Supreme Court

"Court Balancing" is Just Court-Packing by Another Name

A new proposal to give Democrats additional Supreme Court appointments by temporarily increasing the size of the Supreme Court would cause much the same problems as conventional court-packing would.


The Supreme Court.

The retirement of Justice Anthony Kennedy and his likely replacement by a more conservative justice has stimulated liberal interest in the once-taboo strategy of "court-packing"—increasing the the size of the Supreme Court in order to get more ideologically favorable justices. If the Democrats can win the presidency and both houses of Congress in 2020, they can potentially increase the size of the Supreme Court from nine justices to eleven or more, and then use the new appointees to transform a 5-4 conservative majority into a 6-5 liberal one (or perhaps an even bigger one).

Ironically, the recent revival of interest in court-packing was first triggered by prominent conservative law professor Steven Calabresi's proposal for the GOP to pack the lower federal courts, last year, in a paper coauthored with Shams Hirji (I criticized the Calabresi-Hirji proposal here). Since Kennedy's retirement, however, the idea has, for understandable reasons, become popular in many quarters on the left.

But court-packing has serious dangers—particularly the risk that it would trigger a cycle of counter-packing in which both parties seize the opportunity to pack the Court whenever they simultaneously control the White House and both houses of Congress. The end result is likely to be the undermining of judicial review as an effective check on government power.

To avoid this danger, Yale law professors Ian Ayres and John Fabian Witt, in a Washington Post op ed, propose a strategy they believe will allow liberals to offset the impact of the Gorsuch and Kavanaugh appointments, without triggering a court-packing cycle. They call it "court balancing." While the idea is clever and interesting, it ultimately seems little more than court-packing under another name. If implemented, it is likely to create much the same dangers. Here's their description of the proposal:

The Democrats' court-balancing proposal for 2020 should commit the party to expanding the size of the Supreme Court by appointing two new federal judges who, by statute, would be designated to sit on the court for 18 years; thereafter, the constitutionally required life tenure would be served in lower federal courts. If Democrats took control of Congress and the presidency in 2020, the new administration would effectively have two Supreme Court slots to fill immediately. The party should commit to nominate one liberal (say, the liberal analog of Justice Neil M. Gorsuch) and to fill the other spot by renominating the liberal-centrist Garland himself.

The balancing plan would be a temporary intervention tailored to rectify the Senate's prior dereliction in the Garland nomination. It would not radically expand the Supreme Court, but it would place Garland, for a limited time, in the likely swing vote position he would have occupied had Senate Republicans permitted a confirmation vote in 2016. After 18 years, the statutory designation of these two judges to hear Supreme Court cases would end and the court would revert to nine justices.

By proposing the court balancing specifically to address the Garland travesty, Democrats would have a principled reason, subject to the American electorate's approval, for altering the size of the court.

The main difference between this plan and more conventional court-packing is that the new justices would only be allowed to serve for 18 years, as opposed to for life. But, of course, the Republicans could retaliate in much the same way: the next time they get control of the White House and Congress simultaneously, they could appoint their own new 18-year justices to offset those appointed by the Democrats. The Democrats, in turn, would retaliate for the Republican move. And so on.

While an 18-year term is a lot less than life tenure, it is more than enough to enable the new justices to decisively alter jurisprudence in the direction desired by the party that appoints them - and more than enough to help insulate dubious elements of that party's agenda from effective judicial review. Far from saving decisions such as Roe v. Wade (one of the main objectives of liberal court-packing plans), this strategy is likely to help gut them, by ensuring that they and other controversial liberal precedents limiting government power will be overturned whenever the GOP next controls both Congress and the White House.

Ayres and Witt argue that their "court-balancing" plan would not set a dangerous precedent because it would merely be "a temporary intervention tailored to rectify the Senate's prior dereliction in the Garland nomination" (referring to the GOP-controlled Senate's refusal to vote on Barack Obama's nomination of Merrick Garland in 2016). This, of course, is the same rationale used to justify more conventional recent Democratic court-packing proposals. Calling it "court balancing" rather than "court-packing" does not make the argument any stronger.

In my view, court-packing would be a dangerous escalation that goes beyond either what the Republicans did in 2016, or the various other nasty delaying tactics that both parties have increasingly used to try to stall judicial nominations they oppose over the last several decades (including Democrats blocking several high-profile GOP appellate nominations by using tactics similar to those the Republicans used against Garland). Ayres and Witt likely disagree.

But, for present purposes, it doesn't really matter what I think, or what Ayres and Witt think. What matters is how the "court-balancing" plan will be perceived by Republicans. If they agree that it is merely a one-time "temporary intervention" justified by the GOP's actions against Garland, then the Ayres-Witt ploy will work. But if they see it as a major escalation in the judicial nomination wars, then they will almost certainly retaliate in kind as soon as they get the chance.

I think it's pretty obvious that the overwhelming majority of Republicans (as well as many independents) are likely to take the the latter view. They won't be mollified by the supposed distinction between "court balancing" and "court-packing," in part because they really aren't all that different, and in part because they don't believe that blocking Garland was wrong in the first place. At best, the GOP might limit its retaliation to appointing two new 18-year justices of their own, as opposed to life-tenured ones. At worst, they could choose to escalate further, such as by appointing justices to longer terms, or by appointing a larger number of new justices than the Democrats added.

There are other possible objections to the Ayres-Witt plan. For example, it is not at all clear that appointing Supreme Court justices to 18 year terms is constitutional (a point the authors acknowledge). At the very least, such a move would be challenged in court, and the conservative majority in the Supreme Court might not be favorably disposed to upholding a measure that would dilute their own voting power. But the main problem with the plan is simply that it carries virtually the same risks as conventional court-packing. Indeed, it is a form of court-packing, in so far as its purpose is to change the ideological composition of the Court by increasing the number of justices.

There is one way to increase the number of justices without triggering a cycle of court-packing and counter-packing. It would be to combine an increase with a constitutional amendment fixing the number of justices on into the future. For example, the size of the Court could be increased to eleven, and then permanently fixed at that number. Alternatively, the Ayres-Witt plan could be combined with a proposal to permanently fix the membership of the court at nine after the two temporary justices' 18-year terms have expired. But any such amendment would require broad bipartisan support to pass. And that support will not be forthcoming if the amendment is packaged with a measure that would give the then-dominant party an obvious advantage in the form of two new justices they get to appoint at will.

I myself would be happy to see an amendment permanently fixing the size of the Supreme Court, thereby precluding future court-packing. I think it might well be worth the price of accepting two ideologically distasteful justices as part of the bargain. But committed partisan Republicans are unlikely to agree, and they will almost certainly have more than enough clout to bar any such amendment.

The same goes for Ayres and Witt's proposal to impose 18-year term limits on all future justices (an idea already supported by many other legal scholars). I would be happy to to see something like it enacted. But it has no chance of passing if combined with a partisan court-packing measure.

In sum, there is no magic bullet that will enable either Democrats or Republicans to stealthily pack the Supreme Court without risking retaliation in kind. The same goes for proposals to pack the lower courts, such as the Calabresi-Hirji plan. Hopefully, even in this age of dangerous polarization and partisan bias, cooler heads in both parties will see that.

UPDATE: For those interested, in this 2016 post, I summarized the history of Democratic senators refusing to hold votes on prominent GOP lower-court nominees and stating that they would act to block a Supreme Court nominee in the last year of a Republican president's term. This history does not, in and of itself prove that the Republicans acted properly in blocking Garland. But it does indicate that there was no established reciprocal norm under which judicial nominees were entitled to an up or down vote within a reasonable period of time. If the Democrats had already deviated from that ideal with regard to lower court nominees and indicated they would do so in the case of the Supreme Court, should the opportunity arise, Republicans had good reason to believe that stonewalling Garland was just part of the "new normal" that had been established over the previous two decades of judicial nomination battles.

