Court Packing

What is Court-Packing?

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Over at Newsweek, I have a new piece on the history of number of justices on the Supreme Court and the long battle against packing the U.S. Supreme Court.

As Crocodile Dundee would say to Dick Durbin, "That's not Court-packing. That's Court-packing."

From the piece on Franklin Roosevelt's plan to "reorganize" the Court:

The Senate Judiciary Committee finally issued a report that one newspaper columnist privately characterized as "almost like a bill of impeachment." It denounced Roosevelt's proposal as being "in direct violation of the spirt of the American Constitution." It would create a "vicious precedent which must necessarily undermine our system." Court-packing "amounts to nothing more than the declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court. When such a principle is adopted, our constitutional system is overthrown!"

Read the whole thing here.

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  1. We’re seeing Orwell in action with the recent attempt to redefine it into the Senate exercising its legal prerogative and nobody blinks an eye.

    1. WTF are you talking about?

      Congress plainly has the power to change the size of the Court. Nothing Orwellian about it.

      1. I usually refrain from personal attacks, but that’s particularly stupid of you to say. As per the OP, it’s about the Orwellian attempt at redefinition by Democrats of what the term, long understood since FDR’s attempt, at what “court packing” means.

        1. Psssst: in 2013 Chuck Grassley said that Obama filling three vacancies on the DC Circuit was Court packing. Tom Cotton in the House introduced something literally called the “Stop Court-Packing Act” to eliminate 3 judgeships on that Court because Obama nominated people to fill the vacancies. This is a disingenuous and bad faith argument from Republicans which no one needs to take seriously.

          1. psst….politicians overuse heated rhetoric…rain makes streets wet….more news at eleven.

            But adding seats to SCOTUS? That’s another thing entirely, and you know, I know it, everybody knows it.

            Read the linked article. Whittington at his best, and it demolishes your silliness, as well as Grassley’s rhetoric as well.

            1. What’s my silliness? All I’m saying is that redefining court packing is a Republican trick too so you can stop with the “Democrats are Orwellian” schtick.

              And maybe it wouldn’t be on the table if the Republicans didn’t have such a brazenly hypocritical approach to SCOTUS based on the lie that they believed American voters deserved a voice in SCOTUS nominations. Sorry that Mitch’s approach to governance might have serious negative consequences. He should have considered that before he and others lied in 2016 about caring about the voters.

              1. Yep. I call them as I see ’em, and you’re trying to redefine what ordinary terms mean. I’m not saying it’s not legal or constitutional…I’m just laughing (and dying a bit inside is my limited faith in humanity) at your Owellian attempts to change what “court packing” means.

                I shouldn’t be surprised though, because from the left in general, it’s kinda common enough to say things like “female penis” and such.

                1. WHEN DID I MAKE AN ATTEMPT TO REDEFINE IT.

                  1. Oh, mon cheri, calm down.

                    By accepting premise that what the Dems are wanting to do (adding seats to SCOTUS) is “not” court packing, which as Whittington points out *is* court packing by a long understanding of our nation’s shared history, you’re attempting to re-define court packing.

                    Denial ain’t just a river in Egypt.

                    1. When did I accept the premise? I’m not denying it is court packing. I just think it’s a potentially deserved response to Republican’s completely bad faith approach to SCOTUS. Mitch lied about believing Americans deserved a voice. That was a lie. Everyone who parroted it was lying too. If they weren’t lying and they actually believed this wouldn’t have immediately taken the opposite view within an hour of Ginsburg’s death which was six weeks before an election.

                      Lindsey Graham broke his word, and then lied about why he was doing it.

                      Ted Cruz said SCOTUS should be 8 indefinitely in an election year and now says SCOTUS can’t be 8 this close to an election.

                      I’m sorry these things have consequences, including court-packing, but you can’t expect to continuously operate in bad faith and never suffer a negative consequence.

                    2. Politicians lied to get an agenda item passed….paging Obama on Obamacare and your expected savings and keeping your plan….also, rain makes streets wet…more news at 11.

                      Your in denial. But lets move on.

                      I won’t disagree that it was a shitty thing to do keeping Garland from having a hearing, though it was legal, as would be court-packing. But it’s a terrible, horrible thing to do, and moreover, it’s particularly wickedly evil to pretend that adding seats to SCOTUS is *not* court packing.

                    3. “Your in denial. But lets move on.” About what? What am I denial about? I know its court packing. I think redefining it is dumb, but I don’t think Republicans are in any position to lecture anyone about it, they have no moral authority. Republicans aren’t packing the Court as is commonly understood. They just used bad faith, hypocrisy, broken promises, and blatant lies to get an advantage in the Court. Just because it’s not court-packing doesn’t mean its okay and doesn’t deserve a response.

                    4. Court packing is clearly legal. And there’s plenty of Republican hypocrisy.

                      But OP is right that Democrats’ attempts to say that their court packing plans are not court packing while other stuff the GOP does IS court packing is silly and dishonest.

                    5. I am sure President Obama would be out there saying, “If you like your current Supreme Court size, you can keep it.” The Washington Post and Politifact would rate this as “true” and rate anyone disagreeing as “pants on fire.” Of course, once President Biden is sworn in and the Dems take both houses of Congress…the bill goes through to increase the size of the Supreme Court to 15 and Biden signs it. After all of that, the WP and Politifact would change their ratings…but by then it would be too late.

