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Can a Constitutional Amendment Forestall the Threat of Court-Packing?

Jim Lindgren proposes a constitutional amendment banning court-packing. I'm all for it. But it can only pass if liberal Democrats get some reciprocal concession to support it.

The Supreme Court.The Supreme Court.

In previous posts, I explained why there is a real danger that we might see a serious attempt to "pack" the Supreme Court at some point within the next few years, and why such a development might well cause great harm, if it happened. To avert this threat, prominent legal scholar (and Volokh Conspiracy co-blogger) Jim Lindgren proposes a constitutional amendment fixing the number of Supreme Court justices at nine. I am more than happy to support this idea! If it gets enacted, it would indeed put an end to the danger, permanently plugging this loophole in our constitutional system.

But the amendment strategy has a significant potential weakness. Constitutional amendments are extremely difficult to pass. The standard pathway requires support from two-thirds of both houses of Congress and three-fourths of state legislatures. The alternative of a convention of the states also requires a large supermajority. If there are powerful political forces that want to pack the Court in the near future (or at least keep open the possibility of doing so), they can easily block the enactment of Jim's excellent proposal. And, in this case, liberal Democrats are increasingly open to the court-packing idea, even if it does not yet enjoy anything approaching consensus support on the left. They are unlikely to give it up at a time when many liberals see it as the best available countermove to what they regard as an illegitimate conservative takeover of the Court. Liberal Democrats almost certainly have the votes block the enactment of an anti-court-packing amendment in Congress, the states or (most likely) both.

Thus, such an amendment can only pass as part of a political deal in which the left gets some reciprocal concession from Republicans. For example, the membership of the Court could be temporarily expanded to ten, and the president at the time (if he is a Republican) can commit to choosing a nominee endorsed by Democratic leaders in Congress. The temporary temporary could serve for a term of, say, 18 years after which the membership of the Court would revert to nine. This could potentially split the difference between the two sides. It would give the left an extra justice, but would fall short of the two (or more) new liberal seats that progressive supporters of court-packing hope to add. Perhaps liberals would prefer one guaranteed seat in the hand to two more uncertain ones "in the bush."

One can imagine other types of concessions that could incentivize the left to support the Lindgren Amendment. The trick is to find one that would simultaneously win sufficient liberal support without alienating the right. This may not be an insuperable task. But, in this era of deep polarization, it certainly will not be easy. If it were up to me, I would be willing to go to considerable lengths to permanently eliminate the spectre of court-packing. Partisan Republicans might not be as forthcoming.

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  • PaulS||

    Why doesn't the court take actions on its own to depoliticize the situation - as they did when FDR suggested court packing - though I didn't like the approach of essentially agreeing with him, it worked. For example: What if they stopped publicizing the breakdown of their rulings and who wrote them. Thus no more 5-4 decisions for the press to publicize just here's the decision and why - and (assuming not unanimous) here's the why not. I'm usually not a fan of lack of transparency but....There must be other things they can do that go around the politicians

  • Smooth Like a Rhapsody||

    Putting a cap on the dissemination of information is never a good idea in a democracy/republic.
    Beyond that, you are merely asking one side to unilaterally disarm.

  • Stephen Lathrop||

    Smooth, leaving PaulS and his suggestion completely aside, it strikes me as obvious that whichever side is shooting itself in the foot will only be assisted by unilateral disarmament.

  • Brett Bellmore||

    The proposal is hopeless, because some of the Justices ARE partisan hacks, already, and would just privately transmit the information.

  • santamonica811||

    I think pretty much all of the informed (ie, people who follow cases) on the left feel that all or most of the 5 ultra conservative justices are partisan hacks; and pretty much all of the informed on the right feel that all or most of the 4 ultra liberal justices are also partisan hacks. I, personally, never felt that way until Bush v Gore (well, actually, until the bizarre injunction ordering the recount to stop), and it did forever change the way I see and feel about SCOTUS decisions.

    I think it's an intriguing proposal. My concern is that knowing the breakdown is incredibly important. Important in terms of considering revisiting this issue (If one justice has retired, no point in trying to bring the same issue back if the vote was 8-1, but very well may be worth it if the vote was 5-4, or 4-5). And important in terms of how the public views the decision. If a controversial issue is decided 9-0, then I think it's infinitely more liked to be seen as a "fair" decision, while a 5-4 decision will be seen as biased by a lot of the public.

  • Stephen Lathrop||

    santamonica811, maybe Sotomayor makes the grade as an ultra liberal. But aren't Breyer, Ginsburg, and Kagan just middle-of-the-road pro-corporate Democrats? I suggest it's useful to preserve some historical sense of where the poles of these liberal/conservative axes have been, instead of letting them drift under the propulsion of rhetoric and political framing.

  • Smooth Like a Rhapsody||

    I agree that we do not have a Brennan/Marshall crazy liberal on the court.
    Sotomayor and Breyer are just liberals.
    RBG is just strange; sort of like Thomas, but in a different way.

  • iowantwo||

    The Bush v Gore lie lives on in the mind of leftists

    The simple fact is SCOTUS stayed a lower court decision. ie, the Florida Supreme Court. No state wide recount was asked for by either candidate. The Florida constitution has procedures in place to decide an election that cant be certified by the Secretary of State. It goes to the Florida house of representatives.
    Instead the Florida Supreme Court, ordered a state wide recount, an order they had no power to issue.
    SCOTUS slapped them down, asked that they get back to SCOTUS with an explanation of what constitutional power allowed them to intervene.

    There is also the little fact that a consortium of media outlets recounted the votes in a variety of ways, and Bush came out the victor in each of those counts.

    It gets harder and harder for lying leftist to rewrite history with the internet enabling people to go back and find the facts.

  • Brett Bellmore||

    The left also doesn't like to remember that it was a 7-2 decision on the Florida supreme court having violated equal protection by permitting every precinct to use a different standard for counting ballots.

    It was only 5-4 on the remedy.

    In fact, the state had already been certified in Bush's favor when the state Supreme court attempted to restart the process; Gore had already lost. All the federal Supreme court did was uphold the state certification.

  • Krayt||

    You can't change the counting rules after the election...to help your guy win. Only before.

    Also, if recounts increase the number of votes for both candidates, that will benefit the county winner a little bit statistically, and so is dubious to just recount counties where Gore was in the lead...which was done.

    Gore probably should have won, but not for any of these reasons, nor actual vote tallies. Rather they had the Pat Buchanan issue where one county had confusingly-aligned check boxes, and Pat had statistically 18,000 more votes than he proportionally should have had based on his percent in other counties.

    Unfortunately you can't nullify that or reassign those votes, nor re-vote. Or fortunately, I should say, because introducing that power to the government will get it instantaneously misused.

    And don't blame the Republicans for that county as the Democrats were in charge of ballot design.

  • Brett Bellmore||

    "Also, if recounts increase the number of votes for both candidates, that will benefit the county winner a little bit statistically, and so is dubious to just recount counties where Gore was in the lead...which was done."

    Which is why Gore only asked for recounts in a handful of counties where he was well ahead, and did so at the last moment in order that Bush would not have time to respond in kind. That wasn't an honest effort to find out who won, it was a deliberate effort to get Gore the win even if he'd really gotten fewer votes.

    It's worth noting that the county where Buchannan had a statistical excess of votes was the county where his state-wide campaign director lived, and his state campaign was headquartered. So it wasn't as weird as all that.

  • Bubba Jones||

    Iirc the gore criteria actually led to a larger bush victory.

  • VinniUSMC||

    "I, personally, never felt that way until Bush v Gore (well, actually, until the bizarre injunction ordering the recount to stop), and it did forever change the way I see and feel about SCOTUS decisions."

    Well, that's one clear way to signal yourself as a partisan hack who doesn't actually understand anything about what happened in Bush v Gore.

  • E6||

    If you are talking about PaulS's proposal, I agree.

  • Woody Chip Hurrrrr?||

    It smacks of appeasement. Whatever Kavanaugh may have done as a high school kid, I don't think any rational person seriously thinks he was some kind of gang rapist. He somehow made it through the Senate when confirmed as a judge 12 (?) years ago; suddenly all this fake evidence comes out at the last minute, along with handmaiden protests and the rest of the drama? No, this was an ambush when the tantrums didn't work, and the Dems deserve no reward for their spoiled child behavior.

