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The New Court Packing Plan:
On the op-ed page of the New York Times, Jean Edward Smith argues that if the Roberts Court keeps on its current path, a future Democratic President and Democratic Congress should consider a court-packing plan and add Justices to ensure a liberal majority on the Supreme Court. This might be necessary, Smith contends, because the Roberts Court has "adopt[ed] a manifestly ideological agenda," "plung[ing] the court into the vortex of American politics" where it now decides political questions rather than the purely legal decisions of the Warren Court.

  Discuss.
anonVCfan:
With no hint of irony, Smith says stuff like this in connection with a complaint about the Roberts Court:

The framers of the Constitution did not envisage the Supreme Court as arbiter of all national issues. As Chief Justice John Marshall made clear in Marbury v. Madison, the court’s authority extends only to legal issues.

It's not April 1, is it?
7.26.2007 11:41am
Justin (mail):
It's pretty obvious. Jean Edward Smith wants to energize the Moral Majority because she likes the idea of Democrats being in the majority (it, uhhh....gives her more to write about?)

Stupid, stupid idea.
7.26.2007 11:42am
Justin (mail):
Grrrr, I meant minority.
7.26.2007 11:43am
Gump:
I LoL'd
7.26.2007 11:49am
blcjr (mail):
Not just a stupid idea, but the sentiment behind it is stupid, also. The Constitution itself is "ideological" -- "relating to, or concerned with, ideas." What she doesn't like is that the current Court seems to lean toward going back to the ideas of the founders in understanding the purpose and intent of the Constitution. Fancy that.
7.26.2007 11:53am
Virginia:
I'd be very curious what decisions she has in mind when she says the current Court is "thumbing its nose at popular values."
7.26.2007 11:53am
OK lawyer (mail):
I love how each party always assumes it will be in power forever. So realistic.
7.26.2007 11:54am
JunkYardLawDog (mail):
Is Jean Smith some clueless valley girl teenager, because except for the missing valley girl accent and teenage venacular her quoted statements have all the informed rationality of the Alicia Silverstone character. I mean "as if....."

Says the "Dog"
7.26.2007 11:55am
Bretzky (mail):
Messing with the composition of the Supreme Court is, in this day and age, an extremely risky political maneuver. If even FDR got heeps of criticism for his plan to pack the court, imagine what the likes of Hillary Clinton or Barack Obama would get.

Considering that the majority of independents who have soured on Bush have done so because of what they view as his abuse of power, for the Democrats to come out and play politics with the Supreme Court would be stupid.

BTW, given that Smith just wrote a book about FDR, you'd think he'd be able to recognize the folly of the idea in the first place.
7.26.2007 11:55am
Brooks Lyman (mail):
"adopt[ed] a manifestly ideological agenda," "plung[ing] the court into the vortex of American politics" where it now decides political questions rather than the purely legal decisions of the Warren Court.

What planet is Smith living on? The Warren Court was far more political than the Roberts court. While nobody's perfect, the Warren Court tried - often successfully - to interpret the Constitution to meet left-liberal political goals. The Roberts court, on the other hand, is more attuned to original intent, which, granted, may serve a conservative political paradigm, but that is also the paradigm the founders set in place.

In short, the current "liberal," or "left-liberal" view of the Constitution is not the view of the people who wrote it. Whether this makes those "liberals" traitors or subversives is a question that each citizen must decide for himself at the ballot box....
7.26.2007 11:56am
anonVCfan:
Is Jean Edward Smith a man or a woman? I ask only because the commenters seem to have assumed that it's a woman
7.26.2007 11:59am
George Lyon (mail):
Although, the political manipulation of the court might be an historical fact of life in the 19th century, its attempted use in the 20th century was met with appropriate opprobrium.

Beyond cataloging 19th century manipulation, the op-ed in question completely fails to make a case that the court has improperly intruded into the political realm. Rather, it simply assumes it. Other than Bush v. Gore, which in my view went over the line to correct a way over the line state court decision, there is no basis to suggest the court's decisions -- especially those made by the more conservative justices -- have devolved into political judgements. This is not to say the court has not blundered, especially in the area of government power v. individual rights. Both the Kelo and the medical marijuana cases in my view were wrongly decided, but at least the marijuana decision draws support from Wickard v. Filburn perhaps the worst decision of the New Deal court.

One wonders how the author would have reacted to a similar suggestion that in light of the Warren Court's meddling with the political process through Baker v. Carr and its progeny, or creating constitutional rights out of thin air such as Roe, that a GOP president and Congress should expand the court to pack it with conservatives and undue these decisions.

When we start changing the rules to reach a desired result, where do we stop?
7.26.2007 12:00pm
DrGrishka (mail):
I take it that Miss Smith views Carhart as the Court "thumbing its nose at popular values." Apparently "popular values" means about a quarter of the electorate.