                    6. Grand Moff (Your Excellency?):

                      Your joke doesn’t work because actually Obama’s statement about Obamcare was famously rated “lie of the year” by the fact checkers.

                  2. Who cares what happens with the lower federal courts. That is wholly irrelevant to voters. Most voters won’t be able to tell you how many circuit court of appeals there are. Most don’t even know what the heck a circuit court is. All they know is the Supremes, and that the Supremes, in recent history, has had the final word on stuff ranging from flag burning to sodomizing males to tranny’s.

                    In other words, you could abolish, halve, quarter, double, triple, or quadruple the lower federal courts with 0 impact on the average voter’s mind.

                    Modifying the size of the Supremes, however, would obviously have an impact on voter perceptions and the Supreme Court does rely on a general perception of even-handedness in it’s power over our lives.

                2. Sorry, mad_kalak. You can’t create an entire new set of rules every time there’s an open SCOTUS seat. You can’t claim crude political hardball is fine as long as it’s constitutional & your side benefits, then say constitutional isn’t enough when it’s the other side’s turn.

                  Barrett after Garland means a Democratic response. If you can’t accept the latter, then you better hurry to address the former. Contact a Republican senator today. Only a handful will do.

                  1. What new rules? There are only two. They haven’t changed for centuries.

                    Rule 1: The POTUS nominates
                    Rule 2: The Senate chooses to confirm, not act, or reject

                    1. Except that’s not the only rules prior to Garland.

                      Blocking a nominee to spite the President was new.
                      Contemplating just blocking a nominee for a Presidents’ entire term was new.

                      Rules are not the same as laws.

                    2. “Blocking a nominee to spite the President was new.”

                      Only to people who think history started when they graduated from HS.

                    3. Pray tell to what are you referring, Brett?

                    4. Sarcastr0, to borrow a fovorite phrase from childhood: Whatchu be talkin ’bout Willis?

                      The Constitution has not changed.

                      What you’re pissed about is the politics.

                    5. Commenter_XY : What you’re pissed about is the politics.

                      Court expansion is politics and legal per your unchanged Constitution

                      Whose side is wailing and whining about court expansion here?

                    6. Yeah – politics, being an interaction between humans, has rules and norms both formal and informal.
                      These are rules just as much as the Constitution is, and are not to be tossed away lightly.

                    7. I’m referring to history, what did you think I was referring to? It’s actually more the rule than the exception for failed nominees to simply be ignored. (I’m ignoring the “spite” part as absurd hyperbole.)

                    8. “Blocking a nominee to spite the President was new.
                      Contemplating just blocking a nominee for a Presidents’ entire term was new.”

                      Not acting on lower court nominees was pretty common.

                    9. “These are rules just as much as the Constitution is, and are not to be tossed away lightly.”

                      In the same sense as “Don’t wait until the last minute to merge” is a rule just as much as “Don’t run red lights”. Which is to say, no, not really.

                      The Constitution is a law “rule”, not packing the Court is more of a norm, and not ignoring the opposing party’s nominee in an election year is neither law nor norm. As we’ve pointed out before, most Supreme court nominations in election years get defeated if the Senate is of the opposing party, and usually by just ignoring them.

                      Clearly it’s legal to pack the Court, but it’s a really, really bad idea, because the only purpose for doing it is to render the Court a rubber stamp, and nobody doing it would refrain from using that rubber stamp to entrench themselves.

                    10. Brett now explains to us what counts as a “norm”. Well guess what : From the perspective of Democrats, Barrett after Garland means shredded norms. They will respond.

                      If court expansion is a “really, really bad idea” then there is a choice : Stop trying to “render the Court a rubber stamp” for your side with different rules for every new SCOTUS open seat. This is wholly the GOP’s choice. They know the consequences of Barrett after Garland. They knew the consequences from the very start, but didn’t care. That’s the “really, really bad idea” here. Everything follows from that.

                    11. “Blocking a nominee to spite the President was new.”

                      Did Estrada ever get his judicial seat Bush appointed him for? No? Shocking.

                    12. ” Clearly it’s legal to pack the Court, but it’s a really, really bad idea, ”

                      Go back to searching for Obama’s birth certificate, Brett. Maybe you’ll find something that could come in handy during confirmation hearings concerning a Biden nomination of Obama for the Supreme Court.

                      I will see your objection, put 51 votes on the table, and let the better ideas win.

                    13. Sarcastr0:
                      “Blocking a nominee to spite the President was new.
                      Contemplating just blocking a nominee for a Presidents’ entire term was new.”

                      Nope, not new.

                      I recommend checking out Tyler’s history of SCOTUS nominees – where the senate pretty much denied even giving most of them a confirmation vote for most of his term as president.

                      Wikipedia even has a well-sourced page on failed SCOTUS nominees to assist you.
                      https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States

                      Not going to say anyone is behaving well, but when in the last decade or so have politicians behaved well?

            2. Wait, yours and AmosArch’s original complaint was that it was “Orwellian” to try and *redefine* “court packing”. But as soon as it’s pointed out that actually this argument was invented by Republicans, it’s just overheated rhetoric that politicians always engage in?

              1. Is it Orwellian to redefine Orwellian?

                1. “Is it Orwellian to redefine Orwellian?”

                  That depends.

              2. Yepper skipper. Dumb when the GOP used overheated rhetoric, and even stupider when the left is trying to re-define a term commonly understood since the 1930s to be the adding of seats.

