The Volokh Conspiracy

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Which outcome would forestall Court packing longer? A Trump victory or a Biden victory?

The Chief Justices's calculations are not so obvious.

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The so-called "Switch in Time that Saved Nine" is a myth. Justice Owen Roberts cast his vote in West Coast Hotel v. Parrish before FDR's Court-packing scheme was announced. But the conventional wisdom endures to this day. And, consistent with this conventional wisdom, pressure is forming on Chief Justice Roberts to force another "switch" to avert court packing. This "switch" could take the form of Roberts's modifying his jurisprudence. Or, in a more extreme example, Roberts may resign if Biden wins to save the Court. Critically, however, the Chief should do everything in his power to ensure that the judgments of the Pennsylvania and North Carolina Supreme Courts stand. The specifics really aren't important.

Is this conventional wisdom correct? If Chief Justice Roberts's goal is to forestall Court packing, the most logical choice may be to rule for President Trump. (I generally presume that in controversial cases, the Chief casts votes based first on his idiosyncratic understanding of political equipoise; the best legal reasoning comes second, if at all). At least for the next 4 years, the Supreme and lower courts would be safe. And, perhaps, after four years of rulings that frustrate both sides of the aisle (Roberts is great at those!) the motivation for Court packing will fizzle out. Indeed, a four-year cooling off period may be just what the doctor ordered. In contrast, a ruling for Biden would accelerate the demand for Court packing. I still think some form of Court reform is inevitable, no matter what the commission recommends. Would anyone be willing to take a wager that there are still 9 Justices in the fourth year of a Biden presidency?

All things considered, perhaps the best way to keep the courts in their current form is with a Trump presidency, coupled with frustrating rulings. Deal with 2024 in four years.

Update: President Trump made this point in his own inimitable way:

NEXT: President Trump's § 230 Executive Order Doesn't Do Enough To Be Challengeable

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108 responses to “Which outcome would forestall Court packing longer? A Trump victory or a Biden victory?

  1. The Court will remain at 5-4 balance for the foreseeable future.

    I don’t believe the Dem’s will sweep this election, and that’s what would be required.

    1. Seeing how the court is now a 6-3 balance I don’t see how you get to 5-4.

      1. He thinks Roberts is liberal because he doesn’t vote with Alito and Thomas 100% of the time.

        1. I think Roberts is an Establishment traitor so he votes and loses like the other Republican Establishment traitors like McCain and Romney.

        2. No Roberts is a liberal because he makes liberal rulings.

          His turn toward the dark side started with Obamacare. Now that the Glorious ACB is on the court, it will be complete.

  2. At least for the next 4 years, the Supreme and lower courts would be safe. And, perhaps, after four years of rulings that frustrate both sides of the aisle (Roberts is great at those!) the motivation for Court packing will fizzle out.

    This is fantasy.

    If the court hands Trump the Presidency the motivation for court-packing will do the opposite of fizzle out. Sure, it won’t be possible for four years or more, but the motivation will be very strong.

    Of course, it’s possible that democracy will die before the second term is up, from being stabbed by the court or something else, but the motivation to expand the court, and make other changes,will be gigantic.

    Roberts is playing with fire here.

    1. So, if Trump is elected, Democrats will pack the courts in 2025..

      And if Biden is elected, Democrats will pack the courts in 2021..

      Hmm. Not a lot of choice there. Given the choice between the two, I suppose kicking the bucket down the road 4 years is better.

    2. The death of democracy is of no real concern to Josh. Since Barrett was confirmed, he probably thinks he has a shot at the Court himself!

  3. The left will expand the court as soon as they can.
    Only (well maybe) a constitutional amendment fixing the size of the court would even slow them down.
    Along with adding states, and maybe even breaking up CA as long as the pieces can be rigged to stay deep blue.
    The next election the dems win may well be the last election.

