Supreme Court

Why isn't Court-Packing Unconstitutional?

It is easy for originalists to reject challenges to court-packing; but the non-originalist arguments should be spelled out


My colleague Todd Henderson has an opinion piece at Newsweek arguing that court-packing—adding additional Justices to the Supreme Court, for the purpose of changing the Court's decisions—is unconstitutional. I don't agree with the piece, but it has already attracted a ton of criticism and that criticism deserves more scrutiny.

First, basic background. During the New Deal, Franklin Roosevelt threatened to pack the Supreme Court. But in the end he didn't. There is a scholarly debate about whether the Court changed course in response to the threat, and also about whether President Roosevelt would have prevailed if the Court had acted differently.

One remarkable document that emerged from that conflict is the report from the 1937 Senate Judiciary Committee, on which Todd relies, which argued at length that court-packing for the purpose of manipulating the Supreme Court was unconstitutional, because it violated the spirit of the Constitution and the separation of powers. Before you dismiss challenges to court-packing as frivolous, you should really read it. And these arguments appeared much more widely in the legislative debate at the time as well.

After I read this report, I found it disturbingly easy to imagine a judicial opinion invalidating court-packing (many of these points are in Todd's piece):

  • First it would talk about how in general Congress has power to structure the Court, but that under the long-established principles of the separation of powers, no one branch can be allowed to effectively destroy another.
  • Then it would argue that Congress has never before engaged in overtly outcome-motivated court-packing. (It's not clear whether this is true, but there's a respectable historical debate about the Civil War/Reconstruction era and other relevant moments, so the Court could say it with a straight face.)
  • Then it would note that the closest precedent was the New Deal battle over court packing, in which the legislative branch—dominated by a supermajority of the President's own party—responded with powerful constitutional arguments, which may have helped carry the day against the President.
  • And finally it could say that in the years since, the arguments against court packing have only become more powerful: We have an additional 83 years of practice in which court packing is seen as generally unacceptable. And we have the rise of explicit judicial supremacy in Cooper v. Aaron and many other cases, which place the Supreme Court at the apex of the interpretive hierarchy—a position it could hardly occupy if Congress could pack the Court.
  • (Who would challenge the legislation? Presumably any Supreme Court litigant has standing to raise the question of who is lawfully entitled to hear his case. Though in some ways the Court would have to confront the issue earlier, when deciding whether the Justices would cooperate in administering the oath, give the new appointees office space, and so on.)

Now I don't agree with this argument at all, and I don't think the Supreme Court should strike down court-packing, if it occurs. But I know why I don't agree with this argument, and I'm genuinely uncertain about why others don't.

So far as I can tell, there are three basic paths to rejecting this argument:

  1. The original meaning of the Constitution is our law, and under the original meaning, Congress's Article I powers allow it to set the size of the Court even if it does so in order to manipulate the Court's decisions.
  2. The original meaning is not decisive, but even so, there are no unwritten separation of powers constraints on Congress's legislation concerning the Supreme Court.
  3. There are unwritten separation of powers constraints on Congress's legislation concerning the Supreme Court, but court packing does not violate such a constraint.

I am an originalist, so point number 1 does it for me. But a lot of the people who reject this argument as frivolous do not accept originalism as decisive, so they must take one of the other two paths. Both of the other two paths seem plausible to me, but I think they would benefit from being spelled out.

For point number 2, if there are no nontextual separation of powers doctrines in this area, why not? And does that imply a rejection of other nontextual separation of powers doctrines, and if not what distinguishes them? This could be a very fruitful case study for understanding how non-originalists determine the validity of an asserted non-textual norm.

Or for point number 3, if court-packing complies with the nontextual separation of powers norms, why is that? One possibility is that court-packing is valid because it is a sort of "constitutional self-help," valid only because it is a form of necessary retaliation against supposed misbehavior by the Court. But if this is the theory, it would be quite arresting to spell it out, and it would imply that the validity of court-packing rises or falls on the charge of judicial misbehavior. I'm sure it is not the only possible form of argument number 3, but hearing the other arguments would be helpful, and would also inform the broader debates about court reform.

I am an originalist, and I do not think court-packing is unconstitutional. Non-originalists seem to agree, and I assume they have good reasons of their own for doing so. But those reasons are not obvious to me, and the constitutional debate would benefit if they were spelled out, with their implications.

NEXT: Today in Supreme Court History: October 31, 1963

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  1. Court packing is only unconstitutional if the new appointees pull a reverse Souter/Steven’s.

    1. At this point, the Supreme Court has lost any legitimacy it might have had. How did it lose it? Trump took it.

      ““If we win on Tuesday or — thank you very much, Supreme Court — shortly thereafter…” , Donald Trump at a campaign rally today in Reading, PA.

      They are his pawns. Failing to address this is just irresponsible.

      1. “the Supreme Court has lost any legitimacy it might have had. ‘
        That is a purely partisan nonsense statement that does a disservice to the rule of law.

        1. Sorry, but when the person who appointed one third of the justices declaims publicly that since he has his cronies on the bench that the fix is in for them to rule in his favor, it’s apparent that the court has no legitimacy.

          Maybe if Trump could have kept his mouth shut (good luck with that) there would be a reasonable claim of judicial independence.

          There’s not. Let’s not pretend otherwise.

          And “disservice to the rule of law”? That ship has sailed.

          1. Sorry, but when the person who appointed one third of the justices declaims publicly that since he has his cronies on the bench that the fix is in for them to rule in his favor, it’s apparent that the court has no legitimacy.

            Hoax, He said no such thing, as the actual transcript shows. Your fanciful interpretation of it shows you are suffering either from TDS or only watch CNN.

            1. Hoax, He said no such thing, as the actual transcript shows. Your fanciful interpretation of it

              Yeah, quotation marks may not quite be the best disinfectant, but they’re pretty damn close.

      2. The Democrats were calling the Supreme Court illegitimate after Bush v Gore 20 years ago.

        Trump has nothing to do with it – it’s just a non-Leftist majority on the Court right now, so it’s the Democrat’s turn to claim the Court lack legitimacy.

        1. “The Democrats were calling the Supreme Court illegitimate after Bush v Gore 20 years ago.”

          And rightly so. What kind of opinion states that it should not be used as precedent for future cases? Really, it’s one of the worst legal decisions of the century. This one (so far) or the last one.

          Let’s review: the GOP placed a majority of justices on the supreme court. That majority interceded in an election to seat a GOP president, who preserved the GOP majority on the court. Now three attorneys who worked on the decision have been rewarded with seats on the court.
          It’s a self-preserving system.
          And anti-democratic.
          And illegitimate.

          1. The court interceded to force the state to apply the law as written, preventing a 85% Democrat-appointed majority of lesser judges from repeatedly gaming the system through endless recounts (with different standards per county!) until their party won, and yet you blame the 7-2 bipartisan-appointed judge SCOTUS ruling on the GOP?

            Also, perhaps you should review why the ruling is considered limited in precedent – since, you know, the ruling explicitly explained it:

            Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

            There’s also the fact that Bush v Gore has been cited as precedent in other court cases, as recently as this week.

          2. You realize that if Gore had prevailed in Bush v. Gore, Bush still would have won the presidency?

            They did not award the presidency to a person. They decided which ballots could be counted. The ballots still decided the presidency. IIRC, Bush actually won by a larger margin if Gore prevailed.

            1. You’re discounting that, if Gore prevailed, and the count went against him, there’d likely have been some next step.

            2. Not so. You assume that had Gore prevailed and the count had gone ahead, the count would have come out the same as it did when the press counted the ballots later. But you forget that the whole point of the repeated recounts was to gain more opportunities to alter the ballots. I am fairly confident that had the Miami-Dade and Broward electoral officials been allowed to recount those ballots they would have found enough Gore ballots for him to have won.

      3. The “People” voted in an elected President.
        That President exercised the will of the People that elected him.
        The only problem is that there are too many sore losers in this country, if thing don’t go their way, they try and change the rules.
        Any President would have put forth a nominee, and saying otherwise is just a pure lie to ones self.

        ““If we win on Tuesday or — thank you very much, Supreme Court — shortly thereafter…”
        Apparently there are too many people without any sense of humor or common sense.
        It’s obvious that statement was made AGAINST the court for ruling AGAINST the President. ACB didn’t vote for the case on states to count ballots after the 3rd, so it was a 4-4 tie. Therefore the President is upset, and was being sarcastic that the Court didn’t back him up. I would think any liberal would be happy that Trump lost this case.

      4. Everyone, I present you with a quote taken out of context. It’s easy to spot. Just look for one where everything is clipped very short. Full quote below.

        You will have a collapse. So that’s our headwind. If we win — if we win on Tuesday, or thank you very much Supreme Court, shortly thereafter. If we win — let me tell you, if we win, you’re going to see a stock market that’s going to go like a rocket ship. 401(k)s — your 401(k)s — Thank you. Wow, this is a very enthusiastic group.

        Note he says “if”. He is not taking a win as a given.

  2. Ugh! Intellectually, I come out at #1 also = Congress’s Article I powers allow it to set the size of the Court even if it does so in order to manipulate the Court’s decisions. FTR…Boy it hurts to come out and write that.

    I personally think SCOTUS packing is a spectacularly bad idea, and it will reinforce and prove the aphorism…We truly deserve the representation we elect.

    1. +1 Theories that the Constitutionality/legality of an act depends on what’s in the heart of the actor are alarmingly non-judicial (and that includes the recent SCOTUS decisions re Trump’s EO’s).

      Ironically, these kinds of acts make it hard to defend against court-packing, as they show the Court is already a just a political actor.

      1. When you can reasonably predict the outcome of a charged case based upon the politics of the judges, we do not have a justice system.

        Its a political one.

        When you can predict whether or not charges are filed for crimes based upon the political orientation of the criminal, we do not have a justice system.

        We are squarely in Banana Republic territory now. The Democrats are just trying to make it official because they know they will become even more richer than they already are.

        1. Second Amendment remedies are coming, especially from those who are permanently unemployed because of the left’s policies. This country is heading toward a civil war. Not a moment too soon.

          1. Color me skeptical. Who would raise,arm, train and pay an insurrectionary force?

            1. You do realize that the conservative majority in this country has more weapons and ammunition than any armed force on the planet? And we all were raised to hunt, stalk, and kill from the time we could hold our M-16s? I was born in 1975. My father was barely into guns and hunting like many other father are. But I was taught to shoot a 12 gauge shotgun, a 9mm, a .44 magnum rifle, .22 caliber rifle, an ak-47, a mini-14, a British .303 Enfield, and many others, all before I was in kindergarten.
              And like, we went hunting like one time. Most other fathers I knew went hunting and their kids shot many more guns than I have. So yeah, when these people(not me, I’m a pacifist) are talking about a civil war, you’d better pay attention.


              1. Your dad was pretty hardcore, I didn’t get any gun training until middle school.

                1. Actually he was pretty mellow. I steady diet of pot does that. But yeah, He studied places like Afghanistan, so I guess he felt it was his duty to show us how to shoot.

    2. Intellectually, sure.

      But, as we’ve seen repeatedly, Roberts doesn’t rule on the law alone. He can be…persuaded…by political causes.

      What if Roberts viewed such court packing as extremely deterimental to the country as a whole. So, he ruled such a court-packing bill as unconstitutional (and got 4 other justices to support him).

      What would be the recourse?

      1. I think IF you believe the Court is capable of invalidating anything Dems pass (as court packing advocates claim) than you have to believe it is capable of this.

        (The actual truth, of course, is that the Court won’t invalidate anything Dems pass. But if you really thought it would, packing wouldn’t save you.)

      2. The problem is that Court packing IS constitutional, obviously so.

        The liberals on the Court will find politics and the law in alignment, and have no trouble voting to uphold the Court packing law.

        The conservatives will find politics and the law in conflict, but being the conservatives, most of them would go with the law.

        8-1, maybe 7-2, but it wins handily.

        1. So, why exactly is court packing constitutional? Under what authority does the US Constitution allow for Congress to change the size of the SCOTUS in order to affect its decisions.

          The Constitution has a number of provisions in it designed to prevent Congress from exerting undue power over the SCOTUS. Notably the clause about compensations not being able to be reduced. And there are a number of clauses that specficially refer to inferior courts and tribunals.

          So, I’ll reiterate? What specific authority, granted by the Constitution, allows Congress such power over a separate branch of government?

