Justice Breyer Warns Against Expanding SCOTUS (UPDATED)

A liberal justice throws cold water on a pet progressive cause

Associate Justice Stephen Breyer warned against expanding the size of the Supreme Court in remarks at Harvard Law School, reports Robert Barnes of the Washington Post.

Justice Stephen G. Breyer said Tuesday that proposals to expand the Supreme Court to dilute the power of its conservative majority risk making justices appear more political and could hurt the court's influence with the public.

In remarks prepared for a speech at Harvard Law School, Breyer wrote that the court's authority depends on "a trust that the court is guided by legal principle, not politics."

He added: "Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust." . . .

He said his intent in the lecture — named for the late Justice Antonin Scalia — was to "make those whose initial instincts may favor important structural or other similar institutional changes, such as forms of 'court-packing,' think long and hard before embodying those changes in law."

Justice Breyer also stressed that the Court's decisions, and the justices individual votes, are driven by their judicial philosophy, not partisan politics. (This is a point I also made in my recent testimony before the Senate Judiciary Committee.)

The Harvard Crimson reported on Justice Breyer's remarks as well. The lecture was broadcast as a Zoom webinar.

According to Barnes' report, Justice Breyer gave no indication as to whether he would be stepping down from the Court in order to allow President Biden to nominate his replacement.

UPDATE: The lecture video is now available here.

Note that the Supreme Court website has a page for speeches by the justices, but the text of the Breyer speech is not there. It appears that only Justices John Paul Stevens and Ruth Bader Ginsburg ever posted the text of their remarks on the Court's website.

Comments

[Martinned]

This argument was more convincing before Justice Thomas abandoned a lifetime of originalist principles to argue that the first amendment required that the government should punish Twitter for deplatforming conservative misinformation.

[Michael P]

That's not even remotely close to what Thomas wrote, and you should know it. I must have overestimated your reading skills.

[Martinned]

Sorry, I should have said.

If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude.

That's obviously very different. (Or at least it is now that conservatives have realised that companies can also influence the public debates in ways they don't like.)

[Armchair Lawyer]

I take it you don't agree that perhaps Twitter and Facebook should be subject to common carrier status, like Disneyworld, Fed Ex and Delta, and AT&T are?

[Martinned]

I think that it would be good to have a functioning system of antitrust laws, like the ones Justice Thomas spent the last few decades dismantling. (Last I checked, he wrote the majority opinion in Ohio v. American Express, which made it much harder to apply the antitrust laws to platform companies like Amex and, well, Twitter and Facebook.)

I also think that Justice Thomas is generally the last justice who you'd expect to be arguing for common carrier laws while handwaiving away the first amendment concerns. Discussing pre-1776 British case law doesn't really adress that issue.

[Brett Bellmore]

I think there's a serious question about whether the media platforms were acting as government agents in recent political censorship. If they did it on their own initiative, that's one thing, but if they did it to defend against anti-trust threats from members of Congress?

If a private business takes an action due to being coerced by the government, even informally, doesn't the 1st amendment start to apply?

[Martinned]

Hang on, when social media platforms picked a fight with the President, you're saying they were actiing as government agents? That's certainly a view, I guess.

[Brett Bellmore]

I'm thinking more of the massively increased censorship since the Democrats held their antitrust hearings. Like Trump being banned to the point where you can't even link to recordings of him.

The lesser censorship we saw before the election? I think that was just them doing what they felt like, or maybe auditioning for state run media status. But after those hearings it got absurdly worse.

[Martinned]

That still doesn't change the fact that you've got a government agent doing something the President very much disagrees with. If the President isn't the government, who is?

[Brett Bellmore]

The President has NEVER been "the" government. At most he's part of it. And a lame duck President is even less consequential.

[WuzYoungOnceToo]

If the President isn’t the government, who is?

Allow me to direct your attention to a little document we like to call the Constitution of the United States, wherein the answer to your rather silly question may be found.

[Martinned]

I guess that's something else that has changed now that there's a Democrat in the White House again: The President is no longer the embodiment of the state/country/government.

[WuzYoungOnceToo]

I guess...

Since you're demonstrating fundamental ignorance of the form of government created the U.S. Constitution it would appear that guessing is the best you can manage.

that’s something else that has changed now that there’s a Democrat in the White House again: The President is no longer the embodiment of the state/country/government.

As Brett pointed out, POTUS has NEVER been "the embodiment of the state/country/government". In fact you appear to not even understand what "the government" really means when it comes to a constitutional republic of states.

[bernard11]

What do you think of McConnell threatening businesses who criticize GA's election law?

[Brett Bellmore]

I don't think he's done any such thing. He has threatened businesses that start boycotting GA over them, though.

