Against Expanding the Size of the Supreme Court

Today was independence day, in a manner of speaking. The Presidential Commission on the Supreme Court of the United States has completed its work and submitted a report to the president. The Commission was not asked to make recommendations, and it did not. I hope it offers some helpful analysis of reform proposals surrounding the Court.

Now that the report has been submitted, individual commissioners are free to offer their own personal views on these issues.  Co-blogger Will Baude has done so at some length. Kermit Roosevelt, Larry Tribe and Nancy Gertner have published arguments in favor of packing the Court. I've done so as well. I'm sure my fellow commissioners will have more to say on these issues in coming days.

In today's Wall Street Journal, I have piece arguing that Court-packing is a bad idea that would speed the pace of the erosion of constitutional norms and likely lead a spiral of competing Court-packing by future legislative majorities.

From the piece:

If such a drastic action were truly necessary, there would be widespread political support for it. If a narrow political majority can convince itself that we are in such a crisis, then the problems facing the country are far deeper than a misguided court.

Altering the size of the court to reverse constitutional rulings that politicians don't like can be done by simple legislative majorities. Powerful constitutional norms have helped restrain legislators from blowing up the court when they were unhappy with the justices or a new party assumes power. The erosion of these norms would have long-term consequences for how the constitutional system works and how effective the court can be at remedying constitutional violations.

Read the whole thing here.

Comments

[Rev. Arthur L. Kirkland]

You use "court packing" repeatedly (perhaps exclusively . . . I will not fund the Wall Street Journal). You chose the Wall Street Journal to publish your opinion. You appear to reach predictable conclusions favoring the right-wing perspective.

If you are trying to persuade Republicans and conservatives to oppose court enlargement, you are likely to succeed (and could accomplished as much without trying).

If you are trying to persuade the liberal-libertarian mainstream, victors of the American culture war, you do not seem up to the task.

Carry on, Conspirators . . . so far as your betters permit, anyway.

[TwelveInchPianist]

"You use "court packing" repeatedly..."

Well, that's the term that everybody, including the "liberal-libertarian mainstream," has used from the time of FDR's proposal until some folks on the left decided they didn't like the makeup of the court.

Why change terms now?

[Michael D]

Why take the time to respond to someone who repeatedly demonstrated a belief in his own superiority?

[TwelveInchPianist]

He's just as entitled to his own weird superstitions beliefs as anybody else is entitled to theirs.

[Rev. Arthur L. Kirkland]

It's not my superiority, Michael D. Is is the superiority of reason, tolerance, science, modernity, education, etc. to backwardness, ignorance, superstition, and bigotry. The superiority of our liberal-libertarian mainstream to our can't-keep-up, disaffected clingers. The superiority of modern America to the illusory "good old days" for which clingers pine in vain.

I don't expect Republicans to like it, or to have the character to acknowledge it . . . but at least be mature and sensible enough to recognize it.

[Armchair Lawyer]

And yet, Rev is an avowed supporter of the Palestinian people and avowed hater of Israel...

[Rev. Arthur L. Kirkland]

I dislike Israel's reprehensible conduct (the occupied territories, the cuddling with Trump). I dislike subsidizing right-wing belligerence anywhere, including Israel. I believe Israel should pay a steep price for its partisan conduct with respect to American politics.

You are welcome to disagree, as is any other Republican bigot, but my preferences will prevail on these points, over time, in modern America.

[Michael D]

Yet you just stated your own bigotry in this response. Bigotry for anyone who does not agree with you. While I happen to agree with many, not all, of the things you say, that certainly does not make me superior to others.

[Rev. Arthur L. Kirkland]

Are reason and science superior to dogma and superstition?

Are tolerance and inclusiveness superior to bigotry and insularity?

Are progress and modernity superior to backwardness and pining for racist "good old days?"

Is education superior to ignorance?

Is a person who prefers reason, science, tolerance, inclusiveness, progress, and education superior to a person who prefers ignorance, backwardness, insularity, bigotry, dogma, and superstition? I believe the answer to be yes. If you disagree, let's hear the argument for the half-educated bigots and superstition dopes.

[Michael D]

I believe in the superiority of ideas, not human beings.

[Rev. Arthur L. Kirkland]

Everybody?

One group that doesn't use that term is the influential Democrats with whom I interact -- you know, the people who will decide whether to enlarge the Court, and (so far as I can determine) without much concern about what the Volokh Conspirators, Republicans, and right-wing bigots think or say.