    He's not my idea of a good libertarian judge, but that doesn't make him unqualified. I say go with the amendment, make the Democrats come out in public in favor of court packing, and let it bite them back when the Republicans do it to them. Put them on record, just as they were with the filibuster nuclear option.

  • santamonica811||

    Cool that you're able to determine that it was fake evidence. Just imagine how much more certain you would have been if Kavanaugh had been willing to take a polygraph and his accuser had refused to take it (or had taken it but not passed).

    (I do take your point in terms of him being a gang rapist. I saw zero compelling evidence about that particular allegation. I see him as a person happy to perjure himself in order to get confirmed, and a person who probably did some bad things to women when he was young and when he would get shit-faced drink. For me, that's enough to prefer a different far-right partisan to become a justice. YMMV, naturally.)

  • Stephen Lathrop||

    santamonica811, we all saw zero compelling evidence of the gang rape allegation, possibly because the event never occurred, surely because it was never investigated. I got the impression that nobody wanted to investigate it, because the result could be so horrifying that even a tiny chance it was true had to be defended against by everyone.

    Investigating and not finding would tend to discredit Kavanaugh's accusers in all their arguments. Investigating and finding would utterly discredit Kavanaugh's defenders, including the President and pretty much the whole Republican party.

    That left me wondering what might have happened, consistent with Kavanaugh's other behavior, and especially his sexual bravado, which I think was established beyond question, and also consistent in some general way with the allegation. Would it be impossible to imagine Kavanaugh going to a party where he or his friends decided to get a woman drunk, raise a kitty, and offer the woman money for sex, whether or not she was a prostitute? Based on the allegation and Kavanaugh's established record, would you rule that out without investigation?

  • Brett Bellmore||

    " I got the impression that nobody wanted to investigate it, because the result could be so horrifying that even a tiny chance it was true had to be defended against by everyone."

    That's an interesting impression. I got the impression nobody wanted to investigate it because the accusation was batshit crazy: Multiple gang rapes, and nobody ever reported even one of them? Simply not plausible.

    "and especially his sexual bravado, which I think was established beyond question,"

    Which was established not at all. I take it Spock has a beard in your universe?

  • iowantwo||

    You forget that the media spent weeks looking under every rock they could find. Investigated the hell out of the accusation. Ran down every lead, asked leading questions, and put answers in peoples mouths, nothing. The FBI, ran down what they always do. This is not a criminal investigation. They have no power to compel answers, since they are not investigating a crime. The Senate Investigators, do have the power to compel answers, and are more motivated to find the dirt, huge embarrassment hangs in the balance, and the Senate investigators would most likely be fired for not finding facts if they exist. They are motivated to keep their extremely kushy, and at the same time powerful jobs..
    Again, another right lie, that the investigation was lacking. Facts are a funny thing, uh?

  • y81||

    Yeah, if only Kavanaugh had passed a polygraph test, like Aldrich Ames.

  • Lastseer||

    Well I think the polygraph is pseudo science bullshit. That said Ames was flagged on being deceptive on some of his polygraph questions and was passed anyway.

  • ||

    The burden of proof REGARDLESS of the standard of proof is on the accuser.
    Ford was emotionally compelling. She was not sufficiently credible or sufficiently corroborated to meet even the lowest burden of proof. In fact many people swore that she was mistaken about facts that make the claim against Kavanaugh implausible.

    Ford may have had something happen to her. She may even be absolutely correct in here testimony.
    But the probability of the latter - which is what is critical is LOW.

    Kavanaugh is not obligated to rebut Ford.

    You are personally free to reject Kavanaugh for any reason you wish.
    Though that freedom has no power as you are not a senator.
    They too are free to do the same.
    And we are free to vote them out of office for their choices.

  • John||

    If Kavanaugh had been willing to take a polygraph, I would have considered him unfit for the bench because polygraphs are complete hookum. They mean nothing.

  • AJD||

    Whatever Kavanaugh may have done as a high school kid, he committed perjury about it as a grown adult and Supreme Court nominee.

  • Michael Ejercito||

    Since ehen did the Senate care about perjury?

  • FSE||

    To Jim and everyone else in favor of this amendment, I ask this:

    Suppose Democrats succeeded in packing the court in 2022. Having confirmed two new liberal justices, suppose they proposed the exact same amendment you now propose - except the size of the court would be fixed at 11 instead of 9.

    The question is, would you still support an amendment to fix the size of the court at 11, right after it was packed by Democrats? If not, why not? Surely having eleven justices instead of nine is only a trivial difference. So if you would oppose what you previously supported, then it must be because the spectre of court-packing would end at a moment when the court leans to the left. But if that is the case, then why should Democrats support your amendment now?

    Ilya is right. There is no way Democrats would support this amendment without significant concessions.

  • Woody Chip Hurrrrr?||

    Of course not, but the opposite of that is not "two justices left the court and we need two replacements." The opposite of that is the Republicans pack two more to make it 13.

  • Woody Chip Hurrrrr?||

    See, that's what is so galling about this. Dems are acting as if the Republicans packed the court with two illegitimate extra justices. It's a blatant lie. If you actually believe that, then you are nothing but a gullible swamp denizen. If you don't believe that, then why present it as if it is comparable to your hypothetical of adding two additional justices?

  • FSE||

    The nominations of Kavanaugh and Gorsuch were bitterly controversial but perfectly legal.

    Likewise, if Democrats packed the court it would be bitterly controversial but perfectly legal.

    So, how you define "legitimate"?

  • Woody Chip Hurrrrr?||

    I said that adding two new justices is packing, and replacing two justices is not packing.

    If you can't see that difference, try taking off your partisan glasses.

    The "illegitimacy" is in the eye of the beholder, and that is where the partisanship lies. There is a huge difference.

  • FSE||

    What I asked was very simple. If Democrats packed the court, would you still want an amendment to prevent further court packing?

    Or would you wait for Republicans to regain control of the court, and only then try to prevent further court packing?

    You don't have to answer, because your partisanship is obvious. You want to do whatever it takes for your side to gain advantage. So don't act so surprised when your opponents behave the same.

  • Woody Chip Hurrrrr?||

    Your question is impossible to answer because you equate replacement (by a Republican President and Senate) with adding additional justices (by a Democrat President and Senate).

    The two are not the same, but your partisanship blinds you to such a simple distinction.

  • FSE||

    > The two are not the same

    Yes, they are not the same. That is my point. In one case, you would support Jim's amendment. In the other case, you would oppose it.

    Therefore, your support for Jim's amendment is not based on any firm principle. It is merely based on a desire for power.

    I mean, it's transparently obvious. When someone asks if you would support the Second Amendment, do you answer "That depends on what the Democrats are doing"? Of course not. You support (or oppose) the Second Amendment unconditionally, regardless of the current political circumstance. The same isn't true of what Jim is proposing.

  • John Cuyle||

    If the Democrats packed the court by adding two more justices, yes, I would still support an amendment capping the number of justices at 9. Presumably we'd get back down to 9 by attrition and it would kind of suck that the left had two "extra" seats on the court for a couple decades, but at least the amendment would negate court packing as a strategy for either side over the long haul, which is the entire point.

  • Stephen Lathrop||

    Woody, you are right to suggest that illegitimacy lies in the eye of the beholder. But wrong to put "illegitimacy" in skepitcal quotes. In a slightly complicated (the complication being the People's sovereignty), roundabout way, government legitimacy for this nation really is a matter of what people think, and how many think it. Understanding that is not partisan. Denying it may very well be partisan, or not, but it is certainly mistaken.

  • gormadoc||

    It would be against the norms of more than a century of Supreme Court appointments and existing legislation, for a clear purpose rejected on more than a half-century so.

  • FSE||

    If Republicans aren't interested in protecting norms, then why should Democrats?

