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.
I remember asking grad school classmates during the Kavanaugh hearing if they would feel happier if Roe got overturned by somebody whose character everybody respected; this was treated like a not-very-funny joke.
Unfortunately I think that there's an asymmetry to preciousness about the Supreme Court. On the points where you say Republicans are precious, their preciousness is often strategically wise. "Should Justice X recuse" is a good argument for them to have, because Justice X will never recuse and Justice X will never be impeached. On "court packing is an unacceptable assault on our constitution," many fancy liberal lawyers agree with them. Fancy liberal lawyers (of whom Sotomayor is currently the most dangerous) don't want to think about the justices as politicians, members of the third house of our legislature. The liberal lawyers want to think of them as inspiring, genius sages who got to the top via sterling character and insight, who should tend to be liberal only because wise, educated people tend to be liberal. The longer liberals continue to think this way, the better for conservatives.
IMNO as a libertarian the liberals are right in this instance. The more that the court is politicized the more the use of executive orders by the increasingly Imperial Presidency will imperil both our liberties and our Tri Partitue force of supposedly coequal branches of government and balance of power.
The Supreme Court is a poorly designed institution that has had mostly disastrous consequences for our politics since the founding. There's nothing wrong with having a constitutional court but the only checks on ours are constitutional amendments, impeachment and court packing. In other countries the court can be overruled by 2/3 of the legislature, or a majority of the legislature can pass a law subjecting the court's decision to a referendum or something like that.
The court has moved far to the right because there is a well-organized and reasonably popular anti-abortion movement in this country. (They aren't popular per se, but gay marriage and civil rights for black people quickly became matters of overwhelming consensus and abortion rights did not.) After Roe, the only way they could get what they wanted was via the Supreme Court, so they spent decades trying to appoint justices that they were sure would overturn Roe. Eventually, they succeeded. The result is a very political court that will make many Democratic political priorities impossible. I suspect that if Trump is elected and we get an 8-2 court, Democrats will eventually respond with the threat of court-packing, as they did in the 1930s.
In Dobbs, the Supreme Court put itself (temporarily, to be sure) out of the business of writing abortion law. On its face that is not an act of a court out to set policy, but of one that has wearied of doing so on a case basis in an environment of increasing contentiousness and biological technology that has been and almost certainly will continue invalidating vague legal notions like "fetal viability" and developing new treatments for conditions that threaten lives of pregnant women or the children they are carrying.
Legislatures, because they are closer to the people than justices and judges, and because they are subject to periodic evaluation of their work and possible replacement if it is found deficient, are better suited than courts to settling complicated matters like regulation of abortion. It is likely to take several more election cycles for state legislators to come to terms with it and enact sensible laws that meet with majority approval, and both state and federal courts are likely to be involved in the process. But legislatures, intended to enact laws to deal with changing attitudes, policy preferences, and physical environment, are likely to prove more satisfactory in the long run than an expanding body of case law ordered by the courts.
I support abortion rights, and as a gay man I'm very glad that the court legalized gay marriage.
I am still capable of considering this issue at a certain level of abstraction: if I didn't know what the decision would be, would I rather that the legality of gay marriage were decided by nine lawyers in robes, or by our elected legislature?
Obviously like every person who is honest with themselves I care more about outcomes than process, but I feel like my right to marry and the recognition that goes with it are safe because public opinion is behind it. Roe unfortunately seems like an immense tactical error.
I would have preferred that the Supreme Court rule "marriage" laws off limits on first amendment grounds and "civil unions" available to consenting adults irrespective of religious restrictions or sex based on fourteenth amendment and Article IV grounds. They seem to have held back from the obvious in Obergefell, which I admittedly have not read.
As a matter of first principles I think that I should have the right to marry but I certainly also admit that it would be unjust to force the Catholic Church to perform gay marriages or even to recognize my marriage as a real marriage in terms of their belief system (or cannon law or whatever). If the Catholics want to change their mind about this, great, but the government shouldn't force them.
It is maybe a little weird Supreme Court legalized gay marriage in this country, whereas almost everywhere else it has been legalized by legislatures. It is the system we have so I'm happy when it does something important that I like, but that doesn't make it a good system.
The better way (consistent with our Constitution) is to look at this as a moral issue (as the SCOTUS majority did in Dobbs). Above, I included a post about that (Dobbs and "moral").