[bernard11]

Bullshit, Brett.

Try this:

In a statement earlier this week, [McConnell] argued that the Georgia voting law would in fact make it easier to access the polls and issued a warning to companies condemning the changes: If they continue to oppose Republicans and engage in “economic blackmail,” McConnell said, they would face unspecified repercussions.

“From election law to environmentalism to radical social agendas to the Second Amendment, parts of the private sector keep dabbling in behaving like a woke parallel government,” McConnell said in a statement. “Corporations will invite serious consequences if they become a vehicle for far-left mobs to hijack our country from outside the constitutional order.”

Funny, the only mob I've seen trying "to hijack our country from outside the constitutional order" was a right-wing mob.

So he's all for corporations in politics, as long as they write checks and advocate for Republican policies like tax cuts. But if they decide to use their influence to support things McConnell disapproves of, there will be "serious consequences."

Yeah. All about freedom of expression.

[Brett Bellmore]

" If they continue to oppose Republicans and engage in “economic blackmail,” "

Like I said, it's not "criticism" he's threatening retaliation for, it's boycotts.

He's right: Business is getting increasingly prone, not to criticism,, but actual economic attacks against democratically adopted policies. Boycotting states that don't submit to demands.

[M L]

"Corporations will invite serious consequences if . . ."

Nothing here says that McConnell is going to retaliate or work to bring about those consequences. It just states the natural reasoning that bad ideas and bad actions naturally lead to bad consequences.

[WuzYoungOnceToo]

Bullshit

There's no need to preemptively label the content of your posts. We already know what to expect from you.

[bernard11]

Right. When the Senate Minority Leader, who might easily become Majority Leader in two years, talks about "serious consequences," it's just general speculation. No threat implied.

[Brett Bellmore]

Oh, no, Bernard: There clearly was a threat.

I'm just pointing out it wasn't a threat in response to "criticism", it was a threat of consequences for engaging in boycotts.

Consequences for "criticism" are a pretty unambiguous 1st amendment violation. Consequences for boycotts? Not quite so obviously a violation.

In particular, some of the boycotts we're discussing here are secondary boycotts, which have even less constitutional protection.

[M L]

I think you meant to say, McConnell criticizing businesses who threaten the people of Georgia over requiring an ID to vote (and then make good on those threats and actually harm the people of Georgia).

[bernard11]

MLB didn't threaten the people of GA. They just moved the game as they are perfectly entitled to do.

[WuzYoungOnceToo]

MLB didn’t threaten the people of GA. They just moved the game as they are perfectly entitled to do.

Which, of course, in no way penalized the people of GA.

[WuzYoungOnceToo]

What do you think of McConnell threatening businesses who criticize GA’s election law?

Are you really such a simpleton that you don't understand the difference between criticism and punitive economic measures?

[Armchair Lawyer]

You have appear to avoided the question.

"I take it you don’t agree that perhaps Twitter and Facebook should be subject to common carrier status, like Disneyworld, Fed Ex and Delta, and AT&T are?"

Justice Thomas has never ruled that companies like these shouldn't be subject to common carrier laws. Nor even suggested it, to my knowledge (with the possible exception of amusement parks).

[Martinned]

I didn't avoid the question, I just left the major premise unstated. (Relying on the intelligence of my audience.)

If there were effective antitrust laws that applied to companies like Facebook and Twitter, they wouldn't have enough market power to be common carriers. The whole question would be moot.

[Armchair Lawyer]

But they do have that market power currently. So once again, I'll ask

Do you, or don't you agree that Twitter and Facebook should be subject to common carrier status, like Disneyworld, Fed Ex and Delta, and AT&T are?

[Martinned]

No, I think they should have a proper set of antitrust laws applied to them. Common carrier laws should be reserved for problems that the antitrust laws can't solve. (Aka natural monopolies.)

[Armchair Lawyer]

Delta isn't a natural monopoly. Nor is Fed Ex. Or AT&T currently for that matter. And all are subject to common carrier laws.

One could make the argument that Facebook and Twitter are far more "natural monopolies" (due to the enormous advantage of network effects) than many companies which are currently subject to common carrier laws.

[Martinned]

And I don't think common carrier laws should be applied to package delivery companies or airlines.

Of course, non-discrimination laws are a different matter, but those should be limited to protected classifications, which doesn't include political opinions, last I checked.

[Armchair Lawyer]

"And I don’t think common carrier laws should be applied to package delivery companies or airlines."

Wow.... That's a broad statement.

You appear to want MORE antitrust enforcement, but not any common carrier laws? That's a paradox...

