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Court Packing

Neil Siegel on "The Trouble With Court-Packing"

The Duke law professor posts an important and insightful article on this subject.

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Cartoon criticizing Franklin D. Roosevelt's 1937 court-packing plan.

 

Duke Law School Prof. Neil Siegel, a prominent liberal constitutional law scholar has posted "The Trouble With Court-Packing," a new article that is probably the most thorough and comprehensive critique of recent calls for court-packing, so far. It's also notable for coming from someone who is no fan of either the present conservative majority on the Court or the procedural shenanigans that the GOP used to help achieve it. Here's the abstract:

Fundamental questions of constitutional policy, norms, and law are implicated by the wide-ranging public discussion of U.S. Supreme Court reform. This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing. The Article contends that there has likely been a constitutional convention against Court-packing for a long time now, although it is uncertain whether the convention continues to exist given Senate conduct since 2016. The Article also maintains that Court-packing is not as free from constitutional difficulty as the conventional wisdom holds, even if the arguments for its constitutionality are stronger on balance. Most importantly, the Article offers an analytical framework for thinking about Court-packing that rests upon a common ground foundation: the Court performs critical functions that most Americans want it to perform; most of the time, it performs most of these functions better than the available governmental alternatives; and Court-packing would almost certainly damage, if not destroy, its ability to continue performing these functions by impairing its legitimacy and independence. Court-packing should therefore be reserved for extreme situations, in which adding seats would: (1) respond proportionally to a previous instance of Court-packing; (2) restore the Court's legitimacy in the eyes of a large majority of Americans; or (3) meet a national crisis to which the Court was contributing. Moreover, even when an extreme situation exists, Congress should ask itself whether it can legislate in other ways to address pressing problems before packing the Court. Applying this framework, the Article cuts against the ideological grain of current debates. As many progressives advocate Court-packing and many conservatives oppose it, the Article shows that there are principled reasons to oppose Court-packing at this time even if one believes that Senate Republicans violated an important convention requiring good-faith consideration of Supreme Court nominees, and even if one is deeply concerned about the ideological orientation and methodological assertiveness of the current Court.

Some of the points in the article recapitulate and build on previous criticisms of court-packing, including those included in the recent report of President Biden's Supreme Court Commission. I have advanced a variety of related critiques myself (e.g. here). But Siegel makes some important new points, including this one, summarized in his recent post at the Balkinization blog:

One prominent argument in favor of Court-packing now is that the Republican Party, under the leadership of Donald Trump, is threatening to end American democracy.  If this happens, the Democrats will not be able to change the Court's composition over time through winning elections and controlling the judicial appointments process.

The greatest risk to American democracy in current times is indeed that lies about voter fraud or other asserted "legal irregularities" will enable the Republican presidential candidate in 2024—whether Trump or someone similarly anti-democratic—to steal the election through politicized state election officials who manipulate vote counting, or through Republican-led state legislatures that reject the popular vote in their states and submit alternative slates of presidential electors to the Electoral College…..

Professor Richard Hasen has recently identified what seems most likely to prevent such attacks on American democracy from succeeding.  It a broad-based coalition—including progressives, moderate liberals, independents, and democracy-defending Republicans—who are all prepared to put profound policy differences aside for the time being to protect American democracy by voting for, and otherwise supporting, the Democratic presidential candidate should the alternative be Trump or another candidate who is anti-democratic.  Political scientist Daniel Ziblatt likewise has observed that this approach worked in the past in some European democracies….

With respect to Court-packing, a key question worth asking is whether a move by Democrats to add four seats to the Court would make it more or less likely for such a coalition to form.  One cannot know the answer with certainty, but it would likely turn primarily on the reactions of democracy-defending Republicans to Court-packing, because they are the ones most likely to be alienated by it.  There is a real risk that they would regard Court-packing as so incendiary that it would render such a coalition impossible to form.

I share both Siegel's concerns about the Trumpist/GOP threat to democratic transfers of power, and the potential for court-packing to undermine the coalition needed to contain it. Court-packing is almost universally opposed by conservative, libertarian, and centrist opponents of Trumpism. Moreover, many of them (rightly, in my view) see it as not just another policy issue but as a serious assault on a vital liberal democratic institution, in its own right. Thus, it could easily turn out be a deal-breaker for any broad anti-Trumpist coalition.

I would add two points to Siegel's analysis of this issue in the post. First, even if Democratic court-packing helps stave off the next 2020-like attempt at a Trumpist coup (say, in 2024), it is unlikely to keep illiberal politicians permanently out of power. The next Trump-like president could (if his party also controls both houses of Congress) respond to the Democratic court-packing effort with one of his own, thereby ensuring a Supreme Court that cooperates with his efforts to stay in power, even after losing an election. Once one side packs the court, it becomes easy for the other to respond in kind, whenever they get the chance. More generally, liberal democracy benefits from having an independent judiciary, which court-packing is likely to undermine. That is why, as Siegel, notes in the article, court-packing has been a standard tactic of incipient authoritarians around the world.

Second, it is worth noting that the current Supreme Court majority did in fact help curb Trumpist efforts to steal the 2020 election, as also did numerous conservative lower-court judges. A judicial branch weakened by court-packing might well be unable to do that in the future. As Neil says in the article, a packed court "might well have accepted Trump's arguments."

I don't agree with every single point in the article. For example, I am more sympathetic than Siegel is to the idea of permanently banning court-packing by constitutional amendment. But I also recognize such an amendment is highly unlikely to be enacted anytime soon, if ever.

Be that as it may, this is the most compelling critique of court-packing to date. A must-read for anyone interested in the issue.

 

NEXT: Hamburger v. Parrillo on the Nondelegation Doctrine

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  1. The loudest voices claim9ng that Trump wants to end democracy were also the loudest voices pushing the Russian collusion narrative.

    1. And, we are off to a roaring start with an ad hominem argument.

    2. Trump tried to collude. He thought he was colluding. He would have welcomed actual collusion. (Trump tower meeting.) It was only due to his stupidity, ignorance and laziness that it didn't happen.

      1. Sure, and the FBI falsified evidence by negating Carter Paiges’ positive involvement with CIA intelligence efforts, in order to support the Russian collusion narrative when there was none.

        I was able to vote against Trump. When is the referendum on the FBI going to be held?

        1. You’re denying things that Trump boasted about doing.

          1. Then let's have the quotes. Something along the lines of, "Bwah ha ha! I'm colluding with the Russians!", mind you, not him boasting of doing something you think must have been collusion, because after all it's Trump, and Trump was colluding.

            1. Unfortunately, [Pence] didn’t exercise that power, he could have overturned the Election!

              And hiding behind 'Trump honestly believed a bunch of false things so it was okay' is not actually making things better for Trump and the GOP that supports him.

              1. Unfortunately, [Pence] didn’t exercise that power, he could have overturned the Election!

                I simply refuse to believe you failed to notice that you were responding to an appeal for quotes about alleged Roooshan collusion.

