Supreme Court has voted to overturn abortion rights, draft opinion shows

[Barrister]

What's the argument against just naming a handful more Supreme Court justices now?

Then the other side will do it next time they're in power.  Plus it further delegitimizes the Supreme Court.

You think it won't happen?  GOP almost certain to win the House in the fall.  Senate is a toss-up, and the 2024 map is bad for democrats.  As for President in 2024?  Who knows.  Joe Biden is not popular right now, if the GOP could just manage to not nominate Trump (even if a different nominee might actually be worse)...

Court-packing was only barely an idea in the 1930s when Roosevelt held huge majorities in the Senate and House and it was hard to imagine the GOP winning control of all three.  And indeed: from 1933 forward the GOP only once held all of the House, Senate and Presidency : being 1953-1955 (and even then quite narrowly).  Besides that you have to go 68 years later when it happened again under GWB.

[Zanza]

I had the impression that the Republicans had already broken the unwritten rules and politicized and delegitimized the court.

[Barrister]

I had the impression that the Republicans had already broken the unwritten rules and politicized and delegitimized the court.

They've broken the front window.

Does that make it a good idea to set the house on fire?


And yes, the GOP were dumb to refuse to even consider Garland's nomination.  If a President de Santis ever faces a Democrat-controlled Senate they'll now refuse to consider his nominees.  And several years like that could lead the court into crisis.

But that's still not as bad as breaking the court-packing taboo.

[Sheilbh]

And yes, the GOP were dumb to refuse to even consider Garland's nomination.  If a President de Santis ever faces a Democrat-controlled Senate they'll now refuse to consider his nominees.  And several years like that could lead the court into crisis.

Maybe - I'm not sure that, even now, the Democrats would do what McConnell did and I'm not sure they could without a pretty solid majority.

[Berkut]

If the other side cheats, then the response should definitely be to not cheat even harder.

[Sheilbh]

The other side aren't cheating. Obama didn't have the votes to get a nominee past and the people who had the votes decided they'd take their chance and wait their turn. There's no right to appoint a justice if you don't have the votes - there might be conventions but they only work if everyone believes they're bound by it and clearly Republicans don't. But the Senate is part of an equal branch of government and it is absolutely entitled, if it's what the majority in the Senate want, to say they're not going to vote on the executive's appointment and they're not going to be dictated to by the executive about that.

The GOP have a relatively unpopular set of policies and ideas but it has strongly motivated minority support. They've identified and use the counter-majoritarian institutions like the Senate and the courts (arguably the electoral college) that run all the way through the American system - and are there by design. They are using them just as effectively as the slavery interest did before the civil war, as anti-Progressives did in the Gilded Age, as segregationists did in the 20th century - arguably even as anti-New Dealers did in the thirties when they were able to tame FDR's plans a fair bit.

It's not against the rules - it's because of the rules. There are loads of pressure points where a motivated minority can exercise a lot of power; the branches are balanced against each other and independent etc. If anything it is unusual in American history for there not to be some body blocking things. I always think of the amazing description of the Senate acting as that gate barred shut against majoritarianism in the LBJ as Majority Leader Caro book.

[Berkut]

If refusing to nominate justices in good faith is not cheating, then packing the court isn't cheating either.

If putting up justices who outright lie during their confirmation hearings is not cheating, then packing the court isn't cheating either.

[Admiral Yi]

I agree with Shelf to the extend that not confirming Garland wasn't cheating per se.  What it was instead was lying and hypocrisy.  They could very easily have scheduled a vote, all voted no, but instead they chose to hide behind a made up principle that justices shouldn't be confirmed too late in a president's term, which they immediately discarded when the shoe was on the other foot.

[Sheilbh]

If refusing to nominate justices in good faith is not cheating, then packing the court isn't cheating either.

But isn't that because the number of judges isn't set by the constitution so it just requires legislation? I don't think it is cheating if Congress passes legislation and the President signs it. That's how the rules work, isn't it? They then get to nominate however many they want.

Expanding the court isn't necessarily a bad thing either. In Europe it's relatively common to have more than nine judges and only to hear the most serious cases as a large group - otherwise groups of 3 or 5 etc justices will hear cases which allows more cases/better access to justice. I think it's how the Federal Appellate Courts work, but I could be wrong. So in the positive case you could definitely say - let's add 6 judges taking you up to 15 and each party gets to nominate three initial spots given the state of the Senate after which they rotate like normal.

Although the long-term change I'd make to de-politicise the court is that I'd impose a mandatory retirement date of, say, serving no more than 15 years or until you're 80 whichever comes sooner (and grandfather in the current justices). I think it would make it a less charged issue if both sides felt they were likely to get a chance to nominate fairly regularly - rather than subject to random deaths or politically canny retirments.

If putting up justices who outright lie during their confirmation hearings is not cheating, then packing the court isn't cheating either.

I see loads of people complaining about the "settled law" line - I don't mean to be lawyerly but I don't see that as lying really. It seems to me that it's a statement of fact that credulous Senators could latch onto.