As far as I can ascertain, this issue is entirely a question of morals, conscience, religion. Even the SCOTUS majority in Dobbs treated it that way. They pretended to invoke "history" and "tradition" but that all was a function of religious views. The only lawful way to address this issue is the way that SCOTUS precedent (under the First and Fourteenth Amendments together) already requires states to respect and protect freedom of religion and freedom of conscience. That strict scrutiny would be fatal to state legislators who are essentially compelling other people to create and serve additional people that they don't want to create and serve. The state has no actual interest that I've ever seen anyone identify.
The SCOTUS majority in Dobbs just pulled a fast one by pretending they had to find evidence in old documentation of this particular right. But the right at issue is merely an aspect of the freedom of conscience and the right to life, liberty and the pursuit of happiness.
Alexander Hamilton put the issue pretty clearly and compellingly in The Farmer Refuted (Feb. 23, 1775):
"The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records." (As the majority in Dobbs pretended). "They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power."
To see the blatant deceit in the "method" of the SCOTUS majority in Dobbs, just compare the 13th, 14th, 15th and 19th Amendments with
the "history" and "tradition" that preceded them. Those Amendment were consistent with what Hamilton wrote (consistent with our true constitution as a people (as were the rights declared clearly and emphatically in the Declaration of Independence). The "history" and "tradition" that preceded them wasn't consistent.
I mean, I'd personally love to have justices who were "genius sages" with "sterling character and insight." I don't think we HAVE those right now. It's a reality we as a nation need to face.
I honestly can't tell if Josh is being too cute by half here in regards to court packing and the extent he thinks Democrats should pursue that.
Also isn't one of the biggest complaint about the Warren court is that it was far to the left of the country's majority and was not issuing rulings that "would be implied by several decades of election results" here?
There really is a massive and clear difference between the conduct of SCOTUS then and SCOTUS now. Then, what SCOTUS was doing was supported by the plain text of at least the Preamble and the 9th, 14th and 19th Amendments. SCOTUS compelled state legislators and judges to take seriously those parts of our Constitution (commanding equality under the law for all the people). Now, SCOTUS is doing very much the opposite. It is re-establishing inequalities (and suggesting even more) from a "history" and "tradition" that would not even have existed if state legislators and judges complied with our Constitution. SCOTUS justices are leveraging blatantly unconstitutional historical conduct to justify issuing blatantly unconstitutional decisions.
Now, SCOTUS justices are attacking SCOTUS precedent they don't like for political or religious reasons, and they're doing it by analyzing prior decisions for their flaws almost as they would analyze statutes. SCOTUS, itself, has said that's not a legitimate way to analyze its decisions. Moreover, the Preamble and the 9th and 10th Amendments make clear that's not even a potentially legitimate way to view our Constitution. Originalism, itself, is contrary to the conduct of Justices Thomas and Alito.
We really should bear in mind that the Founders and Framers were extremely concerned about writing down a list of rights precisely because they (rightly) feared that any enumeration would be treated as today's SCOTUS majority treats the enumeration in our Constitution. That is the whole reason for the 9th Amendment. The Framers wrote down the rights most relevant in their time. They did not mean to make a list that should imply any exclusivity for all time.
Many Founders and Framers had very expansive views of rights that were much more consistent with those of the Warren Court than of the views of rights by the Alito-Thomas Court. Hamilton wrote something that many disregard as a rhetorical flourish. But he really meant it, and so did very many of his most enlightened contemporaries.
"The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records." (As Justices Thomas and Alito pretend). "They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power." A. Hamilton, The Farmer Refuted (Feb. 23, 1775) (emphasis in original) https://founders.archives.gov/documents/Hamilton/01-01-02-0057. Hamilton emphasized "volume" (so it's in italics in Founders Online). Also, some people quote "sun beam" as "sunbeam."
I think the Kavanaugh and Alito situations are more different than Josh allows here. The confirmation hearing is an opportunity for both sides to define who this nominee is who has been put forth by the party in the White House. Kavanaugh in general has done a pretty good job of presenting himself as a “reasonable” conservative, more moderate than Alito/Thomas, coaches his daughters basketball teams etc. The value of the yearbook nonsense for Democrats is they were able to redefine Kavanaugh in the eyes of many as a different kind of entitled white guy, who the GOP steadfastly stood behind.
