Packing the Supreme Court?

[lpetrich]

Chief Justice John Roberts defends Supreme Court's legitimacy | CNN Politics

Chief Justice John Roberts – making his first public comments since the US Supreme Court reversed Roe v. Wade last term, triggering demonstrations across the country – defended the legitimacy of the court Friday night while also acknowledging it had been “gut-wrenching” to drive into a barricaded high court every morning.

Roberts, without directly mentioning protests, said that all of the court’s opinions are open to criticism, but he pointedly noted that “simply because people disagree with opinions, is not a basis for questioning the legitimacy of the court.”

He said that it’s the court’s job to interpret the Constitution – a task that should not be left to the political branches or driven by public opinion.

Justice Kagan cautions Supreme Court can forfeit legitimacy | AP News

Supreme Court Justice Elena Kagan on Monday cautioned that courts look political and forfeit legitimacy when they needlessly overturn precedent and decide more than they have to.

She said that this was not in reference to any particular case, though there are some obvious recent examples.

Still, her remarks were similar to points made in dissenting opinions she wrote or contributed to in recent months, including in the abortion case.

“Judges create legitimacy problems for themselves ... when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences,” Kagan said at Temple Emanu-El in New York.

 

[lpetrich]

The real solution to the problem of Trump judges like Aileen Cannon.

Starting out with her decision to appoint a special master to review the documents recently seized from Mar-a-Lago, Donald Trump's home. The decision was panned as “untethered to the law,” “a political conclusion in search of a legal rationale,” “deeply problematic,” “laughably bad.”

It’s possible to agree with every one of these criticisms but still find them less than satisfying. Because at the end of the day, no matter how much withering criticism she faces, Cannon still gets to put on the black robe and run interference for her benefactor. ...

We watched the same pattern play out at the end of this last Supreme Court term. One case after another blew up decades of existing precedent and tests and doctrine and replaced them with Rorschach exams that transformed contemporary Republican policies into constitutional law. Smart lawyers dutifully digested these opinions and set to work figuring out just how the EPA, or public school districts, or state legislatures that want to stop mass shootings can plausibly work around these new tests. And of course, were we living in a rational regime in which the rule of law governed, that would make perfect sense. But if the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

If there were a principle that best embodies why progressives are losing ground so quickly—even as they are correct on the facts, and the law, and the zeitgeist—it must be this tendency to just keep on lawyering the other side’s bad law in the hopes that the lawyering itself will make all the bad faith and crooked law go away.

What might be done about that?

 

[lpetrich]

Then going into solutions.

There are solutions out there for the problem of Trump’s runaway judges. Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. ...

There are other worthy ideas too. Term limits for justices and lower court judges. Limits on courts’ jurisdiction to strike down democratically enacted laws. Modest reforms that restrict the Supreme Court’s ability to suppress voting rights before an election. Let’s hear them all. (God knows Biden’s court reform commission studied them extensively, to little end.)

President Biden has gone a little bit of the way: How Biden’s judge appointments so far compare with other presidents | Pew Research Center but that may not be enough.

But the chorus from the left, the middle, and the sane right that the lawlessness is lawless only affirms that we cannot ever escape this closed loop of Trump’s judges. Being really mad but doing nothing to change things is a terrible strategy for democracy and for public confidence in the courts. It creates the illusion that if we work really hard to debunk corrupt rulings, we can force Trump judges to see the light, or feel shame, or do something different. Meanwhile, the targets of our meticulous takedowns laugh at the pains we take to prove them wrong. They. Do. Not. Care.

...
There are too many things wrong with the Cannon order to litigate. And there are too many things wrong with Trump’s judicial dominion of every part of our lives— for years to come—to litigate. So maybe it’s time to stop litigating them and start fixing them.

 

[scombrid]

It isn’t Trump’s judicial domination. It is McConnell, Federalist Society,…Trump is just a grifter smoke screen.