You're actually pushing for court packing? That will improve the legitimacy of the court? Why not amend the Constitution to allow each incoming president to fire the sitting justices and replace them nine more of his choosing? If you want the court to be a way to enact legislation without, you know, the inconvenience of actually having C…
You're actually pushing for court packing? That will improve the legitimacy of the court? Why not amend the Constitution to allow each incoming president to fire the sitting justices and replace them nine more of his choosing? If you want the court to be a way to enact legislation without, you know, the inconvenience of actually having Congress pass laws, you may as well be upfront about it. Actually, why not go a step further and abolish the court and allow presidents to rule by decree? We're already pretty far down that road, so w may as well go all the way.
Yeah, that’s the part of Josh’s post I can’t get behind. Not because of a “there’s no crying in baseball” concern, but because I don’t see the end game to court packing that doesn’t devolve into larger chaos.
Expanding the size of the court definitely doesn't necessarily mean anything like court packing. It could be expanded significantly in a bi-partisan manner. It's absurd that a handful of hand-picked partisans can dictate to us (and lie and deceive with near impunity) about what our Constitution means. It's absurd that a 9-person court is only 50% larger than it was when SCOTUS was created with 6 justices. In 1789, 4 was a majority. Now, it is only barely bigger. Now, we have more than 4 times as many states and territories and about 100 times as many people. We have a virtual sitting army of lower court (and state court) judges that SCOTUS is supposed to actually or essentially supervise. The current SCOTUS addresses a tiny fraction of cert petitions, and they do not and cannot address many issues for lack of time. Far too often, they allow lower court judges to violate our Constitution with impunity--including because supporting and defending our Constitution doesn't happen to fit with the political priorities of a sufficient number of justices.
Agree with this. There is non-partisan value to just making the Supreme Court a lot bigger so each individual confirmation / retirement was not such a seismic event, and over time the composition of the court should more naturally match a bipartisan balance.
Very insightful comment. Josh totally skirts the real difference between the liberal and conservative views ( I am a libertarian) regarding the role of the Supreme Court . Liberals view it as a politician institution which should be cheered when they agree with its decisions and disparage when they do not, and their view of the role of the Constitution in its arguments is that it is irrelevant in todays works and needs to become a “living document” whose interpretation is dependent on iypts “penumbras”. As a generalization, conservatives believe that the constitution is a documented crafted by founders of this country who were much wiser and longer term oriented and attempting to preserve a fragile new republic ( not democracy) by forming thre branches of government who would share relatively equal power. The liberal justices have often been willing to step into a void that legislators and the executive branch have seemed to create and literally wrote new legislation ( issue rulings with the force of law) whereas conservatives J.P. have generally attend to reign in the grabs of peer by the legislative and executive branches that reduce our liberty. As a good friend of mine has stated it, the Constitution was created by the framers as “ a shield against the sword of government power”.
Josh clearly comes down on the side that while in power the “ will of the majority” to impose their views on the minority should be unlimited, which I view as a recipe for disaster and also creating chaos whenever an election votes a new party into power that immediately attempts to undo everything that the previous administration has done. Under his suggestion, after several changes in power and multiple episodes of court packing we would eventually end up with a Supreme Court as large and dysfunctional as Congress, much of whose time woukd then be devoted to increasing the size of the Court and approving the appointment of new judges.
I think I'm with you on this. In the mid-1930s the Supreme Court was blocking every major piece of New Deal Legislation and preventing anything akin to a modern welfare state from occurring, and it seemed like the only way for a popular supermajority to get what it badly wanted was to blow up the court. Fortunately Justice Owen Roberts saw this coming and switched sides, making court-packing unnecessary. The present court really isn't doing anything comparably destructive or antithetical to popular will. Overturning Roe v. Wade was unpopular, but it granted power to legislatures rather than taking it.
Like a lot of people I have contradictory feelings here. I don't want the court to act as an unelected superlegislature. If the court makes Alito emperor tomorrow am I obligated to respect that? I also don't think that 51% of voters should be able to overturn the principle of Trial by Jury. All I can say is that 1850s/1930s courts had become too unmoored from popular need and had lost legitimacy in a way I don't think the present court has.