Alito, on the other hand, is already very well defined! He wrote the Dobbs opinion! He’s not shy in sharing his views and being a conservative boogie man. This nonsense about the flags changes absolutely nothing about how anyone sees him or his political preferences.
The "Appeal to Heaven" flag above Justice Alito's home may have multiple meanings. A reasonable way to view flying that particular flag is as flaunting the perceived power of Justices Alito and Thomas and taunting Congress (and us) to do something about what they're doing. So we and Congress should.
Now probably is about as good a time as any to work on bi-partisan support for expanding the Court. Last winter a sitting justice (Justice Alito) practically dared Congress to do something. He lied about nothing in the Constitution empowering Congress to regulate SCOTUS. https://blackcollarcrime.substack.com/p/speaking-of-justice-alitos-lies?r=30ufvh.
Even more recently (regarding Trump's immunity), the same justice (Justice Alto) implied that he (with 4 other justices) could usurp executive branch authority (essentially granting a pardon to the past president, as the US brief argued), usurp legislative branch authority (by purporting to declare a rule to exempt future presidents from Congress's constitutionally-enacted federal criminal law)) and usurp the power of the people (the jury and observers of a public trial).
During oral argument, Justice Alito suggested that SCOTUS could decree that a president who lost an election and then tried to retain power by criminally altering the results of the election—even to the point of using violent force and threats of violence—could not be “criminally prosecuted” because the enforcement of law might “lead us into a cycle that destabilizes the functioning of our country as a democracy.” His suggestion did not even sound like something from a judge fulfilling his oath to support and defend the Constitution. It sounded like a conspirator's theory, a suggestion by or on behalf of a co-conspirator. I think NY also might have made it moot.
As an independent voter, I love your adult takes. People keep saying that Democrats are the party that high IQ voters lean towards but it’s certainly not well reflected in their politics or policies.
We also ought to work toward bi-partisan support for quickly and efficiently impeaching, convicting, removing and replacing federal judges who knowingly violate federal statutes or federal rules of procedure or evidence (necessarily knowingly violating our Constitution). Congress and the people need to do what SCOTUS justices don't and won't.
Judges "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art. II s. 4. But that doesn't mean they can't be impeached for other bad behavior. "The Judges, both of the supreme and inferior Courts, shall hold their Offices" only "during good Behaviour." Art. III s. 2. That standard was meant to have substantive and serious significance.
In The Federalist No. 78, Alexander Hamilton emphasized that holding judges to “[t]he standard of good behavior” was meant to be “one of the most valuable of the modern improvements in the practice of government.” Such standard was included in Article III to be an “excellent barrier to the encroachments and oppressions of the representative body [of federal judges] as the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” “No” official “act” whatsoever that is “contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.”
I'm extremely skeptical of Democrats' ability to win more Senate elections in red states simply by coming up with moderate nominees. How else would you classify Heidi Heitkamp, Joe Donnelly, Claire McCaskill, Mark Pryor, Mary Landrieu, Blanche Lincoln, Phil Bredesen, et al.? The party's brand is just radioactive in most of those places.
They do, and I wouldn’t even call Brown a moderate. But what do you think are examples of political moderation which Tester exemplifies but that Democrats just aren’t trying in places like North Dakota, Indiana, Arkansas and Tennessee?
They aren't trying it in Texas, because Texas Democrats have convinced themselves that victory is around the corner and will only try to win with a liberal candidate.
I haven't done a statistical analysis, to be sure, but he was one of the handful of House Democrats who voted with Golden and MGP to rebuke the Biden administration's border policy.
Tester broke with his party on immigration, student debt forgiveness, Laken Riley Act (election year flip-flop, but still), energy (Keystone XL), Covid vaccine requirements...
I don't know why he won and the other Dems lost in 2018. Everyone attributes it to Kavanaugh anger, but I honestly think that's b.s.
Why do you assume that just because it's good for democratic SCOTUS justices to retire before they get too old it's good to "pressure" them to retire?
