a person question whether or not the claimed norms ever really existed in the first place.

    1. Just because a rule is frequently observed in the breach doesn't mean it doesn't exist. The criterion isn't whether the alleged rule is ever broken, but whether there are consequences for a (flagrant) breach.

      1. "Just because a rule is frequently observed in the breach doesn't mean it doesn't exist."

        If it's never observed except in the breach, that does, at least in my opinion, mean it doesn't exist.

        "The criterion isn't whether the alleged rule is ever broken"

        Of course not, the criterion is whether or not it's broken so frequently as to call the existence of the rule into question.

        If the rule is rarely breached, that doesn't call the existence of the rule into question.

        However, when the rule is breached more often than it is followed, that is enough to call the existence of the rule into question.

  10. I'm for bringing back circuit riding, and mandating that the travel be done by carriage. It helps build character. #CatchMeRide'nCircuit

  11. On the other hand, there might be an argument for expanding the court based upon an older norm which in some form continues to this day.

    Historically, the number of justices was equal to the number of judicial circuits, expanded SCOTUS to 10 in the 1860s. This was reduced to keep Andrew Johnson from placing a justice on the court..

    Today we have 12 regional circuits and the federal circuit. Each justice is nominally over one or more of the circuits, hearing emergency appeals from that circuit. Why not expand the court to 13, with the Chief Justice over the Federal Circuit and each of the other justices supervising a regional circuit. Perhaps it could be established as a norm that (going forward) the circuit justice would actually be from that circuit in some form or fashion at the time of his or her nomination. Of course, to get both sides to agree to such an expansion, there might need to be a compromise (oh, that dreaded word!) that the president would nominate two of the new justices from a list submitted by the leadership of the ther major party in order to keep this from being merely an excuse for a partisan court-packing scheme.

    1. Of course, to get both sides to agree to such an expansion

      . . . would be unnecessary.

      Thirteen seems a nice number.

      1. You are quite the bright bulb.

        Democrats would be entitled -- with control of Congress and the presidency -- to create as many positions as desired . . . and I would expect 'two more than Trump nominated' to be a desirable number.

        Get someone with an education to try to explain this to you.

  12. Trying to re-legitimize court-packing is an odd strategy for Democrats, when the only party that realistically would have an opportunity to do so before 2021 would be Republicans.

    It's like Harry Reid exercising the nuclear option for presidential nominees in 2013 -- only this time, it won't even take four years to blow up in their faces.

    1. 24 names left on Trump's list. I say make them all justice.

      We can add Merrick Garland for balance.

      That makes a 33 justice court.

      1. 33 is too christian of a number bigot.

        1. It is? I know. 666 is the mark of the anti christ, and 333 the mark of the semi Christ, but what is 33?

      2. Great.

        I don't think conservatives are going to be able to develop a machine that mass-produces poorly educated, easily frightened, selfish, bigoted, superstitious, economically inadequate, rural, southern white males -- let alone that Republicans would figure a way to register the newly minted yahoos to vote -- so I am not so worried about the medium to long term.

        Have your fun for a few years, Republicans. Put 100 people on the Supreme Court tomorrow. In an America whose electorate improves daily (from the liberal-libertarian perspective, as stale-thinking old-timers die off and are replaced by voters who are less rural, less religious, less white, less backward), I am content to permit time to sift this.

        1. You progtards have already created a public school system designed to produce unthinking ignoramuses easily manipulated (democrat voters). This is even acknowledged in the DNC e ail dump from 2016.

          Conservatives and libertarians want to change that.

          1. Liberals and libertarians build and operate schools like Columbia, Berkeley, Harvard, Yale,and Michigan.

            Conservatives build schools build and operate schools like Liberty, Wheaton, Ouachita Baptist, Oral Roberts, and Regent.

            I like, and can predict, how this is going to turn out.

            Carry on, clingers. With even more Bob Joneses and Hillsdales, maybe?

            1. Maybe you need to look around, some more.
              Since the election of your messiah, Burqua Hussein 0blama, legislative victories have gone, massively in the opposite direction than you seem to think they will be going, in the future.
              Oblama lost 3.5 million voters, with a 9 milliom increase in population, between '08 and '12. HiLIARy under-performed 0blama's 2012 total by about 50,000, with another 9 million being added to the nation.
              Trump didn't so much as win as she lost, because voters are turning away from the overtly communistic ideas that the demoncrap party has been espousing, and seems to be doubling-down on.
              And that is just on the national scale - in the state houses and governorships, the results are even more in the opposite direction you are so confident will occur.
              Of course, if you manage to get that new electorate you want, by opening the borders and giving a bunch of foreigners the franchise, that may change, but so would the country that you seem to feel has bee treating you so well.
              Careful what you wish for...

              1. You keep rooting for ignorance, backwardness, and intolerance, retiredfire. My preferences have prevailed in America throughout my lifetime, and earlier, and I expect that to continue.

  13. I guess the question would be which party has the largest candidate pool.

    Are there really that many righty-ish judges out there who could fill a significant increase in federal judgeships?

    And then who would fill those now-empty positions?

    Seems like either way, this would favor us progressives eventually.