                1. You really don’t see the issue do you?

                  Grassley/Cotton: filling vacancies is court-packing
                  You: Overheated Rhetoric

                  Some Democrats: filling vacancies is court-packing
                  You: ORWELLLLLLLLLLLLLLLLLLLLLLL

                  1. Silly, there is a difference between *filling* vacancies on lower courts and *creating* vacancies on SCOTUS.

                    1. Did you read the article?

                      “Democratic presidential nominee Joe Biden said the nomination of Amy Coney Barrett is “the court-packing the public should be focused on.” Biden ally and Delaware senator Chris Coons asserted that the confirmation of Barrett would “constitute court-packing.” Longtime Democratic Senate Judiciary Committee member Dick Durbin contended, “The American people have watched the Republicans packing the court for the past three and a half years.”

                      THEY ARE SAYING FILLING VACANCIES IS COURT PACKING. WHICH IS EXACTLY WHAT REPUBLICANS SAID IN 2013.

                    2. You’re ignoring LTG’s point, or rather pretending ypu didin’t get caught being silly.

                      Grassley and Cotton called filling vacancies “court-packing.”

                      But when Democrats do the same you and and Amos get the vapors.

            3. ” Read the linked article. Whittington at his best, ”

              That’s the best part of this. The Conspirators genuinely are the best right-wing legal academia has to offer, and they’re the disrespected fringe at strong, mainstream American law schools.

              Prof. Whittington was silent when Republicans were putting dozens of young ideologues on the federal bench with 50, 51, and 52 votes, ignoring Democratic senators, bar associations, and anyone else who wasn’t a Federalist Society true believer. Who expects Democrats to care about Prof. Whittington’s newfound interest in norms and bipartisanship when America’s better elements are positioned to see what 51 votes can accomplish in the service of progress and inclusiveness (rather than bigotry, backwardness, and fundamentalist superstition)?

              If anyone has a persuasive argument that Democrats should consider, this is the time to advance it. Prof. Whittington’s hypocritical, belated whining likely will make Democrats more determined to use their political power forcefully.

              1. “As of February 3, 2020, the American Bar Association (ABA) had rated 220 of Trump’s nominees. Of these nominees, 150 were rated “well-qualified,” 61 were rated “qualified,” and 9 were rated “not qualified.”[4] Seven of the nine individuals rated as “not qualified” have been confirmed by the Senate.”

                Trump’s Court appointees have hardly been as unqualified as you paint them, and there have hardly been “dozens” of bad apples.

        2. You know, the argument about what “court-packing” means is what’s stupid.

          What we are talking about is using the available means to tilt the court to favor one’s own side. That’s what the GOP has been doing.

          But suddenly, when it seems the Democrats might tilt the Court their way, using perfectly legal means, the right throws up its hands in horror.

          Guess what. If it’s anything (legal) goes, then court-packing or court expansion, or whatever is fine. The Republicans have created a hard-conservative court system. The Democrats have every right to change that.

          1. The problem is not that court packing is legal, it is that it invites similar retaliation. If you can’t understand that distinction, your name must have the initials FDR.

            1. Barrett after Garland invites retaliation. You just think you can get away with it – and will whine if you don’t.

              1. So retaliate similarly, if Trump is re-elected and the Senate goes Democratic.

                1. Oh, so now you claim the right to prescribe “proper” retaliation? But you already know what retaliation follows, so your words are mere empty posturing. Here’s your problem : You applaud the hypocrisy & power politics behind Barrett after Garland, but don’t want responsibility for that choice – for your support and the actions of your side.

                  You’re test-marketing a “it’s not our fault” shtick here, even before the Barrett vote. But it will be your fault. If hypocrisy & power politics is so very much worth it, then man-up & embrace the consequence now. After all, this is McConnell’s call and you’re cheering him every step of the way.

                  1. And when the GOP adds more seats? This is an option you find acceptable too?

                    Sure, who needs SCOTUS legitimacy? State courts can just opt to ignore SCOTUS rulings since they’d be purely political after adding more seats and defy the Feds to do anything.

                    1. It’s pretty damn simple, damikesc : Barrett after Garland is an escalation. It will require a response. Think that response will be harmful? Then your side has a choice now.

                      If you make the wrong choice from blindness, don’t whine about the consequences. Don’t pretend you don’t understand the repercussions of your actions. Don’t glory in your hypocrisy and political hardball, then give us unctuous pieties on “norms” and the “common good”.

                      This is the GOP’s decision right now.

                2. Wow, sorry I your share of the rations while we were waiting for rescue on that desert island. Tell you what, the next time both of us are stranded on a desert island together waiting for rescue, you can eat all of my rations and I won’t say anything, I swear!

                  1. “ate your share” dammit…

                    1. (we need an edit function)

                3. “So retaliate similarly, if Trump is re-elected and the Senate goes Democratic.”

                  What makes you think your betters are interested in your advice?

                  Win the election or sustain the consequences.

          2. And trying to equate filling vacancies with creating vacancies is really pathetic. Both are legal, but they are not the same. Trump and the Republicans did not create those vacancies. You are either implying they murdered some of the three justices, or that they should have let the Democrats choose some of their replacements.

            Your really are a pathetic fuck to think your comment is clever.

            1. “Republicans did not create those vacancies.”

