Trump at CPAC: "We're getting some unexpected rulings because the nine justices do not want to be packed"

As usual, Trump says the quiet part out loud.


Donald Trump spoke at CPAC. I haven't been able to find a transcript yet, but Fox News published a few quotes that relate to the Supreme Court:

Former President Donald Trump Sunday alleged that Democrats are attempting to intimidate the Supreme Court in order to secure favorable rulings, including by threatening to pack the nine-member bench and floating impeaching Justice Brett Kavanaugh.

"The Democrats are vicious to the Supreme Court and to Kavanaugh," Trump said.


"We're getting some unexpected rulings because the nine justices do not want to be packed. And the Democrats are in a position to pack the court and they don't want to be packed," Trump said.

"They are playing the ref," Trump said "That's what's happening with our Supreme Court."

"If the justices go their way, they won't be packed," Trump also said.

Once again, Trump focused on Justice Kavanaugh in particular:

Trump further lamented the treatment of Kavanaugh during his confirmation hearing and even after, when many Democrats have called for his impeachment.

"How does he get out of that? By voting for the Democrats," Trump said. "It's a very sad thing."

The mere existence of the President's impotent Supreme Court Commission will inevitably have an ad terrorem effect on the Justices. Even if the threat of Court packing occupies a single neuron in their minds, Biden will have succeeded.

Update: Here is a transcript of the remarks:

 For decades, the conservative movement acted as if all that mattered were policy fights in Washington or that all it would take to prevail was winning a small handful of Supreme Court cases. And we're disappointed in the Supreme Court. I'm disappointed, but the battle is so much bigger and so much broader than any of that. The radical left has been methodically taking over every giant centralized institution in American life. The school systems, you see that, the universities, the bar associations, look at what happened to Rudy… Hollywood journalists, the big banks, big tech, and even the Supreme Court where we're getting some unexpected rulings because the nine justices do not want to be packed. And the Democrats are in a position to pack the court and they don't want to be packed. So they don't want to look at the election. They said, we don't want to see it.

We had led by that gentleman right there from the great state of Texas, we had almost 20 states. And we thought we had a case where the standing was so good. You know, I wanted to do it personally, but they said, "Sir, you're the president. You have no standing." I said, "What kind of a system? Wait a minute. I'm the president." They said, "The thing that has the standing are states. And if you could get one or two or three…" They got almost 20 and they were really strong about it. And you know, the justices never looked at the case. They didn't look. And many of the judges didn't look at the case, but we do have cases going on right now where I think you have patriot judges. And we'll see. We're going to see if that happens. But if the justices got their way, they won't be packed. In other words, what happened is vicious things. Look at the Schumer statement that he said when he was on the court steps. . . .

That's what's happening with our Supreme Court. That's what's happened. They don't want to be packed. We don't want to have 24 judges. You know, they said 13. I said, the Democrats are too smart for 13. It's an unlucky number. Why would they have 13? So they'll make it 15, but they'll probably make it 23, 21, 19. It'll go up. And you know, if they would've looked at the case, we would have won that case in my opinion. And they would have never been packed because you would've had a beautiful veto sitting right in the oval office. I would have vetoed it because it's a terrible thing. But the Democrats are vicious to the Supreme Court and to Kavanaugh. He's another one. "Yeah, Bill Barr", they screamed, "we're going to impeach him. We're going to impeach him." And it changes people.

And how about Brett Kavanaugh? We're going to impeach him on women that admitted ultimately that nothing happened. They weren't even in the country, one of them. It was all a made up scam. They should be prosecuted. They should be prosecuted. And they weren't. But with Brett Kavanaugh, they're screaming, "We're going to impeach him every time…." "And we're going to impeach him." And you know what? How does he get out of that? By voting for the Democrats? So it's a very sad thing. And he went through what no other person I have ever seen go through. That hearing was the most vicious, horrible hearing I think in the history of our country. I don't think there's ever been anything worse than that….

NEXT: "Don’t Be Afraid of the Robot That Passes the Turing Test. Be Afraid of the One That Deliberately Fails It."

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  1. Kavanaugh and ACB and Roberts used their lawyerly talents to help George Wu Bush steal the 2000 election and supported Bush as he lied America into an asinine war…then in 2020 they stabbed Trump in the back!!

    1. If the Supreme Court is making law, it should have the size of a legislature, like 500 Justices. The number should be even, to end their hideous series of 5-4 decisions. Anyone who has passed 1L is a dumbass, totally disqualifed to sit onthe Court. Then move it out of the rent seeking capital, to a place whose culture agrees government needs more modesty.

    2. Oh phooey. W did not steal the 2000 election. Gore lost fair and square.

      1. It may depend on how you count ballots where voters checked Gore, and then wrote him in. Those were all discarded. There were far more than enough to elect Gore had they been counted.

        I said, “may,” because I haven’t seen reporting on whether there was a similar thing going on for Bush, sufficient to offset the Gore stuff.

        It would be dismaying, though, to discover that when folks voted twice for Bush, there were some places where they got counted, but Gore’s double votes got thrown out. Not saying that happened.

        1. Overvotes aren’t legal votes in California, regardless of where you cast them. They weren’t counted for Gore or for Bush, anywhere.

          Now, the irony of the Florida recount, is that it is just barely possible that, if Gore had gone straight for a state-wide recount, instead of trying to be clever with just recounting his four best counties, he might have narrowly won. The consortium that analyzed the ballots concluded that Bush would still have won under that scenario, but by such a narrow margin that it could easily have gone either way.

          I think the lessons there are,

          1) Don’t try to be clever, just go straight for a full recount if you genuinely think you won.

          2) If counties you control have incompetent elections administrators, replace them even if they are loyal party members.

          After all, that butterfly ballot that might possibly have cost Gore the election? Designed by a Democrat.

          1. Gore did want a statewide recount but Katherine Harris refused to do her job because Bush was initially in the lead and she correctly believed she could run the clock out. In 2000 Republicans opposed recounts while supporting illegal immigration (at least by Cubans).

            1. No, no, no, no, no.

              Gore was pursuing a perfectly rational, albeit somewhat morally sketchy, recount strategy.

              As the winner, Bush could not, as a practical matter of politics, call for a recount. Certainly he couldn’t be the first person to call for one.

              So Gore waited until the period during which candidates had a right to a recount was almost up, and then demanded a recount in 4 specific counties: The largest 4 where he had done really well. He did this when it was too late for Bush to respond in kind.

              Now, the point of requesting this kind of partial recount, is that manual recounts typically do NOT alter the relative vote percentages, unless something has seriously gone wrong. They do, however, tend to slightly increase the percentage of the votes that get counted. (Hanging chads for any candidate can fall out when handled, for instance, or a human might notice that check mark that the voter ever so slightly missed the box with.)

              So, if you lead in Palm Beach by 62%-27%, and recount, you’ll still be leading 62-27, but instead of having 269,764 votes to Bush’s 116,790 votes, (The final totals) you might see 269,888 to 116844.

              Bush gains 54 votes, but Gore gains 124, even though the percentage didn’t budge.

              So, by only recounting large counties where he did well, he could increase his relative total, maybe by enough that he’d win, even if a state-wide recall would just confirm that he’d lost.

            2. Now, what happened with Katherine Harris, is that after Gore’s partial recount tactic failed, he came back, AFTER THE DEADLINE, and demanded a state-wide recount.

              But this was after the deadline, and Harris actually legally had discretion as to whether a state-wide recount was needed. And her reasoning was that there wasn’t any particular reason for one, no hurricane had struck, no incidents to suggest the count was off, Gore just didn’t like the fact that he’d lost.