NEXT: The best idea yet for derailing Judge Kavanaugh's nomination

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  1. Why wasn’t Obama’s selection of Sotomayer and Kagan “packing the court”? What’s the difference between Obama getting two picks and Trump getting two picks? Depends on whose ox is getting gored.

    1. It’s different because shut up.
      Also: “what about Obama” is not a fair way to argue.

      1. Unlike “But Bush…” , no doubt.

    2. Because, according to the norms of nominations to the Supreme Court, Obama should have had two picks and Trump one.

      And as picks go Garland was a pretty fair offer, moderate and already in his 60s.

      I think norms are essential, and if the Democrats retake the senate I’m perfectly happy with them keeping Trump 1 justice down for the rest of his term. I’m glad for them to take the high road, but they can’t let the GOP keep getting away with abusing the mechanics of government.

      1. typo: Obama should have had THREE picks.

        1. The idea being that the hearings should have taken place while Hillary and Donna Brazile were robbing Bernie; and, the vote should have been held between the two party conventions.

        2. He did have three picks. Two got confirmed, one didn’t.

          There’s no “norm” that the President’s SCOTUS pick is deferred to by the Senate – far from it. Ask Reagan. Ask Nixon. And if you want a pretty direct parallel to the Garland thing, you can go and look at President Fillmore’s nomination of Edward Bradford.

          1. Yeah, I think Garland was qualified and an entirely fair compromise pick. I also think he would have been rejected in an up or down vote and fail to see a meaningful distinction between not bringing a vote to the floor when it won’t be confirmed and rejecting a nomination.

      2. “Because, according to the norms of nominations to the Supreme Court, Obama should have had two picks and Trump one.”

        Reid killed that norm when he nuked the filibuster. With an intact filibuster, the Garland gambit wouldn’t have been feasible, because the Dems could have effectively retaliated.

        1. Because McConnell would definitely have respected the filibuster, being a real honorable guy and all that.

          Sure, TIP.

          1. Well, it was respected. Until it wasn’t.

        2. Do you even remember that McConnell was the one that killed the filibuster for SC nominees? The GOP’s respect for norms is so non-existent that it barely even registered.

          And as for the non-SC judicial filibuster, it’s now Reid’s fault that McConnell decided that the President and majority party in the Senate should never get to nominate another judge?

          I’m tired of this false equivalency BS. The GOP spent 8 years making a mockery of your country and democratic practice, and they’ve continued the practice with their attempted ACA repeal and Donor kickba^H^H^H tax cut that revealed the absurd insincerity of their anti-deficit rhetoric.

          It’s no wonder the party elected a tabloid punchline as President.

          1. Yes, it’s Reid’s fault. Reid effectively nuked the filibuster for all judges. Everybody knew this at the time.

          2. Do you even remember Democratic leaders saying in October of 2016 that THEY were going to nuke the filibuster after the election? Back when they thought they were going to win it all in November, of course.

            This “How dare you do to me what I said I was going to do to you!” business gets tired fast. Especially the part where we’re supposed to just forget your side said they were going to do it. Don’t you get tired of demanding that your foes suffer from amnesia?

            Here’s my proposal: Assuming that Republicans retain Congress, (Their options are pretty reduced otherwise.) they should introduce a constitutional amendment to lock in the size of the Supreme court at 9 members. And clearly state that the failure of Democrats to support it would be taken as proof of intent to pack the Court, and be met with preemptive Court packing.

            Call it the “locking in the norms” amendment.

            In fact, why stop at an amendment locking in the Supreme court size? Compile a whole list of amendments constitutionalizing various norms. Call it “the Bill of Norms”.

            And every bit of it should be proposed on the same terms: “Help us put this norm in the Constitution, or we will violate it first. Decide fast.”

            1. Of course I remember Reid nuking the filibuster for non-SC nominations, everyone remembers that because the Democrats have a reputation for respecting norms so changing a norm was big news.

              Reid did suggest that the SC filibuster could also go but that seems to have at least partially been in response to some GOP Senators claiming they’d never confirm a Clinton justice.

              And that was just a suggestion at that point, if it actually came to pass I think it would be pretty big news.

              In fact, why stop at an amendment locking in the Supreme court size? Compile a whole list of amendments constitutionalizing various norms. Call it “the Bill of Norms”.

              Why not just call it responsible governance and actually demand GOP legislators do their jobs with some integrity.

              Do you remember all the predictions of utter catastrophe if the ACA was passed? Why wasn’t anyone held to task when their ridiculous claims didn’t come to pass?

              Do you remember the Tax Cut they just passed? How it was barely even debated and only qualified under reconciliation due to increase on personal taxes near the end of the 10-year window? (Does anyone really expect that increase to pass?)

              Anyone who voted yes on such a bill can’t be trusted to be in government.

              1. “Why wasn’t anyone held to task when their ridiculous claims didn’t come to pass?”

                Because year after year after year, Obama delayed implementation of key aspects of the ACA past the statutory dates, because he didn’t want the damage to come on the Democrats’ watch. And there actually WERE amendments to fix some of the worst of it, maybe you forgot that?

                A lot of the predictions have come to pass, people lost their policies, ended up part time employees because their employers didn’t want to pay for mandatory benefits, things like that.

                1. The claims weren’t “a few people will lose their current policies, some mid-sized organizations will shift employees to part-time, and a few bigger issues will arise unless certain aspects are delayed”.

                  People were constantly predicting death spirals and the destruction of the individual health care market.

                  And I’m not sure what amendments you’re referring to. The GOP went out of its way NOT to fix defects in the bill in the hopes that it would fail. Don’t you remember the whole deal with the stabilization payments? They were clearly intended to be paid and the stabilization payments actually saved the government money, but the appropriation wasn’t done clearly in the bill so it was debatable if they could legally be paid.

                  It’s an easy fix to make, just appropriate the money and you stabilize the market AND save the taxpayer money. But the GOP didn’t do it, why? Because the US taxpayer is an acceptable casualty in their war to destroy Obamacare.

      3. The only norm-breaking thing about the Garland appointment is that after it became clear that he would not be confirmed by the Senate, Obama didn’t withdraw him and make a different nomination more likely to get through the Senate. Say, someone one-third of the way from Garland toward Kennedy, ideologically.

        Obama didn’t do that because he thought Hillary was a lock, and thus there was no need to compromise. He chose to gamble the seat, and he lost it on November 8, 2016.

        Yeah, yeah, whine all you like about how the Great Satan McConnell said all sorts of things about not confirming anybody. If the Senate had been offered an actually moderate nominee, instead of a Linda Greenhouse “moderate”, of course the confirmation would have gone through, given what everybody expected the result to be in November.

        1. Heck, you know why he didn’t hold a vote? The plan was almost certainly to hold a quick lame duck session after the election, and confirm Garland if Hillary won, before she had a chance to nominate somebody further left.

          Garland wasn’t so much rejected, as put on hold awaiting the outcome of the election.

          1. “nominate somebody further left”

            The great Garland myth. That somehow he would not have voted exactly like anyone else Clinton would have nominated.

            On political issues, how often does Kagan or Beyer vote differently than the Wise Latina?

            1. On criminal justice issues, Breyer tends to be considerably more conservative than the other Democratic appointees to the Court. When Scalia was still on the Court, his principled originalism/stopped clock jurisprudence led him to take liberal positions on a certain subset of criminal justice issues. This led, from time to time, to criminal justice cases where you’d have Ginsburg/Sotomayor/Kagan/Scalia on one side of a decision, with Roberts/Thomas/Alito/Breyer on the other, and Kennedy’s wild card decision-making determining who had five votes. You could usually count on Adler making a post on cases like these.