  14. The latest example is the contrast between GOP Senate leader Mitch NcConnell's insistence, in 2016, that the then-open Supreme Court seat should not be filled until after the November election, and his current claims that the present vacancy must be filled quickly, and certainly before the GOP might potentially lose its Senate majority in this fall's election.

    Sure, that's bad. But the latest, and worst, example?at least as bad as McConnell in 2016?was Kennedy's decision to give Trump plenty of time to make an uncontested appointment before things could change in an election. Given the context, I suggest the timing of Kennedy's retirement announcement is one of the most unseemly decisions ever made on the Court.

    What kind of judicial temperament decides it's his place to cement a partisan majority for decades, immediately after being put in a position to do it by McConnell's antics? It's one evil multiplying the baleful effect of another. It threatens to deliver exactly the kind of retaliatory recklessness Somin discusses.

    Had Kennedy waited until January, no matter how the election came out, nobody could have complained that he had personally, single-handedly, delivered a deliberately partisan Court. Or could have suggested that because of that, almost any measure to re-balance the scales of justice had been validated by his reckless conduct.

    1. The bit in Somin's article that you highlighted made me smile. Because unlike you, and it would appear unlike him, I actually followed the link. Which took me to a fact check in the New York Times - that would be the NEW YORK TIMES ruling that McConnell 2018 is not a flip flop from McConnell 2016.

      This is would be clear to a child of five, since as the NYT repeats, McConnell 2016 stated very clearly that he was talking about the President picking the justice, and waiting for the result of the Presidential election.

      And thus the notion that Kennedy has behaved badly by retiring now and failing to defer to a "rule" that Uncle Chuck threw out as a Hail Mary, and can bearly help giggling at himself is, well, sad.

      1. Very lawyerly, Lee.

        1. Let's keep it civil 🙂

      2. I could care less what McConnell said, then or now, or whether anything he said was a flip-flop. McConnell did what he did. And after he did it, Kennedy did what he did. And now the nation is in a pickle because of them. That's bad. Not just bad, reprehensible too, for both of them. Got it?

        1. Why is the nation in a pickle because Kennedy did what he did ? SCOTUS Justices retire from time to time. They usually retire when they're getting old and when there's a President in office who is from the party they generally favor.

          What on Earth has Kennedy done that is reprehensible ? Did Stevens behave appallingly by retiring in 2010 ?

          As to McConnell, sure, he behaved in a partisan fashion, dusting off a fake "precedent" previously floated (also for partisan reasons) by Joe Biden. That's what politicians have been doing with judge-pickin' since Bork. Politicking. But you probably haven't grasped the real nature of McConnell's behaviour. He wasn't blocking Obama's pick from getting on the Court. The GOP had a majority in the Judicary Committee and in the Senate. Garland wasn't going to get confirmed. McConnell was just trying to avoid his more vulnerable Senators from taking political flak by voting down a real flesh and blood nominee.

          1. With respect to your argument preceding your political analysis, you haven't previously seemed as strained as you portray yourself with that one.

            As for the politics, we disagree. Given a full-Senate vote, and given also an unfettered will to partisan power, the GOP majority would nevertheless have perceived itself in a dilemma?Obama's generously restrained pick of Garland now, or Clinton's nomination instead later. Neither option was a clear winner on behalf of partisanship, but Garland looked much less bad. Only McConnell's solution allowed the minority of the Senate?being the majority of the Republican caucus?to block Garland. It was a long shot, but it worked. And in the meantime, nobody in the GOP had to be seen to choose. That part you are right about.

          2. I don't agree, Lee.

            I think Garland would have been confirmed, and I think McConnell knew it. There is a considerable history of praise for Garland coming from GOP Senators, and little real reason to oppose him. Not letting it come to a vote was the only way to block it.

            In doing that he probably did protect some members of his caucus from catching flak over their votes, but would have been for voting in favor, not against.

            1. We'll agree to differ then.

              But plainly the majority of the Senate was content with McConnell's tactic. So, although it was not done in the usual fashion, the will of the Senate was that Garland not be confirmed.

              1. That is weak tea indeed. The presumption against your argument is that the majority of the Senate was composed partly of Republicans, who never got a chance to vote their preference as part of a majority, because of McConnell. And as a minority within their caucus, they were losers, because of McConnell.

                That doesn't in any way add up to, ". . . plainly the majority of the Senate was content with McConnell's tactic." Saying it does amounts to trying to win the argument by asserting the controversy you are attempting to win doesn't exist.

                1. Had there been 51 Senators who were uncontent with McConnell they could have voted for a different Majority Leader who had pledged to bring the matter to a vote. Or they could have publicly criticised McConnell. They didn't. If they had been uncontent, they could have done something about it.

                  It is conceivable of course that if there had been some way of bringing Garland to a vote, enough R Senators would have felt under enough presure to vote yes, giving him 51 votes. But why should that hypothetical - R Senators voting under political pressure - be a truer reresentation of Senate opinion than what happenened in fact - R Senators not voting under political pressure ?

                  But in any event, there's no way he would have got the 14 R votes necessary to break a filibuster.