[Martinned]

None of this would be an issue if it was easier for companies like Parler to jump in when Twitter and Facebook annoy their conservative customers. And it should not be beyond the wit of man to come up with a set of laws that prevent incumbents from creating massive barriers to entry.

[Armchair Lawyer]

You would think so. But common carrier status, again, would help greatly here. And is minimally invasive

You saw what happened to Parler. Big Tech essentially "shut it down". What laws would you propose to stop that from happening?

[Brett Bellmore]

The question is, what laws could stop that from happening when Big Tech knows the government has their back?. The answer is, "none".

[Martinned]

@Armchair: But the thing about that Parler story is that the cloud companies that refused to serve them (Amazon's AWS initially, and later Microsoft Azure and Google) are exactly *not* the ones that actually compete with them (Facebook and Twitter).

They're all Big Tech, but as long as they didn't collude I don't think there should be any law that stops that specific thing from happening. In that sense, this specific Parler story is a bad example of what we're talking about. They weren't pushed out of the market by their competitors, but by a bunch of companies in an adjacent market, none of which had enough market power (individually or together) to keep Parler out of the market. (Which is why Parler is back up and running as far as I know.)

[Armchair Lawyer]

"They’re all Big Tech, but as long as they didn’t collude "....

I mean...really? The timing of it all....

1. January 8th: Twitter bans Trump.
2. January 8th: Parler surges
3. January 8th: Google bans Parler
4. January 9th: Apple bans Parler
5. January 9th: Amazon Web Services drop Parler, breaking the contract.

From a strictly business position, the surge in data usage would be a bonus in income for Amazon. But it got dropped like a (insert racist metaphor of your choice here).

It's like as if...oh, some competitor to Amazon suddenly surged and then Google "delisted" them. I mean, seriously?

[Brett Bellmore]

Martinned, do you really think "You scratch my back, I scratch yours." makes collusion and antitrust considerations go away?

What's make them go away is that the collusion was favorable to Democrats, who currently control the DOJ.

[WuzYoungOnceToo]

Relying on the intelligence of my audience.

Give your ignorant "If the President isn’t the government, who is?" it's pretty clear that your audience isn't the weak link in the intelligence chain.

[Martinned]

I think it's probably the guy who describes the company arguing with the President as a "government agent".

[WuzYoungOnceToo]

I think

So you claim. Unfortunately, we've seen no evidence to support that assertion.

it’s probably the guy who describes the company arguing with the President as a “government agent”.

Do you not comprehend the difference between "are government agents" and "are acting as government agents"? Or are you being intentionally dishonest in misrepresenting what Brett said?

[Stephen Lathrop]

Armchair, I will jump in to say the notion that Twitter and Facebook can be analogized to Fed Ex and Delta, and AT&T is nonsense. Twitter and Facebook have publishing-based business models. The others don't.

Twitter and Facebook assemble an audience by offering expressive works for the public to read or not at its pleasure. Then Twitter and Facebook monetize that process by selling access to the audience to other businesses, who want to reach audience members by means of advertising. That is a classic publishing business model. It puts Twitter and Facebook squarely under 1A press freedom protections—protections which do not, and should not, apply to the business models of Fed Ex, Delta, and AT&T. (I leave Disneyworld aside as an ambiguous case.)

If they are tried, attempts to rein in internet communications giants by common carrier restraints will make a big mess. Look instead to finding ways to make the publishing market more competitive, by breaking the near-monopolistic power over ad sales the giants now enjoy courtesy of special government-created privileges, especially Section 230.

[Armchair Lawyer]

"Twitter and Facebook assemble an audience by offering expressive works for the public to read or not at its pleasure. "

That's not quite entirely accurate

Twitter and Facebook offer INDEPENDENT USERS expressive works for the public to read, or not. They act as a platform, a communication conduit. Not as a independent provider. They provide no pre-publishing editorial services and extremely minimal post-publishing editorial services. They act like a phone company or telegraph company or postal service...just a conduit passing messages from one party to the other parties.

[shawn_dude]

Twitter and Facebook provide a form of curation which tailors the information feeds for those individual users. They are only like a phone company if that phone company was able to route calls to you that it thinks you'd like to hear from regardless of whether the call was made directly to you or not.

There are internet protocols for the equivalent phone or telegraph services called SMS, Email, and Net News. These services aren't competing with Twitter and Facebook.

[Brett Bellmore]

"Twitter and Facebook provide a form of curation which tailors the information feeds for those individual users. "

I think in the case of Facebook, "offers" isn't quite accurate. "Imposes" captures it better; Most people who use FB would rather that FB stop suggesting things, or inserting them into their timeline, and just let them follow who they've chosen to follow.

Telephone companies don't stop being common carriers just because they profit off spam calls from telemarketers.