  • Stephen Lathrop||

    Democrats, at least, acknowledge a stake in guarding the reputation and legitimacy of government. Given Republican willingness to abandon that responsibility, it has become at times a tactical inconvenience for Democrats to stick to that principle, but they still ought to do it—just as Republicans ought to as well.

  • MatthewSlyfield||

    "Democrats, at least, acknowledge a stake in guarding the reputation and legitimacy of government."

    And yet ever since the 2016 presidential election, the Democrats have been doing exactly the opposite.

  • Stephen Lathrop||

    Slyfield, reading between your lines, I gather you suggest that Democrats' criticism of Trump and McConnell (for instance) shows Democrats tearing down the reputation and legitimacy of government. I don't follow that.

    Isn't there a difference between faulting office holders for their conduct on the one hand, and faulting the offices themselves, or faulting the purposes and functions of government, on the other hand? It's that latter practice which has long distinguished Rs from Ds.

    Since Reagan, Rs have been out there trying to convince Americans that no matter who holds the offices, it is the operation of government itself which needs to be attacked. Republicans perversely claim as a virtue that they install officers who attack, and strive to dismantle, the very offices the officers have sworn to exercise. Democrats mostly don't do that, and certainly don't claim doing it is politically virtuous.

  • FSE||

    Ok. Then the composition of the Court would change with each change of political power. And perhaps Democrats don't see that as a bad thing.

    If you do see that as a bad thing, then you should be equally prepared to stop it when the Democrats control the court as when Republicans do. Regardless of how Democrats manage to take control. Otherwise it's just political posturing.

  • MatthewSlyfield||

    "And perhaps Democrats don't see that as a bad thing."

    Except the Democrats do see that as a bad thing(at least when the switch isn't in their favor), which is the only reason they see the confirmations of Gorsuch and Kavanaugh as illegitimate and want to enlarge the court to enshrine a democratic majority.

    Also many of the supporters of the court packing plan believe that demographic changes will give them an unassailable majority in the near future to the point that they never have to worry about the court ever switching back to a conservative majority. The VC commenter Arthur Kirkland is an example of someone who believes this.

    In fact some of them (AK included) believe that they already have such a majority. This is why they see the 2016 election result as illegitimate, that Trump won is by itself sufficient proof that Trump and the Republican party somehow cheated in the election.

  • Rev. Arthur L. Kirkland||

    I do not perceive the 2016 election result as illegitimate.

    If a player makes an improbable three-cushion bank shot to win within the rules, despite declining skills, that is a legitimate victory.

  • NToJ||

    The Democrats voted on Kennedy.

  • Smooth Like a Rhapsody||

    As long as the amendment requires a presidential election between passage and enactment, the problem of sour grapes should go away.

  • ||

    "Ilya is right. There is no way Democrats would support this amendment without significant concessions."

    Ilya is wrong.

    It is trivial to pass this - even quickly.

    Propose a simple amendment concurrent with proposing legislation expanding the supreme court to 15.
    You put democrats in the position of passing the amendment quickly to avoid Republicans packing the court first. I imagine we could have a simple amendment passed n record time.

  • bevis the lumberjack||

    "what they regard as an illegitimate conservative takeover of the Court"

    If they really believe that, they're delusional.

    And as to "this era of deep polarization", it's being overstated in the media. Everyone forgets about the plurality of us out here that wish that the hyper-partisans on both sides would just STFU and go away.

  • Rossami||

    Hear, hear!

  • ||

    I have a better idea. Conservatives tell liberals that they consider the promulgation of liberal ideas to be treason, which treason justifies the use of 2nd Amendment remedies. If you're a liberal, you're a traitor, and traitors deserve to be executed.

  • bevis the lumberjack||

    What is the frequency, Kenneth?

  • ||

    Huh?

  • bevis the lumberjack||

    I thought you were trying to start a thread consisting of lunatic babbling, so I tried to contribute. Sorry.

  • ||

    Apparently the truth hurts.

  • Mr. Hook||

    Joseph Stalin, everyone! Let's give him a big hand! They said you were dead, but I knew your sociopathic spirit would live on.

  • Brett Bellmore||

    The obvious "reciprocal concession" is that Republicans don't pack the Court. Why is this not sufficient? As I've stated before, it's because the Democrats don't just intend to pack the Court. They intend to pack the Court, and then use their new rubber stamp to approve measures to make sure they never lose control of the government again.

    So locking in 9 is a much, much higher priority than most Republicans seem to understand.

    If the GOP does retain both chambers, it should next year offer up an amendment as proposed, and state that a refusal of Democrats to support it would be met with immediate Republican Court packing.

    "Make it unconstitutional or we do it to you first!"

    If the Democrats take control of the House, things get trickier. I would suggest that the lame duck session declare that it doesn't matter what qualifying language a state places on a request for a constitutional convention, and thus the necessary number of states have called for a convention. Once the Convention is acknowledged to have been called, there isn't any constitutional procedure for canceling it, and retaining the Senate would be enough to block packing the Supreme court to do an end run around the Convention.

    Normally this would be seen as a very dangerous move, but placed in the context of Democratic plans to pack the court, it becomes reasonable to do.

  • FSE||

    > state that a refusal of Democrats to support it would be met with immediate Republican Court packing.

    This is not a threat. The Court is already controlled by Republicans. Packing it now wouldn't hurt Democrats. It would just make it easier for Democrats to pack it when they take power.

  • Rev. Arthur L. Kirkland||

    Good luck with trying to reason with much of this group.

  • Toranth||

    The Court currently has 5 Republican appointed Justices on it.
    Last year, the Court had 5 Republican appointed Justices on it.
    In 2016, the Court had 5 Republican appointed Justices on it.

    What, exactly, has changed? Why is the Court "packed" now, when it wasn't last year, or between 2010 and 2017?

    As a reminder - Obama's choices replaced Stevens and Souter - both appointed by Republicans.

  • FSE||

    It's not packed now, but it tilts in favor of Republicans. So a Republican threat to actually pack the court, as suggested above, is meaningless.

  • Toranth||

    Except that during all of those years when Republican appointed Justices dominated the Court, the Left won many of the cases. So saying "Republicans control the Court" seems inaccurate.

    If Republicans did "pack" the court, it would make a large difference for several reasons:
    1) The larger margin would make defection of one or two judges insignificant.
    2) The new judges wouldn't be moderates like Kennedy. They'd be political loyalists, meaning far less reliance on precedence or law, and more on ideology.

    Packing the Court would be far from meaningless, for either party.

  • FSE||

    I'll grant that Republican appointed judges in the past did not always vote together. I think the Left believe that after replacing Kennedy with Kavenaugh, this will not be the case in the future.

    Perhaps their fears are unfounded. But if it does turn out that voting nearly always occurs along party lines, then this will strongly bolster the case for court packing. And if so, then your points (1) and (2) will no longer apply.

  • Brett Bellmore||

    We'd have to replace Roberts, too, or have a 6-3 majority, to have a reliably conservative Court. He's the new swing Justice now, and isn't all that reliable, as he has demonstrated on multiple occasions.

    RBG being replaced by Trump is when Democrats should really start worrying. Gorsuch didn't move the Court's center at all, and Kavanuagh not that much given Roberts' 'growth' in office. Replacing her with perhaps Barnett would make a huge change, as Roberts' defections would no longer matter.

    And on a Court where they didn't matter, they might even cease.

  • NToJ||

    "But if it does turn out that voting nearly always occurs along party lines..."

    On the Supreme Court? This just isn't true. Most of the time, the Justices agree with each other. In the last term, the two most disagreeable Justices (Sotomayor and Alito) still agreed with each other most of the time.

  • bc15||

    Republican appointees outnumber Democratic appointees 5-4. If Republicans were to add 2 more seats, then they would have a lopsided 7-4 majority. To surmount that, Democrats would need to add 4 seats if/when they took power, bringing the number of justices to 15. It might not be that politically easy to add that many seats. And, if it did become easy to add so many seats, then the advantage from packing would be diminished because the opposite party could add more seats the next time.

    So, packing it now would hurt Democrats. That's why it's so strange that some Democrats are trying to normalize Court packing when Republicans control the White House and Congress. The real reason Republican threats would not necessarily be credible is that both parties probably recognize that the media would excoriate Republican court packing much more harshly than Democratic packing.

