Expanding the Bench, Physically

Congress may pack the Court. But how will everyone fit on the bench?

If the Supreme Court is expanded to eleven members, where would everyone sit? As things stand now, the Justices have some breathing room between them. They can recline, move from side-to-side, and chat with their neighbors. But it would get cozy by sliding in two more chairs.

Plus, in the COVID-era, will the Justices install plexiglass shields between their stations?

Comments

[Dan Schiavetta]

I have long suspected the Justices have engaged in secret fart wars. Those will escalate.

[grb]

Anyone willing to guess the over/under on Blackman posts about this mess?

[QuantumBoxCat]

He's churning them out at a pretty impressive rate so far. But he's strategic. By saying everything that comes to his mind, it's possible that at least one of his "predictions" bears some semblance to reality down the road. In that case, he can blog about it and say how he predicted that very thing happening (back-linking to one the many posts in this long diatribe). That way, he looks like he is able to predict the future! It's all about blogging as much as possible today, with a view to tomorrow.

At some point, I assume this Blog will be renamed The Josh Blackman Conspiracy.

[Rev. Arthur L. Kirkland]

" If the Supreme Court is expanded to eleven members, where would everyone sit? "

This, ladies and gentlemen, is how you snag a position at the South Texas College Of Law Houston, which began as a night school operated by the YMCA and in just one century has climbed to being tied (with 47 other schools) for the coveted position as 146th-to-192nd-best law school in the United States.

It is also how you land a spot at a white, male, right-wing blog with a fading legal and academic veneer.

[Deontologist]

Justice Kagan reads this blog daily, according to her, and I'm sure that prof. Blackman has inspired the shadow chief Justice to contemplate the logistics of having another 2 liberals on the court.

[Martinned]

Given that the Rev. is just a pseudonym for Justice Kagan, I am sure she is well aware...

[Rev. Arthur L. Kirkland]

I am not Justice Kagan.

I am, however, her favorite, according to one of her clerks.

[Deontologist]

RBG's politicization of the Court disgusts me. She should be censured immediately.

The late Justice Scalia asked Obama to add Elena Kagan to the court. Imagine that, a Republican asking for a liberal on the court.

RBG couldn't, unfortunately, extend the same sort of grace that came naturally to Justice Scalia.

[Martinned]

Yes, Justice Scalia was a famously non-partisan angel!

[Deontologist]

So non-partisan that he asked David Axelrod to tell Obama to nominate Elena Kagan to the court.

Wake me up when a liberal Justice asks a President for a conservative nominee.

[Martinned]

There hasn't been a Republican equivalent to Obama in the White House since Bush sr., so that might be a little difficult.

[Rev. Arthur L. Kirkland]

"RBG’s politicization of the Court disgusts me. She should be censured immediately."

What censure do you have in mind?

[Deontologist]

Replacement with a Justice of Trump's choice and shortly thereafter, destruction of all the 5-4 majority opinions she authored.

[James Pollock]

"RBG’s politicization of the Court disgusts me. She should be censured immediately. "

Are you calling for capital punishment?

(having to serve in a government headed by Donald Trump seems like punishment enough already.)

[Dr. Ed 2]

Kirkland, Harvard started with 14-year-old boys memorizing Latin & Greek, "encouraged" by corporal discipline.

For what it's worth, the YMCA started lots of law schools and I believe the YMCA law schools were the first to admit women. Florida International University literally started on an abandoned airport, without running water and with the old control tower its only campus building. Maine's Unity College was founded by businessmen when I-95 bypassed Unity and as late as 1980, it's dorms were old chicken coops.

Many colleges had humble beginnings....

And as to higher education in general, upwards of half of the colleges and universities currently in existence expected to fold in this decade, some with quite august histories....

[Rev. Arthur L. Kirkland]

"Many colleges had humble beginnings…."

Some schools with humble beginnings have become our strongest schools. They are almost without exception operated by, for, and in our liberal-libertarian mainstream. They prefer science, reason, modernity, academic freedom, and progress.

Some schools have not advanced beyond 'we're number 146-to-92.' Our lesser schools tend to be operated by and for conservatives. They prefer dogma, superstition, backwardness, censorship, and insularity.

[Dr. Ed 2]

Kirkland, our "strongest" schools are not our "best" schools.

Our strongest schools are our richest schools, with the best placed alumni. Harvard has been described as a venture capitol firm that does some education on the side. And my opinion of Harvard was established one night when I had to convince some Harvard students they wouldn't drown if they simply stood up and walked ashore.

Look at the Normal Schools (teacher's colleges) -- they never intended to be nationally rated, their purpose was to provide schoolteachers, a lot of which were required because female teachers were fired when they got married (hence June weddings so she could complete the year). A lot were built in remote areas so the people there could become teachers as city folk wouldn't go there.

Reliance on the "number 146-92) and similar rating systems is simply asinine.

[Rev. Arthur L. Kirkland]

Our best colleges and universities -- measured or listed in any sensible manner -- are liberal-libertarian mainstream schools.

Our conservative-controlled colleges and universities tend strenuously toward censorship-shackled, nonsense-teaching, fourth-tier (or worse) institutions with sketchy accreditation.

[Dr. Ed 2]

Accreditation is a political joke. But for the link to Federal money, it wouldn't exist.

[Rev. Arthur L. Kirkland]

No, Dr. Ed 2, it is an academic regimen and a political tool.

When the mainstream stops providing undeserved accreditation to schools that teach nonsense, you will not find the results humorous.

[Dr. Ed 2]

Accreditation is a political joke. But for the link to Federal money, it wouldn't exist.