          1. Congress doesn’t need a reason. They just can.

            1. Actually, they usually do need a reason

          2. What specific authority, granted by the Constitution, allows Congress such power over a separate branch of government?

            “To make all Laws which shall be necessary and proper for carrying into Execution . . . and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Art. I, sec. 8, cl. 17.

            For the Supreme Court to be able to execute its constitutional powers, it needs an Act of Congress to set it up and fix the size of its membership. And any such Act of Congress, once enacted, can be amended by the same procedure that enacted it in the first place, should Congress determine that fixing the number of judges at 11 or 12 or 15 members is a better way to provide for the Supreme Cort’s exercise of its constitutional powers.

            1. So here, you get into a problem. And it’s the words “Necessary and proper”

              Is it “Necessary and proper” for Congress to write a bill that is designed just to change the composition of the SCOTUS, so that partisan legislation that would be ruled unconstitutional would now be ruled constitutional with the 4-6 new justices? Effectively eliminating the SCOTUS as an independent third branch of government.

              Is that type of action “proper”? Could some justices view such action as “not proper” , and use that as grounds to rule against such a bill?

              1. Let’s add on a key SCOTUS decision.

                1. Printz v US.
                Here, SCOTUS struck down a law, based on the proper clause of the necessary and proper clause, in regards to forcing state officials to do background checks. It was not proper because it did not respect the federal/state boundaries that were part of the Constitution’s background or structure.

                So, if Congress tried to “pack” the courts in order to overrule/eliminate the SCOTUS as an independent third branch, it would not be “proper” because it did not respect the Legislative/Judicial boundaries that were part of the Constitution’s background or structure.

                I think there’s a powerful argument to be made here, that a court packing bill designed for partisan aims could be ruled “not proper” under the necessary and proper clause, and be made unconstitutional.

      3. AL, I’m not buying the ‘CJ Roberts gets political’ line of argument. I never did. I do not see him as strongly outcome oriented in the sense of ideology. Everyone cites that ACA decision (National Federation of Independent Business v. Sebelius) as an example of ‘political’ when it actually wasn’t. CJ Roberts said quite clearly that the American people have to live with the electoral choices they make [e.g. you deserve the representation you elect].

        From what I have read about that decision, it was on rather narrow legal grounds. There are other challenges out there that have varying degrees of strength. The point is, CJ Roberts deliberately left the door open to further ACA challenges with his opinion.

        Now, is that political? No, not to me. Why, you ask? That decision effectively tossed the entire socialized medicine question back to where it belonged, the political branch. PPACA was a legislative monstrosity; the Legislature needed to fix it, not SCOTUS.

        1. Not political in terms of ideology, so much as in terms of preserving the power and independence of the court. In changing his vote and logic, in part, based on the political winds.

          And if Democrats threw down the gauntlet and tried to change the composition of the SCOTUS by court packing….Roberts might strike back, in a bid to keep the independence and power of the SCOTUS.

    3. It is a bad idea but the Republicans essentially invalidated the whole judicial branch by not allowing qualified democrats from sitting on it for the past decade or so, now the chickens have come home to roost. The dems will be well within their rights to pack the court this time around. When Rs started blocking judge appointments by Obama for no reason other than it was Obama, they broke the system. Now the dems have to break it further to get Congress to hit the reset button and in some checks and balances to appointments for qualified judges from both parties. Republican politicians right now do not understand fairplay at all and can’t think beyond what they’re having for lunch.

      1. It is a bad idea but the Republicans essentially invalidated the whole judicial branch by not allowing qualified democrats from sitting on it for the past decade or so

        I thought the only requirement for the judiciary was that it be full of qualified jurists, not necessarily registered, card-carrying Democrats or Republicans?

        1. The only requirement is that the president nominates them and the Senate consents.

          The current Court has been established entirely consistent with long standing norms based on separation of powers and with the constitution, but it makes progressives angry because if prevents them passing their policy goals, probably mostly because those goals are unconstitutional, and partly for reasons of political bias in the Court. Court packing would clearly violate norms, but not be unconstitutional from an originalist perspective. But if progressives succeed in packing the Court, they will see it as a win when it is really a rage-quit, but that won’t become clear until it is too late.

          1. Basically,, the dems are sore losers.
            I blame this on those ‘merit’ awards they started giving out to kids even when they lost.
            It was all downhill from there.

      2. the Republicans essentially invalidated the whole judicial branch by not allowing qualified democrats from sitting on it for the past decade or so, now the chickens have come home to roost. The dems will be well within their rights to pack the court this time around. When Rs started blocking judge appointments by Obama for no reason other than it was Obama, they broke the system.

        From which we deduce that you awoke from a deep and enchanted sleep in about 2009. Those of us that were awake prior to 2009, know perfectly well that Republican obstruction of Obama nominees was in relatiation for Democrat obstruction of Bush 43 nominees, which was in retaliation for Republican obstruction of Clinton nominees, which was retaliation for Democrat obstruction of Reagam and Bush 41 nominees. And the tradition has been continued by Democrat obstruction of Trump nominees.

        The Dems have been responsible for each significant piece of norm breaking along the way – starting the obstruction on the late 80s, filbustering judges in the Bush 43 presidency, and nuking the filbuster during the Obama presidency when the GOP followed the Ds earlier filibustering.

        The only norm that the GOP has broken along the way has been finally waking up and titting for Democrat tats. This must be accepted as unprecedentedly bad behavior by the GOP, whose traditional role has always been to suck it up without complaint.

      3. “essentially invalidated the whole judicial branch by not allowing qualified democrats from sitting on it”
        You do mean one white male.

        1. The Scalia vacancy and the Ginsburg vacancy must be considered in pari materia. There is no intellectually honest rationale for the disparate treatment vis-a-vis a pending election.

          Expansion of the Court is a just remedy.

          1. Do you believe that if the tables were turned – if the Democrats controlled the White House and the Senate – that they would have deferred the appointment until after the election?

          2. The delusions just keep coming.

            The reality is, everything that happened with Scalia, Garland, Ginsburg, and Barrett was totally and completely normal. If things had gone any differently, that would be the aberration.

            29 times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. In every case, 29 out of 29 cases, the President made a nomination.

            10 of the times, opposition controlled the Senate. 9 out of those 10 times, there was no confirmation, since the Senate was controlled by the opposition.

            The other 19 times, President and Senate were same party. 17 out of 19 times the nominee was confirmed. And the 2 that weren’t were special cases.

      4. Obama’s overall appointment success is no worse than most other presidents of the last 50 years or so. He attempted relatively few appointments. Most of them still succeeded.

      5. Wise Old Fool…There is no fool like an old fool.

        Here are the judicial stats under Obama, which are impressive.

        Two SCOTUS justices
        55 Circuit court judges
        268 district court judges
        A couple dozen article I, IV judges

        Sort of undercuts the ‘Obama got no judges through’ mantra. It simply is not true. His impact on the judiciary will be felt for a generation.

      6. When Rs started blocking judge appointments by Obama for no reason other than it was Obama, they broke the system.

        Oh, spare me. You must thnk history began on January 20, 2009. I’m sure the name Miguel Estrada means nothing to you.

        On the subject of Democratic obstruction of the confirmation process before Obama, see, e.g.,

    4. What do you think about packing state supreme courts?

      Just as spectacularly bad?

      Because I don’t recall hearing any squealing from the right when Republicans in AZ and GA did it.

      1. Doesn’t that rely on the state constitution in the examples you cite? I am not familiar with the AZ, GA state constitutions to say one way or the other, bernard11. I think that court packing to obtain ideological outcomes is just a bad idea in general, and a sign of civic decay.

      2. They expanded their state supreme courts. They didn’t pack them.

        The Georgia constitution of 1983 explicitly anticipated a future need to expand the then-seven-member supreme court, specifying its size as “no more than nine”. Any legislature between 1983 and 2016 could have done so, but they chose not to. In 2016 the legislature undertook a major restructuring of the judicial system, and included in that was the long-awaited expansion of the supreme court. The expansion did not change the partisan balance on the court, since it had been 14 years since the last Democrat governor, so a solid majority of the judges had originally been appointed by Republican governors.

        The Arizona expansion also happened when the existing supreme court already had a 4-1 majority of judges appointed by Republican governors. It’s hard to call that packing.

  3. “It is easy for originalists to reject court-packing; but the non-originalist arguments should be spelled out”

    Are you sure you didn’t get that backwards? Because I honestly don’t see how an originalist finds court packing to be unconstitutional, and, yes, I did read Henderson’s piece.

    It didn’t strike me as an exercise in originalism.

    1. oops! Darn double negatives. Just fixed it, thanks. Let me know if I missed another!

  4. “The original meaning of the Constitution is our law, and under the original meaning, Congress’s Article I powers allow it to set the size of the Court even if it does so in order to manipulate the Court’s decisions.”

    What is the evidence for that, except the kind of reductive reading that takes “Congress shall make no law” to mean something quite different than what the Supreme Court has ruled it to mean?

    Obviously, the courts needed to be bootstrapped when the country was founded, but it seems rather odd to think that the Founders would have thought a co-equal branch could be so easily subverted by the others.

  5. And we have the rise of explicit judicial supremacy in Cooper v. Aaron and many other cases, which place the Supreme Court at the apex of the interpretive hierarchy—a position it could hardly occupy if Congress could pack the Court.

    How could a Supreme Court decision place the Court at the apex, if the Court were not already at the apex? The argument on that point seems circular, or paradoxical.

    And that argument in itself fails to deal with intimations of legislative supremacy explicitly in the text of the Constitution—and not limited just to the power to set the size of the Court (more on that in a moment). There are also the powers delegated to Congress to limit the Court’s original jurisdiction, and the power to structure the judiciary below the Court.

    Also, for originalists anyway, the notion of judicial supremacy is a less natural fit than the notion of legislative supremacy. Considered in the context of the dual character of popular sovereignty—with persons being subjects of government individually, but jointly being the People, sovereign over government—an originalist interpretation of the Court as anti-majoritarian and pro-rights moves the focus toward an interpretation that makes the Court a tribune of persons individually, as the subjects of government. That leaves the will of the People as jointly sovereign to be expressed through the legislature.

    Finally, constituting the Court is unambiguously a sovereign power, and at least in the matter of the size of the Court, the People’s decree was that the legislature should have that power.

    Take all that together and you have an originalist argument for legislative supremacy over the Court.

    1. The People didn’t decree anything. But the slaveholding rapists who wrote the Constitution did decree it.

      In other words, while your interpretation is right, it’s racist to attribute a decision of the white rapists who founded this country to the People. Black people were People too, and nobody asked them what they thought of the Constitution.

      1. The Constitution was ratified by the states it wasn’t imposed by the Continental Congress.

        1. The states were controlled by all white legislatures too.

          This is just a great example of casual racism. We throw this term “the People” around as if Blacks and Indians didn’t exist. It erases Black people. We should get rid of the term and speak honestly about who actually imposed the Constitution.

          1. What were the average IQs of those blacks and Indians?

      2. Rapists? Even the women? The mind boggles.

        1. What women were involved in writing or ratifying the Constitution?

      3. Irrelevant ad hominem screed and little more.

    2. How could a Supreme Court decision place the Court at the apex, if the Court were not already at the apex? The argument on that point seems circular, or paradoxical.

      Yes, yes it is. But the people you need to argue with are the justices who decided Cooper.

  6. In your second bulleted point above: “Then it would argue that Congress has never before engaged in overtly outcome-motivated court-packing.” The clause “outcome motivated” is key. Most recently, the Republican Party has been engaged in outcome motivated court packing for some time. They are not changing the number of judges but they are engaged in restructuring the court(s) composition at all levels. By failing to move on nominations for judges (at all levels) under a Democratic president the legislative branch has surely violated the spirit of the Constitution and separation of powers.

    1. Oh gosh, party in power picks judicial nominees it likes. Film at 11.

      Do you seriously believe that Democrats have not done the same thing? Check your history books, son. Check your breath with a mirror and make sure you are still alive.

      1. Most recently, the Republican Party has been engaged in outcome motivated court packing for some time. They are not changing the number of judges but they are engaged in restructuring the court(s) composition at all levels

        While nobody was watching, courts got more liberal, so the Republicans realized the game, and began a decades-long march to pull things back their way.

        And now that effort is paying off. As some Democrsts said not too long ago, oh no, the Republicans have learned to weaponize our own techniques…against us!!!

        And, that having happened after a 50 year effort, the Democrats want to act offended and change the rules. I can guarantee the Republicans won’t take 50 more years to deal with this tit for tat.