Or maybe she means Ledbetter. Because then "popular values" means ignoring what "popular" representatives have enacted.
7.26.2007 12:02pm
Jam:
The Constitution does not establish how many members in the SOCTUS.

The Constitution does not delegate/grant authority to Congress nor the POTUS to establish a number to limit the size.

But Congress controls the purse and has a say in the nomination process.

It would be so much fun. Lets the games begin.
7.26.2007 12:07pm
AF:
Totally absurd. If Court-packing wasn't right during the New Deal, it sure as hell isn't right now.

The whole premise of the post -- that the Roberts Court is aggressively thwarting public opinion on a historical scale -- is not only preposterously wrong, there is no attempt to demonstrate its truth. It is simply assumed. This op-ed should never have been published. And I say this as a committed liberal and critic of the Roberts Court.
7.26.2007 12:09pm
keypusher (mail):
Is Jean Edward Smith a man or a woman? I ask only because the commenters seem to have assumed that it's a woman

As Austin Powers would say, "That's a man, baby!"
7.26.2007 12:10pm
Poncherello:
Wikipedia suggests he's a man.

http://en.wikipedia.org/wiki/Jean_Edward_Smith
7.26.2007 12:14pm
JRL:
From the King of the Hill episode "Bobby Slam":

PEGGY: I don't see how having a girl on the [jr. high school wrestling] team would ruin it. Did a woman judge ruin the Supreme Court?
HANK: Yes, and that woman's name was Earl Warren.
7.26.2007 12:16pm
Casual Observer:
What literally shocks me is that the court packing that the author of this piece is advocating would actually result in the Court "adopt[ing] a manifestly ideological agenda," and "plung[ing] the court into the vortex of American politics."

Does'nt the author see that what is being advocated is actually the precise thing that she is decrying?!?!?!!??!?!

But I suppose it not an "ideological agenda" if its one that you believe in.

let me guess. there was no discussion in this piece about the legal reasoning of one side versus another?
7.26.2007 12:17pm
magoo (mail):
I suspected the ruling in Watters v. Wachovia was going to be controversial.

Be that as it may, the phrase “court packing” triggers an exceedingly strong negative reaction from the average citizen, which is why Bush critics often refer to “Bush’s effort to pack the courts with right-wing extremists.” And yet now a critic of the Supreme Court proposes an actual, honest-to-goodness court-packing plan. It’s this kind of thing that makes it difficult for the Dems to win control of the White House in the first place.

PS to Virginia -- When she says the court “thumbs its nose at popular values,” I think she means her values.
7.26.2007 12:20pm
BruceJ:
Ummm... I agree with the basic points, but you all sound a big ignorant when you write "MISS Smith" and "she". Jean EDWARD Smith is a man -- http://mahg.ashland.edu/faculty/smith.html
7.26.2007 12:20pm
Stuart M. (mail):
Lefty tantrum. Not much more to say than that. Oh, and that what goes around comes around. Beware what you ask for, you might just get it.
7.26.2007 12:25pm
Thales (mail) (www):
"What she doesn't like is that the current Court seems to lean toward going back to the ideas of the founders in understanding the purpose and intent of the Constitution." Not sure this is a defensible statement, though I'm sure some members of the Court would like it to be true. To take just one example, where exactly did the conservative resurgence of 11th Amendment sovereign immunity come from--oh, right. It was made up out of whole cloth.
7.26.2007 12:26pm
DrGrishka (mail):
Bruce J.,

Thanks. But sometimes it is hard to tell. As in "Johnnie Rawlinson - woman, but Leslie Southwick - man. :)

Speaking of the latter, I was watching Rescue Me last night, and turns out that one of the male character's middle names is "Leslie." He was mercilessly made fun of by the firehouse crew. I thought, why doesn't he bring up Leslie Southwick. ANd then I remembered, that it is a show about firemen and not law geeks. :)
7.26.2007 12:28pm
Al Maviva (mail) (www):
Nice. Hey, I have a better idea. Why not just have an armed, left wing revolution? If the left can't its way all the time, why bother with stupid laws, traditions, judges, and crep like that? Why not just use force? Seriously - if living with the results of occasional lost elections, court cases and legislative votes is so unbearable, the framers provided a remedy. If they absolutely feel they need to change the rules so they simply can't lose, why even bother with the fig leaf of appointing extra justices? A normal person who wanted to "capture the court" (assuming bending the court to one's own personal ideology is in any way normal) would say, "we need to try to win several presidential elections in a row, we have to fashion an agenda that appeals to a broad swath of Americans." But who needs those unwashed "normal" masses? They watch NASCAR and eat trans fats, ferchrissakes... And have you seen how fat they all are? Maybe these mostly white people just aren't capable of governing themselves, and we should pull out and let them commence the civil war they seem to want to have...
7.26.2007 12:30pm
magoo (mail):
Bruce J -- That's very prescriptive of you. We're just trying to trascend simplistic gender dualities.
7.26.2007 12:30pm
Mark Field (mail):
Yes, Jean Smith is a man. You'd think the middle name (Edward) might have been a clue.