    1. California is a permanent one party state. That is the future of the nation if they prevail. I have been to LA, as a tourist, and found it unlivable, and its people, really annoying.

      1. “California is a permanent one party state. ”

        Could this be because one party decided to commit suicide by engaging in essentialist attacks on a growing demographic there?

        Republicans were winning statewide office back in the ancient history of 2011, it’s just they had a candidate that was an immigrant himself and didn’t engage in that stuff.

        1. I think a major part of the problem is that the party establishment made a lot of stupid choices that turned many of the faithful away from the party. The establishment is a bunch of elitist fools who want to lord over the rest of us. The Dems have the same problem, but they have the upper hand in the state now.

          1. The exact opposite, actually, if you read my comment.

          2. And then as soon as Republicans got control of Washington, their #1 priority was apparently to raise taxes on suburban Californians, thus eliminating one of the primary motivations for sticking with the GOP.

        2. No its because most of the people were indoctrinated by government schools and the ones that weren’t left.

          It had nothing to do with their support of stopping illegal immigration – which any good person should support.

    2. “The next election the dems win may well be the last election.”

      Yes, if the side making it *easier* for everyone to vote wins that certainly portends the end of elections. It’s clear which side loathes elections as a necessary evil and which side wants to ‘rock the vote’ all the time.

  4. Owen Roberts’s switch was probably prompted by the FDR landslide. Which changes your analysis a bit.

    1. Roberts and Frankfurter said that it was a natural doctrinal evolution on Roberts’s part (which is hard to credit), but it does appear that Roberts’s conference vote on West Coast Hotel v. Parrish took place in December 1936, that is, after the Roosevelt landslide but before the court packing plan was announced.
      Another way to look at it would be that Roberts was not an independent-minded Justice, but instead followed authority figures, and in this case the authority figure, responding to the election returns, was Chief Justice Hughes, who had already gotten Roberts to put the Hamiltonian interpretation of the General Welfare Clause into U.S. v. Butler, and dragged him the rest of the way after the election.

  5. Stop legitimizing an illegitimate idea. Court packing is exactly how Venezuela lost its freedom and its Constitution.
    All discussions of Court packing should be met with a hard “never.”
    What has gotten into you????

    1. There’s nothing illegitimate of unconstitutional about addressing the anti-democratic institution that is the current US Supreme Court.

      If we still have democratically elected executive and legislative branches it is inevitable. The only question is how far it will go.

      Remember that the constitution gives congress the power to determine or change the structure of all the lower courts:

      “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.”

      And the constitution only grants the Supreme court explicit jurisdiction in a few narrow enumerated cases, leaving it up to congress to determine “regulations and exceptions” in all other cases:

      “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

      Congress could basically neuter the court, limiting their jurisdiction to Ambassadors and disputes between states. No need to pack if their docket is mostly irrelevant.

      Just a few examples of the tools in the constitutional kit to rein in a rogue branch of government.

      Don’t like it? Well, you should have spoken up about Garland, Gorsuch, and Barrett. Now it’s too late.

      1. Assuming they follow the required process of passing the bills and appointing justices, then packing the courts would not be unconstitutional, no.

        Exactly the same way that, as long as they follow the process, an amendment banning all other parties would also not be unconstitutional.

        However, it would certainly be illegitimate. As we saw in Venezuela, Peru, or Argentina during the later 20th century, it’s a tool – like changing the legislature size – that leads immediately to the destruction of the legitimacy of the government.
        Regaining that legitimacy would take generations, perhaps centuries, once lost. Personally, I consider that a bad thing, but maybe to the Leftists, it’s worth it for the temporary power they’d gain.

        1. Question: If we’re talking about some platonic ideal of legitimacy and not formal legality, why is a President who lost the popular vote nominating someone to an un-democratic and unaccountable institution for life and is then confirmed by a group that had the electoral support of less than half the country “legitimate?”