        The correct answer is the court shod not be expanding government power. Expanding The People’s rights is fine, and in line with constitutional design. But granting government more control over business, when that is the core of the corruption impulse of politicians, is not.

        But even that’s beside the point.

        1. Krayt, not clear about that, “50 year effort.” Do you suggest that is something the Ds did to the trusting and innocent Rs? If so, the argument about, “The Ds caused this,” seems mitigated by the all-but-perfect coincidence that the so-called “Powell Memo” announced an R blueprint for politically mobilizing the courts on behalf of business, and a great deal more, in 1971. Here is Powell, just a few months before he himself was nominated to the Court:

          Neglected Opportunity in the Courts

          Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change . . .

          This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds.

          Powell sent his memo to, Eugene Sydnor, Jr., the Director of the U.S. Chamber of Commerce, in confidence. Of course the existence of Powell’s memo remained hidden during Powell’s confirmation process for the Supreme Court.

          1. You seem to have self refuted.

            Powell explicitly references a pre-existing activist Supreme Court.

            Tit for tat.

            1. Lee, it is not just about the Court. Taken as a whole, the Powell Memo is a shockingly cynical document. A few months after he wrote it, Powell landed on the Court, with the public none the wiser about the radical program he espoused.

              Look at changes in the way Republicans practice politics since 1971, and you find point after point which makes it look as if they followed the Powell Memo as a blueprint. Especially worth notice is that Powell make it unmistakably plain what he is after—political influence for business managers superior to anything available to anyone else.

              The Powell Memo amounts to an outright call to manage the nation as a business oligarchy. Republicans have for almost 50 years heeded that call, while apparently following the Memo point for point. By now, the Powell Memo ought to be a famous (or infamous) document, but remarkably few people even know it exists, let alone know what it calls for.

              1. Powell made it unmistakable.

            2. By the way, I’m not seeing the pre-existing part, although maybe you could infer it. You could also infer it as a suggested enhancement of the power to come. Or both. Which is what I take to mean.

              But tit-for-tat is a limiting strategy, to encourage cooperation. There is no sign of that in Powell’s almost insanely maximalist memo. He is explicitly calling for pulling out all the stops, to thwart the domestic communist menace.

      2. Correct.

        So how can one kind of “outcome-oriented” action wrt the court be perfectly normal and another suddenly unconstitutional?

        (Not that you are claiming that, but it seems like a major flaw in the argument.)

        1. For the sake of argument, if one action were oriented toward the outcome of “interpretation of laws consistent with the original meaning of the constitution as written, ratified, and amended” and another action were oriented toward the outcome of “facilitating policy goals without consideration for those goals’ consistency with the original meaning of the constitution as written, etc.” the actions would be different in a fundamental way.

          1. Ok, but I was thinking of specifically policy-oriented outcomes.

            For example, appointing Barrett because she will vote to overturn ACA.

            1. Ok, but I was thinking of specifically policy-oriented outcomes.

              For example, appointing Barrett because she will vote to overturn ACA.

              If policy-oriented outcomes was the goal, I suspect, and hope, that Barrett was a poor choice. Like Scalia, I think she will follow the law where it leads. Like Scalia, I think the law will lead her places she would prefer not find herself. And like Scalia, many will assume that her jurisprudence is policy-oriented simply because they don’t like the result.

              1. Really?

                Barrett was appointed to the appeals court just a few months after she published an article which criticized Roberts’ ACA opinion.

                Besides, you miss the point. It doesn’t matter how staunchly Barrett thinks she is just following the law. She was selected because her views of the law seem to produce outcomes that perfectly match what Trump wants, and that was known to her Federalist Society backers.

                It is the nomination that is outcome-based.

                1. Roberts’ ACA opinion on the individual mandate was mental gymnastics, where the legal analysis (if you can call it that) was driven by the foregone policy conclusion. She was right to criticize it. The individual mandate has been repealed, so how would her criticism of an opinion that is moot predict how she would vote on other legal issues?

                  The point is whether she will follow the law where it leads (by her philosophy if legal interpretation) or will she select a personal preference for the policy implications and rationalize it, as Roberts appears to have done? And as I said:
                  interpretation of laws consistent with the original meaning of the constitution as written, ratified, and amended


                  facilitating policy goals without consideration for those goals’ consistency with the original meaning of the constitution as written, etc.

                  are fundamentally different. But even if she were to do the former, she will be accused of the latter by those who dislike the outcome.

                  1. So if, as you suggest, she were to vote against the ACA as a matter of good-faith interpretation of the ACA and the constitution, then someone opposed to that ruling has more of a beef with the constitution than with Justice Barrett, or at least their beef with Justice Barrett is with her judicial philosophy.

                    I personally prefer a ruling consistent with the original meaning of the constitution, even if the resulting policy is not what I would desire. Just as I believe packing the court is constitutional, and shouldn’t be ruled unconstitutional even though I think it will potentially deliver a mortal blow to the republic as we know it, which I think would be a Bad Thing.

            2. bernard11, no one knows how Justice Barrett will vote. That will depends on the facts of the case before her. I think you will find her rulings to be narrow and circumscribed, over time. Let’s see what happens with the case later this week.

              If Justice Barrett asks any questions during argument, that will tell us what she thinks about a case.

    2. Are left-wingers even capable of arguing without trying to win by changing the meanings of words? The Republican party hasn’t been engaged in Court packing, they haven’t added even one new seat.

      1. I agree with you on this one, but Republicans do this crap all the time too. It’s a product of Frank Luntz and George Lakoff types who convinced everyone that magic words win debates.

      2. You’re assuming that adding seats is the only way to pack the court. And the last time the number of seats on the court was changed, the Republicans did it — they reduced the number of seats to ensure that Andrew Johnson would not be able to make any appointments. I know that was 150 years ago, but still, that is the most recent precedent.

        And don’t forget that the only reason we are having this conversation is that a lot of those “liberal” decisions you despise were in fact bipartisan — the Eisenhower, Nixon and Ford appointees, and later Kennedy and Souter, joined the Democrats. Because those decisions did in fact reflect the direction in which the law was evolving. But for the past fifty years, the far right has been engaged in a campaign to replace mainstream jurists with right-wing ideologues. Rather than allow the law to evolve in the same way that everything else evolves, the right wing determined to put the brakes on it and thrust us back into the 1930s.

        Well, this is not the 1930s, and the court we now have isn’t reflective at all of where most Americans are. And if you think most Americans are going to just suck it up and take it, think again.

        1. “You’re assuming that adding seats is the only way to pack the court.”

          No, he is assuming that court packing has a meaning, and it doesn’t refer to other practices that may be unfair and have the effect of shifting the balance.

          It’s like when conservatives say to liberals “you’re the real racists”. I mean, there’s a rhetorical flourish there, but no, advocating affirmative action programs isn’t actually what the term “racist” means.

          Court packing, like it or not, means adding justices to change the results of cases. Indeed, read the Senate Report- in 1937, FDR’s people argued the same thing, that they were unpacking the courts, not packing them, and the Senators point out why this doesn’t work.

          1. It’s like when conservatives say to liberals “you’re the real racists”. I mean, there’s a rhetorical flourish there, but no, advocating affirmative action programs isn’t actually what the term “racist” means.

            Well actually it is.

            But it presents the difficulty that there may be some kinds of racism that some of us do not deplore.

            What you are really urging us to do is confine “racism” to a usage that is restricted to “deplorable racial discrimination” and excludes “admirable racial discrimination.”

            Apart from sowing semantic confusion as to how to refer unclunkily to the practice of racially discriminating simpliciter, it imports a rorschachy element into the dictionary, whereby a word’s meaning depends on subjective matters to which it might refer. Your admirable racial discrimination may differ from somebody else’s.

            1. But all words are defined in part by their context. Yes, telling a convicted rapist that he can’t work in a high school girls dormitory is discrimination but it’s not the kind of discrimination that anyone cares about.

              And trying to fix racism may occasionally involve things that technically discriminate based on race, but that misses the point. It’s like arguing that incarcerating a kidnapper is technically kidnapping itself. Well, we define kidnapping in such a way that it doesn’t include incarceration. You have a problem with that?

              1. But all words are defined in part by their context

                A bold and mysterious claim. Select three words in the above sentence and illustrate your point.

                Yes, telling a convicted rapist that he can’t work in a high school girls dormitory is discrimination but it’s not the kind of discrimination that anyone cares about.

                Sure, but it’s still a kind of discrimination. Strictly, of course, it is a kind of discrimination that almost everybody cares about and thoroughly approves of. (Confirming that discrimination need carry no perjorative taint – whether we approve of it or not depends on the circumstances.)

                If you want to coin a new word to convey “OK discrimination” and another to convey “not OK discrimination” feel free. But leave the existing word that just means discrimination, OK or not, alone. Ditto racist.

                Let’s do “job.” Some jobs are good jobs, some jobs are bad jobs. But they’re all jobs. We use adjectives to qualify “job” to identify subsets of “jobs”. What we don’t do is deny that bad jobs are jobs.

                Or if we do, then we have merely redefined “job” to mean what used to be conveyed by “good job.” And we have lost our word for what used to be conveyed by “job” – ie {any kind of job, good or bad}; and it is unclear how we now refer to what used to be conveyed by “bad job”. Is it still “bad job” ? Introducing the peculiar concept of a “bad [good job]” ? Or what ?

                I have no objection to you extending the dictionary to coin new words for new concepts, or new words for old concepts that currently have to be described by a string of words. But stop trying to change the meaning of perfectly good words that have perfectly clear existing meanings.

                1. “Select three words in the above sentence and illustrate your point.”

                  All — does this mean every word in every language on earth, or merely all words relating to the subject that we are discussing? Either interpretation is plausible; context answers the question.

                  Words — does this mean words in languages spoken by humans, or does it include computer languages too? Does it include compound words, or only simple words? Context.

                  Are — does this mean I am talking about something inherent in the essence of the words themselves? No, the context includes the word “defined”, and we see that “are” is an auxiliary verb rather than the primary verb, which completely changes the meaning. We’re talking about what is being done to the words — they are being defined — rather than anything in the nature of the words themselves.

                  But that aside, here’s the root problem with what you’re doing. If I say that it takes me an hour to bake a cake, everyone understands that what I mean is it takes an hour if the oven doesn’t break down, or I don’t get interrupted for ten minutes, or I don’t discover that I’m missing an ingredient and need to run to the store. I don’t need to spell all that out, and anyone pedantic enough to ask me to spell all that out would be dismissed as a crank.

                  Likewise, when most people talk about racism, they are really talking about stuff that negatively impacts on racial minorities. Attempts to fix racism are not racism, even if they occasionally result in a white guy being disadvantaged. So stop being pedantic.

                  1. It is not pedantic to say that racism is discrimination based on race.

                    1. Sure it’s pedantic, and worse—after people catch on that you insist that taking note of race to fix problems consequent to bigotry is no different than causing problems consequent to bigotry. People get that you are just diagramming the sentence to yank it out of its meaningful context. They are also entitled to wonder why you would want to do that.

                    2. It’s not just racism because it’s literally discrimination on the basis of race. It’s racism because it’s justified on the basis of classical racist reasoning: That you don’t have to determine whether this black actually WAS discriminated against, or that white or Asian really did discriminate, because being black automatically makes you the victim, and being white or Asian automatically makes you the bad guy.

                      If you didn’t start from that sort of racist reason, you’d be looking at the actual life histories of the people you’re advantaging and disadvantaging, not just their colors.

                    3. Brett, suppose I am arrested for having sex with a 12 year old. In your opinion, should I be allowed to argue that this specific 12 year old is mature beyond her years, should be treated as an individual rather than as part of a group, and this specific 12 year old has the necessary maturity to consent to sex? Because that’s essentially what you’re arguing here.

                      There are some problems that require group solutions. It is not practical for the state to examine, case by case, whether a particular minor has the maturity to consent to sex or consume alcohol. It is not practical to determine whether in my specific circumstances it was safe to drive 80 miles an hour through a school zone. And it is not practical to determine, case by case, whether you, Brett Bellmore, personally benefitted from previous racial discrimination or whether the claimant personally suffered from racial discrimination. To the extent that racism is a problem that still requires addressing, it’s one of those things that can only be addressed at the group level.

