Packing the Supreme Court?

[lpetrich]

Adam Harding on Twitter: "As Republicans show support for moving forward with a Supreme Court nominee quickly, @AOC tells me if that happens, “we should leave all options on the table, including the number of Justices that are on the Supreme Court.” Adds expanding is “absolutely” an option worth weighing. https://t.co/9KgoyrmUkL" / Twitter

AOC is thus saying that packing the Supreme Court is something worth considering. She is not alone.

Ed Markey on Twitter: "Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court." / Twitter

How Democrats Could Pack the Supreme Court in 2021 - POLITICO

It’s true that Congress can shape the size of the court to its political desires. In 1866, with a Congress at permanent war with President Andrew Johnson, it passed the Judicial Circuits Act, which cut the size of the court from nine to seven, and barred Johnson from appointing any new justices. (After Ulysses Grant was elected president in 1868, the number was bumped back up to nine, where it has remained ever since.)

...
The most famous example was the effort by President Franklin Roosevelt in 1937 to deal with a court that was striking down much of his New Deal legislation. After his landslide reelection in 1936, he proposed to add one justice for every judge who’d reached the age of 70, up to a total of 15. (It was the “nine old men”, political folklore had it, who were thwarting the president.) Despite his popularity, and the overwhelming control of Congress by Democrats, the proposal became the first political defeat of FDR’s presidency—and came at the hands of his own party. His own vice president, John Garner, fought it. The Democratic leader in the Senate rejected it. Chief Justice Charles Evans Hughes, responding to the urgings of liberal court-packing foe Montana Sen. Burton Wheeler, wrote a public letter saying that, contrary to FDR’s concerns, the court was not overworked at all, thank you very much. The proposal died in Congress before a vote was taken.

More recently, Joe Biden and Bernie Sanders have opposed court packing. But that was before RBG died.

 

[Derec]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

 

[lpetrich]

Opinion | Can Mitch McConnell Be Stopped? - The New York Times - "If Republicans give Ruth Bader Ginsburg’s seat to some Federalist Society fanatic, Democrats should pack the court."

Mitch McConnell certainly has no intention of abiding by the so-called McConnell rule, an invention to justify the Senate’s refusal to consider Garland in March 2016. “The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said then. “Therefore, this vacancy should not be filled until we have a new president.”

But only hours after Ginsburg’s death was announced, McConnell said in a statement, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” His tortuous excuse is that his made-up rule is meant to apply only when the Senate and the presidency are controlled by different parties.

...
And if Republicans do give Ginsburg’s seat to some Federalist Society fanatic, Democrats must, if they win back the presidency and the Senate, abolish the filibuster and expand the court, adding two seats to account for both Garland and Ginsburg.

This goes against Joe Biden’s instincts toward bipartisanship and national reconciliation. But if Republicans continue to ruthlessly bend the rules to establish the domination of the minority over the majority, only hardball tactics can restore democratic equilibrium. Republicans will shriek, but their brazen hypocrisy should justify such dramatic moves in the eyes of the public. They’ll be the ones who’ve annihilated whatever legitimacy the court has left.

...
According to Ginsburg’s granddaughter, the justice made a dying wish: “My most fervent wish is that I will not be replaced until a new president is installed.”

 

[Swammerdami]

A problem with expanding the Court to 11 is that Justices with humane values would still be outnumbered 6-5. Larger expansions would invoke more outrage. I doubt the Ds have the gumption for an expansion to 11, let alone a higher number. There is no easy solution if "2nd Amendment solutions" are off the table.

Let us hope that four GOP Senators have a pennyweight's worth of integrity. Even if four of them just agree to defer a vote until the lame-duck session of November-December, a Biden victory might give some Rs an excuse to vote against Trump and the Kremlin.

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

By the same argument, German laws to protect the Jews are a stupid idea. What if the Nazis come back into power?

All Americans with a heart and a clue are praying that the GOP does not survive in its present form. When Republicans are ready to fight for truth and freedom, and to support the interests of America over those of Russia, then — and only then — should we welcome that Party back into national politics.

 

[Elixir]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Well Derec, it's like this: The majority has the power to change the rules, including the rules about what it take to change rules. Now that Moscow Mitch has torn down the house by lowering the bar to 51 votes to install a political hack as a SC Justice, the Dems - if they got control, and had the courage and the will, could pack the court, then change the rules to disempower both themselves and any future Congress from changing the rules without, for instance, a 60 vote threshold ...

IOW, get the horse back in the barn and slam the door shut behind them.

 

[ZiprHead]

Or, the dems could impeach and remove both Thomas and Kavanaugh for perjury during their confirmation hearings.There's a lot of evidence both did so that wasn't allowed to be heard during those hearings.