                  1. I don't think "content" is the right term here; The House and Senate rules have evolved in a direction which gives the majority leaders a great deal of power to retaliate against members of the majority to cross them. A majority leader can be quite unpopular and still hold onto his position because the members who don't like him are afraid of the consequences of openly trying to remove him and failing.

                    Congress would be a much different institution if the members had the advantage of a secret ballot. OTOH, that would deny the voters crucial information, so it's not really worth it for most purposes. Maybe for leadership elections, though.

        2. I can't tell if you're stupidly making the suggestion that all nominations must now only occur in odd numbered years. Are you?

          1. No, he's not. In the language of formal logic, what we have here is a "hissy fit." Mr L is often sane (for a lefty) but he has got it into his head that the death of Scalia left the Dems legally and morally entitled to a 5-4 majority (at least) on the Supreme Court. So once that has been put right, by whatever means necessary, we can revert to some rational system of appointing justices that takes into account all the sensible prudential stuff that sensible prudent people would favor. The Rs should certainly not be swamped or cheated of "their" justices. They are entitled to four. But :

            first we have to right the wrong, slay the dragon, banish the evil etc.
            then common sense.

            1. Not legally and morally entitled. Entitled by happenstance, comity, and the tacit understanding that making the Constitution work requires a shared will not to blow it up on purpose. Nor do I suppose that either party is entitled to "their" justices, in any number or proportion whatever. I suppose instead that the nation is entitled to unowned justices. What's your preference, Lee?

              Once again, I would be entirely content if the solution to the problem McConnell (and now Kennedy) created came down to impeaching every justice on the Court and starting over. We could do it with Trump appointees for all I care, so long as there is a large enough super-majority requirement in the Senate to assure neither party gets "their" justices.

              Think it over. Which game do you prefer? The present situation, with all the reverberating, outlandish repercussions it portends, or a re-rack and a fresh break? I want a new game, played with no history of rule breaking hanging over it to be set right, and then contested anew, ad infinitum.

              1. The Constitution is very clear, and it was followed to the letter as regards the vacancy created by Scalia's death. SCOTUS gets a new Justice when the President and the Senate agree on one. There was a period when they didn't agree, and then they did agree and we've got back to 9 Justices. Happenstance has happened. There's nothing to fix. As for comity, the notion that the Senate goes along with the President's pick - that died thirty years ago.

                Justices are never owned, as the Rs found out with Stevens and Souter, and to a lesser extent with O'Connor and Kennedy. I'd be happy with Justices, whoever they're appointed by, who act as judges rather than politicians. Legal text shoud beat policy preference. Unfortunately one side seems to pick Justices who think it's quite right and proper to decide cases on the basis of what they think is good policy. Hence, unfortunately, I'd rather have the Justices appointed by the other team, until the D team changes its legal philosophy. As it happens I'm personally much closer to the D position than the R position on the "hot button" issues of guns, abortion, special rights for the godly and so on. But that certainly doesn't mean I want a Supreme Court with judges who think it's their job to deliver my policy preferences. I want actual judges. I like them to be judgy.

                Yeah, reracking. Can you link me to your post recommending a rerack of the DC court ?

                1. The Constitution is very clear, and it was followed to the letter as regards the vacancy created by Scalia's death.

                  Oh how you wish that were true. The Constitution requires the advice and consent of the Senate, not of the majority caucus of the Senate. McConnell, by control of the majority caucus, prevented Constitutional process for Garland, using a minority of the Senate to do it.

                  Had McConnell at any moment engaged the entire Senate on the question, you would win your point. He didn't do that because a lot of folks?apparently including McConnell?thought he would lose.

                  History will assess McConnell's ploy as a historic abuse of process. It may turn out to be one of the most consequential abuses ever.

                  1. The Constitution requires the advice and consent of the Senate

                    for the appointment to happen. The consent of the Senate is a necessary condition for appointment.

                    But there's nothing in the Constitution that requires the Senate to consent to a nomination, or even to consider one at all. The idea that the Senate has a constitutional duty to hold hearings on, or vote on, a nomination is ludicrous. Aside from there being no constitutional language suggesting anything of the kind, it's been ignoring nominations forever.

              2. I want a new game, played with no history of rule breaking hanging over it to be set right, and then contested anew, ad infinitum.

                Can't you see how stupid that is ? How can you have a new game with no bad feelings and history of rule breaking, when you start your new game with .....a massive breach of the rules of the old game !

                You stop the old game when one side is leading 21 - 7 in the third quarter. All the supporters of that team are ever going to remember is that you cheated them out of their likely win, by stopping the game and starting a new one at 0-0. There's nothing in the old rules about stopping the game and starting a new one. Why would anyone believe for a microsecond that you were going to stick to the new rules ?

                1. Lee sure sounds like he is advocating for court packing!

                  1. Lee sure sounds like he is advocating for court packing!

                    You obviously have a vivid imagination. Or dyslexia.

                    Maybe you're one of those hypersensitive folk who can hear a racist dog whistle in "I'll have a blueberry muffin please."

                2. Why would anyone believe for a microsecond that you were going to stick to the new rules ?

                  Because with few exceptions, folks in both parties would recognize the new rules as better for them, and for the nation, than what is happening now. Nobody can win a tit-for-tat race to the bottom. It's another one of those games where the only way to win is not to play.