              1. “political issues,”

                Criminal cases [other than the death penalty] have not been hot button cases since Earl Warren died.

        2. Bullshit.

          McConnell announced that no Obama nominee was going to get a vote. I suppose he would have made an exception for someone like Gorsuch, but that’s about it.

          McConnell simply denied that Obama was President.

          1. I agree with bernard that a lame duck GOP Senate would not have confirmed Garland or any Obama nominee. Having nailed their colors to the mast, they’d have had to leave it to Hillary to make her own nomination.

            But no, McConnell did not deny that Obama was President. The President can nominate and the Senate can confirm. Or not, according to taste. There’s a long trail of Presidential SCOTUS nominations failing in the Senate. Garland’s “no action in the Senate” path to failure isn’t even original.

            It would be interesting if the GOP retained the Senate this year, and another vacancy arose in 2020 from a departure of one of the four liberals. Would McConnell stick to the McConnell rule ? My bet is that he would. Because enough GOP Senators, probably including McConnell himself, would see too much political danger in a 180.

      4. By norms you’re referring to the treatment of Bork and Estrada, right? or is it the norm where republican nominations are fought tooth and nail for years on end but democrat nominations are to sail through regardless in just a few months?

        1. Bork’s nomination was sunk by Republicans and decency.

          Other than that, great comment!

      5. Garland might have been a moderate and in his 60’s but the only reason he was proffered rather than a younger progressive was because the GOP controlled the Senate. He was a Hail Mary from the beginning, a last minute desperation play before the clock ran out. The Republicans went into a prevent defense and successfully thwarted the play. As with most hail Mary’s there were post whistle complaints about rough play, pushing off etc.

        But the voters decided it was a no call despite the rabid whining of the losing team.

    3. If you assume the Garland/Gorsuch situation should not be deemed controversial, it helps to make it just like the appointment of Sotomayor or Kagan. We can start there. It depends on looking at the big picture.

      If Garland was handled differently & a Republican (particularly one other than Trump, but again, if someone just handwaves the current situation as “just politics,” this can be ignored) under normal practice replaced Kennedy, it would not be “court packing.” I’m wary of calling what is occuring now that anyhow even if it is seem as illegitimate in some fashion.

      Which, to keep on repeating, I realize many here don’t agree with.

  2. The problem with this sort of proposal (well, one of many) is that OF COURSE Republicans would respond in kind. And then the Dems, and then the Rep’s.

    Baron Trump’s campaign proposal for the 2060 election: “Vote for me, and I promise to increase the Supreme Court up to 57, to make up for the liberals’ current 28-27 advantage.”

    I much prefer the idea floated for many years: A new Const. amendment, to limit SCOTUS terms to 18 years, and each president gets 2 appointments (plus extras for unexpected deaths/retirements) per term. The amendment could take effect, say, 10 years after passage, so no one would know in advance who would reap the immediate benefits. With the extra benefit that, with an 18-year limit, presidents could appoint justices in their 60s or 70s again, if those older and more experienced judges were actually the best qualified.

    1. I like this idea, but even with an 18 year limit, I still wouldn’t appoint someone older than very early 60s.

    2. “Vote for me, and I promise to increase the Supreme Court up to 57, to make up for the liberals’ current 28-27 advantage.”

      At some point, the constitution will evolve to fix the size of the court, perhaps without a constitutional amendment.

    3. Basically, every two years there would be a SCOTUS nominee.

    4. “problem with this sort of proposal (well, one of many) is that OF COURSE Republicans would respond in kind. And then the Dems, and then the Rep’s.”

      What problem? Reducing the power and prestige of the Supreme Court is in the national interest.

  3. Did this problem commence with FDR or with the idea that the Constitution is a “living document.”?

    1. No, it started with the midnight justices.

  4. Whether the Democrats do something like this or not, I have zero faith that the Republicans won’t do it anyway, if there gets to be a liberal majority and it becomes possible for them to do so.

    The trouble with trying to maintain a norm at this point is that neither side has any confidence that the other side won’t break the as as soon as they can.

    The only real solution to the issue is to enshrine procedures in the Constitution.

    1. No, the only real solution is to break America into two countries, as we should have done long ago.

        1. Hate to burst your bubble however you seem to forget that it was racist Southern Democrats that attempted to create the Confederacy. The same racist Democrats that embraced Progressivism in the late 1800s while they started the KKK, instituted Jim Crow Laws, segregated the fed gov’t…

          1. I don’t know what you think you’re proving, but this yahoo has a lot more in common with the antebellum south than modern Dems do.

      1. Actual,
        It is an interesting hypo (not a realistic one; but interesting to think about theoretically). How do you envision this? I assume both coasts would be in one country, along with much of the northern states. But I am struggling to figure this out, as it would force conservative states like Montana and Idaho into Liberal America. Who would get Florida? (Or would Florida be split up north-to-south, and Conservative America would get the western part and LA would get the eastern?)

        Or do you envision just splitting up the country at its east-to-west midpoint and just having two countries with the same general split of conservative and liberal states…if so, then splitting up the country hasn’t really solved anything, right?

        It’s a fun exercise trying to come up with how to do this. CA would have the advantage of being more geographically compact. But LA would have both coasts, and all the ocean-adjacent areas (excepting Alaska and Texas).

        I, for one, would be happy to stop subsidizing other states with the federal taxes I pay here in California. So, sign me up!

        1. I would say that the left gets from Northern Virginia to Maine, and Washington to California. Americans get the rest, and liberals living there have to move out.

          1. So the liberals get every port.
            That should equitable.

            1. Uhh, except for those from Virginia Beach down to Miami, and across to Galveston…

        2. There is no way you don’t end upnwith at least three countries, and probably more. California is far to culturally different to be included as an isolated bit of some future Northeast confederacy and Oregon and Washington would never tolerate being part of Greater California, so right there you get three countries. I don’t see Idaho and Nebraska lasting all that long in Greater Dixie either and without California to balance it out Texas will not going to be tolerated for long under any regime Texans would accept.

          As to Florida, just sever everything south and east of Ocala and have everyone just consider it part of the Fallout universe.

          1. That’s probably true, but it’s clear to me that modern liberals and non-liberals cannot coexist.

          2. Since it was decided to start this thread, I’ll throw in my Two Cents for what it is worth.

            What about a Confederation of many Federations? One could have geographically-proxinmate States, such as New England, the Mid-Atlantic, the South, the Old Northwest Territory, all of the West Coast, and then somehow divide up the States in between, each forming a separate federation. And then the federations could form a confederation consisting of all of those federations.

            The fact that these States are in geographic proximity doesn’t mean they would be homogenous, but they would more likely be so then what we have currently.

            IMHO, isolating majoritarian rule – in any situation but most certainly given current (and likely accelerating) polarization – would be beneficial. There are other factors that could be mentioned, but I think this is enough for the moment.

        3. “But LA would have both coasts, and all the ocean-adjacent areas (excepting Alaska and Texas)”

          Plus Louisiana, Mississippi, Florida, South Carolina, North Carolina.

          CA would also have all the oil, coal and most of the food.

          1. All of which is nothing to boast about unless they can sell it. Good luck being an idiot politician riding an outrage wave telling their farmers and miners they can’t sell their goods to the mainland because Muh Hillary1!!!

      2. The libs can’t live with themselves without someone to order around and share the misery. Thats why they’re the ones that want big centralized government.

        1. Pretty much.

      3. It’s not workable, the split between us isn’t East/West or North/South, or anything that easy to draw a line. It’s Urban center/Everything else.

