Supreme Court

Supreme Court as Superweapon

A response to Epps and Sitaraman.


The Yale Law Journal Forum, YLJ's online companion, has published a new essay of mine: "Supreme Court as Superweapon." It responds to a recent Court-reform proposal by Dan Epps and Ganesh Sitaraman, "How to Save the Supreme Court." Here's the abstract:

Is the Supreme Court's legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court's legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle is too powerful a weapon to leave lying around in a democracy; we should start thinking about disarmament.

That's the formal law-review version. Here's the quick-and-dirty summary:

Epps and Sitaraman see a Court in crisis. After two brutal confirmations, the Court is split 5-4 on party lines, and calls for court-packing are in the air. So the authors propose two fixes, to keep the Court out of politics and politics out of the Court.

First, they say, we could have a "Supreme Court Lottery," staffing the Court with a rotating cast of appellate judges, randomly redrawn every two weeks. That might bring wild swings of doctrine, so they add two more patches: a limit of 5 same-party appointees, and a 6-3 supermajority for overturning federal laws. The patches are tails that wag the dog: probably unconstitutional and certainly destabilizing. They make the system break down at the first approach of a third party, and they vastly empower Congress over the executive, the states, and individual rights.

Second, they say, we could have a "Balanced Bench," reserving five Court seats for Democrats, five for Republicans, and five more for moderates on whom the other ten can agree. Barring independents or third parties from 10 of the 15 seats doesn't really get politics out of the Court, and we'd still have to worry about a GOP-reserved seat coming open in a Democratic administration (or vice versa). Letting bipartisan commissions or Senate leaders pick the nominees—another suggested patch—would be at war with the Appointments Clause, too.

Why risk all this, just because Justices Gorsuch and Kavanaugh were confirmed? The legitimacy crisis can be found everywhere but in the poll data: the Court has more public support than it did ten years ago. The perception of a 5-4 split isn't new; hardly anyone knew or cared that Justices Stevens and Souter were GOP appointees. And why wasn't the partisan split such a devastating worry when Judge Merrick Garland was nominated—who would also have produced a 5-4 Court, "the most liberal Supreme Court in 50 years"? Criticize the Senate or the electoral college if you want to; but if nominations should follow the popular vote, then you should also blame Justice Souter, whose departures from the GOP platform made him a countermajority of one.

The authors repeatedly praise Justice Kennedy as an unpredictable, middle-of-the-road vote, the very opposite of a partisan ideologue. But the legitimacy you get from moderate judging can trade off with the Court's "internal" legitimacy, the respect for the Justices as experts in legal craft. If you're resting crucial doctrines on "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," why should anyone trust the Justices to enforce decisions made elsewhere? Why not treat them as "politicians in robes"?

From the end of the paper:

In that effort to restore legitimacy, legal conservatives might have a few ideas to offer. Given the depth of our country's polarization, maybe we should require less by way of social agreement, relying somewhat more on private ordering and reducing the number of questions that the political process needs to answer. Maybe we should reduce the scope of that process, encouraging working agreements by different parts of the country when consensus is lacking in the whole. And maybe, to reduce the threat of the Supreme-Court-as-superweapon—capable of vaporizing any target that shows up in the Justices' gunsights—we should precommit to limiting the Court's freedom of action, binding it to some discrete set of preexisting rules until there is a very broad consensus for changing them. (We could even write those rules down on a piece of paper, to be kept in the National Archives—and change them only by agreement of, say, two-thirds of each House of Congress, and some three-fourths or so of the states.)

Limited government, federalism, originalism, and so on may seem like naïve—and convenient—solutions to a bipartisan legitimacy crisis. And perhaps they are. But the Constitution was not designed for a nation of high-school civics teachers, full of corny enthusiasm for powdered wigs and tricorn hats. It was adopted for, and repeatedly amended by, those who had lived through civil war, economic crisis, and profound moral disagreement (over human slavery, among other topics). If, today, in circumstances of relative peace and plenty, our disagreements seem too great for us to bear, perhaps we should think more about the devices they used to make bad compromises when the alternatives seemed even worse.

As they say, read the whole thing!

NEXT: Free Speech at College, Episode of My "Free Speech Rules" YouTube Video Series

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  1. Speaking as someone whose views are slightly more to the left than most of those here, to the extent that the Supreme Court is viewed as illegitimate, it is because the process is viewed as illegitimate. If George W. Bush and Donald Trump had won the presidency with the support of a majority of the American electorate, I wouldn’t be happy about it, but I would concede that the conservatives they appointed got there fair and square. It’s when the Democrats actually win popular elections, only to be deprived of the power they won by an anti-democratic institution like the electoral college, that there is legitimate resentment.

    Think of it this way: The electoral college is the functional equivalent of a superbowl in which one of the football teams gets a free touchdown before the game even starts. If your team is the one getting the free touchdown, you think that’s a great rule. If your team isn’t the one getting the free touchdown, then you’re less than enamored of it. But nobody honestly thinks that it’s a fair rule. And, if the team that got the free touchdown then goes on to win the game, how surprised does it have the right to be when others question the legitimacy of the system?

    So long as the political minority maintains power through anti-democratic means, much of the country won’t view the results as legitimate. That’s a given.

    1. Did you similarly whine when the a Democrat won the electoral college and lost the popular total?

      Do you also whine when the World Series winner had fewer total runs over the series, or the post-season championship, or the season? Or the Superbowl winner had fewer points over the season?

      Hillary lost because she was a terrible candidate and a worse campaigner. Trump won because enough voters were pissed at politics as usual to vote for the (relatively) non-politician. The Democrats haven’t learned either lesson: Hillary is still whining about the Russians giving Trump the edge, and the Democrats are running candidates who make Hillary look sane. The Republicans will show in 5 years that they haven’t either.

      1. Did you similarly whine when the a Democrat won the electoral college and lost the popular total?

        When was that?

        1. In 1992, when Clinton only won 43% of the popular vote, and again in 1996, when he only won 49.2%.

          1. He got more votes in 1996 than Perot and Dole combined and more votes in 1992 than Bush. When there are strong 3rd party candidates often no candidate breaks 50%. There is a big difference between being a candidate with the most votes (Clinton) getting in and being a candidate with the second most number of votes (Trump) getting in

          2. For that matter Hillary didn’t crack 50% of the vote either.

            In any case why should we put such a fetish on the popular vote when it is not the object of the election and not the primary goal of either candidate. Trump put his resources in Pennsylvania, Wisconsin, Michigan because he knew that was where he would win or lose. If the goal was the popular vote he’d be savy enough to pour resources into California, NY, Texas where they don’t matter for electoral college purposes

      2. Sorry, when did a Democrat ever lose the popular vote and win the electoral college? IIRC, four times in US history the electoral college went to the popular vote loser, and all four times that meant giving the presidency to the Republican.

        Hillary was not my first choice, but the point is that the procedural rules should be outcome-neutral, and they aren’t. One side starts off with an unfair advantage. That you think it’s whining to point that out says far more about you than it does about the point of the conversation.

        1. Do you think the unfair advantage argument applies to the Senate as well?

          1. Yes. Population shifts mean that in another generation, 35% of the population will be electing 70% of the Senate and that’s a recipe for disaster. Given a free hand to re-write the Constitution I’m not sure how I would fix it, but I see no good argument that that situation is objectively good for the country. Other than pure tribalism: It benefits your tribe, so you like the result.

            1. It would help if you started with an understanding of why the Founders established the Electoral College in the first place.

              On the one hand, it was a pretty blatant attempt to add a layer of elites into the process so presidential elections would be a bit more resistant to demagoguery. That experiment has clearly failed. And it’s moral justification was always questionable.

              On the other hand, it was right there with the bicameral Legislature as an attempt to balance the urban/rural tensions that were a serious concern even then. For all the claims of “unprecedented partisanship”, what we are suffering right now is the same attempt to balance urban and rural interests. We have been struggling with this balance ever since the invention of cities several millennia ago. I don’t see that problem ever going away.

              So if you’re going to eliminate the Electoral College, what are you going to do instead to protect the rights of non-urban minorities?

              1. That’s what worries me about the Senate these days – it’s becoming more minoritatian but less elitist. That’s a bad direction to go in.

              2. Rossami, I would protect non-urban minorities by having a strong Bill of Rights enforced by a judiciary that actively protects minority rights. Which I thought was the whole point of the Constitution: the political branches are political, meaning they generally follow the wishes of the people, and the judiciary stands as a check to ensure that minority rights don’t get trampled. But of course that would mean having an activist judiciary, anathema to conservatives who prefer that liberals simply be prevented from being able to win fair elections.

                And I also think that if you are a non-urban political minority, the cold hard reality is that your views are out of touch with the majority of your fellow citizens and you shouldn’t expect a veto over public policy. Since when are non-urban political minorities any better able to make policy choices than urban political majorities? I’ll take living in Seattle or San Francisco to living in Wichita or Northern Alabama any day of the week, and so, probably would you. There’s a reason for that.