                  You comment as if you imagine the Ds can't play the McConnell game as avidly as the Rs. Do you understand that if things proceed along the course now charted, whenever the Ds get control of the Senate under an R President, they are likely to McConnell him out of every judicial appointment that comes his way? No advice, and especially no consent, for the guy from the other party. And of course the Rs will do the same. Does that sound to you like a Constitutional scheme which can work, let alone like the one the founders intended?

                3. Lee, the nation had a system for picking judges which was like the family car. It worked tolerably. To keep it from being a menace, there were rules the drivers had to follow by law. In addition, the drivers also needed to apply practical skills that weren't specifically required legally, but that were indispensable for staying out of trouble.

                  For whatever reason, the nations' operators?never mind which ones?cut corners on the rules, and like so many drunks, flagrantly misapplied the skills. They totaled the car. It's wrecked beyond repair. Now we need a new one.

                  That's all there is to it. Except for this. We know we're going to have to give the new car to the same pack of drunks. So it has to be better designed than the old one was, and much less reliant on mere skills, which experience has taught us we can't rely upon.

                  1. I'm certainly not against changing the rules, in the form permitted for rule changing - a Constitutional amendment. My wish list would include :

                    1. Textualism established as the only permissible interpretative scheme
                    2. Term limits for judges
                    3. A requirement to bring a nomination to a vote, on a simple majority vote in the Senate, within 180 days
                    4. Removal of any appointee (executive or judicial) for any reason (ie including purely political) by a three fifths majority of either the Senate or the States

                    1. Sounds good to me.

                      The only problem I see is that there is a basic conflict of interest built into the Constitution, in regards to selecting judges: Federal officers pick the judges who decide whether the actions of federal officers are permissible.

                      The fight between the parties is a second order problem compared to that. This conflict is why the Supreme court has agreed to allow vast expansions of federal power over the last 80-90 years.

                      The only way to fix that conflict is to move at least part of the selection process out of the federal government, to the state level. I'd propose that the Senate be deprived of its power of advice and consent over at least Supreme court nominations, in favor of a body made up of all the states' governors. That would guarantee that the interest of the states in preserving the balance of power would be taken into account.

                    2. I agree. The States need a role.

                      I'd be happy to leave things to the Senate to confirm so long as the States had a workable mechanism to remove federal appointees. Briskly. But original confirmation by the States would be fine too (in addition to the power to remove.)

                      Which probably means we need to have :

                      5. Anyone removed from office by Senate or States can't be reappointed to the same, or any other, federal office (or employed by the Federal government at all) for 10 years.

                    3. I'd go for term limits and a requirement for a vote within a certain number of days. Not sure how enforce that, but I guess you could say that after 180 days any Senator can demand a vote and no business can be done until it happens.

                      A supermajority requirement, maybe 60% for confirming SCOTUS picks might not be the worst idea.

                      I don't think letting the Senate or the states remove a judge with a 3/5 vote makes sense. Judges can't be afraid to make unpopular decisions.

                      Nor do I think much of giving the governors or state legislatures a voice. They have plenty in the Senate. (Yeah, I know. 17th Amendment, etc.. That's nonsense.)

                    4. Just enforce it by swearing in the nominee on day 181.

                    5. Just enforce it by swearing in the nominee on day 181.

                      That simply encourages parliamentary games to delay the vote by the Senators who want the nominee appointed. A simple solution is for such Senators as wish to consent to the nomination to swear to this before the Chief Justice.

                    6. bernard : I don't think letting the Senate or the states remove a judge with a 3/5 vote makes sense. Judges can't be afraid to make unpopular decisions.

                      But they should be afraid to make arbitrary ones. So what to do ? Accountability is the cure for the corruption of power. But 3/5 gives a modicum of protection from the mob.

                      I didn't understand your 17th Amendment comment. I don't think there's any dispute that Senators (and Representatives) are elected by the people of the States. But the benefit of allowing the States a direct role is that it ceases to be a purely DC game played by insiders. We still need the mob. We'll just require 3/5 of it to become enraged before the tumbrils get wheeled out.

                    7. But the benefit of allowing the States a direct role is that it ceases to be a purely DC game played by insiders. We still need the mob. We'll just require 3/5 of it to become enraged before the tumbrils get wheeled out.

                      But 3/5 of the states is very far from 3/5 of the population. Once again, state borders are not magic lines on the ground. They are mostly pretty arbitrary.

                      Supreme Court decisions have national impact. You can't let a small minority of the population - no matter how many states they live in - remove Justices because of decisions they don't like.

                    8. 1. No textualism. It can't even be defined, let alone practiced. Also, lawyers and judges are incompetent to discern accurately the meanings of 200-year old texts. They will continue in that ignorance. Given that, textualism becomes a scam for bypassing disfavored precedents, without offering any compensating advantage. There isn't any genuine constraint being applied.

