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Proposed Constitutional Amendment Against Packing the Supreme Court

Ilya Somin raises the issue of packing the Supreme Court.

To foreclose that possibility, I am proposing a constitutional amendment to prevent Congress from passing a statute to pack the US Supreme Court with more than nine members. If one party gains control of the White House and both houses of Congress, such a move is at least a possibility in the current degraded political atmosphere. If a party successfully packs the Court (as FDR tried to do during the New Deal), such an act would likely lead to yet more packing the next time that the other party controlled the White House and Congress.

To prevent such a tit-for-tat escalation, I propose that Congress should immediately pass and submit to the states for ratification a constitutional amendment to prevent increasing the size of the Supreme Court (and to undo any packing that happens before ratification).

I cannot predict how the politics of this would play out, but I would imagine that any member of Congress who refused to support such an amendment could be plausibly accused of refusing to support it because they hoped to pack the Supreme Court sometime in the future. Of course, that would not be the only reason that can be imagined to oppose the amendment—Glenn Reynolds claims to favor a large Supreme Court of several dozen members—but an inclination to pack would be the likeliest reason for opposition.

Though some Democrats would oppose the amendment because ideally they would like to pack the Court, I wonder how many Democrats trust the Republicans in the future to be less partisan than they would be. I don't sense much trust emanating from either side.

In the long run, to prevent one party controlling the Supreme Court decade after decade, to prevent politically strategic retirement, and to even out presidential opportunities to appoint justices to the Court, I have long favored an additional amendment providing for 18-year or 24-year terms for Supreme Court Justices.

Proposed Amendment Against Packing the Supreme Court

Section 1 [Size].

The size of the Supreme Court of the United States shall be nine members, consisting of one Chief Justice and eight Associate Justices, though from time to time one or more of these nine offices may be vacant.

Section 2 [Senior Status].

A Justice who has accepted senior status or another form of partial retirement from the Supreme Court shall not be counted as holding one of the nine judicial offices on that Court. Such a Justice is barred from participating as a Supreme Court Justice both in cases before the Supreme Court and in the adoption of judicial rules, but may be involved in cases before lower federal courts when properly assigned.

Section 3 [Repealing Any Increase].

If before this amendment is ratified by the States, the size of the Supreme Court has been increased by statute or constitutional amendment to more than nine members, once this amendment is ratified, those additional judicial offices beyond the nine in place in 2018 are void. The then current holders of those newer offices would be immediately removed from the Supreme Court, no matter whether they were appointed to the Supreme Court before or after any Justices sitting in the pre-existing nine offices. A Justice removed from the Supreme Court under this section may continue to serve as a federal judge during good behavior. On leaving the Supreme Court, such a removed Justice may choose to accept and fill any vacant Article III judgeship, without further nomination to that particular judgeship by the President and without the advice and consent of the Senate.

Section 4 [Enforcement].

The Congress shall have the power to enforce this article by appropriate legislation and the Supreme Court shall have the power to enforce this article by appropriate judicial rulemaking consistent with that legislation.

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  • Brett Bellmore||

    Generally a good idea, but I'm unclear about what this part is meant to do: no matter whether they were appointed to the Supreme Court before or after any Justices sitting in the pre-existing nine offices."

  • Brett Bellmore||

    The reason I ask, is because, aside from the chief justice, they're all just seats. How could somebody appointed before the packing occupy a seat created by the packing?

    I suppose this is meant to deal with packing scenarios which alter the form of the Court, too?

  • MatthewSlyfield||

    Appointing new justices ideologically aligned with the current president to one of the currently existing nine seats would be court packing even if it changed the ideological balance of the court.

  • MatthewSlyfield||

    wouldn't. Note, impeaching existing member just to replace them with a different ideology would be court packing.

  • Brett Bellmore||

    But unlike court packing, impeachment requires a supermajority vote in the Senate. Packing can be done as ordinary legislation, that's the real threat.

  • Rev. Arthur L. Kirkland||

    It is not a threat. It is a comfort, consistent with the rule of law.

    Relax, Brett, and learn to enjoy progress.

  • Larvell Blanks||

    I assume it refers to the situation where Chelsea Clinton is appointed to the new 10th seat, and then subsequently Ted Cruz is appointed to take the place of the retiring Justice Ginsburg.

    I'm sure giving the Supreme Court the constitutional authority to enforce this amendment by "appropriate judicial rulemaking" wouldn't be a problem at all.

  • Longtobefree||

    How can section four exist? I thought a constitutional amendment was above legislation.

  • Brett Bellmore||

    Many constitutional amendments allow for enabling legislation rather than being presumed to be self executing. But I would agree, this seems pointless, as the amendment does not seem to actually require any legislation to effectuate its purpose.

    Worse, since this is an amendment designed to undo legislative mischief, including an enabling legislation clause is a bad idea, as it suggests that the amendment isn't self-executing, and the legislature could frustrate it by refusing to act, or passing legislation designed to moot the amendment.

    Since the whole purpose of Court packing is to make the Court a rubber stamp for the party that does it, you would expect the packed Court to declare the effort to frustrate the amendment constitutional.

    Section 4 should simply state that the amendment is self-executing.

  • David Bremer||

    The problem is that you're ignoring the various other provisions of the amendment that could require congressional work. I'm thinking about legislation defining "senior status" or for assigning senior judges (so they can be "properly assigned").

    My concern is that later courts could see that provision as empowering Congress to tinker with things. So, could Congress impose an age limit at which point justices must take senior status. Could the pass legislation providing for 12 justices, only 9 of which are assigned to any case? Let the living constitutionalists say that the 9 justices refers only to the number actually hearing a case, not the total number available.

    But in concept, I'm all for it.

  • Naaman Brown||

    The phrase "Congress shall have power to enforce this article by appropriate legislation" appears in
    Amendments XIII, XIV, XV, XVIII, XIX, XXIII, XXIV, and XXVI.

  • Krayt||

    Generally that's a good thing as, in theory anyway, the government in general, and Congress' legislative power in particular, can't do anything without explicit authorization by the Constitution. As the amendment changes the fundamental structure somehow, perforce Congress can't have power to enforce it.

    Is there anything in this that might require legislative powers Congress doesn't already have for the courts?

    Any 10th+ appointments exkickamitated are eligible for appointment to lesser judgeships without advice & consent. Is that the case already for normal retirements?

  • santamonica811||

    exkickamitated

    ?????? I can't even make a guess.

  • loveconstitution1789||

    Add in age limit.

    I would say 75 years old but 80 years old maximum.

    People above 75 are unsafe to drive let alone handle a middle aged person's workload of a few hundred cases.

  • Smooth Like a Rhapsody||

    That is a common impulse.
    But note that that creates a perverse incentive to appoint very young (and avoid older, and presumably more seasoned) people.

  • loveconstitution1789||

    Then set a minimum age like 35.

    RBG is too old to do her job effectively. The business world tries to get elderly people, above 55, out the door for similar reasons.

  • Brett Bellmore||

    Speaking as somebody who's coming up on 60, 55 is a *bit* young to label "elderly". For all that it's old enough I've been asked to start training my replacement, and had no complaint about it.

    There's a huge difference in practice between 55 and 85. I spent the weekend with a jackhammer getting at a leak under my slab floor, I'm pretty sure RBG would break a bone looking at a jackhammer.

  • loveconstitution1789||

    I think its clear that somewhere between 35-70 is the sweet spot for judges. Give or take a few years.

    They can perform their job, dont tend to have massive health problems that lead to long absences from work, and have most of their mental faculties for sound legal reasoning.

    There is no reason for someone to be working as a government bureaucrat after 70. Enjoy retirement.

  • loveconstitution1789||

    I tend to agree with your age assessment that 'elderly' is set a bit low. Older people can do things in their late 50's and 60s when they are in good health.

    55 and over, you can typically get the elderly discount.

    RBG looks like a bag of bones. She is too old. Breyer is old too. Thomas is old.

    I worry about motivations for people that cannot retire from government service by 65. I think it tends to be the notion that the World cannot operate without you, so you have to stay on. Or you hate not working. People just tend to have higher medical bills, the older they get. Save the taxpayers some money and retire already.

  • Kyfho Myoba||

    Scalia was 79 at death, but looked and spoke like he was decades younger. Built like a bull.

    Prolly 'cause he dead-lifted, bro.

  • James Pollock||

    Lawyers in general tend to either retire early or not at all.

  • apedad||

    Since you think they're unsafe to drive, then they would also be unsafe to possess/handle a weapon, right?

  • mad_kalak||

    "Since you think they're unsafe to drive, then they would also be unsafe to possess/handle a weapon, right?"

    False equivalency. Show me the evidence that there are lots of duffers out there who shoot people due to the bad eyesight or trembling hands, compared to duffers who cause accidents.

  • VinniUSMC||

    False equivalence, is that the best you've got?