    3. Michael Ejercito : ".... Russian collusion narrative .... "

      Of course people who say this are just repeating what their handlers tell them, but what do they even think it means?

      (1) There were reasons to investigate Trump, the first being a aide who drunkenly bragged about what the Russians would soon do to help Trump's campaign. Drunken or not, his knowledge proved accurate.

      (2) And presidents get investigated - on far lesser grounds that accumulated on Trump-Russia ties. To hear the Right's snowflake whining you'd think Trump was the first politician who ever faced an investigation.

      (3) And the investigation uncovered a lot: Trump's campaign head holding secret meetings with someone U.S. intelligence listed as a Russian spy. Trump's son responding with glee (in writing) when told the Russian government wanted to help his daddy's campaign. Trump's NSA nominee lying about his contacts w/ the Russians to the Vice President, multiple Trump officials and the FBI. Trump's fixer holding secret negotiations with Kremlin officials on a massive business deal throughout the campaign (even as Trump repeatedly lied about Russian business ties). Oh, and Trump's fixer negotiating to secure an Trump sex tape thru a Russian intermediary. (To be fair, the people who testified before Mueller's grand jury thought the tape was faked)

      (4) Meanwhile, the Russians sat on a trove of stolen emails from a Clinton associate for five months. So when did they finally use it? Less than one hour after the Access Hollywood story broke and rocked the Trump campaign. Their boy was in trouble; they raced to help.

  2. The amount of energy the VC expends on a proposal which only a minority of Democrats support, which both Biden and Pelosi oppose, and which by everyone's estimation doesn't stand a 1 in a billion chance of being enacted, is remarkable.

    1. Because fringe ideas-good pr bad- never become mainstream, right?

    2. If I told a random person 20 years ago we'd have 75 genders and be cheering on the chemical and surgical mutilation of elementary schoolers to transition them to one of these genders they'd have me committed yet here we are.

      1. Amos,
        To be fair; if you, today, said half the things out in public that you write here at the VC, but were stripped of the anonymity of the Internet, you'd also be committed. 🙂

        1. That is highly dependent on geography. In the People's Republic of NJ, Amos would be committed to Greystone (mental hospital), pending a tarring, feathering, and being drawn and quartered in Trenton on the statehouse lawn.

          In Tennessee, he would be elected to the state legislature.

          Go figure. 🙂

    3. Talk to Neil Siegel, he is the one who wrote the scholarly article Somin is responding to.

      Responding to articles a Conspirator finds interesting is SOP here, see the Hamburger/Padillo post yesterday.

      1. Nobody told the VC to respond to Siegel's article on a fringe position.

        This is the opposite of what happened with the individual mandate of the Affordable Care Act, where nobody here objected to it until it developed the fatal Constitutional infirmity of being adopted by a Democratic president. Here, we see an issue microanalyzed before it actually gets fought.

    4. Even if either half of your assessment were true, would it really be "remarkable" that law professors would focus on issues relating to the composition of the Supreme Court of the United States?

      1. Yes it would, if it was just pie in the sky speculating, like here.

        1. It's not "speculating." There are actual proposals out there. Politically serious enough that even though Biden didn't support them, he didn't feel he could simply dismiss them out of hand; he felt the need to appoint a commission to address them. (I don't think anyone thought the commission was going to come back with a report saying, "Yay, court packing!" But the point is that he needed the political cover of such a report to hold off people in his own party.)

          1. You're right about that = Politically serious enough that even though Biden didn't support them, he didn't feel he could simply dismiss them out of hand; he felt the need to appoint a commission to address them.

  3. The Republican party under the leadership of Donald Trump is attempting to destroy democracy.

    Good God. How unbelievably juvenile and fundamentally unserious. These are things one might expect to hear from Joy Behar on The View, not in purportedly serious, academic circles.

    The embarrassing debasement of our "elites" continues apace.

    1. Peter Strzok and Kevin Clinesmith did mre to destroy democracy.

      1. Even if one were to accept your premise, that's hardly "the Republican Party", is it?

        We live in an Alice in Wonderland world, where those who oppose unending government lockdowns, mandates, and other deprivations are "authoritarians" and those who would disqualify their political opponents from the ballot are "defending democracy".

    2. The rhetoric is over the top, but it is a lot closer than you make it out to be.

      Trump cares only about himself. If ending (or promoting) democracy was necessary for him to win, and he could do it, he would. And stealing an election, which Trump tried to do, weakens our democracy in a way that is far too close for comfort to ending it. Finally, the Republican party is currently genuflecting to Trump out of fear of losing primaries, and is thus enabling the weakening of our democracy.

    3. Or maybe you're the fundamentally unserious one. Maybe you missed the other day when Trump openly admitted he was trying to overturn the election. Maybe you missed this past weekend when the RNC decided that Republicans investigating a coup attempt was worthy of censure.

      1. Maybe you missed the fact that Trump was, at least based on public statements, not trying to overturn the election. He was trying to overturn the election outcome,, which is what anybody demanding a recount is doing.

        You phrase it as though he were conceding that he legitimately lost, and wanted to be installed as President anyway. No, the express game plan was that he gets the certification delayed until allegations of fraud and other irregularities get investigated, which he posited would demonstrate that he was the actual winner.

        Now, maybe in his heart of hearts he secretly knew he genuinely lost, and was intent on ending up reinstalled as President anyway. I can't read minds, so I can't say that wasn't the case.

        But I can sure as hell read words, so I know that's not what he "admitted".

        1. I can see three possibilities (take your pick, I choose #3):

          1) Trump knew he lost and knowingly attempted to steal the election (he's an anti-democratic authoritarian).

          2) Trump believes he won (he's delusional).

          3) Trump's a man-baby who can't admit defeat (even to himself) and thus has convinced himself he won (he's a delusional anti-democratic authoritarian).

          1. I'll vote for #3

          2. I think it might be some odd combination of all three, but also even more interesting than that.

            This might sound facetious, but in a weird way I think that Trump is something of a post modernist, not philosophically but psychologically. He’s speaking HIS truth.

            Much like someone can see a result that they think HAS to be due to racism, even if objectively it is POSSIBLE that it’s not due to racism, Trump said ahead of the election that he can’t legitimately lose. If the results say he lost it HAS to be due to fraud.

            Like I said, I don’t think this is exactly like a philosophical position about objective truth being racist or something. I think it’s just the way his mind works.

            Or not. But it’s interesting to think about it.

        2. Brett Bellmore : "No, the express game plan was that he gets the certification delayed until allegations of fraud and other irregularities get investigated, which he posited would demonstrate that he was the actual winner"

          Brett is constantly exercising this rickety meme. For instance, Trump asks Georgia official to give him an exact number of phantom votes, despite being repeatedly told those votes don't exist. Per Brett, this is excused because Trump "sincerely" believed those votes could be magically coaxed into existence. Per Brett, that "belief" launders the raw criminality from the attempt.