    One way to make the threat credible might be for Trump to contemplate packing through Twitter since no threat by Trump is too crazy to be credible. The inevitable backlash from the left and media might then be enough to pass the amendment banning court packing.

  • y81||

    It is strange that the Democrats are trying to normalize court packing when the Republicans control the White House and Congress. But remember how Mark Tushnet laid out a detailed plan for crushing judicial conservatives once his comrades took power? How's that looking now, I wonder. Remember how Democrats abolished the filibuster one year before they lost control of the Senate, thereby obtaining one year without Republican filibusters at the cost of five years (so far) without Democratic filibusters? Whether in academia or Congress, Democrats are kind of stupid.

  • Rev. Arthur L. Kirkland||

    Democrats are kind of stupid.

    Republicans are bigoted, backward, and superstitious.

    Let's see which the electorate prefers during the next few decades.

  • Brett Bellmore||

    "But remember how Mark Tushnet laid out a detailed plan for crushing judicial conservatives once his comrades took power? How's that looking now, I wonder."

    Just put off for 2-4 years, they figure. If anything, the reminder that they actually can lose elections makes taking extreme and irreversible action the moment they regain power even more urgent; They can't assume they have a lot of time to act in, but crushing the right like the Allies did the Axis (Tushnet's own analogy.) is something that must me done.

  • y81||

    I had forgotten that he made the WW2 analogy. It's kind of appalling and disgusting, to compare your own daughter to the Nazis, but that's how leftists think.

  • Brett Bellmore||

    It's a threat because the purpose of Court packing isn't to produce a Court that rules your way more often than not. It's to produce a Court that will be a rubber stamp, so that you no longer have any worry of your legislation or actions being declared unconstitutional, and the Court will even impose from the bench those measures you view as politically infeasible.

    The Court has had a majority of nominees from Republican Presidents, but Republican Presidents have been very unreliable about nominating actual conservatives, and so it has not actually been a conservative Court. Which is why you got, for instance, Obergefell.

    If the Republicans actually set out to pack the Court, they wouldn't be seating people like Souter or Kennedy.

  • MarkW201||

    The qualification that needs to be added here is that since Souter, Republican Presidents have been very, very careful to try to avoid picking "unreliable" conservatives.

  • ||

    IF Republicans put 6 more justices on the court now. That would be 15.
    Democrats would have to add another 8 raising the court to 23 to have a majority.
    Further trying to get 12 justices to rule the same way would be a nightmare for the left.

  • ||

    Legalize another thirty million semi-retarded mestizo Hispanics, and the Democrats have permanent electoral control. The question is, are patriotic conservatives willing to declare that mestizos are a problem? If not, their opposition is worthless.

  • Rev. Arthur L. Kirkland||

    America's electorate becomes less religious, less backward, less white, less bigoted, and less rural daily, as older Americans take their stale thinking to the grave and are replaced by better Americans; as our depleted backwaters empty; and as modernity improves America.

    For that reason, I am content to enable time to sift this.

    See you at the polls, clingers.

  • ||

    The explosion of the mestizo Hispanic population is not "improving" America. It's turning America into a third-world country.

  • NToJ||

    Love it or leave it.

  • ||

    So conservatives are obligated to allow in low IQ, genetically violent immigrants who will always vote for a welfare state? Why is that?

  • Lester224||

    The nation is becoming less white via birthrate even ignoring immigration. You can try passing laws to expel citizens who vote for a welfare state, but I expect that will be difficult. Are you a bot, by the way?

  • Ben_||

    It's like US Constitution fan fiction.

  • PeteRR||

    Doesn't passing legislation in the Senate require 60 votes (cloture)? How are they going to pass packing the court if they don't have 60 votes? Or is that the next escalation?

  • Stephen Lathrop||

    PeteRR, for the tiny bit that speculation may be worth, take a look at the next two Senate elections following this one. Assuming something amounting this time to at least a mini-blue-wave with staying power, the seats Republicans need to defend subsequently suggest a non-trivial prospect of a Democratic Senate with a 60 vote majority by 2025.

    I suggest at least a likelihood of a several-seat Democratic Senate majority by 2025, plus a minority with a few members sufficiently insecure in their seats to join Democrats in some votes. Whether that could go as far as a vote to change the composition of the Supreme Court might depend on what the Court had done in the interim—a possibility which might somewhat subdue the Court starting now, and thus affect the politics.

    A counter-speculation would propose that Democrats continue their politics as usual, with the result that so many folks in the political middle end up hating Democrats that the nation turns itself for some long future interval into a Trumpist paradise. I hope not, but familiarity with Democrats has taught me not to discount to zero the prospect of gloomy outcomes.

  • Lee Moore||

    As Brett says, the Ds don't need 60, they can change the filibuster rules with 50. Or strictly 51 as Manchin wouldn't go along with it.

    I suggest at least a likelihood of a several-seat Democratic Senate majority by 2025, plus a minority with a few members sufficiently insecure in their seats to join Democrats in some votes.

    But this is politicaly very naive. Of course there's some probability of a several seat D majority iby 2025. But since the Senate is naturally gerrymandered in favor of the Rs, a several seat R majority is more likely. The "natural" state of the Senate is something like 56R-44D. As for insecurity of Senators with slim margins, the Kavanaugh vote illustrates the real problem for these folk. If you buck your party you may do well with independents but your base may stay home. All the moderate Ds, except Manchin, concluded that it would cost them more on their left flank to back Kavanaugh than it would gain them on their right flank. Manchin is the exception that proves the rule - there are few gentry liberals to offend in West Virginia. As for the Collinses and Murkowskis of this world - they participated in the Cocaine Mitch denial of a hearing to Garland. They're hardly going to come out in hives now at the wicked injustice of it.

  • Lee Moore||

    since the Senate is naturally gerrymandered in favor of the Rs, a several seat R majority is more likely. The "natural" state of the Senate is something like 56R-44D

    I thought I'd illustrate that with some actual numbers, taking states carried in Presidential years as a proxy. Ignoring blowout years (1964, 1972, 1980, 1984) and years where a 3rd party significantly affected the carrying of States (1968, 1992, 1996) there have been 8 Presidential elections since 1960. The Rs have won 4 and the Ds have won 4. The average vote has been 48.6% R 49.3% D, and the average States carried have been 29R and 21D. All 4 R winners have carried at least 30 States, a feat achieved by none of the Ds. Two D winners carried a minority of States and Obama carried 26 and 28.

    The last D to carry a majority of States in a reasonably close election was Truman in 1948. Carrying States, which is what you need to do to win Senate seats, is appreciably harder for Ds than Rs.

  • Brett Bellmore||

    The systematic problem the Democrats have, is that their appeal is too concentrated.

    It's concentrated within cities in any given state, so they have a hard time winning the House.

    And it's concentrated within a relatively small number of states, (Because they're especially urban!) making it hard for them to win the Senate and the EC.

    I saw a graph once, of population density vs partisan affiliation. It was something of a sigmoid curve, with the transition happening at about 6-800 people per square mile. But it wasn't symmetric.

    Below 600 people per square mile, Republicans tended to get about 55% of the vote, but above 800 people per square mile, Democrats got more like 80%.

    So the Democrats waste a lot of their votes, electing people by huge margins in a few places, while the Republicans votes are more efficiently deployed.

    A secondary effect of this is that elected Democrats tend to be from places where there are hardly any Republicans, (And those few Republicans are in hiding, because Democrats get really nasty when they're in the majority.) while elected Republicans tend to be from places where there's a large minority of Democrats.

    So to the elected Democrats, Republicans are aliens from another world, they're free to imagine any horrible thing they want about them, because they don't know any. While the Republicans know Democrats, they're their neighbors.

  • Lester224||

    Ending up with a lot of wasted Democrat votes was and is a purposeful gerrymandering strategy. Clever on the part of state senates which got a small Republican majority.