[Stephen Lathrop]

Armchair, being a, "communication conduit," is not what defines a publisher. Assembling an audience and monetizing it does define a publisher. It isn't an exclusive definition, but pretty much everyone who does that is a publisher. It is a definition you can count on to this extent—if that is what you do, you are a publisher. Some who conduct business otherwise may also be publishers, but those cases don't matter for this discussion.

By contrast, no publisher definition fits FedEx, for instance. If you reflect, you will realize that the difference I mention is what attracts you to those other models. They permit more regulation than constitutionally protected publishing does, and the regulation is what you are after. You want to call these publishing businesses something they are not, because that something will enable regulation. If it happened, the law would by analogy claim new scope to regulate other publishing businesses, which would be unwise.

I entirely sympathize with anyone who wants to get the internet media giants under control, but not by the, "common carrier," method, nor by any other method which blurs the distinction between publishing and other kinds of business activities. Break the media giants up as monopolies. Deprive them of the steroid-like growth juice they get from Section 230. But whatever you do, don't further imperil the already-shaky publishing sector by depriving it of independence from government in the way it conducts its operations.

[Armchair Lawyer]

"Assembling an audience and monetizing it does define a publisher."

By that definition the NFL and NBA would be publishers. I doubt anyone considers them that though.

[Stephen Lathrop]

Armchair, same idea with a Broadway play, which was one the exceptions which came to mind just after I pushed the fateful "no corrections" button, and realized I had left out the sale of advertising part. You caught me.

Stop trying to save the public carrier thing. It's just an attempt to authorize government censorship of the press. Facebook and Twitter are publishers. They have always been publishers.

[David Nieporent]

Assembling an audience and monetizing it does define a publisher. It isn’t an exclusive definition, but pretty much everyone who does that is a publisher.

Who knew that the Los Angeles Dodgers were a publisher?

[jb]

"I take it you don’t agree that perhaps Twitter and Facebook should be subject to common carrier status, like Disneyworld"

I think they should be held to the same common carrier status as Disneyworld, yes.

Please go to Disneyworld with a microphone and pamphlets on the topic of your choice, and let us know how it goes.

[Armchair Lawyer]

"topic of your choice"

But you've made a simple error there. Disneyworld is not in the business of selling a platform for speech. A common carrier doesn't have to carry something that isn't its business. Disney doesn't give a platform like that to anyone and so can deny everyone. Disney is in the business of providing amusement rides to people. And it can't deny someone just because of who they are. If Trump shows up, as a private citizen to Disneyworld, they can't say "Sorry, we don't let you in because...you're Trump".

Likewise, if you show up to Fed Ex and demand they transport you on its aircraft, it can deny you. That's not Fed Ex's business model.
But, if you show up to Fed Ex with a bunch of pamphlets to ship, they can't deny you based on the content of the pamplets

[Kazinski]

I never knew Thomas thought the civil rights act of '64 was unconstitutional, and advocated public accomodations laws and common carriers laws should be struck down.

I think the tension between declaring Trump's Twitter account on Twitters platform a public forum and content restrictions violate the 1st amendment, and declaring Twitters platform a private place with no restriction on censoring content worth exploring.

[DaivdBehar]

A Judiciary Act is needed. If the Supreme Court will be making laws, it should be the size of a legislature, like 500 Justices. It should be moved to the center of the continent, Wichita, KS, away from the degenerate capital of rent seeking, Washington DC, filled with tax sucking Democrats. Justices should have an even number, to avoid those 5-4 decision bringing so much damage to the nation. It should exclude anyone who has passed 1L from being a Justice, their being a dumbass.

[Martinned]

The German Constitutional Court being in Karlsruhe, 700 km away from the politicians in Berlin, hasn't stopped it from giving much more prescriptive judgments than even the US Supreme Court.

(The same goes for the South African supreme court in Bloemfontein, based on my limited knowledge.)

[DaivdBehar]

Marty. I would like to read more about your point of natural experiments elsewhere. Has the nature of the bossy decisions gone in a direction away from rent seeking and away from bigger government?

[Martinned]

The problem is that these courts were usually put where they are at the time they were founded, or at least at the same time as lots of other changes. That makes it a bit difficult to isolate the effect of putting the court at a distance from the capital.

(Incidentally, I should correct that South Africa's Supreme Court of Appeal is in Bloemfontein, but its Constitutional Court is in Johannesburg. For extra fun, the executive branch is in Pretoria and the parliament is in Cape Town.)

[Dr. Ed 2]

In the mid-late 1990s, several individuals active in the ANC and hence South African government were in my MEd program, where they were permitted to submit government documents in lieu of having to write the papers that the rest of us did. (Such was corruption of academic standards, but I digress...)