              And, before the deadline, that would have been enough, he had an actual legal right to demand a recount, for any reason, or none at all. After the deadline, a recount had to be for cause, with Harris occupying the office that decided if there was cause.

              So, Gore fought up to the state supreme court, and got them to force Harris to do it anyway. Even though there wasn’t actually a legal basis for it. Only the state Supreme court ordered a recount that didn’t meet equal protection standards, because they permitted different counties to use different counting criteria.

              And that, ultimately, was why Gore lost the legal fight. Because he tried to be too clever by half.

              1. Wrong, Harris refused to do her job because Bush was initially in the lead. Gore had to figure a way to force Harris to actually do her job and oversee a statewide recount. So Gore’s strategy was to pick counties which might give him a lead that would inevitably lead to Harris and Bush supporting a statewide recount. Unfortunately for America Harris’ foot dragging strategy worked and America was subjected to the dumbest and costliest 8 years in American history right before the baby boomers started to retire.

                1. You can literally look back at the newpaper reports, the historical record, and that’s what happened: Gore waited until the last minute, demanded a recount in specific counties where he’d done well, and it turned out to not be enough.

                  And Harris legally had discretion as to whether to hold a recount after that deadline. If Gore had actually wanted a state-wide recount, he’d have demanded one up front, when he had the legal right to.

            3. No. Gore never asked for a state wide recount.
              The Florida Supreme Court ordered a state wide recount. The Secretary of State should have refused. The court had no constitutional power to order any recount.

        2. SL,
          You may recall the the NYT did its own complete count in Florida a few month on in 2000. Their conclusion (as a paper that had endorse Gore) was that Bush won in Florida.

          1. That was an unconstitutional recount forced by Harris’ unethical behavior. A constitutional recount would have resulted in a Gore victory by most standards.

            1. Except for the standards that were legal to use in Florida, which went for Bush.
              Small detail that one.

      2. Don Nico, note that the butterfly ballot misvote for Buchanan was also large enough to elect Gore.

        So when you say Gore lost fair and square, it depends on whether that stands for, “fair and square, given mishaps, happenstance, and an arguably unreasonable interpretation of voting rules,” or “fair and square according to voters’ intentions.” Bush was fairly clearly not the Florida voters’ preferred choice in that election.

        That, by the way, is before we get to the question of the U.S. Supreme Court and its outrageous, partisan departure from its customary practice with regard to elections.

        1. “butterfly ballot misvote for Buchanan was also large enough to elect Gore”

          So what? Stupid voters get what they voted for/

          “Bush was fairly clearly not the Florida voters’ preferred choice in that election. ”
          That was not the conclusion of the NYT. But you are the superior mind reader.

          “before we get to the question of the U.S. Supreme Court”
          I get it. You’re angry that your guy lost.

  2. Parroting Trump’s “reasoning” is definitely a choice one could make.

    1. The Washington elites are all arrogant, selfdealing traitors to this country. Trump should be sent back to get rid of all of them, as he was in 2016. Round them up. Put them in federal prison.

      1. Bircher Behar’s Bellowing.

  3. No one would even be thinking about expanding the Court, if Mitch McConnell had allowed Merrick Garland his fair consideration and an up-or-down vote.

    (As enjoyed by every SCOTUS nominee in my lifetime, except for those who chose to withdraw, like Douglas Ginsburg and Harriet Miers.)

    1. But Miers withdrew because Republicans told her they weren’t going to vote for her. And Democrats got Republicans to appoint Souter and Stevens and moderates like O’Conner and Kennedy…in the last 40 years justices appointed by Democrats have been rock solid liberals. Plus TRAP laws have effectively overturned Roe v Wade so it’s best for Democrats if the Justices overturn it and the issue gets returned to the states.

      1. The source of the Tea Party movement wasn’t against Democrats. It was an insurrection against Republicans for going along with the Democrats too much. Your observations are typical of those at the core of it.

        1. Right, that’s why Republicans in Congress didn’t put up much of a fuss about the IRS targeting: It was targeting their own internal foes.

      2. RE: “Democrats got Republicans to appoint Souter ”


        The one who got GHWBush to appoint David Souter was REPUBLICAN Senator Warren Rudman of New Hampshire. You can read all about it in Rudman’s book COMBAT: TWELVE YEARS IN THE U.S. SENATE, if you can find a copy.

    2. Merrick Garland got the treatment accorded by law. Just because some people didn’t like that treatment doesn’t make it fair or unfair; either following the law is fair, by definition, or all laws are unfair. You don’t get to pick and choose for the entire population which laws are fair and which are unfair.

      1. No, that’s not the way it works. There’s a reason “fair” and “unfair” are different words than “legal” and “illegal.” (Hint: it’s because they have different meanings.) Violating norms may be legal; that doesn’t make it fair.

        1. Your dislike makes it unfair in your mind alone. It’s far more personal a judgment than legal vs illegal.

          1. What’s legal and illegal is based on fact-based arguments relying on an underlying body of understanding of laws written by people.

            Same for what’s fair and unfair.

            Don’t commit war on objectivity to try and prop up your side’s bad behavior.

            1. “What’s legal and illegal is based on fact-based arguments relying on an underlying body of understanding of laws written by people.

              Same for what’s fair and unfair. ”

              Man, I wish I could say you were joking, that’s so stupid. But you really mean it.

          2. Your dislike makes it unfair in your mind alone. It’s far more personal a judgment than legal vs illegal.

            That’s why I didn’t cite to “my dislike,” but to norms.

            1. Sure, norms. Imaginary ones, but norms.

              1. You can tell they’re not imaginary because of how much time you need to spend insisting they’re not real, and how angry the GOP’s breaking of that norm made people.

                1. “I know I’m right because people who disagree tell me I’m wrong!” That’s what you just wrote. Do you even understand that?

                  1. Actually, that’s how norms work; they’re not something you personally decide on. People telling you you did a bad thing is part of their operation.

                    1. Any thoughts on Democrats running away from states to avoid providing a quorum? That’s terrible, right?

                    2. They did it before in 2003; they have since then threatened to do it regularly.

                      Hard to argue that’s a norm nowadays. Which is why the GOP isn’t treating it as a broken norm.

                    3. Not running away is the norm. And they are, you know, violating it repeatedly. And not a big issue for you, it appears.

                    4. No, this is actually within the normal operation of the weird Texas legislature. So is ending sheriffs to arrest them.

                      Ask anyone in Texas politics; this is in fact part of the mix when they talk tactics. Weird, but true!

                      Not that Dems don’t break norms. Reid and the judicial filibuster, of course.

                      But norms are what hold up or Republic – the constitution is a framework; norms are the structure. The GOP declaring norms don’t matter is really bad, and I hope they pull out of that dive.

        2. The treatment Garland got (as compared to Kav) was extremely fair.

          1. How fair was the treatment of Dr. Ford. She was question by a retire prosecutor, but the Republicans stopped that prosecutor the minute she started questioning Kavanaugh.

            1. What we know is that Ford perjured herself at least twice in a demonstrable manner That was in fact identified in the hearing: 1) the BS story of “fear of flying” and the fabrication of the two front doors contrary to building permit records.

              BK did not acquit himself well by his demeanor; however, except for Ford’s fake, little-girl voice commentary (compare it with other recordings of her) there was no firm evidence against BK.

              1. Your comment does not reflect on the question of was she treated fairly. Dr. Ford was questioned by a former prosecutor that was pulled off before Brett Kavanaugh was questioned. Why not let the prosecutor question both of them? Was there a fear that Kavanaugh could not handle that level of questioning?