  • Lee Moore||

    The Rs may well gerrymander for their electoral advantage (as do the Ds in their turn) but as Brett explained, geographical clustering is a more powerful, natural, gerrymander. Rs are in a modest majority in the great part of the US, Ds are in a huge majority in their city clusters. It's very hard to draw districts that neutralise this geography (though D computer boffins have come up with their wasted vote theories to try to do this - but this is only achievable with highly reptilian district shapes. And not always then.)

    The solution from a D perspective is to replace "first past the post" districts with proportional representation elections across the whole State. That takes geography out of the mix.

    But for Senate elections, which is what I was talking about, the "gerrymandering" is build into the Constittuional structure - each State gets two Senators - and has nothing to do with cunning R schemes to dish the Ds. Neither the Ds nor the Rs existed when these rules were written.

  • Brett Bellmore||

    The 60 votes for cloture on legislation rule is just as subject to being removed by a bare majority as the requirement for 60 votes for cloture on judicial nominations, and now Supreme court nominations was. And, in fact, prominent Democrats were talking about eliminating THAT rule, too, prior to the 2016 election.

    McConnell only keeps the filibuster around to have an excuse for not accomplishing things he'd rather not accomplish, or holding votes where he knows some of the Republican Senators would vote contrary to their campaign promises. (Having lied about their positions to get elected.) He could have gotten rid of it, and it is to be expected that the filibuster will pass into history the moment it gets in the way of a Democratic Senate majority.

  • captcrisis||

    "Packing" is when the Senate, under opposition control, simply refuses to confirm any nominations by the President. It is already happening. It happened under Obama with Merrick Garland and also with other "advise and consent" positions. Simply wait until a President of your own party gets elected. Until then, do nothing.

  • Careless||

    It's getting really funny when Slate and Vox both come out in favor of abolishing the Supreme Court on the same day. I mean, I expect them to hate the rule of law when it gives them outcomes they don't like, but to manage the same "solution" on the same day, that's something else

  • Brett Bellmore||

    That's how people figured out Journolist existed, before the leak. Because liberal outlets were obviously coordinating their talking points behind the scenes.

    Journolist got replaced, they're just more careful about security these days.

  • Rеv. Arthur I. Kirkland||

    Does anyone else notice that this faux-libertarian Bull Cow only suggests solutions that give an advantage to the leftist lunatics that he supports. His proposed "solution" is laughable. He is desperate to bring back a far left activist Supreme Court that just was ripped from his communist mitts.

    How about this solution, if the left tries to pack the court, the right exercises a second amendment veto?

  • Rev. Arthur L. Kirkland||

    Bigoted right-wing Mini-Me is back!

    I guess this could have been what I might have been like had I attended backwater religious schools, become addicted to street pills, and spend my entire life among the depleted human residue in rural, can't-keep-up America.

  • MatthewSlyfield||

    "Bigoted right-wing Mini-Me is back!"

    Did you forget to take your meds today?

  • Rev. Arthur L. Kirkland||

    Get an education. Start with standard English, focusing on distinguishing a capital L from a capital I.

    Backwater religious schooling doesn't count.

  • MatthewSlyfield||

    The change of the middle initial does nothing to prove that you aren't behind both.

  • Rev. Arthur L. Kirkland||

    Thank you for illuminating the nature of your mistake.

  • ||

    The leftists think the military will be on their side. I am excited for the eventual civil war.

  • Rev. Arthur L. Kirkland||

    Our military hasn't won a war in 70-some years. If you want a vague draw with a bunch of ragtag irregulars -- despite enormous taxpayer-provided resource advantage -- the American military is just your ticket.

  • iowantwo||

    The military follows the orders of our non military leadership, as is constitutionally mandated. Don't lay off the military performance on the military, but rather the political leadership.
    But I guess you knew that, and spouted off anyway.

  • Rev. Arthur L. Kirkland||

    Your lack of interest in accountability -- and disregard of the consequences of filling the military primarily with people who lacked better choices -- is noted, and disdained.

    You should have moved from Iowa a couple of generations of bright flight ago.

  • iowantwo||

    Which surprisingly enough, has nothing to do with the lack of military success, being due to a lack of politicians with any spine to finish what they start. Nothing to do with the United States fielding the finest fighting force the planet has ever seen.(hard to do with troops that are only there because they are losers).

  • Rev. Arthur L. Kirkland||

    They are there, in general, because they lacked better choices. That often is not their fault.

  • ||

    Talk of Civil war is stupid.

    But since you must there are over 300M guns in the US - what percent of those do you think are in the hands of democrats ? 5 ? 10 ?

  • Brightly||

    The problem as I see it is that parliamentarian and structural safeguards can only accomplish so much and for a limited period of time. The Constitution is nothing more than a piece of paper if there are insufficient people willing to defend it.

    I think the best long term solution is cultural.

  • Rev. Arthur L. Kirkland||

    Bingo.

    Reason. Tolerance. Science. Inclusivity. Modernity. Education. Diversity. Progress.

  • ||

    Science, like the false belief that blacks and mestizos have the same genetic IQ as whites and East Asians, and that their poor performance is due to racism? Diversity, like the explosion of the third-world population that brings crime and disorder?

    Progress, like letting people cut their wangs off and call themselves women?

  • Stephen Lathrop||

    This proposal for a constitutional amendment—a sovereign power remedy—arrives at a time when the People's sovereign power is at its lowest ebb since the era of conflict leading toward the Civil War. Two political parties—acting more as rival tribes than otherwise—have sought on purpose to divide the nation's sovereignty, and as a result have weakened it. In general, sovereign power under prolonged contest is already close to being no power at all. That goes far to explain why the nation's government has nearly ceased to function.

    With that as background, it ought to be obvious that now is not the time to invoke for action a nearly useless divided sovereignty. Still less is it a time to look to dangerously challenged sovereign power to answer a political question that had its genesis in that very challenge, and remains hopelessly entangled with it. Any such paradoxical attempt could deliver only more trouble and frustration. Lindgren's amendment proposal is nothing better than a foolish invitation to continue destructively to renew the challenge, and somehow win the unwinnable.

    The citizens of this nation, who are jointly its sovereign, must soon act to chastise and quiet these two rival, tribalist parties, or else see those parties end the People's sovereignty, and tear the nation to bits. An election is at hand. We should all hope its result delivers at least discouragement to this animating spirit of conflict—a spirit which heedlessly threatens crisis.

  • iowantwo||

    If the court has too few justices, agree to a number and add them.
    Slowly
    25 total justices?
    Add one ever 4 years. Each President gets to add one per term, plus the attrition.
    It is no longer a court packing, rather an expansion, of the court. In a way that favors no political party.

  • Rev. Arthur L. Kirkland||

    I prefer enlargement. I have yet to observe a persuasive argument against enlargement.

  • John Cuyle||

    I'm hesitant to reply to a novelty account, but the best argument against expanding the court beyond the current, reasonable, number is the ninth circuit. Nine leaves reasonable room for the typical breadth of judicial philosophies and we probably wouldn't get better law with eleven or thirteen than nine. I can see a desire for fourteen or eighteen to allow panels of seven or nine justices to hear cases, thus allowing the SCOTUS to review more cases, but you'd get different decisions out of each panel. If a panel of seven comes to a decision but the other panel of seven would be immediately willing to overturn it, there'd be no sense of finality from SCOTUS decisions. Nine is a reasonable number. It has worked and still works and nobody has been able to make an argument in favor of increasing the number, so why increase it?

  • Rev. Arthur L. Kirkland||

    Because 11 seems a better number, and the relevant laws authorize the enlargement. If people don't like it they are free to refrain from supporting it. If legislators dislike it, they are free to refrain from voting for it. I tentatively support enlargement.

  • EscherEnigma||

    [N]obody has been able to make an argument in favor of increasing the number […]

    There's a big difference between "no one has made an argument in favor of […]" and "no one has persuaded me of […]". Arguments have been made. Many times. It is, of course, your prerogative to not be persuaded by them, but don't deny the reality that the arguments are out there.

  • Krayt||

    ===Liberal Democrats almost certainly have the votes block the enactment of an anti-court-packing amendment in Congress, the states or (most likely) both.