My conclusion was that they were every bit as racist as the Boers, and that this was just substitution of one racial minority for another -- particularly as African Blacks were (are) very much aware of the different races within what is *not* a uniform Black race in Africa. Sitting in the graduate seminar, I understood what was then going on in Rwanda.

Maybe (hopefully) the ANC has been forced to share power with other races and groups, but the South African government I saw described then was more of the Soviet Union under Stalin than anything that I would ever describe as a democracy.

And Stalin had courts too...

[Brett Bellmore]

"Justice Breyer also stressed that the Court's decisions, and the justices individual votes, are driven by their judicial philosophy, not partisan politics."

This is kind of a silly distinction to draw, when you were picked for a seat because your judicial philosophy reliably aligned with a particular party's politics.

OK, I'll accept that Breyer would likely vote according to his own principles, even in the odd case where they went against the party line of the day. But those are going to be odd cases, not terribly common.

Anyway, it boils down to, "How can we abuse the public's trust, if you end that trust?"

[Sarcastr0]

Come on, you know that ideology is not the same as partisanship.

Look at Breyer and criminal law, particularly sentencing, if you want him going against the party line.

[Brett Bellmore]

I didn't say that ideology was the same as partisanship. I'm saying partisans select judges and justices whose ideology is congenial, so ideology and partisanship are going to be indistinguishable 95% of the time. Functionally equivalent outside exceptional circumstances.

[Armchair Lawyer]

It's actually different though.

"Ideology" means you generally decide the same way on the issue, no matter who the party is.

"Partisanship" means your decision will change, based on the party.

They're actually pretty different.

[Brett Bellmore]

Sure, but if partisans aren't randomly ending up on one side or the other of issues from case to case, but instead line up systematically, the end result isn't going to be so different.

An ideological approach to gun control, for instance, is going to look just like a partisan approach, outside of outliers like the bump stock ban, because you're always going to have the same parties on the same sides.

That's why the Democratic party is associated with living constitutionalism, and the Republican with originalism: Because broad judicial philosophies reproduce political ideology on a wide range of cases.

[Brett Bellmore]

I'd add that the alignment between judicial philosophy and political ideology would be even more obvious, if it weren't for part of conservative judicial philosophy being respect for precedent, so that the conservative justices are reluctant to overturn bad (From their perspective.) decisions.

[Dilan Esper]

This is unmitigated BS. The liberal justices are far more respectful of precedent than Thomas or Gorsuch.

[Brett Bellmore]

Their own precedent, anyway.

[Dilan Esper]

No, all precedent. It is usually Thomas and Gorsuch issuing separate opinions calling for overturning precedents.

You can't on the one hand say that so much of what the Supreme Court does is wrong and then on the other hand say that conservatives aren't trying to overturn precedents. Of course they are.

[Bob from Ohio]

"trying to overturn precedents"

Not succeeding though.

[Bob from Ohio]

"liberal justices are far more respectful of precedent than Thomas or Gorsuch"

Duh, of course, they would. Almost all precedent since 1937 is "liberal".

How many major Warren Court precedents have been overruled?

[Armchair Lawyer]

"Sure, but if partisans aren’t randomly ending up on one side or the other of issues from case to case, but instead line up systematically, the end result isn’t going to be so different.

An ideological approach to gun control, for instance, is going to look just like a partisan approach, outside of outliers like the bump stock ban, because you’re always going to have the same parties on the same sides."

The real issue are the "outliers". Or the situations when suddenly the parties switch sides.

If you have a Justice who is committed to free speech, for example, that used to be a Democratic priority. Now, it is less of one. An ideological judge would continue to support free speech. A partisan judge would sway with the political winds.

[Dilan Esper]

The other issue is political salience of issues changes over time. This is why Frankfurter seemed liberal when appointed and conservative later. White too.

It wasn't that long ago that conservatives favored gun control and liberals favored gerrymandering.

[Brett Bellmore]

Liberals still favor gerrymandering. They've just started defining it in a tendentious manner, to avoid admitting it.

[Armchair Lawyer]

Liberals still favor gerrymandering, so long as it helps them.

[Martinned]

That sounds like a great opportunity to unmask Democrats as a bunch of hypocrites by proposing a constitutional amendment that fixes the gerrymandering problem.

[Bob from Ohio]

There is no gerrymandering problem.

You cannot make political processes somehow "neutral".

US states with "independent" redistricting are effective single party states, the "independent" commissions are controlled by the party which was in charge when they were created.

Democrats in California, for instance, did not create an "independent" process to increase GOP representation.