  • mad_kalak||

    I was accusing apedad of making a logical fallacy, for which there is clear evidence of in the text of his comment. There is evidence of worse, but that's a matter of interpretation.

  • VinniUSMC||

    @mad_kulak

    I was also accusing apedad of making a logical fallacy. We just happened to post that at the same time. My reply was directed at apedad, not you.

  • mad_kalak||

    Cool that we were both calling out his mistake at the same time though. Thanks.

  • santamonica811||

    Vinni
    That is why, when posting responses, you have to either include the text you're responding to, or, at least give the name of the person you're responding to. Then, it's clear to whom you are responding. (Well, of course you do not *have* to. But you do, if your goal is to be understood.)

    Don't worry. We all made that mistake the first few times we posted. Once you have a bit more experience, you won't make that mistake, and your posts will end up being more easily understood.

  • loveconstitution1789||

    My 83 year old grandmother can shoot a gun on target.

    She is not safe to drive as she is scared of other drives and cannot look into her blindspots or generally pay attention to everything a driver needs to.

    Gotta love real life!

  • Brett Bellmore||

    Reaction time drops as you age, by your 80's you can still be sharp as a tack, and not have fast enough reflexes to be safe on the road.

    That doesn't mean you can't still shoot straight if you're allowed time to set up the shot.

  • Grichard||

    I'm sure you meant to say that reaction times *increase* as you age. Still, I'm happily reminded of Dr. Johnny Fever getting drunk on air, with his reaction time improving with each drink.

  • An Owl Named Dur||

    Nope. I was invited on a pheasant hunt on T Boone Pickens' ranch two years ago. At 88, then, he was the best shot on the field, and there were no novices present.

  • Leo Marvin||

    Anecdotes about elderly shooting ability are more persuasive than those about elderly driving or thinking ability.

  • Longtobefree||

    "Driving is a privilege, not a right"
    I read that somewhere - - - - - -

  • Kyfho Myoba||

    That you read that somewhere does not make it any less bullshit.

  • santamonica811||

    Kyfho,
    You think driving is a legal right? Really???

  • gormadoc||

    So you agree with Kirkland that Trump should not win reelection?

  • loveconstitution1789||

    We're talking about the Supreme Court.

    Trump will win reelection.

    Currently, there is no age limit for Presidents nor Congressmen.

  • gormadoc||

    Currently, there is no age limit for Presidents nor Congressmen.

    There is no age limit for Supreme Court Justices either, so that's not very important.

    If someone over 75 is unable to serve on the Supreme Court what magic makes them able to serve as President? Is it clap-your-hands-and-make-believe magic or a more sinister kind?

  • phattyboombatty||

    Most people should agree that the job of President is much more taxing than being a Supreme Court justice. So, if any job should have an age limit, its the President.

    The counterpoint though is that the President is directly elected by the people. And if the people know the candidates age and still decide to elect him/her, then why shouldn't the people get to make that choice? Unlike the lifetime appointments of judges, a President's term is only 4 years.

  • gormadoc||

    The President is not directly elected. The electoral college decides, and while most states require their electors to cleave to the majority vote, it doesn't actually matter what the vote was. Consider Faith Spotted Eagle in 2016, who had 0 popular votes counted but one electoral vote.

    And that reasoning can easily apply to other qualifications, like being a natural-born citizen. Why should that matter if the people vote for them anyway?

  • SimonP||

    Yes - why merely cement a conservative majority for a generation or more, when you can push the Court even further to the right?

  • loveconstitution1789||

    The SCOTUS is moving to the more conservative side of things, whether you like it or not.

  • Kyfho Myoba||

    Except for Kavanaugh, who craps all over the 4th & 8th amendments. His rectitude on the 2nd doesn't really balance that out. He's got a fetish for precedent and voted with Merrick Garland 93% of the time.

  • rchive||

    Technology may at some point in the future (possibly very soon) allow for people to live much longer than they do today. And before that, technology may allow the prevention or the slowing of effects of old age. Putting a particular age requirement in a Constitutional Amendment, which could be very difficult politically to change afterward, seems like a bad idea.

  • loveconstitution1789||

    Since we are talking about an amendment about the SCOTUS.

    The US Marshall's Service or some equivalent court security police force should be under the power of the SCOTUS's administration. This would give the Court something to challenge the co-equal branches if they decide not to abide by the SCOTUS ruling that some law or policy is unconstitutional.

  • mad_kalak||

    That has to one of the worst ideas I have heard in a long, long time. It would only embolden the court to make more anti-majoritarian decisions. Might as well give them a huge budget too, so that they can give out federal grants while you're at it.

  • loveconstitution1789||

    The courts ARE supposed to make decisions without consideration for majorities.

    The SCOTUS was charged with making decisions about the Constitution and to set up inferior tribunals to hear lesser federal issues.

    The main thing the SCOTUS should be doing is striking down 75%+ of the unconstitutional federal laws.

    As I said, give the courts an existing Marshall's service not create some new budget just for that.

  • mad_kalak||

    Yes and no. Courts are supposed to reflect majoritarian values through the appointment process, and only be counter-majoritarian in upholding individual rights. A very real check on the courts in our system of check and balances, is that the court has neither a purse nor a sword. This limits their institutional power, and rightfully so. By combining the power of a court, with the power of executive implementation, you're heading towards Madison's definition of tyranny, which is all the powers of government under one roof (obviously a paraphrase).

    You also, without evidence, assume that laws that will be struck down if the Court had their own "Marshals" like agency. But Courts rule laws unconstitutional so so rarely that we are spill tons of ink on it when it does happen. 75%? Not gonna happen. Only in your dream is the Court is going to play libertarian Galahad. Rather, imagine a court with a Marshals service that would order a baker to bake the gay wedding cake, or buy the morning after pills.

  • loveconstitution1789||

    Luckily, the courts are being overhauled with more conservative judges, so I predict more and more Socialist statutes will be struck down as unconstitutional.

  • mad_kalak||

    I doubt it. What I think will happen, is that conservative activists will find judges that give more "rights" to the right, or expand on rights the conservatives already support, by interpreting existing laws and amendment to (for example) find a right to own a 30 round magazine, or a right to use tax money for school choice through free speech or some such.

    This will entrench conservative policy in the culture, because one something is a "right" it rarely gets taken away, especially if it is not a positive right, but a negative right, in that it's something the government can't do.

  • Kyfho Myoba||

    > by interpreting existing laws and amendment to (for example) find a right to own a 30 round magazine, or a right to use tax money for school choice through free speech or some such.

    You show your ignorance of both conservative/libertarian thought and of legal reasoning by this statement.

    A conservative/libertarian justice would use the reasoning in Marbury v. Madison on the 30 round magazine and say that since the Constitution does not grant Congress the authority to regulate magazine sizes available for purchase or ownership in the several states in Article I, Section 8, then by virtue off Articles in amendment IX and X, Congress has no such authority.

    The courts have already ruled that "school choice" programs do NOT use tax money, as said moneys do not ever come into possession of the state/municipality.

  • mad_kalak||

    Wrong, a conservative would say a 30 round mag is in "common use" as per Heller and say it is protected by the 2nd Amendment. And school choice does use tax money, property tax money, it just redirects it. What are you on? The courts would use the precedent in Trinity Lutheran to uphold school choice.

    Sheesh.

  • Kyfho Myoba||

    > This will entrench conservative policy in the culture, because one something is a "right" it rarely gets taken away, especially if it is not a positive right, but a negative right, in that it's something the government can't do.

    You say that like it's a BAD thing.

    There is no such thing as a "positive right". All rights are negative in nature. Any other interpretation requires an infinity of epicycles and a Soviet bureaucracy of unimaginable proportions.

  • mad_kalak||

    I'm not saying its a bad thing, I'm saying that's how the Courts use their power to entrench policy these days, for conservatives or liberals, using "rights". Rights on the right, and rights on the left.

    And yes, there are such things as positive rights. Mostly empty promises, as you say, but they do exist, and in this country. You have a right to an attorney, if charged with a felony, don't you? That is a positive right.

  • James Pollock||

    " I'm saying that's how the Courts use their power to entrench policy these days"

    That's how they did it back in the Lochner era. The entrenchment dissipated, because the policies were stupid and so was the legal reasoning that supported them.

    "And yes, there are such things as positive rights."
    There's no such thing as a right unless other people are willing to extend it to you. Take, for example, the right to be treated with dignity and human decency.

  • mad_kalak||

    Yes, let's get hyper-rhetorical, and say that rights are myths. Theorists have been saying as such for a long, long time, and I agree with that. Since we can still believe in myth, collectively, though, then positive rights can still exist because collectively we all agree to extend a positive right to someone. You wanna say that your property taxes shouldn't go fund the county Public Defender's office? Go ahead, but it won't get you anywhere as we, despite the right to an attorney being a myth, collectively feel like extending it.