    Thus, such an amendment can only pass as part of a political deal in which the left gets some reciprocal concession from Republicans.===

    Absolutely not. You bring it to the floor and let the Democrats vote against it. Make them speak in favor of reserving the right to pack the court for political reasons as soon as they get power.

  • Lee Moore||

    The point of proposing such a Constittional Amendment is not so much to pass it, but to apply political pressure on Democrats to disavow court packing. If they choose to oppose such an Amendment, the Republicans can draw the voters' attention to that fact.

    Consequently the Constitutional Amendment should be bone-jarringly simple, so as to avoid quibble room. Something like :

    "The Supreme Court shall not exceeed nine Judges."

  • Brett Bellmore||

    This invites Court unpacking, where you reduce the size of the court, and demote the Justices you happen not to like.

  • Lee Moore||

    You can't "demote" an existing Supreme Court Judge, who sits during good behavior. You can effectively demote an inferior court Judge by diminishing the jurusdiction of his court, but you can't do that with SCOTUS.

    So the only way you can reduce the size of the Court is to provide that it gets smaller as and when a Judge dies or retires. But this is a much less effcient way to try to shape the Court to your liking than simply appointing a new Judge when there's a vacancy. Which is a lot easier than passing a new law, since you don't have to consult the House.

  • QuantumBoxCat||

    This issue is clearly in need of a Politico Symposium, of which I'm sure Somin, much like Nicholas Cage, will eagerly take part in.

  • AJD||

    No way.

    The threat of court packing may be the only thing keeping Roe v. Wade from being overturned.

    The threat of court packing is an important check on the power of the Supreme Court.

  • AJD||

    If the Democrats pack the court without justification, what goes around will come around. Just like the Democrats go burned when they used the nuclear option, they'll get burned again if they use the thermonuclear option.

  • Brett Bellmore||

    The point of the thermonuclear option is to make sure that your opponents are not in a position to respond in kind afterwards, having been nuked.

    I keep saying this: Court packing isn't something you just do, and then return to business as usual. That just invites the opposing party to pack the Court when THEY take power.

    Court packing is the first move in a one-two combo; First you create a Court that will let you do anything you want, and then you legislatively disadvantage the opposing party to the point where you don't have to worry anymore about them regaining power and doing it to you. Once the Court is packed you can do all sorts of things that would previously have been struck down as unconstitutional; That's the whole point of it!

    Remember that the Democrats are extremely angry, for instance, that their campaign censorship laws keep getting struck down. With a packed court they could basically end freedom of political speech in America. They could gerrymander the country judicially through court rulings mandating that maps have to be drawn to negate the Democrats' natural geographic disadvantages. They could pass hate speech laws, and declare much of Republican political speech illegal.

    Packing the Court is a big freaking deal, because it won't be done in isolation. It would be part of a larger plan.

  • AJD||

    This is an interesting theory. I don't know enough to understand how the Democrats could pull this off, but I also don't know enough to be sure that they couldn't.

  • Toranth||

    Even if successful, packing the Court would have a strong negative impact amongst the neutral and opposition voters. There'd be no reason to do it if there wasn't a corresponding advantage to be gained.

    Take a look at how packing the courts works in other countries - Venezuela, for example - to see what the likely outcome will be. Politically, not economically.

  • AJD||

    Yes, this is why I think that packing the court would be a mistake *unless* the Supreme Court does something very unpopular. A quick google search suggests that 63% of Americans support Roe v. Wade. And it's a ruling that has been around for 45 years, with some tweaks 26 years ago (Casey).

    With that said, Citizens United is even more broadly unpopular (something like 75% of Americans opposed it). Maybe overturning it is enough of an excuse to pack the courts for much of that 75%. I don't know, in part because I'm not part of that 75%.

  • Brett Bellmore||

    CU is broadly unpopular, I think, because most people don't understand the ruling, getting their interpretation of it from a media that are opposed to it.

  • AJD||

    Sadly, I think it's more that most Americans don't truly support the First Amendment.

  • ||

    Roe v. Wade is only that "popular" because most people think that in the absence of it, abortion would become illegal everywhere. I suspect the 63% would drop if you explained that the effect would be to allow maybe 10 states to ban abortion while it will remain legal in the rest.

  • ||

    They'd also grant immediate citizenship to another fifty million third worlders and cement their power.

    I remember hearing a lot of liberals argue that the "parents" whose spawn were "separated" deserved immediate citizenship for "what they went through." These people are sick and evil.

  • Brett Bellmore||

    What kept Roe v Wade from being overturned was 2-3 Republican Presidents who were privately pro-choice.

  • AJD||

    Can you elaborate on that?

    Do you think Roberts will overturn Roe v. Wade?

    (Personally, I don't think he will, because he knows doing so would destroy the Supreme Court, and I think the threat of court packing is a huge part of the reason why.)

  • Brett Bellmore||

    To elaborate: If the Republican Presidents since that decision had really wanted it overturned, they could have nominated justices who'd have done it. The very fact that it survives despite a couple generations of Republicans nominating the majority on the Court demonstrates that they didn't view overturning it as the priority they claimed to.

  • AJD||

    Well, specifically, Ronald Reagan nominated Kennedy and O'Connor, and HW Bush nominated Souter.

    They're all retired now, though.

    HW Bush also nominated Clarence Thomas, but there's not much doubt that Thomas would vote to overturn Roe, is there?

  • Eric VonSalzen||

    While we're talking about amending the Constitution, why don't we address the issue the Democrats REALLY care about when they talk about the Supreme Court -- abortion -- and propose a pro-abortion amendment to the Constitution, so even if the Supreme Court is filled with Kavanaughs, women will be free to abort their children?

  • AJD||

    Amending the Constitution is neither necessary nor sufficient to protect a woman's right to decide what she can do with her body.

  • ||

    It's only her body? Interesting, I thought there was another body involved and a difficult moral debate that can't be reduced to stupid slogans.

  • EscherEnigma||

    Hey, I'm all for a bodily autonomy amendment. Would legalize prostitution and decriminalize drug use (might be possible to still criminalize possession/sale of drugs, but not the use itself), but I'm on board with that too.

  • Brett Bellmore||

    Because it's understood that it could never be ratified. That's why Democrats are so obsessed about the judiciary protecting this 'right', because they never won the political argument, they just ended it with a court ruling.

  • Eric VonSalzen||

    Brett, I think you've put your finger on it. If a "right to abortion" were enshrined in the Constitution, the Democrats would lose an issue that they use to mobilize their troops. The way things are, the Democrats can bring out mobs to oppose a potential Supreme Court justice by claiming that he would "take away the right to abortion". Can you imagine the Democrats being able to do that in response to nomination of a moderately conservative judge if they couldn't claim that abortion is at stake?

  • Lester224||

    The Supreme Court will not overturn Roe v. Wade because it would result in too much Democratic voter turnout in a subsequent election. The cons on the court would be directed by their masters not to do that.

  • Bubba Jones||

    If the size of scotus is set by The Judiciary Act of 1869 then wouldn't packing the court require overcoming a filibuster?

    Are Dems going to eliminate the filibuster entirely?

  • iowantwo||

    How can the legislature set that number? The Constitution doesn't Grant them that power

  • Brett Bellmore||

    Because the Constitution doesn't set the number, it quite reasonably falls under the "necessary and proper" clause.

  • Rev. Arthur L. Kirkland||

    How can the legislature set that number? The Constitution doesn't Grant them that power

    This is precisely the level of legal insight -- and lack of familiarity with standard English -- disaffected right-wingers bring to a discussion.

  • iowantwo||

    Question. Can the citizens in a self governed republic, define life as starting at conception? How would these citizens do so? Working through their elected representatives has set 40 percent of the electorate into a tizzy. But there must be a way.

  • Eric VonSalzen||

    It's a big deal to amend the Constitution, and it seems foolish to go through all that fuss just to fix the number of Justices at nine. If we're going to amend, how about also providing that instead of a Justice serving for life, he or she serves for a fixed term, say 20 (or 25) years. This would assure a more regular turn-over of Justices, and would mean that each two-term President would be likely to have an opportunity to appoint at least two Justices. Justices currently on the Court would be "grandfathered" (or "grandmothered"), so they could serve "for life' (or until a President of their party is elected, whichever comes sooner).