        The cement can’t secede from the aggregate. It just isn’t feasible, too much border.

        1. So what do we do? Wait until the left has flooded America with enough third world mestizos to cement permanent political victory, and just let America be destroyed? Or do we start setting up plans now?

          1. In the case of the revolutionary war, what happened is that, after the war was won, there were large scale movements of people for several decades after, with the people still loyal to England moving to Canada, and Canadians who didn’t like the Crown moving south.

            While you might anticipate something like that were the US split up, there’s a fundamental issue here: Democrats control high population density urban centers, and Republicans basically everywhere else, for a reason: There’s something about living at high population densities that warps your thinking. Or less pejoratively, makes extremely intrusive government look sensible.

            The city centers would just keep manufacturing Democrats. We’d face the same problem again in another generation.

            What’s really needed is a program of de-urbanization. Democrats, aware of this phenomenon of cities manufacturing Democrats, have been pushing deliberate “urbanization” policies for decades, intended to force people into the sort of high population densities that makes them into leftists.

            Republicans have to fight fire with fire, explicitly pursue a policy of deurbanizing the country. We need regulatory changes that make it easier to pursue industry outside city centers, that discourage, not encourage, ultra-high density living. Otherwise splitting the country would solve nothing.

            1. That’s an interesting point. The Federal Reserve subsidies of the banking system and free trade intended to destroy manufacturing leads to the service based economy that is more easily suited to urban living. I’m not sure how to reverse that.

              In any event, I think America will eventually suffer a cataclysmic collapse after we can no longer borrow money to pay for everything promised, and cities will end up descending into third-world chaos. I think an economic and racial awakening is likely at that point. I just don’t know how it will manifest itself.

              1. There would have to be a lot of regulatory changes, to make it easier to set up business outside cities.

                One suggestion is to stop reporting profits at the headquarters of a company, (Usually found in a city center.) and instead require they be reported at the site of manufacture or sales, which is generally outside. That would stop robbing suburban/rural communities of tax revenue.

                1. At this point, the left’s power is too ingrained. I don’t think any changes happen easily.

    2. Enshrining procedures in the Constitution would include being extremely specific so as to allow no interpretive wiggle room, otherwise we’re back where we started, because the Constitution itself was supposed to enshrine procedures for proper government, and look how much that worked.

      1. Yup. Who knows what penumbras and emanations might come from whatever procedures are enshrined in the constitution.

  5. Not to mention, said Republicans when again in power could also change the term from 18 years to two years, or just repeal the statute that allowed for the seating of 2 additional temporary justices. It could also rapidly get to a point where the Senate is devoting all of their time to appointment proceedings. After a few cycles, maybe we could have 37 or 52 Supreme court justices. My wouldn’t that be an interesting Constitutional crisis?

  6. As an aside, I’m fascinated by the question of whether the 18-year justices would be allowed to sit in the case where the constitutionality of their appointment is challenged. The OP assumes that they wouldn’t. Is that a matter of normal recusal rules (given the obvious conflict of interest), or is there some other reason why they wouldn’t sit (yet)?

    1. There are effectively no recusal rules for Supreme Court justices. Its a matter of personal preference and I suppose peer pressure to some extent.

      While the current mono culture of ex-Circuit judges is regrettable, the justices are already used to following the rules applicable to the lower courts so they pretty much follow them but there is nothing to force a recusal ever.

    2. In Stuart v. Laird, the Supreme Court in effect upheld the constitutionality of circuit riding and the practice of lower court opinions that justices took part in to be appealed to a court they were on as well. At least one justice according to various accounts (perhaps Samuel Chase was one) thought it unconstitutonal, but the policy was upheld without public dissent. The justices were self-interested.

      I also am aware of some challenge to some sort of taxation that affected judges and they still decided the question. But, how far this goes is unclear — if the specific appointment is at issue, even for sake of appearance, a justice is likely to recuse.

  7. Even if the Democrats retake the Senate, it seems unlikely that there will be 60 votes for temporarily packing the Supreme Court. Would the Democrats really be willing to eliminate the filibuster for statutes as well as nominations?

    And I’m also skeptical that a temporary expansion passes constitutional muster. Otherwise it seems like the Democrats (should they choose to pursue something along these lines) could just pass a law reducing the size of the Supreme Court to seven and say last two in are the first two out–enjoy your return to the lower courts Gorsuch and Kavanaugh.

    1. ” Would the Democrats really be willing to eliminate the filibuster for statutes as well as nominations?”

      Do you need to even ask? The filibuster is on its last legs. There’s a long history leading to it.

      It’s hard to find an exact beginning, but it certainly got underway when the Democrats began slow walking Reagan and Bush I judicial nominees, to the point that some of Bush I’s spots ended up lapsing and being filled by Clinton. Which the Republicans payed back with gusto by slow-walking Clinton nominees so that several of his spots were filled by Bush II. Then there were liberal pundits who actually advocated filibustering Republican judicial nominees, and the Democrats who did just that against Bush II nominees, leading to the threat of the end of the filibuster on judicial nominations. Then there was the Democrats’ /actual/ end of filibuster of judicial nominees — except for the SC.

      And then we got to Garland and the GOP’s unprecedented action – which was actually a continuation and intensification of the /now-established/ process of denying judicial nominees their vote, only extended to a SC nominee.


      1. (continued)

        But that wasn’t the end of things. It was an enraged Harry Reid who threatened the end the filibuster for SC nominees, at a time when it looked like the Democrats would retake the Senate and keep the Presidency. And it was the Democrats who (foolishly, I think) threw away the filibuster on the Gorsuch nomination by double dog daring the Republicans to do so.

        So how long before the Senate ends filibusters entirely? This escalating tit-for-tat game, in which the Democrats have been at least as active and conniving as the Republicans, hasn’t reached its end. The Republicans could end the filibuster the next time there’s a bill they really, really want to pass. If they hold the Senate in November they might even follow up the law professors’ idea of “temporarily” packing the court. Why not? The liberals suggested it. Or, the next time the Democrats get the Presidency and the Senate, would they let the Republicans filibuster, say, Medicare-for-All? You really think not? You think a bill is more sacrosanct than the Supreme Court?

        This simply does not end well.

      2. “The filibuster is on its last legs. ”

        Thank goodness. It was and is a stupid procedure.

        We have two houses and a separate executive. That is plenty to prevent most bad legislation. We do not need a procedural roadblock too.

        The bad legislation that does get thru can be amended or repealed once the worm turns. Right now the zombie filibuster cements bad legislation like Obamacare from being killed.

        1. I’m of the opposite opinion. Not only should constitution-level changes be supermajority (i.e. most should buy in to how the government operates, as a hedge against charismatics with the gift of gab) but normal laws should be, too.

          There’s nothing magical about a simple majority. One should keep in mind its nature at all times: an abstraction of might makes right.

          60% for normal laws seems fine. If you can’t get 60% to agree on a normal law, what philosophy makes you think that’s ok?

    2. Of course they’d be willing to eliminate the filibuster for statutes. They’d begun talking about it back in 2016, before the election didn’t turn out to their liking. They were talking about a lot of things they’d do once they reclaimed Congress and the White House.

      The thing that worries me about this whole idea of court packing, is that court packing isn’t an end in itself, it’s a means to an end. It’s what you do so that the other stuff doesn’t get struck down.

      It’s the other stuff that’s the real threat. Overturning CU so that campaign censorship can be shifted into overdrive. Naturalizing all illegal immigrants. Admitting the territories as new states.

      2016 threw a scare into the Democrats, they thought they were done with losing elections, that they’d have the White house and Congress for the foreseeable future.