              If they don’t confirm nominations, they bear some responsibility for vacancies existing. Don’t believe me? Let’s ask Mitch:

              https://www.king5.com/article/news/verify/mitch-mcconnell-obama-court-nomination-interview/507-4362fe4e-790e-4711-b945-ad3e08f6dcd5

              1. “Republicans did not create those vacancies.”

                If they don’t confirm nominations, they bear some responsibility for vacancies existing.

                It’s funny in a sad sort of way that you’re advancing a pretzel-knot reimagination of the word “create” in a thread about redefining basic English vocabulary.

                1. Fine I will be more clear. Republicans did not create vacancies, the retiring or deceased judges did that.

                  Republicans maintained their existence for several years by refusing to confirm Presidential nominees. And Mitch McConnell is happy to tell you all about how he made sure those vacancies were still there when Trump became President.

                  Happy now?

                  1. “Several years”? You do like to exaggerate.

                    Besides which, you imply that it is the Senate’s duty to confirm every nominee. It is not. Whether he was voted down, or not voted on at all with the excuse he would have lost, it takes two to get an appointment — President AND Senate. Don’t blame the Senate alone. Don’t blame the President alone. It takes two to tango. That vacancy was maintained ( for one year only!) by BOTH the President and Senate.

                    1. You think I’m exaggerating that vacancies were left open for several years?

                      Thupar replaced a seat that was vacant since 2013

                      Newsom replaced a seat that was vacant since 2013

                      Erickson replaced a seat that was vacant since 2015

                      Barrett replaced a seat that was vacant since 2015

                      Bibas replaced a seat that was vacant since 2015

                      I could go on. And in case you are interested, there are several examples of Republican Senators promising to keep a SCOTUS vacancy open for four years if Hillary won.

                    2. Oh, now you are equating district and appeals courts with the Supreme Court.

                      Stop digging, pal, you’re way out of your depth.

                    3. We’ve been talking about judicial vacancies this whole time. I’m not out of my depth, you’re just making weak attempts to get out of the fact that Republicans obviously 1) abuse used the filling vacancies is court-packing argument 2) try to maintain vacancies for a long time at all levels of the Courts so that they can take advantage of it if they have the trifecta. And again, several promised to keep it at 8 on SCOTUS for Clinton’s entire term if she won.

                      Again, I’m not out of my depth, you just can’t handle the fact that Republicans do and say things that make your complaints about Democrats are actually just whining that they have the nerve to use Republican strategy and talking points to their own advantage.

                      Bob gets this? Why can’t you?

                    4. You think I’m exaggerating that vacancies were left open for several years?

                      The piece of contextual information you’re omitting is the length of time between the seat becoming vacant and a nomination for a replacement (if Obama nominated anyone at all — see my prior comment with actual statistics on that).

                      Just throwing vacancy dates out in a vacuum says absolutely zip about why they weren’t filled, and in fact every single one of those seats was open in a period when the Ds controlled the Senate and Obama was getting 9 out of 10 nominations through.

                      So again, the actual data strongly suggests filling seats just wasn’t a priority for him. That’s the way the cookie crumbles.

                  2. Republicans maintained their existence for several years by refusing to confirm Presidential nominees.

                    Well, it’s sorta hard to measure that claim when your source is a 4-page “paper” that doesn’t provide any more granularity on the timing of nominations than “were pending the day Obama left office.” A quick look around (e.g., Table 3 here) shows a typical level of confirmations of O’s nominations during the first six years of his presidency, including 132 of 149 (nearly 90%, one of the highest confirmation rates in about 25 years) in 2014-2015.

                    Your paper does clearly say, however, that Obama hadn’t even nominated a judge for nearly 40% of the seats that had been deemed “judicial emergencies.” That’s consistent with my link above, where he only made 70 total nominations in 2016-2017. Almost like it just wasn’t that much of a priority for him.

                    But dusted off and dressed up with a bit of revisionism, it makes for a poignant-sounding narrative.

                    1. The clip was of Mitch McConnell taking credit for maintaining vacancies. Most defenses for Republican behavior requires them to ignore the things Republican politicians say and do.

                    2. OK — sounds like we’re on the same page that you’re griping about what people supposedly said was happening instead of what actually happened. Glad we cleared that up.

                    3. People…like the Republican leader of the Senate? Yeah, what would he know about judicial vacancies.

                    4. So to figure out whether Rs prevented Obama from filling seats from 2009-2015, don’t look at the actual statistics of nominations vs. confirmations. Instead, throw out a characterization of a 2019 soundbite from a political interview.

                      I think we’re done here.

                  3. ” Oh, now you are equating district and appeals courts with the Supreme Court. Stop digging, pal, you’re way out of your depth. ”

                    Your whimpering is entertaining. That you think your betters will care about your feelings is pathetic.

                    Open wider, clinger. I don’t think you understand what you are about to swallow.

              2. Still unclear on the difference between creating and adding vacancies. Refusing to confirm (or even vote on) a nominee did not create the vacancy. Refusing to hold a vote when the nominee would lose does not create a vacancy.

                The Senate is not required to confirm a nominee. If the President chooses a nominee who can’t pass the Senate, that is not the Senate creating a vacancy.

                Expanding the court IS creating vacancies. If you can’t see that difference, you have your eyes wide shut intentionally.

                1. Fine I will be more clear. Republicans did not create vacancies, the retiring or deceased judges did that.

                  Republicans maintained their existence for several years by refusing to confirm Presidential nominees. And Mitch McConnell is happy to tell you all about how he made sure those vacancies were still there when Trump became President.