[Roman Moroni]

What do they call it? And what objection do they, or you, have to the term "court packing"? It isn't an obviously slanted euphemism like pro-life or pro-choice? And it does seem more precise than something like "court enlargement." That kind of sounds like you're making the room bigger, or the judges bigger, rather than putting more judges in it. Plus "court enlargement" is way more likely to induce a dick joke from Bill Maher.

[Rev. Arthur L. Kirkland]

Expansion is used. Enlargement is used. Increasing the size is used. Adding justices (or judges) is used. I never hear packing from the people who will actually decide the issue.

In what way is packing more precise than enlargement? I believe most English teachers would regard enlargement or expansion to be more apt words for this context. I recognize movement conservatives are not fans of standard English, but many Americans have the benefit of a proper education.

It may be easy when reading this blog to miss the point that from the perspective of many Democratic leaders and elected officials, objections from the Federalist Society, Republicans, and conservatives -- people they know mostly as vote-suppressing bigots, norm-rejecting contrarians, and virus-flouting jerks these days -- would make Court enlargement more, not less, attractive.

[Roman Moroni]

I was kind of joking about the whole "enlargement" thing. I doubt use of the term would cause any actual confusion. But I stand by my dick joke prediction.

My real question is, what exactly do you dislike about the term "court packing"? It's the most common term I've heard for the idea, and if proponents of it avoid using that term there's probably a reason.

Does the term have negative connotations that are distinct from the negative connotations of the practice itself? Is it a misleading term? If so, what specifically might it lead people to believe that isn't true?

[Roman Moroni]

I guess if I really think about it, I can kind of see how some people might think "packing" implies the over filling of something past the point of what's appropriate. So maybe there is some subtle judgement that comes with the term, depending on the context.

But I can also see how someone could think of packing as getting the very most out of a given space. You want them to pack more chips into that bag that currently is half air.

All I know is that political strategists generally try to change a common term for something only if they think it will benefit their agenda somehow, even slightly. For some reason I find this kind of thing interesting.

[Longtobefree]

Asset forfeiture
Abortion
Qualified immunity
Nobody cares about the court anymore, it is just another political force to be considered in choosing your actions.

[Sebastian Cremmington]

To add more justices all 9 current justices and all living former justices would have to come forward and say the workload is overwhelming them. The best evidence that the workload is too great is the it looks like being a justice killed Scalia, RBG, and Renquist while seriously harming Justice Stevens health. I pray for Justices Kennedy and Souter and O’Connor that the curse of the Supreme Court doesn’t strike them and send them to an early grave.

[TTT]

RBG died at an early age?

[Brett Bellmore]

"Kermit Roosevelt, Larry Tribe and Nancy Gertner have published arguments in favor of packing the Court. I've done so as well."

You might want to edit that a bit.

[Roman Moroni]

I noticed that too. He clarified his own position in the next sentence, but it still seems like unfortunate wording.

[Rev. Arthur L. Kirkland]

Lack of an editor has consequences.

Relatively frequently.

[Roman Moroni]

At least the bloggers have an edit function. They can't blame all their wording mishaps on the lack of one, like I do.

[grb]

"Powerful constitutional norms", huh?

Well we've seen Barrett after Garland & your pieties ring hollow.

[WuzYoungOnceToo]

your pieties ring hollow

That's just an acoustic effect caused by the lack of content within your skull.

[TwelveInchPianist]

The way Garland's been politicizing the AG's office, much more so than anyone including his predecessor, we should be thanking McConnel that he's not on the court.

[bernard11]

Bullshit.

[LGDaub]

The thing is, SCOTUS is too small for the job. There are more circuits than justices, which means the lower courts lack guidance and the justice time to review, at a time they are all busier than ever. Not to mention making extra work for themselves with their nationwide injunctions on political issues.

I repeat my previous proposal of expanding by two, based on nominees from Dems and GOP. Six to be selected by POTUS for Senate consideration, two are confirmed. POTUS can always add more names. It's up to each party to avoid sending a list of obviously unacceptable candidates. If they want at least one good justice, they had better offer good options and hammer it out in the Senate judiciary committee.

[Archibald Tuttle]

I repeat my previous proposal of expanding by two, based onominees from Dems and GOP.

So now you want to make the 2 party system part of the Constitution? No. Every party must have a nominee, plus write-in nominees for registered independent voters.

[JesseAz]

It's up to each party to avoid sending a list of obviously unacceptable candidates

By obvious im sure you mean anybody who is right of RGB?