    As for the Lochner and the rights therein protected were "stupid" that's a matter of opinion. As for getting overturned, or that note how it took FDR sweeping to power and the threat of court packing to make it happen, eh? Rights that get created can get whittled away over time, but they tend to last for a long, long time. The rights that the Warren Court gave us, despite all the nattering about taming the Courts from conservatives and subsequent decisions to narrow their applicability, they are still here.

    What is different that you're missing when you mention Lochner, that you should remember but didn't, is that unlike previous eras, there is a conservative legal litigation movement and associated support structure that actively uses the language of rights to extend conservative policy. That didn't happen in the past.

  • James Pollock||

    "The SCOTUS was charged with making decisions about the Constitution"

    Odd, then, that the power of judicial review was not expressly granted to them, and they had to seize the power by fiat.

  • gdanning||

    Given recent events in places like Hungary and Venezuela, this is a good idea. But I would also remove Congress's ability to limit the subject matter jurisdiction of the federal judiciary, since imposing jurisdictional limits are also a common tactic used by would-be authoritarians.

  • ||

    Yeah god forbid the court doesn't have the right to invent "rights" to kill babies and have anal sex

  • mad_kalak||

    I gotta ask, would you consider it a "right" to have normal sex, of the procreative type? Obviously there are agreed upon societal limits on sexual activity, for example one does not have a "right" to have sex for money (unless the cameras are rolling, har har). That being said, do you think that two consenting adults, of sound mind and body, have a right to have procreative sex?

  • ||

    Nobody has a Constitutional right to have sex at all. But even if you accept that there is such a right, equating the act that brings life into the world with hedonistic, HIV spreading sodomy is a joke.

  • Malvolio||

    Well, I gotta admit, the username checks out (at least the middle part of it).

    But if I don't have the right to get laid, why on Earth should I have the right to not have soldiers quartered in my house?

  • Careless||

    I imagine he would say because the third amendment exists.

    but why would you feed the trolls like that, and so incompetently?

  • Careless||

    When you have an obvious troll like ARWP, you have a couple of effective options: You can make fun of him, you can destroy his arguments, or you can ignore him

    You chose to engage, but made yourself look stupid in comparison with him.

    you chose poorly.

  • gormadoc||

    As we all know, every time a man and woman have sex they automatically get pregnant and they never spread STDs this way.

  • JesseAz||

    The constitution doesn't grant rights. It grants powers to the federal government and then restricts those powers in specific manners.

  • Kyfho Myoba||

    Bingo!!!

    Winnah! Winnah! Chicken Dinnahh!!

    "endowed by Nature or Nature's God"

  • James Pollock||

    "Nobody has a Constitutional right to have sex at all."

    Unless the Constitution grants the Congress the power to limit it, you have the right to do whatever you want, as along as any person(s) you are doing it with are also adults and consent to whatever it is you're up to. This is true whether it's some kind of sex thing or safe and responsible use of a firearm, or both at the same time.

  • ||

    Nobody has a Constitutional right to have sex at all.

  • mad_kalak||

    So then, you would have no theoretical problem with a government law (since it violates no rights) that would assign someone at birth (chosen by random lottery) to be modern equivalent of a Vestal Virgin?

  • Kyfho Myoba||

    ?!?!?! Ever read Amendments IX, or X?

  • AJD||

    > I gotta ask, would you consider it a "right" to have normal sex, of the procreative type?

    Buck v. Bell says no, doesn't it?

  • Kyfho Myoba||

    Have any of the commenters here even read Amendments IX, and X?!?

  • mad_kalak||

    When RightWingPatriot is ever asked for specifics, he skates. That's where I was eventually going, since you stole my thunder. I was going to ask him if he supported eugenics laws first, since no one has a right to sex.

  • James Pollock||

    There's a wide variety of eugenics laws.
    Mandatory testing for genetic diseases to obtain a marriage license is at the less-restrictive end. The kind that the USSC disposed of in Loving v. Virginia, on the other hand...

  • mad_kalak||

    Are you trying to pop balloons or something? Yes, there were eugenics laws, and they were associated with the Progressive Movement of the 19th and early 20th Century, and people view them with appropriate distain today. Sadly, not the rest of progressivism. Anyway, progressivism being what it is, disliked by ARWP and all forward thinking people, I was going to point how his viewpoint on rights and gay sex was perfectly in line with progressive era values he distains.

  • Careless||

    ARWP is an obnoxious troll, although I'm not completely sure he isn't actually a genuine RW nutcase, and it's annoying that he won't go away.

    Still, it's pretty funny when Malovio gets humiliated like that

  • VinniUSMC||

    There are plenty of commenters here who would vote in favor of any Democrat who voted against this proposed amendment for the explicit purpose of attempting to pack the court in the future.

  • James Pollock||

    Nobody's interested in what you and your buddies would do.

  • Careless||

    He was talking about you, James. People who will vote for typical Democrats in the future.

  • apedad||

    I dunno...

    While there's been some (rumors, backroom talk, legal blog spectulation?) about court packing, is it a REAL POSSIBILITY and not just somebody's (disgruntled) thinking?

    Only once in the 230 years of our Constitution was court packing a real issue.

    Also, if one party adds Supreme Court members, the next party doesn't have to then add more; they can also (by legislation) reduce the number.

    Not sure we really need this.

  • Brett Bellmore||

    It's a real possibility. Granted, FDR got too much pushback from a Democratic Congress to get away with it, but things are a lot more partisan now.

    And, remember: The point of adding new members is to make the Court a rubber stamp. It then rubber stamps your subsequent legislation which prevents there from being a "next party".

  • gormadoc||

    The last time we reduced the number of Justices it was through just not appointing new Justices when the seat expired, so they'd have to craft legislation to actually remove Justices from the Court for it to matter. It seems like it might be easy to just target whatever Justices were added over nine, but how will it work if it takes several terms for the opposing party to take power, allowing Justices who were originally added over the limit to remain, or if the legislation only passes after Supreme Court picks were made by their own party? Just removing the last Justices added could work if the party didn't appoint them, but I bet it'll be politically unfeasible to remove Justices a sympathetic President added. It seems easier for each successive administration to just add more Justices.

  • Kyfho Myoba||

    Can't remove a Justice from office unless they misbehave (opposite of good behavior) or are impeached.

  • James Pollock||

    " the next party doesn't have to then add more; they can also (by legislation) reduce the number."

    Article III judges (including Supreme Court justices) can only be removed for bad behavior, and being surplus (and nominated by the wrong party) isn't sufficient.

    The thing is, even when partisans go all out to get "their guy" in, once in, some of "their guys" turn out to have an independent streak once confirmed.

  • Careless||

    It is a good question.

    I'll say that I've read a ton of people on the Left supporting it and virtually none against it, but it's entirely possible that's just the way media works, feeding outrageous opinions.

    OTOH, we had articles in Slate and Vox yesterday calling for SCOTUS to be abolished.

  • Portus||

    Why not add the following to make it more bipartisan in the current environment:

    After the President nominates a Justice to the Supreme Court, the Senate shall have six months from the date of the nomination to conduct a vote on whether to provide its advice and consent to such appointment. If no such vote is held, such nominee shall be deemed approved and shall be appointed a Justice.

  • Public Quest||

    That son't help because all the supporters of the nominee have to do is run out the clock. There has to be something undesirable to both supporters and opponents if the clock runs out.

  • AJD||

    After six months, all acts of Congress are null and void until such vote is held.

  • AJD||

    Oops i guess that should say all acts of the Senate.

    But that said, a majority of the Senate can already approve a nominee. The rules allow it, and even if the rules didn't, a simple majority can change the rules. It's only tradition (and threat of reprisal) that can stop approval of a nominee supported by a majority of the Senate.

  • nonzenze||

    So President Trump appoints Mitch McConnell. Mitch never schedules a vote.

    Seriously?

  • Careless||

    Yes, no one has any good solutions for cases where the Senate doesn't want to vote or confirm anyone the president will appoint.

    What Lindgren's proposal here is going to do is just lead to more Garlands, no appointments if the Senate and president aren't of the same party. They're not going to serve full terms if they have to worry about having a Hillary situation

  • Public Quest||

    You only have half the coin. We need to fix the confirmation issues too. I also agree with prior commenters that there is no need for implementing legislation.

    Section 1. The Supreme Court of the United States shall consist of the Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

    Section 2. If the Senate fails to either reject or confirm a nomination made by the President under Article II, Section 2, Clause 2, within 120 days of such nomination, or for a nomination made in the calendar year of a Presidential Election within 200 days of such nomination, the President may elect to either grant a Commission of the same form and conditions as one authorized when the Senate is in Recess, or to call a special session of the Senate to convene and act on said nomination no less than five and no more than ten days later, at which a majority of those voting, regardless of the presence or absence of a quorum, shall either reject or confirm said nomination. The Vice President of the United States shall have no Vote, unless they be equally divided.