                  1. You have changed the goalposts by comparing district / appeals court vacancies to Supreme Court vacancies.

                    What next, dogcatcher? Consul in Azerbaijan?

                    1. Uh you’re moving the goalposts. I’ve been consistently talking about all vacancies this whole time. But if we want to focus on SCOTUS, Republicans 1) kept a vacancy open for 14 months. 2) Swore to keep it open for 4 years if need be.

                      You can’t escape the things they said and did in the past.

                  2. McConnell is lying. Most of those vacancies are because Obama never nominated anyone. Obama’s success in appointing judges isn’t notably different from his predecessors.

            2. “pathetic fuck”

              Whoa there tough guy, no need to get testy. You guys sure do seem to be on edge these days. Why even worry about court-packing when Trump is about to win in a landslide?

            3. Is it impossible for you to make a comment without some shitty belligerent fucking insult?

              I’m “equating” the two only in the sense that both are perfectly legal, and if you want to say it’s OK to railroad Barrett onto the Court, because it’s legal, then it’s OK to pack the court because that’s legal too.

              You want to make a different case, fine, but skip the horseshit.

              1. Barrett is not being railroaded into the court. Refusing to fill a vacancy also means the President made a bad nomination. And creating vacancies out of thin air is immeasurably different than refusing to fill a vacancy with an unacceptable nominee.

                Yes, you are pathetic for trying to equate the two. The insulting word may have been gratuitous, but no more so than trying to change the English language for partisan purposes, especially by relying on Republicans for prior examples.

                1. (1) Screwing over Garland was constitutional
                  (2) Ramming thru Barrett days before an election is constitutional
                  (3) Court expansion is constitutional

                  It’s your excuses that are pathetic. This is the GOP & Right’s choice. They’re the ones exulting over their own hypocrisy & ruthlessness with Barrett. If court expansion results, then it was their call.

                  1. Court expansion is legal, no question. It is not comparable to your other cases. It was considered so despicable by FDR’s own party that the committee refused to approve it or send it to a floor vote.

                    1. So this is despicable by the standards of 1930s Democrats, but the other stuff is cool by the standards of 2000s Republicans.

                2. “Especially by relying on Republicans for prior examples.”

                  How dare anyone use Republican’s words and actions to point out they are massive hypocrites acting in bad faith. Why would anyone ever do such a thing?

                  1. How dare anyone use Republican’s words and actions to point out Democrats are also massive hypocrites acting in bad faith. Why would anyone ever do such a thing?

          3. “You know, the argument about what “court-packing” means is what’s stupid.

            What we are talking about is using the available means to tilt the court to favor one’s own side. That’s what the GOP has been doing.”

            Sigh. Court-packing has referred to expanding the court to fill it with preferred justices since FDR. And it creates a danger to the court’s independence. Any time the court rules in a way that the political branches don’t like, they can add a few friendly justices and get the ruling overturned.

            The term has never referred to “using the available means to tilt the court to favor one’s own side” by filling available vacancies, which both sides do all the time.

          4. The Republicans have hardly created a “hard conservative” Court. The Court has basically fallen right down the middle of public opinion in the last 20+ years. I doubt that’ll change much.

        3. If words don’t mean what you want them to mean, well, by all means, go ahead. It’s entirely possible to get enough people to believe that the words mean what you *want* them to mean than rather than what they meant previously.

          But be honest about it. And don’t expect people not to point fingers and laugh at how silly you are. Face it, you’re not going to make “fetch” happen.

          1. Here, mad_kalak, I’ve got some Republican-grade distinguishing to sell you. When FDR did it, it was illegitimate, and thus court packing, because the power to enlarge the court belongs to the Congress, not to the President. This time, it would be the Congress doing it, all legitimate, nice and constitutional, therefore not court packing, but court adjustment.

            Perhaps you think that’s a distinction without a difference. If so, I suggest you and your buddies stop trying to distinguish what McConnell did as somehow legitimate, because there is no difference there either.

            Given a Biden win and a Democratic Party controlled Senate, I hope Congress will hold off and not immediately enlarge the Court. There are all the good arguments against it. There is also a chance to see if perceived self-interest can teach the Justices partisan self-discipline. And by the way, waiting can preserve the Court issue for the 2022 Senate races, instead of handing it to the Rs gratuitously.

            But the first time the Congress does something like pass a new Voting Rights Act, and the Court puts it on the docket, it’s time for court adjustment.

            1. “Perhaps you think that’s a distinction without a difference.”

              No. But it’s factually incorrect.

            2. Why would Congress need to pass a new VRA? All it would have to do is amend a subsection of the current VRA.

      2. I’m talking about the redefinition of court packing the media has been sending trial balloons over the past few weeks. As to the powers themselves theres obviously a huge difference in magnitude between Congress rendering the Supreme Court moot and whatever the Dems are whining about.

        1. Hmmmmmm I wonder where they got the idea to redefine Court packing? Let’s ask Chuck Grassley and Tom Cotton in 2013.

          1. So three wrongs make a right?

            Or are you saying the Democrats take their talking points from Republicans so that’s ok?

            1. I’m saying all the whining about “Democrats are like Orwell, redefining court packing, how could they do this? What is the world coming to?” stuff is bad faith disingenuousness coming from Republicans. No one should take it seriously.