[Dick King]

If someone really believes that the Supreme Court is understaffed and that that's why they're proposing the expansion, they should propose an expansion that takes effect five or nine years after it's signed into law, when the legislature and president can't reasonably predict which party's members will get to nominate and confirm the additions.

-dk

[Roman Moroni]

Have any court packing proponents actually stated that particular reason as a justification? I've never heard it before.

[Dan Schiavetta]

If the Court was well to the left, as opposed to well to the right, of Americans' view on various issues, and if a 6 - 3 Court majority had been achieved by gaming the system, I think we would find a quite different analysis here.

[JesseAz]

Advise and consent is gaming the system?

[Toranth]

Anything that doesn't get you the seats you want is gaming the system or theft or treason or whatever. Even when it is the absolutely most common outcome of the situation.

[Krychek_2]

You do t think it’s possible to game advice and consent?

The bottom line remains that the party that has lost the popular vote for president every election but one since 1992 now has a 6-3 majority on the Supreme Court, which court is now poised to eviscerate what most of the country believes to be a basic constitutional right. It’s Exhibit No. 689 of the toxicity of our polity in which an ideological minority whose values are wholly at odds with where most Americans are nevertheless gets to make policy.

[Rev. Arthur L. Kirkland]

These blindered dumbasses can't see it (or refuse to acknowledge it), but when Democrats have the votes to enlarge the Court it almost certain to occur, especially if Justices Barrett, Gorsuch, and Kavanaugh perform as the Federalist Society expects.

Get better ideas, clingers, or get streamrolled.

I will be content either way.

[Toranth]

There is no "popular vote" for President in the United States.
Instead, there are 51 different state/territory elections.

Also, in the past 11 Presidential election, even if there was a "popular vote", Democrats have only won a majority of the vote three times - Republicans have won it four times. So Democrats winning a majority of the "popular vote" is actually the least likely outcome!

[Roman Moroni]

If your point is that advice and consent can be gamed like anything else, I assume you're probably right.

But I don't really think it matters what the majority think is a constitutional right and what isn't. We have a supreme court because most people are rationally ignorant - to use an Ilyaism - about such things. The majority of Americans probably have no idea how much the first amendment protects unpopular speech, and would must likely gut the amendment if they did know and had a say in such matters.

I'm not saying that the current supreme court majority is right or wrong about Roe. From everything I'm hearing from legal experts on both sides, I assume the constitution could probably be reasonably interpreted to support or overturn it. I certainly have a preferred outcome, but I don't assume mine is the best legal argument just because all of my idiot friends assure me that I'm right about this.

[WuzYoungOnceToo]

in which an ideological minority whose values are wholly at odds with where most Americans are nevertheless gets to make policy.

And yet Americans vote for Rs and Ds in their state legislatures at identical rates, suggesting that neither half more/less at odds with the majority of Americans. Your extrapolation of the electoral college-based presidential election results to what the country as a whole thinks is simple-minded at best.

[Michael D]

If you want a less political judiciary, then the person who nominates judges and the body which grants its consent need to both be further removed from politics. Under the current constitutional order, that is not going to happen. I would chalk this up as one more of multiple reasons why a presidential system of government is worse than bad.

My suggestions for correcting the problem: https://libertyseekingrebel.blogspot.com/2021/09/freedom-amendments.html?m=1

[Titus PUllo]

Remove Judicial Review from the SC and put it where it belongs, in State Legislatures. Problem solved. Or just expand the SC to 100 Justices, 2 from each State and expand the House to 4,000 reps....come on we can do it

[Michael D]

I agree the states ought to have the ability to perform this task but I also find that judicial review has helped to protect the people from government overreach on some cases.

[bernard11]

That's a nonsensical idea.

[Hugo S. Cunningham]

(1) I found Progressive complaints about holding the Scalia seat open for the 2016 election unconvincing. But shoe-horning in Barrett at the very last minute as a substitute for Ginsburg was sharp practice.

(2) If the Democrats had won a solid Senate majority in 2020, conservatives would have needed to offer one SCotUS resignation to fend off progressive court-packing initiatives. But if progressives insisted on two seats, then conservatives should have called their bluff, warning progressives they would be to blame for permanently blowing up the authority of SCotUS.

[Hugo S. Cunningham]

Could a bi-partisan Congress, concerned about Constitutional rights valued by both Right and Left, invoke Fourteenth Amendment authority to shut down attempts by private actors and State courts to infringe Constitutional rights?