          But Trump didn't offer a coherent theory or explanation on how those votes were lost, not even in the Georgia phone call itself. He breathlessly ran thru a scattershot grab-bag of conspiratorial gibberish - most of which had already been repeatedly proven false a dozen times over. He never paused over one goofy "theory" before racing ahead to the next.

          In fact, Trump has NEVER produced a theory to explain his fraud claims that's consistent from one day to the next. Rigged voting machines, absentee ballot fraud, dead people voting, international conspiracies, mass-produced fake votes - every audience hears a new and different story.

          Brett's attempt to find sincere belief in all this babble shows a touching affection for his man-god hero. Everyone else just sees a huckster's carnival barker routine.

          1. In Brettworld, Trump won the election. He didn't lose multiple recounts and scores of lawsuits. Mike Pence had plenary authority to reject certified slates of electors. Trump is incapable of criminal conduct. Ipse dixit from Brett suffices to establish any disputed fact, evidence be damned.

            IOW, Brett is commenting from Bizarro World.

          2. "or instance, Trump asks Georgia official to give him an exact number of phantom votes, despite being repeatedly told those votes don't exist."

            Nope, didn't do that. You can literally look at the transcript, he didn't.

      2. Yes yes, people seriously thought they could stage a 'coup' by occupying a single building with nothing but bear spray and viking horns. The most heavily armed people in the country and none of them brought a gun to the 'coup'.

        Really?

        If you asked any of them what they thought they were doing, they were trying to ensure the integrity of the election. They wanted an investigation into the election. Verify the election was legitimate. Follow the results. They wanted to fortify the election.

    4. What about that phone call pressuring the Georgia Secretaty of State to find him 12,000 extra votes? What about storming the capital, the gallows on the lawn, the chants of “Hang Mike Pence”? What about the phone calls to Mike Pence pressure him to throw out the election results and declare Trump the winner based on his own say-so and supposed powers as Vice President?

      You think you can come here and simply bullshit that none of this ever happened?

      1. "What about that phone call pressuring the Georgia Secretaty of State to find him 12,000 extra votes?"

        The problem is that there are two possible interpretations of what Trump actually said in that call.

        1. I know I won, there must be at least 12,000 votes for me that haven't been counted. Go find them.

        Or

        2. Fabricate 12,000 votes for me so I win.

        Only #2 creates any kind of legal issue for Trump. But there is no evidence that #2 is what Trump actually meant.

        1. There is ample evidence that Trump was soliciting election fraud. Sorting out what his intent was is why we empanel juries.

          Godspeed to the prosecutor.

        2. That's not a proper analysis. If you go to the bank and demand that the teller give you $12,000, and threaten him if he won't give it to you, you can't say, "When I threatened him, it was because I knew I had that much in my account so I was entitled to it" as a defense at your trial for bank robbery.

          And that's even setting aside that of course Trump did not know he had won, which is compelling evidence that #2 is what Trump actually meant.

          1. Is mens rea a required element in violating the salient GA election law?

            1. Yes. Of course, mens rea is ordinarily shown by circumstantial evidence.

              1. In that case, Trump has a reasonable defense that Slyfield described. As of now, I'm persuaded by it.

                1. I don't know which specific GA election law we're discussing — and thus can't possibly determine the applicable mens rea — but I'm willing to assume that any relevant infraction would not be a strict liability offense, and so one would have to establish some level of mens rea.

                  But as the post to which you responded illustrates, "I thought I was entitled to it" is not typically a defense to a crime like this. He knew that he wasn't entitled to get it in that manner.

                  1. I'm at the edge of my juror's seat waiting for the judge's instructions on whether a conviction requires 1) Trump believing he lost in Georgia, or 2) Trump believing he won but knew he was nonetheless acting in an illegal manner.

                    1. In order to establish an innocent state of mind, Trump would probably need to testify (though he has the right not to). Cross-examination would not be pretty, and the jury is free to reject Trump's self serving blather.

                    2. Georgia Code 21-2-604 requires intent that another engage in conduct constituting an offense.

        3. Actually, he didn't say either of them, because he didn't ask them to find anything. He asked for access to HIS people could look.

          1. As always, Brett's confidence in his own views does not correlate in any way with the accuracy of his views.

            1. I would post the link to the transcript of the call, but I'm not wasting my time because Brett will just do the same thing he did when I posted a link to the Merrick Garland memo to the FBI: he'll ignore the actual words and talk about what he thinks they "really" meant.

        4. I think there’s maybe a possibility number 3 that really only applies to Trump’s psyche and his odd relationship to objective truth.

          In Trump’s mind, it’s more like, “who’s to say who actually got more votes? This is like everything else with numbers in a business deal. If it’s close these things depend on who gets to interpret the data. With so many votes to go through, you could easily find 12,000 votes either way, depending on what you’re looking for.”

  4. What 'shenanigans' did Congress do to get a gop court? Last I checked the president doesn't have sole unchecked authority to pick whoever he wishes for the court or does somin know of some secret part of the constitution I'm not aware of?

    1. You're right, of course: Republicans did nothing unprecedented.

    2. The disparate treatment of the Scalia and Ginsburg vacancies by the Republican Senate is the functional equivalent of court packing. But I guess that is to be expected from a political party that regards the January 6 insurrection as "legitimate political discourse."

      Would Republicans regard assassination of justices as legitimate? That makes as much sense as the RNC's recent blather.

      1. "legitimate political discourse." = "mostly peaceful protests".

        I bet you didn't complain when all the BLM riots were called "mostly peaceful protests".

        1. Yeah, if you call every protest a riot, things sure do look inconsistent!

          1. Most protests did turn into riots.

            It was only two years ago, you can't gaslight this.

            1. He can't successfully gaslight it. He sure as hell will try, he's been trying for a couple years now.

              1. I don't say everyone in Washington DC on Jan 06 to protest was part of a riot.

                You and Bob can't seem to do that, for some reason. Conflating is all you got.

            2. Most protests did turn into riots.
              Nope.

          2. Yeah, if you call every protest where they loot stores and set buildings on fire "riots", though, BLM held a lot of riots, even if they did hold a few protests, too.

            1. Hey Brett, if you want to believe something without proof, saying someone who thinks otherwise is gaslighting you is the way to do it.

              If you want to live in reality, you should maybe not accuse people who think 'Most protests did turn into riots' is not supported of lying to you.

              1. If I wanted to believe something without proof, I'd avoid believing that BLM and Antifa spent a couple years conducting riots, because the proof for THAT is immense.

                1. BLM and Antifa spent a couple years conducting riots

                  And now you're making connections where none exist.

                  Some of the protests devolved into riots. Some had opportunistic looting and vandalism occur afterwards. There is zero examples of BLM and Antifa being behind any of that.

                  1. And several of the looters and vandals are being prosecuted.

                  2. And some devolved into riots by law enforcement.

            2. You really think every protest ended like that?

              1. I specifically referenced every protest where they looted stores and set buildings on fire. Did you ignore everything after the word "protest"?