  • bernard11||

    I would simply say that after 120 days, say, any Senator can call for a vote, and the Senate can conduct no business of any kind until the vote is held.

  • Brett Bellmore||

    Just require the Senate to affirmatively reject nominees by a floor vote, or they go through. You'll get your vote if the Senate doesn't like the nomination.

  • bernard11||

    Not necessarily. The number of ways to stall is large. Better to avoid it.

  • MatthewSlyfield||

    "Just require the Senate to affirmatively reject nominees by a floor vote, or they go through."

    The problem with this is that the Senate Majority Leader, because he controls what comes up for votes on the full senate would then have the power to confirm a nominee, even if he is the ONLY senator who supports the nominee, simply by preventing a floor vote.

  • Brett Bellmore||

    That's just to say we need some serious internal reform of the Senate, (And House!) too.

    Really, we need a constitutional convention, because this amendment, however much it's needed, isn't going anywhere.

  • Stephen Lathrop||

    Brett, only sovereign power can constitute a government, or decree a constitution.

    The worst time to call a constitutional convention is anytime the sovereign people are deeply divided—like now. With little consensus possible among the constituting authority, nothing good can happen.

    Depending on the rules (which would be contested so bitterly that the convention might not come off for that reason alone) you would either get no results on any substantive proposal, or you would get results endorsed by only a narrow majority, or, quite likely, you would get results endorsed only by an actual minority among the jointly sovereign people—guaranteeing an instantly illegitimate government, under the control of an illegitimate sovereign. Otherwise, great idea.

    Constitutional remedies are inherently inappropriate—and likely counter-productive to attempt—when the underlying problem you hope to fix is that the sovereign itself is divided, and of many minds about everything. The proposed remedy is related only paradoxically to the problem.

  • bernard11||

    Right, Matthew.

    Also, the maneuvering lets Senators dodge accountability for their votes.

    Ultimately, the Senate's job is to vote on legislation, treaties, and appointments. They should do their job.

    The way to make them is to make it mandatory, without a lot of BS.

  • MatthewSlyfield||

    "The way to make them is to make it mandatory, without a lot of BS."

    Even if we did pass a constitutional amendment requiring such a thing, the courts would probably just declare that it was non-justicable if it every came before them. An unenforceable amendment is pointless.

  • AJD||

    A majority of the Senate can replace the Senate Majority Leader.

  • James Pollock||

    Not necessarily. They have to agree on two things: They don't like the current guy, AND who the new guy should be. It's possible they agree on the first, but not the second.

  • AJD||

    They could always nominate someone who would promise to hold a vote on the nominee and then immediately resign.

    Among innumerable other things. A majority of the Senate *could* vote to eliminate the position of the Senate Majority Leader entirely. The Constitution only requires them to have a "President pro tempore, in the Absence of the Vice President."

  • AJD||

    Which actually leads me to another possibility. Couldn't the Vice President of the United States take his position as President of the Senate and force a vote?

  • AJD||

    Would it need to be more complicated than simply saying that a vote must be held within 120 days?

    Any Senator can then make a point of order that a vote must be held, and a simple majority can overrule the decision of the chair if the chair doesn't sustain the point of order.

  • AJD||

    The thing is, this shows that the rule is pointless, because a simple majority can *already* sustain a point of order that the Constitution *already* requires an up-or-down vote.

  • AJD||

    As I've said before, the *only* thing that allowed the Republicans to block a vote on Garland was tradition and fear of reprisal (those Republicans who would have voted yes fearing the reprisal from the majority of the majority that would have resulted from them forcing a vote).

    If a majority of the Senate *really* want to approve a nomination, there are *lots* of ways they could do so. Those Republicans who want to vote yes could, for instance, join with the Democrats to temporarily replace the Senate Majority Leader.

  • Careless||

    Forcing the Senate to have an up or down vote seems fair

  • OldCurmudgeon||

    Yikes, that sounds like a horrible idea. Why would we want to gut separation of powers?

  • Kazinski||

    You are trying to fix something that isn't broken. The public certainly knows how to punish Congress or a party when they do something contrary to the voters wishes. But the voters certainly indicated they were fine with putting Garland on ice.

  • apedad||

    Also, what's the problem if there were, say, 25 justices?

    Wouldn't that give us a better, more representative court?

    A bigger mix of old and young, maybe some that are not so blatantly Dem/Rep.

    There's only been three justices from Alabama, two from Louisiana, and one each from Texas, Kansas, Indiana (you know, the dumb states).

    The majority have from northeast US (MA, PA, NJ, NY).

  • Michael Loucks||

    The court isn't a legislature (or shouldn't be), and as such, the notion of 'representative' seems to accept that it's a super-legislature, something I don't think was intended, nor is it something I think we want.

  • Larvell Blanks||

    The main problem with something like that is ensuring that President OtherParty doesn't get to appoint 16 justices. You'd have to stagger it somehow.

  • loveconstitution1789||

    No.

  • Rossami||

    The definition of a committee is an entity with a hundred stomachs and no brain. The bigger you make the Court, the slower and less coherent their eventual decisions will become. As Michael Loucks said above, the Supreme Court is not a legislature.

    Nothing in that logic makes nine the magic number, though. Personally, I think it's probably a bit larger than optimal though I've read arguments in favor of matching the number of Justices to the number of Districts. Matching the number of Districts would simplify some of their administrative and oversight functions.

    I do agree, however, that we should be pushing our Presidents to appoint more diverse Justices to the Court. It would be nice not only to get some geographic diversity but also some diversity of prior experience. Maybe even go back to the days when non-lawyers could realistically be appointed.

  • MatthewSlyfield||

    The intelligence of a committee is roughly proportional to the sum of the IQs of the individual members divided by the square of the size of the committee (or (sum(IQs)/size^2)

    Example committee of 10 of average intelligence sum(IQs) = 1000, Size^2 = 100, committee IQ=10.

    Congress is a super committee with 635 members. Think about that for a minute...

  • gormadoc||

    To simplify, you can just do IQav/size, because IQav = IQtot/size.

  • MatthewSlyfield||

    True. And the average IQ of the population as a whole is 100 by definition and Congress has 635 members. Spend some time thinking about that.

    100/635=?

  • mad_kalak||

    If the whole of the Athens were like Socrates, it would still have been a mob.

  • MatthewSlyfield||

    A retarded mob.

  • gormadoc||

    We've got a lot of judicial districts: 89 just in the states. That would make for a really big court. You could match it to courts of appeals courts, which is kinda what we established.

    It used to be matched to the number of circuits (in the old system) and was abandoned because of a perception of disproportionate Southern influence. I imagine any future system will show a similar problem sooner or later.

  • Rossami||

    Sorry, I was trying to say Courts of Appeals but it came out wrong. Thanks for the correction.

  • Michael Loucks||

    I think a much better option than a hard limit, which would be nearly impossible to change, would be to require 2/3 votes in both the House and Senate, and signature by the President to change the number of justices. I'd hate to foreclose forever the idea of changing the number for some unforeseen need in the future. Nine isn't a magic number, and I'd hate to enshrine it such that only a constitutional amendment could change it.

  • Krayt||

    "Yes, but if there be a reason, and if it be a good one, most people will think so, not just those seeking to twist government to their ends, and will approve another amendment."

    Our founding principle -- and why Living Constitutionalism is BS, at least when judges "grant" the government new powers that would be laughed out in previous generations.

    (I view this as distinct from changing social standards increasing the personal freedoms of people, i.e. restricting, not expanding, what government may control.)

  • James Pollock||

    The thing is, a lot of times government increases the freedom of one group of people by limiting the freedom of another group of people. At the stoplight, the people with the green light get to go because the people with the red light have to stop.

  • Larvell Blanks||

    I'd like an amendment limiting the number of justices who went to Harvard or Yale, but I suppose that's impractical.

  • Smooth Like a Rhapsody||

    While we're at it, let's set a limit on the numbers of Catholics and Jews, too.

  • Careless||

    There's going to be a huge fight on the Left before this happens, but obviously

  • MatthewSlyfield||

    A more important thing is to limit the number of ex-criminal-prosecutors on the court, preferably to zero.

  • Kyfho Myoba||

    Bad idea. Right now the ONLY justice on SCOTUS with ANY criminal law experience is Sotomayor. She's got 4 years as a local (Brooklyn) DA. Coincidentally, (or not) she and Gorsuch are the only Justices that have come out for repealing the judicially created doctrine of qualified immunity. She also seems to be the only justice on the left (and sometimes the right as well) that shows any skepticism of the government in 4th amendment and police power cases (gleaned from her opinions as well as her questions during oral arguments), probably because of that experience.

  • Smooth Like a Rhapsody||

    Alito was both an AUSA and US Atty, I'm pretty sure.

  • Kazinski||

    Thomas has also questioned qualified immunity.