[James Pollock]

" Harvard has been described as a venture capitol firm that does some education on the side. "

Someone who knew what they were talking about might have once called them a venture-capital firm. A modern university is a research organization that offers classes as a side business. There's a reason Silicon Valley is near Stanford University.

[Dr. Ed 2]

Kirkland inadvertently raises a good point though -- the YMCA democratized the law. Like today, at the turn of the 20th Century the legal profession (and hence access to the courts) was becoming the exclusive domain of the academic and financial elite.

What the YMCA did, as part of its Christian mission, was to start affordable (read "cheap") part-time night law schools so that working adults could become lawyers. These were often in the basements of the organization's gymnasiums.

The ABA did not like this, and a lot of its accreditation criteria is explicitly intended to frustrate this mission, which is why we again have the problem of access to the courts.

But Kirkland does a public service in mentioning how the Young Men's Christian Association (YMCA) expanded access to the law a century ago.

[David Welker]

Super interesting history.

[James Pollock]

"What the YMCA did, as part of its Christian mission, was to start affordable (read “cheap”) part-time night law schools so that working adults could become lawyers. These were often in the basements of the organization’s gymnasiums."

There was already a successful model for this in Oregon, the Northwest College of Law. It was and is the most successful law school in the state, outranking the state school in Eugene and a private competitor in Salem.

[James Pollock]

"The ABA did not like this, and a lot of its accreditation criteria is explicitly intended to frustrate this mission, which is why we again have the problem of access to the courts. "

ABA accreditation is not why we have a problem of access to the courts, except inasmuch as the cost of becoming and remaining accredited add to the costs of law school. The real problem is graduating new juris doctors with five or six-figure debtloads. They have to service that debt, which means they have to earn enough money to service that debt which means they can't work cheap. this means that the poor get underserved legally. Same problem with medical doctors.

[neurodoc]

A second or rear tier, like for large House and Senate hearings. Or remodel the chamber.

But why just expand to 11, which might give liberals (non-Catholics) the possibility of a majority within the next decade.

[AmosArch]

Would it be possible instead to shrink the Court and get rid of offending Justices? I mean when you think about it. Its not really any more of a naked power grab than packing

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Constitution guarantees their appointment for life. You'd either have to impeach a few or wait for them to die off without replacements. You can't shift them to different judgeships. Maybe you could create a new Super-Supreme Court which could only take ties from the Supreme Court, of which there are very few with an odd number of justices.

Now maybe you could try an end-run around the life appointment by rotating them, or change the rules to only accept the 7 most senior votes. But that might just be too fishy even for politicians.

[Sarcastr0]

Destabalizing moments like this and the Scalia replacement show why life tenure is bad.

I wouldn't take Amos seriously; he posts from a realm of pure emotion, not looking for logistics.

[Leo Marvin]

I thought the lesson from Scalia, to quote Michael Corleone, was if history has taught us anything, it's that you can kill anyone.

[Leo Marvin]

(or at least Hillary can)

[James Pollock]

Simple disproof: Trump survived 2016. Newt Gingrich survived the 20th century. Rush is deaf but not dead of an overdose.

[Cyto]

Removing them is more problematic than appointing them.. the appointment being for life.

[Rufus The Monocled]

Why is that? Why for life? In my view, anything connected to public service should be capped with a term.

[Martinned]

I think the short answer is "because it says so in the constitution".

As for whether it ought to, I think a single non-renewable 20-25 year term would be preferable, but what do I know?

[Dr. Ed 2]

I'd like a physical fitness requirement: must be able to get into the building. Her bedside attendance at hearings was BS -- she should have retired last summer for the good of the country.

[Martinned]

Any kind of health or age-based criterion incentivises presidents to nominate very young judges, and I'm not sure that that is something I'd want to incentivise.

[James Pollock]

There's an obvious answer. The opposition party puts up three candidates, and the President picks the one who gets the seat.

[Dr. Ed 2]

I'd like a physical fitness requirement: must be able to get into the building. Her bedside attendance at hearings was BS -- she should have retired last summer for the good of the country.

[bernard11]

A physical fitness requirement?

You wouldn't allow a Stephen Hawking equivalent on the court?

[James Pollock]

A dead guy on the Court?
No. Constitution says they serve for life.

[James Pollock]

"I’d like a physical fitness requirement: must be able to get into the building. Her bedside attendance at hearings was BS — she should have retired last summer for the good of the country."

Had Trump resigned as soon as it became clear that the Presidency was too demanding for him, she might have (though it's not at all clear she would have been OK with President Pence selecting her replacement, there's obviously no way she was willingly letting the incompetent-in-chief do it.
Speaking of Trump, how about a physical fitness test for the Presidency, too. Say, a brisk walk down an inclined ramp followed by drinking a glass of water with one hand.

[VinniUSMC]

"Say, a brisk walk down an inclined ramp"

I guess everything that FDR did should be invalidated. How dare Trump walk down a ramp a little slower than you could have. And wheel chairs, well, obviously that's just lazy or incompetent, or something.

[James Pollock]

"Why is that? Why for life? "

Because the Framers wrote the Constitution that way.
They split up the sovereign power of their new country three ways, each with a different timeframe. The President is supposed to deal with the immediate, the day-to-day of running the country's government. The legislative is the middle-term, making plans for the future and directing traffic. The judicial branch gets the true long-term scope.

[David Welker]

The true irony is how accidents of history often galvanize change.

220 years after the first successful court packing (John Adams famously packed the courts after Thomas Jefferson was elected), we are seriously discussing the possibility again.

Because, by some fluke, Trump not only became President after failing to win the popular vote, but seems positioned to appoint three judges in a single term, creating an otherwise unbreakable 6-3 conservative majority.