                1. “Since when are non-urban political minorities any better able to make policy choices than urban political majorities?”

                  Well, they are probably better able to make better choices about rural issues that they understand better than people who aren’t rural. And my sense, from living in both rural and urban areas, is that people in rural areas are less interested in micromanaging urban areas than urban people are interested in micromanaging rural areas; the ‘they’re a bunch of dumb hicks’ attitude seems to run mostly one way IMHE.

                  There is also the utilitarian argument that, by my reading of history anyway, is that countries/empires that rule from afar have worse outcomes than ones that don’t.

                  1. Absaroka, I suppose that depends on which specific issues we’re talking about. As with most urban dwellers, I know nothing about agriculture, and I’m happy to say that agricultural policy should be made by people who do know something about agriculture, which is probably mostly people from rural areas.

                    On the other hand, if we are talking about a desire to mix church and state, or use the law to be nasty to unpopular groups, or allow local police to run roughshod over the rights of the citizenry, then I don’t see it as micromanagement so much as a requirement that they, too, abide by the Constitution.

                    1. Rural does not mean merely agricultural. The differences between urban and rural communities are and always have been vast. The fact that the only “differences” you see are things that actual rural communities also generally oppose (mixing of church and state, abuse of the law, etc) suggests that you need to spend some time trying to understand your neighbors. Diversity is good.

                      No, a robust Bill of Rights is not sufficient political fairness. History is replete with counter-examples.

                      And, no, I wouldn’t live in Seattle or San Francisco if you paid me. I’ve lived in both small towns and big cities. The big cities were more “exciting” but I got over that pretty quickly.

                    2. Rossami, I gave the examples I gave as illustrations, not as an exhaustive list. On the subject of political unfairness, what exactly is unfair about political minorities not having a veto over policy? And even if that is unfair, how is it any more unfair than the current system under which the political majority *can’t* get what it wants, and consistently loses elections despite having majority support? “It’s not fair” is a mighty strange argument coming from a position in which twice in four elections the majority lost the presidency and routinely loses Congressional majorities thanks to gerrymandering and the two senator per state rule.

                    3. Krychek

                      “what exactly is unfair about political minorities not having a veto over policy?”

                      Depends on the minority and the policy, doesn’t it. Should African Americans have a veto over removing African American’s voting rights?

                      It also depends on what you consider “majority support”. Neither side actually had a “majority” in the last Presidential election.

                      On a larger note, there’s a reason minority rights exist, and why many, many protections are put in place to protect minorities…on a constitutional level, and on a federal/state level. They’re done in order to prevent the “50%+1” mob rule type situations.

                    4. As the old saying goes, “Democracy is not two wolves and a sheep voting on what’s for dinner.” Political minorities do get a veto over policy – sometimes. Anything less is an invitation for abuse of the minority. Does that sometimes mean that things are unfair for the majority? Of course. We can’t eliminate unfairness, we can only attempt to set up systems where the users themselves have an incentive to keep it in balance. Which the structure of our bicameral legislature (and specifically of the Senate) does.

                2. “I’ll take living in Seattle or San Francisco to living in Wichita or Northern Alabama any day of the week, and so, probably would you. There’s a reason for that.”

                  Umm… you realize this is called “bias”, and it’s a problem. Perhaps self-reflection is in order? To understand that some people would rather live in Wichita rather than San Francisco, and understand those reasons?

                3. I’ll take living in Seattle or San Francisco to living in Wichita or Northern Alabama any day of the week

                  Believe it or not, a lot of people would prefer not to live in Seattle or San Francisco. Many people move out of urban settings as soon as they can afford to do so.

                4. Isn’t the whole idea of a Bill of Rights enforced by a non-elected judiciary anti-democratic and anti-majoritarian? Why do you accept anti-majoritarian processes and institutions in some cases, but not in others? Would you suggest that people whose sexual orientation is in the minority should just accept that “hard reality”?

                  I’m going to cynically suggest here that you want anti-majoritarian protections for groups you agree with/approve of, but not for those you don’t.

              3. Rossami, you are not the first here to assert that rural/urban tensions were a big factor in the founding era. You will be hard pressed to show it in the historical record. And even harder pressed to find it in the record of the constitutional convention. It’s just not there.

                Why? Well, for one thing, no state had anything like an urban majority. Every state had a huge rural majority. I will be surprised if you can show anything in the founding era historical record to show anyone suggesting that that balance was destined to change.

                Just for fun, off the top of your head, what was the most urbanized state, as reported by the first census. Spoiler. It was neither Massachusetts, New York, nor Pennsylvania. It was Rhode Island. Come to think of it, Rhode Island might still be the most urbanized state.

                1. I miss the like button.

                2. The Founders expressed it more as a big state/small state tension. But the size was always a function of population and industry and both of those were always heavily influenced by city populations. So, yes, urban/rural was still a tension even though, as you say, most states were predominantly rural. Delaware was (and remains) small not only because of land area but also because it only had one city of significant size. Rhode Island voted and behaved more as a mid-sized state because of it’s urban population and despite it’s small land area.

                  1. Rossasmi, Rhode Island, the most urbanized state, was overwhelmingly rural. Just less rural than all the others. There was zero urban/rural ideology baked into the structure of U.S. government decreed by the Constitution.

                    Privileging minority political power came from two principal sources. First, the insecurity of slave states, which understood from the outset that growth elsewhere could leave them politically beleaguered. Second, and probably even more important, the existing political legacy of the Articles of Confederation, with its reliance on per-state voting. That meant that among the founders there were politicians representing states of less account, who had already become accustomed to outsize influence in national affairs. There was leverage in that, because the founders put a high value on getting those smaller states to ratify with the larger ones. That second point is not original with me, by the way—it is me paraphrasing Madison.

        2. 1824, John Quincy Adams, member of the Democratic-Republican party when elected president by the House after nobody got a majority of the EC. This is the party which eventually became the Democratic party of today.

          Admittedly this was a while ago, you can be excused for forgetting him.

          1. It’s also not exactly the same political party any more than Prussia is modern day Germany.

          2. I disagree with the part of John Quincy Adams being the Democratic Party of today. The modern day Democratic Party was founded by Andrew Jackson in opposition to John Quincy Adams.

            1. By that logic, shouldn’t FDR’s takeover be as much a refounding as Jackson’s?

              Certainly if you’re talking about the modern party…

    2. Bush won the popular vote in 2004, which you conveniently omit.

      And your analogy uses the wrong sport. It’s not like the Superbowl; it’s like the World Series. In 2017, both the Astros and Dodgers scored 34 runs, but the Astros won the series 4-3. In 2016, both teams scored 27, yet the Cubs won. Nobody was expecting them to keep playing or thought the process unfair/illegitimate because the contest is who can win 4 games first. It doesn’t matter if win by 15 in a couple of those games; it matters if you can win consistently.

      1. David, the central issue in any sports analogy is that one team is getting free points. It doesn’t matter in which order the points are counted or who gets them first; the issue is that one team has an unfair advantage by virtue of getting free points. Your baseball analogy would be a much closer analogy if each game started out with one of the teams being awarded a free home run.

        1. How is the electoral college like a free home run? All candidates start with the same number of electoral votes, namely zero. David’s original analogy is far better than your proposed one.

          1. Because the smaller, rural states, which tend conservative, have more electors proportionate to their population than do the larger, urban states, which tend liberal. I forget the exact numbers but if I recall correctly it’s almost 2:1 if you compare Wyoming to California.

            1. Okay, so? Democrats are just as free to compete for those voters as Republicans are. The score starts at 0-0.

            2. That’s actually not true. Of the 15 smallest states 6 are reliably Democratic, 7 reliably GOP, and 2 swing States. So there really isn’t a built in advantage for one party or the other.

              For every Wyoming there is a Vermont. ND and SD are balanced by Delaware and Rhode Island.

      2. The Superbowl is perfectly fine. All sportsball championships that I have ever heard of are by games won over the season, not total runs/points over the season. Baseball, American football, soccer-football, basketball, hockey.

        1. Think that over.

        2. But the point you keep missing is that it isn’t a matter of number of games won, it’s a matter of some candidates starting the game with free points by virtue of a New York elector proportionately representing far more citizens than a Wyoming elector.

          1. Sorry Krychek2….Both Team R and Team D start at zero. That is objective reality. Your point about one team starting with free points is just horseshit.

    3. News flash: we don’t live in a democracy, for good reason.

    4. But there was no popular election for the presidency. The winner was the one with the most electoral votes, as defined a prioriin the constitution.

      If the required goal of each candidate/party were defined differently, then the preceding two years of the campaign process would have been run entirely differently. There is no telling what the polling numbers of the ‘popular’ vote would have been had the elections been run as if the popular vote actually mattered.

      1. This.

        How many millions of Republican voters were “suppressed” in CA, IL, and NY? How many hundreds of Democrat voters were “suppressed” in Wyoming?