[Roman Moroni]

When they do that, do they have to be specific? I know they've done something like that with private housing discrimination. So would they have to direct it at abortion rights specifically, or can they say something as vague as "all constitutional rights"? If it's only directed at abortion rights, I doubt it would get bi-partisan support.

[Hugo S. Cunningham]

For such a proposal to gain bipartisan acceptance and to last unchanged through changes in political power, it would have to be general, protecting *all* Constitutional rights part of SCotUS case law, or otherwise plainly written out in the Constitution.

[Cal Cetín]

"Stand back, baby, I don't know how big the Supreme Court's gonna get!"

[MatthewSlyfield]

Honey, I blew up the Supreme Court!

[Rev. Arthur L. Kirkland]

If Democrats have the votes to enlarge the Court, they also will be able to eliminate the filibuster, admit new states (D.C., Puerto Rico, Pacific Islands), enlarge the House of Representatives (with it, the Electoral College), and expand the lower federal courts. Democrats would be able to figurative send the Republicans back to the Stone Age.

[Cal Cetín]

Eastern Oregon, upstate New York, don't forget Northern California (where the girls are warm)...

[Rev. Arthur L. Kirkland]

Why stop there when listing uneducated, superstition-saturating, parasitic, roundly bigoted Republican regions?

And how relevant are portions of states controlled by better Americans in this context?

Get an education, Cal Cetin.

[Cal Cetín]

Your reassurances have convinced me, the people in these regions don't need protection from an overbearing majority which ignores their concerns and has nothing but contempt for their interests.

[Stephen Lathrop]

The erosion of these norms would have long-term consequences for how the constitutional system works and how effective the court can be at remedying constitutional violations.

That is unwise. For a large fraction of the readership, framing the issue as speculation about future hypotheticals is more of a sarcastic taunt than otherwise.

Some readers may suppose my criticism is one-sided. But it is easy to show that the underlying reality is that lost legitimacy is already the condition of the court, and that is recognized by both parties. Problem is, movement conservatives like it that way. To demonstrate, just offer any proposal for court reform which would wipe out the present right wing advantage in favor of re-establishing mutual agreement that balance has been achieved, and legitimacy restored. None on the right will favor that. It will get almost universal assent on the left. That polarized disagreement might as well be a dictionary definition of illegitimacy on the court.

[Roman Moroni]

I don't think the agenda of politicians, and their failure to achieve them through court decisions is how to determine illegitimacy. If we are simply to concede that the SC judges are corrupt, and their rulings stem from blind partisanship with no principled approach to constitutional interpretation, then making sure there are an equal amount of leftwing corrupt hacks as right wing corrupt hacks might be fair, but it would do nothing to make the court legitimate.

I'm adamantly pro-choice, but no honest person really thinks that Roe was a slam dunk objectively correct constitutional interpretation, where any other constitutional interpretation is clearly nothing but dishonest political hackery. I'm not saying that it was an objectively wrong decision either. I'm saying that a majority of justices could probably reasonably rule either way without being obviously illegitimate. I suppose it would help legitimacy if both sides were consistent in their approach to implied guaranteed individual liberties.

Illegitimacy can not mean lack of political evenness in terms of preferred outcomes. I don't want a system where the justices gut the first amendment to allow hate speech laws, but to be fair they'll also gut it to allow anti flag burning laws. We have congress for that kind of trade off system for alternating rights violations that benefit the agendas of the two political parties that happen to be in power.

If you think there are justices who blatantly disregard any principled and reasonable interpretation of constitutional meaning, then by all means make the case to determine legitimacy. I have no doubt that certain justices' claimed principles aren't always consistent. And perhaps certain justices' method of interpretation allows for them to depart from the text, or any reasonable interpretation of it, if they deem it important enough to do so. I find those to be compelling arguments for illegitimacy. But not whose team got to pick the most players. That could theoretically lead to illegitimate outcomes if one teams' picks are consistently horrible at their job, but it's not an indicator of illegitimacy in and of itself.

[Stephen Lathrop]

Moroni, that is a thoughtful response, and sounds like good principle. Problem is, movement conservatives will reject out of hand any principled attempt to restore legitimacy to the court, by getting politics out of it. For instance, see what you hear if you propose this 5-step hypothetical sequence:

1. Democrats assemble political power sufficient to do whatever they want with the Court. They have super-majority control in Congress, and their guy in the White House.