                      4. No voting by state, in either guise. Reliance upon either the Senate or the States without involving the House puts the question of removal in play, but makes a travesty of the supposed super-majority requirement. The thirty least populous states together number less than 25% of the national population. If you then further pare that influence to account for how few people actually vote, you could see a Supreme Court tenure question decided by less than 10% of voting age Americans, or by the officials their likely single-digit voting bloc elected?and elected at a time when the tenure question might not even have been on the horizon. That's madness.

                    9. No textualism. It can't even be defined, let alone practiced. Also, lawyers and judges are incompetent to discern accurately the meanings of 200-year old texts.

                      Textualism is the standard method of interprtaing statutes, understood by every judge in the system. And it's far more tightly defined, and open to public review and so constraining, than any other scheme. Even living constitutionalists know how to do it, when they don't need to search for inspiration to arrive at a result that the text disfavors. Nor do I insist on originalism. Textualism will do. Judges can choose the original meaning or the current meaning if they are uncomfortable with the former.

                      No voting by state, in either guise. Reliance upon either the Senate or the States without involving the House puts the question of removal in play, but makes a travesty of the supposed super-majority requirement. The thirty least populous states together number less than 25% of the national population.

                      You are aware that the House currently has no role in confirmation. ? And that it only takes the Senators from the least populous 26 States to block a nomination ? I thought I should ask.

                    10. it only takes the Senators from the least populous 26 States to block a nomination ?

                      No reason to make a bad situation worse, plus there is a huge difference between defeating a nomination, which is political, and removing a judge because some people don't like his decisions.

                    11. re textualism and its alternatives, I happened upon quite a good speech by one the the current SCOTUS candidates. Astonishingly he supports my opinion that textualism is considerably more constraining to a jusge than alternative intepretive schemes :


                      The law governing statutory interpretation, especially, has changed significantly since the time I was here as a student. That was the tail end of the era when lawyers would resort to the statutory text only if the legislative history was ambiguous. What brought that era to an end, of course, was the jurisprudence of Justice Antonin Scalia. Now, as Justice Kagan recently declared, "we are all textualists."


                      There is nothing so liberating for a judge as the discovery of an ambiguity. For once a judge discovers an ambiguity, it is 1978 again. The statutory text approved by Congress and (usually) signed by the President becomes an afterthought. In its place, legislative history?in practice written and approved only by staff?plays a dominant role. So too does the idea of statutory purpose?which judges sometimes try to extract from legislative history, but just as often seem to construct themselves.

                    12. Ambiguities are liberating because these materials are easier to manipulate than is a fixed statutory text. Legislative history is easy to manipulate in part because there is so much of it: committee reports, colloquies between senators or house members, hearing transcripts,
                      earlier drafts of the legislation that later became law. These materials inevitably include all sorts of values and principles not included in the statutory text; and choosing among those values, as Judge Harold Leventhal famously observed, is like "looking over a crowd and picking out your friends." Yet, as Justice Kagan once said in a different context, there is a deeper pathology at work here.The purpose of legislative history is often not to explain the statutory text, but to advocate?to convince the courts, or perhaps to allow them, to read into the text certain values that lacked the votes to be included there.

      3. Somin has a habit of linking to things that actually refute whatever argument he's trying to use them to claim.

        I'm still not sure if he doesn't actually read the articles and papers he links to, or if he just thinks he can lie about them and get away with it.

      4. Indeed. The 'Biden Rule' wans tablet midterm elections. As if we can only nominate new justices in odd number years. It's just more de ocrat hypocrisy. And something they would never adhere to themselves were the situation reversed.

  15. It would be interesting to require the Senate to maintain a reserve list (to do list, waiting list, call it what you will) of pre-approved judicial candidates, either overall or per type of court or per district; whenever an appropriate vacancy opens up, randomly fill it from the top five on the list. And if the list has fewer than five spots, fill the vacancy strictly be seniority.

    That would take soooo much politics out of it.

  16. A problem with Somin's sermon on comity, norms, and gritting your teeth for decades, is that life under a deliberately partisan Court isn't contained within the norms. Seeing that created deliberately, and just deciding to live with it, is itself a dereliction of political duty.

    Obviously, nothing can be done about it unless and until Republicans lose power. But what should happen then? How do you fix it without triggering all the very real bad consequences Somin discusses?

    I can't suggest specifics. A general outline might encompass a political re-balancing of the Court by whatever means are required?but during which conspicuous care was taken not to try to seize a partisan counter-advantage?combined with a Constitutional amendment stipulating a super majority in the Senate for future appointments, plus an automatic seat for any nominee who didn't get a full Senate vote within a reasonable time frame. Maybe throw in something about vacancy timing and elections.

    Now that comity has broken down completely, in favor of a lunge for power, it's apparent that the Constitutional machinery governing the appointment process is wrecked. It will have to be changed.

    1. Kennedy is being replaced by a Republican. No change in partisan balance.

      At one point every justice was appointed by FDR or Truman. Somehow the republic survived.

      1. Yep. Fuck the democrats. If they could have every justice another Notorious RBG they would do it without hesitation or consideration. But the republicans are supposed to accommodate them?

        Hell no. Trump and the congressional republicans should take every legal opportunity to strip America of any and all democrat influence.