      When next they capture both elected branches, they’re likely to try to take measures to make sure they never, ever lose them again. They’re already discussing it, right out in the open.

      1. Legalize a few more million mestizos in Texas, and consider it done.

    3. Eliminating the filibuster is the way to go. Let democracy take its course.

      And if a temporary expansion might not pass constitutional muster, that is an argument for making the “temporary” part of any statute severable, so that if the law that provides for more appointments is unconstitutional to the extent that the appointments are “temporary” that those appointments than become automatically permanent.

      1. But then they would have to admit their court packing scheme is a court packing scheme.

      2. Exactly this ^^^. That was the plan for Obamacare whereby they knew it would not pass Constitutional muster and they intended to replace it with government run healthcare for all.

  8. Two questions:

    1. How does appointing two liberal justices constitute “correcting” the “travesty” of the Garland nomination?

    2. How many conservative justices does the GOP get to appoint to “correct” the “travesty” of the Bork nomination?

    1. Wikipedia records many travesties under the heading of “unsuccessful nominations to the Supreme Court of the United States.” I’ll leave out up-or-down votes and look to where the Senate used evil, wicked procedural tricks to defeat the President’s prerogatives of obtaining advice and consent:

      “John Quincy Adams nominated John J. Crittenden on December 18, 1828. The Senate postponed the vote on his confirmation, by a vote of 23?17, on February 12, 1829. The Senate did not explicitly vote to “postpone indefinitely”, but the resolution did have that effect. ….

      “Millard Fillmore made three nominations to replace John McKinley, nominating Edward A. Bradford, George Edmund Badger, and William C. Micou, but the Senate did not take action on any of the nominees….

      “Grant…nominated Caleb Cushing for Chief Justice on January 9, 1874, but despite Cushing’s great learning and eminence at the bar, his anti-war record and the feeling of distrust experienced by many members of the U.S. Senate on account of his inconsistency, aroused such vigorous opposition that his nomination was withdrawn on January 13, 1874….”

      I was tempted to comment on Grant’s failed nomination of Ebenezer Rockwood Hoar, but I decided against it.

      1. Adams was a lame duck who made the nomination after losing the election, and the senate did at least go on the record with a vote of some kind.

        Grant had a couple failed nominations…. which is completely standard. I don’t know what a failed nomination (particularly for a reason specific to the nominee) has to do with refusing to vote on any nominee just because you hope your party controls the Presidency in a years time.

        As for Fillmore, that does seem a fair comparison from the relatively sparse Wikipedia article. But the country was a decade away from a civil war so it’s maybe not the kind of precedent you want to use.

        1. “Adams was a lame duck”

          As opposed to Obama? He was term-limited out of the Presidency, and would have to vacate the White House in under a year.

          What does that have to do with refusing an up-or-down vote? (Not “of some kind”)

          “Grant had a couple failed nominations”

          Cushing never got an up or down vote.

          “But the country was a decade away from a civil war so it’s maybe not the kind of precedent you want to use.”

          I’m not sure of the relevance. Was Fillmore going to appoint someone more or less Civil War-ish?

          I took a look. The guy who got the job after Pierce’s inauguration was John Campbell, a future Confederate. But then so was Badger, one of Fillmore’s failed nominees. The other two failed nominees, Micou and Bradford, were law partners of Senator Judah Benjamin of Louisiana – the Democratic Senate would have been happy to confirm Benjamin if Fillmore had nominated him, but Benjamin declined.

          So our “precedents” indicate that the Senate can ignore the nominees of lame ducks (Adams and Fillmore), but we’re going to the mat on the definition of “lame duck” – does it include Presidents with a few months left in office who are term-limited out?

          1. (In short, the differences among the nominees didn’t affect Civil War issues, since they were all nominated by Southern-sympathizing Presidents (Fillmore the Whig and Pierce the Democrat) to fill what was supposed to be a Southern seat anyway.)

            1. Incidentally, the rejection of Adams’ and Fillmore’s nominees was during the “lame duck” session of Congress during which much public business was then conducted until the 20th Amendment curtailed the extent of “lame duck” sessions.

          2. As opposed to Obama? He was term-limited out of the Presidency, and would have to vacate the White House in under a year.

            Adams lost the election and was only 2 months away from the next inauguration. They may not have been able to do a proper investigation and confirmation hearing before his successor took office. That’s a big difference from almost a year out for a term-limited President.

            Cushing never got an up or down vote.

            Lots of nominees don’t get a vote if the Senate signals that a vote would fail if forced. The difference with Obama is it had nothing to do with the nominee, it was just the GOP wanting the slot for their guy.

            I’m not sure of the relevance. Was Fillmore going to appoint someone more or less Civil War-ish?

            Generally the point of a precedent is to show “see, they did the same thing in the past and everything turned out OK”.

            The country being so dysfunctional that it was about to fall into civil war is hardly an example of everything turning out OK.

            Not to say it was causal, but it was a direct symptom of an extremely dysfunctional government.

            1. “The country being so dysfunctional that it was about to fall into civil war is hardly an example of everything turning out OK.”

              The Senate also took no action on a SCOTUS nomination by Harding in the 1920s and one by Eisenhower in the 1950s.

            2. “The country being so dysfunctional that it was about to fall into civil war is hardly an example of everything turning out OK.”

              Again, it was a “Southern” seat, and *all* the nominees, successful as well as unsuccessful, had proper “Southern” associations. The disagreements between Fillmore and the Senate over his nominees were not about the disagreements leading to the Civil War.

              “Adams lost the election and was only 2 months away from the next inauguration. They may not have been able to do a proper investigation and confirmation hearing before his successor took office.

              This was a “lame duck” session which, pre-20th Amendment, was a time for Congress to transact lots of business.

              “That’s a big difference from almost a year out for a term-limited President.”

              That depends on how indignant you are at the rejection of the term-limited President’s nominees.

              1. But the “time to do a proper investigation” thing gives me an idea…the Republicans could have announced that they were carefully investigating Garland…still investigating…still investigating…oops, the new President withdrew the nomination, I guess we don’t need to investigate any more!

      2. You completely left out Tyler’s three failed nominees who never got votes because both Whigs and Democrats agreed he wasn’t really president, since how could anyone consider a succeding Vice President legitimately elected?

    2. The rejection of Bork was not a travesty by any stretch. It was a legitimate defeat – on an actual vote in the Senate – of an extremist nominee.

      Get over it. Bork should never have been nominated, and the Senate was right to react him.

      1. Yay, we get to agree: Bork sucked, big time. It wasn’t just Democrats who spiked that nomination, plenty of Republicans didn’t like him, either.

        1. Why?

          1. Well, for one thing, he was no John Dean during Watergate, that’s for sure.

            But my personal objection was that “inkblot” thing: Nobody who regards part of the Bill of Rights as meaningless should be allowed anywhere near a Supreme court seat.

            1. Of course. But don’t pretend that the left’s objection to him was in good faith.

              1. No, I’m just stating that it wasn’t just the left objecting to him. Him and Miers, both bad picks.

                1. Of course. Miers was intellectually mediocre and unqualified for the job. Even if she promised to do nothing but vote with Thomas every single time, I’d still oppose her.

                  But I would have rather had Bork than Kennedy.

                2. Sotomayor reminded me of the Miers pick.

  9. An originalist would reject the term “court-packing” as a disparagement incongruent with the original understanding (or public meaning, or intent, or whichever flavor a particular originalist prefers or needs in a particular context).

    Enlarging the Supreme Court is an established, authorized, reasonable, legitimate course. If Republicans wish to avoid enlargement, they should win elections.