  • EscherEnigma||

    […] that each two-term President would be likely to have an opportunity to appoint at least two Justices.


    I'd rather just give each presidential term an appointment, regardless of turn-over, and not replace justices as they die or retire.

    Sure, it means the court will vary in size over time, but it also means that justices can't try to rig the court by strategically retiring. It also means that you aren't voting on a gamble that the president will appoint one or more justices, it's a sure thing.

  • U. R. Huyulov||

    If you ask me, we should just have the people elect SCOTUS justices, to a single term with no possibility of reelection. This would disentangle the presidential election from SCOTUS concerns, so that voters could stop being forced to vote for Giant Douche to prevent Turd Sandwich nominating justices. Yeah yeah, I know the court isn't supposed to be partisan, but it already is, so this wouldn't make things any worse on that front.

    Maybe have an election for one seat on the court during each non-presidential year, with the winner filling a vacancy or replacing the longest-serving justice if there aren't any vacancies. It would work out to a 12 year term assuming no deaths or resignations, with an extra year tacked on for every one of those. It would take 6-7 years for the voters to replace a majority on the court.

    It's not as radical as it sounds. It's the same dynamic that led to the popular election of US Senators. State legislator elections had become more about how the candidates would vote in the senatorial election than local issues facing the state. Note that the 17th amendment was ratified by 3/4 of the state legislatures. Yes, state legislatures voted to give up their own power -- that's how bad things had gotten.

  • E6||

    As a lawyer having lived in states where judges are appointed based on a nonpartisan nominating committee and where judges are elected, it is a very clear fact that election of judges makes judicial partisanship WAY MORE prevalent than it already is under the current federal framework. We already have two partisan branches of government. The judiciary is supposed to be the nonpartisan check.

    The only way out (if there is political will to find a way out (which there isn't)) is by: (1) adding a 10th justice as per Ilya's post; AND (2) term limits (17 years would be best, so that it will fall on fewer presidential election years).

  • Krayt||

    We already elect people who are supposed to change the law based on what we want. We call them Congress and the President.

  • EscherEnigma||

    Eh...

    I'm really leery of direct election of judges.

    That said, lets give a nod to federalism and have 100 SCOTUS justices like we used to have senators: appointed by their respective state governments. Any bet on whether such a SCOTUS would be a lot more deferential to federalism if their appointment is from the states instead of the president?

  • ||

    It would be trivial for the GOP to get such an ammendment without making concessions.

    Democrats have just publicly legitimized the concept.

    Republicans can put forth a bill to pack the court with republicans starting now - and a constitutional amendment to prevent it. and continue moving to pack the court with republicans until the amendment is passed.

    It should not take democratic states and congressmen very long to understand that if Republicans appointed 5 more SCOTUS justices now - which they could do, that subsequent democratic court packing schemes would get even harder and more ludicrous.

  • Rev. Arthur L. Kirkland||

    The mathematics are not strong with this one.

    Backwoods homeschooling, or southern religious schooling?

    The subliteracy suggests homeschooling and uneducated parents.

  • Eric Rasmusen||

    It really is a weird situation. It is the Republicans who control the Presidency and the Senate, so they're the ones who could have packed the court this past two years and will be for the next two years. So why should the *Democrats* oppose a bill to prevent court-packing?

    The answer is that the Republicans are too nice to pack the court, even though they have the legal power to do so, but the Democrats are not at all nice. So the Democrats think an amendment to prevent court-packing isn't needed to keep the Republicans from doing it now, but might prevent *them* from doing it in some future year.

    The answer is for the Republicans to get tough. Propose the amendment, and simultaneously pass a bill authorizing expansion of the court to 15 members starting in December 2020. If the amendment is ratified, the bill is unconstitutional and void. If it isn't, the Republicans pack the court that month.

  • Rev. Arthur L. Kirkland||

    More brilliant legal insight. Are you one of the Conspirators' former students?

  • Sarcastr0||

    Republicans are too nice

    Democrats are not at all nice

    http://volokh.com/2010/01/12/m.....ther-side/

  • Roger Danger||

    Kind of a silly, futile article because there is zero chance that the Democrats would ever allow a Constitutional amendment of this sort. No doubt they will take a run at packing the Court at some point. It will likely result in a political debacle for them.

  • Richard Gadsden||

    Liberals are not going to accept the legitimacy of a court with a majority of ideological conservatives.

    Conservatives are not going to accept the legitimacy of a court with a majority of ideological liberals.

    The court has been legitimate because there were some moderate justices, who were neither reliably conservative nor reliably liberal.

    I can't see any way to get such a justice on now without reforming the rules: Obama's choice of Garland was clearly intended to be a moderate in order to get a Republican Senate to confirm. They wouldn't consider confirming him, because they could hold out for a conservative - and got one, in Gorsuch.

    There have been thirteen Congresses since Thomas was confirmed. Five of them (102, 103, 109, 111 and 115) have confirmed the nine current Justices; one (114) rejected one. The other eight never saw a nomination. Only two of those ten nominations have been where the President and Senate were of different parties, though there were six of the thirteen terms where that applied.

    My suggestion would be that there is one vacancy created automatically for each Congressional term, use-it-or-lose-it. No limit to the number of Justices.

  • ||

    I'm really tired of hearing about Garland being a "moderate." Obama wouldn't have picked him if he wasn't going to be a reliable liberal on everything that mattered, including the 2nd Amendment (he voted to hear Heller en banc to reverse the panel that held an individual right).

  • wreckinball||

    The shit show that just happened was due to the left, yes one side not both sides, going nuts because they perceive they are losing their ability to legislate and end around the constitution by use of SCOTUS.

    The constitution is libertarian, not to be confused withe decidedly non-libertarian site Reason. If you uphold the constitution then you have to pass laws or amend the constitution which means you need a majority and/or super majority for your idea. Liberal leftist ideas are not popular enough for a super majority.

    The last 60 years we have had one significant amendment ,the 18 year old vote. Lefties have achieved their other goals through activist judges who end around the constitution. It was much easier.

  • DWB||

    So, negotiate with Democrat terrorists?

    Yeah ... no.

  • Sarcastr0||

    Democrat terrorists, OMG!

    Try not to cut yourself on that edge. Because declaring your opposition are actually just like violent enemies does make you super cool on the Internet.

    Next say all DemonRats should go to Gitmo!

  • DWB||

    Interesting to see where your mind goes ... your prejudices are showing.

  • Rev. Arthur L. Kirkland||

    I have no interest in negotiating with stale-thinking, intolerant, poorly educated, authoritarian Republicans.

    Win elections, Republicans, or be prepared for even more of this damned reason, tolerance, science, liberty, education, and modernity.

  • David Welker||

    If we eliminated court-packing as an option, then there would still be remedies for an out-of-control Supreme Court. They include executive branch refusal to execute judicial branch decisions where the President has a principled constitutional objection. And jurisdiction stripping. Congress has the power to limit the jurisdiction of the Supreme Court.

    I find it amusing that all of these "originalists" are now insisting that our constitutional design is so defective in such a basic way that we need a major constitutional amendment to limit the power of Congress relative to the Court. The Constitution does not establish a judicial dictatorship. Instead, it established the judicial branch as a separate branch of government. (And by the way, not necessarily even an "equal" branch, whatever that means. Nowhere in the Constitution does it say that the three branches of government are all equal to each other.)

    (cont.)

  • Lee Moore||

    I find it amusing that all of these "originalists" are now insisting that our constitutional design is so defective in such a basic way that we need a major constitutional amendment to limit the power of Congress relative to the Court.

    Why would you be amused that "originalists" might think the Constitution might usefully be amended ? Originalism is simply an interpretative scheme - a theory as to how to interpret legal text. The fact that originalists think legal text should be interpreted according to its original meaning does not imply that they approve of the law so interpreted. It simply means that that's what they think the law is. If he thinks the law is X, but an originalist thinks it would be better if it was Y, then the natural conclusion is that it would be worth changing it from X to Y.