    2. I tend to agree with you. There's clearly something broken with the current system. I don't think the Supreme Court was originally intended to be such a politically important entity that unilaterally determined every prominent political issue of the day. Winner of a presidential election? - Supreme Court decides. Campaign finance? - Supreme Court decides. Abortion? -- Supreme Court decides. Affirmative action? -- Supreme Court decides. Gay marriage? -- Supreme Court decides. Legalization of drugs? -- Supreme Court decides. Gun rights? -- Supreme Court decides.

      We've gotten to the point where the politics are so fierce and bitter with Supreme Court appointments because everyone knows that these group of 9 people get to sit as kings over the rest of us. It's boggles the mind to think that at one point in time, the people in this country decided they needed to pass a constitutional amendment to prohibit slavery. Do you have any doubt in your mind that the Court's current jurisprudence would allow slavery in the absence of the 13th Amendment? Over the years the Court has decided to take a much more active role in deciding the issues of the day, taking the power out of the hands of voters and placing that power in themselves. So, of course, the Court is now a political firebomb.

      1. You can blame all of that on a democrat party now controlled wholly by inveterate Marxist radicals.

        1. A problem with that general line of criticism is that you are addressing it to two audiences, and you ought to consider the reactions of both.

          One audience is composed of a bunch of folks like you, who have no notion what a Marxist radical is, but think it sounds bad, and like it for that reason. So you get the approval of folks who don't know what you are talking about.

          The other audience consists of folks who do know what a Marxist radical is, and for that reason conclude you are at best ignorant, and maybe out of your mind. So you get the disapproval of the folks who do know what you are talking about.

          Neither result is good for you. You ought to choose some other kind of invective.

          1. I'd say there are three audiences. Marxist radicals themselves, who are deluded enough to think that Marxism is a good idea despite the gulags and pyramids of skulls. People who aren't very familiar with Marxist radicals, and so generally think it sounds bad. And people who ARE familiar with Marxist radicals, who understand that it's worse than it sounds.

            1. Marxist radicals are not really a problem unless and until they get into power. When they're out of power they spout nutty stuff, reminding you that they're psychopaths at heart, but they don't actually do much harm. Some of them may even have dogs and may appear to be fuzzy harmless folk.

              When they get into power, in any particular place, they murder lots of people - but fewer than they would murder if they hadn't already starved a large proportion of the population to death by collectivising agriculture.

              Nazis are much the same. Nutty, smelly, might keep dogs. But you really only get the piles of skulls when they get into power. But they're not exactly the same as Marxists. They get straight into the murdering, and don't stop to starve people to death first.

            2. Who cares about audiences?

              Does it occur to you that the statement itself is deranged?

  17. If the Congress and President didn't abdicate their responsibility to decide Constitutional matters on their own, the size of the Supreme Court wouldn't matter.

  18. Norm rot is an irreversible process. I expect someday to see the ultimate in court packing, when one party or the other gets a sufficient congressional majority and the rot has progressed far enough that they dare to impeach some of the other side's appointees to make room for their own.

  19. " past Democratic misdeeds in the judicial nomination process (including refusal to hold hearings for a number of prominent GOP circuit court nominees), "

    Ilya, that link only talks about Democrats refusing to hold a vote *after the nominee got a hearing.*

    1. Yeah, it's CNN. Estrada got a hearing. Sixteen months after his nomination. Then he got filibustered.

  20. While court-packing does not violate the Constitution, the norm against it has held for almost 150 years now,

    How long did the norms regarding filibusters and blue slips hold?

    Arguing against lawful use of lawful power -- with strong authority and ample precedent underlying that use -- is a loser in this context, Prof. Somin, for several reasons.

    My advice to conservatives and Republicans -- you are neither, but you have chosen to align with them, so perhaps you could convey this to them -- is to avoid a Democratic Congress coupled with a Democratic president.

    My advice to our liberal-libertarian mainstream is to arrange the Democratic combo platter, then diminish the influence of right-wing preferences at the Court.

    (Did you factor in the prospect, when arguing whether conservatives or liberals should support Court enlargement, that America's foreseeable electoral demographics seem to disfavor conservatives and Republicans? At the moment, the best things right-wingers have going for them in that context are our system's structural amplification of rural votes, gerrymandering, and voter suppression, and I sense those three elements are likely to be inadequate seawall against the building tide of an improving electorate.)

    1. "How long did the norms regarding filibusters and blue slips hold?"

      Which version of the filibuster? The version where they actually had to hold the Senate floor and stop all Senate business? that one lasted for around 170 years give or take a decade. Or the modern pseudo filibuster where they block one action proceduraly? That one has only been around since 1970, so it only lasted around 40 years.

      Blue slips:

      Blue Slips have been around since 1917. However, prior to 1956, Blue slips did not block a full floor vote on a nomination, though the committee would report blue slips to the full Senate.

      Blue slips as a complete block to committee action and therefore a floor vote on a nominee only lasted 22 years from 1956-1978, and came back for just three years from 2001 to 2003.

      The current rule in place since 2003:

      A return of a negative blue slip by one or both home-state Senators does not prevent the committee from moving forward with the nomination ? provided that the Administration has engaged in pre-nomination consultation with both of the home-state Senators.