Yes, Sotomayor should take into account this consideration when thinking about when to retire, but the only thing that public pressure on her does is make it harder and less likely she makes that choice. She knows all this and, unless you're a personal friend of hers, all this does is put her back up (people are much more likely to do something like retire from a job they love when they can feel like they choose a virtuous path than when they feel pushed into it) and make it harder because it makes any retirement look more political and thus more likely to generate more disapproval from her colleagues. You may not care about their attitude but it's clear SCOTUS justices do care to some extent so why make it harder for her? The less we talk about it the more likely it happens and the more downside there is (more likely to prompt corresponding strategic retirements on the other side...even if likely you can still increase that probability)
Of course, we often just want to say what's true. So I wouldn't object if you just asserted she should retire but absent an argument that pressure is going to be effective rather than just put her back up why assert that the pressure should be kept up too?
Mayor Pete advocated for a Supreme Court of 15. 5 liberal, 5 conservative, and the remaining 5 agreed on by the 10 partisans. This seems like a reasonable expansion of the court that would to indefinite court packing.
We'd never get the 10 to agree on the other 5, though.
A much better option, in my view, is term-limiting the justices to a single 18-year term, staggered to start 2 during each presidential term. Vacancies caused by anything other than term limiting (ie death, incapacitation, etc.) could be handled by an appointment that would only last for the unexpired remainder of that term.
Thus every president gets to appoint at least 2 (and if s/he's re-elected, 2 more), the turnover is gradual and predictable, and over time, I think you'd rebalance the Court pretty well.
Certainly people who oppose the conduct of Justices Alito and Thomas cannot do nothing more than merely obsess over things like flags and potential recusals that won't happen. But obsessing over things that voters care about and can easily understand (like inflammatory flags and refusals to recuse) is how you get people to vote. And the point made by Justice Alito's flags and his and Justice Thomas's other recusal-related conduct is consistent with the points they are making in judicial opinions. So there might be more merit (and less BS) than was acknowledged in continuing to press those issues vigorously.
Folks tend to lose me when they stray into the upsides of court packing...
The Kavanaugh hearings will forever be regarded as an unmitigated embarrassment to the Republic. One decent outcome of that mess was the opening remarks offered by then Sen. Sasse. He beautifully articulated the precedence of Article I, and the downstream impacts as the Legislators abandon their fundamental responsibilities.
With regard to the current Roberts Court...the data doesn't necessarily support catastrophic declarations of intolerable brokenness. Perhaps a quick gander at recent decisions might propel folks to read even more decisions...listen to more oral arguments...and find "better" voices from which to harvest critical commentary about the laudable performance/reliability of this SCOTUS.
9-0 decision upholding the funding mechanisms of CFPB...written by Thomas.
9-0 decision affirming NRA's claims on government coercion...written by Sotomayor.
I wish there was more of a market for talking about what IS working and what shared experiences we can latch onto.
I agree with the other posters here and dissent from Josh’s court packing argument. All it will lead to is Republicans packing it more when they have power. Somebody has to draw the line.
The senate is structured in a way that is unfair, and that sucks. Maybe we could reform it to be more fair. I would also suggest reforming the electoral college and Democrats running more electable candidates in conservative states before even thinking about packing the Court, if we should even think about that at all.
We need to think more creatively about how to expand SCOTUS. Congress can write law changing how the court is staffed. The manner used to replace justices doesn't have to be what it has been.
The recent top-secret recordings seem like definitive proof that Alito is telling the truth: his wife really loves provoking their neighbors with weird political flags even though he asks her not to do so.
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.
I don't disagree with much of this, even if I'm uneasy about actually doing Court-packing (but by all means, keep Roberts looking over his shoulder).
I'm mostly here just to say that Sam Alito is a monstrous hack, the likes of which we haven't seen on the Court in a generation.
I remember asking grad school classmates during the Kavanaugh hearing if they would feel happier if Roe got overturned by somebody whose character everybody respected; this was treated like a not-very-funny joke.
Unfortunately I think that there's an asymmetry to preciousness about the Supreme Court. On the points where you say Republicans are precious, their preciousness is often strategically wise. "Should Justice X recuse" is a good argument for them to have, because Justice X will never recuse and Justice X will never be impeached. On "court packing is an unacceptable assault on our constitution," many fancy liberal lawyers agree with them. Fancy liberal lawyers (of whom Sotomayor is currently the most dangerous) don't want to think about the justices as politicians, members of the third house of our legislature. The liberal lawyers want to think of them as inspiring, genius sages who got to the top via sterling character and insight, who should tend to be liberal only because wise, educated people tend to be liberal. The longer liberals continue to think this way, the better for conservatives.