220 years later, one senses in conservatives the same gleeful desperation the Federalists must have felt in 1800. They may be doomed electorally, but historical accident has allowed them to pack the courts and through this, they hope to project their power into the future.

Conservatives "can't help" but to seize the moment, but with joyous dread, knowing that the possible backlash against accidental and disproportionate conservative representation on the Court may result in counter-packing. Narrow 5-4 majorities may have been more stable, but they are also less exciting and often disappointing.

The tribal logic of parties here leads to and reinforces the majority rule principle. The true justification for McConnell's rejection of Garland then and embrace of a likely Trump nominee now are not ad hoc justifications put forth by often disingenuous senators, but the institutional logic and irresistible incentives of majority rule. The very same principle which will lead to the elimination of the filibuster.

The dysfunctional status quo was never sustainable. Change is in the air. As is often the case, accidents of history act as accelerants. Such was the case in 1800. Such is the case now, 220 years later.

But not necessarily without cost. Alexander Hamilton's principled decision to elevate Jefferson over Burr contributed to a sequence of events leading to the early loss of Hamilton's services to the republic.

[AmosArch]

If conservatives are overrepresented Progressives are also overrepresented. Very few people in real life are true believer leftists who pronoun police and hammer away @realDonaldTrump.

No, a huge chunk of Americans simply sit out of electoral process. In addition Dems have many devices to disinfranchise large swaths of people including having geographic arrangements where a few cities nullify the influence of the rest of the state, strategic jungle primaries, top two only elections etc.

Then you have all the tricks to get votes 'fair and square' including illegal immigration pumping up census numbers, ballot harvesting, and the power of having domination of the media, tech, and 'education'/indoctrination system.

Taken together a sizable chunk of Dem voters are barely aware if at all of what they are voting for. Much more so than the Republicans and they know it since they are the ones that tend to be more for policies like Get out the Vote and loosening election safeguards which pump up the number of uninformed voters.

There are many people who really have more in common with the Republican party. They're religious, against extremist gender theory activism etc, and on through all the checklist of wedge issues but pull the lever as reliable Dem voters. Because all they see from the controlled media is some guy in a smart business suit crying over how mean Trump supposedly was. They never get down into the trenches and see the true face of the Dem Party/Progressivism. The Twitter bluechecks gloating about feeding MAGA hat kids into woodchippers, the purple haired deerkin, the hairy fat man in a pink tutu who identifies as a little girl, the skinhead feminist with the snoutring who thinks men are the root of all the worlds problems.

Then you have a huge proportion of people voting with the Dems out of purely economic reasons and have no affinity for their social values at all. (ie most of their minority voters)

Nope the current Dem party certainly isn't representative of US population at all. If you had a theoretical election where every eligible citizen did vote for whoever they actually wanted you'd probably clear out most of current slate and fill it back up with...I dunno...maybe Hollywood stars and religious fanatics.

[Dr. Ed 2]

The Bitchy Little Marxists are terrifying Middle America and the Dems are going to lose because of that alone.

[James Pollock]

Middle America is terrified of police not killing unarmed black men? sounds like they need some spine!

[James Pollock]

"a huge chunk of Americans simply sit out of electoral process."

republicans arrange for this so they can show up en masse and "win" elections. When more voters show up, Republicans lose, so they figured they'd better start making sure voters won't/can't show up.

[Aktenberg78]

Yeah, 6-3 "conservative" majority. That assumes Roberts is a conservative (he isn't, not by a long shot) and even the "conservative" Gorsuch found that the 1964 Civil Rights Act was intended to protect in hiring men whose idea of a good time is erupting in another man's tuchis.

[Leo Marvin]

It's hardly worth changing your name to disassociate yourself from Jews if you're going to say "tuchis."

[Rufus The Monocled]

"They may be doomed electorally,"

How?

[Rev. Arthur L. Kirkland]

Demographic evolution. Modernization and improvement of our electorate. Poor choices by the can't-keep-up element of our citizenry.

[Dr. Ed 2]

Oh, you mean the Eugenics Movement. Margaret Sanger and her ilk -- whose philosophy was picked up by a man named Hitler. How'd that work out???

[James Pollock]

Oh, look.
Dr. Ed is showing off his miseducation again.

[James Pollock]

"220 years later, one senses in conservatives the same gleeful desperation the Federalists must have felt in 1800. They may be doomed electorally, but historical accident has allowed them to pack the courts and through this, they hope to project their power into the future."

It'll be a second Lochner Era, if the Conservative party manages to get a partisan majority on the Court.

[David Nieporent]

Prof. Blackman, there's actually not a rule that every passing thought that pops into your head requires a blog post. (That's what Twitter is for.)

[David Welker]

Have you forgotten that Blackman has (wisely) decided to stop wasting his time on Twitter?

[Sarcastr0]

You can take the man off of twitter but...

I was out for the post-Ginsberg debacle, but upon reviewing this morning twitter shitposting was exactly what sprung to mind.

[BadLib]

If one party packs the court that would start a exponential shitstorm.

Therefore, I would suggest that it would be appropriate to VASTLY expand the physical space upon the first court packing - if necessary, reducing space for other offices etc. Remodel to include 101 seats for Justices - future proof for up to 50 years.

This would probably be stacked seating - perhaps ten rows of ten each w/elevated tiers except first row would have 11 seats - with the extra one in the middle allocated to the Chief Justice. All other seating would be done 'from center, left to right', 'bottom to top' based on seniority. Oxygen masks could be provided to the most junior justices in 40 years as the top couple tiers get filled.

[Martinned]

Where is it written that every Justice has to sit in every case? That's not how most supreme courts that I am familiar with work. (In fact, I can't think of a single one other than the US one that works that way, but maybe I will if I give it a bit more thought.)