              1. Bad faith when Republicans do it, but ok when Democrats copy their bad faith argument, and ok when you laud the Democrats for doing so.

                1. I’m not lauding them. I think redefining court packing is dumb. I just don’t think Republicans are in any position to lecture them on this topic. They have zero moral authority. It’s just whining that Democrats might be willing to engage in the same tactics they willingly embraced. It’s a variant of the “Leopards Eating People’s Faces Party” meme. “I never thought bad faith disingenuous arguments would be used against ME, says Senators who were happy to embrace bad faith disingenuous arguments.”

                  1. Republicans are not allowed to criticize Democrats? Are all Republicans the same Borg?

                    Democrats used to be the party of slavery and Jim Crow. Are no Democrats now allowed to criticize them?

                    1. Of course Republicans are allowed to criticize, they just should not expect to be taken seriously by anyone.

        2. AmosArch, are you sure Congress is talking about, “rendering the Supreme Court moot? I thought part of the right-wing concern was that the Court would be active, baleful, imposing—and pro-Democrats.

    2. I like how they are calling it depolitization of the court

      1984

  2. Elected Republicans should continue to use their authority as they wish while they have it.

    Elected Democrats should do the same.

    Democrats should not respect Republicans’ whining about the prospect of fastidious compliance with plain rules in congruence with ample precedent.

    1. Since democrats won’t capture the Senate or the White House for a while I expect to hear lots of whining from you.

      1. Just not enough bigots, knuckle-draggers, old-timey religious kooks, uneducated clingers, and disaffected incels left in America to position Trump for another three-cushion trick shot at the Electoral College.

        The electorate improves each day — less backwater, less bigoted, less religious, more diverse — as cranky old Republicans take their ugly, stale thinking to the grave and are replaced by better, younger Americans. The Republican Party must change or die.

        I vote “die.”

    2. …ample precedent…

      Did you even read the article?

      1. Yes. I was familiar with the history of Court enlargement before Prof. Whittington became frightened enough to address the subject.

  3. I can’t believe Democrats have the nerve to even discuss using powers they would legally have in response to Republicans being brazen hypocrites, breaking promises, and lying to Americans about whether their voice matters in Supreme Court nominations and confirmations. I mean its almost like there might possibly be consequences to a nihilistic and sociopathic approach to government. Who knew!?

    1. I agree, but the packaging of the message hasn’t been good, including redefining what court packing means.

      I do not understand why from the outset, Biden couldn’t have simply said something like, “I do not like expanding the number of seats on the Court. However, because of the unprincipled and unfair way Republicans treated Garland versus Barrett, I will consider various options to gain equity. I hope to find an option that doesn’t expand the court, but I won’t take that option off the table.”

      1. That is the best answer and I think that’s actually been Biden’s thinking the whole time, he and the campaign for some reason had a very hard time articulating that.

        1. It makes you wonder, doesn’t it?

          1. Not really. It’s a bit of a difficult needle to thread. Establishment types think it’s a bridge too far. Progressives and the left think it’s necessary. He’s an establishment Dem but knows that the progressives have a point, particularly if SCOTUS frustrates every Democratic policy initiative. So he’s wishy washy.

            You see, somewhat serious politicians who aren’t simply an avatar for cultural grievance weigh difficult choices and might have trouble explaining nuanced positions that depend on future events. They can’t just get by yelling “Lock them up” about any politician they happen not to like.

            1. Yeah, the part that really gets me is that these people are well-compensated for their communication skills. What they believe should not be that hard to articulate.

              Heck, I can disagree with Josh R on the specifics, but his answer is clear as hell.

              1. Josh R can write speeches for me any day. (‘course I’d still be pretty wretched giving them, but that part’s hopeless)

              2. Dems aren’t voting for Trump. Repubs aren’t voting for Biden, generally. The answer is simple: a clearer answer on court packing would only serve to split the independent vote. Better that the truly independent voters see what they want to see in Biden than receive a more concrete answer.

        2. The answer is basically this.

          “Court packing” (increasing the number of seats on the SCOTUS then prompting filling them with your own members) critically undermines the checks and balances inherent in our system of government, leading to tyranny.

          What you need to understand is that the US is pretty special as a Democracy. Over 250 years, and no dictators, tyrannies, or other types of systems that have affected so many other democracies. Why is that? It’s because of the checks and balances within the system that make it near impossible for one group or party to grab all the levels of government simultaneously. The Senate is staggered from the House and Presidency, making a single election difficult to grab all 3, while the SCOTUS works on life terms, and ~1/3 of the court turning over every 8 years. Supermajorities (2/3rds) are needed for impeachment (of either SCOTUS judges or the president). This importantly gives voters time to reconsider their decision. If they stick with it, ultimately, the party will gain all the levels of government.

          Court packing is a hole in this system however. By having Congress increase the number of seats in the SCOTUS, then fill them with its own supporters, it destroys the SCOTUS as an effective independent institution. The SCOTUS does what Congress wants or else…Congress fills it with judges who will. Protection of people’s freedom of speech, religion, voting rights, minority rights… The SCOTUS will not be able to protect these anymore. If it tries, Congress will just pack it with judges who rule the way Congress wants.

          That’s why court packing is especially reprehensible, and why you should oppose it on every level, and strongly oppose Biden for even entertaining the idea. If you truly want to defend people’s rights, you need an independent SCOTUS. And Court packing destroys that.