        We don’t know, because we agreed to a different set of rules – you have to win lots of votes in lots of places, with some semi-arbitrary rules about how we define “places.” But those aren’t entirely arbitrary rules, because we also set other living conditions within those places that we call “states” which each have different laws, so that over time the states with the best overall environments integrated over all factors (climate, regulation, jobs, snow, etc) will have more local power as they’ll experience more population growth than than others. Of course that gets even more mucked up because of the mostly arbitrary specific boundaries, but those are the rules we agreed to.

    5. SCOTUS was never meant to be a “democratic” institution. It’s a federalist institution. Its posts are filled by appointments from the president, who is not, strictly speaking, democratically elected. And, of course, they are approved by the Senate, which is strictly federalist in nature. By the way it was set up, there seems little doubt that it was designed to protect the States from overreaches by the Federal government. In that scenario, the “States” were seen, in effect, as the “People.” With the passage of the 14th amendment, of course, SCOTUS is now is now, pretty much, equally a buffer between the States and the People as well as between the Feds and the People.

      The way I see it, SCOTUS is usually pretty good at defending the People from government overreach — which is its primary purpose. It has served us pretty well for 230 years, through wars, including a civil war, and countless social upheavals, such as the Civil Rights Movement, any and each of which dwarf the current political divide.

      I am rather loathe to throw out a proven system, because of the occasion “outlier,” just to replace it with something which would be, likely, even more politicized.

    6. You’re assuming an unknowable alternate reality. Where is your evidence that if the election rules were changed to use the national popular vote, that Trump wouldn’t have simply gotten more votes by focusing his efforts differently? You can’t know what would have happened if the rules were different.

    7. In today’s environment, I think the electoral college gives an advantage to Republican presidential candidates because it isn’t allowed to act as intended, as a group of independent electors free to act based on their own consciences. It’s ridiculous to argue that the current electoral college is accomplishing something the framers intended, since it no longer operates the way the framers imagined it would.

    8. Question. Do you consider the current EU system to be fundamentally unfair? In many areas, it also has representation by state rather than by direct popular vote. On many issues, small states have disproportionate power. Indeed, there are issues where the EU arrangement requires unanimous consent of the states, something almost never required in the US system.

      In the United States, as in the EU, states retain residual sovereignty, not all sovereignty is delegates to the national government. The federal government is in part a compact of the states, not entirely a creature of the people.

      The President especially is almost purely creature of the states, not the people. It is only because state legislatures happen to feel so inclined at the moment that ordinary citizens get any say at all in who the President is. State legislatures could perfectly well choose the electors themselves, or delegate the selection to some committee, and cut ordinary citizens out of the matter completely. Because the president is selected by electors chosen by the states, the presidency is quintessentially a creature of the interstate compact aspects of the constitution. Ordinary citizens have no inherent right to have any say at all in who the president should be.

  2. I wonder if they’d have gone for this in, say, 1932. Or any other time just before the scales tilted in their side’s favor.

    Interesting that the only two times I know of court packing mania were when the left was suddenly losing court decisions.

    1. Yeah, the right prefers to advocate for executive nullification.

      Don’t pretend the right’s always been super into the Court’s legitimacy.

      I will give you that the left’s position has swung based on recent events, while the right’s hostility to judiciary oversight has remained markedly consistent since I’ve been paying attention to politics.

      1. When did I ever pretend the right was less politically whiny than the left?

        Some nerve I touched. Methinks you doth protest too much.

        1. I don’t see much that would touch a nerve, just the usual intimations of hypocrisy based on a counterfactual. I thought the historical note was interesting, and thought about it some.

          I’m an institutionalist before even my partisanship. As such, I’m against court packing and the reforms above. I might be okay with term limits, but that’s as crazy as I get.

          One thing I think would be super cool would be to let the Court travel and meet in different States. It sucks that only DC law folks get to see the Court in action.

          1. If you are going to reject court-packing you need to explain why some political methods of influencing the judiciary’s make-up are acceptable and others are not.

            The GOP blocked Garland and refused to seriously investigate the allegations against Kavanaugh. It now rockets through confirmations, even of some unqualified or wildly ideological judges. OK. It’s all legal. But so is court-packing.

            So how do we distinguish?

            1. You first have to recognize that what the GOP did to Garland was payback for what the Dems did before, which was no doubt payback for some other similar injustice.

              Second you have to recognize that the accusations against Kavanaugh were specious.

              Partisans, of course, will recognize neither.

            2. “The GOP blocked Garland and refused to seriously investigate the allegations against Kavanaugh. ”

              The allegations against Kavanaugh weren’t detailed enough to seriously investigate. (Deliberately, I think: Making her claims unfalsifiable shielded Ford from the risk of a perjury charge.) A party at an unknown location and date, with an assault the named witnesses wouldn’t corroborate? What was there to investigate? Whether Kavanaugh could account for his whereabouts every minute of two or three years?

              The remaining allegations were, amazingly, even more dodgy.

              1. Yes, it’s all Ford’s fault for not inviting a crowd to her attempted rape!

                1. No, I don’t think so, because there’s no evidence beyond her unsupported word that there was any attempted rape. Worse than that, actually, because she named people who she said could corroborate her charges, and they didn’t.

                  1. And in fact, they said they didn’t believe her.

              2. Actually, Ramirez’ accusations, which were ignored by Grassley, were quite credible.

                And if you think Ford just made it all up you’re deranged. It’s quite possible she didn’t remember enough detail for an investigation to substantiate her claim. But we’ll never know, will we.

                Once again, you not only disagree, but ascribe the worst possible motives to those you disagree with.

                A loathesome habit.

                1. My other issue is the lying. And not just about his past drinking and issues with women (though the sheer accretion of evidence there is pretty damming) – he contradicted his earlier appellate court nomination testimony as part of his Supreme Court nomination testimony.

                  1. Not to mention he lied during his appeals court hearing.

                    And he’s a belligerent asshole.

                    1. A belligerent asshole? In contrast to what exactly? The balanced and charismatic parade of personalities on the left?

                2. “Actually, Ramirez’ accusations, which were ignored by Grassley, were quite credible.”

                  You’re not serious….

                3. The penis in the face at a drunken party allegation was “credible”?

                  Are you mad? What color is the sky in your universe? I ask that because we’re way past asking whether Spock has a beard.

                  1. Don’t you know Brett? After 6 days of heavy “consulting” with a lawyer, of course you can definitively recall things that happened 35 years ago, after a party when you were heavily drinking. Stuff that you never mentioned or could remember before. But you needed those 6 days of “consulting” first.

                    What we really need is a penis line-up chart now. So Debbie can definitively remember which penis was supposedly in her view. We’ll get Kav, Kareem Abdul Jabbar, Magic Johnson, and Dennis Rodman all have pictures of their penises. And wouldn’t you know it, magically Debbie will pick out the right one. Definitive proof.

            3. I’m not going to indulge in line-drawing; it’s a judgement call. I have a strong bias towards the status quo, warts and all, and to me court packing’s cost/benefits don’t outweigh that bias.

              Even given the GOP-engineered bias in our judiciary, the cure of such nakedly partisan structural meddling would be worse than the disease of nakedly partisan procedural meddling that you laid out.

              That being said, I would be willing to look at impeachments, given some well laid-out guidance on what would constitute unacceptable behavior on the bench or in these rubber-stamp nomination hearings.

              1. “given some well laid-out guidance on what would constitute unacceptable behavior on the bench or in these rubber-stamp nomination hearings.”

                Let’s start with the nomination hearings:

                I will propose: You can’t bring up things more than 10 years old, or if it’s something that would be an allegation of a crime, it can’t be past the statute of limitations.

            4. At this point in time, its surprising that anyone would believe Ford’s rape claim is remotely plausible.

              Especially based on the FBI investigation. One individual discussed an event where he and ford were involved in a mutually agreeable makeout session in which one of his buddies entered the bedroom after 10-15 minutes and broke up the session. It was this incident that Ford likely morphed into her “Kavanaugh rape attempt vision”

              1. Especially based on the FBI investigation


          2. By “touching a nerve”, I meant your knee-jerk reaction assuming I pretend away the right’s foibles. In this comment, when I repeat I touched a nerve, I reference your inability to understand those you think of as the opposition, usually caused by blind partisanship and a befuddled mind.

            1. Naw, I agreed with your point about how court packing is a largely lefty thing.

              But that does seem to imply a narrative like Brett’s hilarious 1:28 pm tour de force of partisan blinders.
              In reality the right has their own way to attack the Court. Digging into why the parties have their different styles would be some interesting political science for those who are into such things.

              1. What’s the right’s own way to attack the Court, that’s in any way comparable to court packing? Genuinely curious here.

                Sure, the right “attacks” the Court, in the sense of publicly disagreeing with its reasoning. But I don’t recall any outright threats since the “Impeach Earl Warren” bumper stickers.