2. Instead of lunging for power (remember, this is a hypothetical) Democrats decide it is time (Hallelujah!) to get the nation off the degrading slide toward partisan illegitimacy, and return the Court to operation on the basis of purely judicial virtues supplied by ideal justices—stuff like knowledge of law, proven judicial temperament, good writing, lack of personal activist political history, etc.

3. To accomplish that, Democrats approach Republicans with a deal: radical court reform. All the present justices will be impeached and removed for allowing the Court to become overly politicized. Then, pursuant to a new Senate rule agreed by both parties, they will be replaced by demonstrably non-political judges, who have shown by their history of judging a complete indifference to politics, and who personally have never donated to candidates or causes, nor taken any activist role in electioneering or policy debates among the parties, nor participated in organizations promoting political policies.

4. To provide practical assurance of that outcome, the new Senate rule for consent to a nominee becomes approval by a timely 90% vote of the full Senate, and no nominee gets unreasonably delayed, or denied a vote. To show their sincerity, and confidence in this reform, the Democratic President pledges to nominate the first 5 candidates proposed by Republicans in the Senate, before following up with 4 candidates of his own.

5. This is an ultimatum. Unless Republicans agree to this scheme of reform, and cooperate with it immediately, the Democrats will use their unchallengeable control of the 3 branches to purge the Court on their own terms, and pack it instead with a selection of young, activist, leftist partisans.

I think that probably at least approximates a theoretical route to your own notion of Court legitimacy. So make it a point to notice, if there were actually any interest in such a reform on the movement conservative side, they could propose that scheme themselves, now, and Democrats would leap at it.

So let's hear it, movement conservatives. Do you endorse doing that right now? There is an undeniable legitimacy crisis on the Court. Democratic politicians are backed into a political corner on this. Their own constituents believe that for decades a rightful Democratic majority on the Court has been stolen from them, and that an illegitimately installed right-wing bench now actually threatens the end of the American Republic. Right wingers may not agree with those assessments, but they are now part of history, and absent some change of course will not pass from political relevance for the foreseeable future.

To avoid the baleful consequences of that history, is it worth it instead to reform the Court utterly, and forego permanently political advantage for either side? What do you say? If you do not like the scheme outlined above, or think it impractical, what is your own counter-proposal to accomplish the same objective. Let's hear the right-wing proposal to get partisan politics out of the Court.

[Michael D]

Problems with several of your points:

1. Why Democrats? Why not Republicans or another party? And the times either party have had a Congressional supermajority and control of the WH are few and far between

2. How about instead of political opportunism, both parties refrain from attacking the Court when decisions do not go the way they would like

3. I doubt you can find 9 unicorns who meet all your criteria

4. I like the super-majority concept on paper. I doubt there will ever be agreement to a 90% super-majority. 2/3 is more likely

5. This goes back to point 1. Suppose it is the GOP in control and threaten to do the same? Bad threat either way

I have no idea what might be a "right-wing proposal to get partisan politics out of the Court" but it is my suggestion that the partisanship of the presidency and the Senate make it inevitable and this is a direct consequence of two events in US history:
1. The popularization of presidential elections going back to the Jackson era, and
2. The direct election of senators following the 17th amendment.

Democrats must accept part of the blame for these two things.

But I also blame the presidential form of government and the lack of a separate head of state from the head of government. The head of state ought to be a "elder stateman" type figure. While the head of government can be the political "creature". Give to the head of state the primary role of nominating federal court judges to an indirectly elected senate (repeal of the 17th amendment) and we begin the process of legitimizing the court.

[Cal Cetín]

"The head of state ought to be a "elder stateman" type figure."

Nowadays, an elder statesman is a retired politician, preferably someone who's written a book or two about how disgusted (s)he is with the political process.

[Michael D]

Cal, that is probably true. Personally, and I know this is not going to ever happen, I would prefer a hereditary monarchy as head of state. A role totally outside and excluded from the political sphere but having as their primary purpose the well-being of the entire nation, not just short-term self interest as with elected officials but multi-generational.

H.H. Hoppe expresses the concept in his work when he said

“… monarchical government is reconstructed theoretically as privately owned government, which in turn is explained as promoting future-orientedness and a concern for capital values and economic calculation by the government ruler. Secondly, equally unorthodox but by the same theoretical token, democracy and the democratic experience are cast in an untypically unfavorable light. Democratic government is reconstructed as publicly owned government, which is explained as leading to present-orientedness and a disregard or neglect of capital values in government rulers…”

A hereditary monarchy with the limited power to grant pardons, nominate judges and perform state ceremonial functions would be vastly superior to the present system of what comes down to one of two teams selecting the referee for a match between the two.