    1. Much like if the Democrats wanted to get Garland confirmed, they should have won elections.

      1. Rev. Kirkland and jph12:

        You are both correct. We ought to be deciding these disputes through elections.

        Neither the term “court packing” like the term “nuclear option” have no place in any sort of originalist understanding of the Constitution. These modern turns of phrase are nothing more than a modern attempt to create modern taboos in order to advance a particular vision of constitutional balance that happens to be less rather than more democratically accountable.

        1. Well you are certainly right about the nuclear option. They didn’t even know what “nuclear” meant back then. Plus, Senate rules are not a part of the Constitution.

          But that’s no reason not to use perfectly acceptable and well-understood terms today. Neither court packing nor the nuclear option refers to the Constitution, so the Originalist understanding is irrelevant. And the various political parties have been complaining about the judicial shenanigans of the other political parties since Marbury v. Madison.

      2. Much like if the Democrats wanted to get Garland confirmed, they should have won elections.

        Agreed. Republicans — largely consequent to our system’s structural amplification of yahoo voices — possessed the power, and used it.

        When Democrats — consequent to there being more tolerant, modern people than there are disaffected, half-educated, economically inadequate right-wingers — do the same, I expect Republicans to whimper and rant nonetheless and Democrats to treat the Republican whining much like the Republicans treated Judge Garland.

        Oh, and I expect plenty of “originalists” to declare that the enlargement of the Supreme Court would conflict with original meaning, or original intent, or original public meaning, or whichever flavor is most convenient at the time.

    2. Maybe your nonsense about Living Constitutionalism is starting to take root.
      We have evolved to the point where 9 is the exact right number of justices…and the Constitution’s due process clause contains a freedom to contract.

      1. The Constitution has always been evolving through interpretation.

        The First Amendment is taken to protect more than it used to, for example.

        And I think this is a good thing. The people who do not like a living constitution WISH we lived in a world where democratic change could somehow be bottled up, because they rightly recognize that democratic change has risks. But that is not the answer, because failure to change ALSO has risks.

        A person can have a preference for a living constitution or a preference for a constitution whose meaning is fixed. But neither of these preferences can be said to be right or wrong based on the text of the Constitution. And, if you look at history, the preferred interpretation of the Constitution has always been evolving. So, just as a matter of historical fact, it seems that we have a living constitution, whatever our preferences might be, either in favor or to the contrary.

        1. “The people who do not like a living constitution WISH we lived in a world where democratic change could somehow be bottled up, because they rightly recognize that democratic change has risks. But that is not the answer, because failure to change ALSO has risks.”

          This doesn’t make sense. Change through living constitutional interpretation by the Supreme Court is not democratic change and it often involves striking down laws rather than upholding them. Take the easy example–Roe v. Wade invalidated democratically enacted laws.

        2. “failure to change ALSO has risks.”

          Which is why the Constitution makes provision for its own amendment. And the people have used that particular method to make significant changes.

    3. Gerrymandering is an established, authorized, reasonable, legitimate course. If Democrats wish to avoid gerrymandering , they should win elections.

  10. As far back as I can remember every time they democrats chose a candidate for the S C they always chose one that would almost every time rule in the direction that the democrats desired. So the the democrats also do what could be overbalance the S C each time they nominate an candidate.

  11. “By proposing the court balancing specifically to address the Garland travesty, Democrats would have a principled reason, subject to the American electorate’s approval, for altering the size of the court.”

    OBJECTION, ASSUMES FACTS NOT IN EVIDENCE. As an initial matter, calling the Merrick Garland proceedings, or rather the complete lack thereof, a “travesty” reveals the authors of that piece to be partisan hacks. What Ted Kennedy did with his completely dishonest character assassination of Robert Bork from the Senate floor was a travesty; the liberal lynching of Clarence Thomas via the Anita Hill three-ring circus was a travesty. Only if the GOP had actually held hearings on Garland, then brought in paid perjurors to accuse him of child rape and cannibalism, would it have been a travesty. Simply refusing to hold hearings was a play taken directly from Harry Reid’s playbook. Second, thinking that the Democrats need a “principled reason” for anything assumes that Democrats have or even care about principles. And there is ZERO evidence for any such assumption.

    1. Oh, stop with Bork.

      This was a nominee who thought the 1A protected only political speech, among other things.

      He was a lunatic who got rejected not because of a speech by Kennedy but because his own writings revealed that his lunacy.

      1. bernard11, Robert Bork has been dead for over 5-1/2 years now, and he is STILL smarter than you.

        1. Robert Bork was a viciously authoritarian, character-deprived, superstitious, stale-thinking jerk whose fringe thinking caused a number of Republicans and almost all others to conclude he was unfit to judge humans. He was on the wrong side of most social issues, an eager advocate for bigots of several stripes, and a more eager bagman for Richard Nixon.

    2. The Democrats, like all real political parties have very strong principals, they believe with every fiber of their wretched souls in the ancient principals of faction, the spoils of victory, and their own eternal righteousness. They also know that only history should judge them and that only one of their party is justified in writing history. What other principals are there?

    3. I disagree with both sides. Neither the blocking of Garland nor the blocking of Bork was a travesty. Nor was the treatment of Thomas bad.

      It shouldn’t be controversial that appointments that come with lifetime tenure combined with tons of practical political impact should include significant scrutiny by democratically elected Senators.

      1. Bork and Thomas were cases of scrutiny, one a young man really that warranted close review with special circumstances arising too, the other with a long controversial record that led even a few Republicans to vote against him (plus it wasn’t just replacing like for like — it was a swing vote).

        Garland didn’t even get a hearing, even though he was someone Republicans said in the past was a great choice & unlike Bork was simply not controversial. It’s not the same thing though you can say it is not a “travesty” if you want. We know the usual arguments of Republicans having the power or right to do what he did. But, it wasn’t the same thing as Bork (Fortas has a hard time the second time around, including in committee, and rightly so in various ways) or Thomas.

        1. Garland wanted to hear Heller en banc when his side lost. That makes him a traitor to American principles, and thus it wasn’t a travesty to oppose him.

    4. The only “principles” liberals care about is imposing a radical non-discrimination regime for the entire world and flooding America with third-world immigrants in order to increase their electoral power, and ultimately use that power to impose cultural and economic Marxism and one-world government on us.

  12. The situation is graver than Somin supposes.

    Now, as things stand, Republicans and Libertarians are in active alliance, not just to get justices appointed, but to impose rules to institutionalize minority rule, and make it permanent. They have the Constitution’s per-state voting provisions as a foundation to build on, and audacity verging on desperation to furnish tactics. The right-wing allies well understand that unless they find some way to use control of the Court to foreclose Democratic counter-moves, their entire political edifice is in danger of a loss from which?given their already confirmed status as a near-permanent minority party?they might never recover.

    What Republicans fear, tempts Democrats. To them, it seems possible that all it would take is that same kind of wave election, but pointing their way?to deliver sufficient control to rework the laws of politics, and make popular-majority control of government sacrosanct. Thereafter, they wouldn’t need to fear political retaliation?at least not until Republicans figured out how to command a popular vote majority?an unlikely prospect within the lifetimes of current Republican leaders.

    All that stands against such upheavals is the sovereignty of the American People. Those will be mightily challenged. They need wisdom and power both, to turn their sovereign will into constructive action to thwart both political parties simultaneously. Prospects are not encouraging.

  13. There is a temptation to suppose the nation is on the verge of a Constitutional crisis. The reality is more troubling than that. For the first time since the Civil War, there is a real threat of a sovereignty crisis. If it happens, it will probably be made worse, not better, by the fact that established state boundaries will prove awkward for defining the contending polities?which today are less regionally unified, and more generally dispersed and intermingled, than they were during 19th century.