                1. Either she was treated very unfairly by Diane Feinstein and the Democrats who sat on this and lied in wait, or, she wanted to be part of an insane political stunt and got exactly what she wanted.

                2. “Your comment does not reflect on the question of was she treated fairly. Dr. Ford was questioned by a former prosecutor that was pulled off before Brett Kavanaugh was questioned.”

                  Democrats could have requested that same person do so.

          2. What’s fair about not giving him hearings and vote?

            1. It’s rather common for judges to simply not have their nomination acted upon by the Senate. Here’s a case example with Peter Keisler under Bush.


              Goes to the committee…nothing happens….nomination sent back.

              Is it annoying? Sure. But it’s politics, it’s not personal, and ultimately it’s the fair to just not do the hearing, rather than manufacture a scandal and try to destroy someone.

              That’s what’s “not fair”. Manufacturing a scandal, without decent evidence, at the last minute, to attempt to destroy a judge in the confirmation process. It’s cruel and underhanded.

              1. You know the difference between a judge and a Justice, don’t be an ass.

                1. “don’t be an ass.”

                  You should follow your own advice, Sarcastro.

                  SCOTUS nominee or Circuit Court Judge nominee, “Fair” is a concept that should apply to both equally. And if your side is not even holding hearings on circuit court judge nominees in order to stall them until the next administration, then crying “it’s not fair” when it happens to your SCOTUS nominee is hypocritical in the extreme.

                  1. The circuit court process is fundamentally different, due to the number of them and their lesser political sensitivity. It’s a weak straw to grasp to pretend it’s the same thing to defend your nonsense.

                    1. Agree with Sarcastro on all counts.

                    2. Wow…. I see.

                      So, in your opinion, if a position is not “important” enough, it’s entirely “fair” to reject them on political grounds, without even having a hearing. But if a person is “important” it’s not fair to reject them without having a hearing?

                      Does that about sum up your position accurately? It’s fair to reject “less important” people but not “more important” people?

                    3. My position is a factual claim about how the judgeships are treated.

                      You are not having a bad opinion, you are wrong on facts.

                    4. “My position is a factual claim about how the judgeships are treated.
                      You are not having a bad opinion, you are wrong on facts.”

                      Apologies, you are also COMPLETELY wrong on the facts. Both circuit court judges and supreme court judges go through the EXACT SAME approval process.

                      1. The President nominates a candidate
                      2. The Senate Judiciary Committee holds a hearing on the nominee.
                      3. The Judiciary Committee then votes on the nomination
                      4. The full Senate debates the nomination.
                      5. When the debate ends, the Senate votes on the nomination.

                      Exact same process. SCOTUS nominee or Circuit court nominee

                    5. So the judiciary is a caste system. Got it. But both circuit courts and SCOTUS rule on exactly the same cases.

                      What percentage of litigated cases are heard by SCOTUS?
                      I would argue the lower courts do all the heavy lifting, and are more important. Of course those politically hot potatoes exist because Congress refuses to legislate.
                      We are seeing States clawing back their constitutional power.
                      After Kelo, dozens to States passed Private property protection laws. Abortion is being handled at the State Level. States keep passing constitutional carry, gun law, State election laws are securing their elections.
                      This is a welcome shift back to States doing all those things not enumerated in the constitution as Federal powers.

                    6. The idea that Justices are more important and their nominations are treated differently is not a caste system, it’s a simple fact.

                      Neither of you are making serious arguments based on political realities.

              2. I’m far from convinced that the Kavanaugh accusations were manufactured, though I’m also not convinced that they weren’t. That said, I don’t think “but it’s just politics” answers the question of whether something is fair.

                1. “answers the question of whether something is fair.”

                  Here’s the question. Did your side do the same thing with other judges? Yes or no? Did you loudly complain “It’s not fair” then? No?

                  Then you need to consider if you’re just being hypocritical.

                  1. Assume for sake of argument that I’m the biggest hypocrite since Elmer Gantry. That is wholly irrelevant to the question of whether Garland was treated fairly. There is a reason that “you too” is a logical fallacy.

                    And, as far as what my side did, a Democratic Senate gave Ronald Reagan a Supreme Court appointment in the last year of his presidency.

                    1. K_2,
                      Those were very different times absent the extreme enmity between people in the other party.

                    2. Don, the fact that such enmity exists makes it even more important that norms be adhered to. Before Garland, the norm was that a sitting president would have a nominee confirmed in his last year in office, as demonstrated by the Democratic Senate confirming Anthony Kennedy.

                    3. “Assume for sake of argument that I’m the biggest hypocrite since Elmer Gantry”
                      OK…can do.
                      “That is wholly irrelevant to the question of whether Garland was treated fairly.”
                      It’s entirely relevant to your OPINION that he was treated fairly. It’s like you’re the kid who steals the ball from another kid, then has it stolen from him…and you’re yelling “it’s not fair! He stole my ball!”….when you just stole it from someone else.

                      “And, as far as what my side did, a Democratic Senate gave Ronald Reagan a Supreme Court appointment in the last year of his presidency.”

                      Seems you’re forgetting what happened before that. An entirely qualified candidate was rejected on political grounds. It just took 28 years, but as they say, “turnabout is fair play”. Garland got Borked. And that’s “fair”.

                    4. No, Bork got a hearing and a vote so you’re confusing apples with oranges. It was Borks own testimony that sank him.

                      As for my opinion, are you saying that it’s merely a matter of opinion whether stealing a ball is fair? If so, you’re nuts. And if you agree that it’s not fair to steal a ball, then it remains unfair regardless of who did what earlier. All you’re doing is changing the subject, which seems all you’re capable of.

            2. K_2,
              It did not have to be fair. It was raw power politics.

              1. Our Republic won’t survive raw power politics.

        3. David,
          He got the treatment allowed by law. Whether that was fair or unfair is a matter of partisan political opinion.

          1. Fair is not a purely subjective concept.

            You should pause if your argument requires you to discard any idea of objective fairness to justify something.

            1. “Fair is not a purely subjective concept.”

              Gah. Never encountered the “is-ought” dichotomy in ethics and logic, have you? Or just never understood it?

              Is–ought problem

              You should pause if your argument requires everybody to agree with you about what is fair.

            2. This isn’t an is-ought problem.

              You’re making the factual proposition that fairness is entirely subjective.

              This is not ‘the way it is,’ it is instead transparent bullshit. People appeal to fairness all the time. Not possible if it’s just subjective.

              But you are at the point where you cannot defend the crap the GOP did with Garland without resorting to it.

              1. Would you prefer the GOP give him a hearing, accuse him of running gang-rape trains on underage girls…then reject him?

                1. Whattaboutism is very lame.

                  1. Not as lame as arguing about “fair” or not.

                    1. That’d be a fine argument to have.

                      But we’re having the meta-argument, about whether one can even argue about fair or not.

                      Which is silly, but I didn’t start it. You seem to know this, hence your preferring whattaboutism.

      2. Expanding the court is also legal.

    3. “No one would even be thinking about expanding the Court, if Mitch McConnell had allowed Merrick Garland his fair consideration and an up-or-down vote.”

      Given his performance as AG, he is not remotely qualified to be a judge at all.

  4. Trump was a weak leader. I hope he learned, and will deal with the Swamp properly next time.

    1. I knew Trump would fail when he appointed the Bush loyalist Tillerson on Condi Rice’s recommendation. Then he appointed Bush’s right hand man, Kavanaugh, to the Supreme Court!?! Wtf??