          1. Would a pack of hankies help you get through the next six months?

            1. Why do you like stripping away people’s rights Rev?

              1. Voting rights? Abortion rights? Anti-discrimination rights? Speech rights? Consumer rights? Environmental rights?

                I don’t take pointers on protection of rights from clingers.

          2. What makes you think anyone in the Senate from either party is concerned with defending peoples rights? Grasping at power is pretty much mutually exclusive with defending rights. The fact that packing the court undermines checks and balances is a feature to those who suppot it, not a bug.

            1. Politicians may be more or less apathetic to preserving the rights of the common man, and moreso interested in power grabs, but the America system makes prolonged/sustained power grabs extremely difficult through a combination of written laws and respected traditions.

  4. How many pubs are banging their heads now saying, “We should have increased the court in ’17/’18 when we could?”

    Even a modest increase to 11 or 13.

    Sorry guys, you missed a big one.

    1. Did any prominent conservative or Republican *actually* say such a thing?

    2. “Sorry guys, you missed a big one.”

      Absolutely.

      End the legislative filibuster in 2017, push thru a lot of things. Trump’s political instincts were better than the herd of [mainly] sheep in the senate.

  5. Lets stop whining about it. If they pack, they pack.

    1. Maybe start saving some whining for the legislation that will be enacted after the filibuster is eliminated!

  6. It’s been a well-established principle since FDR that court-packing refers to increasing the size of the Supreme Court (and the Supreme Court only), It doesn’t refer to filling existing vacancies, nor to increasing the number of lower court judgeships

    The fact that a couple of Republican operatives may have misused the term in the past does not change the long standing definition.

    In general, neither side is entitled to take the other sides most partisan extremists as representative.

    Filling an existing vacancy preserves the courts’ legitimacy, because it preserves a check on the political branches’ control over the courts.

    Expanding the number of seats turns the court into a rubber stamp for the political branches. If the political branches disagree with a court ruling, they just create new justices willing to overturn it. If removes the court’s historical function as a check on the exercise of arbitrary, even tyrannica, power by the political branches.

    For this reason, proposals to increase the number of Supreme Court justices have been traditionally regarded, since FDR, as harbingers of tyrrany.

    This is simply not so of filling vacancies. Filling late vacancies is a sharp move and understandably annoys the other side and its electorate, but it doesn’t eliminate the court’s institutional abolity to say no to the President and Congress. Vacancies have been filled not just shortly before elections but in post-election lame duck sessions multiple times in history.

    1. Republican operatives=The chairman of the Senate Judiciary Committee.

    2. ReaderY : Vacancies have been filled not just shortly before elections but in post-election lame duck sessions multiple times in history.

      So what? The court has been expanded multiple times in history. It boils down to one thing : The GOP demands the right to chose which rules apply for each new SCOTUS seat. They claim the right to chose which rules apply when they’re in&out of power. They want to smirk over their own hypocrisy when they benefit, then whine pieties about the common good when they don’t.

      And people are sick of it. Barrett after Garland means retaliation. It’s completely the GOP’s choice what happens. All the posturing in the world can’t change that.

      1. What’s wrong with the GOP choosing a well-qualified woman to join the Court?

    3. The thing missing from all of this analysis is the behavior of the Senate Republicans.

      Let’s agree that yes, filling a vacancy is good and it preserves a Court’s legitimacy. By this logic, holding up Garland’s nomination was bad because the Court wasn’t able to do its job properly for over a year and extra bad if we listen to Trump’s recent arguments supporting the ACB nomination because we were stuck with a 4-4 court in a close election where in theory they might have had to adjudicate disputes over the results. So okay, that’s bad, but maybe there’s a counter-argument. McConnell, Graham and friends assert that we shouldn’t appoint Justices in the last year of a Presidential term because voters ought to be allowed to weigh in on the pick through the upcoming election.

      Then, four years later, basically the exact same situation but much closer to the election. Now, suddenly, it’s imperative that we nominate and approve someone as quickly as possible. But doesn’t that contradict what you said four years ago? Didn’t you establish a norm back then? And basically the response boils down to: well, we’re Constitutionally allowed to do this, so we will.

      So the primary problem here is that between the Garland and Barrett nominations, Senate Republicans have made it clear: norms do not matter, promises do not matter, the only thing that matters is that we have the votes and the Constitutional authority to do something, and so we will. Of course expanding the court is different (and probably worse) than filling a vacancy or not filling a vacancy, just like removing the filibuster on lower court nominees is different than removing the filibuster for SCOTUS nominees or ignoring the blue slip process. But the overall trend is away from norms and other informal checks and towards the raw exercise of power, whether as a majority or minority.

      FWIW, I do think that Biden is a traditionalist and doesn’t really like this. On the other hand, he tends to navigate towards the center of the Democratic party, and right now the Democratic party has veered pretty far to supporting court expansion, mostly triggered by McConnell’s bold hypocrisy. Maybe there’s a compromise out there in the form of Calabresi’s Constitutional amendment or some other reform that allows a Democratic majority to feel like there’s some balancing of the scales, but Republican appeals to preserving the legitimacy of the court or other norms are probably going to fall short given their own behavior.

      1. jb : FWIW, I do think that Biden is a traditionalist and doesn’t really like this. On the other hand, he tends to navigate towards the center of the Democratic party, and right now the Democratic party has veered pretty far to supporting court expansion, mostly triggered by McConnell’s bold hypocrisy.