                1. I’ve been coming to this blog since the George W. Bush admin back when it had it’s own domain.
                  I’ve heard a quite steady drumbeat calling for GOP Presidents to defy the Court, and calls to impeach judges making decisions the right doesn’t like.

                  I wasn’t talking about threats. But funny you should mention that. Lately, the calls have been getting more authoritarian and violent. I’d like to think that’s just a change in this blog’s comentariat, but I think it’s more a reflection of the GOP’s increasingly reactionary mindset.

                  1. I haven’t heard authoritarian and violent rhetoric aimed at the Court lately from the right. Indeed, that would be quite peculiar at the moment, with the right gaining influence there.

                    1. Not counting the vileness whenever Ginsberg is mentioned, I agree it’s mostly at lower courts.

                      Why should that distinction matter, though?

                    2. OK, to be clear, the proposals for Court packing (And other norm violating measures!) aren’t coming from random internet commenters. They’re coming from academics and serious party activists. This is the equivalent of your “authoritarian and violent rhetoric” coming from Bernstein and Nadler.

                    3. You’re the one who brought up outright threats. I indulged you, because I see them an increasing amount around here.

                      But if you’re looking for a parallel to court packing coming from the right, I would return to nullification, which is as I said the go-to for the right as packing is for the left.

                      Rep. Chip Roy famously argued for nullification. Trump himself flirted with it on the census question. Evangelical leaders are on board.

                      It’s not exactly the same, and why it’s different is as I said an interesting historical and sociological question, but don’t pretend the right is full of rules-followers who are just grumbling. Y’all invented reactionary anti-institutionalism.

  3. But the legitimacy you get from moderate judging can trade off with the Court’s “internal” legitimacy, the respect for the Justices as experts in legal craft.

    Yes, your Joe Sixpack reads Supreme Court decisions carefully and declaring “Hey, this jurisprudence is not wholly consistent or grounded in the principles laid down in Blackstone!”

    The quality of “legal craft” has essentially nothing to do with the legitimacy of the Supreme Court as an institution.

  4. I’m really tired of this particular logical fallacy. Saying “when the Democrats actually win popular elections” will happen only when we actually have popular elections. Until then, you’re making a pro forma guess of what the election might have been under different rules. The fact is that we don’t have popular elections for the Presidency and neither candidate runs their campaign as if we did. If we followed a popular election rule, you can be very sure that the candidates would run their campaigns differently.

    Voters understand the Electoral College, too. You can be equally sure that voters would participate differently if the rules were different. As evidence, just look at the difference in participation rates between “battleground” and “safe” states.

    Given that both the candidates and the voters would behave differently in a popular election than in one run under the electoral college rules, this recurring claim that the “popular election” tally has any meaning is just a waste of time. It’s logically and statistically wrong.

    1. That was intended as a reply to Krychek_2’s comment at the top of the page.

    2. It is a counterfactual, but polling does give us a pretty decent view of what kind of handicap each party’s candidate would be working with.

      1. It gives us basically nothing, because as Rossami points out, it measures how well the candidates did at something neither of them were trying to do.

        1. That’s not all polling does. We know the general partisan lean of the country, versus the general partisan lean of the electoral college.

          1. No, we know the baseline partisan lean of the country when no one is trying to convince them (beyond what various media organizations do on their own).

            Assume (and you may think this isn’t true, but follow it along anyway) that the media in general leans authoritarian, and generally espouses an authoritarianism-is-good-since-we’re-in-charge motif. In areas under contest, Democrats and Republicans then add an additional message, but only in narrow areas.

            What will the baseline partisan lean be?

            1. polling does give us a pretty decent view of what kind of handicap each party’s candidate would be working with.

              Its funny how many people keep trying to pretend the argument here is about predicting outcomes. No one is arguing that; everyone is talking about advantages/disadvantages.

              1. “No one is arguing that; everyone is talking about advantages/disadvantages.”

                How do you talk about advantages/disadvantages in an election system that doesn’t exist and how that would differ from the system we do have without trying to predict outcomes in the hypothetical system?

                1. You don’t think party affiliation is an indicator of where a candidate is starting, advantage-wise?

        2. Actually, there is significant evidence that that is indeed WHAT Clinton was trying to do. She ignored the midwest, largely, because she believed in the theory of “The Blue Wall” and feared Trump would win the popular vote and use that to hammer her for 4 years.

          Thus, she campaigned in places like CA to try and rack up the popular vote. Which she indeed won. Unfortunately (as other people have pointed out above), this is like winning game 1 of the World Series 20-0, then losing games 2-5 by one point each.

          1. By plurality, not by majority.

            In US history, there have been 5 electoral college inversions, since they first started tracking the popular vote at a national level (1824).

            Three were in the 19th century (1824, 1876, and 1888) and two in the 21st (2000 and 2016).

            Of these 5, only in the 1876 inversion did the popular vote winner have a true majority.

            1. Electoral College Inversions

              PS over that same period, (around 49 elections) There were 19 plurality wins, the 5 inversions and only 25 majority wins. So true majority wins in barely over half of all presidential elections.

      2. Nationwide polling might give you that view of the handicap you want. But using the election tallies as a proxy for a proper poll introduces several categories of statistical bias into the analysis and invalidates the results.

        You might still be right in aggregate but it will only be through random chance, not a statistically reliable protocol.

        1. We have statistically reliable polls about party affiliation.

          1. I wouldn’t consider polls (self reporting) a reliable measure of anything. It’s well known that some people outright lie to pollsters.

            You could try to argue from dues paying member lists from each party or voter registration data from states that require a party affiliation stated with the registration.

      3. “…polling does give us a pretty decent view…”

        “Dewey Defeats Truman!”

        (I suspect that pollsters are better now than then, but not enough better to accurately call a 2% popular vote difference. They don’t even claim that kind of margin of error, and Lawd knows what would happen to the turnout. Only half-ish of the eligible voters vote; surely many of those people stay home because they are a blue voter in a red state or vice versa))

    3. I think you overstate your case, Rossami.

      Sure, the campaigns and voter behavior would have been different, but I’d say the actual popular vote outcome is a good indicator of how a popular vote election would have turned out.

      To argue that Trump would have won a PV race as well you’d have to have a basis to claim that the change would have benefited him a lot. I don’t see it. There are no-show discouraged GOP voters in blue states, and no-show discouraged Democratic voters in red states. Equally, there are no-show complacent voters of both parties in highly partisan states.

      Why that should all net out to deliver a lot of extra votes either way is not clear.

      1. Do you also complain about World Series and Superbowl and other sportsball championship, which count games and not total runs/points over the entire season?

        Americans understand the Electoral College very well once the politicians stop yapping and someone sane points out this analogy.

        1. That’s not even a rational objection, Á àß.

          WTF are you talking about?

      2. That’s the problem, bernard11 – it’s not clear. And it cannot be made clear using the available evidence (that is, the election night tallies). It can only be made clear by actually running an election under a popular vote protocol. Pretending otherwise is just silly.

        1. Of course it’s not clear, Rossami, but it is an indicator.

          using the election tallies as a proxy for a proper poll introduces several categories of statistical bias into the analysis and invalidates the results.

          It introduces some error, certainly. But I don’t see why that error should be biased one way or the other, or big enough to offset the three million vote gap.

          I mean, that could be right, but I’d argue that it’s not an easy case to make.

          1. No, it’s not even a useful indicator. The potential error is large and unmeasurable. You don’t think the error would be biased one way or the other – and nobody ever does. That’s why it’s called systemic error (which I just noticed I didn’t use in the comment above – apologies for my lack of clarity earlier). Systemic error is different from random error in that systemic error can not be compensated for through sampling. We know systemic error is there. We know it’s biased one way or the other. (If it weren’t, it wouldn’t be ‘systemic’ error.) But we have no way to know which way that bias is directed until we actually measure it. Which we can’t do until we actually run a popular-vote-based campaign and compare it to an electoral-college-based campaign.

            1. We know systemic error is there.

              How do we know this?

              1. Because it’s ALWAYS there.

                Look, the margin between Hillary and Trump in the popular vote was only 2.1%. If 1.05% of the vote had shifted in Trump’s direction, he would have won the popular vote, too.

                Are you really going to claim that almost completely changing the ground rules and both campaigns’ behavior wasn’t going to shift the vote by more than a percent? Or that you somehow know which direction it would have shifted it?

                This wasn’t a Reagan/McGovern blowout, it was one of the closer Presidential elections in recent history. Not as close as 2000, but still close enough almost anything could have changed the outcome in EITHER direction.

              2. Because the candidates themselves have said over years and across party lines that they would have run their campaigns differently if not for the Electoral College.

                Because the voters themselves have said over years and across party lines that they behave differently because of the way the Electoral College makes some votes “wasted”.