Just have them decide cases in panels of 5 or 7. That way, they might actually get more work done.

[Commenter_XY]

In theory, nothing stops SCOTUS from doing that. In practical terms, not going to work. Pretty much every case they get would be en banc.

The current system where all Justices hear all cases works fine. It is not broken. Why try to fix something not broke?

[Martinned]

Off-topic, I know, but I would suggest that the US Supreme Court should really be hearing more cases than the 53 they had last term. That's a crazy low number for a court that's supposed to preserve unity of the law among 50 state supreme courts and 13 federal courts of appeal. If tripling the number of justices and requiring them to take cases in panels of 5 is what it takes to get that (back) up to a decent number, that's what it takes.

And yes, quite a few cases would end up being decided en banc. But probably not as many as you think. In the last term, only 21 of those 53 cases were decided 6-3 or 5-4. In a bigger court, those are the ones that might end up going to the full court. And if the idea is to add a couple hundred more cases to the court's docket, presumably the vast majority of those wouldn't be politically sensitive (otherwise they would have ended up at the SCOTUS level already). They would be a few dozen more 4th amendment cases, a hundred or two more cases about statutory interpretation, and a whole pile of death penalty and/or Batson and/or Brady cases. Maybe if the Supreme Court took a few more cases like Flowers v. Mississippi on direct appeal from the state supreme courts, there wouldn't be so much need for federal habeas review.

[Brett Bellmore]

That's what you get when people with life tenure are put in charge of their own workload.

[Martinned]

Yes, that's another question. Given that Congress created the concept of discretionary cert decisions, presumably Congress can also take that away? The only problem is that a non-discretionary docket is also difficult to imagine, unless we can come up with a different rule than "grant cert whenever you feel like it".

[James Pollock]

" if the idea is to add a couple hundred more cases to the court’s docket, presumably the vast majority of those wouldn’t be politically sensitive "

Cases that get to the Supreme Court are either fundamental or they involve people who have money to spend on lawyers. People who have money to spend on lawyers will always have politically sensitive cases, because money is the root of all politics.

[Dr. Ed 2]

Mass SJC does.

[Illocust]

Because then the Supreme Court is no longer supreme? If you cases outcome can change by bringing it again next year to the same court but with the other justices happening to sit, then their precedent isn't very strong.

[Martinned]

That's why such a thing as stare decisis exists. Just like Federal Courts of Appeals follow their own precedents, no matter who sits on the panel, so too would the Supreme Court.

[Krayt]

But we elect supreme court justices to implement The People's policies. If we don't like their legislative policies, we can always add more to work around the will of The People.

[James Pollock]

" If you cases outcome can change by bringing it again next year to the same court but with the other justices happening to sit, then their precedent isn’t very strong."

Republicans have been promising to seat only Justices who would overturn Roe v Wade since Reagan was Prez. Because convincing women not to have abortions is too big an ask.

[Brett Bellmore]

Look, let's get this straight: Nobody is going to pack the Court and settle for adding just two members. If you look back at FDR's Court packing proposal, he'd have added 6. NOT 2.

If you're packing the Court, no matter what BS excuses you come up with about "stolen seats", the truth is, you're trying to turn it into a reliable rubber stamp. And a majority of 1 isn't going to do that, you need enough of a majority that you can afford to lose members from your majority on any given vote and still prevail.

So, maybe 4, probably 6, but 2 is just right out, not going to happen.

Court packing isn't about shifting outcomes on the margin. It's about creating a rubber stamp that will just approve of any action you want to take, however outrageous, and joyously impose on the nation anything you want, but fear the electoral consequences of doing by a vote in Congress. It isn't a subtle weapon, it's a doomsday device.

To anybody who's paying attention, the party that packs the Court is saying, "Democracy? Game over. We've reached our destination, time to get off the train."

Because if you JUST pack the Court, and nothing more, the next election the other guys sweep in fueled by the outrage over what you did, and pack it back their way. Rinse and repeat. And you know that.

So it's just the first move in a final move combo, where you then use your rubber stamp to make sure that the other party can't sweep into power in the next election.

So, here's my remodeling proposal: Keep the current seating for the Justices, the new majority will fit just fine. The old majority might not even bother attending, they're only going to be there for appearances anyway.

[Dr. Ed 2]

It's a lovely building, but it wouldn't stand up to a 155 mm Howitzer for long, and one side or the other would shell it in the resultant civil war.

Who says one has to give the pseudo-justices seats? Or restroom keys?

[Sarcastr0]

It'll be the law of the land, duly passed under our Constitution.

I won't agree with it, but if someone blows up the Court over it, they'll be terrorists.
But you've made it pretty clear you are very much in favor of terrorism if it's for the right cause.

[Armchair Lawyer]

What the democrats plan here, by proposing court packing, effectively blows up the Court. Effectively making their plan one proposed by terrorists.

[Sarcastr0]

Effectively will not bear that load. You have mixed up metaphor with reality.

[Armchair Lawyer]

Court packing is something dictatorships like Venezuela do. They expand the court, then fill it with their own people, to get the rulings on the Constitution they want.

If you start packing the court, you start destroying the Constitution and the protection of individual rights.

[Sarcastr0]

Just invoking Venezuela doesn't actually prove anything.

I think it opens a can of worms and is therefore bad policy, but it's not unconstitutional.

You need to read the Constitution, not just invoke it.

[Brett Bellmore]

Sheesh. Sarcastro, there's a sort of Gödel's incompleteness theorem in regard to the law. You can never close ALL the loopholes. So the Constitution permits a sufficiently ruthless majority to do some pretty skeevy things. For instance, the Constitution makes each chamber the judge of its members' qualifications, so a bare majority can just refuse to seat the minority.