[Armchair Lawyer]

Democrats are already "unmasked" as a bunched of hypocrites in regards to gerrymandering. See Illinois and Maryland if you need explicit examples. I doubt a Congressional Amendment proposal will change any minds.

[wnoise]

> You cannot make political processes somehow “neutral”.

No, but you can make them more neutral or less neutral. You don't need to reach perfection to make it "better than now".

[wnoise]

It's not the same, but boy are there some striking correlations!

[bernard11]

I agree with Brett's point that "judicial philosophy" is strongly correlated with partisan politics. That makes it difficult, probably impossible, to distinguish between the two as motivation based on decisions alone.

OTOH, one thing we do know about judges is that they are human, so...

[Brett Bellmore]

Politics may go into the formation of judicial philosophy, but it may be that both are influenced instead by personal philosophy. In fact, I think that likely for all but total partisan tools, and none of the Justices are that.

I don't think that Breyer, Sotomayor, or Kagan, are ruling on the basis of politics. I don't particularly respect their judicial philosophies, but they're not a cover for raw politics.

The justice who comes closer to ruling according to politics is probably Roberts, but it isn't partisan politics for him, it's just an ill considered attempt to curate the Court's reputation, as he sees it, instead of just doing right by each case.

[bernard11]

I think Roberts does rule politically, but he is more a "long-term" Republican than a short-term partisan.

He's happy to help the GOP entrench itself - see Rucho and Shelby County, two badly reasoned cases - whenever he can. OTOH, he couldn't quite swallow the census nonsense, probably due to what you describe as an "attempt to curate the Court’s reputation."

[Stephen Lathrop]

Brett — Breyer, Kagan, and Roberts have some claim to judicial temperament. None of them is a particularly careful personal steward of that resource. It is commendable that Roberts is trying to be a careful steward of the court's legitimacy. Right wingers are fools to attack Roberts, who has been the most effective judicial supporter right wing politics has enjoyed since at least the early 20th century.

Thomas, Alito, Sotomayor, and Kavanaugh all come to every case with political priors so dominant that they really should be in some other line of work. (Kavanaugh is a full-on political hack, as shown by both his history and his performance at his confirmation hearing.)

Gorsuch and Barrett haven't yet had sufficient opportunity to show their judicial qualities. It's anyone's guess. My guess is that Gorsuch will turn out judicially-minded, but doctrinaire anyway. Even folks who agree with him will complain that he is too rigid. I'm guessing Barrett will show mostly good judicial temperament, but with ideological blind spots.

[WuzYoungOnceToo]

Kavanaugh is a full-on political hack, as shown by both his history and his performance at his confirmation hearing.

Are you referring to the confirmation hearing where the Democrat Senators involved were falling over themselves in an attempt to smear Kavanaugh? If so, is your definition of a "full-on political hack"...

"Anyone who expresses anger and outrage at politically-motivated attempts to smear their reputation and paint them as a sexual predator"

...?

[Stephen Lathrop]

Yup, that anger, outrage, and especially the explicit threat of partisan revenge—all of that should have been disqualifying. Crying, too. There shouldn't be any crying on the Supreme Court.

But of course there is more: Kavanaugh's participation in the Brooks Brothers riot; his hackery in attacking Clinton during that impeachment attempt; an utter lack of dignity and gravitas, demonstrated from college onward, which he failed to summon when it would have done him the most good, and defeated his adversaries. All of that is against him too. To back Kavanaugh, you have to have a miniaturized image of what a Supreme Court justice ought to be.

[Stephen Lathrop]

Justice Stephen G. Breyer said Tuesday that proposals to expand the Supreme Court to dilute the power of its conservative majority risk making justices appear more political and could hurt the court's influence with the public.

[Stephen Lathrop]

What Trump and the Senate did to the Court's reputation with the appointments of Kavanaugh, Gorsuch, and Barrett cannot be undone by leaving it at that.

It is worth noting, however, that Breyer himself is well positioned to make a small contribution to his own cause. He should resign at once. Otherwise, the trend toward lopsided politicization of the Court as a whole risks continuation—by happenstance in the Senate—with still more consequent erosion of public faith in the Court.

[Brett Bellmore]

Oh, come on. Those three were nominated in the normal way, as openings appeared, not were manufactured by creating seats.

You can complain about Garland not being confirmed, but, in fact, he met with the normal fate of Supreme court nominees in an election year, where the Senate is controlled by the opposing party. Not that common a combination of circumstances, but it has happened before, and such nominees are generally rejected, and usually by simply failing to act on them. So the seat was still open when Trump took office, and he nominated Gorsuch to fill it. The normal course of events, has happened over and over.