  • Bob from Ohio||

    If we are doing a Constitutional amendment, let's do term limits first.

    Other good ideas: age limit [if we are not doing term limits], ability to designate acting justices in case of conflicts, expand the court so it can sit both in panels and en banc

  • James Pollock||

    "If we are doing a Constitutional amendment, let's do term limits first."

    All the Congress is term-limited. Representatives get two years, and Senators get six. Maybe avoid voting for incumbents, if you want them to stop being Congressmen and Congresswomen.

  • phattyboombatty||

    Bob was referring to term limits on the Supreme Court, not Congress.

  • Bob from Ohio||

    Yes, though term limits for Congress area good idea too.

    We have term limits for President. Ohio has term limits for executive officers and members of the General Assembly. Other states [not all] also have term limits for various offices.

    The sky has not fallen in those states.

    There is a lot of inertia favoring incumbents that often makes it difficult for challengers to win.

  • James Pollock||

    The terms of SC justices are limited, as are all others, by biology and the second law of thermodynamics.

  • Gasman||

    Would that limit be one lifetime tenure or two lifetimes tenure.

  • ThePublius||

    So, now that you mention it, what's to stop Trump from appointing additional justices right now? Or even appointing "justices in waiting," have them confirmed by a Republican-majority Senate, ready to fill vacancies as they occur?

  • Brett Bellmore||

    Nothing is stopping him, except for the fact that Republican Senators don't actually much like him, and do have a sense of shame even if they did.

    Based on what the Democrats did to Kavanaugh, I think we can rule out that sense of shame being a factor if they get a Democratic President.

  • Martinned||

    Well, nothing other than that 28 USC 1 says that there shall be [no more than] eight associate justices.

  • James Pollock||

    "have them confirmed by a Republican-majority Senate, ready to fill vacancies as they occur?"

    If the opening doesn't exist, nothing requires that whoever's in charge at the time will honor those appointments. Take a look at Marbury v. Madison.

  • Rev. Arthur L. Kirkland||

    Melania Trump is offering advice on civility and credibility.

    Jim Lindgren is offering advice on the judiciary.

    Kanye West is offering advice on North Korea, mental health, dragons, industrial policy, and the Constitution.

    Jared Kushner is offering tips on the Saudis.

    Eugene Volokh is offering tips on free expression.

    Kim Kardashian is offering tips on the justice system.

    Rudy Giuliani is offering tips on Melania.

    Brett Kavanaugh is offering tips on "drinking games."

    Donald Trump is offering tips on the Bible.

    Republicans are entertaining, if nothing else.

  • Josh R||

    What is Eugene doing on that list?

  • Rev. Arthur L. Kirkland||

    Peddling his special brand of opposition to censorship.

  • Josh R||

    Do go on ...

  • Rev. Arthur L. Kirkland||

    Prof. Volokh objects to censorship when he perceives the liberal-liberal mainstream, and our strongest schools in particular, are engaging in censorship.

    He is substantially less troubled when conservatives are engaging in censorship.

    He is far less troubled when he gets to be the censor.

    In other words, a standard-issue partisan.

  • Josh R||

    I have not gotten the impression that Eugene is biased when it comes to speech. Can you quantify how many times his position align with conservatives versus liberals?

  • Kyfho Myoba||

    Better yet, specify.

  • Rev. Arthur L. Kirkland||

    He rants and whines about "censorship" on strong liberal-libertarian schools but is mute with respect to similar (or more severe) censorship on conservative-controlled campuses.

    He has engaged in censorship more than once -- banning at least one commenter for poking fun at conservatives, for example, and deleting comments in other circumstances (for use of the term "cop succor," for example.)

    A reliable but imperfect sifter of Prof. Volokh's expressed positions on freedom of expression is whether the speech would be favored or disfavored by movement conservatives.

  • Finrod||

    Obviously Eugene doesn't censor enough, because you're still here.

  • Martinned||

    Kind of you to permit vacancies. Any thoughts on the maximum length of vacancies? Why not throw in a clause that says that a nominee shall be deemed to have been approved by the Senate once 6 months/a year/whatever since their nomination have passed?

  • nonzenze||

    Because the Senator Majority Leader has nearly absolute control over what votes go to the floor. If you make a default-approve rule, that means the ML can singlehandedly 'confirm' a nominee simply by not scheduling a vote.

  • Martinned||

    That sounds like a Senate problem, not a problem for anyone else. Maybe one person shouldn't have that much power over what does or does not get voted on anyway. (Silly idea, I know.)

  • James Pollock||

    So what you really need is a Constitutional requirement for an up-or-down vote within X time of nomination, and take the scheduling power away from the Senate's majority.

    The Constitutional text could be amended to state that the conformation vote for a nomination will be X days after the President informs the Senate of a nomination, unless the Senate schedules it sooner.

    With confirmation votes scheduled by Constitutional text, a party no longer has the ability to "run out the clock" while hoping for better results in the next election. If they have the votes, they can vote down a nominee.

    The side effect is that a party that controls both the Presidency and the Senate has no reason to select a candidate that is acceptable to the minority in the Senate. If the minority can filibuster and stall the confirmation of a nominee they find unacceptable, they can pressure the majority party to withdraw that candidate and substitute a nominee who IS acceptable. The net result of this change, then, is likely to be a more polarized collection of judges and justices.

    Ideally, of course, both parties would select nominees who were well-suited to the judiciary, which means, among other things, not biased on partisan issues. But that's crazy talk.

  • AJD||

    And who would enforce such a provision? Take the scheduling power away from the Senate's majority and give it to whom?

    The Senate makes its own rules. The whole notion of a "Senate Majority Leader" is one of them. The rule that a nomination has to go through a committee before receiving a vote is another.

    There's *already* a good argument that the Constitution *already* requires an up-or-down vote on a nominee. Making it explicit doesn't solve anything. It can *only* hurt things, to the extent that some entity other than the Senate itself has the power to enforce it.

  • James Pollock||

    "And who would enforce such a provision?"

    Who enforces Constitional provisions now?

    "The Senate makes its own rules."

    The Senate makes its own rules, within the range of power granted by the Constitution. If you change the range of power granted to the Senate by the Constitution, the Senate can make all the rules it wants, and they have no effect.

    Consider: Suppose a Constitutional amendment removes the Senate's role in confirming Supreme Court Justices, and instead vests confirmation power in the Supreme Court instead. Then the Senate makes a rule that no justice can be confirmed until after a vote in the Senate. What result?

  • AJD||

    > Who enforces Constitional provisions now?

    Different provisions are enforced by different entities.

    >The Senate makes its own rules, within the range of power granted by the Constitution. If you change the range of power granted to the Senate by the Constitution, the Senate can make all the rules it wants, and they have no effect.

    Whether or not the rules have an effect depend on whether or not anyone enforces them. A good example is the filibuster, which was always unconstitutional as applied to the advise and consent provision of the Constitution, but could only be eliminated if a majority of the Senate actually voted to eliminate it.

    > Suppose a Constitutional amendment .... What result?

    Obviously the Supreme Court would simply ignore that Senate rule.

    The more interesting scenario is when the constitution requires the Senate to actually do something, and the Senate doesn't do it. That's not something that can simply be ignored. The courts could try to enjoin the members of the Senate and force them to hold a vote, but that would be messy.

    In the end I think it's an unnecessary provision, because a majority of Senators can *already* force the Senate to vote on something, and if a majority of Senators aren't willing to force a vote, then they are essentially voting "no."

    The whole "forcing of an up-or-down vote" is just political theatre.

  • Josh R||

    How about and Amendment requiring a 2/3 vote to confirm?

  • OldCurmudgeon||

    I like it, but I also liked the filibuster. I suspect, however, that I'm in a minority on that point.

  • MatthewSlyfield||

    A constitutional requirement for 2/3rds for actual confirmation is not functionally the same as the filibuster with a 2/3rds requirement for cloture.

    There are a couple of sitting justices that had to have pass cloture votes before the nuclear option was invoked who were then confirmed by party line votes well below the 2/3rds majority required for cloture.

  • James Pollock||

    Maybe a judge nominee who couldn't get 2/3 of the votes in the Senate shouldn't be judges with lifetime tenure.

    A nominee confirmed 50-48 is minimally qualified, but perhaps we'd like justices who are more than minimally qualified.

    It seems that any system will have unintended side consequences, so pick your poison.

  • MatthewSlyfield||

    I'm not strongly opposed to a two thirds confirmation requirement by constitutional amendment.

    My point was only that if you expect exactly the same results that you would get from the pre-nuclear option filibuster, you will be surprised. There have been many SCOTUS and other judicial nominees to pass a 2/3 cloture vote but then either be rejected in the final vote or were confirmed by a majority significantly lower than two thirds.

  • Martinned||

    This.