[Stephen Lathrop]

Michael D, thanks for giving it some thought.

1. Any party would be fine, of course. And as I pointed out, with an urge to cooperate, you don't need the exceptional power situation. So why not do it now?

2. Political parties are built as opportunistic conspiracies. That may actually further governance processes which depend on politics, as many legitimately do. The judicial system needs to be apolitical. It must be built and staffed to avoid politics.

3. During my years as a journalist, I personally encountered two such judges, both laboring in relative obscurity in state judicial systems. They did enjoy outstanding reputations in their local legal communities. I think there are enough like those to get started. Post-reform, they would become far more plentiful.

By the way, not that long ago, some in the professional military practiced avoidance of politics as a military virtue. In 1952, both parties wanted Eisenhower as their candidate, but at first no one could guess which party. Eisenhower had made it a point never to vote. That was not universal, but it was also not unusual.

4. The reason to not agree to 90% would be to create wiggle room to undermine reform. Stick to 90%. Without it you could not persuade D presidents to let Rs choose some of their nominees, or vice versa. The aim is to create a process which makes it irrelevant which political party first names candidates, because they will all be vetted and selected without regard to politics—not because the politicians doing the vetting and selecting will change their stripes, but because you have a process where nothing else works.

5. It is telling that you see the proposal as a threat instead of an opportunity. But that is pretty much everyone today, because politics has wrecked judicial legitimacy. That is a bad thing, and it won't be got rid of until powerful leaders decide to do it, and are willing to step out of today's broken frame of reference to get it done.

[Roman Moroni]

Stephen, I appreciate your thoughtful approach to practical solutions here. Rather than address your specific suggestions I think it's best to try and clarify where we disagree about your initial premise of illegitimacy.

First of all, I'm not a movement conservative. So hopefully you don't infer a bias on my part in that direction when I say that I really try not to be outcome oriented when I judge the legitimacy of SC decisions. I'm not going to lie and claim that I never root for preferred outcomes. But I feel much better when my preferred outcomes are reached through what seems to me as reasonable constitutional interpretation. I try not to assume all my preferences are dictated by the constitution, and that decisions that deviate from my preferences must be bad. That might seem obvious, but if you read articles and comments by a lot of Americans, they tend to yell and scream about how awful the supreme court is whenever an important decision doesn't go the way of their rooting interest. I think this kind of thinking, perhaps influenced by the media, might contribute to perceived illegitimacy.

Can you be a little more specific in terms of illegitimate outcomes recently? From what I've read this has been a pretty non partisan court over the last few years, with unlikely bedfellows amongst the justices. Is that in any way evidence of legitimacy, at least in term of left vs right biases? But even more importantly, what decisions do you feel were objectively wrong and why?

To be fair to your perspective, I do get what you mean by illegitimacy in terms of some of the shady practices by congress during the nominating process. And I don't know what the objectively best process is in this regard. No doubt it can be improved. But if the justices themselves are doing their job in a totally reasonable fashion, I don't see the pressing need to adjust for the sake of political balance.

[Stephen Lathrop]

From what I've read this has been a pretty non partisan court over the last few years, with unlikely bedfellows amongst the justices. Is that in any way evidence of legitimacy, at least in term of left vs right biases?

Yeah, I've read that stuff, too. I see the record differently.

What confuses the partisanship picture seems to me to be analysis which lumps cases bearing directly on political processes, with other cases which show political valence without direct legal effect on political process. The latter type case would be anything to do with gay rights, for instance, or abortion. In short, a class of cases featuring a politically polarizing subject, but which do not affect election outcomes except indirectly. On those, decision results have shown mixed partisan outcomes. That makes an overall partisan analysis which includes them look at least somewhat legit. I think those are the analyses you have been reading.

By contrast, the former class of cases, political process cases, reach right into the box of election activities, and start fiddling with the wires—Shelby County, for instance. I think if you check the record since Roberts became Chief Justice you will see a persuasively uniform pattern among the former class, the political process cases—losses for Democrats. Until the census case blew up because Roberts could not afford to stomach in public Trump administration lies, his courts had delivered losses to Democrats in case after case where election outcomes stood to be directly affected by the Court's decision. Gerrymandering, corporate political activity, election finance, union political organizing, voter qualifications cases, the list goes on and on, and always with the same result—whatever the subject matter, if the decision stands to affect election outcomes directly, Democrats lose. That may be a difference of, "judicial philosophy," at work, but I don't see how anyone can claim it is a legitimate difference.