          1. Trump couldn’t have lost “the national vote”, because there is no such thing in the United States – unless you meant the Electoral College, which Trump clearly won. Instead, there are 51 local votes to choose Electors, of which Trump won 30.

            Similarly, there is no national vote or cross-state districting for Senators – so there is no such thing as a Senator with less than the plurality of the support of his electorate.

            If you want to claim the Supreme Court is not “legitimate” because it is “an un-democratic and unaccountable institution”, that’s fine. But that’s not the argument that was made, and it isn’t an argument that court packing is legitimate.

            1. “Trump couldn’t have lost “the national vote”, because there is no such thing in the United States – unless you meant the Electoral College, which Trump clearly won. Instead, there are 51 local votes to choose Electors, of which Trump won 30.”

              You missed the point. If some things are legal but not “legitimate” why is this legal outcome “legitimate” but Democrats legally expanding the Court “illegitimate.”

              1. You missed the point. Expanding the Court in and of itself is not “illegitimate.” It would simply be another authorized act of Congress.

                The issue, however, is that such an action by Congress can lead to a legitimacy crisis for the Court. Will it? Who knows.

                1. “The issue, however, is that such an action by Congress can lead to a legitimacy crisis for the Court. Will it? ”

                  It already has. Barrett was specifically rammed through to rule in favor of a second Trump term should the election be sufficiently close. Trump said so himself.

                  Correcting the court will hopefully forestall the coming crisis when, say, Barrett casts the deciding vote to rule medicare unconstitutional.

                  1. Barrett was specifically rammed through to rule in favor of a second Trump term should the election be sufficiently close. Trump said so himself.

                    Right, yeah, except Trump didn’t actually say that.

                    The only “source” of him “saying” that is a Democratic senator from Delaware speaking to CNN. Do, however, feel free to prove me wrong with a source demonstrating that Trump actually said that.

                    Trump’s said a lot of things in private (like dead soldiers = losers and suckers) that get leaked and turned into credible news stories, but what a Democratic senator tells CNN and the fact that this was not followed up by other news outlets, such, as, say the NYT or New Yorker, tells me it’s more of a conjecture into what Trump was thinking instead of actual words he uttered.

                    There’s plenty of ways one can disagree with Trump but let’s not get into fantasy-land here by making stuff up.

                    Correcting the court will hopefully forestall the coming crisis when, say, Barrett casts the deciding vote to rule medicare unconstitutional.

                    Medicare, or Obamacare?

                    I thought Medicare was a third rail of politics.

              2. No, I didn’t miss the point – I addressed what you wrote. If that wasn’t what you meant, please try writing what you mean.

                What makes a government “legitimate” is a complicated topic, one often debated. The general answer is that a government is considered “legitimate” if it has both de jure and de facto control over its territories. This gets complicated in some situations, though – see Somalia and Mexico. However, this ignores popular perception, which is what you seem to be discussing.

                So, before we continue, would you define “legitimate government”? I can’t address your argument when it is based around undefined terms.

      2. I don’t know that I agree with this analysis. SCOTUS has addressed the Exceptions and Regulations clause in very few cases. But it’s pretty clear that they reserve the final say in interpreting exactly how far this clause extends. Doubtful that SCOTUS would willingly give up power to say what the Constitution means.

        1. And just so we’re clear, the decision would likely be couched in terms of functionalist arguments based on separation of powers, etc. That’s how SCOTUS rolls.

          1. DJK, you assume Court supremacy to prove Court supremacy, and thus beg the question.

    2. Court packing is exactly how Venezuela lost its freedom and its Constitution.

      You mean, after the failed coup d’etat? Because, euh, maybe start with that?

  6. “Court packing” is not a binary either/or proposition. There are a number of tools in the kit to address the “problem” with the Supreme Court.