"All I can say is that 1850s/1930s courts had become too unmoored from popular need and had lost legitimacy in a way I don't think the present court has."
I have a sincere question: what more would it take from this court to show that it's "unmoored from popular need" like the previous courts were? I feel like it's pretty damn far into being unmoored at this point - it's in a way that a lot of laymen might not understand beyond Dobbs (such as probably overturning Chevron deference [opinion still pending], which in my opinion leads to the regulatory version of blocking New Deal legislation), but it's very real.
I think Ivan's point is that creating a "juristocracy" either way is bad. You don't want a court that constantly undermines the legislative branch because it's the primary institution that expresses the will of the people. But at the same time, you don't want a court that effectively creates its own laws by stretching the original meaning and intentions of past legislation via legal interpretation to advance personal policy views.
Having more justices with the same "rank" but more diversity and with more justices in various categories might help diminish the pretense of the supremacy of SCOTUS (and the pretense that everything that at least 5 justices do is constitutional).
I guess my argument is that declaring black people to be non-citizens or striking down giant government spending programs is extremely important to lots of people. It's not just that the rulings were bad or unpopular, it's that they dramatically affected peoples' lives. If indeed the court is on the cusp of destroying most of the modern regulatory state, then yes, we're in a new era of the court messing everyone's lives up. You clearly know more about this than I do. Is this the case?
Since you asked, I happened to jot down some thoughts about SCOTUS's decision last Thursday in Alexander v. South Carolina State Conference of the NAACP. I welcome insights about anything I might be missing (pro or con).
It's important to view Alexander as a real and actual sequel to Dobbs and to see that the conduct of the majorities in both decisions is fundamentally (and obviously) anti-constitutional, and it is about something even more fundamental and essential than skin color. Look at the Dobbs opinion and see how many times it uses the words "moral," "belief," "believe" or "view" and look at the words around those words. That is what Alexander was intended (by the SCOTUS majority) to protect and entrench.
The SCOTUS majority (and the state legislators they empowered) in Alexander and in Dobbs are rather flagrantly doing nothing more and nothing less than imposing their own religious and political views on people who do not share their religious or political views. That is powerfully opposed by the First Amendment (and copious SCOTUS precedent construing and applying the First Amendment regarding freedom of religion and freedom to think and live as we wish) (essentially, as the Declaration of Independence says, our right to life, liberty and the pursuit of happiness).
If the Dobbs and Alexander majorities had focused on what was in our Constitution (what it actually says and clearly means), I'd have no problem with those decisions. I was a paratrooper. I served this nation for a long time in dangerous and unpleasant places. My brothers and I sacrificed a lot of our liberty and happiness for this nation. Many of us sacrificed our health. Some sacrificed their lives. I understand that nations (as societies) get to make decisions that disproportionately affect some citizens' lives. I accept that concept, but only to the extent that it actually did what my oath (and the oath of every federal judge) said, i.e., "support and defend" our "Constitution." I'm also a lawyer and I've studied a lot and thought a lot about our Constitution and our early history. I think about our Constitution as a lawyer, a soldier and a citizen. I know that, as a matter of law, judges are no less bound by their oaths than soldiers. Our oaths are our promises to the people we serve, our promise that in everything we do we always will "support and defend" our "Constitution."
It is obvious that supporting and defending our Constitution is not at all what SCOTUS did in Dobbs or in Alexander (and that's not what state legislators are doing). They supported and defended parts of our history that were consistent with their own religious and political views. In Dobbs, in particular, they used a lot of irrelevant history to deceive us about our Constitution, and they ignored the relevant history.
The relevant text and meaning of our Constitution and our relevant history really are quite straightforward and simple. They also were remarkably brutal and bloody. Throughout our early history, a huge number of Americans accepted that some people can treat other actual people (men, women, children) as well as fetuses as property (consistent with our Constitution).