IMNO as a libertarian the liberals are right in this instance. The more that the court is politicized the more the use of executive orders by the increasingly Imperial Presidency will imperil both our liberties and our Tri Partitue force of supposedly coequal branches of government and balance of power.
The Supreme Court is a poorly designed institution that has had mostly disastrous consequences for our politics since the founding. There's nothing wrong with having a constitutional court but the only checks on ours are constitutional amendments, impeachment and court packing. In other countries the court can be overruled by 2/3 of the legislature, or a majority of the legislature can pass a law subjecting the court's decision to a referendum or something like that.
The court has moved far to the right because there is a well-organized and reasonably popular anti-abortion movement in this country. (They aren't popular per se, but gay marriage and civil rights for black people quickly became matters of overwhelming consensus and abortion rights did not.) After Roe, the only way they could get what they wanted was via the Supreme Court, so they spent decades trying to appoint justices that they were sure would overturn Roe. Eventually, they succeeded. The result is a very political court that will make many Democratic political priorities impossible. I suspect that if Trump is elected and we get an 8-2 court, Democrats will eventually respond with the threat of court-packing, as they did in the 1930s.
In Dobbs, the Supreme Court put itself (temporarily, to be sure) out of the business of writing abortion law. On its face that is not an act of a court out to set policy, but of one that has wearied of doing so on a case basis in an environment of increasing contentiousness and biological technology that has been and almost certainly will continue invalidating vague legal notions like "fetal viability" and developing new treatments for conditions that threaten lives of pregnant women or the children they are carrying.
Legislatures, because they are closer to the people than justices and judges, and because they are subject to periodic evaluation of their work and possible replacement if it is found deficient, are better suited than courts to settling complicated matters like regulation of abortion. It is likely to take several more election cycles for state legislators to come to terms with it and enact sensible laws that meet with majority approval, and both state and federal courts are likely to be involved in the process. But legislatures, intended to enact laws to deal with changing attitudes, policy preferences, and physical environment, are likely to prove more satisfactory in the long run than an expanding body of case law ordered by the courts.
I support abortion rights, and as a gay man I'm very glad that the court legalized gay marriage.
I am still capable of considering this issue at a certain level of abstraction: if I didn't know what the decision would be, would I rather that the legality of gay marriage were decided by nine lawyers in robes, or by our elected legislature?
Obviously like every person who is honest with themselves I care more about outcomes than process, but I feel like my right to marry and the recognition that goes with it are safe because public opinion is behind it. Roe unfortunately seems like an immense tactical error.
I would have preferred that the Supreme Court rule "marriage" laws off limits on first amendment grounds and "civil unions" available to consenting adults irrespective of religious restrictions or sex based on fourteenth amendment and Article IV grounds. They seem to have held back from the obvious in Obergefell, which I admittedly have not read.
As a matter of first principles I think that I should have the right to marry but I certainly also admit that it would be unjust to force the Catholic Church to perform gay marriages or even to recognize my marriage as a real marriage in terms of their belief system (or cannon law or whatever). If the Catholics want to change their mind about this, great, but the government shouldn't force them.
It is maybe a little weird Supreme Court legalized gay marriage in this country, whereas almost everywhere else it has been legalized by legislatures. It is the system we have so I'm happy when it does something important that I like, but that doesn't make it a good system.
The better way (consistent with our Constitution) is to look at this as a moral issue (as the SCOTUS majority did in Dobbs). Above, I included a post about that (Dobbs and "moral").
As far as I can ascertain, this issue is entirely a question of morals, conscience, religion. Even the SCOTUS majority in Dobbs treated it that way. They pretended to invoke "history" and "tradition" but that all was a function of religious views. The only lawful way to address this issue is the way that SCOTUS precedent (under the First and Fourteenth Amendments together) already requires states to respect and protect freedom of religion and freedom of conscience. That strict scrutiny would be fatal to state legislators who are essentially compelling other people to create and serve additional people that they don't want to create and serve. The state has no actual interest that I've ever seen anyone identify.