    The Germans have that too. (Although in practice that means they've ended up with a quota system for the major parties, where they've agreed they each get to appoint an X number of judges on the BVerfG each time. Then again, they have more vacancies because the court is bigger and the time in office is limited.)

  • James Pollock||

    "How about and Amendment requiring a 2/3 vote to confirm?"

    This is fine, if you don't mind a 7- or 8- member court when vacancies occur and the minority party believes that they're going to win the next elections.

  • Martinned||

    Why would the minority party think that winning the next elections would get them anything? Unless you think someone is about to win a 2/3 majority in the Senate...

  • AJD||

    Because it would get them something. If they won the next presidential election, they'd win the ability to nominate a justice (or more). Even if all they won is a majority in the Senate, presumably the Senate is going to start being more bipartisan (again) in their confirmation process.

    That said, I'm not sure if this change would be good or bad, and I lean toward "bad." The obvious goal is to force bipartisanship in both Supreme Court nominations and confirmations. But it probably would backfire, as the party in control of the majority of the Supreme Court has little incentive to fill a vacancy with anything other than someone "on their side."

    It's a big mess. If the Senate doesn't stop acting in a partisan manner with regard to Supreme Court appointments, the only way to fix things is probably going to be to get rid of lifetime appointments (and/or systematically pack the courts every few years).

  • James Pollock||

    There's an argument that granting the power to approve judges and ambassadors to only the minority party would move nominations towards bipartisan (or nonpartisan) candidates.

    The majority would still have the power to craft legislation (and, to a lesser extent, budgets).

    The problem is defining "minority party" when there's more than two represented in the Senate.

  • dunlop212||

    Another issue; who knows what life expectancy will be decades from now? You could have justices with 100+ year terms (some have speculated that the first 1000 year old human has already been born).

  • Krayt||

    This is a much bigger problem. I'd worry about Congress here, and dictatorships around the world, first.

    We'd be living in a world split in half by Alexander the Great and Ghengis Khan.

  • NatalieEGH||

    1. Instead of an amendment as presented, I suggest an amendment to Article III section 1.

    2. Currently Article Section 3 Section 1 reads "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

    3. I propose it be changed to insert " consisting of 1 chief justice and 8 other justices," after "one Supreme Court" in the first sentence.

    4. Proposing an age restriction that is ill conceived. A judge should only be removed in the case of loss of mental faculties not due to age. There is a reason no limit was placed on the amount of time a justice could hold their seat on the court.

  • Brett Bellmore||

    Right on that last point; We could use some kind of 25th amendment counterpart for the judiciary.

  • James Pollock||

    You want a Constitutional provision inserted that will never be used? Why?

  • MatthewSlyfield||

    Actually, I believe that 25th has actually been used.

    25A use of Section 3


    Presidents have used Section 3 of the 25th Amendment three times. Each time, they have given power to their Vice Presidents for a short time because they needed to get anesthesia for medical tests or surgery. The three Acting Presidents in United States history are listed below.
  • James Pollock||

    "I believe that 25th has actually been used."

    The Presidency is a 24/7/365 job. But judges sit in court, and courts can be in session, or out of session. So you don't need the succession part of 25A for judges.

  • Kyfho Myoba||

    Nope. Courts, too, are open 24//7, but that is different from session.

  • James Pollock||

    "Courts, too, are open 24//7"

    Not so much, no.

  • MatthewSlyfield||

    Note: There is nothing in 25A that would allow for the permanent removal of the sitting President for general unfitness for office.

  • Brett Bellmore||

    No, it would allow that, but requires a more stringent Congressional vote than impeachment, to make it stick.

  • MonitorsMost||

    Sounds like a good idea. Since we're talking Amendment I would like to see the comprehensive reform of 18 year terms, super majority confirmation, some form of modified recess appointment.

    But bigger is probably worse when it comes to amendments.

  • MarkW201||

    I would support such an amendment if, and only if, it also contained provisions that provided for 18-year staggered term limits for Justices, and that required a Senate vote within 6 months or less of a nomination.

  • James Pollock||

    "Though some Democrats would oppose the amendment because ideally they would like to pack the Court, I wonder how many Democrats trust the Republicans in the future to be less partisan than they would be. I don't sense much trust emanating from either side."

    I have zero faith in either party's commitment to maintaining norms if they think they could gain partisan advantage from it.

    But I'm also not sure I want to foreclose the possibility of a larger court, because of the possibility that there might be a nonpartisan reason to increase the court's size. No, I don't know what those reasons might be, but that's the point.

  • MatthewSlyfield||

    A constitutional amendment fixing the size of the court would still allow enlargement of the court by further constitutional amendments. If you don't have broad enough agreement on enlargement to push an amendment through, your reasons for enlarging the court are probably not as nonpartisan as you think they are.

  • James Pollock||

    "If you don't have broad enough agreement on enlargement to push an amendment through, your reasons for enlarging the court are probably not as nonpartisan as you think they are."

    This might be true. But it cuts both ways. Not being able to get your anti-court-packing amendment passed might mean it's not be as non-partisan etc. etc. etc.

  • MatthewSlyfield||

    "But it cuts both ways. Not being able to get your anti-court-packing amendment passed might mean it's not be as non-partisan"

    I'm not pretending it's non-partisan.

  • James Pollock||

    As best as I can tell, nobody is pretending anything is non-partisan.

  • Roy010101||

    I dont think we should limit the court to nine seats.

    I would suggest any increase in the supreme court bypass the normal routine (president selects, senate consents) and start the process in congress by requiring a bill with the number of increased judges, all new judges named, a 2/3 approval in senate and house, and President has veto authority.

    The 2/3 requirement means there would be a lot of negotiation and both sodes get their say in picking.

  • OldCurmudgeon||

    That's probably more consistent with the 'checks and balances' approach.

    We do need to consider a scenario where you have an out-of-control SCOTUS. Should the other branches have an affirmative power to check it? Or is the fact that SCOTUS can only disapprove other acts enough?

  • OldCurmudgeon||

    Fake reply

    Can SCOTUS say "the Constitution requires you do X therefore you are ordered to pass legislation"? I've seen such orders at the state level...

  • Kyfho Myoba||

    IANAL, but I would think that due to either federalism, or separation of powers that the legislature so ordered could tell the court to go pound salt - you can't make us!

  • James Pollock||

    You might want to review Marbury v. Madison.

    The Supreme Court (and other federal courts, too) does have the power to issue writs of mandamus. Now, if it does do so, and the Congress (or federal agency) declines, you get Constitutional crisis. Good government-types tend to try to avoid this sort of thing.

    As an example, back in the W's day, the President had the military holding an American citizen in an American military base. He intended to hold him without charges as a terrorist, and they moved him from facility to facility so that by the time the writs ordering the base commander to release him got to the base's commander, the prisoner was already somewhere else. That way, nobody had to refuse to comply with a court order.

    That's why they kept the "terrorists" in Guantanamo Bay, and avoided bringing them to the U.S. to stand trial.

  • Thomas O.||

    I'd propose a hard-limit amendment that sets the limit at 15, and that no sitting President may make more than two "expansion appointments".

  • Gasman||

    Add this in as well (as points to consider, not as complete text of an amendment):
    Appointment to the supreme court shall be limited to a single 18 year term.
    One term will end every even numbered year on July 1.
    Should a justice retire or die before their term is complete, a justice shall be appointed to complete that term.
    A justice having served more than 5 years while filling a vacancy, shall not be eligible for appointment to a full 18 year term.
    In implementing this amendment, justices will be ranked according to seniority, with the longest serving seat to retire on July 1 of the first even year, and each seat thereafter assigned to expire at two year intervals.

    dispenses with lifetime appointment, helps skirt extreme old age justices, evens out the appointment of the president (2 appointments per term), no need for justices to hang on waiting for the next election if they don't like the party in charge at the moment

  • ||

    One suggestion for section 2: allow a senior status Justice to sit in cases where an active justice recuses themself. Could be random, could be most-recently retired, etc. - that part probably isn't a big deal - but such a modification should reduce or eliminate 4-4 ti s on major issues.

  • Rip Murdock||

    Wow, Supreme Court fantasy camp. Love it.

  • RobinGoodfellow||

    "Glenn Reynolds claims to favor a large Supreme Court of several dozen members"

    Favoring a larger number of Supreme Court justices and favoring a constitutional amendment against packing the court are not mutually exclusive.

  • A nerdy Fred||

    What about the opposite problem, which you could call inverse packing, in which the party with control of the Senate might refuse to confirm replacements? There were voices last year arguing it would be fine to leave the Supreme Court at 8 justices, then 7, and so on.

    I can't imagine a way to prevent it that still leaves the Senate's advice and consent powers intact. They could be required to hold an up and down confirmation vote in some specified timely fashion.

  • James Pollock||

    Elections would eventually take effect. Perhaps not so with a court enlargement, which might go along with disenfranchisement of non-supporters.