                No, I don't think every protest turned into a riot. In fact, I was at one in Greenville that didn't turn into a riot, doubtless because the local government isn't controlled by people who'd tell the police to stand down, and the locals are mostly armed and lack a sense of humor about their stores being torched.

                But enough protests turned into riots to cause a couple billion dollars in property damage. And in many places you had protests regularly turning into riots as the evening came, which after a couple days means that anybody who stuck around was there for the riot.

                And if you weren't gaslighting like mad, you'd stop trying to downplay the worst rioting this country has seen since the race riots of the 60's, and pretending that anybody who tries to talk about those riots is talking about the protests that were going on about the same time, which, no, didn't ALL involve rioting.

                1. So if you no true Scottsman, and then conflate what happened after dark with what happened during the protest and ignore all the police violence that happened during the protests, you get a pretty different story.

                  And if you weren't gaslighting like mad, you'd stop trying to downplay the worst rioting this country has seen since the race riots of the 60's

                  Fuck you, asshole. I'm not lying or gaslighting.

                  1. Gaslighting like mad.

                    1. I made an argument; I pointed out the issues I have with your characterization.

                      You retreat to disengagement and name-calling.

                  2. I don’t think you were gaslighting, but I also think Brett’s last clarification was pretty reasonable.

                    Forgive me for my assumptions about you, but I actually do think you probably agree that while “mostly peaceful protests” is technically true it’s kind of a weasel phrase to downplay the scope of the violence and damage that occurred. Yes, much of it was opportunistic non-agenda type of crime, but enough of it was mob anger type of violence that it was indeed worth addressing as such.

                    I think the reason that the Jan 6 thing can also be weaseled in whatever direction you want is because it ultimately wasn’t that bad in terms of results as many of the other riots, and only in retrospect can we see that it was really a bunch of disorganized yahoos who probably didn’t have anything close to a uniform plan that could honestly be thought of as a coup attempt. They tried to stomp their feet like children until they got their way, which wasn’t remotely possible.

                    But what it represented, and on the stage it took place, it certainly had more National impact than property damage to businesses in various parts of the country.

                    But it many ways, it was kind of the same idea: that many people think it’s legitimate to demand through force rather to persuade. And historically sometimes such forceful demands have been legitimate, at least the way we modern Americans view them.

                    But I think it’s safe to say that neither the riots that many of the BLM protests devolved into, nor the Jan 6 riots were legitimate causes for violence or demands via force.

                    If we’re going to play the game of which were worse, it depends on the rules of the game. In terms of real world results, the BLM riots were WAY worse. But in terms of brazenness and a threat that we hadn’t really considered before, as well as the importance of the target, I can see how many people see the Jan 6th riots as more disturbing and less understandable.

            1. Neato strawman. Does nothing to contradict my thesis.

              1. We're ignoring your thesis, that things look inconsistent if you call every protest a riot, because NOBODY IS CALLING EVERY PROTEST A RIOT.

                We're just refusing to pretend that the 'protests' where they looted and ran around setting stuff on fire weren't riots.

                1. Nice new thesis from I bet you didn't complain when all the BLM riots were called "mostly peaceful protests".

                  Gotta curate your set now that you've been called on it. And even then you need to conflate the protests with what happened after, and associate BLM with stuff after the protests based on...not liking BLM, it looks like.

                  1. " And even then you need to conflate the protests with what happened after,"

                    The first day that a riot occurs at a protest, you've got an excuse.

                    The second day that a riot occurs at a protest, maybe you're just dense.

                    The third day that a riot occurs at a protest, you're there for a riot.

                    1. Or you don't let asshole rioters define what you choose to protest during the day.

                  2. "Nice new thesis from I bet you didn't complain when all the BLM riots were called "mostly peaceful protests".

                    Sounds like he's claiming that they called all the riots protests, not all the protests riots.

                    You get the difference, right?

                  3. I think in order to say that the riots weren’t BLM, you have to define what you mean.

                    Do you mean the official organization or do you mean that none of the BLM protesters rioted?

                    That’s like saying the Jan 6 riot wasn’t a Trump supporter riot.

                    An even smaller percentage of Trump supporters rioted than the percentage of BLM protesters who rioted.

                    But there’s also an argument to be made that the BLM organization didn’t exactly do anything more than Trump himself to prevent riots.

                    No. Stop. Please don’t riot, m’kay? Now let’s go ahead and keep on with exactly the same protests, where we can just sort of kind of predict what many of them will devolve into.

                    I’m not saying the riots put responsibility on BLM to put a stop to all protests just because they could predict that some protesters will probably engage in criminal activity. It’s not an easy situation. It’s like giving the criminals a heckler’s veto over your own cause.

                    But I don’t think it’s crazy to discuss BLM’s responsibility in all of it.

        2. Tu quoque is an admission that the commenter has no substantive response.

          1. My substantive response was "legitimate political discourse." = "mostly peaceful protests".

            We just learned from you.

            1. The word substantive doesn't mean what you seem to think it means.

                1. Only legitimate political discourse.

                  1. It’s not necessarily one or the other. The Jan 6 riots were absolutely illegitimate means to achieve political ends. But so is throwing flaming debris at a courthouse.

                    But neither is necessarily an insurrection just because they aren’t examples of legitimate political discourse.

                    Also, I kind of look at the term “insurrection” as something to do with intent.

                    I believe the Jan 6 rioters weren’t trying to overthrow the govt., they honestly thought they were trying to prevent an insurrection.

                    Now I think they were wrong and basing their opinion on spurious evidence.

                    But just for fun, what if one day we find out that there actually was voter fraud in some places that resulted in a different presidential outcome? Was it still an insurrection? I mean they still acted on spurious evidence. They only happened to be right that they were defending democracy against a kind of a coup.

                    I guess it’s kind of like, if it turns out that COVID was a result of a lab leak rather than a wet market thing. I’ll accept that if that’s where they evidence leads. But I still think most of the people who were certain that it was a lab leak from the get go didn’t actually have evidence that I lacked. They probably also believe in a lot of wacky things that aren’t right.

                    But just because you’re paranoid doesn’t mean they’re not after you.

      2. There was nothing relevant disparate. The majority party typically confirms a nominee by a president of the same party regardless of how close to the end of session, and routinely ignores nominations by a president of the opposing party given the least excuse.

        1. Can you say Anthony Kennedy in 1988, Brett?

          1. Can you say, "I know know the difference between "routinely" and "exclusively"."? Evidently not.

            1. The Scalia vacancy/Garland nomination was the first time in my memory that a nominee who did voluntarily withdraw (Meirs and Douglas Ginsburg) did not receive a hearing. It was the first nominee who wanted an up or down vote not to receive one since Abe Fortas's nomination for Chief Justice.

              Don't lie and pretend that Mitch McConnell was playing fair.