The SCOTUS majority in Dobbs just pulled a fast one by pretending they had to find evidence in old documentation of this particular right. But the right at issue is merely an aspect of the freedom of conscience and the right to life, liberty and the pursuit of happiness.
Alexander Hamilton put the issue pretty clearly and compellingly in The Farmer Refuted (Feb. 23, 1775):
"The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records." (As the majority in Dobbs pretended). "They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power."
https://founders.archives.gov/documents/Hamilton/01-01-02-0057. Hamilton emphasized "volume" (so it's in italics in Founders Online). Also, some people quote "sun beam" as "sunbeam."
To see the blatant deceit in the "method" of the SCOTUS majority in Dobbs, just compare the 13th, 14th, 15th and 19th Amendments with
the "history" and "tradition" that preceded them. Those Amendment were consistent with what Hamilton wrote (consistent with our true constitution as a people (as were the rights declared clearly and emphatically in the Declaration of Independence). The "history" and "tradition" that preceded them wasn't consistent.
I mean, I'd personally love to have justices who were "genius sages" with "sterling character and insight." I don't think we HAVE those right now. It's a reality we as a nation need to face.
I honestly can't tell if Josh is being too cute by half here in regards to court packing and the extent he thinks Democrats should pursue that.
Also isn't one of the biggest complaint about the Warren court is that it was far to the left of the country's majority and was not issuing rulings that "would be implied by several decades of election results" here?
There really is a massive and clear difference between the conduct of SCOTUS then and SCOTUS now. Then, what SCOTUS was doing was supported by the plain text of at least the Preamble and the 9th, 14th and 19th Amendments. SCOTUS compelled state legislators and judges to take seriously those parts of our Constitution (commanding equality under the law for all the people). Now, SCOTUS is doing very much the opposite. It is re-establishing inequalities (and suggesting even more) from a "history" and "tradition" that would not even have existed if state legislators and judges complied with our Constitution. SCOTUS justices are leveraging blatantly unconstitutional historical conduct to justify issuing blatantly unconstitutional decisions.
Now, SCOTUS justices are attacking SCOTUS precedent they don't like for political or religious reasons, and they're doing it by analyzing prior decisions for their flaws almost as they would analyze statutes. SCOTUS, itself, has said that's not a legitimate way to analyze its decisions. Moreover, the Preamble and the 9th and 10th Amendments make clear that's not even a potentially legitimate way to view our Constitution. Originalism, itself, is contrary to the conduct of Justices Thomas and Alito.
We really should bear in mind that the Founders and Framers were extremely concerned about writing down a list of rights precisely because they (rightly) feared that any enumeration would be treated as today's SCOTUS majority treats the enumeration in our Constitution. That is the whole reason for the 9th Amendment. The Framers wrote down the rights most relevant in their time. They did not mean to make a list that should imply any exclusivity for all time.
Many Founders and Framers had very expansive views of rights that were much more consistent with those of the Warren Court than of the views of rights by the Alito-Thomas Court. Hamilton wrote something that many disregard as a rhetorical flourish. But he really meant it, and so did very many of his most enlightened contemporaries.
"The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records." (As Justices Thomas and Alito pretend). "They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power." A. Hamilton, The Farmer Refuted (Feb. 23, 1775) (emphasis in original) https://founders.archives.gov/documents/Hamilton/01-01-02-0057. Hamilton emphasized "volume" (so it's in italics in Founders Online). Also, some people quote "sun beam" as "sunbeam."
Democrats controlled both chambers of Congress, starting in year three of the Warren Court. Republicans had no opportunity to pack the Court.
I think the Kavanaugh and Alito situations are more different than Josh allows here. The confirmation hearing is an opportunity for both sides to define who this nominee is who has been put forth by the party in the White House. Kavanaugh in general has done a pretty good job of presenting himself as a “reasonable” conservative, more moderate than Alito/Thomas, coaches his daughters basketball teams etc. The value of the yearbook nonsense for Democrats is they were able to redefine Kavanaugh in the eyes of many as a different kind of entitled white guy, who the GOP steadfastly stood behind.
Alito, on the other hand, is already very well defined! He wrote the Dobbs opinion! He’s not shy in sharing his views and being a conservative boogie man. This nonsense about the flags changes absolutely nothing about how anyone sees him or his political preferences.