Barrett, by contrast, was nominated in an election year when the Senate was controlled by the President's party, and also met with the usual fate of such nominations: Confirmation.

And the only thing even slightly unusual about the Kavanaugh nomination was that Democrats went crazy and initiated a smear campaign in an effort to derail it.

[Dilan Esper]

Breyer should serve as long as he wants, and people should shut up about it.

[Brett Bellmore]

I'd agree with that.

I thought RBG should have retired sooner, but that's because she wasn't, medically, up to the job. She was visibly nodding off. Breyer still is up to the job.

[Stephen Lathrop]

Esper, would you still think that if it were an either/or? A Breyer resignation or a court enlargement attempt? The risk that Manchin will switch to the Rs looks to be on the increase.

[WuzYoungOnceToo]

What Trump and the Senate did to the Court’s reputation with the appointments of Kavanaugh, Gorsuch, and Barrett cannot be undone by leaving it at that.

The reputation of SCOTUS did not suffer one bit from those appointments...at least among those with higher-than-room-temperature-IQs who aren't partisan to the point of being psychopaths.

[Dr. Ed 2]

"...could hurt the court’s influence with the public..."

It would not only destroy it, but also legitimize the impeachment of judges (not just justices) who ruled in a way that the current majority dislikes. It'd be like Andrew Jackson and the spoils system every time Congress changed hands -- the wholesale impeachment of hundreds of Federal judges at all levels.

The precedent was established with Samuel Chase that we do not impeach for political reasons -- but between Pelosi's second impeachment of Trump and a Biden court packing, what would prevent a subsequent Republican majority in Congress (possibly as soon as 2023) from removing every judge, on any level, who ever ruled against Trump.

Sure it would be a partisan political process -- and that's the river that Breyer is (correctly) warning his side not to cross here *because* -- already crossed -- there'd be nothing stopping the Republicans...

[Brett Bellmore]

" but between Pelosi’s second impeachment of Trump and a Biden court packing, what would prevent a subsequent Republican majority in Congress (possibly as soon as 2023) from removing every judge, on any level, who ever ruled against Trump."

The requirement for a supermajority to convict, that's what. Notice that they impeached Trump twice, but convicted him zero times.

[Martinned]

The last thing the US needs is to have lots of impeachment proceedings against judges that end up just as blatantly partisan as the Trump impeachments were.

[JohannesDinkle]

Senator Mazie Hirono has presented the Progressive view of the court and law in general by defining the role of SCOTUS as expanding Progressive agenda. If the court will continue in just ruling on cases in view of the law instead on 'breaking new ground' then it must be changed.
Probably the main reason we all say the January 6 riot was an insurrection - albeit an unarmed one - was that mostly middle-class white people acted out. They are supposed to take it as it comes, unlike the people of color and white radicals who had mostly peaceful demonstrations that created about $2 billion in damages.
If those old white folk lose faith that the law can be understood by common folk and is predictable then we could get something truly awful, like tax boycotts and civil disobedience by those we depend on to stay quiet and go to work.

[Krayt]

Next thing you know, we'll repeal drug laws, impacting the hard worker bees needed for a strong economy as defense against communists.

[Dr. Ed 2]

"we could get something truly awful, like tax boycotts and civil disobedience by those we depend on to stay quiet and go to work."

Watching the hysteria with which the left responded to what I still consider little more than a drunken frat party run amuck, I think that they are convinced we are on the cusp of something like this.

I'm not sure that they are wrong.

[Brett Bellmore]

I think at this point they're still actually more worried about their own extremists. They just have to say it's rightwingers they're afraid of, but they know quite well which side is more violent.

[raspberrydinners]

The ship sailed on SCOTUS being nonpartisan with the appointment of Kavanaugh and Coney-Barrett, particularly with HOW they were seated and the arguments for each.

It's not SCOTUS's fault (rather Republicans') but that's the way it is. If Dems had sense they'd just pack it. Republicans aren't gonna play nice so why should they?

[Martinned]

Because then they'd be saying the quiet bit out loud...

[Brett Bellmore]

"HOW they were seated"?

What was unusual about how they were seated? People were nominated to open seats, and were confirmed. As I pointed out above, nothing unusual except for Democrats deciding to try a smear campaign against Kavanaugh, and experimenting with a religious test in the case of Barrett.

[Dan Schiavetta]

It was in fact quite unusual to keep a seat open until a Republican Administration arrives to fill it. And they did this not just with the Supreme Court.

[Brett Bellmore]

We've been over this before: If you look at the historical record, no, it was NOT unusual.

It's unusual for a Supreme court justice to retire in an election year, where the Presidency is held by one party, and the Senate by another. I mean, obviously, because there have only been 115 justices over the course of more than two centuries, such highly specific circumstances won't happen often.