              1. Riiight. The first time in your memory, in a country that is over 200 years old. That really counts for a lot, precedent isn't precedent if you weren't around to see it personally.

                What "fair"? He played by the rules as they existed, rather than as you'd prefer them to be. Yeah, not voting on Garland was a rotten move, I'd have preferred he had been voted down, and got some finality. But looking back at over 200 years of relevant history, rather than my own lifespan, it was a routine rotten move.

                I wouldn't have expected the nominee to get the time of day if Breyer had left the court just before the 2020 election, and Trump had nominated a replacement, either.

                1. The rotten part was supporting the move based on a principle that he would later discard for purely partisan gain.

                  1. Yeah, yeah, politician. Tell us something new.

                    Doesn't change the fact that, rather than doing something totally unprecedented, that somehow renders the composition of the Court illegitimate, he followed existing precedent.

                    1. As noted in my post just below, McConnell did not follow precedent with Ginsburg's vacancy.

                      But if we accept your premise about "yeah, yeah, politician," then you have no cause to complain about court packing on the basis of it being a partisan weapon.

                    2. It still cracks me up reading about that. Politicians gonna 'politicate'. 🙂

                2. I wouldn't have expected the nominee to get the time of day if Breyer had left the court just before the 2020 election, and Trump had nominated a replacement, either.

                  If Trump nominated a replacement on January 20, 2021 at 11:59:30 a.m., Mitch McConnell would have announced that committee hearings are unnecessary and not required by historical precedent and confirmed this person by voice vote.

                  1. Mitch McConnell was no longer majority leader by January 20th, he couldn't have announced anything of the sort

                    1. Technically, I suppose he could have announced it, but everybody would have laughed at him.

                    2. I mean, that's not actually true, but if incorrect nitpicking makes you feel good:

                      From January 3 to January 20, 2021, with Republicans holding a majority with 51 senators, Mitch McConnell served as the majority leader and Charles Schumer remained the minority leader.

                      Warnock and Ossoff were not sworn in until January 20, so McConnell remained the majority leader.

          2. Wrong year, 1987. Confirmation was JANUARY 1988.

        2. Prior to Ginsburg, there had been only three times a vacancy occurred within 6 months of the election and the Senate was controlled by the president's party. In two of those instances, the nomination was not confirmed.

          1. And in one of them it was. Having a Senate of the same party is no guarantee of a confirmation if you make a lousy nomination.

            1. You missed the point that only "one" refutes your claim "[t]he majority party typically confirms a nominee by a president of the same party regardless of how close to the end of session."

              1. Yes, you can get the confirmation rate down to just one third if you narrow the details enough to only have three examples in the entire history of the country.

                1. You were the one who claimed "[t]he majority party typically confirms a nominee by a president of the same party regardless of how close to the end of session" based on only three examples in the entire history of the country. And no, I didn't choose six months to deceive. The next closest vacancy with the Senate controlled by the president's party occurred on 1/26 of the election year.

            2. Then-Judge Garland was not a lousy nomination. He would in all likelihood have won confirmation in an up or down vote. That is why McConnell fought so desperately to prevent such a vote from happening.

              1. Maybe, maybe not. But, again, not the least bit unprecedented that he didn't get one.

                If you wanted to argue that Congressional leaders should be stripped of most of their power, I wouldn't argue.

                1. Other than Abe Fortas being filibustered when Earl Warren submitted his resignation, can you identify any prior SCOTUS nominee who wanted an up or down vote that didn't get one?

                  Or are you once again talking out your ass?

                  1. Why are you limiting it to just SCOTUS nominees?

                    1. Because the subject is Supreme Court enlargement?

    3. As usual, legal means normal and good to the GOP. Until it doesn't.

      Such a tellingly amoral argument.

  5. "That is why, as Siegel, notes in the article, court-packing has been a standard tactic of incipient authoritarians around the world."

    It's crazy that this needs to be pointed out, but Trump's base do not think of themselves as an incipient authoritarian threat. They think they're the opponents of one.

    Any attempt to use Court packing to fight them would validate that belief.

    1. Trump's base consists of backward, poorly educated, gullible, roundly bigoted, obsolete, disaffected losers. Their impressions concerning themselves are unlikely to be any better than their opinions concerning modern America.

      Who cares what they think?

      1. Spoken like a true incipient authoritarian threat

    2. Trump's base do not think of themselves as an incipient authoritarian threat. They think they're the opponents of one.

      So what. They are, in fact, an incipient authoritarian threat, whether they admit it or not. They are people who are willing to justify the use of violence to install their preferred leader. That is plain as day. They are people who blindly accept as truth anything their leader says. That too is plain as day.

      That they imagine Biden as some sort of aspiring dictator just shows their utter irrationality.

      1. Oh, bullshit. I'm talking about Trump's actual supporters, not the ones living in your head.

        1. I'm talking about Trump's actual supporters,

          Me too.

          1. Trump's supporters constitute a sizable majority of the Republican party. If they were an authoritarian threat, there wouldn't be anything incipient about it.

            It's beyond stupid, people openly calling Trump a dictator, without fear, and not noticing the contradiction. Claiming the majority of the Republican party are an authoritarian threat, and not noticing that it wasn't the RIGHT that was setting buildings on fire and looting for the last couple years.

            It's verging on clinical insanity.

            1. The Jan 06 insurrection was a pretty small number of those who came to DC on that day, but it was enough, and the GOP is defending them.

              So, too, those who are into some violence around elections in favor of Trump are a pretty small number of his supporters, but defended and minimized by the rest of them.

              It's okay to say 'those guys aren't us' and disassociate yourselves from them. But the GOP isn't doing that.

              1. "It was enough"; Enough for what? The only thing they accomplished was forcing Trump to give up his election challenge and concede. I guess they were enough for that.

                The GOP position on those morons is that most of them seem to have been harmless idiots who are getting treated like dangerous felons because the Democrats finally had a Republican riot to harp on. I think the ones who had to plead guilty to get out on time served might be up for a pardon to leave them with clean records, the ring leaders aren't getting any love from Republicans.

                1. No one had to plead guilty. The jury trials begin in there weeks.

                  1. No, that's true: They had the option of remaining in jail and never getting those days of their lives back.

                2. EDITOR'S NOTE: Trump did not in fact give up his election challenge or concede.

                3. Brett, the official position of the Republican National Committee is that the Capitol riot was legitimate political discourse. Their words, chosen deliberately.

                  1. I believe I've remarked on this trope before, and asked if it had a name.

                    Here is the actual resolution.

                    "WHEREAS, Representatives Cheney and Kinzinger are participating in a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse, and they are both utilizing their past professed political affiliation to mask Democrat abuse of prosecutorial power for partisan purposes,"

                    Notice they didn't say the riot was legitimate political discourse? They said that the Reps were cooperating in persecution of such.

                    Of course, the committee is not exclusively going after rioters, a point you seem not to have noticed.