                You are hypothesizing that those multiple sources of systemic error will cancel out. And they very well might. But the individual sources of systemic error exist and are unmeasured. (And I posit, unmeasurable.) Without measurements, we don’t even know in which direction those individual sources of systemic error go. Without measurements, there is no way to even guess at the likelihood of those multiple sources of error cancelling.

                1. Such as me, for instance. I voted Johnson because I think he’d be the best and I live in a state that I was sure was going Trump in 2016, and since I’d prefer Trump over Clinton I could safely cast my vote for my preferred candidate knowing it was impossible to spoil the vote.

                  Since people in aggregate are pretty rational (even if no individual is) I know that since I think this way others will too, so that even if my one vote couldn’t spoil it, we collectively know we won’t spoil it either (keep in mind this is a group dynamics problem, and people can be simply wrong about outcomes).

                  But in 2020 I think AZ will be more purple than red, and I’d prefer Trump 2 over any of the crazies on offer (though if Gabbard won the primary she’d get my vote, because even though I don’t like her policies she’s not crazy), so I’ll vote Trump, even though he’s not my preferred option (I’m a McAfee guy, if you’re going to go crazy go all the way).

                  And since there are enough 3rd party votes to have easily given either candidate the win under any metric in 2016, had it been a national popular vote many would have voted either D or R because there’s no such thing as a “safe” vote for someone unlikely to win. The question is (even beyond the changed minds due to campaigning, and turnout suppression): would the Greens and Libertarians have voted for Trump or Clinton?

      3. I think Rossami makes a stronger point here than you are giving him credit for. To say that “the actual popular vote outcome is a good indicator of how a popular vote election would have turned out” is highly speculative. I live in California, and I know a very large number of Republicans and Republican-leaning voters who did not vote in the last few presidential elections because they believe their votes are literally meaningless. I suspect there are Democratic voters in Texas who feel more or less the same way.

        Maybe the popular vote numbers we currently have are indicative of what would happen in a true popular vote election, but that seems far from certain to me.

        1. I don’t think it’s certain. I think it’s a pretty good indicator.

          Not only are there discouraged no-show Republican voters in CA, there are probably also Democrats who were so confident it wouldn’t matter that they also didn’t vote. And of course the opposite is true in TX.

          But I don’t see what evidence suggests that all that would have made up the gap.

          1. That’s a fair point. I am sure there are Dems that don’t vote in CA for similar reasons.

          2. “But I don’t see what evidence suggests that all that would have made up the gap.”

            I don’t think Rossami is suggesting it would have made up the gap. Or that it wouldn’t. He’s saying we don’t have any evidence – as opposed to faith – how much it would have changed things, or in what direction.

            If you know neither the direction nor magnitude of an effect, then it’s best to just say ‘we don’t know what would happen’.

            1. I understand Rossami’s point.

              And of course he’s right that we can’t be certain.

              But Trump has a big hill to climb to get more votes than Clinton.

              I mean, he’s talking about bias, but arguing that Trump would have won the PV assumes a very strong shift. That might happen, but I don’t think it would be very likely.

        2. California also has jungle primaries, so that in some years (most years) there are two Democrats to choose from for the senate election that cycle. Even less reason, then, for a Republican to drag himself or herself to the polls.

      4. “To argue that Trump would have won a PV race as well you’d have to have a basis to claim that the change would have benefited him a lot. ”

        The basic argument is that both parties leave votes on the table in areas where they’re basically certain to lose, that they’d bother to pick up if the Presidency really was a nation-wide popular vote.

        Also, a lot of “free” protest votes get cast in states where the outcome is essentially certain.

        Arguably the Republican party has more potential to pick up votes than the Democratic party, and in 2016 the sum of Trump and right-leaning third party votes, cast in states where the outcome was certain, was greater than the sum of Hillary and left-leaning third party votes.

        Finally, you have the fact that they were both trying to win under the rules as they were, and Trump succeeded. This at suggests the possibility that if they’d both been trying to win under different rules, Trump would still have succeeded.

        I don’t think it’s by any means certain that Trump would have won under a popular vote system, but it’s sure as heck not certain he would have lost.

        1. Arguably the Republican party has more potential to pick up votes than the Democratic party, and in 2016 the sum of Trump and right-leaning third party votes, cast in states where the outcome was certain, was greater than the sum of Hillary and left-leaning third party votes.

          I don’t see how you’re doing that math unless you’re giving all of Gary Johnson’s votes to Trump, and this is very much the wrong blog to be doing that. Trump is a lot of things, but a libertarian he’s not.

          1. Only when compared to Hillary.

            1. I’m not sure he’s really more libertarian the Clinton – yes he’s ok on guns (MUCH better than her) but he’s terrible on tariffs and immigration (though that’s mainly SNAFU).

              The other side is: if they’re both about the same, which would be more effective in executing their plan? If it’s a plan you don’t like then you vote in the less competent one.

              So as an example, I think Hillary would have made a very effective President – she’s high competent. But I hate what she wants to accomplish. Trump, on the other hand, is mostly incompetent. And I hate what he wants to accomplish (the hyperbolically bad version, at least). Do I want a competent enemy in power? Of course not.

              1. Robert:

                Thanks to Trump’s incompetence, American power and influence on the world stage is waning and China — a totalitarian police state — is about to become the most powerful country on earth. We have a crushing multi-trillion dollar deficit (which Obama was well on the way to fixing) because of his tax cuts without spending cuts. And some of us think that putting immigrant children in what amounts to concentration camps, separated from their parents, is a bad thing. Oh, and I never in my life thought I would see a president who empowers white supremacists.

                Hillary was far from perfect — as a Democrat, I hated that she was my party’s nominee — but the damage done by Trump won’t be repaired for generations, if ever.

        2. The basic argument is that both parties leave votes on the table in areas where they’re basically certain to lose, that they’d bother to pick up if the Presidency really was a nation-wide popular vote.

          This says nothing about how those votes would break.

          They also leave votes on the table in places where they are sure to win.

          Also, a lot of “free” protest votes get cast in states where the outcome is essentially certain.

          Let’s experiment.

          There were six states where the margin was less than 2%. I’m going to claim that there really aren’t “free” protest votes there, as voters will usually think their choice between Clinton and Trump matters.

          In those six states – FL, MI, MN, NH, PA, and WI – Johnson got 2.87% of the vote, compared to his 3.28% nationally. So I don’t see any mass national shift from Johnson to Trump if the popular vote matters. It did matter there, and there was not a big shift. For Stein the shift was from 1.07% to .89% and for McMullen from .54% to .3%.

          Assuming that measures the defection rate nationally, and all defections went as you think they would, that gets Trump another half million or so, not nearly enough.

          1. You assume that a massive change in the rules would reproduce the vote percentages under the old rules. I assume the guy who managed to win under one set of rules would, adjusting his strategy, have won under a different set of rules.

            This is just speculation on both our parts, neither of us have any basis for being confident about it.

            1. You assume that a massive change in the rules would reproduce the vote percentages under the old rules.

              No. He didn’t assume anything at all. He looked at evidence that would speak to that question and then formed a conclusion based on that evidence.

              I assume the guy who managed to win under one set of rules would, adjusting his strategy, have won under a different set of rules.

              Thing is, that’s just a dumb assumption. There’s no reason to believe that politicians can strategically generate votes like that.

            2. You assume that a massive change in the rules would reproduce the vote percentages under the old rules.

              Not at all. I looked at states where protest votes were not free, just to see how much potential for a shift there was from 3rd party candidates to the major candidates.

              I mean, I thought your point was plausible, and worth investigating. And what I found was that in those states the 3rd party candidates still got a large number of votes. I conclude that, contrary to your argument, there are many 3rd party voters nationwide who would still vote 3rd party in a PV election.

    4. Rossami, your comment does nothing to explain the frantic response we would get from you if somehow the new rule became popular elections. Go ahead and start advocating for popular elections, and I will believe you think there is not much to choose between the two systems. Otherwise, stop pretending in public.

      1. Stephen, I honestly don’t know what you think I said that leads to your comment. I don’t want to start advocating for popular elections because I think it would exacerbate the urban vs rural / big state vs small state issue discussed above.

        My opinion on that matter, however, has nothing to do with my analysis of the statistical (in)validity of attempting to extrapolate from popular vote tallies in elections conducted under Electoral College rules to the results of elections actually conducted under popular vote rules.

        1. Rossami, as discussed above, the big-state/small-state issue is about the political disadvantages big states suffer because of the various per-state voting provisions in the Constitution. Popular vote elections for the presidency would alleviate, not exacerbate, that disadvantage. Your comment makes no sense.

  5. The basic problem right now is that the left has become so outcome oriented in its view of the judiciary, that they’ll view the Court as illegitimate if it doesn’t act as their super-weapon. That’s the only legitimate role they see for it, they’ve rejected the idea of the judiciary as an impartial enforcer of rules originating elsewhere.

    The right still has some tolerance for a judiciary where they don’t always win, but that tolerance is eroding, too, after a couple generations of the judiciary repeatedly over-reaching and deciding social issues that weren’t any of its business.