The 14th Amendment clearly and emphatically says all "persons" who were "born" in the U.S. (or born somewhere but "naturalized" in the U.S.) are equal under the law and equally protected by the law. So now, some people cannot treat other people as their property. Even so, the Constitution clearly does not say (or mean) that state legislators (or SCOTUS) can rob people (who actually were "born" or "naturalized" in the U.S.) of their protection under the Constitution to protect any fetus (which clearly is not a "person" who was "born" anywhere).
With the 19th Amendment, our Constitution finally expressly and specifically acknowledged that women were fully first-class citizens (fully "persons" and "citizens" (fully part of "the people") as those terms were used in the Constitution). The fact that the 19th Amendment even was required is a massive red flag about the history and people on which Justice Alito and his gang love to rely. The letter and spirit of the 14th Amendment clearly commanded protection of all "citizens" regarding their "privileges or immunities" and "due process of law" and "equal protection of the laws" for every "person." Yet, the people in power (state legislators and judges) pretended "person" and "citizen" did not actually mean women. The originalists' own logic condemns their own deceitful conduct in relying on a "history" and "tradition" of obviously, irrefutably and intentionally unconstitutional conduct.
The view that actual "persons" and "citizens" can make their own decisions about their own lives and bodies (and treat their own bodies and everything in them, including fetuses, as their property) is perfectly consistent with the text and meaning of the original Constitution, the Bill of Rights, and the 13th, 14th and 19th Amendments and with a lot of our history before and even after the 14th Amendment. If anyone truly believes that the opposite view is consistent with those parts of our Constitution (and our history until well after the 14th Amendment), please show me how.
In short, the original Chevron case/decision ceded power to agencies where Congress is ambiguous in its legislation (like when they use vague descriptors or omit specific criteria/details for something) as long as the agencies use a "reasonable" interpretation of the ambiguous statute. Conservatives hate Chevron because it gives more power to the executive branch/regulatory state and judges tend to give broad latitude to what constitutes "reasonable." The counterargument is that Congress can't possibly be specific enough to cover every minute detail and that if Chevron falls then basically every agency action could be subject to judicial review, gumming up the works (which is, of course, the conservative preference) at best and leading to unelected judges/justices picking and choosing interpretations of two elected branches of government's decisions at worst. Theoretically, this could force Congress to be more specific in its legislation and quicker to respond to issues. However, we all are familiar with Congress and know that will likely not happen. It would also theoretically force agencies to do fewer things that might get them sued. However, we all know the litigious nature of both sides of the political spectrum - even seemingly milquetoast actions are likely to get challenged in court. Obviously no one truly knows how ending Chevron deference will ultimately play out, but I don't see it going very well. It would likely lead to a slow death of the regulatory state, but it's not going to be super obvious to the average person as to why.
It is depressing how much stuff, arguably including Roe v. Wade, where it's basically "in theory Congress should just be doing this and most people want them to and probably most of Congress wants to, but everything is so slow and inefficient that we need a court or bureaucracy to step in"
Right, the question isn't "what's fair", but what is the best for the country. True concern for the country requires we don't ask if it's unfair to let the right preserve it's majority on the court but if packing the court leads to a better world.
And just because the left 'wins' under court packing as often as it losses isn't enough to justify the policy. Each time the court swings back and forth people get hurt, rights get violated and laws get struck down. A liberal court can't unsell the guns sold under a conservative court or undo the harm caused by denying abortion rights. I think most people on the left who disagree with the recent court rulings would find things even worse if, in effect, court authority was radically reduced.
And that's just with the current federalist society style conservatives. I don't think the left appreciates just how bad it would get if instead of them we got the kind of natural law judges who are going to find new principles in the constitution, eg, claim that the constitution prevents any state from recognizing gay marriage or holding that states must offer equal funding for kids to go to religious school.
It's not that it's impossible for court packing to be a good idea, but like most arguments for it the case here seems to just be that it's unfair if the left doesn't get to do something about the conservative court (or fair if they did). Maybe, but being the good guy always means fighting with a hand tied behind your back.