    2. We are, eventually, going to end up dealing with Socialists and Fascists (like our friend Arty) in the only way it can successfully be done, by killing huge numbers of them.
      It is a shame that it always comes to this. But evenually they always end up using the power of the state to make others do as they direct. In the process, they destroy properity, decimate individual freedoms, and for those at the top, accumulate stolen wealth.
      I hope that we are able to stave off the day when we have a real civil war (rather than a war of succession) for a long time. That said, the current behaviour of the temporarily frustrated socialists leads me to believe it will be sooner than I had hoped.

      1. The Conspirators like to keep the partisanship a shade more temperate than 'let's kill all the liberals," MJB.

        The proprietor probably won't ban you, but he recognizes that such bare-knuckled polemics are -- like overt, rather than carefully cloaked, bigotry -- counterproductive and wishes you would stop talking about killing everyone who isn't a fellow movement conservative.

        Why should lefties be frustrated? America's liberal-libertarian alliance has been shoving progress down right-wingers' throats for the entirety of our lifetimes, to a point at which many conservatives just mutter bitterly about how they can't stand all of this damned tolerance, education, reason, science, and modernity.

        Now practice opening wider, MJB, in case your betters decide to start pushing that progress -- against your wishes and efforts -- sideways.

        1. Arty, I can see a time in the near future where you amd your fellow travelers overplay your hand and you end up with them in a large pile of proggie corpses. After some kind of violent leftist riot.

          1. proggie corpses

            You seem nice.

        2. Shoving anything down someone's throat will eventually fill it up and it erupts, violently.
          The majority of commenters, on this site, who are true libertarians, unlike you, hope that you will be one of the first to be splattered with the eruption.

          1. Who is a true libertarian at this site, goober?

            Keep talking. It's easier to shove progress down your throat when your mouth is already open.

      2. MJBinAL, you make a good point. Given recent events, the progs are getting closer to going off the rails and forcing a potential series of increasingly violent confrontations. It astounds me that they believe any such physical confrontations could end any other way then badly wounded and dead leftists. As their side are anti gun and largely unable to fight. Unless their are six of them and their victim is all alone and a small older woman.

      3. I dunno that it will go that far, but in a country with 400 million privately owned firearms, I don't think I'd like to be one of the new six anti-2A SCOTUS justices appointed by President Kamala Harris in 2024. It seems like a short career path.

        1. Losers like you are all talk -- mostly bitter muttering, with the occasional 'one of these days I'm going to stop taking it, and then you'll all be sorry . . .' -- which is one of the reasons your betters have been shoving progress down your throat for as long as we have been alive.

      4. "We are, eventually, going to end up dealing with Socialists and Fascists (like our friend Arty) in the only way it can successfully be done, by killing huge numbers of them."

        Sadly, that's probably true. They can't really be reasoned with, and we were foolish enough to let them take over the academy, so they've got enough of a power base to leverage into becoming dangerous. Unfortunately, the only way you can peacefully coexist with the socialist left is if they don't have enough power to do anything but rave.

        1. This is one of the times when you should recognize, Brett, that your acknowledged problems with processing social interactions make it worthwhile for you to avoid comment.

  21. Add enough people and eventually the Court will become a plebiscite of every American Citizen. Democracy triumphs again!

  22. Voize of Reazon, your choice of language enrolls you in the pro-norm-rot party. If appointees are in fact, "the other side's appointees," then impeachment is what they deserve. Not because they are "the other side's," but because the job description is "nobody's side."

    On that basis, I put up a comment a little while ago suggesting that every Justice who, while sitting, has participated in partisan-sponsored outside events, ought to be impeached. I'm not sure what the tally would be, but it wouldn't surprise me to discover it was all of them. I would be fine with that. I would then go farther, and suggest that every nominee who comes with the backing of a partisan think tank ought to be dropped from consideration.

    That's the way norm rot goes. It gets so customary, so familiar, that the fact that it's customary becomes a defense. That has happened already. It requires a shock to turn it around. I call for mass impeachments in part because they would be sufficiently shocking.

    1. I've been calling for mass imoeadhments of federal judges for some time.

      1. 'Impeachments'

  23. Packing is a great idea. The Dems now, then the Repubs. Then the Dems, etc until the court has more judges than the legislature has members.
    Then the SC takes over in reality instead of under cover, and does away with the legislature.
    Peace in our time.

  24. "Ilya Somin is" an incompetent "Professor of Law at George Mason University"

    "Like most liberals, I hated the Supreme Court's recent travel ban decision." even though it was a slam dunk based on the law. The entire basis of the court cases against it was essentially "Trump says mean stuff". Not a sound basis for ignoring the law.

    George Mason University is apparently not what it used to be.

    1. I was going to observe that Prof. Somin is not a liberal, but from the perspective of a right-wing bigot with an Alabama education he probably is a liberal.

      1. Finally. We know where you grew up. Now halfway through the movie you will have to head back to Alabama, run into some friends, and realize it is you who are the ignorant bigot. Then at the end everyone is happy.

      2. And, Arty the bigot, although Alabama has some excellent educational institutions. I my self, have been educated at the college level in Ohio, Michigan, Alabama and South Carolina. I will not that the educational quality in Alabama and South Carolina was generally better.