                      And most of the people who make the claim that trying to fix racism is itself racism, are simply people who don’t want (or at least don’t care) that racism be fixed. You’ve got yours, so why should you care about anyone else? Maybe you’re an exception to that rule; maybe in your case your motives really are pure. To my knowledge I’ve never met you, so I can’t say. But that has certainly been my experience most of the time when I’ve had this conversation.

                    4. Most people want racism to be “fixed.” We differ on what “racism” and “fixed” mean.

                    5. “To the extent that racism is a problem that still requires addressing, it’s one of those things that can only be addressed at the group level”

                      Here’s what I don’t understand about your position: when people talk about ‘racism’, they rarely seem to be talking about racism qua racism. The evidence that it exists and is widespread isn’t usually that someone took a survey and found a lot of people saying ‘I don’t like blacks’. Instead, it is some economic measure – average income or net worth or something.

                      And the remedies reflect that – people aren’t proposing that we put up billboards saying ‘blacks are swell!’. The remedies are economic ones, like various flavors of affirmative action. But economic disparity is in fact one of those things we can easily measure on an individual basis.

                      When you’re doing college admissions, and are comparing applications from one of Herman Cain’s kids and from some Appalachian meth orphan, it’s not like we can’t make a guess about which of those kids has been dealt the worse hand in life. Saying ‘gosh, too hard to know who has faced the harder road, so we’ll take the Cain kid’ seems … like perhaps not using all the information at hand.

                      Or consider this:

                      “Even a small advantage in the contracting process for (for example) the State of Illinois puts you over the edge. Competitors without (for instance) the Woman or Minority Owned Business certification would have to underbid a certified applicant by 10-15% (it’s all a complex points system) to just break even. It got so bad so quickly that the regs were revised to permit a de minimis ownership (1%). Of course, several regulatory lawyers quickly made a business out of offering minority or women equity “owners” who would take 1% for a fee (just absorb how backwards it is to be paying a fee to have a 1% equity partner) with very restrictive shareholder agreements. Then it became obvious that you’d get points for the “women” and “minority” categories BOTH if you had a black woman as a proxy 1% “owner.” There was one woman who was a 1% owner of 320 firms.”

                      If you want to encourage socioeconomic mobility by helping small businesses, wouldn’t it make more sense to help them regardless of the sex or race of the owners? How does it help social equity to advantage a woman owned megacorp over a small business just started by an immigrant man?

                      If you want to fix economic disparities, fix them directly, rather than by looking at race or sex.

                    6. Absaroka, I’m actually not a fan of affirmative action; I’m merely arguing that it’s not racist. I would agree that if we are to have affirmative action, giving it to the economically disadvantaged rather than just based on race would make more sense.

                      I think think most people are not overtly racist, some of the commenters here notwithstanding. There are a few open racists. But the real problem with racism is the lingering effects from the days when there was a lot of open racism. Wealthy whites still benefit from the business and personal connections their grandparents made at a time when blacks were not allowed to make similar connections. White owned businesses grabbed a large market share a time when black owned businesses weren’t allowed to penetrate those markets. And if you’ve already made it around the Monopoly board twice and gotten most of the desirable properties, you can’t just say to those who haven’t even collected their first $200 to just catch up.

                      The second problem is subconscious racism, which I do think still exists, and which is harder to root out because people aren’t even aware of it.

                    7. “Brett, suppose I am arrested for having sex with a 12 year old. In your opinion, should I be allowed to argue that this specific 12 year old is mature beyond her years, should be treated as an individual rather than as part of a group, and this specific 12 year old has the necessary maturity to consent to sex? Because that’s essentially what you’re arguing here.”

                      No, in my opinion you should be allowed to argue that, the prosecution didn’t bother linking you personally to the supposed crime, or even that the supposed victim had personally been victimized. That instead the prosecution merely established that somebody, not their supposed victim, had been victimized years ago, and that you were of the same race as the long dead perpetrator.

                      See, the problem here is that you’re advocating helping specific individuals, and hurting specific individuals, on the basis of wrongs that you don’t bother demonstrating the beneficiary suffered, or the person you’re harming perpetrated.

                      How is this different from hearing that some white woman got raped by a black man, and then riding out and grabbing the first black man you see to hang?

                      “There are some problems that require group solutions”

                      Then why do you use as your starting example a problem involving a particular victim and criminal, and among your premises the actual guilt of that specific criminal?

                      “It is not practical for the state to examine, case by case, whether a particular minor has the maturity to consent to sex or consume alcohol. ”

                      But it’s damned well practical to examine, case by case, whether a particular minor actually was involved in sex or alcohol consumption, and examine, case by case, whether a particular adult actually engaged in sex with them, or provided them with alcohol.

                      Imagine you’re the prosecutor going into court with this case. You open your case by establishing that minors are sometimes subject to statutory rape. The defense then asks for your evidence that THIS minor was.

                      And your evidence is that they’re a minor.

                      And then the defense asks for your evidence that, assuming the crime actually happened, his client was in any way involved.

                      And your evidence is that his client is an adult.

                      That’s how your justification for racial preferences looks, if somebody who isn’t thinking like a racist evaluates it: You’ve demonstrated a wrong occurred, but haven’t bothered to get past demonstrating the beneficiary is of the same race as the victim, and that the guy you’ve designated to harm to permit the benefit is the same race as the perpetrator.

                    8. Brett: “Then why do you use as your starting example . . .”
                      Because the specific point I was making is that sometimes people have to be treated as part a group. You instead responded as if my point were that it’s OK to punish people for the misdeeds of others.

                      But let’s make it simple: You’re arguing as if reparations and affirmative action are about punishment. They’re not. They’re about restitution. This is civil, not criminal. And sometimes people do end up contributing to restitution even if they personally didn’t do it.

                      For example, if a corporation engages in bad conduct and gets hit with a billion dollar verdict, the people who are going to suffer are the shareholders. Even though most of them had nothing to do with the bad conduct.

                      If a police officer violates someone’s civil rights and the city gets hit with a million dollar verdict, it’s the taxpayers who are going to suffer, even though most of them had nothing to do with it.

                      And even in the context of crime and punishment, if a father is convicted of a crime and sent to prison, his children will suffer. Even though they did nothing wrong.

                      Does that suck? Yes. But so does the alternative, which is telling people who’ve suffered that they’re out of luck.

                      And I don’t even see your argument that it was years ago to be persuasive. The effects of bad behavior have been known to linger for a very long time.

                  2. I see your difficulty, you are confusing defintion with usage. Certainly a word’s usage varies according to context but not its definition. So “all” is defined thus :


                    But what it is all of depends on context.

                    And “racist” is usually used to refer to contexts in which most of us would deplore the racist’s behavior. But not always. The same – inconsistent attachment of value to a word – is true of all sorts of words – eg aggressive, compromise, tolerant, emotional etc.

                    Of course, in the case of “racist”, what you are really objecting to is the use of “racist” with its usual negative connotations to refer to behavior of which you approve. You would like to reserve the negatve connotations of “racist” for those examples that you disapprove of, but deny it to those examples of which you approve.

                    But there’s no reason why other people, who disapprove also of those examples of racist behavior that you approve of, should go along with your emotional preference for believing yourself not to be a racist.

                    And you still owe me a word that, in your lexicon, means what “racist” means in mine – ie discriminating on grounds of race simpliciter.

                    1. Lee, I see your difficulty. You’re a pedantic asshole. See, usage is nothing more than how a word is defined within the specific context in which it’s being used. So even though the distinction exists — usage is a subcategory of definition, just as German Shepherd is a subcategory of dog — it’s a so-what distinction. At least in this context.

                      So, do we have a separate words for good discrimination versus bad discrimination? Probably not. There are lots of concepts for which we don’t have words: to my knowledge, there is no special word for people who have scrambled eggs for breakfast, or for people who prefer wearing red, or for people who never eat dessert. Because none of those classifications is particularly useful, so nobody has bothered to coin a word for those concepts.

                      Likewise, we don’t have a special word for “good” discrimination, because it is understood that 99% of the time, when people say discrimination (or racism), they are talking about the bad kind. And on the 1% of the occasions in which they are talking about the good kind, it’s easy enough to figure that out. And so your attempts to create an issue where none exists is nothing more than a distraction away from trying to fix racism.

                      If you think affirmative action, or reparations, are bad ideas (as in fact I do), there are plenty of good policy arguments to offer. The only reason to make the claim that they’re racist is as a distraction.

                    2. Once you persuade people that racial discrimination is sometimes bad, sometimes good, your problem is that you’re arguing to one group, “Racial discrimination in your favor is good, and owed.” and you’re arguing to a second group, “Racial discrimination against you is good, and owed.

                      And, yeah, given human failings, the first argument is pretty easy. The second argument? Not so easy.

                      So, in practice, all you’re doing is creating unreasonable expectations on the part of the first group, and telling the second group, “Sucks to be you.”

                      This exacerbates racial tensions, and worse: Suppose you’re only halfway successful with the second group: Persuade them that racial discrimination can be OK, but fail to persuade them of your preferred victim hierarchy?

                      Congratulations! You’ve created new racists!

                    3. Brett, take the exact argument you made and apply it to the court system’s practice of making restitution to victims, because every one of them applies there too. We define armed robbery in such a way that it doesn’t include court collections, even though it sure uses the same methods. And it creates false expectations on the part of victims, a lot of whom aren’t going to be compensated. And it creates resentment on the part of people being made to pay restitution. So every one of your arguments applies with equal force to abolishing court ordered restitution for victims.

                      “but, but, but, in each of those court cases, the person being made to pay actually did something wrong.” Unless he didn’t. If I don’t get to inherit a house because it was sold to pay my father’s court debt, I suffer, even though I did nothing wrong. If my family barely subsists because 1/3 of my father’s wages are being garnished for court debt, I suffer, even though I did nothing wrong. And if you think none of that is going to cause me resentment, you don’t understand human nature.

                      Sometimes life sucks. It still beats the alternative.

                    4. “If I don’t get to inherit a house because it was sold to pay my father’s court debt, I suffer, even though I did nothing wrong. If my family barely subsists because 1/3 of my father’s wages are being garnished for court debt, I suffer, even though I did nothing wrong. ”

                      No, you don’t suffer, because you never had any right to inherit the house, or to your father’s wages. It’s his house and his wages, so it’s fair and just to take them away from him for his wrongdoing. Had they not been taken away he may or may not have chosen to give them to you, either immediately or after his death; he might instead have gambled them away or spent them on himself. That you know he would have chosen to give them to you doesn’t create any right of your own on them, of which you can say you were deprived.

                  3. “Likewise, when most people talk about racism, they are really talking about stuff that negatively impacts on racial minorities.”

                    Like hell they are. If that’s your definition of racism then tell me why the majority should be against it? It’s no longer a matter of principle but of whose ox is gored, so why should the majority care about the minority’s oxen? Especially if it comes at their own expense.

                    The majority oppose racism not because of whom it impacts but because they believe it’s wrong. And if that is so then it must be just as wrong no matter who is on which end of it. If you have a different definition in mind then you’re obtaining the majority support by fraud, which makes your entire program illegitimate ab initio.

      3. Court packing is only a problem if it’s outcome oriented though. And since we know outcome oriented actions are A Okay, then then court packing is fine.

    3. “Most recently, the Republican Party has been engaged in outcome motivated court packing for some time. ”

      You need to learn the difference between a metaphor and a factual statement.

      1. OK. Call it outcome-oriented appointment and confirmation procedures.

        It’s not at all clear what the point of the semantic debate here is.

        1. The point is that liberals are proposing court packing and need to defend that on the merits rather than trying to change the terminology.

          1. ‘court enhancement’ . . .

    4. Evidence they failed to move on judge nominations at all levels?

      Obama’s success rate at appointing judges is not out of line with other recent presidents. He made relatively few appointment attempts, but that’s his fault.

  7. Here’s a conundrum. What happens if Congress were to REDUCE the size of the court. But the constitution says justices terms are lifetime.

    1. See Andrew Johnson and Reconstruction.

    2. There is plenty of precedent for that. Congress can do that, but only by enacting that the seats of one or more sitting justices won’t be filled after they retire or die.

  8. The Supreme Court is just awful. It is a bunch of Ivy indoctrinated, bookworm, know nothing lawyers making national policy on complicated subjects. Ivy indoctrination is into a bias for bigger and bigger government tyranny.

    They are a catastrophe. They set off the Civil War. They supported racial discrimination, and delayed the vote for women, in violation of the plain, high school level English of the constitution. They set off our US mass murder in Roe v Wade.

