The Eighth Rule of Court Packing is Win Large Majorities in Congress So You Can Pack the Court

I think we can safely postpone Court packing legislation till 2022, or more likely 2024.


As things stand now, the Democrats will have either 48, 49, or 50 votes in the Senate. In the best case scenario for President Biden, let's assume that the Senate splits 50-50. In that case, the Democrats would chair all the committees, and VP Harris would be able to break any tie votes. Practically speaking, legislation would still require some Republican votes to overcome a filibuster. And given this breakdown, the filibuster will almost certainly remain in effect. There are not enough votes to change the rule with the nuclear option. (Query if the VP could cast a vote to change a Senate rule; I think yes, but I'm not sure that it was done before). As result, the progressive trifecta is unlikely to occur till 2022, or 2024, at the earliest: D.C. and Puerto Rico will not become states, the lower courts will not be expanded, and the Supreme Court will not be "reformed." The states will remain at 50, and the Supreme Court will remain at 9.  Indeed, if Laurence Tribe is correct, then VP Harris would not even be able to cast the tie-breaking vote for any judicial nominees–or was his analysis limited to the Ginsburg vacancy?

Thankfully, I think I can put on hiatus my series of post on the rules of court-packing. (See Rules # 1, 2, 3, 4, 5, 6, 7). The eighth, and most important rule of Court packing is to win large majorities in Congress so you can pack the Court. Indeed, prematurely boasting about Court Packing may have prevented it from happening. Supporters of Court Packing have written that the incumbent Republicans in Iowa and North Carolina may have benefited from plans for Court Packing.

What comes next? President-Elect Biden said he would appoint his Court Packing commission "if elected." When does the 180 day clock start ticking? Today, when he accepted victory? When the electoral college meets? January 20? Stay tuned.

NEXT: Does Biden Have a Mandate? Should it Matter?

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  1. Laurence Tribe is correct, then VP Harris would not even be able to cast the tie-breaking vote for any judicial nominees–or was his analysis limited to the Ginsburg vacancy?

    Good ol’ Larry still gunning for a Supreme Court seat…actually, Larry might be the only lib palatable to Republicans, given the fact that he is likely to expire in a few years due to his age.

    1. Well, they’re probably going to Scalia one or more of the conservative justices so if Trump doesn’t win they will get at least one seat to fill.

      1. Which one do you think it’ll be? I don’t really think there’s a strong possibility of one of the remaining conservative justices who wasn’t appointed by Trump retiring or dying soon, but I guess it could happen. It really just comes down to Alito and Thomas, in my opinion. Roberts isn’t going anywhere.

        I can’t see Thomas voluntarily retiring. He loves his job and will likely serve until he dies, according to his friends. The passion he has for his job is evident in his dissents.

        Alito? I can’t really see him voluntarily retiring either, but then, he might be enough of a team player to “take one for the team.”

  2. This guy didn’t pay enough attention in civics class.

    Maybe too much time as a teen daydreaming about torturing brown people, dismantling the safety net, defending bigots from the ascending hordes of inclusiveness, and, of course, going head-over-heels with goo-goo eyes for that total cutie (and older sister of a classmate), Amy Coney?

    1. Has there ever been a time were you meaning contribute analysis to issue being discussed? 99% its just an absurd copy/paste ad hominem.

      Such a bore.

  3. Assuming the minor bookkeeping issue is resolved, there will not be a need to “pack” the court. If the old liberals do not resign to allow young liberals to move in as a longer lived majority, then a few heart attacks are no more difficult to arrange than suicides.

  4. The Commission is still a good idea, even though they obviously aren’t going to court pack. The nomination and confirmation process really is a shambles and I actually suspect that many conservatives and liberals agree about that, even if they disagree about solutions.

    So having a bipartisan commission air these issues out is not a bad thing.

  5. There are various matters for a judicial commission to examine other than court packing. It makes sense to have it and air the details. And, change like this happens over a span of time and a commission can help examine issues and produce findings that can be used down the road. You can continue jejune posts as you deem fit as well.

  6. Actually this is the 0th rule of packing the courts -“Win Large Majorities in Congress”.

    Also, if the progressives win sufficiently large majorities, they don’t even need to “pack the court” they can just pass constitutional amendments at the federal and state level and its not “court packing” any more.

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