But when that has happened, they don't get confirmed, and the nomination is usually ignored. That's what history says happens.

[Rev. Arthur L. Kirkland]

The size of the Supreme Court has changed a number of times. Another revision would be entirely consistent with the spirit and letter of the law, conducted in scrupulous compliance with precedent.

There would be plenty of Republican wailing, but why should better Americans care about that? Republicans have used power (to preserve and advance stale, minority views) when they have had it; they should not be surprised when Democrats use legitimate power to benefit and effect the preferences of most Americans?

[Don Nico]

"ship sailed on SCOTUS being nonpartisan with the appointment of Kavanaugh and Coney-Barrett,"
That is partisan nonsense and nothing more. Kavanugh was treated poorly by the Senate D's with a 30 year old smear by a person who lied twice in her testimony. Coney-Barrett was RGB's fault for not retiring during the early days of the Obama second term.
You might equally well have said that the ship sailed with Sotomayor.

[bernard11]

You might equally well have said that the ship sailed with Sotomayor."

It sailed a long time before that.

[Dr. Ed 2]

There is a difference between poor sportsmanship and tearing up the rulebook -- there was nothing in those two SCOTUS seats that the Democrats haven't done in the past, particularly before they were stupid enough to eliminate the filibuster for judicial nominations.

Anyone remember Robert Bork???

[bernard11]

WTF does Robert Bork have to do with anything?

He got a hearing, got a vote, and was rightly rejected on the basis of his record and his writings. No rulebooks were torn up. Ted Kennedy made a harsh speech. BFD.

If all the conservatives yelping about free speech looked at Bork objectively they'd realize he was a poor choice. The man was a crackpot.

[Brett Bellmore]

Yeah, I'm sick of the complaints about "Borking". He was simply a lousy pick, that's all.

[WuzYoungOnceToo]

WTF does Robert Bork have to do with anything?

About as much as Kavanaugh and Coney-Barrett...meaning this is all much whining about nonsense.

[TwelveInchPianist]

Congress can't enlarge the court. The Living Constitution has evolved to where the number is fixed at 9.

[Dan Schiavetta]

The Living Constitution died with the refusal to fill Scalia's seat.

[Kevin Smith]

Superprecedent!

[Intelligent Mr Toad]

My advice to Biden and Harris would be: if you decide to expand SCOTUS, think big. At least 24 new seats, please. And fill at least some of them with real left-wing activists. We haven't had a real left-wing activist on SCOTUS since Thurgood Marshall died.

[Rev. Arthur L. Kirkland]

Two could suffice. Four would be plenty. Three would be interesting.

[Jimmy the Dane]

"court packing" was a dumb solution to a fake problem forwarded by stupid politicians that back equally asinine public policies.

[Martinned]

So not a fan of the New Deal or FDR, then?

[mr_liberal]

Democrats would say Republicans have already packed the court by nuking the filibuster, and by blocking Merrick Garland and then confirming Amy Coney Barrett even closer to an election. Those are reasons to not accept/trust the courts rulings now.

[Bob from Ohio]

Trust in the Supreme Court??? Ha ha

[Rev. Arthur L. Kirkland]

That's a great one. Remember it. That memory might make things easier for clingers when the Supreme Court is enlarged, the new states are admitted, the House is enlarged (and, with it, the Electoral College), the new senators are seated, and the filibuster capsizes.

[Rev. Arthur L. Kirkland]

Can you blame them? They might be the Republicans' last hope as our electorate continues to improve.

[Rev. Arthur L. Kirkland]

I am happy already.

I see bigots on the defensive in America. I see fewer people being treated poorly. The culture war is not over, but it has been settled, and in the right direction.

I see better allocation of opportunity and resources. I see advances along many important scientific, cultural, technological, social, economic, and other fronts.

I see education advancing against ignorance, reason and science advancing at the expense of dogma and superstition, and inclusiveness triumphing over insularity in America. I see our strong research and teaching institutions continuing to prevail against schools that teach nonsense and suppress science.

I see hope for increasing freedom. I see a diminishing influence of backward, stale, ugly voices in America (in part because I expect overdue structural changes to our system).

I see an improving electorate and a strong, resilient America. I expect us to regain most, if not all, of our international standing quickly -- and perhaps, to have become at least somewhat smarter about foreign entanglements of several types.

I have been encouraged by reliable sources to expect the Stones to tour again, relatively soon. (I might need to see them in Europe, at least at first, but they intend to visit the United States within a year).

Things are good and getting better in America.

[Alpheus W Drinkwater]

The living constitution serves either side equally well when it reaches the desired outcome.