    The word “all” is from first grade vocabulary. Article I Section 1 gives all lawmaking power to the Congress, and judicial review violates that clause. They just usurped that power, despite their lack of competence to do so. If you lawyers want judicial review, pass an amendment.

    No matter how conservative, all Justices adopt the degenerate culture of Washington, DC, after living in the area a short time. It is the rent seeking capital of the US. The Supreme Court should be moved to a more American, less disloyal area, like to the middle of the lower country, Wichita.

    If judicial review is to continue, the Supreme Court should have the size of a legislature, like 500. That would add the wisdom of the crowd as a tool, and attenuate its awful stupidity and incompetence. The number of Justices should be an even number to avoid 5-4 deicsion, devoid of moral legitimacy.

    Lastly, no one who has passed 1L should be allowed on the Supreme Court. All such people are indoctrinated into a criminal cult enterprise, with core supernatural and false beliefs. These came from the Catholic Catechism of the 13th Century. They make the lawyer profession lawless, ridiculous and really stupid. These beliefs have been given up, even by the slow moving Catholic Church, but not by the idiotic lawyer profession.

    These beliefs are tools for the Inquisition 2.0 besieging our nation. This out of control profession is the biggest, most powerful criminal enterprise in the world. It has totally infiltrated and controls the three branches of our government.

    These reforms require a Judiciary Act, not a constitutional Amendment.

    1. I didn’t read all of your insane rantings but Jefferson Davis and the South pushing for the 1854 K-N Act set in motion the events that led to the South throwing what amounted to a violent temper tantrum.

      1. It is a stale KGB argument to call dissenters insane. You cannot be a lawyer. I have no dispute with you. Have a blessed day.

    2. ACB went to my school Rhodes College in Memphis and Notre Dame.

      1. Well?

        You cannot just stop there. You have to give us the scoop.

  9. So the US Constitution says the legislature can set the size of the court. So what?
    The US Constitution also says our natural right to keep and bear arms shall not be infringed, yet it is infringed all over the place.
    he US Constitution also says our natural right to be secure in our persons and property is protected, yet asset forfeiture without conviction is rampant.
    The only question is will the people revolt if the court size is changed? The answer is no.
    So be prepared for a huge court and new states if the dems get a sweep.

    1. I have asked about “Congress shall make no law …” and “… shall not be infringed” and gotten the clever answer that, for instance, freedom of speech has always been understood as a phrase, which I believe the legalese is term of art but IANAL, and that phrase excludes libel, slander, military secrets, etc. Thus Congress doesn’t even have to make a law abridging freedom of speech, because it is already crippled. Same with the Right to Keep and Bear Arms: it does not include ex-felons, prisoners, babies, the senile, etc; therefore all Congress Critters need do is expand the envelope: obviously, “Arms” did not include nuclear weapons; nor cannon (oh but those were muzzle loading black powder cannon, not modern semi-auto and auto breech loaders), nor big scary calibers (oh those .75 and .69 and .58 calibers were antiques) and so on.

      1. I am literally more worried at the moment about a liberal court, paradoxically, allowing a reduction of the First Amendment by amlowing direct outlawing of hate speech (first hate speech to be outlawed, by their behavior regarding the tech giants: the speech of our political opponents, which is hateful, wrong, or dangerously wrong, whatever, please shut them up) than I am about this new court overturning Roe v. Wade.

        1. I’d agree. I’d throw on suppression of religious freedom as well, due to “emergency” situations.

          1. The Court already made the RFRA necessary, and then refused to allow it full effect. So it would really be a matter of more suppression of religious freedom.

            1. Well, we’ve got the Governor of New York locking Jews out of their religious houses of worship…. So…

        2. Either party, any party will converge towards tyranny when there is no effective political opposition. The end point is the same, no matter where they started from.

      2. Gun enthusiasts who deliberately conflate founding era, black powder arms with modern, semi-automatic, smokeless powder arms, do so to try to confuse the debate, not elucidate the issues. They know what they are doing. They do not deserve to be taken seriously.

        1. Personally, I think that your refusal to accept that the 2nd Amdt was intended to be technologically neutral is just as ludicrous.

        2. “Free speech enthusiasts who deliberately conflate founding era, printing presses with modern, high-speed printers, telephones, televisions, and internet do so to try to confuse the debate, not elucidate the issues. They know what they are doing. They do not deserve to be taken seriously.”

          No, it still sounds completely idiotic.

        3. Spoken like someone who never bothered to read any of the founding father’s comments on gun ownership and its importance.

          1. So, three replies. But none of them takes note of the point raised—the qualitative difference between founding-era black-powder arms and modern-era smokeless powder arms. That is typical, and it remakes the initial point. Gun enthusiasts who refuse to engage contrary arguments do not deserve to be taken seriously.

            1. We engage contrary arguments all the time. It’s just that 95% of them are made in bad faith.

              1. Now 4 replies and no engagement.

                1. The very first reply addressed your claim. The Second Amendment makes no mention of the technological levels of the ‘arms’ being protected. Any attempt to regulate based on the assumption that it does is wrong.
                  …And we’re done with your argument.

                  If you think that today’s semi-automatic smokeless powder weapons are so different that the Second Amendment no longer is adequate to handle regulating them, that’s great! All you need to do is amend the Constitution to “fix” the problem.
                  You’d still be wrong in your claim, but at least you’d have followed the correct process to change things.

                  1. Why should I need an amendment, Toranth? Scalia didn’t need an amendment to write the militia clause out of the 2A. On this topic, “Get an amendment,” isn’t good faith argument, it’s just a taunt.

                    Anyway, we can score 2 for you now—that is, 2 replies by you with no substantive engagement.

                    I’ll make it easier for you. I’ll give you something to quibble with. For what follows, use for context the notion of a deranged person shooting from a distance into an immense crowd. In short, the kind of violent public incident which gun control advocates worry about, and use to justify their advocacy. (That also happens to be a kind of threat to civil order which founding-era records never show tolerance for.)

                    I think, maybe mistakenly, that the usual effective range of a colonial-era, smooth bore, black powder musket was about 50 yards, if that. I think the effective range of a modern AR-15 type semi-auto rifle firing 5.62 mm ammunition is about 500 yards. Given A=πr^2, I suggest that makes the AR-15 not 10 times deadlier than the musket, as some might casually suppose after comparing the ranges, but more like 100 times deadlier, because it’s greater range commands that much more area than the musket does.

                    And it does not stop there, because of course the AR-15 delivers a rate of fire many multiples of what anyone with a muzzle-loading black powder musket could achieve. So whatever rate of fire you think the AR-15 achieves, bump stock or not, multiply that 100-fold increase from increased range by another multiple for increased rate of fire.

                    On that basis alone, and leaving stuff like ballistic energy out of it, the AR-15 is at least many hundreds of times more menacing than the musket. In a situation like the Las Vegas shooting, where the target was a crowd at 500 yards, the AR-15 was maybe infinitely deadlier, because of how unlikely it is that a shooter with a musket could have killed anyone.

                    I have read quite a bit of original source material from the pre-founding era, and more than most folks have from the 1760 –1789 interval. What I tell you know is not history, because I am speculating about what the founders might have done. But I am speculating on the basis of an earned sense of context. On that basis I speculate there is no possibility at all that any founder would have ignored that immense disparity in firepower between a colonial musket and an AR-15 type weapon. I think it is nonsense to suppose they would have gone ahead and written a 2A which decreed a right to an AR-15 for everyone who wanted it, to be used without regard to any military discipline whatever. To the extent that originalist interpretation relies on history, I suggest there is nothing in the record to support that notion.

                    I know you think otherwise. Let’s see an argument from you, based on colonial-era records, to support what you believe. You ought to do that, because if it isn’t there, then, “Get an amendment,” amounts to a pretty stupid demand, given there is nothing there which needs amending.

                    1. The argument that ‘the founding fathers wanted a world where the guys on top of Bunker Hill were necessarily much worse armed than the redcoats climbing the hill’ … seems pretty unserious to me.

                    2. Absaroka, not my argument. I’m mindful that the colonials were under military discipline. I have several times on these threads suggested that 2A supporters who want them should have access to fully-automatic weapons, for practice and use under military discipline.

                      Of course I am aware of the pretzels gun advocates twist themselves into to try to maximize freedom to procure arms of every kind, while minimizing requirements for discipline of any kind. I say that style of argument can’t be supported by any arguments sufficiently originalist to require citation of historical records.

                      By the way, should I put you down as another who refuses to engage substantively on the original question?

                    3. First, the ‘militia clause’, like other null value descriptive or introductory phrases, was not “written out”. It is simply does not modify the part that follows. It would take an idiot to assume that the Government needed to protect the rights of the Government to arm itself in case the Government wished for itself not to be armed.

                      Second, your analysis of modern weapons as more threatening than founding-era ones is generally correct, although wrong in a lot of details. Modern weapons are overall more deadly than most older ones.

                      It changes nothing: The Second Amendment does not mention technologies anywhere in it. This is the basic fact you have repeatedly ignored now. The text is clear – no where does it mention lethality, effectiveness, speed, or any other fact of the ‘arms’ to be protected.
                      If you attempt to claim that differences in these factors move weapons into to or out of the category of ‘arms’ protected by the Second Amendment, you need to provide some evidence of that. You have failed to do so – the mere fact of differences does not change it any more than new technologies for ‘speech’ are moved out of the First Amendment.

                      If you don’t like the fact that Second Amendment does not differentiate by technology, then you need to change the Amendment. Because that’s what the Constitution requires.

                    4. “I’m mindful that the colonials were under military discipline.”

                      Oh, pshaw. The vast majority of the colonials at Lexington and Concord self organized, and even at Bunker Hill they were using their privately owned arms. The government at Lexington and Concord wasn’t issuing arms, it was sending troops to confiscate them.

    2. It doesn’t take “the people” to revolt. It takes some small number of the people.

      1. Can one mandamus a civil forfeiture of tech billionaire assets?

    3. Add Civil Forfeiture to the list of Marshall Supreme Court outrages.

      The federal government was financed by seizures of goods from ships. Most of federal government financing came from them. Tough to arrest and try a person who traveled the seas. Grab their stuff easily, instead. It was a big business. It was a colonial grievance in the Revolutionary War.

      In Timbs, the Supreme Court said, taking a $42000 Land Rover for the crime of selling $225 in drugs was an excessive fine.

      It seems unfair, however, I would like to seize the assets of the tech billionaires for the billions of federal internet crimes committed on their platforms. They themselves defrauded advertisers with inflated viewerships. Most of their viewers are fictitious or bots.

  10. There are no non-originalists. Originalism is the only way any lawyers knows how to do law. There are only lawyers who respect the common law of the constitution, and lawyers who do not. But that distinction falls away when the question is a matter of complete first impression, like this one.

  11. Point one does it for me; legal but politically either very short-sighted or the precursor to dictatorship, pick your poison.

    But regarding point 3 …

    One possibility is that court-packing is valid because it is a sort of “constitutional self-help,” valid only because it is a form of necessary retaliation against supposed misbehavior by the Court.

    … Congress already has the self-help tool of impeachment.

    1. Supreme Court Justices should be impeached for their decisions by the elected Congress. No one cares about nitpicking, trivial corruption. It is their decisions that are dangerous, lawless, and devastating to our nation.

      1. 1) Learn to spell David
        2) It seemed impossible but we actually have a troll more unhinged that Kirkland.

        1. More personal remarks from a frustrated leftist, rent seeking, Democrat. Democrats cannot debate a subject. All they have have is personal remarks. The facts and logic abandoned the left 100 years ago.

  12. After SCOTUS is packed to the extent that there are more justices than members of Congress the justices can say, “You behave over there in Congress or we’ll come across the street and beat you up.” 🙂

    1. The three branches are not equal. Congress can fire and fund the other branches. It is the boss.

      1. Not if the Supreme Court beats them up and steals their appropriation money.

        1. I would like to see the lunch money of Nancy Pelosi taken from her. Her net worth went from $80 million to $120 million after she became Speaker.

          1. Pelosi first became speaker in 2007. Not bothering to check your numbers but a 50% increase in worth over a 13 year period would be a bit less than 3.2% annually. If that’s corruption she’s doing it wrong…

            1. I was speaking of her becoming Speaker of a majority Democrat Congress in 2018. Please, do no say, her husband is a talented business man. He was just as talented before November, 2018.

              1. Have a cite, by the way? Several websites list $120M as their net worth in 2018 and there aren’t any newer figures. The official disclosure forms of course only list a range.