    The NYT published a series of essays earlier this week, that should be of interest to readers of the Blackm^H^H^H^H^HVolokh Conspiracy, Including a cameo appearance by Randy Barnett.

    https://www.nytimes.com/interactive/2020/10/27/opinio/supreme-court-reform.html

    Suffice it to say that McConnell et al has opened a pandora’s box and if current polling holds there’s going to be some major adjustments in our judiciary.

    1. You are forgetting Schumer’s role in this nonsense

    2. ““Court packing” is not a binary either/or proposition. There are a number of tools in the kit to address the “problem” with the Supreme Court.”

      Which generally all involve creating more seats on the SCOTUS. Then immediately filling them.

      1. You didn’t bother to read the links, did you?

        If you want to be up to speed on what’s on the table, you’ll need to read up on the various proposals. Creating and filling seats on the supreme court is just one of many options.

        But feel free to ignore your opponent’s lines of attack. It will just make it easier for them.

        1. Your first link is invalid – NYT gives a 404, and your second, well.
          It lists 7 possibilities for Court reform.
          1 is “Do nothing”;
          5 are “Create new seats and fill them with your supporters” – although one of the suggestions is to create new lower court seats that are packed with your supporters to create more anti-Trump rulings to overwhelm the Supreme Court;
          The last one is “Create a new court that decides what cases the Supreme Court is allowed to take” which gets into all sorts of weirdness.
          There’s also the suggestion that the Democrat controlled House impeach Republican justices on trumped up charges to open up seats.

          So, yeah, all the suggestions for change pretty much require creating new seats and filling them with your partisan supporters. Some of them just try to dress it up in glitter to pretend it isn’t court packing – probably because court packing polls at 2- or 3- to 1 against.

  7. A Judiciary Act is desperately needed.

    First, the number should be even, to better preserve precedent, being followed by the lower courts.

    Second, move the Supreme Court to the center of the nation, like Wichita, away from that degenerate, rent seeking capital, Washington. That town is gayer than San Fran. It is blacker than Newark. Everyone there, from the lowest to the highest, is a worthless, tax sucking parasite. Its culture is horrifying. No one can escape local culture.

    Then, if it is going to make law in violation of Article I Section 1 giving all lawmaking power to the Congress, let it be the size of a legislature, 500 Justices. The wisdom of the crowd may seep in.

    Most important of all is the formal disqualification to sit on the Supreme Court of anyone who has passed 1L. No more lawyers on the Supreme Court. They don’t know anything. They are all members of a criminal cult enterprise with supernatural beliefs.

  8. What outcome would forestalled court expansion?

    You knew the answer : Don’t jam thru Barrett after what was done to Garland. You knew that because you were told repeatedly. No one cared about the consequence of court expansion then, when there was a simple decision that could stop it. So why take any of your posturing angst about expansion seriously now?

    You made your choice.

    1. Federal judges accepting the ludicrous proposition that they get to overrule state courts on interpreting the state statutes made by the state legislatures and state constitutions which create the state legislatures for the purpose of trying to have votes that eligible voters cast believing they would be counted thrown out is not helping matters either.

    2. “You know what would put off my kicking over the chess board? If you conceded.”

      1. Confirming Barrett 8 days before the election after blocking Garland for over 200 days before one while the person who nominated her (and some Senators who confirmed her) strongly hint that she needs to be there to resolve the election in his favor is a bit more than a simple chess move.

        Expanding the court in response to that is kind of mild to be honest.

        1. The Senate using the power granted to it to approve or not a nomination is nothing special. It’s happened dozens of times before – in fact, not receiving a vote is the most common way a nominee to fail to be confirmed for the Supreme Court.

          It’s more telling that the response to bad luck on the Democrat’s side is so extreme for such a minor event. How do you think the Left will react to something major, then?

          1. What is this bizarre attempt at gaslighting? A “minor” event? Even Republicans thought it was a major event.

            1. In terms of 2020 political events, it isn’t even in the top 3. Sure, it makes a lot of news, but it’s a relatively minor event.