    1. I can’t wait.

  14. Wasn’t the process to which Garland subjected suggested some years ago by (then Senate Judiciary Committee chairman) Joe Biden?
    How is this a travesty?
    May as well call the Republicans one upping Dingy Harry’s nuclear option a travesty.

    1. It wasn’t just suggested by Biden, it predates Biden significantly. It was used 8 times in the 19th century and twice in the 20th Century (1920s nomination by Harding and 1950s nomination by Eisenhower).

  15. Why wasn’t this Court packing nonsense being bandied about when Thomas replaced Marshall, a move which REALLY shifted the balance of the Court?

    1. Because at that time the Democrats thought they had permanent control of the legislature and the Republicans had permanent control of the Presidency. There was no more hope of packing the Court than in overcoming George Herbert Walker Bush’s overwhelming advantage in the 1992 election. This is why only washed up political has beens like Paul Tsongas, Jerry Brown and Bill Clinton bothered to run that year.

  16. Whether such a deal would really be “balancing” depends on your definition of balanced. In my view the Court has been outrageously biased pro-Democrat since the FDR administration, and badly needs about two more originalists who will strike down the changes made then and give us our Constitutional government back.

    1. You do realize that another way to “strike down” federal laws and regulations you do not like is by winning presidential and Congressional elections, right?

      So, why is having the Supreme Court do it instead so much desirable?

      1. Get rid of one man, one vote, and retroactively strip everyone granted citizenship under the 1965 Immigration and Nationality Act who wouldn’t have qualified under the National Origins Act, and I’ll agree with you.

  17. Can some 1st Amendment expert explain how a judge found that the plaintiffs in the 3D gun case have a “strong likelihood of success on the merits?”

    1. I’m not such an expert, but I’d say the judge applied ordinary common sense, which the gun fanatics on the other side seem to lack.

      Allowing 3-D printed guns is insane.

      1. This is why all firearms patents should require Top Secret security clearances to view and no American should be allowed to operate a lathe or work as a machinist without first having permanent surveillance devices surgically implanted in their bodies.

        1. If that argument were based on the equivalence you suppose, there would be no point in objecting to a ban on 3D printed guns. You think a ban does matter, because you think 3D printing of guns will facilitate circumvention of gun regulations?without the inconvenience of first getting the regulations repealed. So your comment is full of beans.

          1. It wasn’t a ban on 3D printed guns. It was a ban on distributing online information on how to make them. A toe in the door for more comprehensive bans on online firearms info.

            1. It wasn’t a ban on 3D printed guns. It was a ban on distributing online information on how to make them. A toe in the door for more comprehensive bans on online firearms info.

              Pardon me while I laugh out loud, Brett.

              1. Laugh all you want, but it’s still true: 3D printed guns were never, at any time, illegal. This was a regulation of publishing on line design data for them, on the pretext that, since the data could be read overseas, it was exporting “munitions” even though not so much as one bullet or gun ever left the country.

      2. This wasn’t about allowing 3-D printed guns, though that horse left the barn a long while ago, might even say it was never in the barn. Individually manufactured guns predate mass production of them, and hobby manufacture of guns has been a thing for, well, centuries. All 3-D printed guns do is clue in the oblivious to the pre-existing reality that home manufacture always made gun control a joke.

        It was about publishing firearms related info online. The interpretation of ITAR in question potentially applied to drawings, instructional videos, gun smithing manuals. It was a foot in the door to keeping any information on how to make guns offline.

      3. It’s amazing how liberals are so confident and self-righteous in their ignorance.

      4. But allowing detailed instructions on how to build explosives is just fine.

        God you anti 2A people are insane.

    2. Maybe because:

      1. It’s really goofy to call computer code protected speech. Using computer code for 3D printing guns is action, not speech. More generally, when used as intended, almost all computer code is action.

      2. 3D printed gun deliver the very thing gun nuts (a term I try to avoid, but unavoidable with regard to 3D printing guns) want and celebrate?abolition of state police power with regard to guns.

      1. So 3D code, which is actually…you know…written communication, is OF COURSE not speech, but flag burning is?
        Sometimes the fact that you’re not a lawyer just comes screaming through.

      2. Stephen Lathrop:

        This is nonsense. Computer code is not act action. It is a set of instructions whose audience is BOTH the computer AND other programmers. So, it is certainly a form of speech. We talk about using care in naming variables so that other programmers who have to maintain the code in the future better understand it. We might consider writing our code in a manner that is less efficient to execute if that makes it easier for future programmers who have to read it to understand it in cases where being less efficient in execution does not matter much.

        It is not “goofy” to say that code is speech. Code is meant to be read by BOTH humans and compilers.

        1. By the way, if you’re a machinist with CNC experience, you can probably read Gcode, too.

        2. Sure Dave, that’s why the FAA is still running the same code in its air traffic control system as it was decades ago?after multiple hundred-million dollar attempts to update it failed because no one could read the old code well enough to get the job done.

          Code is action, not speech. Code comments are speech. That make you happy?

          1. So, the government could (and maybe should…?) have prosecuted the NY Rev of Books when they put the instructions for how to make a Molotov Cocktail on their cover?
            The 1A protects COMMUNICATION, which is why your argument fails, and why the 1A protects flag burning.
            You are constantly nattering on about how lawyers shouldn’t try teaching others about history. Maybe historians should not try teaching others about law.

      3. And by the way, you try to avoid the term “gun nuts” but you are sure that people who disagree with you on regulating 3D printing (which is probably not even realistic) are insane?

        Or, you just like to use pejorative language when you strongly disagree with someone.

        Your excuse for using the phrase “gun nuts” does not fly. That phrase only makes you a less effective communicator. Such pejoratives are really an attempt to exercise intellectual dominance over someone, since someone who is “nuts” does not have to be taken seriously by our society.

        1. Are you sure you are really David Welker? There was a commenter who used that name years ago who seemed to be an independent thinker, and not a prickly right wing sort.

          I use “gun nuts” advisedly in this case because what they are trying to do?lay groundwork for insurrectionist politics based on guns that are impossible to regulate or trace?is, as a matter of policy, and as a matter of personal sanity, nuts.

          Effective communication can include forthright recognition of insanity. Nobody but you (and some pro-gun advocates) will tax me for bad communication in this case, because even most of the pro-gun advocates?including those who disagree with me vociferously and ad hominem?know I go out of my way to avoid cheap name calling.

          1. It’s not nuts. The government has no legal or moral right to “trace” guns at all.

            1. Even after the gun is found at a crime scene? Or in the possession of a prime suspect?

          2. Stephen
            I was about to ask the same thing. He seems to have gotten way more lucid.
            Maybe he got mugged by an illegal. Or maybe he started writing tuition checks for a private school because the public school in his area is a pigsty.

      4. If a book is protected speech, so is computer code. We’re not talking about “using” computer code, but distributing it.

  18. If Republicans retain the Senate in the fall, then isn’t the obvious move for Trump to propose a constitutional amendment fixing the court at 9 justices? His message to Dems would be — “Hey, support this and get it passed on a fast track or I’m going to go ahead and enlarge the court before 2020”?

    1. I’ve suggested the same myself.

      In fact, package up all the threatened norms, as a “Bill of Norms”, and propose them on that basis.

    2. Can you even imagine the heads exploding on the left? If the GOP retains the Senate, and Trump says”Hey, that whole court balancing thing is a great idea. Thanks for bringing it up.”

    3. How is enlarging the court even more when you have a majority much of a threat? A 5-4 Supreme Court decision has the same effect as a 7-4 decision.

      All your proposal would do is make court packing inevitable. In fact, I am not against Trump doing exactly what you suggest.