            2. Did this blog misspell your name too, Jamie?

              1. Nope, it appears as was typed in…

  13. The courts are inevitably and inescapably part of the political universe. Only fully informed juries, acting as the 4th branch and the conscience of the community, term limited and without a dog in the fight (mostly) effectively operating as “constitutional actors” can inject apolitical reflection into law enforcement. The erosion of juries has undermined participatory democracy in the republic contrary to the role juries performed at the time of the founding. Reliance on judges to restore constitutional balance is illusory at best and juvenile at worst. It is in “we the people” that the best and brightest yearning for justice exists. Hence, restoring jury trials, including instructions as to their power of nullification, in all criminal and civil cases (above $20 in controversy) is the most American of solutions to depolarize law. Of course error will exist, but even judges err. But such error will be fleeting, subject to appeal (but for criminal acquittals), and term limited, unlike judicial malfeasance which can persist institutionally for decades. It is time to restore the people to their rightful role in the law.

  14. If nominated to be the 10th SCOTUS justice, who would accept? Who would want that place in history?

    It would have to be someone extremely political. Or a super gullible true believer in the Dems’ various bogeymen. Either way, not someone fit to serve.

    1. Elizabeth Warren?

      1. Nothing would say “this is no longer a court of law” louder or clearer than that.

        1. Because a devout handmaiden from the Notre Dame law faculty is superior to a leading bankruptcy scholar from Harvard? Or because a Trump-nominated judge from the clingerverse is superior to a United States senator from Massachusetts?

          Do you have your menu set for a nice Election Day celebration yet, Ben? May I suggest some Trump Steaks (completely cooked, but maybe ignore the expiration date and don’t run a DNA test on ’em), Texas toast, broccoli, and lots and lots of turnovers?

    2. If nominated to be the 10th SCOTUS justice, who would accept? Who would want that place in history?

      Stephen J. Field accepted the position and currently holds that place in history. Clearly it wasn’t that big of an issue, since you are not even aware it happened.

    3. Barrett accepted her nomination even though Republicans insisted very strongly that Americans deserved a voice in Supreme Court nominations in Presidential election years. She didn’t seem very concerned by the judgement of history from beneficing from lies and hypocrisy so I doubt very much a democratic appointee would either. She also didn’t seem concerned that she effectively participated in two Trump campaign events one of which got a bunch of people sick.

      1. Nor did she seem concerned that Trump announced that he picked her specifically to overturn the ACA, and hand him the election.

      2. And yet history will remember her nomination and confirmation as more-or-less the ordinary course of business when there’s a court vacancy. Because that’s what actually happened.

        Insane partisan derangement doesn’t last long enough for historians to be infected by it.

        1. You don’t read much history, do you?

        2. LOL! You haven’t seen the surveys on party affiliation in history faculties lately, have you? On average there are better than ten Democrats for every Republican. If you go to top tier universities, it’s pushing 40-1, and many of them have no Republicans at all.

          At this point, historians aren’t just infected with it, they’re well along in the process of purging everyone who isn’t a carrier.

          1. Yeah, but if you go to fourth-tier (and unranked) schools, there are plenty of Republicans and conservatives on the faculties. There may be a link between hiring conservatives and operating a shit-rate institution.

    4. It is a fascinating idea that if standing is easily established that SCOTUS with a 6 -3 majority can defend itself against being packed.

      1. It’s a fantasy, much like the fairy tales that gullible people seem to love — sometimes, believe it or not, to the point of believing them to be true.

  15. This just shows how close we are coming to the brink. I hope those that are driving us to that chasm take a nice long look into that darkness. Don’t assume you know what will happen when we go over.

    1. As I like to say, many people on here see court packing as a progressive win, but I think of it more as a rage-quit.

      1. I think the Left believes all they have to do is stack the power deck against the Right and problem solved. It was the pesky electorate who kept Hilary from assuming her entitled and correct position as out god-king and they must be punished for doing that.

        Of course, they are ignoring the sheer reality that you can’t disenfranchise around 40%+ of the population (if not maybe a majorty…we will find out in the matter of days) without some kind of really nasty backlash.

      2. It’s not so much a rage-quit as it is the first part of a finishing combo move. Once you’ve packed the Court, you can get away with all sorts of moves that an unpacked Court would never uphold. And some of those moves are political entrenchment moves.

        Remember, the left never accepted the CU decision, they thought it was an outrage that the Court wouldn’t permit political censorship. It’s on their short list of decisions to overturn, along with Heller.

        So, just for an example, don’t expect freedom of political speech, (Or speech in general.) to survive Court packing. The right will be defunded (Even private funds.) and silenced.

        Expect the Court to decide that gerrymandering is judiciable after all, and that any redistricting that doesn’t help Democrats IS gerrymandering.

        And there are all sorts of mischief Congress can get up to with “time, place, and manner”, if they’ve got a rubber stamp Court.

  16. Ok, non-originalists, at least on the court, also look at plain meaning of the constitution. Its not simply “make it up” … there is an element of that, but the plain meaning is still important.

    And the plain meaning of Article 1 is clear.

    It is like saying oh why do non-originalists still enforce the 35 age limit … because that is what the constitution directly says. There is no dispute there. The disagreements come when we have words that are unclear, and on can look at what those words originally meant or “make up” what those words mean based in precedent or tradition or something.

    1. It’s a question of where they’ve managed to move the Overton window to; There’s no principled reason they wouldn’t ‘interpret’ 35 to mean 30, it’s just not a move they think they’d get away with today.

      The words BECOME ‘unclear’ when they decide that they can get away with claiming they are. Not necessarily because they ARE “unclear”.

      The interstate commerce clause is perfectly clear, and that hasn’t stopped Congress from regulating things that are neither commerce nor interstate. They could put a 30 year old in the White House as easily if they thought they could get away with it.

      “35 years just means mature, it doesn’t have to be 35 literal years.” That’s how they’d do it.

      1. The people who would defend that are the same people who complained all the time that Trump violates norms.

        1. Who exactly is defending treating a 30-year-old as if he were 35?

          This is a paranoid imagining. It has nothing to do with reality, or with anything anyone has suggested.

          1. This is just what desperate bigots fantasize about when the glimmers of recognition concerning the reckoning finally begin to register.

      2. Brett,

        Must you absolutely always make the absolutely worst possible assumptions about those you disagree with?

        Are they all just in a conspiracy against justice, law, and reason, because, of course, you, Bellmore, are absolutely certain you’re right about absolutely everything?

        1. Having dealt with him for quite some time elsewhere, I take this is a rhetorical question.

      3. Well, now, if we allow a 13 year old to determine they are going to have life altering surgery, why can’t they have other privileges of adulthood like being president? If we just allow for inflation, 13 today is a lot older than 35 was then.

  17. Congress has never before engaged in overtly outcome-motivated court-packing.

    Not much of an argument on its face. Can nothing happen that hasn’t happened before?

    Anyway, if we can say Congress can expand the court, but not for political reasons, why can’t we also say the court can invalidate legislation, but not for political reasons?

    So now someone, (who? Todd Henderson?) can overrule the court if they find that the decision was political. Is that right? Because otherwise we’re letting the court “destroy” Congress, not to mention the Executive.

    “Pass something we don’t like and we’ll throw it out.”

    So pretty silly idea.

    BTW, isn’t Henderson the guy who once wrote an article about the extreme difficulty of living on $250K/year?

  18. In the FDR court packing debate something overlooked is the dual personality of the Democtatic Party of the time. Northern Democrats were largely big government machine politicians, while Southern Democrats were largely consertative segregationsts.

    1. If you define racism as conservative, then you still have to explain away the Southern Dems’ support of all sorts of New Deal programs – what form of conservatism were they upholding?

      1. Though the conventional wisdom is that there was a conservative turn, especially when FRD campaigned against the anti-court-packing Congressmen and they won re-election anyway in 1938.

        But conservatism is relative. I mean, Robert Taft supported public housing, I’m told triumphantly (good for him, I guess).

      2. The form that sees nothing wrong with getting government benefits for its supporters while decrying as socialist or whatever benefits for others.

        Think TVA, for starters. Think military bases. Today’s version is subsidies for farmers hurt by Trump’s idiotic trade policies, among other things.

        1. That definition would create a lot of conservatives.

          Indeed, if taking from some and giving to others, while denouncing the wickedness of those being taken from, is conservative, then conservatives form a supermajority, even in the Democratic Party.

          1. I agree with you.

      3. I said conservative segregationist. It is possible to be conservative without being racist, just as it is possible to be both progressive and racist.

        The Southern Democrats were willing to take the money while maintaining segregation, which New Deal programs generally did.

        1. The Southern Democrats were willing to take the money while maintaining segregation, which New Deal programs generally did.

          Yes they were.

          And today’s conservatives are just as happy to take the money.

        2. “It is possible to be conservative without being racist”

          This may be theoretically possible, but it has never been established in the reality-based world.

          1. I’d love to hear how Robert A. Taft ( who for years supported a federal anti-lynching law) was racist.

            1. I was referring to today’s conservatives, not those of yestercentury.

  19. Hmm. That’s an interesting argument, it’s against the “spirit” of the US Constitution. Let’s do a theoretical exercise.

    1. Congress is allowed to set the size of the House of Representatives, including the minimum number of constitutents per district.

    2. In theory, Congress could set the minimum size to 100 million people. This would result in there being 1 Representative per state. It would also substantially change the electoral college, with each state now being worth 3 EC votes.

    3. Would doing that be Constitutional?

    4. Hypothetically speaking, Congress could pass this shenanagin AFTER the actual Presidential vote, but BEFORE the states choose their electors. Once the electors were chosen, Congress could then revert to the normal number of Congressmen. Constitutional?

    5. Hypothetically speaking, Congress could do they same, but decrease the minimum district size down to 30,000 residents. This would massively increase the number of electors a state could choose (California would get ~1000+ electors). Then Congress could revert before the next election. Constitutional?

    I’d love to hear people’s opinions on the Constitutionality of all such actions.

    1. The effect of increasing the size of the House is I believe greatly over stated. It would for example increase the number of Repblican districts in California, including in Republican States.

      A similar effect would apply to the electoral colloge, it would increase the number of votes and reduce the influence of the Senate seats, but where the balance lies is not clear to me.

      1. The effect of massively increasing the size of the House would lead to a system where a “National popular vote” type system is made effective.

  20. Let’s hypothesize another point.

    Let’s say Congress does increase the court size via a bill, in order to nominate justices which will rule its way.

    What happens if the SCOTUS says that such a bill is unconstitutional? Just “Because”. Does Congress have any recourse?

    1. They can defund the Court. Yes, the Constitution says their compensation can’t be changed, but it also says no money can be drawn from the treasury without an appropriation. There are all sorts of petty and not so petty forms of harassment they can engage in.

      Most likely, though, the new Justices, who comprise a majority after all, just meet without the old ones, and overturn the ruling.

      1. So, in effect there would be “two” Supreme Courts, one of the old justices (who refuse to let the new justices in, saying their appointment was unconstitutional), and one of the “new” justices who say their appointment was completely constitutional

          1. Thank you, that’s an interesting link.

            What’s interesting there is the “old” judges ended up winning. And it makes a potentially interesting strategy.

            Roberts denies the new justices a seat. They have their “own” court. And things are tied up in court cases until a new Congress comes around. At which point they just revoke the “new” justices as not have happening.

    2. who makes the rules for court operation? Who says that the new justices have a vote. The current court (take a 5-4 majority) could create a rules of order that maintains that there are only 9 voting justices, whose voting positions are replaced by a junior associate justice who has been acting as intern to the 9 senior justices.

      1. Like Armchair says, you’d end up with “two” Supreme courts. The (Purely hypothetical, because Court packing being constitutional would be an easy win.) old one that was claiming packing was unconstitutional, and the new one that was fine with it.

        And since you need both Congress and the White House to pack the Court, guess which of them would have the rest of the government’s back? It wouldn’t be much of a contest.

        1. So Brett, as Cal Cetín pointed out, this situation has occurred before in Kentucky.

          It’s a very interesting read. In 1820 the “Debt relief party” gained control of the Kentucky Legislature and Governorship. They immediately passed legislation designed to prevent creditors from seeking repayment of debts in the courts.