              1. So would Court expansion then. Since it’s happened several times in the past. One minor event in exchange for another.

                1. Would it be fine if the GOP passed a bill that mandated a minimum congressional district size of 100 million people? With at least 1 per state?

                  1. Curiously, there are good originalist arguments for decreasing the size of congressional districts. There are also good originalist arguments against increasing the size of congressional districts. But there are no originalist arguments for increasing the size of congressional districts.

                2. Um, no. Appointing a justice to an empty seat is a common event that has happened more than 100 times, using rules that have been in place for centuries.

                  A court expansion has only happened three times, and not in 150 years. Most of the Court size changes came about during the Civil War and Reconstruction – a period with many acts of questionable legitimacy.

                  Do you think the re-starting the practices that last took place 150 years ago, during an era when 2% of Americans died in an open Civil War, is not a “significant event”?

          2. All that the Democrats would be doing, in a “court-packing” scenario, is exercising the constitutional authority vested in them by the country’s voters to reform the judiciary so that it reflects our modern electorate.

            See? The other side can minimize too.

            It’s kind of amazing to me that the Trumpers’ line on Barrett’s rushed confirmation is “Well, we have the power to do it; suck on it losers,” while their criticism of any court-packing plan is, “Who cares if you have the power to do it! It’s an extreme reaction!” No apparent sense of the self-contradiction here.

            You can’t have it both ways, chump.

            1. This cogently summarizes where we are.

              We’ve now established the McConnell rule as controlling precedent: “If we can get away with it, we can do it.”

              Complaints on what happens when the shoe is on the other foot will be met with the world’s saddest song played on the world’s smallest violin.

            2. They aren’t the same thing. One is following the existing rules that happen to be beneficial to that side, the other is changing the rules to become beneficial to that side.

              1. Nope. Expanding the court is permitted under the existing rules.

                1. Apples and oranges, as your existing rules for a different thing.

                  If you honestly cannot tell the difference between:
                  a) the rules for nominating and approving Supreme Court justices,
                  and
                  b) the rules for passing laws
                  then you probably shouldn’t be participating in this discussion.

        2. Confirming Barrett 8 days before the election after blocking Garland

          The Republicans blocked a white nominee for partisan reasons.

          The Democrats blocked a person of color for being a person of color.

          I think the Democrats owe the entire Court to Republicans.

      2. Brett Bellmore : “You know what would put off my kicking over the chess board? If you conceded.”

        You gloat over your hypocrisy and exult in your political hardball, then whine the Democrats are being unruly. Why the hell should anyone take your whining seriously? McConnell knew the consequences of his actions : Barrett after Garland means retaliation. He didn’t care. As I recall, you didn’t care as well.

        You smugly said it was constitutional. So is court expansion.
        You smugly noted precedences. True also for court expansion.
        You smugly said no one could stop you.

        Hey – that soon may be true for the Democrats as well. We’ll see how you like it.

      3. “Conceded?” That tells you all you need to know about what’s going on here.

    3. “What was done to Garland”…

      You got Borked. But in a much nicer way. Scales are even now.

      1. Bork involved members of his own party voting against him because of his views and past actions after a hearing. None of that happened to Garland. Also if Garland got “Borked” then a different and more acceptable nominee would have been chosen, but McConnell said he wouldn’t confirm anyone.

        1. Bork marks the beginning of increased political opposition to SCOTUS candidates. This was a major break with precedent. For there, it’s an escalation of precedent breaking over the past few decades. Both sides are equally responsible for this mess.

          1. Nope, DJK. Both sides are not equally responsible. Accurate allocation of responsibility awaits enactment by Democrats of the carefully titled, “Mitch McConnell Court Packing Bill.”

          2. Bork was defeated on the basis of his published statements. He was a radical nutjob, and lost on the merits.

            Stop mythologizing him.

        2. Obama tried to call McConnell’s bluff. He lost. If Obama had withdrawn his nomination, and submitted a different one, perhaps we’d have a different SCOTUS justice.