You're actually pushing for court packing? That will improve the legitimacy of the court? Why not amend the Constitution to allow each incoming president to fire the sitting justices and replace them nine more of his choosing? If you want the court to be a way to enact legislation without, you know, the inconvenience of actually having Congress pass laws, you may as well be upfront about it. Actually, why not go a step further and abolish the court and allow presidents to rule by decree? We're already pretty far down that road, so w may as well go all the way.
Yeah, that’s the part of Josh’s post I can’t get behind. Not because of a “there’s no crying in baseball” concern, but because I don’t see the end game to court packing that doesn’t devolve into larger chaos.
Expanding the size of the court definitely doesn't necessarily mean anything like court packing. It could be expanded significantly in a bi-partisan manner. It's absurd that a handful of hand-picked partisans can dictate to us (and lie and deceive with near impunity) about what our Constitution means. It's absurd that a 9-person court is only 50% larger than it was when SCOTUS was created with 6 justices. In 1789, 4 was a majority. Now, it is only barely bigger. Now, we have more than 4 times as many states and territories and about 100 times as many people. We have a virtual sitting army of lower court (and state court) judges that SCOTUS is supposed to actually or essentially supervise. The current SCOTUS addresses a tiny fraction of cert petitions, and they do not and cannot address many issues for lack of time. Far too often, they allow lower court judges to violate our Constitution with impunity--including because supporting and defending our Constitution doesn't happen to fit with the political priorities of a sufficient number of justices.
Agree with this. There is non-partisan value to just making the Supreme Court a lot bigger so each individual confirmation / retirement was not such a seismic event, and over time the composition of the court should more naturally match a bipartisan balance.
Very insightful comment. Josh totally skirts the real difference between the liberal and conservative views ( I am a libertarian) regarding the role of the Supreme Court . Liberals view it as a politician institution which should be cheered when they agree with its decisions and disparage when they do not, and their view of the role of the Constitution in its arguments is that it is irrelevant in todays works and needs to become a “living document” whose interpretation is dependent on iypts “penumbras”. As a generalization, conservatives believe that the constitution is a documented crafted by founders of this country who were much wiser and longer term oriented and attempting to preserve a fragile new republic ( not democracy) by forming thre branches of government who would share relatively equal power. The liberal justices have often been willing to step into a void that legislators and the executive branch have seemed to create and literally wrote new legislation ( issue rulings with the force of law) whereas conservatives J.P. have generally attend to reign in the grabs of peer by the legislative and executive branches that reduce our liberty. As a good friend of mine has stated it, the Constitution was created by the framers as “ a shield against the sword of government power”.
Josh clearly comes down on the side that while in power the “ will of the majority” to impose their views on the minority should be unlimited, which I view as a recipe for disaster and also creating chaos whenever an election votes a new party into power that immediately attempts to undo everything that the previous administration has done. Under his suggestion, after several changes in power and multiple episodes of court packing we would eventually end up with a Supreme Court as large and dysfunctional as Congress, much of whose time woukd then be devoted to increasing the size of the Court and approving the appointment of new judges.
This is a very credulous reading of the current majority's motives and objectives.
I think I'm with you on this. In the mid-1930s the Supreme Court was blocking every major piece of New Deal Legislation and preventing anything akin to a modern welfare state from occurring, and it seemed like the only way for a popular supermajority to get what it badly wanted was to blow up the court. Fortunately Justice Owen Roberts saw this coming and switched sides, making court-packing unnecessary. The present court really isn't doing anything comparably destructive or antithetical to popular will. Overturning Roe v. Wade was unpopular, but it granted power to legislatures rather than taking it.
Like a lot of people I have contradictory feelings here. I don't want the court to act as an unelected superlegislature. If the court makes Alito emperor tomorrow am I obligated to respect that? I also don't think that 51% of voters should be able to overturn the principle of Trial by Jury. All I can say is that 1850s/1930s courts had become too unmoored from popular need and had lost legitimacy in a way I don't think the present court has.
"All I can say is that 1850s/1930s courts had become too unmoored from popular need and had lost legitimacy in a way I don't think the present court has."