    The left’s outright threats to pack the Court at the next opportunity probably will be the last straw in that regard.

    1. The decisions that favor *me* are entirely legitimate and well-supported, whereas the decisions that favor *you* are lawless crap. I’m convinced! A powerful argument.

      1. You have to understand that Brett is talking about the Bellmore Constitution – his private version of what the US Constitution means. So of course only decisions that he agrees with are legitimate.

        Further, any he disagrees with are not only wrong, but also made in bad faith.

        1. Yeah, the Bellmore Constitution, the one that you can buy pocket editions of, and which, for instance, makes no mention of abortion.

          1. And that’s the problem, because if you take the strong argument of abortion proponents then it boils down to bodily autonomy…. and now the FDA and DEA have to be struck.

            That’s the problem with writing something so untethered to the actual text – you have to come up with some logic that will extend far beyond what the original issue was.

            The analogous argument from the current political right would be that the 2nd Amendment guarantees a right to all weapons of war, particularly including nuclear weapons…. and that this must be state funded or you’re denying a constitutional right to someone because of their wealth.

            Of course, no one (I think) is actually making that argument, but that’s how untethered some of these are, if you follow their own logic.

    2. The right still has some tolerance for a judiciary where they don’t always win, but that tolerance is eroding, too, after a couple generations of the judiciary repeatedly over-reaching and deciding social issues that weren’t any of its business.

      I do love a self-refuting sentence.

      1. As long as it’s in your favor.

  6. Seems the authors of the solution are misunderstanding the USSC: It is mandated by the Constitution, to exist, unto itself. The other Article III courts exist at the whim and desire of the Congress….

    1. Congress gets to define a lot about the Supreme Court as well. Court packing is accepted as constitutional, I think.

      Term limits would require an amendment.

      1. Yes, no question that Court packing is constitutional. It’s a sort of Godel’s theorem of constitutional design, that no constitution can actually anticipate and prohibit all the ways it could be subverted.

        There are a lot of constitutional things that you could do, that would violate the unspoken rules of the game, and turn the US into a de facto one party state. Naturalizing all illegal aliens. Breaking an agreeable state into 20 new states, and making all the territories into states, too. Refusing to seat members of the opposing party. Using the “time place and manner” clause to impose over the top gerrymandering on the states.

        All any of this actually needs is a cooperative President, a momentary majority in both chambers, and a sublime indifference to how much you piss off the other side.

        1. Never have I agreed with a comment of yours so fervently. Those are great examples, too. (And why I didn’t like Obama not defending DOMA.)

          Though it does cause some trouble for the common argument about this Admin’s policies being constitutional, and thus okay. (See: Garland, emoluments, Muslim ban, OLC and DoJ no longer being even slightly apolitical, pardon abuse, etc.)

          1. “OK” is a political judgment, the judiciary should only be concerned with legality, not with whether a policy is smart or ill considered.

            That’s quite a grab bag of issues there.

            I’ve already said that Garland should have been brought to a vote, and properly voted down. McConnell is a jerk, news at 11… But he’s not the first nominee to be ignored in an election year. Not even the first Supreme court nominee to get that treatment.

            There’s simply no case that Trump is violating the emoluments clause. It simply has never been understood to include ordinary commercial transactions, and it’s not like having a President running a business empire out of the White House is novel. Now, such transactions aren’t precluded from being bribes, if you can establish that they’re not at market rates, or are otherwise pretextual.

            Muslim ban, perfectly precedented, and the travel ban he actually implemented in its place would have been unproblematic for any other President. I really object to Trumplaw, and the travel ban cases were TrumpLaw.

            The DOJ and OLC stopped being apolitical decades ago. I see no reason why they should remain under the control of Democrats even when a Republican is in the White House.

            And, what pardon abuse? I haven’t seen any.

            1. Trump doesn’t go through a pardon office to pardon people, he does so by impulse. It ends up acting a bit as a spoils system.

              Not unconstitutional, but not a great new norm either.

              I agree the court doesn’t get to review these things. I’m not arguing it should or can. Just that they hurt the republic.

              That you think they’re fine is unsurprising. Except for this: it’s not like having a President running a business empire out of the White House is novel.
              That’s quite a take.

              Muslim ban, perfectly precedented
              Which is why it took 3 tries to scope it down and follow the APA.

              Trump is bad at following the rules. When the rules are just norms, it’s okay. But sometimes they’re not. What you see as TrumpLaw, I see as a symptom of the same impulse that is seen in all these norms being broken.

              Apolitical is a spectrum.
              What we have now is the AG going around the world trying to get other countries to start investigating speculative theories that can explain away electoral woes, and the head of OMB(?) going around trying to scare up smoke around the Dem candidates so the GOP can yell about fire like it did with butter e-mails.
              And an OLC that acts like a defense attorney. Has it ever had a holding that didn’t enable Trump’s every whim?

              1. “Trump doesn’t go through a pardon office to pardon people”

                Good. The pardon office is laughable. Its conditions are stupid, the few people who get pardons are those that don’t need it.

                The pardon power is the President’s, not DOJ’s, in any event. He or she can use it however he wants.

              2. “That you think they’re fine is unsurprising. Except for this: it’s not like having a President running a business empire out of the White House is novel.
                That’s quite a take.”

                It’s an historically informed take. Presidents with business empires have been the rule, not the exception. Sure, we had a recent run of Presidents who had spent basically their entire lives as politicians, but that was a new normal I’m glad to have escaped for now.

                “What we have now is the AG going around the world trying to get other countries to start investigating speculative theories that can explain away electoral woes, ”

                I can understand your not wanting the crap the Obama administration pulled during the 2016 election being investigated. Really, I can. I just see no reason you should be humored.

            2. Now, such transactions aren’t precluded from being bribes, if you can establish that they’re not at market rates, or are otherwise pretextual.

              Sweetheart, did you somehow miss foreign governments paying for large blocks of rooms at his properties and then never using the reservations? That doesn’t strike you as pretextual?

              1. That doesn’t strike you as pretextual?

                I bet he’ll have an excuse.

              2. If true, and if not routine, I would consider that pretextual.

                1. More pretextual or less pretextual than the State Department buying tens of thousands of dollar’s worth of Obama’s books, while Obama is president, and thus directly sending taxpayer dollars to Obama via the royalties?

                  1. A handful of embassies made those decisions, and the embassies also stock books by former presidents/officials.


                2. In the corporate world this is common. Every large-ish company I’ve been at holds many rooms in cities it regularly has travelers to at prearranged rates as it ensures availability (most important) and not being screwed on prices during an event (less important). When traveling to a common destination I’d book the in-house rooms first as they were generally much cheaper than off the shelf, then switch to a preferred hotel if our ore-bought rooms were gone.

                  I’d assume that governments do this, though I have no first hand knowledge. I’d further assume that switching to Trump hotels was to curry favor, even if not intended as a bribe per se – I’ve done the same to stay at a clients preferred hotel so we can “accidentally” run into each other over breakfast – I’d assume politicians do that too, though in this case they’d be looking for a Trumpkin, not the Trump himself.

            3. On what grounds should Garland have been voted down?

        2. There are a lot of constitutional things that you could do, that would violate the unspoken rules of the game, and turn the US into a de facto one party state.

          Yes there are, and the GOP is trying out a lot of them. And they don’t seem to worry much about constitutionality since, except for the occasional twinge of Roberts’ conscience, they have SCOTUS ready to go along.

    2. All this “fixing” revolves around a presumption the Supreme Court shall be a crypto-legislative unit.

      It’s taken the Republicans 40 years to get to a point they can even dream of restricting Roe, and all of a sudden now it’s a problem?

      1. The fixes are all manner of infield fly rules to pick Red Rover teams “more fairly”. Which is to say anti-democratically by presuming the existence of some higher untouchable sidemaking.

        No problems there for future demagogues to take advantage of.

  7. “WASHINGTON, D.C. — As the U.S. Supreme Court prepares for the opening of a new term, Gallup finds a slight majority of Americans — 54% — approving of the job the court is doing. This rating is similar to each of the past three years, but marks an improvement over the prior five years, from 2012 to 2016, when about as many Americans disapproved as approved of the high court.”
    “Views of the court differ sharply by party: 73% of Republicans approve and 38% of Democrats approve, with independents falling squarely between at 54%.”
    “Republicans’ approval of the court increased sharply spanning the transition from Barack Obama’s presidency to Trump’s, rising from 26% in 2016 to 65% in 2017.” Gallup October 2019

    Where were the Supreme Court legitimacy crisis law review articles in 2015?

    Libs think that only institutions they like are legitimate.

    1. Or, conversely, the right’s been carping about the liberal bias and thus illegitimacy of every institution from the Supreme Court to public schools to the media to scientists to Hollywood to every administrative agency &c. &c.

      1. Or, conversely, the objectively liberal turn the Courts took during the Warren/Burger years is still leaving a bad taste in the mouth.