          1. He submitted one that several high profile republicans previously said would be acceptable. That’s partly why McConnell didn’t want to give him a hearing. Also he knew Obama would classically pre-compromise. If he thought that Obama was definitely going to pick a young progressive, he might not have stonewalled immediately so he could have hearings and have them lose the vote.

            1. But, he clearly wasn’t acceptable. So, perhaps Obama should’ve withdrawn Garland’s name, and picked another.

          2. This is a giant load of crap. Garland had been praised by many Republicans. His nomination could almost be seen as a compromise choice.

            But McConnell chose to kick him the nuts instead. I hope he pays the price.

            1. And Bork got Democratic votes. But in the end, he wasn’t acceptable.

            2. no bernard11, here I must disagree with you = But McConnell chose to kick him [Garland] the nuts instead.

              In my heart or hearts, I believe McConnell took the path that would malign Garland the least, in a toxic political environment. I really do. Senator McConnell chose not to subject Merrick Garland to a sick partisan sideshow, and there is no doubt in my mind that a sick, partisan sideshow would have ensued (at that time). By not taking up the nomination, Merrick Garland’s dignity remains unimpaired, he remains on the DC Circuit court, and he was spared being dragged through the mud for nothing. He would not have passed. Team R would have closed ranks.

              I was more sorry that he [Garland] was put through that mess, in the first place. No nominee from POTUS Obama was going to be put on the SCOTUS, no matter what. The toxic environment and the acrimony was just too great.

              1. I disagree, XY.

                First, note that you are saying something quite different from A.L., who claims, insanely, that a different nominee might have been confirmed.

                Second, I think Garland might well have been confirmed had he gotten a hearing and a vote. Several GOP Senators had previously expressed admiration for him, and he was as moderate a nominee as Obama was ever going to name.

                Third, please don’t claim that McConnell was acting out of the goodness of his heart by not dragging Garland through the mud. What mud? The only mud would have been slung by the GOP, and presumably McConnell could have prevented that, though he wouldn’t have, had he wanted to.

                Besides, isn’t that Garland’s decision and not McConnell’s? If he wanted a vote who is McConnell to deny him that in Garland’s interests?

                1. Second, I think Garland might well have been confirmed had he gotten a hearing and a vote. Several GOP Senators had previously expressed admiration for him

                  Sure, admiration for him over, say, Sotomayor or Kagan perhaps.

                  If you’re a Republican, you’re not going to just winningly hand the Democrats a 5-4 liberal-conservative majority on the court because you said the judge was fair in the past. First, that isn’t the same as saying you’d confirm him.

                  Second, even “maverick” John McCain was telling people he wouldn’t vote to confirm a Hillary nominee. What’s the difference between Obama’s last nominee and Hillary’s first nominee? Nothing–they both have the power of fundamentally altering the power structure of the Court, flipping it from 5-4 to 4-5.

                  https://www.npr.org/2016/10/17/498328520/sen-mccain-says-republicans-will-block-all-court-nominations-if-clinton-wins

                  1. So you disagree with A.L.’s claim that had Obama withdrawn the Garland nomination he might have had a different nominee confirmed?

                    OK. My main point was to explain that what A.L.’s said was stupid.

                    As to whether Garland would have been confirmed had he gotten a vote, we’ll never know. There was more than just “admiration” expressed.

                    Here’s Orrin Hatch, just before the Garland nomination:

                    “The president told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him. [Obama] could easily name Merrick Garland, who is a fine man. He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”

                    In effect Obama called the GOP’s bluff when they said they would support a moderate nominee, and showed them up fopr the assholes they are.

  9. Of course Josh thinks about this in terms of the potential political ramifications of the Court make-up and offers a “hot-take” on how Roberts should “rule” for Trump to help himself.