    An interpretative scheme whereby if the Judge thinks Y would be better than X, and therefore the law is Y, notwithstanding the text and without any need for amendment, is not originalism.

  • Robes Pierre||

    The Democrats should pack the Court. And then the Republicans should do the same. The Supreme Court was a bad idea. It's never been a bulwark of freedom or rights. After Gore, and now these last two appointments, it has lost all credibility. It's only a question of how it dies now. Good riddance.

  • iowantwo||

    I offered a solution days ago when this article was posted. No interest at all in pursuing it.
    Democrats and Republicans both compromise and agree to expand the size of the court. In an ordered slow process. 1 new justice every 4 years until the agreed to number is attained. This tamps down the crazy and reduces the importance of a single justice. I can only conclude a solutions was never what the article was seeking.

  • Lee Moore||

    Your solution is worthless because you do not understand the problem for which a solution is being sought. Nobody thinks we need to add more Supreme Court Judges because nine is too few. The "problem" is that the majority on the Supreme Court is not to the taste of the Democrats. There are 5 Judges who are broadly aligned with R preferences, and 4 Judges who are broadly aligned with D preferences.

    This arithmetical problem could be solved by (a) adding more D appointed Judges, (b) subtracting some R appointed Judges, or (c) a mixture thereof. The Constitution currently forbids (b) or (c) - no subtracting is permitted - and therefore (a) is the only solution that is achieveable by a D President and a D Congress, without recourse to Constittuional Amendment.

    Except of course there is another solution - the Constitution can effectively be changed by SCOTUS deciding that it means X rather than Y. But you can't use that one either if you're 5-4 down on SCOTUS already.

  • iowantwo||

    So you aren't interested in a solution?

    Read Trumps book,' The Art of the Deal"

    Restate the problem, offer the solution. Do you really want an escalating tit for tat, poo flinging fight? I don't

    A constitutional amendment? No serious person sees that as a solution. So it is no solution. So we are forced into the reality of the afore mentioned tit for tat, expansion of SCOTUS. That is a very real probability. So expansion is inevitable.
    I have offered a solution. One that is politically palatable to both sides of the debate. A solution that addresses the perceived problem of a politicized SCOTUS. ie; water down an individual Justices vote.While adding Justices slow enough that Presidents from both parties are likely to have an equal hand in the ideological selection

  • EscherEnigma||

    I'd be up for not having a set limit, and have the new justices be a regular thing rather then a "oh, someone died/retired" thing. So after we reach a point where everyone can agree it's okay to go back to normal operations, it's just that each president gets to seat one or two justices, with some incentives built in to curtail the senate refusing to do it's job and the president to appoint appropriate picks†.

    That said, another benefit of having a larger court is that it can operate more like a normal appeals court. for a given case only three judges sit for it, and that decision can then be appealed to the en banc court.

    Of course, the real problem is that while it's easy to think of better systems for the SCOTUS, it's very difficult to figure out how we get from where we currently are to that new system in a way that doesn't look like partisan court packing.
    _________
    †First WAG at it, if the norm is "two appoitnments per term", then if the senate and president have not been able to agree to a justice by the end of the term, the president just gets to pick whoever. This puts a limit on senate stalling, but also gives them both reason to work together as the president would obviously prefer their pick on the SCOTUS sooner then later, and stalling too long means the senate gets no say at all (and they like having a say). Just a quick wag.

  • Lee Moore||

    As to having a larger court to allow panels, that does have the merit of applying greater control on the Appeals Courts. At present the Appeals Courts can hear lots of cases with panels, and flood SCOTUS. As Judge Reinhardt said "they can't catch 'em all."

    As to your wag, I don't think much of it. It gives the President all the power. The point of the current system is that it enforces "no action" in the absence of agreement between Senate and President. - so that the President is constrained in his choice by what the Senate is willing to accept. (The same division of power system applies to legislation. You have to get the House, the Senate and the President to agree. If they don't, you get "no action.") This is all part of the founders cunning plan to limit the power of any one actor or institution.

    There are some things in government where "no action" as the default might be a bad thing, but it's hard to see why appointing a Supreme Court Judge is one of them.

    In the extreme case of all 9 Justices sharing the same bad fish, it's very likely that political pressure would force the President and Senate to agree on a few new Judges.

  • Tamfang||

    One appointment during each term of Congress happens to be the historical average. Let the size fluctuate naturally (unless it falls below five, say). No President gets a jackpot.

  • Lee Moore||

    The Ds are not confused about the problem that confronts them. Nor are they stupid. or at least they're no stupider than the Rs. They would like their guys (and gals) to control the Supreme Court. They don't mind if they control it 5-4, or 55-54. Restating the problem is no help unless one or other side is confused about what the problem is. They're not.

    Increasing the number of Judges does not water down the importance of each Judge, because a Judge is worth zero if he doesn't tip the majority, and infinity if he does. If the Court was balanced 4004-4004, there woud still be an almighty battle over the 8009th Judge's confirmation.

    There is no solution to the D's problem, except one that results in them getting a majority on SCOTUS (and quickly enough for them to enjoy it while they're still alive.)

    The solution to the nation's (different) problem of having one of the two political parties wanting to pack the Court ,is simple. Punish the wannabe court packers at the polls, until they change their mind. We will see if that is what the voters have in mind.

  • Brett Bellmore||

    The last actual packing proposal that I saw from a Democrat that was actually specific was to go straight from 9 to 15.

    I suppose you can call it a quality control issue: It's very hard to pick judges who will be 100% reliable in a life tenure position. So they wanted a 10-5 or 9-6 majority, to allow them to prevail even with a defection or two on some cases.

  • Lee Moore||

    This seems unreasonably pessimistic. R appointed Judges defect quite often. I don't recall a D appointed Judge ever having defected in a politically contentious case, where the result hung on their loyalty.

  • ||

    I would hate to see the number of supreme court justices fixed by amendment. Much better to have a provision that a reasonable period of time -- say, 12 years -- intervene between an increase or decease vote and the implementation of that increase or decrease.

  • Slocum||

    Assuming Republicans retain the Senate, the way to get Democrats to go along with the plan sans concessions is for the Republicans to hold out the possibility of packing the court themselves if Democrats won't support the amendment. Plan A is the amendment. But if Democrats won't go for plan A, then that would mean they obviously want to keep open the option of enlarging the court at some later date. In that case....why wait?

  • Lee Moore||

    The Rs (like the Ds) could only pack the Court if they first passed legislation increasing the size of the Court. That would require the majorities in the Senate and the House as well as the Presidency, and it would require 50R Senators willing to nuke the filibuster for legislation. So that would require about 80 R Senators since barely half of them would dream of nuking the filibuster for legislation.

    For the Ds it would be easier since it's unlikely that anyone except Manchin would object to nuking the filibuster at a time when that was to the advantage of the Ds.

    So your Plan B threat is not a runner. But even if it were a serious threat, it would only work, as Brett has explained, if it was followed up with a host of other things to make sure the other side never got in again. Without that, the Ds would simply repack the Court when it was their turn. Indeed for the Rs to pack the Court would be royally dumb, since at present their Judges are in the majority and there is very serious doubt as to whether the Ds would actually go the full Rev Kirkland. Hence they've currently got a good chance of a conservative majority on SCOTUS for a decade or so, and maybe longer. if the Rs packed the Court first, there'd be no doubt that the Ds would repack it.

  • chiMaxx||

    To get a Court-packing amendment that would pass, I'd want it to raise the Senate vote requirement to 2/3 of sitting Senators, to require Presidents (on both sides) to choose candidates with at least some bipartisan appeal.

  • Liberty Lover||

    It won't happen. You see court packing is only bad when you are out of power. When you are in power it is the greatest thing you can imagine.

  • TxJack 112||

    Leftists want to pack the court because the courts are the only way they have to impose "laws" they cannot get passed through state legislatures and Congress. Leftists have been using the courts for years to override the will of the people and rely on activist judges to do it. The much larger issue is the acceptance of judges who have moved far beyond their Constitutional role of interpreting laws and instead have appointed themselves "super-legislators" who write law from the bench.

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