          The Kentucky Circuit Court and Court of Appeals ruled this law violated the Constitution. So, the Kentucky Legislature tried to remove the judges, but didn’t have the 2/3rds majority needed to. The Governor supported the legislature in their efforts. So, Kentucky repealed the law that established the court of appeals, then established a new court of appeals with 4 new justices. The new justices firmly supported the debt relief party.

          The existing justices and Anti-debt relief party refused to recognize the new court as legitimate. Ultimately the old court supporters re-won control of the legislature in 1826, and all of the new court decisions were discarded.

          So, despite the support of the legislature and the governor, the “new court” lost the battle.

          This could happen again, with a court packing bill, designed to undermine the separation of powers.

  21. Congress in 1801 changed the number of Justices from the original six to five. It was done by the lame-duck Federalists Congress after they had lost the election. Reportedly the reason was to prevent incoming President Jefferson the opportunity to nominate a justice to the Court.

    The new Congress repealed the 1801 law and the number remained six justices.

  22. NAL so trying to catch up:
    I guess that originalists think that Article 1 grants Congress the power to set the size of the SC via either the “necessary and proper” clause or the “provide for the…general welfare” clause of Section 8. Is that right, and if so, do you further think that the question of whether the quoted criteria are met is outside the scope of judicial review?

  23. What about striking down court packing based on animus jurisprudence?

    1. Is being liberal or conservative a protected class? I honestly don’t know the answer.

  24. It’s constitutional, just not smart, because the next time the other party gains control over Congress and the Presidency, they can do the same thing, and eventually you wind up with a Supreme Court so large that discussions are unwieldy.

  25. I hope if Trump loses he does a scorched earth approach on the way out. Destroy everything you can. Pardon every terrorist and other federal criminal, put into place tons of ridiculous executive orders, and so forth.

    1. You hope that because you are a bad and sadistic person.

      1. You looking in the mirror?

        1. Flagged by accident

        2. Do you know what sadism is? It’s deriving pleasure from the pain of others. That’s what you do. You would love to see other people in pain. This is the trait of a bad person.

          When I look in the mirror, I don’t see a person who is happy others are in pain. I don’t see a person who wants to kill millions of people as part of my political beliefs. But you do see that person when you look, and it is bad.

          Just admit it: wanting to kill lots of people makes you a bad person. It is not justified under any acceptable system of morals.

          1. Liberals are bad people. I want them to suffer for their policies. Wanting bad people to suffer makes one a patriot.

            1. I’m a liberal. Do you want to kill and torture me? Would you do it if you had access to me and thought you couldn’t suffer legal consequences? Would you kill my family members who are liberals? What would you do with my nieces and nephews? Kill them to be safe or merely let them go through life without their parents?

              1. I have long advocated peaceful separation between the left and right into two new countries. But you people won’t let us leave. So if the choice is us living as chattel slaves to people like you, then yes, I’d rather you all be dead.

    2. Trump supporters seem to distill to bigots; superstitious yahoos; disaffected losers; and bigoted, disaffected, superstitious losers.

      And this collection of misfits and malcontents figured it would accomplish anything in modern America? What was to be next . . . movement conservative professors become the mainstream at strong law American law schools, or the Josh Blackmans become the popular students?

  26. Court expansion for packing purposes seems to be completely constitutional by the text.

    However, since the Founders included another serious flaw in the Constitution by allowing Congress to add states w/o even a supermajority of Congress, let alone a majority or supermajority of state legislatures (whose respective power in the Senate, EC, and to some extent the House is reduced by adding states), any court packing is easily reverted the next time the opposing party controls Congress and the Executive branch.

    (1) Congress either acquires around 40,000 unpopulated acres from a nearby country or, in exchange for a lot of money, convinces a state to agree to carve about 40,000 unpopulated acres (perhaps land that is already under Federal control such as a national park) off to create new states.

    (2) Congress then creates about 200 new states with identical constitutions. These constitutions give very strong landlord rights (eviction w/o notice, political tests allowed etc…) and a very limited government (an elected governor and a legislature consisting of one member — after all, these are very small states!) and strict voting rules (you must prove that you currently live in the state (i.e., one of those leased houses) in order to vote and have not been evicted by the landlord.

    (3) Congress then sells 100% of the land in each state to a trust – perhaps RNC Trust 001 through RNC Trust 200.

    (4) Each trust builds a few nice rental homes and also a state capital that is leased back to the state government.

    (5) Three of the rental homes are rented to carefully selected future US Senators and a Representative, another is rented to the future governor

    (6) Two or three of the homes are rented to the presumed next (first!) governor and the one or two members of the state legislature.

    (7) An election is held in each state with unsurprising results.

    Now, there are a couple of paths that could be followed.

    The trusts would, of course, now have complete power of the Senate, a good shot at electing the next President, and substantially increased power in the House so they could just keep the current US Constitution in place.

    However, that’s a bit risky due to not having complete control of the House or EC. So, since more than three-quarters of the state legislatures are now controlled by the trusts, the trusts have the power to completely rewrite the US Constitution however they please to ensure complete power forever (perhaps the President would be selected by the Senate and the House would be reduced to ceremonial duties only).

    Yep – all just as constitutional as, for political purposes, expanding and packing the court or adding PR and (part of) D.C. as states.

    Is this really a battle the Democrats want to wage? Limiting the filibuster worked out so well for them but that would look like a small misstep compared to this…

    1. ” Is this really a battle the Democrats want to wage? ”

      Blustering, all-talk conservatives who direct hollow warnings to Democrats when Republicans are about to lose their political relevance are among my favorite culture-war casualties.

      Win the election, clingers, or brace yourselves.

      1. Surely the Rev. doesn’t believe that a Republican electoral victory is possible. I mean, he’s been telling us for months about how Republicans need to prepare to open wider after November.

        1. Republicans appear to have roughly a 10 percent chance to take the presidency, a 25 percent chance at the Senate, a 3 percent chance at the House.

    2. Very clever. Retaliate by packing the Senate. We’ll make it to banana republic reputation one of these days.

    3. Minor detail; you have to get approval from the state “losing” ground.

      Article IV, Section 3, Clause 1:
      “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

      1. I covered that:

        (1) Congress either acquires around 40,000 unpopulated acres from a nearby country or, in exchange for a lot of money, convinces a state to agree to carve about 40,000 unpopulated acres (perhaps land that is already under Federal control such as a national park) off to create new states.

        as well as the alternative of buying 40,000 acres from another country if no state (presumably a dark red or dark blue state depending on which party is actually deploying this strategy) is willing to carve off 40,000 acres and cede it to the new states for a trillion dollars (although, competitive bidding would probably reduce the cost to well under that).Note that there’s really no requirement that the selling country be “nearby”, but it would be more convenient so Canada or Mexico would be obvious choices.Obviously buried in the vast US Code there may be hindrances, but a simple majority in the House and Senate, with the concurrence of the President, can eliminate those via legislation.

        1. Argh… No preview – there were a few line breaks in there (using the BR tag) 🙁

        2. The return of rotten boroughs. What’s not to love?

    4. “any court packing is easily reverted the next time the opposing party controls Congress and the Executive branch.”

      That’s why the next thing you do after packing the Court is rigging the elections. Which is a lot easier to do once you’ve turned the Court into a rubber stamp.

      “It’s a bad idea to point that gun at me. The next time our positions are reversed, I’ll be pointing a gun at you!”

      “No, you won’t. Because I’m going to pull the trigger, too.”

      1. They don’t even need to rig the elections. They just need to grant amnesty and immediate citizenship to all illegals, including Dreamers, and speed up the process of bringing refugees here.

        Once Texas flips, and if it doesn’t by 2024, it will by 2028, it’s all over. It’ll flip by 2028 even without any amnesty bill.

        That’s what’s so stupid about the hand-wringing about this election. Even if Trump pulls it off, at most it delays the inevitable by 8 years. Which gives people time to prep, but that’s about it.

        1. That’s why they’ve been so determined to get rid of Trump, rather than just wait him out: They managed to delay his deportation efforts through most of his 1st term, put odds are that he could in a second term deport enough illegals to stop the flipping process, and start rolling it back.

          The Democrats demographic replacement strategy is vulnerable to any extended effort at deportation.

          1. Right, but even deporting illegals isn’t enough if you’re still admitting 1 million, mostly Hispanic, legal immigrants per year.

        2. ” Once Texas flips, and if it doesn’t by 2024, it will by 2028, it’s all over. ”

          This is why I do not understand conservative belligerence. The desperation I understand. The acting as if there were a practical future for right-wing relevance in national politics I do not.

          1. Now you know why I want a race war.

            1. You want a race war because you are a murderous and sadistic freak.

      2. More paranoid ravings.

        1. Right? It’s not like despots fill the high courts of their respective nations with lackeys in order to consolidate power and quash political opposition!

          Oh wait, they universally do.

        2. The Dems have announced they intend on legalizing twenty million Hispanics. What is paranoid about stating that fact?

  27. Alternative 3 shoots itself in the foot. If Congress considers that the Court has judicially misbehaved, why doesn’t it impeach the justices responsible instead of just meekly appointing more of them?

    1. Even assuming that majority of the house would consider bad judicial rulings a high crime or misdemeanor, removal requires a 2/3 vote in the Senate. Adding seats by contrast only requires simple majorities in both houses and the President’s signature.

  28. I haven’t heard much from or about Todd Henderson, but every time he is mentioned he seems an out-of-touch, somewhat desperate whiner.

  29. Messrs Henderson and Baude are just doing a bit of trolling. There’s obviously no serious legal argument that packing the court is unconstitutional – there are only unserious political arguments.

    The point of the trolling is to remind us of the vast mountain of Supreme Court precedent that has been deposited over the decades by “living constitutionalism.” And what complete tosh it is.
    And what toshmesters its proponents are.

    Because the shoe is on the foot that it happens to be on, we can all laugh at how absurd is this completely made up out of thin air notion of the unconstitutionality of court packing. Nobody imagines that even one of the six in the 6-3 would entertain it for a moment.

    But were the shoe on the other foot, and the GOP were hedging their bets on whether they were going to correct the evil norm breaking, that had landed us with a 6-3 Dem majority on SCOTUS, with half a dozen new Justices, there’d be no laughter. “Serious” law professors and former judges would be writing papers just as silly as Henderson’s and would be applauded for it.

    Moreover there’d be an an excellent chance that this argument – that an actual constitutional rule against court packing has crystallised out of those ever fruitful penumbrae – would find favour with the majority of 6.

    1. You know, Lee, it’s interesting that despite all this, “the Democrats are awful, while the Republicans are the soul of integrity,” BS, it is Republicans who have packed two state supreme courts – Arizona and Georgia – for explicitly partisan reasons.

      So maybe get off your high horse, along with all the other right-wingers here who are so shocked at the notion of court-packing. It’s sanctimonious bullshit.

      1. Yeah, and Democraps appointed 5 judges to the Pennsylvania Supreme Court, who used that power to rewrite the electoral districts in a way that was beneficial to those Democraps.

        1. Of the seven justices of the Supreme Court of Pennsylvania, five are Democrats (each elected) and two are Republicans (both elected, although one was originally nominated by a Democratic governor in a regrettable attempt at bipartisanship or perhaps sympathy or pity after the clingers got swamped at the polls).

          Other than that, though, great comment!

      2. The point, bernard, which you missed, was not that Ds were wickeder than Rs (though, if only at the margin, they are.)

        It was that conservative judicial philosophy – ie the philosophy espoused by most judges appointed by R Presidents – deprecates departure from the text. While liberal political philosophy approves departure from the text – espousing the search for atextual sources, such as intent, purpose, the “spirit” of the law, “our whole experience” and the wisdom of Latinas.

        Consequently the plucking of rabbits from hats is way easier for liberal justices than for conservative justices.

        Of course it would be possible in theory for judges to be appointed who support liberal policies, but who favor conservative judicial philosophy; or vice versa. But in practice while there are no doubt a few of the vice versas (eg Alito and a number of R appointed district judges), there don’t appear to be any of the former. Which is a shame, since if D Presidents were offering up a few of the former, conservative judicial philosophy would have a chance of becoming bipartisan.

        (Absolutely nobody wants liberal judical philosophy to become bipartisan – least of all liberals who would find a politically conservative SCOTUS majority pursuing liberal judicial philosophy a very unpleasant shock.)

        This particular rabbit – the unconstitutionality of court packing – could never emerge from the hat of a conservative judge. Everyone would be able to see him stuffing the rabbit in first, in plain view. Whereas, with a liberal justice, not so much. Liberal judicial philosophy has a well developed repertoire of black capes, secret compartments, smoke and loud noises to distract the audience.