Perfectly constitutional, AND Venezuela scale bad.

[Sarcastr0]

You want to argue this is a load-bearing norm for our republic, go ahead. I've certainly made that argument a lot in the last 4 years.

But dunno if the right has a lot of room to make such arguments credibly these days. You yourself have argued that if something is legal, it's okay. Specifically regarding Trump's strong-arming the Ukraine, and refusing subpoenas, and lying about handing over his tax returns, and probably other stuff that doesn't spring to mind.

Now, tu quoque is a fallcy, so if you can support your argument go ahead. But you're not doing your own character a lot of favors.

[Brett Bellmore]

I've made my argument, but I'll recap.

1) All excuses aside, the only purpose of Court packing is to create a rubber stamp Court, so that you can get away with doing things a non-rubber stamp court wouldn't permit. That's why real Court packing proposals, such as FDR's, go well beyond the bare number of added seats necessary to achieve a nominal majority, to a number that would allow prevailing even if you lost a couple of votes from your own side. Because you're going to be doing things even some of your own supporters might blink at.

2) Everybody knows that packing the Court would, absent entrenchment measures, result in a cycle of tit for tat, the gains are quite short term, the costs in terms of institutional legitimacy long term.

So,

3) Court packing is not an isolated act, it is part of a package including partisan entrenchment. In fact, its purpose is to clear the way for the rest of the package, which will inevitably include measures no less rubbery Court would let pass.

In theory, a government might pack a Supreme court, without taking care to fill the new seats with reliable partisan hacks, and without following it up with measures designed to terminate functional democracy in favor of creating a one party state. In theory, it might claim the power to enter homes without a judicially approved warrant in order to leave surprise gifts for little children.

In practice, that's not what happens. In practice, when a party packs a Court, you know what will follow. And we already have indications: Remember the Democratic party's reaction to being told they couldn't censor political speech: Outrage, and vows of reversal. Remember the Democratic party's reaction to being told they couldn't all but completely abolish the right to keep and bear arms: Outrage, and vows of reversal.

And packing is how you get to reversal, and kiss two amendments in the Bill of Rights goodbye.

Stop appealing to the theoretical possibility that never really happens, and wake up and smell the threat of totalitarian, one party government.

[Armchair Lawyer]

Brett,

Absolutely. I couldn't agree more.

[James Pollock]

"1) All excuses aside, the only purpose of Court packing is to create a rubber stamp Court, so that you can get away with doing things a non-rubber stamp court wouldn’t permit. "

This argument applies equally well to rushing through confirmation to get a partisan judge onto the bench. But you're A-OK on that one, aren't you, Brett?

[VinniUSMC]

"This argument applies equally well to rushing through confirmation to get a partisan judge onto the bench. But you’re A-OK on that one, aren’t you, Brett?"

As if RBG wouldn't have retired during Obama's second term if anyone had remotely considered the possibility of Trump winning? Instead she held out, in hopes of a Hillary White House, and then in hope of outliving Trump's term. Yes, of course Trump (and probably most of the Republican party) will want to get his pick through. But, it's not like RBG just suddenly died without warning. Heck, did anyone expect Scalia to die before her (besides whoever ordered the hit *coughHillarycough*? jk)

She was a tough lady. To live through cancer several times. She's an icon of the late 20th century. And regardless of politics, she was an influential person who will be missed by many.

[Martinned]

...and recently held to be contrary to the European Convention on Human Rights:

https://strasbourgobservers.com/2020/08/06/mugemangango-v-belgium-finally-a-grand-chamber-judgment-on-post-election-disputes/

[Armchair Lawyer]

It's "bad policy", but you seem to be supporting it regardless.

[James Pollock]

"Court packing is something dictatorships like Venezuela do."

Sounds like somebody's mad his side didn't think of it first.

[Rev. Arthur L. Kirkland]

Dr. Ed 2 is talking about using ammunition. Armchair Lawyer is talking about figurative explosives and terrorism.

Keep whining, Dr. Ed 2. Keep crying, Armchair Lawyer. If that's what gets you through the remainder of our settled national culture war, keep whimpering and wailing.

Carry on, clingers. So far and so long as your betters permit.

[Dr. Ed 2]

SarcastrO needs to read up on International Law.
There are significant distinctions between terrorism and a civil war, starting with uniformed combatants and the non targeting of civillians.

And if Sarcastro knew what a 155 mm Howitzer *was*, he/she/it wouldn't be calling it a "terrorist" weapon. It's 40 feet long. nine feet high, and nine feet wide -- and weighs nearly eight tons -- you're not hiding one of those in the trunk of your Volvo.

And if Sarcastr0 knew a scintilla of history, the meaning of "one side or the other" would be abundantly clear.

[Martinned]

There are significant distinctions between terrorism and a civil war, starting with uniformed combatants and the non targeting of civillians.

Neither of those things are part of the definition of a non-international armed conflict under the Geneva Conventions.

[James Pollock]

"SarcastrO needs to read up on International Law."

Possibly true. Undeniably, however, YOU need to read up on, well, everything.

[James Pollock]

"It’s a lovely building, but it wouldn’t stand up to a 155 mm Howitzer for long, and one side or the other would shell it in the resultant civil war."

You have to get your 155mm Howitzers close enough, and avoid the other guys' GAU-8's to use them.

(Much like that other problem you have, it isn't the size of the gun that matters, it is the proficiency with which you use it.)

[Martinned]

Court packing isn’t about shifting outcomes on the margin.