      2. Projection is a hell of a drug.

        1. I was talking to Brett, not you.

  6. Court-packing might alienate anti-Trump Republicans and stop them from voting Democratic? Well, then, forget court-packing!

    1. Right now, Trump is probably saying...

      ...wait for it...

      "Let's go, packers!"

  7. On a less contentious part of this, the cartoon of the six Roosevelts advising the nine justices is wonderful -- thanks for including it!

  8. "I share . . . Siegel's concerns about the Trumpist/GOP threat to democratic transfers of power". Then you are a fool, and so is he. Was Jan. 6 stupid, and was Trump's role in it foolish? Yes, and yes. Was it a serious effort to overthrow democratic government? Without guns? Without weapons (other than flag poles!)? After the examples of the George Floyd riots (they actually took over government buildings, and even burned them down), surely anyone with a serious intent to overthrow the government or prevent the transfer of power could have done better than that! If you have a sincere concern about threats to democratic transfers of power, shouldn't you be concerned about "deep state" attacks on the candidate elected in 2016, attacks that sought to (and to some extent did) delegitimize his presidency and undermine his ability to govern effectively?
    Personally, I don't want Trump to run again in 2024. If he were elected (and he probably would be) he'd be an immediate lame duck. But the extremism and emotionalism of his opponents (which matches his own emotionalism) makes me worry about the peaceful transfer of power whoever is elected in 2024.

    1. The chants of "Hang Mike Pence" and building a makeshift gallows mean nothing? The January 6 riot was an attempt to prevent the peaceful transition of power, no matter how much you yap and yammer.

      1. "makeshift gallows"

        It was 5 ft tall, the "noose" wouldn't hold the Pence bunny [RIP] let alone a man.

        A dumb prop, like the guillotine left protestors use.

        1. Nobody ever said the Jan. 6 insurrectionists were competent, just that they were trying to prevent the transition of power.

          1. By hanging Michael Pence from a 5 foot noose?

            -dk

    2. Dem voters rioted in 2016 on Inauguration Day. They also launched unprecedented protests against a new president.

      Like always, Dems expect they can do something without response. See Harry Reid and filibusters.

      Then, people saw the weak response to BLM riots so a few felt they could get away with it too. Of course, they were wrong, Dems only tolerate their own violence.

      1. Horseshit. There was no inauguration day riot in 2016. Indeed, there was no inauguration day in 2016. (Trump took office in 2017.)

        1. Yeah, he got the year wrong. Silly mistake.

          There were, however, riots at Trump's inauguration, in 2017. They were bad enough that some people who had tickets to the inauguration couldn't reach the viewing area.

          1. Well, those rioters who took to the streets with the avowed intention of preventing the transfer of power ("occupy J20") don't count. Because reasons.

          2. In 2017, there was no attempt to violently prevent the peaceful transfer of power.

            Squall to your heart's content, that makes a considerable difference.

            1. ng,

              Michael P is one of those reflexive RW nutjobs who get their talking points from Fox or OAN or somewhere. Taking him seriously is a waste of effort and time.

              Just another RWbot, like too many here.

    3. If you have a sincere concern about threats to democratic transfers of power, shouldn't you be concerned about "deep state" attacks on the candidate elected in 2016, attacks that sought to (and to some extent did) delegitimize his presidency and undermine his ability to govern effectively?

      On the one hand, we have trying to prevent the lawfully elected president by taking power via force. On the other, we have name calling and criticism of the president.

      1. Kevin Clinesmith did a lot more than namecalling.

        1. Kevin Clinesmith did absolutely nothing about or to Donald Trump. And he was of course criminally prosecuted for his "legitimate political discourse."

          1. Clinesmith was an FBI lawyer. He broke the law, deliberately falsified a document, and represented that document as true to the FISA Court to procure a warrant to spy on Carter Page. For this, he received a token slap on the wrist.

            If you or I did the same, we would be in jail. 100%, no debate.

            1. The viking shaman got 4 years in jail for being photogenic & trespassing. Clinesmith got probation for perjury & attempting to overthrow the 2016 election. There's a strange sentencing difference here.

              1. BLM rioter set fire to a school and recently got probation.

                He didn't commit lese majestie like the shaman dude though.

              2. Chansley did not get 4 years in jail, and did not get it for trespassing; he got it for leading a violent attack on the government. He got a within-guidelines sentence.

                Clinesmith was not convicted of perjury, and of course he was not "attempting to overthrow the 2016 election," as nothing he did was intended to, or could have resulted in, making Hillary president. Indeed, what he did was not even directed at Trump. And he also got a within-guidelines sentence.

            2. represented that document as true to the FISA Court to procure a warrant to spy on Carter Page

              His lying was found to be not material to the FBI investigation.

              You and I can't do the same, we don't work for the DoJ.

              1. Huh? It was material as all hell. He changed the fact that Page was a CIA asset to that he wasn’t, in the email, that he helped submit to the FISC. Which essentially meant that the basis for the FISA warrants were the work that he was doing for another breach of the government. There was no need for the FISA warrants, because the CIA already knew the information sought by the FBI.

                1. He changed the fact that Page was a CIA asset to that he wasn’t,

                  Actually, he changed the fact that Page had in the past been a CIA source to him having been a subsource. And this was only for the third renewal (i.e., the fourth warrant) application. The FISA warrant, of course, had nothing to do with what he had been doing with the CIA earlier, and nobody contends that the warrant wouldn't have been issued if he hadn't altered the email.

              2. FBI regs are quite explicit. FBI employees are expected to speak with complete candor and truth. Materiality doesn't count (to them); honesty and integrity does. Clinesmith failed on both counts.

                If I were to do the same I would be in jail, period.

                Not material....Yo, seriously? Are you really making that case?

                1. You can't do the same because you're not an FBI employee. Are you saying he was treated differently than other FBI employees? I'm not sure that's supported.

            3. Clinesmith broke the law, and was prosecuted. (t was about the third extension of the warrant for Carter Page; the first three did not rely on Clinesmith's falsification.) He received a felony record and a within-guidelines sentence as recommended by the Probation Office's PSR.

              If you want to call it a "slap on the wrist," that's a matter of opinion. But the claim that we would be in jail for doing that is just wrong. It was a first offense, it was non-violent, there was no harm. (I anticipate getting pushback on that last point, but Carter Page provided a victim statement, and the only harm he identified as having suffered was things that had happened to him before Clinesmith did this.) Lots of people in a similar position do not go to jail.

              (All of this, of course, is getting sidetracked from the discussion of Trump.)

  9. Maybe a combination of an amendment setting the membership of the court to 9 and term limits (say of 18 years) could restore some sanity to the process and the institution. If 2 seats will come up each presidency, what one is voting for will be more clear. And there won't be the possibility of strategic retirement timing, or staying in the court when one really should due to health or mental decline retire.

    1. I like the idea, but the downside is strategic cert grants.

    2. The problem with eighteen year terms is that the Justices will be thinking about their next job [or possible renomination if that is not precluded by the hypothetical amendment] as they serve.