The "Appeal to Heaven" flag above Justice Alito's home may have multiple meanings. A reasonable way to view flying that particular flag is as flaunting the perceived power of Justices Alito and Thomas and taunting Congress (and us) to do something about what they're doing. So we and Congress should.
Now probably is about as good a time as any to work on bi-partisan support for expanding the Court. Last winter a sitting justice (Justice Alito) practically dared Congress to do something. He lied about nothing in the Constitution empowering Congress to regulate SCOTUS. https://blackcollarcrime.substack.com/p/speaking-of-justice-alitos-lies?r=30ufvh.
Even more recently (regarding Trump's immunity), the same justice (Justice Alto) implied that he (with 4 other justices) could usurp executive branch authority (essentially granting a pardon to the past president, as the US brief argued), usurp legislative branch authority (by purporting to declare a rule to exempt future presidents from Congress's constitutionally-enacted federal criminal law)) and usurp the power of the people (the jury and observers of a public trial).
During oral argument, Justice Alito suggested that SCOTUS could decree that a president who lost an election and then tried to retain power by criminally altering the results of the election—even to the point of using violent force and threats of violence—could not be “criminally prosecuted” because the enforcement of law might “lead us into a cycle that destabilizes the functioning of our country as a democracy.” His suggestion did not even sound like something from a judge fulfilling his oath to support and defend the Constitution. It sounded like a conspirator's theory, a suggestion by or on behalf of a co-conspirator. I think NY also might have made it moot.
As an independent voter, I love your adult takes. People keep saying that Democrats are the party that high IQ voters lean towards but it’s certainly not well reflected in their politics or policies.
We also ought to work toward bi-partisan support for quickly and efficiently impeaching, convicting, removing and replacing federal judges who knowingly violate federal statutes or federal rules of procedure or evidence (necessarily knowingly violating our Constitution). Congress and the people need to do what SCOTUS justices don't and won't.
Judges "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art. II s. 4. But that doesn't mean they can't be impeached for other bad behavior. "The Judges, both of the supreme and inferior Courts, shall hold their Offices" only "during good Behaviour." Art. III s. 2. That standard was meant to have substantive and serious significance.
In The Federalist No. 78, Alexander Hamilton emphasized that holding judges to “[t]he standard of good behavior” was meant to be “one of the most valuable of the modern improvements in the practice of government.” Such standard was included in Article III to be an “excellent barrier to the encroachments and oppressions of the representative body [of federal judges] as the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” “No” official “act” whatsoever that is “contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.”
I'm extremely skeptical of Democrats' ability to win more Senate elections in red states simply by coming up with moderate nominees. How else would you classify Heidi Heitkamp, Joe Donnelly, Claire McCaskill, Mark Pryor, Mary Landrieu, Blanche Lincoln, Phil Bredesen, et al.? The party's brand is just radioactive in most of those places.
Yet Sherrod Brown and Jon Tester exist.
They do, and I wouldn’t even call Brown a moderate. But what do you think are examples of political moderation which Tester exemplifies but that Democrats just aren’t trying in places like North Dakota, Indiana, Arkansas and Tennessee?
They aren't trying it in Texas, because Texas Democrats have convinced themselves that victory is around the corner and will only try to win with a liberal candidate.
You don’t think Colin Allred is a credible moderate? I just disagree.
How does Allred’s voting record differ from a generic Democrat’s? He’s not exactly Jared Golden or Marie Glusenkamp Perez.
I haven't done a statistical analysis, to be sure, but he was one of the handful of House Democrats who voted with Golden and MGP to rebuke the Biden administration's border policy.
https://mainemorningstar.com/2024/01/18/with-gop-pushing-hard-on-immigration-parole-emerges-as-a-make-or-break-issue-in-congress/
I always used to joke that if they they wanted to win they should nominate Henry Cuellar, but I guess that ship has sailed.
Tester broke with his party on immigration, student debt forgiveness, Laken Riley Act (election year flip-flop, but still), energy (Keystone XL), Covid vaccine requirements...
I don't know why he won and the other Dems lost in 2018. Everyone attributes it to Kavanaugh anger, but I honestly think that's b.s.