        And Arty, reading is important to education and learning. You will note that I did not say that Prof. Somin was a liberal, rather I quoted his comment that said he hated the court decision like most liberals.

        My critic, was on the substance of the matter. The SC decision was never in doubt since the authority Trump was using has been well established in several court cases under several presidents.
        The entire basis of the challenge truly was over general comments made during the election campaign that was alleged to reflect bias, therefore the policy must be biased. In addition to the authority being well established, the policy clearly did not universally apply to muslims. In fact, only a small portion of nations being majority muslim were included, and it included restrictions of some non-muslim nations as well.

        The authority was well established, and the policy was clearly not directed at muslims as a group but rather at specific nations. The entire basis of the challenge truly was "Trump says mean things". That may well be true, but it was never a legitimate legal challenge to the policy except in the 9th district.

        1. I apologize for the typographical errors in my comment above. I wish there was an abilty to edit these comments so that I could correct them.

        2. You are correct -- you were quoting Prof. Somin somewhat misleading statement rather than paraphrasing in a manner that described him as a liberal. Prof. Somin is not a liberal and I doubt he would call himself a liberal. He appears to be a libertarian who associates mainly with conservatives.

          Do you consider Prof. Somin to be a liberal?

        3. You flunked out three times?

  25. Bull Cow, you agree with them on ALL points, not "some" points. You are a one-world government globalist commie.

    1. Hello again, Right-Wing Mini-Me.

      Does Prof. Volokh compensate you for your contributions to this blog, or are you a volunteer?

  26. I would like to see a constitutional amendment that sets a fixed size of nine seats on the Supreme Court -- and, ideally, also prohibits any one president from filling more than three of them, except temporarily (like the recess-appointment power that now exists for cabinet seats).

    As far as the special rights that deserve protection from a conservative majority, I can think of one much more important than either Roe v. Wade or Obergefell, and that is Lawrence v. Texas, which did away with sodomy laws. It's probably a good idea to introduce amendments that specifically protect all three (if you want them), thus ending the present reliance on each current Court's willingness to read the Tenth Amendment as creating rights that do not expressly exist in the text of the Constitution.

    1. Technically, rather than invoke the 10th amendment, they shoehorned it into the 14th. Good old substantive due process.

      1. 14th via a mix of 3rd, 4th, and 9th as I recall.

    2. I'd concur with a constitutional amendment for a fixed number of justices. I have read interesting articles on why the number should be more than 9, but that should be structural to our Constitution, and agreed to by the requisite super-majority, rather than dropped in on a momentary majority.

      And on that thread, it would also be better to resolve the whole Roe vs Wade via amendment. Personally, I'd argue for an amendment defining what the transition from not human to human is (and I'd argue it is likely far earlier in the growth process than I suspect you might) but any judicial decision on that is going to generate far more heat than light.

  27. Our government is out of control, and immolating as we speak. Court-packing for good is a great idea, while when done for evil intent, it is bad. The ends justify the means. Always. If the good people do not rise up against the bad, and use every dirty trick, guile, and cheat against evil, then they will lose - just as they are losing now. The justice system in the US is a farce - particularly as to everyday people. It wont be worse for the most of us if the "court packing" plan goes forward. I'd also encourage term limits, and forced retirement for ALL judges at say 65 - all the way down to the trial court level. These lifetime positions need to end, and the judiciary needs to move along with society.

  28. I agree with Volokh about the dangers of court packing, and about the alleged justifications for it. I disagree on only one point: the attempt to distinguish Roe v. Wade from Obergefell v. Hodges.

    It's true that the right (or "right") to an abortion is much more controversial than the right of same-sex partners to marry. So in that respect, it is less likely that a conservative majority would want to overrule Obergefell than Roe. Roe packs a big emotional impact: "OMG they're killing babies!" while Obergefell only concerns marriage, which is a big deal to a relatively small part of the Religious Right but the vast majority of the population have concluded "Eh, who cares?"

    But the logic underlying Obergefell is almost identical to that underlying Roe (and also Griswold v. Connecticut), namely that the 14th Amendment's privileges and immunities clause. Obergefell adds the "Due process" and "Equal Protection" clauses, but all three (and also Loving v. Virginia, Zablocki v. Redhail and Turner v. Safley) would be endangered by the logic of a court that decided to overturn Roe.

    1. Loving was decided on equal protection grounds.

  29. Ayn Rand was right in what she said about the Libertarians being the drug-crazed, hippie party. If only she were with us today.

    1. What, another immigrant who probably overstayed her visa?

  30. "Ice cream Mandrake. Children's ice cream."

  31. The demoncraps packing the court would be disastrous for the country for a similar reason that Republicans packing it would be a boon.
    One side wants the Constitution jettisoned, leaving the country run by whatever the feelz of the majority of the SC decide is their current desire.
    The other wants an SC that goes by what the Founders intended for the nation, that worked pretty well, until that other side got to weaken its provisions.
    A court packed by demoncraps would mean the end of America, as the Constitutional republic it was intended to be. One packed by Republicans would bring it back to what was intended. Only anti-Americans could want the former.

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