[Stephen Lathrop]

Roman Moroni, more generally, I see Court legitimacy as a two-fold phenomenon. You seem to put your focus on one side of that analysis—legal legitimacy for the Court, as evaluated by legal experts. That is very important.

But I think it nevertheless has less practical significance for American constitutionalism than has a second-order legitimacy phenomenon, which is willingness of the public to endorse Supreme Court decisions—including decisions which divide public opinion—as normative decrees which elected government officials must follow, or lose the consent of the sovereign People.

When ordinary Americans, especially including those who are not legal experts, begin to conclude they can predict accurately the outcomes of complicated legal decisions, Justice by Justice, that second-order legitimacy is in danger. That implies that the public thinks the Court itself is governed as ordinary citizens understand and (unhappily) expect themselves to be governed, by William James' baleful summary of practical politics—which is to say governed by, "prejudices, partialities, cupidities, and excitements."

The Court's power to frame American constitutionalism cannot long withstand that opinion of itself, if it comes to flourish among the public. Look anywhere you like, and see if you do not conclude critiques are on the increase, critiques based on ascribing to the Court the exact characteristics James enumerated. Just read this blog, and see if you do not agree with me.

[Roman Moroni]

I think it’s a feature rather than a bug that the Supreme Court isn’t in the business of winning popularity contests. I also am skeptical of the assertion that the majority of the general public thinks about the SC much at all except around the time of nominations, and when a polarizing decision is handed down. But those kinds of decisions will always get a large number of people screaming “illegitimate!” when they don’t get their way. There’s no fixing that, apart from educating the public that the constitution doesn’t by default always proscribe their policy preferences.

I’m not saying that it isn’t some kind of problem if a significant portion of the population believes a thing. I just don’t think that the solution for the sake of “legitimacy” is to assume the people screaming the loudest must be appeased at all costs.

There’s a non trivial, and extremely vocal, percentage of the population that believes the last presidential election was illegitimate. Now that is also A problem. It’s a similar problem in that it’s mostly fueled by the relatively ignorant parroting the words of the “experts” that they trust. So does the solution to this problem necessitate an assumption that their cries of illegitimacy are legitimate?

You say that it’s a problem, in and of itself, that even non legal experts can accurately predict how each justice will rule on any given case. Even if we assume that’s true, how is that particular problem solved by adding more left leaning justices? Will those guys be any less predictable, especially if they were appointed for the very purpose of achieving outcomes more desirable to the left?

[Stephen Lathrop]

There’s a non trivial, and extremely vocal, percentage of the population that believes the last presidential election was illegitimate. Now that is also A problem. It’s a similar problem in that it’s mostly fueled by the relatively ignorant parroting the words of the “experts” that they trust. So does the solution to this problem necessitate an assumption that their cries of illegitimacy are legitimate?

There you raise a different, but surprisingly similar two-fold legitimacy question, about the nature of popular sovereignty. To understand popular sovereignty also requires a double view of its nature and function.

In the first instance, all sovereignty, popular or otherwise, is about power unconstrained, and exercised at pleasure. It is power of that sort, and only power of that sort, which is sufficient to found a nation, decree a government, and commence to govern in fact. At least in the views of some founders, the history of European nations did not afford any examples to the contrary during post-Medieval times. No nations founded on any other basis seemed evident.

In that frame, sovereign legitimacy can be understood narrowly, as the ability to exercise political power without constraint, except a geographic boundary within which the sovereign claims to rule. That says nothing at all about popularity, or even the presence or absence of murderous resentment. It just says that a sovereign with power to rule at pleasure is proved legitimate by that fact alone. Viewing it that way is just another way of understanding what sovereignty is. It is because interesting and useful consequences for governance flow from that insight that it is worth considering separately from the other kinds of sovereignty questions, the ones involving consent. I will not address those former concepts here, except to say the arguments drift in the direction of Hobbes.

But what about those latter questions, the ones which pertain to a different, consent-based notion of sovereign legitimacy, which runs parallel to the first? In that notion, sovereign legitimacy depends on the general assent of the people governed to adopt as their own the sovereign's general schemes of government, of social organization, and of political objectives. Insofar as that assent is impaired, the popular legitimacy of the sovereign dwindles. And as it dwindles, space opens for a rival to contest for sovereignty on the basis of both kinds of legitimacy—power and assent together.