      1. Trump’s experience in business had inclined him to expect that employees would actually follow orders, rather than working for the people they were ideologically allied with regardless of who their nominal boss was.

        This was a costly bit of naivete.

        1. We have a winner!

        2. Supreme Court justices are not suppose to follow orders. They are a separate branch of the government.

          1. Well, sure. I meant that mostly in regards to his executive branch hiring. But he does appear to have expected it of his judicial nominations, too, and improperly.

            His proper complaint there was the Federalist society giving him a bad list. They could certainly have come up with better choices than they did, if the goal was really making the Court over in a conservative image.

            But, of course, that wasn’t the federalist society’s goal.

            1. What was the Federalist Society’s goal, if not getting conservative judges appointed?

              1. Getting establishment judges appointed, who wouldn’t rock the boat in any direction. Not left-wing firebrands, but not right-wing, either.

                They were aiming for boring competence.

                1. And let me guess, you also have a bridge you’re selling cheap.

                  1. No, but the Federalist society did, and Trump bought it.

        3. Talk about naive, people in business constantly feel undermined by their subordinates.

        4. ” Trump’s experience in business had inclined him to expect that employees would actually follow orders ”

          Let’s hope not all federal employees are Allen Weisselbergs, who, it appears, followed orders, cheated taxpayers, violated American law, and is headed to prison.

          1. Reminds me of Henry Kissinger’s explanation for how Watergate happened: Some damn fool came out of the Oval Office with no better sense than to actually do as he’d been told.

            1. I would never take Henry Kissinger as a good guide to how a democracy should run, though he’d probably be a good advisor if you were designing a dictatorship.

      2. SC,
        Trump could never admit to himself that he was an abusive boss. He got just what his style set him up for.

    2. Presitdent Trump failed to understand the depth of the swamp. He lacked people aligned with him to carry out his agenda. President Trump failed to understand more than half of the elected Republicans are Democrats.

  5. We all know the left rules through terrorism. This is nothing new.

    1. Marx said that. Communism is not natural, and must be imposed by force. His good pal, scumbag lawyer, Lincoln, took him up on that.

      1. Further ravings of a lunatic.
        “Brockell badly misreads her sources and reaches faulty conclusions about the relationship between the two historical contemporaries. Contrary to her assertion, there is no evidence that Lincoln ever read or absorbed Marx’s economic theories. In fact, it’s unlikely that Lincoln even knew who Karl Marx was, as distinct from the thousands of well-wishers who sent him congratulatory notes after his reelection.”

    2. Today I learned that potentially facing political consequences for actions is terrorism.

      1. You should put “political consequences” in some Dr. Evil style quotes there….

        1. Political consequences: more seats on the court. That’s it. No violence. No kidnappings. No explosions. Not terrorism.

          1. Correct “not terrorism.” Just extortion, Mafia style.

            1. “That is a sure nice Supreme Court you got there, would be shame if someone came along and busted it up some….”
              Yeah totally not non-threatening…..

            2. Extortion implies a threat of harm, often violent.

              I don’t quite see that, unless any political response falls into that category, in which case there’s quite a lot of extortion running around.

              1. Is literally stacking the court to produce your desired political results “extortion” is some sense? If Republicans were issuing such a looming threat over the court the answer would be an astounding “yes” and a “danger to the rule of law” along with a litany of other slogans. Here though, Democrats, who always assume they have the moral authority to govern no matter if they have access to actual mechanisms of power, are definitely using it as a threat to get their intended results (or at least temper down what might be adverse results). That is no secret.

                So yes I would say here it is a threat to the legitimacy of an institution.

              2. Yeah, I noticed that too – Don retreated but had to keep some drama in the mix.

              3. Odd that requiring voter ID is “a direct threat to democracy”, huh?

                1. Stay on topic, chief.

                  1. group having to potentially face political consequences was the subject of this thread.

                    1. Which has nothing to do with voter ID requirements.

                      Also notable is voter ID requirements are not what GOP statehouses are passing – they’re lowering the number of voting machines, cutting voting hours, targeting vote-by-mail…and letting the legislature throw out the vote of the people without any review.

  6. Enlisting Trump in support of a ridiculous argument is — well —

    1. It may be Trump. It may be inapplicable. But it is not ridiculous since the last time it happened, there was trememdous buckling of the Supreme Court in response to the threats.

      1. The last time it happened there was pretty much one party rule and a very popular President. Here the Senate is tied and the House majority slim.

        1. Yeah, that’s the amazing thing about it: That Democrats would think it appropriate to threaten to pack the Court when they have a razor thin, temporary majority, and could easily have lost control of both houses and the White house after 2024.

          1. But, now that I think about it, the Democratic leadership were openly talking about abolishing the filibuster for the Supreme court, and maybe legislation as well, in October of 2016. So it’s not like it’s out of character for them to tell somebody they plan to shoot them before it’s been settled who will be holding the gun.

    2. Both Trump’s best and worst quality is his complete lack of filter. The man is saying exactly what people are thinking.

  7. “The mere existence of the President’s impotent Supreme Court Commission will inevitably have an ad terrorem effect on the Justices.”

    “Will inevitably have”? Not in this term, but in some future term?

    The conservative justices, even though they surely already know about the existence of the supreme court commission, are currently unterrorized but inevitably will be terrorized in the future? What are they waiting for?

    The blackman kid predicts an ad terrorem effect, inevitably, in the future. Trump spoke about some unexpected rulings from the past, just concluded, term.

    If the conservative justices wanted to temper some packing response from the left, they didn’t show any sign of it in Brnovich, Americans for Prosperity, Cedar Point, and TransUnion, among others.

    I don’t know which rulings trump was talking about when he said “we’re getting some unexpected rulings”, or what future rulings the blackman kid expects to show conservative restraint (due to terror) in some future term.

    But if the conservative justices are terrorized, or gearing up to be terrorized soon, they sure are hiding it well.

    1. “The blackman kid predicts an ad terrorem effect, inevitably, in the future. Trump spoke about some unexpected rulings from the past, just concluded, term.

      If the conservative justices wanted to temper some packing response from the left, they didn’t show any sign of it in Brnovich, Americans for Prosperity, Cedar Point, and TransUnion, among others.”

      A bit unclear about the meaning of “some”, are we? Here’s a clue: It has a different meaning from “all”.

      But, you’re right about this: Giving the Democrats “some” unexpected victories, refusing to take “some” cases that the Court really should have resolved, won’t be enough to cool their ardor for Court packing. Court packing isn’t about winning more often than not. It’s about winning every time, on everything.

      It would take a “switch in time” scale surrender, the conservative justices becoming the liberal wing of the Court, to quiet demands for Court packing at this point. And even that might just whet appetites.

      The Democracy Journal, a left-wing think publication, ran an issue in which they brought together a bunch of left-wing intellectuals to write a proposed new Constitution. (Yes, it was awful.)

      They got rid of judicial review.* That’s what Court packing is really about: Rendering judicial review toothless, so that Congress no longer has to abide by the Constitution.

      (*Yes, I know, it’s still in there, nominally. Takes a Court supermajority to overturn a law, then a simple House majority to restore it. That’s not judicial review, that’s pretending to have judicial review.)

      1. There are no demands for it in the power structure. That’s why you assign a committee to something in Washington, to let them bury it so you can hide behind the result.

        The day after Trump won, he said, nah, we’re leaving Hillary alone.

        These things are for peons to rage about so they will support thse who seek power. Many aren’t real promises.