That depends on whether you think you can sell your change in the law as something other than a pure power grab. If adding 2 justices rather than 6 is the difference between convincing 60% of the country that you're doing something legitimate and convincing no one, you might stick with 2.

[Brett Bellmore]

Look, once you've packed the Court, its legitimacy is gone. It will be seen as a rubber stamp even if it does engage in normal judicial reasoning in some cases.

The first thing you lose when you pack the Court is its power to persuade people on the losing side. All that remains after that is a fig leaf to justify deploying force against losers who refuse to submit.

[Martinned]

Why do you think they keep talking about the seat(s) the Republicans stole? That's all about preserving the legitimacy of the court, and emphasising that it's a strictly one-time thing.

Those messages aren't aimed at the 30% of the country who believe all Democrats are paedophile lizards, or indeed at the 30% who will back the Democrats no matter what they do, but at the 40% inbetween.

The fact that you don't think those messages are convincing isn't the point. You're not the target audience, and convincing you isn't necessary to preserve a workable level of legitimacy. The goal is to get to about 60% out of the 70% that might be convinced.

[Armchair Lawyer]

Why is it "strictly a one time thing"...but only for one party?
Life doesn't work like that. You don't get a "strictly one time thing, but just for us".

Next time the pendulum swings around (and it always does, in one way or another), it's "Just one time, but this time, we'll do it on our side"

[Rev. Arthur L. Kirkland]

I do not share your expectation that the pendulum is going to swing back toward racism, superstition, misogyny, gay-bashing, xenophobia, white supremacy, disdain of science, Christian supremacy, prudish authoritarianism, general backwardness, or the like.

But you guys get to advocate for that, and wish for that, and believe that it will occur as much as you like!

[Dr. Ed 2]

Kirkland, Woodrow Wilson segregated the civil service, it hadn't been before. So even if you must see the world in your asinine and quite myopic perspective, that pendulum swings both ways as well.

[Martinned]

I do not share your expectation that the pendulum is going to swing back toward racism, superstition, misogyny, gay-bashing, xenophobia, white supremacy, disdain of science, Christian supremacy, prudish authoritarianism, general backwardness, or the like.

With respect to most of those, it already has. That's how we ended up in this thread.

[Brett Bellmore]

They talk like that because they're trying to work themselves up to doing it, and because they need a fig leaf for doing it, especially if they're going to discuss it BEFORE an election where they haven't yet entrenched themselves.

Unless you're already ruling by naked force, fig leaves are important.

[Rev. Arthur L. Kirkland]

Where "ruling by naked force" = fastidious compliance with express rules, established precedent, and democratic principles

[Dr. Ed 2]

So if the GOP had instead "Borked" Garland and defeated him on a straight party line vote, that would have been different -- how?

It wasn't like he was going to get confirmed, Obama didn't have the votes, and Presidents usually withdraw nominees when told that they don't have the votes.

The GOP didn't "steal" anything...

[Martinned]

In politics, framing is half the battle.

[David Nieporent]

It was like he was going to get confirmed. Obama did have the votes. That's why McConnell refused to let a vote be held.

[James Pollock]

"It wasn’t like he was going to get confirmed, Obama didn’t have the votes"

Mitch didn't have the votes, which is why didn't let them be counted.

[James Pollock]

"So if the GOP had instead “Borked” Garland and defeated him on a straight party line vote, that would have been different — how?"

That would have been the Senate denying confirmation. What happened instead was Mitch denying confirmation, and "Mitch has the power to deny confirmations" isn't in the Constitution.

[James Pollock]

"The first thing you lose when you pack the Court is its power to persuade people on the losing side."

You guys already won't admit you were wrong. So what change are you seeing?

[Armchair Lawyer]

Absolutely,

Ilya himself made the point in a post in 2019. https://reason.com/2019/03/20/dangers-of-growing-support-for-court-pac/

Court Packing is a step designed to effectively eliminate the Constitutional protections that we have as a society. Don't like the decision the court has on your law? Pack the court with supporters until you do. Freedom of Speech, Freedom of the Press, Freedom of Religion, Minority protections, every other right guaranteed by the US Constitution...

Court packing ensures you can send all those rights to the graveyard when convenient. Pick the judges that "view the law" as you want it to, ignoring the Constitution. Court packing destroys much of the Constitution.

[Rufus The Monocled]

Can it be 'court packing' is a function on the over-reliance on the judiciary? It seems issues Congress doesn't want to decide on they just kick over to the judiciary.

[Armchair Lawyer]

The courts, especially the SCOTUS, acts as the last line of defense against overreach by the state, on the road to tyranny.

Many dictatorships start by packing the court with their own followers. The the followers suddenly rule that things like "term limits" are unconstitutional. Enabling the dictator for life.

[Martinned]

Yes. That's exactly what the Democrats are worried about...

[Armchair Lawyer]

Nominating a SCOTUS judge for an opening that opens up naturally doesn't lead to dictatorships for life.

[Martinned]

That depends on who you put in that chair.

[Brett Bellmore]

No, not really. The reason natural openings don't lead to dictatorship for life, is that you need a fair number of utter hacks to get that. You'd have to be aiming for that dictatorship, without knowing who'd be in a position to claim it, for decades.

Whereas packing lets you get your rigged court in one fell swoop, knowing full well who'd benefit.

[James Pollock]

" It seems issues Congress doesn’t want to decide on they just kick over to the judiciary."

Plus some issues they DID decide, that went against what the President wanted to decide, such as whether to spend money on toady capitalists who wanted to go into border-wall construction.

[Krayt]

To anybody who’s paying attention, the party that packs the Court is saying, “Democracy? Game over. We’ve reached our destination, time to get off the train.”