    Completely absent from this conversation is whether the Supreme Court is going to throw out federalism, and embrace newly emergent fringe theories to throw out ballots that eligible voters thought they timely submitted in reliance on the guidance from their state’s election officials.

    That’s what “Rule for Trump” means. It means Roberts (and the rest of the court) have to accept the ludicrous theory that they get to override state executive and judicial interpretations of state statutes and constitutions. It possibly even means embracing the even more insane theory that the count needs to be “done” and the winner known on election night. Which has never ever been true and was physically impossible in prior elections due to communications constraints and is physically impossible now due to the sheer number of votes legally cast.

    1. Except they haven’t done that, have they?

      1. Kavanaugh and the other three more-conservative justices have all signaled a willingness to do just that, and no one currently expects Barrett to disagree.

        1. Except Kav hasn’t necessarily done that, has he?

          1. They did with the Alabama curbside voting ruling. Also Wisconsin.

          2. Kavanaugh suggested in the WI case that the states needed to be able to announce winners on election night, and that this was a reason for throwing out legitimate votes.

            Now the GOP has filed suit in TX to throw out 100,000 ballots cast at curbside. We”ll see how that goes.

            Look, A.L. What’s going on here is clear. Republicans think Trump can’t win legitimately, so they are trying to win in a stacked courthouse rather than at the ballot box.

            They are effectively trying to destroy democracy in the country.

            1. What a silly argument.

              It’s exactly the same as claiming that Democrats know they can’t win legitimately, so they are trying to win in a courthouse by allowing fraudulent votes, rather than at the honest voting ballot box.

              All you have to do is define the events in opinionated terms that sound beneficial to you!

    2. The states have the right to set their election laws a reasonable time before the election. When they do so, it is the legislature that makes those laws. I am opposed to courts rewriting those laws immediately before the election. This is true whether those courts are state courts or federal courts. This says nothing about my commitment to federalism principles. Rather, it says that I take separation of powers seriously.

      1. If you want a federal court to overturn the decisions of a state court interpreting a state statute and a state constitution; the same state constitution that created the state legislature, that actually does say something about your commitment to federalism principles.

        1. When that state court blatantly misreads the state statute, there are real problems. When that blatant misreading offends the Constitution, SCOTUS is within its rights to step in. Last I check, the Constitution is still the supreme law of the land and still governs the states. I can think of plenty of Constitutional devices to justify overturning the state court’s blatant misreading. The 14th Amendment immediately comes to mind.

          1. “When that state court blatantly misreads the state statute, there are real problems.”

            Not the federal courts problem.

            “The 14th Amendment immediately comes to mind.”

            Not the argument being used.

            1. Not so long ago, “State’s rights” were more vigorously defended by the right than the left…

          2. And when the Supreme Court blatantly mis-reads the Constitution to impose a political outcome it prefers on the entire country, what’s to stop the states from simply disregarding its authority?

            State supreme courts have the final authority on matters of state law – as the federal courts have repeatedly already affirmed, by tossing out various remedies concocted at the district court level to try to smooth out the chaos of this election. You can think that they “blatantly misread the state statute,” but that is not a matter that any federal court can properly decide.

            The only justification anyone has cited for getting involved in state election law is a dubious reading of some constitutional text that entrusts the setting of elections to state legislatures. But this argument is extremely specious, transparently end-driven, and would give rise to a whole host of challenges to actions taken by state elections officials already during this season. (It would give plaintiffs a hook to block Abbott’s one-ballot-box-per-county rule in Texas, for instance.)

            The fact of the matter is that legislatures pass laws to determine the place, time, and manner of their elections; these laws must be signed by governors; and they must be interpreted and enforced by the courts and administrative agencies. And if some executive authority steps beyond the bounds of what the state legislature has permitted – by all means, sue. In state court. It is simply indefensible to invite the federal courts to decide these questions, or to automatically defer to the state legislatures on any question – what would, after all, express the legislature’s view?