        1. Biden signaled as much before the election by refusing to say, so he could have his cake (the possibility, to satisfy outraged Democrats) while not engendering too much fear and rage in Republicans for yet another get out the vote impetus.

    2. I think Josh meant to say “in terrorem”. An in terrorem clause (“no contest clause”) means if you contest a will, you forfeit what the will otherwise gives you. He’s drawing an analogy to the self-defeating court-packing commission. I think.

    3. There’s also the entire shadow docket.

      And let’s also not forget that even if argued cases have unexpected results, since there are only three liberal votes now all the cert grants are dominated by conservatives. So we are only going to get the cases that they want. So at best each liberal “win” is the Court deciding not to bring a massive change to law that people think is currently liberal. ACA is a great example of this. People think that it’s a liberal “win,” but actually it was just four conservatives deciding not to completely reinvent standing, severability, and to start doing whip counts of Congressional votes in opinions.

      1. The ACA is a big liberal win. Perhaps not as big as it could have been. But the sheer expansion in federal power it entailed was amazing.

        For the first time, the government could MANDATE that people buy a certain product. That’s…stunning.

        1. That’s not what was before the court. The court already ruled on that. This case was trying to trash the law because it didn’t mandate anything. That’s not a progressive win. That’s conservatives recognizing this was a clown-show argument brought by clowns like Ken Paxton and Josh Blackman.

          The true progressive win is that Gorsuch bought into this absurdity. Exposed him as a completely unserious and unprincipled jurist. I mean Mr Textualist joined an opinion that talked about the significance of the votes and motivations of Representatives (but not Senators) whose preferred policy outcome did not come to pass.

          1. That IS what was before the court in 2010. That’s why it was such a big win. Maintaining it, keeps that win.

            1. Yeah. But we’re not talking about the court in 2010.

              1. “Maintaining it, keeps that win.”

                1. Again it’s not a “win” to keep the status quo by not buying into a clown argument.

            2. 2010 is very old news. LTG is correct about this year’s judgement.

        2. That’s hardly stunning, it’s the kind of thing that’s quite common in most developed nations as the difference between the power of proscription and prescription in a modern economy is mostly abstract.

          1. “that’s quite common in most developed nations a”


        3. The ACA is a big liberal win. Perhaps not as big as it could have been. But the sheer expansion in federal power it entailed was amazing.

          For the first time, the government could MANDATE that people buy a certain product. That’s…stunning.

          On the contrary, the court explicitly ruled that the government can’t do that. ACA survived only because it didn’t do that. The stunning part of the decision was that courts shouldn’t take the politicians’ word for what they have done; politicians lie, so courts should look not at what congress says it has done but at what it has actually done.

          And when it looked for this famous mandate to strike it down, the court found that there wasn’t one. There is a set of clear criteria to distinguish a mandate from a tax, and by every measure what congress had actually done was exactly what it had sworn up and down that it would never do; it had enacted a tax, which it had every legal right to do, but which was politically difficult because it was so unpopular. Mandates, on the other hand, are unconstitutional but not so unpopular. So congress enacted the tax but called it a mandate; the court ignored the label and called the thing what it plainly was.

          The tax has since been repealed, so there’s nothing at all. There’s no mandate, no tax, anyone who wants to go without insurance is completely free to do so, so on what grounds should it have been struck down?

          1. ” The stunning part of the decision was that courts shouldn’t take the politicians’ word for what they have done; politicians lie, so courts should look not at what congress says it has done but at what it has actually done.”

            And what it had actually done was to enact a penalty for failure to obey the mandate to buy something. The word was right there in the law.

            You can say, “You shouldn’t take a politican’s word for what they’ve done”, but the text of the law law IS “what they’ve done”.

            In the NFA act case, the Court refused to acknowledge that something was an unconstitutional penalty, so long as Congress claimed in the law that it was a tax, and it could theoretically raise some revenue. In the ACA case, Roberts did them one better: Congress admitted it was a penalty, and he refused to take them at their word that they were enacting something unconstitutional.

  8. You won’t be able to watch it on Youtube. He’s still banned, so they took down CPAC’s video of his speech.

    Which just underscores how much of a problem it is for CPAC to rely on Youtube, whose management hates their guts, and is glad to lose money in to process of hurting them.

      1. Got to give him credit speaking in that Trump tone for 1.5 hours.

      2. MY SCREW UP.

        That’s the Orlando speech.

        1. You can see it on CSPAN, for now.

      3. For now, there are.

        1. Argue based on reality, Brett, not your dark suppositions about what the libs will do. That’ll convince no one who is no one not already convinced.

          1. Once youtube does it, it’s no longer paranoia to suspect that other video hosting sites will, too.

            1. “it’s no longer paranoia to suspect that other video hosting sites will, too.”

              That’s *literally* how a paranoid conspiracy goes…

            2. I’m sure you think that.

              But you won’t get very far arguing based on that, and not the actual state of affairs in reality.

              Make predictions, if you’re proven right, hooray.

              But don’t argue as though they were already true; that just makes you look crazy.

            3. If Trump continues to be unable to behave himself according to the AUP of the sites he chooses to use, then he will suffer the consequences.

              Perhaps your paranoia is actually just a symptom of the fact that your guy is a piece of shit who can’t follow pretty basic rules.

              1. Trump is the head of Mensa and Mother Teresa combined compared to you, based on the ravings you’ve typed here in the past.

                Dude, you make Kirkland seem rational. Get help.

                1. Strong words. I so desperately care about your opinion. Please continue.

                2. Above you talked about my changing.

                  I don’t know about that, but certainly you wouldn’t have made this comment some years ago.

                  The Trump era changed you, and it seems in an uncivil direction.

    1. That’s ridiculous.

      You can still see Yasser Arafat on YouTube. But not Trump….

      1. Do you see how you suddenly had to pretend Trump was completely gone from YouTube to make your point?

        When your argument requires you to assume something very much untrue, you don’t need to make it.

  9. The “unexpected rulings” Trump thinks about are

    Not being handed an election

    The ACA case (maybe) (and for the record, this “liberal win” wasn’t actually doing anything progressive, it just didn’t credit one of the most clown-show arguments of all time by simply
    using decades of conservative logic/precedent about standing)

    That’s it. That’s the extent of his SCOTUS knowledge.

    Imagine pretending to be a serious thinker and approvingly citing a guy who in the same speech bragged about how he passed a cognitive function test and even admitted the questions weren’t all easy. Imagine being that much of a clown.

    1. Imagine? Hell, you got half of them in this comment section alone.

    2. What’s more embarrassing? Bragging about passing the test, or refusing to take it? Because that’s where Biden is, refusing to take the test.

      1. Bragging about passing it.

        Why should Biden take it? That’s just birtherism argumentation. “We are entitled, for no particular reason, to make unending demands.”

        Fuck off.

        1. Like I said below refusing to take it means the person actually grasps the significance of the test and has fears about the results. That requires a level of introspection and intelligence that the bragger doesn’t have.

          1. Have you taken the test? Please post your results or else you grasp the significance of the test and have fears about the results.

          2. Biden did not want to be tricked into making his intelligence an issue. Nor is mine. If a moron challenged me to take an intelligence test, I would refuse. I wouldn’t play his game.

        2. Actually, Biden COULDN’T pass the test. He’s a doddering, old fool who can’t string two sentences together if his life depended on it.

          So YOU fuck off, Bernie.

      2. Bragging. Obviously.

        Refusing requires a level of introspection about your own mental state and a fear of what the results could mean. Even if there is some self-delusion about your current mental state, it takes a level of knowledge about yourself and the ultimate meaning of the test to decide to refuse.