  • ||

    I thought of that during the Kavanaugh hearings. I thought, "If they defeat Kavenaugh this way, then future reprisals from the other side may mean no future nominees ever confirmed."

    If RGB and Bryer left the court today and their seats were left unfilled, it has the same practical effect as packing. Congress could declare 7 to be the new fully-staffed court.

    Extrapolate that to the extreme. The number of sitting justices gets few and fewer until only one remains and then none. The Supreme Court could cease to exist. Given the hot tempers in the country today, I'm sure that there must be some people who would see that a something good.

    The one compromise that seemed satisfactory to all warring parties was four liberal, four conservative, and one swing. But we can't write that into The Constitution.

    If we keep fanning the flames of passion in this country, sitting justices are going to need more Secret Service protection than The President. Future nominees even more.

    How can we pour oil on these troubled waters?

  • Thomas O.||

    I'd add to the amendment a clause saying that once the justices reach a decision, they have 48 hours to craft their opinions and release it to the public. No more of this "wait until June for a decision made in November" crap. Why should Americans endure several months of bullshit laws just because the justices want to GTFO of Dodge before the decisions are proclaimed?

  • Bob from Ohio||

    Maybe a page limit on opinions.

    I say one but am open to 2 or 3.

  • Smooth Like a Rhapsody||

    No way.
    Opinions are published for a reason.
    If you want to eliminate the worst excesses, and impose the same length requirements that apply to briefs, then, maybe.
    But we need to know the background, and procedural posture of the case, as well as the logic behind the decision.
    (Sorry, if you were only joking, and I didn't get it. )

  • DRM||

    At which point the justices simply don't procedurally "make a decision" until after draft opinions are written, and you still wait until June for a case heard in November.

  • JonFrum||

    I'm in favor as long as it includes a term limit. Or preferably an age limit. We shouldn't have to prove gross dementia to move on from one of these decrepit geezers. Seventy-five would be generous.

  • SimonP||

    I can't imagine that any conservative commentator has the self-awareness to recognize this, but it bears noting that grousing about "court-packing" would never have gained currency had the Republicans not been so laser-focused on upsetting norms about judicial nominations - blocking Obama's nominations at all levels and then ramming Kavanaugh through. And, sure, maybe we can avoid a serious constitutional crisis after a generation of an increasingly out-of-touch, activist conservative Court striking down duly-enacted legislation left and right, on increasingly spurious grounds (see, e.g., Roberts' striking down pre-clearance under the VRA). But as far as I can tell we may be better off in the long-term with a bit of court-packing than we will with an aggressively activist conservative Supreme Court.

    You want another Plessy, Lochner, or Korematsu? Cap the size of the Court at nine and let its conservatives have their heyday. You want to avoid yet another decades-long episode where generations of lawyers and activists have to work to convince the Court that it has erred? Let the liberals have a justice or two.

  • Bob from Ohio||

    Its like you never heard of the Warren Court.

    BTW, Korematsu was decided by FDR appointed judges.

  • ||

    There's no legitimate argument that the preclearance provision of the VRA comported with Section 5 of the 15th Amendment. None.

  • DRM||

    So, you're of the belief that upsetting norms about judicial nominations was started by Republicans, and also think that court packing would stop at "a bit" rather than be followed up by a counter-packing by Republicans as soon as possible.

  • James Pollock||

    "you're of the belief that upsetting norms about judicial nominations was started by Republican"

    The current round was. They didn't like the outcome of Roe v. Wade, and announced a policy of only confirming judges who'd overturn it.

    I'm still amazed by the partisan breakdown on that particular issue. The "limited government" folks want the government deciding who has kids, and the "big government types" are the ones voicing the argument that the government has no business being involved in that particular decision.

    I've no objection to efforts to persuade people to make the choice you'd prefer them to make, unless you have to lie to them to do it ("crisis pregnancy counseling" that tries to stall until it's too late to have an abortion is shady and dishonest. Counseling that having an abortion can affect your ability to have children later is shady and dishonest.) But having the Sheriff decide for you? Nah.

  • Kyfho Myoba||

    I'd LOVE another Lochner!!!!

    And the liberals have had a justice or two for far, far too long. It's time for you to let the originalists to have their say for a hot minute.

  • James Pollock||

    "I'd LOVE another Lochner!!!!"

    Don't know why. The legal reasoning used throughout the Lochner Era was sloppy, and didn't hold up.

  • Rev. Arthur L. Kirkland||

    Can anyone direct me to Prof. Lindgren's expressions of opposition -- or the objection of any Conspirator, or any right-wing law professor -- when Arizona's Republican governor pushed the Republican-majority Arizona legislature to enlarge the Arizona Supreme Court, then appointed two additional conservatives as justices?

    I thought not.

  • Smooth Like a Rhapsody||

    Why should someone who neither lives nor works in Arizona care how Arizona's Supreme Court is constituted?
    Until you started carping about it, I didn't even know it had happened.

  • James Pollock||

    "Why should someone who neither lives nor works in Arizona care how Arizona's Supreme Court is constituted?"

    Heck, why should anyone who doesn't have a case before the US Supreme Court care how the USSC is constituted?

  • Smooth Like a Rhapsody||

    Because all of us are effected by SCOTUS.
    If Arizona wants 7, rather than 5, justices, why should that concern someone in Vermont?
    You could make the same argument about going from a state Supreme court that is nominated vs one that is elected.
    One of the functions of states is to try things out.
    Let Arizona worry about Arizona.

  • Kyfho Myoba||

    Kirkland thinks that it's his responsibility to worry about everything.

    Fucking do-gooder prog-tard meddling nanny stater.

  • Rev. Arthur L. Kirkland||

    I'm thinking Barack Obama as the 10th justice, with an open mind with respect to the 11th.

    Your thoughts, Kyfho?

  • JoeGoins||

    I'm thinking KellyAnne Conway if we have to expand the court. Need another woman on there. ;)

  • Smooth Like a Rhapsody||

    What are you talking about with Conway?
    Rafael Cruz is the next nominee.

  • JoeGoins||

    Gotta up the Latinos.

  • James Pollock||

    Whoosh.

  • Jason NYC||

    Nominations to the supreme court are broken. Fixing them is the more immediate concern. I could see including an anti-court packing amendment together with a fix for the nominating process. But it makes no sense to fix this without first changing how justices are nominated and confirmed.

  • ||

    Change nominations how?

  • James Pollock||

    "Change nominations how?"

    Some suggestions:
    Move confirmation for USSC from the Senate to the USSC.

    Make it a requirement that sitting judges nominated for promotions must resign their current postings prior to confirmation vote, or stay in their current post and decline the nomination. (So if a promotion nomination fails, the candidate doesn't go back to their current bench bitter and angry.)

    Insert a scheduled confirmation date for nominations in a Constitutional amendment. Vote down the candidate if you have the votes, but no running out the clock (Originally, the recess appointments clause was supposed to deal with this. But the Courts have allowed the Senate to block recess apppointments by scheduling "work days" which have no work (and no Senators) during recess.

  • ReaderY||

    Way, way, way to wordy.

    "The Supreme Court of the United States shall consist of a Chief Justice and no more than eight Associate Justices."

    This language, or a similar single sentence, is sufficient. It is simply not the business of a constitution to cover every conceivable contingency. The main point is all that should be said here.

    If the court was packed before the amendment went into effect, the amendment will cover it, and the courts will then figure out what to do with the extra justices.

  • JoeGoins||

    If we're going to propose an amendment about the size of Supreme Court, I'd suggest adding a section that reforms the nomination/confirmation process to address legitimate concerns about partisanship. For that purpose, I submit the following proposal:

    Section 4 [Judicial nominations].
    Clause 4.1 — Whenever a judicial vacancy exists, the President must nominate five individuals to fill the vacancy within one month of the vacancy existing. No candidate may be nominated who has not been a practicing, full-time attorney for ten of the previous fifteen years or a judge for five years of the previous ten years.
    Clause 4.2 — The nominations shall be given to the appropriate Senate committee for review. The review process shall not take more than two months for all of the nominees combined.
    Clause 4.3 — Within one week of the review process ending, the appropriate Senate committee must vote to advance two of the five nominees. Each committee member shall have two votes, and the two nominees with the most total votes shall be sent to the full Senate.
    Clause 4.4 — Within one week of the appropriate Senate committee advancing two nominees for consideration by the full Senate, the full Senate must vote to confirm one of the nominees. The nominee with the most votes in the nominee's favor shall fill the existing vacancy.

  • JoeGoins||

    I believe my system has merit. By establishing a timeline that the Senate has to follow, it eliminates any future stand-off similar to what happened with Merrick Garland. By allowing the Senate to have some leeway in their nominees, it eliminates any future need for the Senate to engage in dirty politics similar to what happened with Brett Kavanaugh.