 

[Elixir]

Or, the dems could impeach and remove both Thomas and Kavanaugh for perjury during their confirmation hearings.There's a lot of evidence both did so that wasn't allowed to be heard during those hearings.

I've tried to imagine the blowback from either scenario... I think impeaching a Trump's appointment might mobilize the teapublicans in a frightening manner. And Kavanaugh might turn out to be a much better jurist than Thomas, but Thomas has seniority. Probably better to leave impeachment to some of the blatantly unqualified federal appeals court appointments Trump has made. In any event, the rules have to be changed, and changed so that 51 Senators from either party are not enough to change them back.

 

[lpetrich]

If Trump Replaces RBG, Congress Must Expand The Court
has these links:

Remarks by President Trump on Judicial Appointments | The White House - contains a list of candidates.

The Supreme Court Has Been Expanded Many Times Before. Here Are Four Ways To Do It Today.

In today’s crowded Democratic primary season, one issue has emerged that would have been unthinkable as recently as 2016: increasing the number of justices on the U.S. Supreme Court.

At least five Democratic candidates have expressed openness to expanding the Court: Senators Elizabeth Warren, Kirsten Gillibrand, and Kamala Harris as well as former Representative Beto O’Rourke and South Bend, Indiana Mayor Pete Buttigieg. But while agitation for reform has increased among the Democratic base, much less ink has been spilled about the historical context of Court expansion and the concrete proposals to carry it out today.

About the Republicans obstructing Obama about court appointments,

Many others, including in the popular media, argue instead that this “constitutional hardball” has revealed that “the Supreme Court is now a partisan institution.” A leading legal academic asserts “unilateral disarmament” by Democrats in the face of this regularized norm-breaking would be tantamount to “commit[ing] political suicide.”

I recall something about how Republican politicians have been pressuring judges to resign so that they can be replaced by younger ones.

Then the changes in number of Supreme Court Justices over time.

• Original number: 6
• 1801: lame-duck Federalists made it 5 to keep Thomas Jefferson from appointing a lot of justices
• Soon after: Jefferson's Democrat-Republicans bade it 6 again
• Became 7 after Congress created a 7th circuit court
• 1837 under Andrew Jackson: expanded to 9
• In Civil War: Abe Lincoln expanded it to 10, so the Court wouldn't vote against him
• After the war, to keep Andrew Johnson from appointing justices that would oppose Congress, shrunk to 7
• US Grant expanded it to 9 after it decided that "greenback" paper money is unconstitutional. The new court soon reversed that decision
• FDR's 1937 court packing, intended to be 15

Though FDR's would-be court packing failed, it nevertheless moderated the Court.

The article then discusses four proposals for expanding the court.

1. Adding more Justices.

2. Making the court like a Federal appeals court, with an expanded set of Justices and subsets of it hearing cases.

3. Randomly selecting Federal appellate judges to be Justices for each case.

4. Each party getting to select 5 Justices each, then these Justices selecting 5 more to serve on 1-year terms.

 

[lpetrich]

NY-17 candidate Mondaire Jones wrote:

• If Trump Replaces RBG, Congress Must Expand The Court (Data for Progress)
• To save our democracy, we must expand the Supreme Court | Salon.com

Now that Salon article:

Earlier this month, the U.S. Supreme Court interfered in an election in Wisconsin in yet another 5-4 decision meant to secure an electoral advantage for the Republican Party. Amidst the coronavirus pandemic, a federal district court had granted a one-week extension to Wisconsin's mail-in ballot deadline. The election included not only Wisconsin's presidential primary, but also a crucial judicial general election that threatened the GOP's hold on the state's highest court. But the Supreme Court overruled the lower court, tossing out thousands of absentee ballots and forcing Wisconsin voters and poll workers to risk exposure to coronavirus. The irony: the justices made their votes in the case remotely.

...
Our democracy has been under assault for the past two decades, and the Supreme Court has dealt many of the sharpest blows. Since 2000, the court has ordered the state of Florida to stop counting ballots and handed the presidential election to a Republican who lost the popular vote, gutted the Voting Rights Act, upheld racist voter ID laws in Indiana, allowed a torrent of dark money to flow into our electoral process, and authorized racially biased voter purges in Ohio.

Then how the Supreme Court struck down certain provisions of the Voting Rights Act, saying that "things have changed in the South". But then Georgia Sec'y of State Brian Kemp becomes governor by using those tactics: "more than over 1.5 million mostly black voters purged, dozens of majority-black precincts closed, defective voting machines, and four-hour lines to vote in majority-black neighborhoods".

Then the court's support of big money in politics.

Other barriers also.

Thanks to the GOP's aggressive partisan gerrymandering, Democrats have to routinely produce historic turnout to win House majorities. In 2018, the Democrats' seven-point win resulted in a 36-seat majority; in contrast, the GOP's seven-point win in 2010 produced a 49-seat majority. The Senate is even more undemocratic, and only getting worse: Democrats won the Senate popular vote by 9 million in 2018 and lost seats. By 2040, 30% of Americans, people from disproportionately white and rural states, will be represented by 70% of U.S. senators.