      -dk

      1. But as a counter to that it gets rid of an incentive to appoint someone as young as possible. So most won't be planning on a next job as long as they agree appointed after age 50.

  10. I'm curious exactly how Siegel contemplates using a packed Court to "meet a national crisis to which the Court was contributing."; And, what constitutes such a "crisis".

    Consider that one of the grievances Democrats typically have about a conservative Supreme court is the Citizens United case, where the Court refused to permit political censorship under the guise of 'campaign regulation'.

    Is the failure to permit Trump to be censored a crisis the Court is contributing to? Or suppose a serious effort is made to use January 6th as a basis on which to disqualify Trump and other Republicans allied with him from holding office; Would a Court ruling that doing so requires a criminal conviction, not just an administrative act or legislative vote, qualify as such a crisis?

    And how exactly does he expect Republicans to react to Court packing aimed at defeating their own candidates?

    Anyway, at present Democrats do not have the numbers in Congress to pack the Court, and seem very unlikely to have them after the midterms. So, if Trump is doing well in the 2024 election, how exactly are his opponents going to resort to Court packing to counter him?

  11. even if Democratic court-packing helps stave off the next 2020-like attempt at a Trumpist coup ... it is worth noting that the current Supreme Court majority did in fact help curb Trumpist efforts to steal the 2020 election,

    Assumes facts not in evidence. There's no evidence that Jan 6 was a "coup" or that anyone tried to steal the election. What - were the rioters going to overthrow the government and defeat the police and military with flagpoles and bear spray? The only thing they were trying to do was delay the certification of the election.

    1. Delaying the certification was an attempt to steal the election because there is no evidence that Trump won.

      1. How would delaying it steal the election? And if that is the standard, then the hundreds of protesters who tried to derail the Kavanaugh confirmation were guilty of trying to steal a seat on the Supreme Court.

        1. It was not merely a delay tactic. There was a scam to persuade the Vice-president to unilaterally reject valid slates of electors despite having no lawful authority to do so. That would have resulted in the House of Representatives selecting the President and the Senate selecting the Vice-president.

          1. If the VP was going to do that, he would have done that with or without the rioters.

            1. Good point. Trump attempted to steal the election with or without the rioters (but the rioters might have succeeded through threats of violence).

              1. That's a really stupid notion.

                Look, let's just suppose the rioters had busted in fast enough that the Members hadn't been able to evacuate.

                And let's suppose they were violent enough, and numerous enough, and well disciplined enough, to capture the Members, and order them, on threat to death, to certify that Trump had won.

                This is what you're envisioning, right?

                Strongmen who do this sort of thing are holding onto power by military force, typically, and the certification is only for show. But the military would not cooperate in Trump holding onto power.

                And the optics would be so bad Trump would have had no choice but to reject the certification even if he genuinely thought he was the real winner. Heck, just the riot forced him to drop his election contest, and that was a predictable consequence of it.

                And if he were stupid enough not to do that, how long were the rioters going to keep Congress captive? Because as soon as they left, (And, how do they leave safely?) Congress would vote Biden the winner, stating that the earlier certification was invalid, coerced. And who could argue with that?

                The whole scenario makes no sense, on so many levels at the same time, that no sane person with a room temperature IQ could think it feasible.

                1. OK, you are right. The rioters messed up the peaceful attempt at stealing the election.

                2. And yet, Trump took hours to call of the rioters. I guess that doesn't speak well for his IQ.

                3. Brett, the riot did not "force" Trump to drop his election contests; losing scores of lawsuits caused him to do that.

                  And no optics would have been bad enough for Trump to reject a fraudulent certification in his favor. The man has no shame. He is still claiming that Pence had authority to unilaterally reject several states' legitimate electoral vote slates.

                  As Talleyrand said of the Bourbons in France, Trump has forgotten nothing and learned nothing.

                4. Brett, I see now where you have been coming from. You have shut your eyes completely to evidence. (Maybe you have not been looking for evidence). You have substituted instead a genuinely stupid and unworkable plan which you attribute to people like me. And then you ask, "This is what you're envisioning, right?"

                  No. I don't envision anything like that. I envision an occasion of disorder, to justify something like martial law, or an emergency declaration, and a temporary order to shut down congress to keep congress people safe, and to keep election materials secure, until order is restored, to create delay, to provide cover for some kind of tampering with ballots and/or counting, amidst clouds of squid ink like fake elector slates, with at least one or two Republican controlled state governments announcing something amazingly shady turned up, followed at length by a proclamation that an astounding amount of fraud has been discovered and corrected, the ballots have been recounted, and Trump won.

                  And by the way, voting materials throughout the nation are now, thankfully, in secure custody, so no one can fiddle with them to cast any more doubt on this glorious outcome which every honest person in the nation knew all along was what really happened.

                  Not that exactly, of course. I think Trump and his co-conspirators always recognized a need to make it up as they went along, if only to avoid being caught with too many plans in sight. But something like that. And it looks like there will be a mountain of evidence for something like that.

              2. You're at Qannon levels of delusion here.

            2. I have repeatedly said that the unlawful entreaty to Pence was criminal, irrespective of whether Trump was vicariously liable for the actions of the Capitol mob. His inaction once the breach of the Capitol occurred, though, is further evidence of Trump's culpable mental state.

              1. So is Trump's public re-insistence that Pence did have power to hand the election to Trump.

  12. There is one good reason for expanding the court - then there would be less of a collective freakout when one of the justices dies. That would also take away the pressure justices have to linger on and never retire except when an ideologically aligned president is in power.

    I would support expanding the court under a bipartisan plan. The president could make a political deal that he would nominate 6 justices to the court at once, 3 of his choosing, 3 of the opposing party's choosing. I think most people would support that.

    1. I think it is absurd to think such a deal would be enforceable, short of a constitutional convention. And it would come at the cost of constitutionally recognizing, not just political parties, but the specific ones we have now.

      The only reason to do 6 at once is to overturn the existing Court majority, and why the hell would Republicans agree to that? Any enlargement would have to be gradual, a couple seats at a time, starting far enough out that nobody would know who would be nominating them.

      9 works just fine, better to just lock it in, rather than resorting to some Rube Goldberg attempt to achieve the ideal Court design.

  13. The rioters would in all likelihood have killed the Vice-president and the Speaker of the House if they had been able to reach them. There was a scheme to certify bogus slates of electors.

    Just because it was unsuccessful doesn't mean that there was no attempt to steal the election.

    1. How would they have killed the VP and the Speaker of the House? With what weapons? Flagpoles?

      And before you say, "they brought a gallows there", no they didn't. It was a flimsy mock up with a fake noose.

      1. By beating them up?

        How hard would that be, especially in the case of Pelosi? Understand who you are dealing with.

        1. Do be ridiculous. If they wanted to kill anyone, or throw an actual coup, they would have brought guns, not bear spray.