I have a sincere question: what more would it take from this court to show that it's "unmoored from popular need" like the previous courts were? I feel like it's pretty damn far into being unmoored at this point - it's in a way that a lot of laymen might not understand beyond Dobbs (such as probably overturning Chevron deference [opinion still pending], which in my opinion leads to the regulatory version of blocking New Deal legislation), but it's very real.
I think Ivan's point is that creating a "juristocracy" either way is bad. You don't want a court that constantly undermines the legislative branch because it's the primary institution that expresses the will of the people. But at the same time, you don't want a court that effectively creates its own laws by stretching the original meaning and intentions of past legislation via legal interpretation to advance personal policy views.
Having more justices with the same "rank" but more diversity and with more justices in various categories might help diminish the pretense of the supremacy of SCOTUS (and the pretense that everything that at least 5 justices do is constitutional).
I guess my argument is that declaring black people to be non-citizens or striking down giant government spending programs is extremely important to lots of people. It's not just that the rulings were bad or unpopular, it's that they dramatically affected peoples' lives. If indeed the court is on the cusp of destroying most of the modern regulatory state, then yes, we're in a new era of the court messing everyone's lives up. You clearly know more about this than I do. Is this the case?
Since you asked, I happened to jot down some thoughts about SCOTUS's decision last Thursday in Alexander v. South Carolina State Conference of the NAACP. I welcome insights about anything I might be missing (pro or con).
It's important to view Alexander as a real and actual sequel to Dobbs and to see that the conduct of the majorities in both decisions is fundamentally (and obviously) anti-constitutional, and it is about something even more fundamental and essential than skin color. Look at the Dobbs opinion and see how many times it uses the words "moral," "belief," "believe" or "view" and look at the words around those words. That is what Alexander was intended (by the SCOTUS majority) to protect and entrench.
The SCOTUS majority (and the state legislators they empowered) in Alexander and in Dobbs are rather flagrantly doing nothing more and nothing less than imposing their own religious and political views on people who do not share their religious or political views. That is powerfully opposed by the First Amendment (and copious SCOTUS precedent construing and applying the First Amendment regarding freedom of religion and freedom to think and live as we wish) (essentially, as the Declaration of Independence says, our right to life, liberty and the pursuit of happiness).
If the Dobbs and Alexander majorities had focused on what was in our Constitution (what it actually says and clearly means), I'd have no problem with those decisions. I was a paratrooper. I served this nation for a long time in dangerous and unpleasant places. My brothers and I sacrificed a lot of our liberty and happiness for this nation. Many of us sacrificed our health. Some sacrificed their lives. I understand that nations (as societies) get to make decisions that disproportionately affect some citizens' lives. I accept that concept, but only to the extent that it actually did what my oath (and the oath of every federal judge) said, i.e., "support and defend" our "Constitution." I'm also a lawyer and I've studied a lot and thought a lot about our Constitution and our early history. I think about our Constitution as a lawyer, a soldier and a citizen. I know that, as a matter of law, judges are no less bound by their oaths than soldiers. Our oaths are our promises to the people we serve, our promise that in everything we do we always will "support and defend" our "Constitution."
It is obvious that supporting and defending our Constitution is not at all what SCOTUS did in Dobbs or in Alexander (and that's not what state legislators are doing). They supported and defended parts of our history that were consistent with their own religious and political views. In Dobbs, in particular, they used a lot of irrelevant history to deceive us about our Constitution, and they ignored the relevant history.
The relevant text and meaning of our Constitution and our relevant history really are quite straightforward and simple. They also were remarkably brutal and bloody. Throughout our early history, a huge number of Americans accepted that some people can treat other actual people (men, women, children) as well as fetuses as property (consistent with our Constitution).
The 14th Amendment clearly and emphatically says all "persons" who were "born" in the U.S. (or born somewhere but "naturalized" in the U.S.) are equal under the law and equally protected by the law. So now, some people cannot treat other people as their property. Even so, the Constitution clearly does not say (or mean) that state legislators (or SCOTUS) can rob people (who actually were "born" or "naturalized" in the U.S.) of their protection under the Constitution to protect any fetus (which clearly is not a "person" who was "born" anywhere).