        By contrast, bragging means you’re such an absolute moron who has no idea of the significance of the test and what it says about you.
        You think doing basic cognitive tests is some great accomplishment worthy of applause. It’s a level of self-delusion that people who are refusing to take the test, because they understand it’s significance, simply don’t have.

        1. Or it requires having an advisor who knows it would be a really bad look to flunk that test, and tells you it’s beneath your dignity.

          The bottom line is, Trump wasn’t afraid to take that test, and Biden, or somebody manipulating him, is afraid. Because there’s really no down side to passing it.

          Oh, and Trump? He brags about everything, it’s his default state, and most annoying characteristic.

          1. That’s really silly, not taking any test that there’s no objective reason for you to take isn’t indicative of worry of failing said test. I mean, work this out with some hypos before conjuring such nonsense.

            1. What’s really silly is listening to Biden talk, and claiming that there’s no objective reason for him to take a cognitive survey. At 78 you should be taking those just as a routine matter, even if you don’t have a history of strokes and brain surgery.

              1. Yeah. But that’s still way less embarrassing than BRAGGING about how smart you are for passing. Which is what your original ridiculous claim was.

                1. Hence, neither impresses me.

              2. Brett the neurologist.

                1. Should we prefer Brett the neurologist to Brett the birtherologist?

              3. Have you forgotten how incoherent GW Bush was? He was worse than Biden.

          2. Or it requires someone willing to just say, “Fuck you. There’s no reason I should take that damn test.”

            Apparently some GOP Representatives have “demanded” that he take it. He’s right to refuse. If he takes it they’ll demand something else, because they’re utter, posturing, assholes.

            But let Trump brag about how smart he is because he knows what an elephant looks like, and can (maybe) count backwards from 100 by 7’s.

            It impresses his worshipers, anyway.

      3. The thing is that Biden doesn’t need to take the test. He is showing that everyday. He has command of the subjects he is taking about. His administration has message discipline. Can anyone really show anything to suggest that Biden is not functioning well for a person of his age?

        1. Good grief, the guy has a history of brain bleeds and surgery to treat them, and was a gaffe machine even before he hit his 70’s. All he’s demonstrating these days is that he can read a teleprompter and not mess it up most of the time.

          Yes, his administration has message discipline, aided by a supine media. That doesn’t say anything about the guy fronting for the administration.

          And, yes, he’s functioning well for a person of his age, which is to say, a guy at an age where the majority of guys are dead, so that functioning well is a bar you cross by breathing. Functioning well for a guy of his age is entirely consistent with some pretty serious mental deficits. In much the same way that you look at a guy who’s 78, and he can climb stairs, often without tripping, and you say he’s pretty spry. At that age all the bars are basically laying on the ground.

          Heck, if Trump runs for the nomination in 2024, I won’t be voting for him, for that very reason. Nobody that old has any business in such a job.

          1. history of brain bleeds

            Long time ago. To bring that up with the implication it’s a going concern is basically lying.

            1. Oh, you think those don’t leave any lingering effects? Maybe if you had a hemorrhagic stroke in your teens, by the time you’re 78 it won’t mean anything; The brain does retain at least a little plasticity, and can route around damage on a time scale of decades. But he was in his 40’s when it happened, and your brain isn’t so plastic by then.

              Bottom line for me is: He, or somebody around him, is seriously concerned he’d fail the test, or taking it would be a no-brainer.

            2. Sarcastro, I’ve read your comments on this board for years. You used to be a logical, reasonable guy. This current version of you is so different it’s sad.

              If you think for a single minute that there is NO WAY a man with a history of brain bleeds can still have negative effects from it now, you’re either delusional or lying.

              What happened to you, man?

              1. Look at what Brett’s post implies. It is not about maybes, he is making claims. Based on smoke and mirrors.

              2. Actually, Biden COULDN’T pass the test. He’s a doddering, old fool who can’t string two sentences together if his life depended on it.

                So this is either in complete bad faith, or you don’t remember what you posted above.

                Stick to your own extreme goalposts next time.

          2. “Nobody that old has any business in such a job.”
            Somehow, I have to agree with Brett once again.

            1. Me too. And Democrats at the national level have a real problem with the hanging around too long issue.

          3. The 2020 election offered us only the choice of two septuagenarians. I did not like it but had no real other choice. That said the former President was out of it most of his Presidency. He did not have the mental discipline necessary for the job. What ever his short coming President Biden looks so much better.

            1. Yeah. The real travesty of the 2020 election was the Democratic primary, which almost overnight became a complete and utter joke as everyone withdrew in favor of Biden so that Sanders would lose.

              1. Was it any more of a joke than the Republican primary where primary election were cancelled to insure that the former President had no competition?

                1. That slightly misstates what happened, which is that several primary elections were canceled because Trump had no meaningful competition. He was wildly popular within the Republican party.

                  It’s quite routine for one or more state parties to cancel their Presidential primaries if a popular incumbent President is running for reelection. Happened for both Bushes, (And the elder Bush wasn’t even that popular!) as well as for Clinton and Obama.

              2. Ben, the Bernie Bro take on the primaries may not be the factually accurate take…

                1. Dude, I’m no “Bernie Bro”. However, within a week, every single meaningful competition to Biden pulled out. Do you seriously think that was a coincidence?

                  1. Of course it wasn’t a coincidence. I just don’t know how you think that makes it a ‘travesty.’

                    “Sanders is entitled to have a bunch of his opponents divide the non-socialist vote so that he can win without getting a majority of the vote” is certainly a take.

    3. Have you seen Josh speak in person? Nothing about it presents itself as serious or thoughtful.

      1. This is just ad-hominem. His posts are all serious and thoughtful. You just disagree with them. Have the stones to admit it.

        1. “His posts are all serious and thoughtful.”

          Citation needed. Nothing about his ACB thirstposting, his gossip magazine-style palace intrigue coverage of the Supreme Court, or BLOO JOON-type whinging is what most people would describe as serious or thoughtful, particularly from a supposed academic. That’s not to say that he’s never posted anything interesting or thoughtful. But the ratio is not good.

        2. He’s the only person I’ve seen eat pizza and use his laptop while ON a panel and other panelists were speaking and I was the symposium editor for my journal and ran dozens of my own panels… so call it ad hominem if you want. I wont deny that I’m using it as a low blow, but it’s entirely truthful that Blackman had some of the poorest conduct I’ve seen in a legal professor and did not at all present himself seriously or with thought or care.

  10. Josh descends to a new low.

    Any ruling he disagrees with is inevitably a result of the Justices being terrorized by the possibility of court-packing.

    This is positively Bellmore-level paranoia and know-it-all-ism.

    1. Bernard,
      You and I know that the justices are not terrorized. However, they are shrewd.

      1. Then Josh should cut with the melodrama.

    2. That is NOT what he said. Your knee is out of control again, so get a hold of it.

      He said that Trump suggested it, and that it’s not outside the realm of possibility.

      1. Nope.

        Even if the threat of Court packing occupies a single neuron in their minds, Biden will have succeeded. indicates he agrees with and endorses Trump’s remarks.

  11. Sigh, it’s tough being a good bigot these days.

    CPAC Attendees Take Issue With Fox-Branded Lanyards: ‘I Feel Very Betrayed’

    1. Sounds to me like they have a valid complaint, if FOX was given the contract to stream the event, and then decided to censor part of the event.

      It does appear to be a violation of trust. An ironic one at that: Fox censoring a discussion of Fox’s own censorship…

      1. Contract? What are you talking about? Fox pretends to be a news organization; I don’t think news organizations get paid to air news programming.