        Exactly right. Biden said as much and I agreed with his previous position. There wasn’t more than single-digit support for court expansion before McConnell’s power play, and I was whole-heartedly with the majority. The Democrats didn’t make this situation but they will respond if forced to.

        Don’t ram Barrett thru a week before an election and Democratic support for court expansion returns next to zero. It’s all the GOP’s choice. Their supporters here just don’t want to take responsibility for the decisions they cheer on….

      2. Democrats:

        “GOP bad, so we’re gonna undermine the checks and balances inherent in the country and turn it into a dictatorship so we can do what we want.”

        1. Party aside, power grabbers gonna power-grab. Political support is needed, until it isn’t. Once the demon has been summoned, the summoner is expendable.

    4. “The fact that a couple of Republican operatives may have misused the term in the past does not change the long standing definition.”

      Do you goobers genuinely figure stuff like this is going to work?

      Come up with something persuasive, or brace yourselves.

    5. “It’s been a well-established principle since FDR that court-packing refers to increasing the size of the Supreme Court (and the Supreme Court only),”

      No, that’s not “well-established” or even close to true.

      Mitch McConnell, May 2013 claimed President Obama was seeking “to pack the D.C. Circuit with appointees.”

      Texas Senator John Cornyn talked about Obama’s efforts to “pack the D.C. Circuit” and supported shrinking the court.

      Iowa Senator Chuck Grassley denounced Obama’s “efforts to pack” the D.C. Circuit,

      Senator Mike Lee of Utah said Obama is trying to “pack the D.C. Circuit with unneeded judges simply in order to advance a partisan agenda.”

      After making those statements, they proceeded to block nominations, leaving them open for the Trump administration, which by their own definition “packed” the circuit courts.

  7. I tried to stick with FDR’s actions back in 2009, but got shouted down.

    I have accepted that like so many political terms it is now more a slogan than a thing; no going back now, the branding is too strong.

  8. From TFA: “The possibility of increasing the number of justices to artificially give one party greater influence over the Court came to be recognized as the ultimate violation of constitutional norms.”

    You just broke my irony meter.

    Have you been living abroad for the last four years without newspapers or the internet?

    1. haha yeah, democratically elected representatives doing their constitutional duty to fill vacancies is undemocratic haha haha

      1. No, it’s democratically elected representatives refusing to do their duty to fill vacancies. Note Garland tied and gagged in the corner as just one example.

        1. You’d think Democrats never filibustered judicial nominees.

          You will really not like what this leads to if you do it. You were warned earlier and ignored it and that filibuster thing sure bit your ass.

          1. damikesc, nobody on the political left will dislike it any more in the future than they dislike it now. For whatever interval the nation’s pro-Democratic Party majority (assuming that outcome even happens) is supported legally by a partisan pro-Democratic Supreme Court majority, the nation will be marginally happier than it is now. Republicans will be newly saddened, but Democrats will be happier, and at least for purposes of this discussion, we are positing more Democrats.

            I personally will still hate politicization of the Court, and urge ways to get rid of it. But even I would prefer a pro-Democratic Party partisan outcome to what we have now. Those who insist Republican abuses have run out of control, and must be countered, have it right. Garland followed by Barrett means retaliation. It has to.

            But cheer up, maybe Trump will win, or Republicans will hold the Senate. Then no retaliation until later.

            Although, if my politics were right-wing, instead of somewhat mixedly left-wing, which they are, I would worry about the future of my party after more of the same from Republicans. Are you really on board with what you’ve been seeing? Does more of this look to you like the way to a happy nation?

            Carrying on like this, but with a Democratic Party tilt, doesn’t strike me as all that promising. Too bad we can’t even agree a notional consensus on how fix it on this blog, let alone nationwide. We’re in a pickle. For now, it seems only lucky happenstance going forward can get us out.

            1. [Quote]damikesc, nobody on the political left will dislike it any more in the future than they dislike it now.[/Quote]

              Well, you’re playing with fire, so I hope you know what you’re doing. All of modern history indicates that when one political party consolidates power to the point that there is no meaningful opposition, they quickly forget about their erstwhile supporters. Kirkland may be right that we will need to open wide for our betters. But he makes a category error. He naively believes [I]he[/I] will be one of our betters, instead of alongside us in the gulag.

              1. Formatting is hard

                -An onomous

  9. Judicial review violates Article I Section 1, giving all lawmaking powers to the Congress. If the Justices will legislate from the bench, the Supreme Court should have the size of a legislature. It should have 500 Justices. That number would bring the wisdom of the crowd to its decision making. None should be lawyers. The Supreme Court should move out of Washington DC, the rent seeking cultural capital of the nation. It should be moved to a place with a less toxic culture, like Wichita, in the middle of the US.

    All these changes may be accomplished with a Congressional Judiciary Act.

    1. How does poisoning Wichita reduce national toxicity?

    2. And what if Congress passes a law that is obviously unconstitutional? Like if they ban all guns? Does SCOTUS not have the power to rule against that law?

  10. Anybody else miss the pre-WaPo Conspiracy commentariat?

  11. Refusing to seat Obama judges then packing the court when Trump won is not only court stacking it is a coup!

    They realize they need the courts. They cannot get rid of ACA democratically, legislatively so they need the court to do it. Same for abortion. The more people that vote the more democrats win. So they need the courts to suppress that vote!

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