With the 19th Amendment, our Constitution finally expressly and specifically acknowledged that women were fully first-class citizens (fully "persons" and "citizens" (fully part of "the people") as those terms were used in the Constitution). The fact that the 19th Amendment even was required is a massive red flag about the history and people on which Justice Alito and his gang love to rely. The letter and spirit of the 14th Amendment clearly commanded protection of all "citizens" regarding their "privileges or immunities" and "due process of law" and "equal protection of the laws" for every "person." Yet, the people in power (state legislators and judges) pretended "person" and "citizen" did not actually mean women. The originalists' own logic condemns their own deceitful conduct in relying on a "history" and "tradition" of obviously, irrefutably and intentionally unconstitutional conduct.
The view that actual "persons" and "citizens" can make their own decisions about their own lives and bodies (and treat their own bodies and everything in them, including fetuses, as their property) is perfectly consistent with the text and meaning of the original Constitution, the Bill of Rights, and the 13th, 14th and 19th Amendments and with a lot of our history before and even after the 14th Amendment. If anyone truly believes that the opposite view is consistent with those parts of our Constitution (and our history until well after the 14th Amendment), please show me how.
I found a few articles/op-eds, like one from SCOTUSblog, (https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/) one from The Atlantic (https://www.theatlantic.com/ideas/archive/2024/01/chevron-supreme-court-case/677220/) and one from Newsweek (https://www.msn.com/en-us/news/other/the-supreme-court-is-about-to-make-congress-reinvent-itself-opinion/ar-BB1nhfE8?ocid=BingNewsSerp) that explain this better than I can do, even though I have a JD. However, I will try to paraphrase.
In short, the original Chevron case/decision ceded power to agencies where Congress is ambiguous in its legislation (like when they use vague descriptors or omit specific criteria/details for something) as long as the agencies use a "reasonable" interpretation of the ambiguous statute. Conservatives hate Chevron because it gives more power to the executive branch/regulatory state and judges tend to give broad latitude to what constitutes "reasonable." The counterargument is that Congress can't possibly be specific enough to cover every minute detail and that if Chevron falls then basically every agency action could be subject to judicial review, gumming up the works (which is, of course, the conservative preference) at best and leading to unelected judges/justices picking and choosing interpretations of two elected branches of government's decisions at worst. Theoretically, this could force Congress to be more specific in its legislation and quicker to respond to issues. However, we all are familiar with Congress and know that will likely not happen. It would also theoretically force agencies to do fewer things that might get them sued. However, we all know the litigious nature of both sides of the political spectrum - even seemingly milquetoast actions are likely to get challenged in court. Obviously no one truly knows how ending Chevron deference will ultimately play out, but I don't see it going very well. It would likely lead to a slow death of the regulatory state, but it's not going to be super obvious to the average person as to why.
It is depressing how much stuff, arguably including Roe v. Wade, where it's basically "in theory Congress should just be doing this and most people want them to and probably most of Congress wants to, but everything is so slow and inefficient that we need a court or bureaucracy to step in"
FYI, there's a related comment below that you can find by searching for the word "beam."
Right, the question isn't "what's fair", but what is the best for the country. True concern for the country requires we don't ask if it's unfair to let the right preserve it's majority on the court but if packing the court leads to a better world.
And just because the left 'wins' under court packing as often as it losses isn't enough to justify the policy. Each time the court swings back and forth people get hurt, rights get violated and laws get struck down. A liberal court can't unsell the guns sold under a conservative court or undo the harm caused by denying abortion rights. I think most people on the left who disagree with the recent court rulings would find things even worse if, in effect, court authority was radically reduced.
And that's just with the current federalist society style conservatives. I don't think the left appreciates just how bad it would get if instead of them we got the kind of natural law judges who are going to find new principles in the constitution, eg, claim that the constitution prevents any state from recognizing gay marriage or holding that states must offer equal funding for kids to go to religious school.
It's not that it's impossible for court packing to be a good idea, but like most arguments for it the case here seems to just be that it's unfair if the left doesn't get to do something about the conservative court (or fair if they did). Maybe, but being the good guy always means fighting with a hand tied behind your back.