      1. It’s threatening for the same reason the left have been talking about enlarging the Court to 13, not 11: Because your side’s justices aren’t interchangeable robots, getting a super-majority on your side allows you to achieve a bare majority for more extreme rulings.

  19. The usefulness of judicial review is overrated. In fact, with the exception of Marbury v. Madison, which was mostly symbolic in terms of outcome, judicial review of federal statutes wasn’t the norm in our early history. In fact, if I recall correctly, it wasn’t until the Dred Scott decision that the Supreme Court decided to hold a second federal statute unconstitutional. This is not that surprising; probably early courts were more sensitive about the limits of their power compared to co-equal branches of government that are ultimately capable of (and did) regularly change the size of the Supreme Court as well as capable of regulating its jurisdiction to hear cases at all.

    We do not need a Supreme Court that is either highly left or highly right to the country as a whole, and which exercises judicial review in accordance with a fixed ideology that is different from the country. Certainly not over an extended period of time. Generations of fixed dominance of either a liberal or conservative Supreme Court over our political system is not desirable. Court packing, by both left and right, will tend to keep the court ideologically balanced. Also, the more active threat of court packing will give justices an incentive to moderate their decisions and to rule in a way that both parties can live with.

    1. The Supreme Court has made serious errors with its judicial review power before. Probably, the most serious being Dred Scott, which, instead of resolving an important political dispute, threw gasoline on the fire and helped spark the Civil War.

      This is all the more justified given the historical anomaly that is the Trump administration. This last presidential election was a fluke rather than a clear statement from the American people giving the Republican Party some sort of mandate. Trump did not win the popular vote and the unequal but nearly equal allocation of power to different parts of the country by the electoral college system cannot said to be rational and well-thought out as much as randomly evolved. Should such a slim win mandate conservative political victories for generations to come, all guaranteed by the Supreme Court, no matter how people vote in the future?

      I don’t think so. Then we would not be so much a democracy as a randomocracy.

      Court packing is fine. Judicial review of democratically-enacted federal statutes is overrated and deserves to be weakened. The primary way people should be looking to change federal statutes that they dislike (or creating new ones that they like) is by winning elections for Congress and the presidency in a systematic matter, not by influencing the composition of the Supreme Court based on strategies that rely on historical anomalies and luck.

      1. Both the elimination of the Senate filibuster and limiting (but not eliminating) the power of judicial review is a step in right direction. We might use dramatic phrases for these things, like the “nuclear option” or “court packing,” but in reality, these are just humble steps to a more rational political system that is based less on historical anomalies and the end result would be to make elections to Congress and the presidency more consequential — as they should be.

  20. The principle the proposal assumes is in glfact far more radical than Court packing. For if Constitutional life tenure applies only to membership in the federal judiciary as such and congress can create lesser terms in particular courts and judgeships by statute, nothing prevents Congress, facing a judge it doesn’t like, from simply passing a new statute that redefines the judge’s term on their current court to time served, creates a new position on a “purgatory” Court whose jurisdiction is so defined that it can’t actually ever hear any cases, and re-assigns the judge to that. Viola! No fuss, no muss.

    If Congress can do what Professors Ayers and Witt propose, why can’t it do that? It seems to me that once it has the power create a judgeship with a limited term distinct from the judge who holds it and to reassign a judge to a different court after the term ends, it has the power to completely redetermine who is on any given court any time it wants. The constitution requires life tenure and the salary to be paid for life. But it doesn’t require that the court a judge sits on be one that actually does anything, or at least anything important.

    Once it becomes permissible to game the system like this, it’s all over, and life tenure just means the tax payers have to pay some extra salaries.


    1. As a concrete example, suppose Congress created a district court for the fifty square miles of Yellowstone Park that lie in Idaho.

      Every time the Democrats get control, they pass a law limiting the term of every Conservative justice to time served and then transfer them to the District Court for the Yellowstone District of Idaho, and the President appoints liberals in their place. Every time the Republicans get control, they pass a similar law for all the liberals on the Supreme Court, and the president appoints conservatives in their place. On lots of issues, precedents get routinely reversed by 9-0 majorities every few years.

      Not only does judicial review become a sham, but the Supreme Court gets unfettered power to act and do things Congress can’t do, including running roughshod over states whose legislatures disagree with the national line. No individual right would be safe from such a Court.

  21. Of course there’s a “risk” of undermining judicial oversight. That’s the point of the exercise. The last thing either party wants is some judicial body pointing out that they’re doing something unconstitutional.

  22. “Dereliction?”

    The Senate actively chose to not consider the nominee (Garland). Why go through the expensive charade of interviews, hearings, floor time, etc. when the votes were NEVER going to materialize?

    “If you chose not to decide, you still have made a choice!”

    1. The Senate made no such choice.

      McConnell made a choice.

      The votes would have been there, had he allowed an actual vote.

  23. I think the proposal was an unused West Wing script.

    The sentiment here leans Trump so I have to toss in qualifiers regarding how many won’t believe something bad really happened. But, Garland et. al. caused a lot of problems and the respect of the overall system very well might need some sort of adjustment. The proposal is merely something to talk about and I’ll believe that the Democrats will pass some sort of actual court packing law when I see it. It took a lot for them to end filibusters of executive nominations & even then a few didn’t really want to do it.

    People who are against “court packing” — including some law professors — realistically need to offer something. The idea of an amendment to have a term limit [I think a statutory policy proposal might be workable but an amendment would be best in some fashion if only one that leaves it open as clearly allowed] is probably the most probable aspect of that “something.” Some fashion to stop abuse of the confirmation process — including some fixed time limit — would help too. It’s something that helps both sides in the long run.

    West Wing had an episode when a liberal and conservative justice were nominated at the same time. Thomas and RBG retiring at the same time and that happening might be a comparison. But, the former was fiction.

    1. “The idea of an amendment to have a term limit [I think a statutory policy proposal might be workable but an amendment would be best in some fashion if only one that leaves it open as clearly allowed]”

      The lifetime tenure of all federal judges (not just supreme court justices is set in the constitution, so no, a statutory policy proposal limiting the term of service of supreme court Justices would not be workable.

  24. ===What matters is how the “court-balancing” plan will be perceived by Republicans. If they agree that it is merely a one-time “temporary intervention” justified by the GOP’s actions against Garland, then the Ayres-Witt ploy will work. But if they see it as a major escalation in the judicial nomination wars, then they will almost certainly retaliate in kind as soon as they get the chance.

    I think it’s pretty obvious that the overwhelming majority of Republicans (as well as many independents) are likely to take the the latter view.===

    Likely? Don’t forget the Tea Party sentiment and it’s child are insurrections in the Republican party against Republicans, for going along with the Democrats too much.

    No Republican will ever treat this as anything other than a court packing plan in an attempt to mollify Democrats, and, after all, wth do the R leaders think the last 40 years of work was about? Why do they think they worked to take it all? No more Bush, Sr.s nominating big government-friendly people like Souter.

    I’m not saying it’s necessarily good or bad, but that’s the politics. The rain of fury would be immense on Republicans.

  25. “The end result is likely to be the undermining of judicial review as an effective check on government power.”

    Judicial review is not a check on government power – it IS government power. In fact, right now it is the greatest government power. Congress checks the President, and the President checks Congress. Who has the power to check the Supreme Court? In fact, both Congress and the President do. In practice, both refuse to use their power to interpret the Constitution as they see fit. The Supreme Court has effectively overthrown the two elected branches of government, and no one will do anything about it.

    1. “The Supreme Court has effectively overthrown the two elected branches of government, and no one will do anything about it.”


      Its the Most Dangerous Branch now.

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