Something that the court has been reluctant to rule against, despite cases like Republicans winning 63 of 99 Wisconsin State Assembly seats with only 44.8% of the vote. MJ speculates that it might rule against DC statehood and other measures intended to increase democracy.

He concludes:

Very recently, President Trump admitted that when more people vote, Republicans lose.

We cannot restore democracy without fixing the Supreme Court. That is precisely why court expansion is so urgently necessary.

Practically speaking, a plan that pairs court expansion with legislation to restore our democracy will naturally provide a bulwark against Republican retaliation. With 50 million voters added to the rolls and fair congressional maps, it would be exceptionally difficult for Republicans to recapture unified control of the political branches and pass their own court expansion bill.

I don't think that there is a such thing as a permanent majority, because the Republican Party could change to attract more voters. But that will require some difficult changes for the party.

 

[Jason Harvestdancer]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Because if the Democrats do this, there is no way the Republicans would get the idea they could do it too.

 

[Loren Pechtel]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Exactly. This is why the Democrats shouldn't go crazy if they get power.

I would favor a proper review of his appointments, though. Kavanaugh shouldn't be assistant dogcatcher, let alone a Supreme Court justice.

 

[ZiprHead]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Exactly. This is why the Democrats shouldn't go crazy if they get power.

I would favor a proper review of his appointments, though. Kavanaugh shouldn't be assistant dogcatcher, let alone a Supreme Court justice.

So only republicans get to go crazy when they get power.

 

[Trausti]

Didn’t Ginsburg say that court packing was a terrible partisan idea?

 

[ZiprHead]

Didn’t Ginsburg say that court packing was a terrible partisan idea?

You obviously have the internet. Why don't you tell us?

 

[laughing dog]

At best, successively packing the court provides short-run benefits with enormous longer-run costs. As others have pointed out, there would be nothing stopping the GOP from packing the court if and when it gains control. And frankly, packing the court seems so partisan and so machiavellian that it would, in my opinion, damage the Democrats.

IMO, the best course of action for the Democrats if they take the Presidency and the Senate is to not act like little children and try to govern to unite the country as best as feasible. This would require patience, forbearance and tolerance - qualities taht rational adults ought to have but is lacking in a large segment of our population.

 

[Deepak]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Because if the Democrats do this, there is no way the Republicans would get the idea they could do it too.

You think the idea hasn't occurred to Mitch McConnell before, or that he wouldn't do it if he had the political ability to pull it off?

The ball is squarely in the Rs' court - the only reason that a change in the size of the court would happen is if they force through an appointment before the election, purely by force of having more votes in the Senate.

The Dems are operating within the auspices of their delegated powers by proposing a change to a thing that's set by law. Indeed that's the purpose of having the number of justices defined as it was.

The obvious brake to the Rs getting power back and expanding the court again is whether they have a mandate from voters to do so. And they could stave off any change if they don't try to force an appointment while ballots are actively being collected in an election.

 

[Cheerful Charlie]

Didn’t Ginsburg say that court packing was a terrible partisan idea?

So is packing the court with right winged activist judges by stealing a seat by Mitch MConnell. If he is now going to abandon his claim that the next president gets to nominate the SC justice, such cheating is untolerable. If Biden must pack the court or impeach Kavanaugh to stop that naked power grab, so be it.

Let the Democrats teach the GOP about how to play the scorched earth game.

 

[Cheerful Charlie]

Murkowski of Alaska and Susan Collins have both stated the will not vote for Moscow Mitch's nominee. we need two more GOP Senators who realize this will be a political problem for the cheating GOP for years to come. Those GOP Senators having a tough election battle will seal their doom if they go along with Moscow Mitch.

Romney is blowing hot and then cold on this, but may be a third no vote.

 

[ZiprHead]

Murkowski of Alaska and Susan Collins have both stated the will not vote for Moscow Mitch's nominee. we need two more GOP Senators who realize this will be a political problem for the cheating GOP for years to come. Those GOP Senators having a tough election battle will seal their doom if they go along with Moscow Mitch.

Romney is blowing hot and then cold on this, but may be a third no vote.

You really believe them?

 

[laughing dog]

Murkowski of Alaska and Susan Collins have both stated the will not vote for Moscow Mitch's nominee. we need two more GOP Senators who realize this will be a political problem for the cheating GOP for years to come. Those GOP Senators having a tough election battle will seal their doom if they go along with Moscow Mitch.

Romney is blowing hot and then cold on this, but may be a third no vote.

You really believe them?

i believe they won't vote before the November election. After that, I don't.