Prop 8 in California was a terrible thing, but when it won because of all the Latino catholics, the Party of the People ran off to the courts to override the pesky democracy they treat as god.

To poke at the "libertarian/liberal alliance", the libertarians are fine with this, the liberals should not be, because their justification to power is vox populi vox dei. "The Will of The People" is a rhetorical device of convenience.

This is why I am scared shitless of court packing by the current Democratic party -- they made crystal clear they want to do everything possible to allow general government censorship of hate speech at internet giants.

And that it was immediately used to silence opposing politicians was pure coincidence.

[James Pollock]

"Prop 8 in California was a terrible thing, but when it won because of all the Latino catholics, the Party of the People ran off to the courts to override the pesky democracy they treat as god."

It was also an UnConstitutional thing, and therefore, unAmerican. So American patriots rushed off to correct the mistake, while anti-American bigots celebrated their "win".

[James Pollock]

" they want to do everything possible to allow general government censorship of hate speech at internet giants."

Labeling it "government censorship" doesn't make it so. Internet giants are private companies. In this case, it is the Conservatives pushing for government censorship, and opposed to property rights. "We want the government to tell those mean Internet companies that we get to use their computers however we want to, not how they want us to." is their current rallying call.

[bernard11]

Court packing isn’t about shifting outcomes on the margin. It’s about creating a rubber stamp that will just approve of any action you want to take, however outrageous,

That seems to accurately describe the GOP plans for the courts.

[bernard11]

Court packing isn’t about shifting outcomes on the margin. It’s about creating a rubber stamp that will just approve of any action you want to take, however outrageous, and joyously impose on the nation anything you want, but fear the electoral consequences of doing by a vote in Congress. It isn’t a subtle weapon, it’s a doomsday device.

But which do you oppose, Brett, court-packing, or "creating a rubber stamp that will just approve of any action you want to take, however outrageous?"

Because I see the Republicans doing the latter.

I mean it seems to me that the thing to worry about is an overly ideological, partisan, "rubber-stamp," court, no matter how that came to be.

But my impression - correct me if I'm mistaken - is that you really just object to things the Democrats might do to create such a court, and don't object at all to Republican tactics aimed at the same thing.

[Rev. Arthur L. Kirkland]

Some of the clingers seem to be quite lathered up -- I am beginning to sense genuine fear (or perhaps it is just flickering recognition of reality).

Maybe you guys should encourage the Republicans to refrain from jamming a hard-right ideologue into that Supreme Court position with a one- or two-vote margin.

Or . . . open wider, clingers.

[Dr. Ed 2]

Kirkland truly doesn't understand social conservatives.

[Rev. Arthur L. Kirkland]

I understand how they are going to continue to swallow progress arranged by their betters.

What else do I need to know?

[bernard11]

Tell us what social conservatives want, Ed.

Gays back in the closet, women back in the kitchen, Blacks back in the fields, completely sanitized American history back in the schools, prayer back in the classroom, marijuana users back in jail?

[Leo Marvin]

It's been almost twelve hours since your last giddy speculation about a world without RGB. Pick up the pace.

[Leo Marvin]

BTW, that's eleven and counting, plus one respectful eulogy, in about a day and a half.

I say this part sincerely: Somebody who cares about you really should be giving you feedback on when your empathy deficit makes you look like an ass.

[Illocust]

Are you seriously complaining that a blog run by a law professor published multiple articles in two days about an event that is going to change the law as we know it for decades to come? That's like complaining that a sports blog wrote three articles on the superbowl the day after it happened.

[Leo Marvin]

Yes, that's right. I'm complaining that a law professor wrote eleven self-indulgent, trivial posts, some denigrating, about a beloved public figure, starting immediately and all within a day and a half of her death. If he'd waited even until tomorrow, the beginning of the business week, I'd have no complaints other than as to the usual shortcomings of his posts. But this is pathetic and obnoxious.

[Rev. Arthur L. Kirkland]

Have you reached a conclusion, Mr. Marvin, concerning the issue of whether this blog's repeated criticism of certain other private forums for ostensible censorship is made hypocritical by this blog's repeated viewpoint-driven censorship?

I do not ask you to comment on whether any of the relevant conduct is misleading, cherry-picked, principle-deprived, paltry partisanship.

I also hope those tread marks have healed.

[Leo Marvin]

Actually I don't know that there ever were any tread marks. That's why I asked EV to clarify his meaning. It's a fair reading that he wasn't criticizing Facebook's restrictions, only analogous legal ones. But if that's so, it's also fair to ask why he didn't make that distinction clear at the outset. Which I did. As far as I'm concerned it remains an open question.

[Rev. Arthur L. Kirkland]

He has aimed his barbs at plenty of private colleges and universities (liberal-libertarian institutions, not conservative ones). Is there any reason that censorship is different from or worse than the Volokh Conspiracy's censorship involving a similarly private forum, or that this evidence does not resolve the point you are considering?

Thank you.

[Leo Marvin]

For reasons I won't get into here and now, I think EV (and FIRE for that matter) play fast and loose with their reasons for equating public schools with some private ones, while distinguishing them from others. That said, the principles of free expression that I think ought to apply to any institution of higher learning are incommensurable with those that should apply to a private blog. In short I see no principled basis for criticizing however any blogger chooses to regulate anything that gets said in or censored from his comment threads.

[Dr. Ed 2]

Liberal (not "liberal") ones that purport to guarantee free speech.
Places like Liberty University make no pretense of that.
The issue is more "truth in advertising."

You oppose "truth in advertising", Kirkland?

[bernard11]

"Truth in advertising?"

Followed Falwell Jr.'s travails?

[Rev. Arthur L. Kirkland]

Speaking of Volokh Conspiracy censorship . . . NBC rebroadcast this skit last night.