        Since then, the right, rather than try to tame the courts to be majoritarian, have rather set up their own conservative/libertarian versions of legal advocacy organization. Since the Institute for Justice and other groups are winning now and again, suddenly the Supreme Court is a “superweapon”? Bah! It’s nothing of the sort, and the victories have only come through the appointment process playing itself out as per the Constitution was designed.

        1. Where were the Supreme Court legitimacy crisis law review articles in 2015?

          I posit that it’s because the right’s been yelling about a legitimacy crisis just about everywhere for quite a while.

          Bringing up the Warren Court is very much off topic sour grapes.

          1. You know the how the legitimacy and anti-majoritarianism of the Supreme Court is, has been a topic of perennial debate since the Federalists vs the Antifederalists. Talking about the Warren Court, when they exercised their power outside the mainstream, is sour grapes? More like it’s uncomfortable for leftists to deal with, because it set a high baseline in modern academia and among the pundit class of what the Court *should* do. And that’s even among conservatives, who expected the Robert’s Court to undo Obamacare with Obama still in office.

            1. We’re not talking about legitimacy in this thread, but rather about Where were the Supreme Court legitimacy crisis law review articles in 2015?.

              I get that you’re fired up to blame everything on the Warren Court. Start your own thread, then. I’ll engage your argument there, maybe.

              1. Ah, okay?…. I’m not fired up about the Warren Court, just noting that it set a higher bar for judicial activism that we are all living with today (including the researchers and OP blogger is responding too). It is a fact that you’re glossing over or unaware of. The title of this blog post was the Supreme Court as Superweapon. For God’s sake, it’s not the Death Star.

                You know, you’re working at cross purposes. You purport to be a voice a moderation, but you simultaneously like the give and take of debate, thus, you’re frequently making conflict here when there needn’t be. Like here. In other-words, you’re trolling, perhaps unconsciously.

                1. Where were the Supreme Court legitimacy crisis law review articles in 2015?.

                  What is your mania for changing the subject on this thread?

                  1. I am debating the premise itself, but I dunno, what’s your mania for avoiding the obvious?

        2. What Warren court decisions leave a bad taste in your mouth, m_k?

          I’m sure there are some you dislike, but what about Brown, Loving, Miranda, Griswold, to name a few, is there that you disapprove of?

  8. “Letting bipartisan commissions or Senate leaders pick the nominees—another suggested patch—would be at war with the Appointments Clause, too.”

    Not if the method of implementing these changes were by Constitutional amendment, a rather basic assumption.

    Here’s another wild fix, offered just for the fun of it. Each outgoing President could present a slate of judicial candidates, and the succeeding President select from the slate. Perhaps you could set up a way the minority party could strike candidates for cause, a process any attorney should understand the principle of. Anyway, that moves the needle… highly partisan judicial candidates would only have a chance at actual nomination if the same party put two succeeding Presidents into office, which hasn’t happened since 1988. For all other Presidencies, the President selecting nominees from a slate prepared by a President of a different party would tend to push judicial candidacies towards the center rather than to the extremes.

    1. It wouldn’t, because I’ve already figured out how to game it.

      I’ll put up my craziest (nuke for everyone! Mandatory Abortions!) and let my opponent successor pick whichever knowing I’ll be happy with any of them. Slowly the Court will shrink as each new president refuses all of their options, until one caves or one party wins twice in a row and then dominates the court for decades.

      It sounds like a good idea, until you think about how to break it.

  9. I think the article Epps and Sitaraman overstates the problem in the first place. The Supreme Court follows the culture and political branches, and rarely steps outside the mainstream. For all the Strurm and Drang about abortion, for example, it was going through the process of legalization at the state level in many states. They just got out ahead of their skis.

    Really, we just have a hangover from the Warren Court, and most of that they did outside the mainstream was problems in implementation with regard southern segregationist Democrats opposition and subsequent northern liberals taking it to far with forced bussing.

    1. The Supreme court rarely steps outside the mainstream of the views of federal officeholders. It frequently steps outside the mainstream of the general population’s views.

      1. It’s more complicated than that. Federal officeholders reflect the voters’ choices because it is they who sent them there. Now, said officeholders oftentimes punt difficult questions to the court so they don’t have to actually vote, but most decisions are relatively mainstream. You can demonstrate this for the few cases where we have polling data on topic X before and after a decision.

        Note, opinion data is also only important for highly salient cases. Most people have no opinion on even the topics of big cases recently, like the taking clause in Kelo, or incorporation, etc.

        1. Federal officeholders reflect the voters’ choices because it is they who sent them there

          But see the discussions of the EC and Senate above.

          1. What, do you expect a .1 correlation? Impossible. Especially since the voters often want impossible things like lots of services but low taxes, or are ignorant on lots of policies. Voters have a general idea of when one party is screwing them over, even if it takes them a while to figure it out.

            What’s reasonable, in a republic, I’d say a .6 to a .8.

        2. “Federal officeholders reflect the voters’ choices because it is they who sent them there.”

          Federal officeholders make a show of reflecting the voters’ choices because failing to do so is politically dangerous, but that doesn’t mean they respect those choices, or mean for them to be effected. The more easily obscured actions can be, the less constrained lawmakers become. It’s easy enough to deliberately fail to accomplish something you don’t want to do, or make a public show of wanting it, while making private efforts to make sure it never happens.

          And even under the best of circumstances, a single binary choice every 2, 4, or 6 years scarcely allows the voters to compel obedience across multiple topics. The bandwidth just isn’t there.

          1. See for example Elizabeth Warren 15 years ago vs today, or Kamala “I locked people up for weed when I was smoking it at the same time” Harris. The later case I suspect was just pandering, since she also claimed to have Snoop Doggs never-released zeroth album.

          2. You’ve agreed to the premise, now we are just debating the degree.

            Politicians, by in large, still reflect voter will. Not perfectly, and never will, because there is no “public will” about a large majority of issues, and the public is so large and varied in opinion.

  10. The main problem that I see occurring as a result of polarization is the appointment of justices (from both sides) who seek to radically alter the course of law in any specific area or ideological direction. The courts are supposed to have a small “c” conservative bias as their decisions are grounded in the past. But, as the parties in Congress move more towards the extremes, and with only 51 votes needed in the Senate to confirm, the individuals nominated are likely to reflect those extremes. Over the long-term, this has the potential for major legal swings in one direction, followed by an opposite swing the other direction. That, I think, is bad for the Court and the law itself.

    The Court has always and will continue to be a political branch. It is an institution created by our founding political document, and its members are appointed and nominated by elected politicians. Furthermore, as long as there remains more than one way to interpret the law, different outcomes will be reached by different justices. The “solution” is not to go after the Court itself, but rather to find mechanisms prior to appointment or after a decision is announced that can be adjusted or added to the machine.

    For starters, a law requiring a 2/3 vote in the Senate for Supreme Court appointments would force the party in the majority to pick candidates that are moderate enough to get the needed votes. The idea is that members of both parties would need to find candidates slightly closer to the center. Another possible mechanism would be a law that requires Congress to act when a federal law, or part of the law, is struck down. Both chambers would be required, within X number of days, to amend the law to fix the constitutional problem, support the law as-is, or rescind the law. This should require floor votes though, which prevents members of Congress from shirking difficult questions to the Court and therefore avoiding controversial votes. It also puts the Court on notice that when it strikes down a federal law or part of the law, Congress will respond in its legislative capacity. As it stands now, the Court can strike down laws and expect members of one party to complain while on the tv circuit, but an actual legislative response is rarer. The point is to make Congress respond as a check on the Court, but not to require the type of response.

    On a final note, the justices appear to have too much time on their hands during the summer recess. I think having them ride circuit for 2-3 months, hearing the more mundane criminal and civil cases that affect the lives of a broader group of people, would bring some humility to the institution. The concerns at the founding were that an elite group of judges, isolated within the boundaries of the capital, would become disconnected from the human side of justice and the common people who were affected.

    1. “…a law requiring a 2/3 vote in the Senate for Supreme Court appointments would force the party in the majority to pick candidates…”

      This would take a constitutional amendment, and as such, it’s unlikely to go anywhere.

      1. It would also at this point result in the Supreme court gradually losing members as the major parties concentrated on molding the circuit courts in their place.

  11. The court reform objective should be an appointment and confirmation process structured to make the question of which president got to make appointments a matter of complete political indifference. To do that, you could require a 4/5ths super-majority. That would probably be enough to rule out any nominee with an overtly political history. Which would be good—or at least better.

    There is no reason why an amendment would be needed. It could be accomplished (probably) by mere politics. Let one political party capture all the political branches, with sufficient control to do as it will with the court—including impeaching every sitting justice. In the normal course of politics, that will happen someday.

    With that much political power consolidated, first step, clear the bench. All existing justices are out.

    Second step, issue an ultimatum to the other party. Agree to a 4/5ths rule, or watch us pack the court 100% with young, energetic partisans for our politics.