            1. “what would, after all, express the legislature’s view?”

              A very well put question.

  10. LOL at Professor Blackman chilling in his home office on a Friday afternoon, wondering to himself “what can I do to stir up the VC to hold me over the weekend?”

  11. trumpski has no respect for, well anything, but the especially the constitution, so if he wins, whatever the SCOTUS does will be unimportant

    He does not need to pack it when he ignores it

  12. Here’s my deal for the Democrats.

    1) Democrats promise not to pack the SCOTUS by immediately adding new seats, then filling them with their own justices.

    2) Republicans promise not to pass the New Apportionment Act, which would set the minimum district size for representatives at 100 million people, with a minimum of one representative per state.

    1. So in your fantasy ultimatum, a couple hundred republican politicians are going to voluntarily put themselves out of jobs?

      1. Sure, why not? It just ensures GOP control, not just of the House, but also the Presidency…

        1. It would actually help Republicans gain control of the House, if they increased the number of members. Smaller districts would throw the inefficient voter distribution of Democrats into sharper focus.

    2. McConnell could have waited all of two weeks to confirm Barrett, if he wanted to deal with the Democrats.

      He doesn’t want to deal. I suspect that he’s hoping that, with Barrett confirmed, he won’t have to.

      1. In 2014, after Democrats lost the Senate, they rushed through over 25 District Court judges in the lame duck period…

        Democrats would’ve made more of a fuss later.

        1. I’m pretty sure the lame duck session in 2020 is going to put through 30-40 district court judges as well.

  13. What would forestall court packing?

    Perhaps a nuke dropped on a joint session of Congress with the President and Vice President in attendance?

    1. ETA: Next President and Vice President, based on current polls.

  14. Josh’s article seems to be based on the odd premise that the Chief Justice can control the direction of the court. That may have been true in certain controversial cases from the time of Justice Kennedy’s departure until now, because he was often the swing vote during that time. But in the wake of Justice Barrett’s confirmation, it is less likely that the Chief Justice will be the swing vote. His willingness to sign on to a dissent authored by Justice Kagan, Justice Sotomayor, or Justice Breyer would have no effect on court packing proposals, nor would his willingness to concur with the five other justices.

    1. The Chief Justice, as always the most senior justice, will always get to decide who writes the opinion that he vote with, thus he has much power to control how sweeping or narrow the decision is.

  15. I wonder what would happen to court packing if NOTA(None of The Above) won a majority in the national popular vote?

  16. While progressives have a lot of energy and get huge coverage, there aren’t that many real progressives. I suspect that at least some Democrats in Congress and more Senators would be very cautious of such a naked power grab. More importantly there could be subistantial backlash if controversial rulings were to come quickly.

    1. That’s true, but remember there will also be a backlash (frontlash?) if the court decides election cases in the Republicans favor by relying on bizarre legal theories.

      And this can happen even if Biden wins and they won’t change the outcome, because there will still be Senate and Congressional races to be decided.

      There is your court-packing scenario.

      1. That’s true, but remember there will also be a backlash (frontlash?) if the court decides election cases in the Republicans favor by relying on bizarre legal theories.

        What’s so bizarre about interpreting the meaning of “legislatures” narrowly, or in other words, forming a distinction between “courts” and “legislatures”?

      2. It is unlikely to affect more than a very few marginal cases.

  17. “probably a REVOLVING COURT as well”

    Those dastardly Democrats will set the court on a revolving turnstile. Justices will become so dizzy they won’t know what they voted for.

  18. The greatest mistake the Supreme Court could make, and the one most likely to lead to court packing or perhaps simply court bypassing, would be to pull another Bush v. Gore, stop counting of votes, and hand Trump a victory in an manner percieved as clumsy and unfair intervention.

    1. Absolutely right. It would not just lead to court-packing. It would be destructive of democracy and throw the country into unimaginable turmoil.

      And a few of the Justices seem willing to do it regardless.

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