I'd also add another point on the Federalists that I think one of the guys on the Five-Four podcast said which is that conservatives are right that the nomination wars start with Bork. While Democrats say he had an up or down vote and lost (with Republicans voting against him) the reality is he had a very long history of articles and writing about conservative legal theory. And when you lay it out it wasn't popular enough to command a majority of votes. One of the roles of the Federalist Society, he argued, was to allow people to get stamped as a true believer (like Bork) without having to write career damaging judgements and pieces in legal academia - so it allows a more anodyne/smooth confirmation while identifying them as "one of us".

I agree with Shelf to the extend that not confirming Garland wasn't cheating per se.  What it was instead was lying and hypocrisy.  They could very easily have scheduled a vote, all voted no, but instead they chose to hide behind a made up principle that justices shouldn't be confirmed too late in a president's term, which they immediately discarded when the shoe was on the other foot.

That's fair it's just spin - that's standard politics of McConnell trying to pretend there's a figleaf of a "principled" justification. And should be taken as seriously as any other principle McConnell might occasionally avow.

I don't think you're entitled to a vote if you don't have the numbers to force the issue. And I don't really have a problem with coming out and saying that - but I get why McConnell didn't. It's why I don't really have an issue with McConnell saying the number one goal was to make Obama a one term president. To me that seems like an acceptable goal for a politician to have about a president from the other party.

[grumbler]

(...) This reached its apotheosis under Trump, where significant numbers of grossly unqualified candidates were appointed solely on the basis of passing an ideological litmus test.

Never use Trump and apotheosis in the same sentence unless it includes the word "not."

You meant apex anyway.

[grumbler]

I disagree with Sheilbh that the Senate is entitled to ignore the "advice and consent" element of the Supreme Court confirmation process whenever it is politically convenient.  Saying the Obama didn;t have the votes to get Garland confirmed is saying that it is not possible for the Senate confirmation hearings to have any efect on the confirmation vote, which is, I think, false.  The reason McConnell went with the lie that it was impossible to reach a confirmation vote in the ten months remaining in Obama's presidency was because he knew Garland would get the votes to confirm.  That was not a decision by the Senate majority (they never had a vote on even whether to have hearings), it was an imperial decision by the Senate's emperor.

The argument over whether that was "cheating" is meaningless.  What can be said without a doubt, though, was that it ended any pretense that the Republican leadership gave a shit about the US Constitution.  No reason why the Democrats should fear to trod the path cleared by the Republicans.  If they want to save American democracy, they have to be ruthless in their use of the levers of power that they have.

[Berkut]

Exactly. Call it cheating, or breaking norms, or whatever you like.

The Republicans decided that they cared not for the legitimacy of the Supreme Court, and took a big, steaming shit all over it.

For the Dems to now hem and haw and wring their hands about trying to save some scrap of its legitimacy is doing *exactly* what the Republicans want them to do.

If they cannot pack the court because they don't have the votes to do so, then ok. Work hard to get those votes to do so, and the moment you have them, do it.

Concern that the "Republicans will do it when they get power"?

WHAT THE EVER LIVING FUCK????

Isn't it abundantly clear that the Republicans will do whatever they want, and they don't care? The Republicans are not declining to pack the court because the Dems haven't done it first, they are declining to do it because they don't have to - they already have a 2-1 majority.

If they did not, they would pack it in an instant if they could - they are not limited by *any* convention or respect for precedent, legitimacy, or democracy. All that matters is power, and how they can hold onto it. If Jan 6th didn't make that clear, you guys need to climb out from under whatever rock you are living under.

Shelf, I don't even know what to say to you. You think that anything any party CAN do, is by definition legitimate politics. OK. I guess.

[Josquius]

This is true.

But it's also true that trump could rape a school bus full of cheerleaders and hahaha that trump, such a character, meanwhile if a democrat gets his hug wrong and brushes a woman's breast then thats a massive scandal.

IMO the Democrats need to take a balanced approach. They can't pretend it's business as normal and just keep playing by the letter and soul of the rules, but at the same time they don't have such freedom to shit all over them when they are trying to be the defenders of democracy.

I would say it becomes acceptable for them to take a shit on the rules when it is for the definite purpose of fixing them so next time both sides have to play fair.

[Solmyr]

What's the argument against just naming a handful more Supreme Court justices now?

Joe Manchin.

[Sheilbh]

Shelf, I don't even know what to say to you. You think that anything any party CAN do, is by definition legitimate politics. OK. I guess.

It's less that and more that Republicans haven't done all this by breaking the rules. They read the rulebook, worked out the pressure points and the areas of maximum leverage with minimum votes and they're using it.

If you have a constitution with lots of counter-majoritarian measures, equally powerful and legitimate branches and chambers then I think you probably will end up in situation like this where one of the parties in the system takes full advantage of them. It's like have a state of emeregency provisions. It's the constitutional version of Chekhov's gun. As I say my read is that it's been pretty common through American history -  all that's different is that instead of it being a faction or over a few specific issues, it's a party over their entire agenda.

I don't think that's illegitimate. I think part of what is happening is a stripping of a sort of vibes-based constitutionalism from the bare rules which provide a lot of power to a motivated, united group that work together - if they want to use it.