    Third step, after a 4/5ths rule is agreed, invite the party out of power to name 5 candidates. The in-power president agrees to nominate them. Then, advice and consent, as usual, until the court is full. But it will always take 4/5ths for confirmation. Any nominee with as much political involvement as, for instance, every current sitting justice had, would fail.

    The court would cease to be political. Its justices would be chosen for judicial temperament, knowledge of the law, writing ability, impartiality, and other civics book kinds of stuff. Lawyers with court ambitions would eschew politics, instead of diving in. That would prove the no-politics principle in action. After that, it would be smooth sailing.

    If you could get that system running, I doubt anyone would be willing to disrupt it. Not, at least, until everyone is long dead who can remember the mess the nation is in now.

    1. “including impeaching every sitting justice. In the normal course of politics, that will happen someday. ”

      In a post filled with craziness, that is the craziest.

      There has not been a 2/3 majority in the Senate since the 1960s, that was an artifact of the Democratic Party being completely dominant in the South, strong in the North and competative everywhere. Its highly, highly unlikely to occur again.

      We have never removed a Justice yet you think the “normal course of politics” would result in the removal of 9 at once? Weird.

      1. The idea being to select judicial nominees who are acceptable to members of both parties, rather than making judicial confirmations party-line votes.
        If a successful confirmation requires Senators from both parties to approve, you’ll get fewer extremists. Most people think that outcome would be a good thing.

        The obvious solution to that is to require that judicial conformation requires a majority of each party in the Senate, not a simple majority of Senators. That’s simple and fair to all parties, and therefore unacceptable to partisans of all types.

        1. The obvious solution to that is to require that judicial conformation requires a majority of each party in the Senate, not a simple majority of Senators. That’s simple and fair to all parties, and therefore unacceptable to partisans of all types.

          Except, of course, that there are more than two parties.

          1. “there are more than two parties.”

            Gosh, if I’d have thought of that, I’d have referred to “all parties”, not “two parties”, in the text you quoted. Hey, wait…

            1. Maybe if you had actually realized it, instead of pretending after the fact that you had, you’d have thought through the ridiculous proposal that confirmation “requires a majority of each party in the Senate.” So if there are 54 Democrats, 45 Republicans, and 1 Independent, then that one guy gets a personal veto over all nominations?

              (Of course, the proposal is ridiculous even without a third party. 54 Democrats, 46 Republicans. All 54 Democrats support the nomination, and 23 Republicans do, and the nominee is thus rejected despite being supported by a 77-23 margin.)

      2. Bob, perhaps I was unclear. What will happen again in the normal course of politics is one-party control of everything. The rest is just a scheme for court reform which an infrequent political event might empower.

        As for the likelihood, at several-decade intervals, the nation experiences wave elections of seismic proportions. Those have been associated with moments of generational change in politics. What cannot go on forever, doesn’t. That means the baby boomer dominance of the political scene is about to collapse. I suggest a seismic wave election is likely in 2024. Whether the wave will be big enough to deliver control of everything to one party we shall see.

        1. “one-party control of everything”

          “Control” meaning one party with the Presidency and majorities in both houses, sure. We just had it two years ago.

          “Control” meaning one party can do what you suggest, very, very, very unlikely. FDR had such control and couldn’t get his court packing past first base, the revolutionary scheme you propose is even less likely.

    2. “Second step, issue an ultimatum to the other party. Agree to a 4/5ths rule, or watch us pack the court 100% with young, energetic partisans for our politics. ”

      I think you’d find in practice that the second step was to vote in 100% of the court with young energetic partisans, who’d all be impeached after the (inevitable) change in fortunes in coming elections. People who win elections keep imagining that they’ll keep winning elections.

      1. Could be, James, but I style myself an optimistic fatalist.

  12. I find it interesting that a significant number of people who support the electoral college also oppose affirmative action, but the two are basically the same thing. The electoral college is basically affirmative action for Republicans who could not otherwise win a fair election. Now, if you’re whom I’m talking about, think about all the reasons you oppose affirmative action and you’ll find that most of them apply to the electoral college as well.

    1. “The electoral college is basically affirmative action for Republicans who could not otherwise win a fair election.”

      Cry more lib.

      1. I think we can put Bob down in the “nope” column for any reforms… at least, until things start going against his preferences. Maybe President Warren will help him see the light.

      2. Bob, I accept your concession that you don’t actually have a substantive response.

        1. I gave it the response it deserved.

          1. Bob, I accept your concession that you don’t actually have a substantive response.

    2. I don’t believe your comparison is at all accurate. There are a lot of reasons for the anti-majoritarian elements of our federal system. One of them is that the less populous states would not have joined a political union in which the chief executive of the union was selected by simple majority. The EC sets out rules that all the participants agreed to when joining the union. Historically, the EC was not about giving advantages to one political party over the other, but to (un)level the playing field re. more and less populous states. That it happens to be advantageous to Republicans at this moment in time is mere happenstance.

      1. Dodger, I disagree with you that it’s happenstance that it benefits the Republicans; the Federalist Papers are pretty clear that the anti-democratic aspects of the Constitution would make it harder for progressives to get elected, although progressive wasn’t the term in vogue at the time. But that aside, if your argument is that it was a necessary political expedient at the time, I agree with you. That doesn’t make it a good system now.

        In fact, I would go a step further than that. The perception that the authors of the Constitution were geniuses who gave us a thing of brilliance is nonsense. The Constitution gave us a bloody civil war 75 years after it was adopted. Today, it gives us political dysfunction unknown anywhere else in the Western world — our Congress can’t even pass a budget, government shutdowns have almost become routine, and any president of either party who can actually get more than maybe 25% of what he promised the voters accomplished has done very well. Oh, and by the way, we have a crippling multi-trillion dollar national debt because there are no political consequences for allowing the debt to spiral out of control. Sorry, but I completely disagree that the Constitution has been good for us, occasional counterexamples notwithstanding.

        1. The European system gave them several “civil wars” since 1891. And that is the right comparison, because without a ton of compromises like the Senate, EC, etc, the would be no USA, there would be Virginia, Pennsylvania, Massachusetts, North Carolina, a bunch of other states that may/may not have been carved up in minor wars, all equipped with French Canada to the west, and independent, never affiliated with the original 13 (but populated mostly by migrants from) Florida to the south.

          1. And, as ever, those migrants from Florida would have been alligators.

      2. Part of the reason there’s an electoral college is the poor communication methods available in the 18th century. A nationwide election would have been a MUCH different exercise in 1789. They didn’t have the ability to pick up a phone and ask Bangor if the returns are in, or ready access to examine the collected ballots from Birmingham in less than a month. Now we have long-distance phone service, and Federal Express.

    3. I’m trying to understand your analogy and I don’t think it works.

      The EC gives disproportional power to lower density states that aren’t in a high-density metropolitan area – like how Wyoming would be dominated by Salt Lake City if they were closer together – people would live in WY but work in UT, and it just so happens that right now there aren’t any low density states bordering a high density metropolis (though there used to be).

      Affirmative Action (as it’s used today) gives a racial bias based in the melanin content of the skin (or claimed content and derivations).

      If Affirmative Action were like the EC it would give a preference to those from rural or downtrodden areas, like an anti-money preference based on parents income, or an anti-education preference based on parents education – where you get a higher bonus for having “worse” parents.

      And I think most opponents of racial preferences would be entirely fine with class-based preferences such as those above, even if they often benefitted the same recipients – precisely because they’re not racists.

      Note: I really want racial preferences to remain for another 15 years so my kids (who can check literally every box on those forms) get to benefit from it in college admissions, but I’m at least capable of recognizing my self interest, especially since education or income would weigh against my kids.

      1. Robert, I think you’re making a distinction without a difference (i.e., that is a brown cow, this is a black cow, when the fact that actually interests me is that it’s a cow).

        The point of the electoral college is that rural voters were afraid they wouldn’t be able to compete with urban voters, so the EC helps give them a competitive advantage they would not have if the election were decided by the national popular vote. Just as racial preferences exist out of fear that minorities won’t be able to compete with whites because of systemic racism, so they need a competitive advantage. The question in both cases is this: Should people be given an artificial competitive advantage (free points if we’re using a sports analogy) to alleviate fears that they can’t compete without it? That the disadvantage in one case is living in a rural area and the other is being black is irrelevant; the relevant point is that you’re giving an artificial competitive edge to someone to make up for their inability to compete in a free market.

        And that raises the question: Why do people, who otherwise never have a kind word for socialism, support a voting system that is socialism? My individual vote does not count as my individual vote; it only counts as part of that collective known as the State of Florida. If conservatives were principled, they’d oppose it on that ground alone.

  13. Superweapon?

    “Don’t be so proud of this jurisprudential terror you’ve created. The ability to destroy a statute is insignificant next to the awesome power of Wokeness.”

    1. Did you ever hear the Jurisprudence of Justice Plagueis the wise?

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