Your quotation above examples a stir of recognition that this nation has encountered such a moment of challenged sovereignty, where power may be impaired, assent may be in question, or divided—and a hint of rivalry, an opportunity for something new to compete against the long-standing popular sovereign of this nation is now in play. It is why your question above suggests this nation is in a pickle. It is why so many otherwise sophisticated observers seem both troubled, and at a loss for what to do.

[Stephen Lathrop]

Even if we assume that’s true, how is that particular problem solved by adding more left leaning justices?

In conclusion, Roman, I do hope you have noticed that I have proposed nothing of that kind, except as (hypothetical) coercion toward reform on an entirely different premise. And to repeat, there is no reason why any such coercion should be necessary, except intransigence against reform by one political party or another. With cooperation, the necessary changes could start now, and be complete long before the mid-term elections.

[Cal Cetín]

"demonstrably non-political judges, who have shown by their history of judging a complete indifference to politics, and who personally have never donated to candidates or causes, nor taken any activist role in electioneering or policy debates among the parties, nor participated in organizations promoting political policies."

So much for John Marshall, Thurgood Marshall, Louis Brandeis, Felix Frankfurter, Hugo Black, Harlan the Elder, and the late Earl Warren.

[Cal Cetín]

Oh, and you can destroy all your RBG T-shirts, coffee mugs, totebags, etc.

[Stephen Lathrop]

Which would be a good thing, Cal. And even better, forget about the Federalist Society.

[Cal Cetín]

"I am shocked, *shocked,* to find politics going on in here!"

[Stephen Lathrop]

Cal, the, "so much for," caution is already operative. I doubt there is a name on that list which movement conservatives would endorse. Both Marshalls, Brandeis, and Warren you couldn't today get a libertarian to endorse. But what about the touch of singling out, "the late Earl Warren." Do you do that to deprive him of a place among others, who are immortals?

[Cal Cetín]

It's a Simpsons joke, if you missed it don't worry, it was from a long time ago, before they sucked.

[Stephen Lathrop]

Simpsons? Perhaps that was during the interval when I lived in Idaho, in a region without television signals, broadcast or cable.

[Cal Cetín]

I think my point is that you yourself have ruled these worthies out of consideration, and I presume you didn't do it out of deference to "movement conservatives."

[MatthewSlyfield]

"4. To provide practical assurance of that outcome, the new Senate rule for consent to a nominee becomes approval by a timely 90% vote of the full Senate, and no nominee gets unreasonably delayed, or denied a vote. To show their sincerity, and confidence in this reform, the Democratic President pledges to nominate the first 5 candidates proposed by Republicans in the Senate, before following up with 4 candidates of his own."

This in my view gets to the true heart of the current problem with the confirmation process. End the public hearings on nominees and remove the power the committees have to controls if/when nominees go to a vote on the floor of the Senate (for all nominees, not just judges/justices).

[MatthewSlyfield]

"3. To accomplish that, Democrats approach Republicans with a deal: radical court reform. All the present justices will be impeached and removed for allowing the Court to become overly politicized. Then, pursuant to a new Senate rule agreed by both parties, they will be replaced by demonstrably non-political judges, who have shown by their history of judging a complete indifference to politics, and who personally have never donated to candidates or causes, nor taken any activist role in electioneering or policy debates among the parties, nor participated in organizations promoting political policies."

I see a couple of major problems with this.

1. I don't see how it lasts unless you make it binding on all future Senates by doing it via constitutional amendment. Even then you would have to get rid of the political question doctrine and make it enforceable by the courts.

2. The result of this is not necessarily fair to both sides unless the new court is completely unbound by any decisions made by the old court. All existing precedent has to be thrown out and the new court starts over from scratch.

[MatthewSlyfield]

"To demonstrate, just offer any proposal for court reform which would wipe out the present right wing advantage in favor of re-establishing mutual agreement that balance has been achieved"

The only way to achieve that kind of balance is with an even number of justices. As long as we maintain and odd number of justices (to prevent ties) they will always fight over that last seat and majority control of the court.

[Harvey Mosley]

No. Whichever side has a majority on SCOTUS will always resist giving up that majority. And whichever side has a minority will always be in favor of "balance". That is not a sign of lost legitimacy. It is just human nature.

[Cal Cetín]

I don't think the court's problems stem from a lack of Rube Goldberg contraptions to get nominees.