  12. I don’t normally agree with Mr. Trump, but…

    1. There’s a reason why Justice Alito expressed frustration with the Court’s recent rulings and implied the newest justices lack backbone. They have in fact not ruled as hard-right conservative as Trump’s backers would have wanted in several cases, most notably Fulton.

    2. It’s plausible that the Court is doing this in part because it is wary of both sides using extraconstitutional, or at any rate extranormative raw power means to cease power.

    3. It’s understandable why people on the right would focus on the left’s doing so, and of course court-packing was a major idea flowing for how the left could seize control of the court.

    So it seems to me this time, Trump is making a facially plausible argument. And one that may have some truth in it. In these times, the middle 3 Justices in particular may in fact be taking extra care to signal that they aren’t in anyone’s pocket and aren’t there just to represent any one side.

    1. They have in fact not ruled as hard-right conservative as Trump’s backers would have wanted in several cases, most notably Fulton.

      Why assume that the rulings Trump’s hard right backers want are correct?

      So it seems to me this time, Trump is making a facially plausible argument.

      The argument is ultimately based on mind-reading.

      Look at what you wrote:

      It’s plausible that the Court is doing this in part because it is wary of both sides using extraconstitutional, or at any rate extranormative raw power means to cease (seize?) power.

      First, it’s not “the Court,” it’s maybe three individuals, and saying “it’s plausible” is not an argument, but a guess at their motivation – a guess that assumes they are not acting in accordance with their best judgment of the relevant cases.

      Second, as Doug Heffernan points out, these Justices had no trouble taking the right-wing position on a number of cases, including rewriting the VRA in Brnovich.

      The whole theory is silly.

      1. “Why assume that the rulings Trump’s hard right backers want are correct?”

        The Court is hardly consistently issuing rulings that are objectively correct. The perspective here is that, if the left can win victories at the Court with politically motivated rulings that come out of nowhere, why shouldn’t the right expect to be able to do the same?

        1. if the left can win victories at the Court with politically motivated rulings that come out of nowhere,

          So the rulings the left likes “come out of nowhere,” per “Bellmore on the Constitution.” Is anything you don’t like ever done in good faith, or is it all part of the Great anti-Bellmore Conspiracy?

          1. Yes, out of nowhere. Roe v Wade. Obergefell. They were totally off the wall, constitutionally speaking. A few decades earlier the barest possibility of Obergefell was dismissed as absurd by proponents of the ERA, but proved enough to kill it, and we’re supposed to believe the 14th legitimately meant that all along?

            The right thinks that if the left can get the Court to pull things like that out of their collective asses, there’s no good reason the right shouldn’t be entitled to junk rulings in their favor, too. It’s not the most principled stance in the world, to be sure, but it’s understandable.

        2. The conservatives on the Court not going full Alito is not a victory for the left.

          Telling about how you see the political landscape if that’s what you think.

          1. I think you have to be able to see how people with perspectives other than your own might see things. At the time, many people on the left regarded Justices like O’Conner, Souter, and Kennedy, anyone not a full-on Brennan, as total disasters.

            I don’t see why it’s surprising that people on the right would have similar sentiments. It’s pretty clear Trump’s supporters wanted Alito clones. They didn’t get them. I think in this case, it’s at least possible, at least plausible, that the court in aggregate is treading more lightly, and is more relictant to overturn precedent, than it might otherwise have been.

            I’m not sure this argument is correct. Roberts, Barrett, and Kavanaugh may be exactly what they have always been. But it’s at least plausible.

            1. Conservative contains more than Blackman.

              ‘The Right’ may not.

      2. I think any such assumption exists purely on your part. Nothing I said above had anything to do with what I thought about the correctness of the rulings.

      3. Bernard. Even if there wasn’t an effect, there is certainly the implication of an effect. There has been a clear and explicit threat by Democrats in general and Biden in specific to pack the court. At the very least, there is an appearance of a fear-tainted verdict.

        It’s not enough for a court to come to an unbiased opinion. For justice to be done, they must also maintain the clear appearance of an unbiased opinion. That’s missing now.

  13. Even if the threat of Court packing occupies a single neuron in their minds, Biden will have succeeded.

    Blackman, you are a goofball.

    1. Prof. Blackman is the future of conservative legal academia.

      Thank goodness, and praise reason!

  14. What’s the over/under until Professor Blackman is cancelled?
    Or until Professor Somin blogs that it’s a good thing that SCOTUS is being terrorized.

    1. The Volokh Conspiracy does not cancel conservatives, let alone the Sage of South Texas.

      The Volokh Conspiracy Board of Censors cancels liberals and libertarians. Repeatedly. But this is a safe space for conservatives, even those publishing violent fantasies, vile racial slurs, and political threats.

      1. Yet here you are, every freaking day, spouting off about all sorts of inanities.

        Look, just come off it. No one is buying the whole “I’m so suppressed” argument from you, Artie.

        1. I believe myself to be neither suppressed nor oppressed. Being on the right side of history, and the victorious side in the culture war, is nice.

          But I have been censored, regularly, by Prof. Volokh and the Volokh Conspiracy, which repeatedly has imposed viewpoint-driven censorship despite its ‘free speech champion’ claims (which are roughly as legitimate as its claim to be ‘often libertarian,’ without mentioning movement conservatism).

          I emphasize that I acknowledge Prof. Volokh’s right to impose viewpoint-driven censorship at this blog. His playground, his rules.

          And his hypocrisy.

    2. Mockery is proof you’re over the target! Just post though it!

  15. Isn’t SCOTUS acting the way that conservatives have wanted it to act? The major complaint I have heard from conservatives over my lifetime is that the court is legislating from the bench. The current Court seems to be very careful about moving from that idea and in many cases telling the legislature that it must address the issue because the Court will not do that for them.

    I think the problem is that some faux conservative really want the Court to legislate but for them.

    1. A considerable faction on the right have given up on the ideal of an objective judiciary just upholding the law, because they no longer believe it’s achievable. So now they’d rather have a judiciary that’s biased in their favor, than one that’s biased against them.

      Hurrah, living constitutionalism has triumphed, and this is the natural consequence of that.

  16. Suckers. This is about one thing and one thing only. Money. $$$. Trump keeps fundraising and saying outrageous things so he can use his campaign fund as a slush fund, just like he used his charity in N.Y before he ran for President. There is no deep thinking or complex explanation. Trump is very good at coming up with contentious issues and getting the mob frothing, whether they are for or against him. It is brilliant but depressing. He makes PT Barnum look like an amateur. And he is laughing all the way to the bank, as America becomes more divided, and people, in fact his political base, refuse to get vaccinated against a dangerous disease. Trump doesn’t care as long as he makes money. I know a lot of you think that Covid is a hoax, but hell you fools think that 9/11 was a conspiracy, and that Obama was a secret Muslim born in Kenya. There is no fixing stupid. Give him your money you dumb ass Trumptards, and if your older relatives die of Covid know that you probably inadvertently exposed and killed your own family members. Of course, you can just blame Fauci, or complain about Facebook. It’s probably easier than facing the truth. A grifter suckered you and is still doing it. Sad.

    1. That whole long line of diatribes is utterly laughable. If you have some proof that Trump has used one red cent for his own self personally, show it. Because there is none whatsoever, as of now.

      1. Are you kidding? The man is money laundering all the time. He can put people into jobs controlling that money. Have that money spent at properties he owns. He can travel anywhere he wants, usually his own properties and bill that to the money he has collected. Look what he did with his business paying people business expenses and then avoiding taxes. He can do the same thing here. As for proof, well just have him open the books and show where the money went.