        This difference is because conservative judicial philosophy is much more constraining of judicial flights of fancy than is liberal judicial philosophy. And liberals celebrate that fact. The have a quite different notion of the function of courts.

        Which, of course, is where the music started. If one side is appointing judges to do the traditional judicial role of reading the words, and ruling, whether you like the anwer or not – and the other side is appointing members of a super legislature to cement liberal policies into the constitution, it’s hardly surprising if the appointment of justices becomes a political hot potato.

        1. Open wider, Lee.

          The wages of bigotry and backwardness are about to be reckoned.

          Clingers and Conspirators hardest hit.

        2. Lee,

          I don’t buy the sanctimonious BS about how conservative judges only rule in accord with the law, are constrained, etc. It’s a myth.

          Besides, what does any of that tendentious rant have to do with my point that the R’s are being giant hypocrites when they say they are absolutely horrified by the thought of packing a court to achieve desired outcomes?

          1. I don’t buy the sanctimonious BS about how conservative judges only rule in accord with the law, are constrained, etc. It’s a myth.

            I understood him to mean judges with a conservative judicial philosophy, which I understood to mean one that attempts to apply the law as written, interpreted according to its original public meaning. Which would mean they rule according to the law by definition.

            One could argue whether actual conservative judges exist, or debate how successful they were in applying their philosophy under particular circumstances, but the argument, which I’ve seen made here, is that if judges are not perfect, godlike beings without a whiff of bias then they must necessarily be cynical political operatives is a false dichotomy. I’m not saying that is your position, Bernard.

            1. Just so.

              The point is not that judges who espouse a conservative judicial philosophy are incapable of error, bias in favor of their own political opinions and other wickedness, it is simply that when they so stray, one can criticise them for being untrue to their espoused judicial philosophy.

              And it is hardly as if conservatively inclined judges have a reputation for stoic moral courage in the face of criticism. They seem to be very sensitive creatures. Many an earthworm has proved a doughtier fighter for his principles than the Chief Justice.

              Whereas with judges who espouse a liberal judicial philosophy, when they make stuff up out of thin air to cement their political preferences into law they are doing what they promised, admittedly rather shyly, to do.

              The calculation is simply this. Who is more likely to rob you of your property – the man who says he believes strongly in private property rights and in condign punishment for thieves; or the man who rails against all private property as theft, and who says looting is justified ?

              The first man may be a liar and a hypocrite, but then again he may not be. Whereas with the second man, well, you know what you’re getting.

          2. I am amused that you recently excoriated Brett for assuming the worst possible motives by anyone he disagrees with…

    2. Since those would would pack the Court espouse decision based on the purpose to be achieved packing is constitutional only if the present Court wants it to be. Period.
      If you live by the sword, you can die by the sword.

      1. “If you live by the sword, you can die by the sword.”

        Film next week, beginning Tuesday evening.

        See you then, bigots.

  30. I’m not an originalist though maybe three (Kavanaugh is being cited as a bad originalist this week but I don’t really count him as one; he is a conservative pragmatist from my viewing) on the Court say they are. So, #1 might be useful.

    I think there might be unconstitutional actions in respect to court expansion — for instance, if it is clearly done with the purpose and effect of being anti-Catholic. Or, done in some fashion so that it makes them unable to adequately do their work.

    But, I don’t see that here, even granting that. I think there probably can be some neutral reason tossed out there (let’s say one justice for each circuit) and at the very least this is a political question where Congress has an express power to regulate & should only be overridden by clearly self-involved parties for a very clearly invalid reason. IOW, even if there is a credible argument it is unconstitutional, it is not clear enough for the courts to strike it down.

    And, even if that “neutral” reason is not take seriously, the overall real reason is a valid defensive reaction to norm violations as well within the discretion of the Congress to regulate membership and jurisdiction even in such a way that clearly is meant to in some fashion influence results. This has been argued in more detail by various parties and this brief summary should not be deemed a full analysis of the point.

    This talk of “precedent,” though perhaps familiar to this blog (PPACA) or somewhat ironic (superprecedents and all are in the air) is misapplied. First, it is confused given history (1800, 1860s etc.). Also, a lot of water has gone under the bridge since the 1930s. As to some congressional report, there have been reports on various questions in various directions. At best, it’s an informative comment that should influence the conversation.

    And, again, a lot has changed since then. I speak as an non-originalist.

  31. The text and history of the Constitution indicates that the size of the Court is one of those details to be filled in by Congress. And Congress isn’t stuck with the size decision they made when the Court was first created (with six Justices, I think). And considering the circuit-riding duties the Supremes used to have on top of being on the Court itself, there would be every reason to keep the number flexible to accommodate the growing number and populousness of the circuits.

    1. I think there is general agreement that you could change the size based on workload. The question is can you change it based on a dislike for their decisions.

      Suppose President Ivanka Trump, is facing widespread public anger as Iraq War III drags on and more and more draftees are killed. In response, she issues a decree suspending elections, habeas corpus, and starts putting dissenters in camps because, you know, there’s a war on. The supreme court objects. She has her lackeys in congress expand the court enough that her decrees will be approved. Is that what the founding fathers envisioned when they had congress set the size of the court?

      Because that’s the court packing end game.

  32. Well if abortion is a constitutional right I don’t think it is too far flung to say you have a due process right to not have the courts stacked against you by politicians. Doesn’t seem that far fetched that being in our current f-d up world, not what most would consider “normal.”

    1. Well, if the constitutional status of the right to an abortion is entirely a creation of the courts, it’s hard to argue that there’s a due process right not to have later courts overturn the decisions constitutionalizing that right.

  33. Court-packing is constitutional, nut so is nuking an American city.

    The question is whether things have gotten to the point where nuclear weapons, weapons that would result in destroying the institution in order to save it, are the appropriate option.

    You don’t use nuclear weapons over an invasion of Korea. And you don’t use nuclear weapons and effectively destroy the Supreme. Court’s independence because a president you don’t like unexpectedly got to pick an additional justice.

    That said, a great deal depends on this Supreme Court being perceived as behaving judiciously in this election, and not being perceived as putting its thumb on the scales to steer the election to Trump.

    1. And you don’t use nuclear weapons and effectively destroy the Supreme. Court’s independence because a president you don’t like unexpectedly got to pick an additional justice.

      On the other hand, if the Court’s independence has already been destroyed, it’s a different matter.

      That said, a great deal depends on this Supreme Court being perceived as behaving judiciously in this election, and not being perceived as putting its thumb on the scales to steer the election to Trump.

      I agree with this, mostly, but the election cases will affect more than just the Presidential election. Suppose that Biden wins comfortably, so the challenges are moot as far as the Presidential election goes. They will still affect other races, for the Senate, the House, state legislatures, and so on.

      A series of pro-Republican rulings would, I think, be enough to get Democrats reluctant to pack the court to look on it favorably.

      And let’s be blunt. The GOP plan is to nullify as many votes as possible. In other words, it is a seriously anti-democratic plan to win elections in court. No one can seriously believe the various “fraud protection” arguments.

      So will the court go along with dubious arguments to help? So far the answer is that some Justices will. If the court does, you can fully expect court-packing, because the (accurate, IMO) perception will be that the court is not independent at all, but has become an arm of the Republican Party.

      1. If those votes being “nullified” were illegitimate citizens created by the 1965 Immigration and Nationality Act, sure, why not?

    2. No pro-Trump ruling in a post-election case that depends on the vote of Justice Barrett can be regarded as legitimate. Absent her recusal, Trump will have selected a judge in his own cause, contrary to due process guaranties.

      1. Why? What does Barrett owe to Trump and what threat does Trump pose to her?

        I’m quite certain that, given his personal life and her religious convictions, she considers Trump to be a immoral buffoon for whom she has little respect (although, unlike Ginsburg, she has properly kept her personal opinions to herself). She also certainly is an intellectual giant compared to Trump so she clearly understand what an intellectual midget [can we still use that term?] he is and surely has little respect for him in that arena as well.

        Trump is of no personal further use to her and, in fact, if he began to trash her opinions/votes that went against his interests it would help her “legacy” by showing early on that she’s not his puppet (although her legacy will be decided over the next 30-40 years, not by her actions in the next eight weeks so this factor wouldn’t be terribly important to her).

        Trump, even if reelected, can’t remove her from her lifetime position unless he can convince the House to impeach her and the Senate to convict her by two-thirds majority — a very unlikely scenario — so he poses no threat.

        Also, with the strong originalism and “conservative” bent on the Supreme Court now, it would probably be more useful to any agenda she has to get Biden (a.k.a. Harris) into office if Senate remains in Republican hands. That would likely result in (esp. if Harris ends up becoming the de facto President by late January 2021 even if Biden doesn’t officially resign until two years into his term so Harris can have a shot at a full ten years in office) chances to set precedents against the liberal policies before Thomas dies or has to resign due to old age or poor health and possibly be replaced by a progressive “living constitution” Justice.

  34. Roosevelt’s scheme was more complicated than, “let’s add x number of seats to the Supreme Court”, and therein lay the constitutional objections.

    FDR’s bill provided that IF a justice reached the age of 70, AND he had been on the Court for 10 years, AND did not retire, resign, or die within 60 days, THEN AND ONLY THEN would a new seat be created which the Presidency could fill. So, in theory, a justice could prevent expansion by retiring. There’s an element of coercion here by Congress and the President. “The Constitution says we can’t MAKE you retire at 70, but we can perhaps ENCOURAGE it.” Beyond that, you literally have one justice determining the size of the Court, rather than Congress. This gives rise to serious separation-of-power issues that a law merely adding seats does not.

  35. I heartily encoursge tossing legislation because of impure motives. Strict strutiny on everything!

    1. It’s that whole “improper animus” garbage. If the judge believes you have hate in your heart, any laws you pass or actions you take are illegal and unconstitutional.

      It’s also neat that the Left believes every policy and action the Right believes in is motivated by hate. We’re unconstitutional and illegal by default.

  36. On the contrary. Seeing as court packing requires the cooperation of both the executive and legislative branches, it follows that packing is a legitimate check on the power of the judicial.

    And the best argument is actually the one where the judicial branch set itself up at the top of the pyramid. How does one counter this except by changing the court?

  37. This post reminds me of the seemingly genuine beffudlement some religious folks express when they can’t understand why atheists don’t go around stealing anything that catches their eye or raping any woman who catches their fancy. The hypothetical non-originalist argument for the unconstitutionality of court-packing could sound plausible only to an originalist.
    The plain fact is that much of the Constitution is reasonably clear, and one need not subscribe to originalism to follow what it clearly says. The President must be 35, not merely “mature.” (Back when, people started their adult lives much earlier than they do today, so, if anything, the “maturity” argument would better support not letting someone under 50 into the job.) The Supreme Court has no prescribed size. It’s Congress’s call. End of story.

    1. “It’s Congress’s call. End of story.”

      It’s nice when there are simple rules!

      Let’s assume as true the notion that it’s settled constitutional law that the S.C. is the final arbiter of whether an act of congress is constitutional. We might state that as “It’s the Supreme Court’s call. End of story”.

      Congress packs the court. The court says ‘that’s unconstitutional’. Which of the two simple rules applies?

      I think it cuts both ways – clearly congress can pass laws that the court should properly strike down. I also can imagine congress taking acts that the court should leave alone. I don’t think there is a simple rule either way, if either takes it to extremes.

      If there was, congress could pass a law saying “We’re taking over, and the court and the president have no further authority”, or the court could issue a decision that “in the future, we’re making all the decisions directly, and removing the president and congress from the chain of command”, or the president could likewise dispense with the other branches.

      I don’t think blanket simple rules help in the decisions here; you have to consider why we divided power in the first place, and have some adherence to norms and cooperation for democracy to work.

      1. Of course we can imagine a court saying “it’s unconstitutional,” but that is a statement about the power of our imagination, not about reality. The reality is that, given the clarity of the constitutional text and the unchallenged history of previous size changes, the Supreme Court could not issue an opinion with appropriate, lawyerly-sounding language to justify striking down another Congressional altering of the size of the Supreme Court. It would have no answer that would pass the laugh test to “It’s Congress’s call. End of story.”

  38. Professor Baude,

    Could you help us better understand why you find “in general Congress has power to structure the Court, but that under the long-established principles of the separation of powers, no one branch can be allowed to effectively destroy another” unpersuasive?

    David Spaulding
    Downingtown, PA

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