  • Longtobefree||

    No candidate may be nominated who has not been a practicing, full-time attorney for ten of the previous fifteen years or a judge for five years of the previous ten years.

    How about removing the word not? The biggest problem with justice is lawyers.

  • JoeGoins||

    True, but it's fairly hard to be a judge without having been a lawyer. I have two separate fears: nominating academics (such as a Elena Kagan) and career politicians. Neither should be on the bench.

  • DRM||

    So, President Corrupt nominates five Mob lawyers, and the Senate has to confirm one of them?

  • JoeGoins||

    President Corrupt is president, and as a perk of the job, gets to choose his/her nominees. The Senate gets to pick the least offensive option.

  • Stephen Lathrop||

    Lindgren's amendment can't be ratified.

    Considering the present partisan division on the Court, die-hard blue states won't want the court packing threat taken away. There are at least 13 of those reliably blue states, comprising the required 25% to block ratification. So that's that.

    Of course, you could adjust the amendment, to allow just one balancing court pack on behalf of the blue objectors, and then freeze the court. Then 13 or more die-hard red states would block it.

    See, for some reason, you can't fix objections to court partisanship by proposing partisan-leaning solutions.

  • JoeGoins||

    >"Lindgren's amendment can't be ratified."
    There is a difference between "can't be" and "isn't likely to be."

  • Stephen Lathrop||

    Sure, Joe. Which of Washington, Oregon, California, New York, Vermont, Connecticut, Massachusetts, New Jersey, Maryland, Rhode Island, Illinois, Delaware, isn't certain against ratification? After that, you need one state, from among Nevada, Colorado, New Mexico, Minnesota, Maine, New Hampshire, Virginia, North Carolina, and Florida. What odds do you put on every one of those nine voting to ratify, given that seven of them went for Clinton in 2016, and the other two went for Obama before that?

    If there were some way to test it, I would be happy to treat that as a certain bet, put down some middling money, and give you 50 to 1. And I doubt you would take me up on that.

  • DRM||

    The answer is, any blue state that has a legislative majority smart enough to realize that Republican trifectas can court-pack, too, and the Republicans have so far this century have had three two-year Federal trifectas to the Democrats' one. (Nobody needs a supermajority to abolish the filibuster in order to pack the Court, regardless of whether the other side abolished it or simply had enough votes to overcome it.)

    Of course, if your position is that too many Democrats are too stupid to take cognizance of current events when projecting the results of packing the Court, well, I'm not going to argue with you. I would hope that the number of idiots is low enough they'd ratify the amendment, but I'm not confident it is.

  • JoeGoins||

    You missed the point of what I was saying. "Can't" implies that there is an insurmountable barrier that will never be overcome. "Isn't likely" strictly refers to a something having a low probability of occurring.

    People also get pissed off when I tell them that there is no "settled" law.

  • James Pollock||

    "People also get pissed off when I tell them that there is no "settled" law."

    Not being required to quarter soldiers seems pretty settled.

  • Jim Lindgren||

    Depicted as anti-Washington move, I think that an anti-court packing amendment, if it got through Congress, would have at least a 50-50 chance of getting through the states.

    As for my prior proposal for 18-year and 24-year term limits, that would breeze through the states as an anti-Washington measure. The biggest problem there would be getting it through Congress (which is worried about legislative term limits).

  • Stephen Lathrop||

    Among the present parties, a Supreme Court partisanship fix will prove possible only by power politics. And it will only come if either the Ds or the Rs get so much political power—House, Senate, and the Presidency together, with a super-majority in the Senate—that they can do whatever court packing or impeachments they want at the expense of the other party. That's step one.

    Then, step two is not to do that. But instead to propose enforceable bi-partisan reforms—maybe by constitutional amendment—which would put bi-partisan comity back into the appointment process. After laying that out as it's preferred option, the powerful party will be in a position to dictate acceptance to the other party, lest it see a worse outcome based on pure power.

    I could imagine, just barely, that the Ds could bring themselves to do that. That because Ds are the party which relies in its ideology on accepting government legitimacy. The Rs, as a party which campaigns by attacking government legitimacy, would have to undergo an unlikely transformation to do anything but lunge for the power. Even the Ds would probably be more likely to do that than to try anything constructive.

  • James Pollock||

    "Even the Ds would probably be more likely to do that than to try anything constructive."

    That would depend highly on whether or not the voting public rewards one more than the other.

  • Stephen Lathrop||

    With prospects so bleak for a court partisanship fix worked out by the Ds or the Rs, what else is there? Only the passage of time, and maybe transformation in what the electorate demands of its politicians. By 2025, that will likely happen, as the out-of-touch baby boomers now in charge of the nation's politics fade from the scene, to be replaced mostly by much younger figures as yet unknown, or barely known.

  • QuantumBoxCat||

    Another post about "court packing" that acts like a nine-member Supreme Court arose out of the ether in 1789 and stayed that way until FDR. Pay no attention to the entire 19th century, when the Congress was constantly adjusting the membership of the Court, both increasing and decreasing the number of justices. My heavens, how ever did our country survive so much "court packing"?

    If I were a member of Congress I would be opposed to the suggested amendment on the grounds that it seeks to eliminate a mechanism by which the legislature is able to "check" the judiciary. It is a privilege inherent in the legislative power to alter the number of justices on the Supreme Court. Article III does not state a specific number, and your the suggested amendment seeks to strip Congress of a power that it has enjoyed since the founding.

    I'd then employ some rhetorical flourish to ask why those who support the amendment hate our Constitution and the system of checks and balances that it established. That would be my response to narrow-minded claim that those who don't support the Amendment must therefore want to pack the Court. As if Members of Congress weren't expected from the outset to jealously guard their prerogatives.

  • Smooth Like a Rhapsody||

    Another embittered liberal who wants the rabble to think we change the composition of the Court on a whim--so, no biggie, right?
    The court has been at 9 for all but a few of the last 180 years.
    In the 1860s, they fiddled with the number as they added federal circuits.
    So, yeah, it's only FDR that ever said to change the Court because we can't get our agenda passed.

  • Stephen Lathrop||

    Smooth, you ought to take a closer look at the politics of the court during reconstruction. A lot of exciting tales of high political adventure date from that era. As you will see, it really, really isn't only FDR.

  • QuantumBoxCat||

    I recommend reading Justin Crowe's "Building The Judiciary: Law, Courts, and the Politics of Institutional Development" (Princeton University Press, 2012), And, of course, you cannot go wrong with Charles Warren's three volume set "The Supreme Court in United States History" (1922). The Federal Judicial Center website also has some good works on the institutional development of the judiciary and the partisan conflicts that underlie it.

    Or, you could just keep thinking of me as an embittered liberal .... something something something. It's up to you.

  • Smooth Like a Rhapsody||

    The Court has done just fine for about 150 years at 9. Is that a magic number? Of course not. Feel free to change it if there's a good reason.
    But it's really a bit thick, all this sudden interest in the size of the court, just because one side just refuses to get over the fact that Hillary got her ass handed to her by a goofball with no political experience.

  • Smooth Like a Rhapsody||

    While we are doing, as another poster put it, "fantasy camp", how about a rule that each numbered circuit gets represented by someone on the court with some demonstrable ties to that circuit.

  • Lagueppe||

    Rather than fixing it, what if the people get a say?

    No law, increasing the size of the Supreme Court of the United States, or altering its jurisdiction, shall take effect, until a Presidential election and subsequent inauguration have taken effect.

  • James Pollock||

    You want to fix confirmations? Try this:

    Three votes: One involves all the Senators who are of the same political party as the President. The next includes all of the Senators who are not of the same political party as the President. The last involves all of the sitting judges on the federal courts of appeals.

    A successful confirmation occurs when a nominee wins a majority in all three votes.

    (No, this doesn't guarantee anything. You'll see plenty of gamesmanship when elections draw near, because if we vote down their guy we might be nominating the next one (the McConnell Rule). But even if we ARE nominating the next one, they can block anyone, and the judges are also there to keep the Harriet Myers nomination theoretical.

    Kavanaugh had his issues, but he is at least experienced as a judge. Will Trump nominate Ivanka first, or Jared?

  • ReaderY||

    Perhaps a more specific objection might help. Why in the world have an enforcement clause? The function of the amendment is to restrict Congress' powers. Without it Congress has complete control over the Supreme Court's size (except that the Lifetime Tenure clause prohibits it from kicking out existing Justices). Unlike amendments which affect states etc., the target of this amendment is Congress.

    Why does it even mean for Congress to enact legislation enforcing restrictions on its powers?

    If a section regarding existing justices were included, it could be a single sentence ("Upon ratification, any appointees to the Supreme Court exceeding these limits shall become life-tenured federal inferior court judges and may select any vacant inferior-court judgeship as their position.")

  • Longtobefree||

    Would this amendment be observed any more than the first, second, fourth, fifth, sixth, ninth, or tenth?

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