        1. There is one thing I can say about Trump.
          He has so many enemies and so many people actively trying to imprison him, I can say for certain that he HASN’T committed any crimes.

          It’s like going to a shady mechanic to look at your car. If they want to fix it, you don’t know if it’s broken. However, if they don’t offer to replace something, you do know it’s certainly not broken

          1. I would encourage you to think for a moment on what you have said. By your logic Al Capote, John Gotti, and any of a number of other notorious people could also be said to have not committed a crime. That fact that many people are looking into your affairs does not mean your innocent, it means the truth have finally caught up.

            1. Except on everything from taxes to his actions, Trump has been extremely public and dealing with agencies that are prosecutor, judge, and jury. There is no hiding from the IRS.

              Capone conducted all of his meetings in secret and was only caught because he couldn’t say that he wasn’t rich. Trump, on the other hand, has been continuously recorded for years now. There is also no serious accusation that Trump has bribed his way out of investigation and prosecution, which Capone was famous for. The only things they actually prosecuted him on were investigating bribery of his predecessor and making a speech to an angry crowd. Neither of which are actually crimes.

              It’s the bribery that changes everything. Capone had half of the police force and judicial system on his payroll and the rest lived in fear. Are you truly thinking that anyone in power actually fears or is being paid off by Trump?

  17. Court packing stands no chance with Congress as it is currently made up. Unless Democrats get 60 votes or change the filibuster rules, it is not going to happen. I do not see any point worrying about it unless and until either of those happen. I doubt the Justices are making decisions based on this debate. Even if they are, though, that is free speech for you.

    I do think that court packing would be a horrible idea, though.

    1. America has changed the size of its Supreme Court a number of times while building a nice country. Why — other than conservatives’ preference for the current lineup — would another change be a horrible idea?

      Thank you.

      1. I feel like that would likely lead to conservatives packing the court when they get a chance followed by liberals and so on. It would make the Supreme Court unweildly large.

        1. When do you expect Republicans to possess the votes to arrange change in the size of the Supreme Court?

      2. Changing the number of Supreme Court justices is a bad idea because it undermines the court’s legitimacy and the public’s willingness to accept its decision. Based on my experience as a judicial staff attorney on a state supreme court, an overwhelming majority of justices try to put aside their political preferences and to decide cases on their merits. They’re generally able to do so, although they admittedly find it more difficult in the high profile, politically charged cases. That’s why Chief Justice Roberts said that there are no Obama Justices and no Trump Justices. Institutionally, it is better for the country if the public believes their decisions are not politically motivated, because a politically motivated court is fundamentally undemocratic. Packing the court will reinforce the view that the Judges are not really judging the cases on their merits, but just acting as shills for the person who appointed them. That’s why the Democratic majority in Congress rejected FDR’s court-packing scheme in 1938, and why there has been no change in the number of justices for more than 150 years.

    2. Agreed on both points.

    3. If they change the filibuster rules, there won’t be TIME to worry about Court packing.

      If they really mean to get rid of the filibuster, they’re not going to do it until they have a series of controversial measures already teed up and ready to push through. Be pretty stupid to get rid of the filibuster, and then sit on your hands while one of your Senators dies of a slip and fall, or to pass through the Senate something that goes down in flaming defeat in the House.

      The time to worry is when they start passing these things in the House. That would indicate that they’d begun the teeing up process. They’re not going to incur the political costs of doing that if they don’t mean to finish the job.

      1. If the Democratic leadership had the votes to get rid of the filibuster, they’d have already done it. But it’s pretty clear that they don’t, and I don’t see that changing any time soon. Even if they did, I doubt they’d have the votes to pack the court. The party moderates won’t go for it because they’d alienate too many people like me — a lifetime Democrat who favors getting rid of the filibuster but strongly opposes court packing. They also know that what goes around comes around, and if they pack the court the Republicans will do the same thing when they return to power. Biden had to create the commission to placate the progressives in the party, but I doubt he favors court-packing: He opposed it at the start of the 2020 campaign, and switched to the commission proposal to make himself less vulnerable to attacks from the left. True, pressure from the party base to pack the court will increase significantly if SCOTUS overrules Roe v. Wade (which seems possible), but even then I think it’s unlikely that the Senate as currently constituted would go for it, though it wouldn’t be out of the question. It could certainly happen if the Democrats have an overwhelming victory in the 2022 midterms, but that seems unimaginable at present. In short, I don’t think you need to worry unless and until SCOTUS overrules Roe.

  18. Good to know that if Trump will say it, Blackman will report it as true.

    1. Don’t pick on a guy from a 5th tier law school

      1. Prof. Blackman’s repeated evocations of Trump (and the Alito-Thomas episodes of “Justices Gone Wild”) seem to stir a slightly different batch of clingers than the rubes customarily lathered by the Volokh Conspiracy’s other contributors.

        Whether this changeup (or is it a screwball?) pleases or annoys the other Conspirators is an interesting question.

    2. That Trump says something makes it neither true nor false. This is a point that it seems that 90% of the commenters miss.

      When I used to work in New York* and take the subway every day, there was a lunatic homeless man who like to spout off all kind of nonsense. Sometimes what he said had some truth to it, other times it sounding like a broadcast from the planet Pluto. I put no stock in it, but I would not automatically assume that the truth was the opposite of what he said.

      *That was until Covid. Now I work at home. To quote a great American, “Free at last! Free at last! Thank God Almighty, Free at last!”

      1. Blackman seems to have missed it as well, since the OP is pretty clearly posted for truth.

  19. Ad terrorem? I had to look that one up.

    It’s a metal band from Lima, Peru. Here’s Fornicatorium — and you probably heard it here first.

    Carry on . . .

  20. Brings back memories…

    “The honorable gentleman has told us that these powers given to Congress are accompanied by a judiciary which will correct all. On examination you will find this very judiciary oppressively constructed, your jury trial destroyed, and the judges dependent on Congress.”
    (Patrick Henry, June 5, 1788)

  21. Dems are traitors who should be gassed.

    1. Thank you for another example of the glory of the Volokh Conspiracy’s ostensible civility standards.

      Oh, and . . . open wider, pal.

      1. Fuck off and die.

        1. So long as you (1) don’t use the term ‘sl@ck-j@w’ (to refer to a conservative) or ‘c_p succ_r’ (to refer to a conservative, you should be fine.

          Even if you use one of the proscribed terms, you should still be fine . . . unless you switch to being a Democrat.

          If I have any that wrong, the Volokh Conspiracy Board of Censors is welcome to correct the record.

  22. Justices sure weren’t shy when they decided Obergfell — screw them the fascist cowards

    1. Obergefell was the work of fascists?

      1. Judicial imperialists, more accurately.

        1. The bigots are never going to get past that one.

          Which is nice.

    2. Apparently, shooting off in another man’s butthole is the pinnacle of human dignity.

      1. I don’t know about that, but writing about it somehow complies with the Volokh Conspiracy’s anti-vulgarity standard, at least with respect to certain commenters.

      2. Another day another “Gay Penthouse Letter” from Aktenasshole.

  23. Since Trump mentioned the “nine justices” that implies that even the liberals are trying to avoid court packing. So his theory is a two-edged sword.
    There were a spate of unanimous decisions, which some attrubuted to the reaction to court-packing. More likely, those cases were just less controversial.

  24. Since he has fortunately been evicted from social media because of his dangerous whack-jobism, why is Trump’s antic blathering given attention here?

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