Prof. Volokh is no doubt writing a strident letter of protest to the FCC this afternoon.

[Dr. Ed 2]

37 seconds of third rate humor and 5 minutes of utter boredom.
SNL once was funny -- Long, long ago....

Domino's Pizza stopped advertising on SNL some time back after a similarly sophomoric skit that involved how many times they could say the word "penis" and little else -- and that one wasn't funny, either.

It isn't even the inappropriateness of this -- they aren't even funny...

[Dr. Ed 2]

And with evidence it was broadcast last night, I will make an issue of it.

[Rev. Arthur L. Kirkland]

Why do right-wing bigots have such difficulty with simple research? Must be the lack of education . . .

The entire Janet Jackson episode -- including the c@rk s@oaker sketch* -- was broadcast nationally at 10 p.m. on Saturday, September 19, 2020.

* edited to comply with Prof. Eugene Volokh's expressly stated censorship policy

(Even though Prof. Volokh probably fainted when NBC broadcast that sketch, and I therefore might get away with uncensored usage, I still am courteous enough to comply with his express-and-in-writing censorship rules. His playground, his rules.)

[DaivdBehar]

Judicial review is prohibited by Article I Section 1, giving lawmaking power to the Congress. If the Supreme Court will continue to make law and to repeal law, its size should be in the legislature class, like 500. That would bring in the wisdom of the crowd.

Move it out of the rent seeking capital, to Wichita. Keep the number even to make it more conserving of precedent. Exclude anyone who passed 1L, by law, in a new Judiciary Act. Bring in wine besotted bums puking in the gutter. Bring in Life Skills students learning to eat with a spoon. That would result in an immediate upgrade in common sense, and clarity of the writing of its decisions. The current Justices are the stupidest people in the country making decisions on complicated technical matters. They are wrong most of the time.

[Martinned]

Area Man Passionate Defender Of What He Imagines Constitution To Be

[DaivdBehar]

"“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

"All," is a kindergarten vocabulary word. Are you a recent immigrant?

[Brett Bellmore]

Technically, the judiciary can't repeal statutes. What they can do is declare that, as a statute, in their opinion, doesn't conform to the Constitution, the courts will not treat it as "law" in their own proceedings.

Other branches are not bound by such determinations, either in the positive OR negative, (Even if the Court upholds a law, an executive who thinks it unconstitutional can still refuse to follow it under his independent obligation to follow the Constitution.) though if they end up in court things may not go well for them.

[DaivdBehar]

Brett. You will have to define, technically. "Not treat as law" is a good definition of repeal. The Supreme Court ruled against the Protection of Marriage Act, and homosexuals got legally married in all States. That sounds like repeal. Is the Protection of Marriage Act still a law anywhere? It is gone, repealed. Repeal is law making.

Then, the Supreme Court affirmatively enacted law in Roe v Wade.

[Brett Bellmore]

It's still a law everywhere but in the courts.

You want the difference? If a future Supreme court decided Obergefel was a mistake? It would still be on the books.

[David Nieporent]

Judicial review is not a legislative power. It is an inherent part of the judicial power. Which of course the constitution vests in the courts.

[DaivdBehar]

Where does the constitution allow judicial review or the cancellation of any law?

[Brett Bellmore]

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The basis of judicial review is that the judiciary has to decide whether a purported law WAS made in pursuance thereof. Because if it wasn't, the Constitution takes precedence.

[James Pollock]

"Where does the constitution allow judicial review or the cancellation of any law?"

Justice Marshall devoted a good many words to describing how it is unmistakeably implied by the text of the Constitution.

Plus, there's Article III,Section 1:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

[Rev. Arthur L. Kirkland]

The important difference between DaivdBehar and Prof. Blackman is that at least Prof. Blackman . . . .

could someone try to come up with something?

[DaivdBehar]

Arthur. If you are trying to annoy, try to be funnier. Your personal insults violate the Fallacy of Irrelevance.

[Dr. Ed 2]

Well, he apparently thought the cork soaker SNL skit was funny....

[Rev. Arthur L. Kirkland]

You seem to assume that the censor who repeatedly removed comments containing “c@p succ@r” when written by a libertarian is such a low-grade partisan hypocrite that he will decline to censor “cork soaker” when written by a conservative.

Prof. Volokh will demonstrate whether your apparent assumption concerning his lack of principle is correct.

Please don’t let your fans down, Professor.

[Mother's lament]

"could someone try to come up with something?"

Yes, go back to r/law you creepy fudanshi.

[Rev. Arthur L. Kirkland]

I am not familiar with r/law or fudanshi. Are those bigoted clinger things? References familiar among ineffectual culture war casualties?

[James Pollock]

"Plus, in the COVID-era, will the Justices install plexiglass shields between their stations?"

No, they'll VPN from home using Zoom or MS Teams.

[Intelligent Mr Toad]

ELEVEN members? If the Democrats get the ability to expand the Court, and decide to do it, they should not think small. Think big big big, Democrats! Mitch McConnell has torn up the book of etiquette and tradition. The ONLY criteria for deciding what to do should be the criteria HE uses: would it be legal according to the strict letter of the law, and, would it benefit our side. So if the Dems get the ability to expand the Court, and decide to do it, don't settle for ELEVEN justices (TWO new ones). Go for, say, THIRTY-NINE members, and appoint THIRTY new ultra-left-wing justices.

The Dems need to stop being the lily-livered-pansy-party.

[arpiniant1]

So that is the reason not to expand the court

[bernard11]

I wonder how many keyboards Josh wears out in a year?

[David Nieporent]

Shhh! If you provoke him, we may get a 9-part post series on his keyboard setup.