          1. Rohan, they had guns stockpiled minutes away, and a plan to bring them to the scene as soon as they thought they could make use of them without being arrested for having them.

            1. You have evidence of that "plan"? Because the communications I've seen leaked say they left them in Virginia to avoid breaking the law.

            2. That doesn't help them trying to kill the VP or the Speaker.

              And they would need a hell of a lot more than a couple guns to defeat the US military or even the Capitol police.

              1. I never accused the rioters of being smart. That being said, there were express statements of murderous intent, and it is not difficult for an angry mob to beat someone to death. Some Trump supporters were killed inadvertently. Don't downplay the danger of the unlawful events of that day.

  14. Jury selection in the first of the January 6 defendants' trials begins on February 28. We will then see what twelve men and women good and true think of the fatuous claim that the breach of the Capitol was "legitimate political discourse."

    I can hardly wait.

  15. What “procedural shenanigans” exactly did the GOP used to “help achieve” the present conservative majority on the Court?

    1. Don't be silly. Mitch McConnell denied a fully qualified nominee a Senate hearing and floor vote for a vacancy occurring in February 2016, and he rushed through a vote on a marginally qualified nominee within weeks of the 2020 election.

      But I suspect you know that.

      1. And if that was "a procedural shenanigan", rather than "a day ending in "Y"", you might have something like a point.

  16. If the purpose of reform is to improve performance, then court packing is only the beginning to help this catastrophically failed lawyer institution.

    1) Pack the court with 500 Justices. If it is going to make law, let it be the size of a legislature. That would enhance it with the wisdom of the crowd effect;

    2) Move it to the middle of the country, like Wichita. That would end its steeping in the culture of rent seeking of Washington DC;

    3) exclude anyone who has passed 1L. That person has become an amoral dumbass, stupider than a Life Skills Class student learning to eat with a spoon, with less common sense;

    4) whatever the number of Justices, it should be an even number, to make it more conserving of precedent.

  17. The OP makes a fair point. The Ds should not attempt SCOTUS enlargement unless they can assemble political power sufficient to hold on to a Senate majority for a decade or more. For now, that day is hard to foresee. It does suggest that Republican overreach egregious enough to turn the Senate over to a secure Democratic majority would come at a steep price for the Republicans.

    Maybe Democrats ought to start playing that up as a political point, and as a plan for the future. They could be forthright about it, and take it to the voters as a long-term party objective. That might help constrain Republican extremists. The Democrats could point that out during political campaigns.

    1. That's not how it works. You don't enlarge the Court because you anticipate holding onto power anyway. You enlarge it so that you can hold onto power.

      That's why "court-packing has been a standard tactic of incipient authoritarians around the world."

      Because once you've packed the Court, you can get away with entrenchment measures that would otherwise be struck down as unconstitutional.

      The prospect of entrenchment measures being struck down is likely the exact crisis Siegel envisions justifying packing...

      1. Bellmore, the problem is that with the present Republican-rigged court majority in place, even a durable Democratic Senate majority would be reduced to only one meaningful political power—to enlarge the court. So that is what Democrats will do. They are never going to agree that winning elections is a route to political power for Republicans, but not for Democrats. That is not going to happen. Stop dreaming that it will.

        1. "Bellmore, the problem is that with the present Republican-rigged court majority in place, even a durable Democratic Senate majority would be reduced to only one meaningful political power—to enlarge the court."

          Setting aside the absurd claim that the current Supreme court majority was "rigged", you do have a meaningful power with a Senate majority: Passing legislation. Sure, not all the legislation you'd like to pass is constitutional, some of it violates explicit constitutional rights. But you can hardly expect me to sympathize with your complaints in that regard.

          "They are never going to agree that winning elections is a route to political power for Republicans, but not for Democrats."

          It's a route to power if you win 'em.

  18. This is a brilliant takedown of a subject for which there is no serious effort to do and one which pretty much nobody but Neil Siegel is even thinking about.

  19. When is this packing supposed to take place, anyway?

    Can't take place now, Democrats only have 50 votes on a good day, and the day it came to a vote wouldn't be a good day. They'd need a big enough majority to afford losing a significant number of votes.

    They're expected to lose one or both chambers in this fall's election, so not for the next two years.

    This renders Court packing irrelevant in the context of fending off a Trump return to power, since you can't pack it before he wins in 2024, (Assuming he does.) and almost certainly wouldn't need Court packing to fend off a Trump campaign in 2028 simply on account of his age.

    If a Republican wins in 2024, they don't need to pack the Court, it's got a Republican majority already.

    At this point it's becoming clear that this really has nothing to do with Trump, as such, but that "Trump" is being used as a shorthand for "a Republican faction Democrats really dislike." But, that's basically all of them except for maybe the Lincoln Project, isn't it?

    1. And we aren’t likely to see a good day for the next several months, with the stroking of the Dem NM Senator. Which effectively puts it to a 49/50 D/R Senate right now.

      1. That's my point: Siegel is talking about the possibility of Court packing to counter Trump, but by the time Democrats are remotely likely to be in a position to pull off Court packing again, Trump will have ceased to be a real political factor.

        Or is he, wildly, supposing that Republicans would find the prospect of their own candidate winning so awful that they'd aid Democrats in packing the Court, essentially giving them the opportunity, if they wanted, to make the US a one party state for the foreseeable future by ruling from the Court?

        I mean, sure, there are a few NeverTrump Republicans who'd be up for thwarting Trump, (Probably fewer after this November, though.) but even they'd blanch at THAT price.

  20. Face it. The real justification for the court packing scheme was to counter Trump, mostly by happenstance, naming 3 Justices, in his one term, while Obama got two, in two terms. This was compounded by the knowledge that if something drastic weren’t done, the Dems were likely to get blown out in the elections this year, and any nominations to fill vacancies after the election would probably be sat on by the Republicans, Running out the clock, as the did with Garland, the last year that Obama was in office. So, this was very possibly their best chance at a progressive Supreme Court majority in the next decade or so. Unfortunately, with the temporary disablement of the one NM Dem Senator, followed by impending elections, that window of opportunity is probably closed now.

    1. Trump, mostly by happenstance, naming 3 Justices, in his one term, while Obama got two, in two terms.

      This is pathetic. As you know full well since you mention it below, there was no "happenstance." It was Mitch McConnell's not allowing Obama's nominee a vote.

    2. Hayden, "happenstance," is a good and useful word. I am familiar with, "happenstance." That was not happenstance.

      1. Happenstance, as opposed to, you know, offing some Justices to make openings, or something shady like that.

        1. If the Capitol riot, which resulted in multiple fatalities, is "legitimate political discourse," then assassinating justices is not beyond the pale.

          It would take careful planning, though. One member of SCOTUS is stout enough that he survived his own lynching.

          1. "If the Capitol riot, which resulted in multiple fatalities,"

            IIRC, two or three by natural causes, (Strangely, attending a protest doesn't make people immortal for the duration.) one crushed in the crowd, and one shot by the Capitol police.

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