Why do you assume that just because it's good for democratic SCOTUS justices to retire before they get too old it's good to "pressure" them to retire?
Yes, Sotomayor should take into account this consideration when thinking about when to retire, but the only thing that public pressure on her does is make it harder and less likely she makes that choice. She knows all this and, unless you're a personal friend of hers, all this does is put her back up (people are much more likely to do something like retire from a job they love when they can feel like they choose a virtuous path than when they feel pushed into it) and make it harder because it makes any retirement look more political and thus more likely to generate more disapproval from her colleagues. You may not care about their attitude but it's clear SCOTUS justices do care to some extent so why make it harder for her? The less we talk about it the more likely it happens and the more downside there is (more likely to prompt corresponding strategic retirements on the other side...even if likely you can still increase that probability)
Of course, we often just want to say what's true. So I wouldn't object if you just asserted she should retire but absent an argument that pressure is going to be effective rather than just put her back up why assert that the pressure should be kept up too?
Mayor Pete advocated for a Supreme Court of 15. 5 liberal, 5 conservative, and the remaining 5 agreed on by the 10 partisans. This seems like a reasonable expansion of the court that would to indefinite court packing.
We'd never get the 10 to agree on the other 5, though.
A much better option, in my view, is term-limiting the justices to a single 18-year term, staggered to start 2 during each presidential term. Vacancies caused by anything other than term limiting (ie death, incapacitation, etc.) could be handled by an appointment that would only last for the unexpired remainder of that term.
Thus every president gets to appoint at least 2 (and if s/he's re-elected, 2 more), the turnover is gradual and predictable, and over time, I think you'd rebalance the Court pretty well.
There are many ways to force the 10 to agree on the other 5. That is the easy part. You’d be guaranteed a very center 5 in addition to the partisans.
Typo. That would not lead to additional court packing
Certainly people who oppose the conduct of Justices Alito and Thomas cannot do nothing more than merely obsess over things like flags and potential recusals that won't happen. But obsessing over things that voters care about and can easily understand (like inflammatory flags and refusals to recuse) is how you get people to vote. And the point made by Justice Alito's flags and his and Justice Thomas's other recusal-related conduct is consistent with the points they are making in judicial opinions. So there might be more merit (and less BS) than was acknowledged in continuing to press those issues vigorously.
Folks tend to lose me when they stray into the upsides of court packing...
The Kavanaugh hearings will forever be regarded as an unmitigated embarrassment to the Republic. One decent outcome of that mess was the opening remarks offered by then Sen. Sasse. He beautifully articulated the precedence of Article I, and the downstream impacts as the Legislators abandon their fundamental responsibilities.
With regard to the current Roberts Court...the data doesn't necessarily support catastrophic declarations of intolerable brokenness. Perhaps a quick gander at recent decisions might propel folks to read even more decisions...listen to more oral arguments...and find "better" voices from which to harvest critical commentary about the laudable performance/reliability of this SCOTUS.
9-0 decision upholding the funding mechanisms of CFPB...written by Thomas.
9-0 decision affirming NRA's claims on government coercion...written by Sotomayor.
I wish there was more of a market for talking about what IS working and what shared experiences we can latch onto.
I agree with the other posters here and dissent from Josh’s court packing argument. All it will lead to is Republicans packing it more when they have power. Somebody has to draw the line.
The senate is structured in a way that is unfair, and that sucks. Maybe we could reform it to be more fair. I would also suggest reforming the electoral college and Democrats running more electable candidates in conservative states before even thinking about packing the Court, if we should even think about that at all.
We need to think more creatively about how to expand SCOTUS. Congress can write law changing how the court is staffed. The manner used to replace justices doesn't have to be what it has been.
The recent top-secret recordings seem like definitive proof that Alito is telling the truth: his wife really loves provoking their neighbors with weird political flags even though he asks her not to do so.
The plot only thickened on May 29, 2024 when Justice Alito issued two letters refusing to recuse: See "More Lies and Extreme Deceit in Justice Alito’s Refusal to Recuse" https://blackcollarcrime.substack.com/p/more-lies-and-extreme-deceit-in-justice?r=30ufvh
See also "The Clear Appearance of Impropriety in Justice Alito's Conduct" https://blackcollarcrime.substack.com/p/the-clear-appearance-of-impropriety?r=30ufvh