The odd thing about this op-ed is that Smith was very critical of Roosevelt's plan in his recent book.

In light of the fact that the Court decides relatively fewer cases each year, I've wondered if it might be a good idea to expand it to 11. Of course, I also favor term limits for justices.
7.26.2007 12:32pm
JRL:
"the phrase 'court packing' triggers an exceedingly strong negative reaction from the average citizen . . ."

I suspect the "average" citizen couldn't name 2 Supreme Court justices, let alone tell you what "court packing" is.
7.26.2007 12:33pm
VanMorganJr. (mail):

Messing with the composition of the Supreme Court is, in this day and age, an extremely risky political maneuver. If even FDR got heeps of criticism for his plan to pack the court, imagine what the likes of Hillary Clinton or Barack Obama would get.


The democrats did not suffer much in the national media or public opinion when they arbitrarily filibustered Pres Bush SCOTUS nominations instead of allowing them to come to the Senate floor for votes in the ordinary course. Criticism might not be as vehement as in FDR's day of a Hillary court-packing scheme . . . quite the contrary, the national media might well be on her side.
7.26.2007 12:36pm
frankcross (mail):
The Democrats did not filibuster Bush's SCOTUS nominations.

And I think the public and press would be quite vehement about any court-packing plan today. It's a nutty idea that would never be seriously considered IMHO.
7.26.2007 12:44pm
JBL:

I skimmed the article. It's always interesting to consider such questions on the merits; I can imagine some somewhat plausible (but probably not persuasive) arguments that the number of justices on the Court should be increased. Among a great many other questions, I was hoping he would explain why a series of controversial 6-5 decisions would be clearer or more persuasive than a series of controversial 5-4 decisions. But nope. Oh well.
7.26.2007 12:44pm
A.C.:
Never create an institution you wouldn't want to see in the hands of your enemies. This is basic, and both the right and the left forget the rule all the time.

"Edward" could have been a maiden name. That was my initial assumption.
7.26.2007 12:49pm
Dave N (mail):
VanMorganJr.

Democrats did not filibuster either of President Bush's nominations--both came up for vote in the ordinary course. Democrats did filibuster nominees for the Circuit Courts of Appeal.

I would suggest that any proposal to enlarge the Supreme Court would draw immediate, vehement opposition. Heck, some of the more reliable liberals in this blog were quick to condemn it.

I am also not quite sure what Mark Field's point was. His argument appears to be that because the Supreme Court chooses to hear fewer cases, it may need more justices. Huh?
7.26.2007 12:53pm
A.S.:
"If the current five-man majority persists in thumbing its nose at popular values..."

Who knew that the Supreme Court's job was to decide on the basis of "popular values"? Here I was thinking that a major part of the court was to provide a check against "popular values", as expressed through the laws passed by a popularly elected Congress and President. My mistake, I guess.
7.26.2007 12:55pm
Hattio (mail):
First, let's quit acting as if this is the secret plan of the Democratic party. I have yet to see one single presidential nominee propose it (and it would be political suicide for whoever did, of either side).
Second, it's true that Democrats in congress did not filibuster Bush's S.Ct. nominees, and it is also true that the press didn't give that much attention to the lack of an up or down vote on his lower court nominees. But a lot more attention than they did to the same lack of a vote under Clinton.
7.26.2007 12:56pm
Bretzky (mail):
VanMorganJr.:


The democrats did not suffer much in the national media or public opinion when they arbitrarily filibustered Pres Bush SCOTUS nominations instead of allowing them to come to the Senate floor for votes in the ordinary course. Criticism might not be as vehement as in FDR's day of a Hillary court-packing scheme . . . quite the contrary, the national media might well be on her side.

Actually, if you are referring to Bush-43, the Democrats did not filibuster either Roberts or Alito. Miers's nomination was removed from consideration for conservative criticism of the selection, not for a threat of Democratic filibustering.

Also, I very much doubt that how CBS News or the New York Times covers a story affects how people view it. The dispersal of news dissementators in the modern market makes it impossible for the "media" to monopolize the spin put on a story. The Golden Age for the idea that the media could affect public opinion lasted for basically the length of Walter Cronkite's stint on CBS News. It is now deader than a Monty Python parrot.
7.26.2007 12:58pm
reader883443 (mail):
Let me see if I follow her argument. The Roberts Court is "manifestly ideological", which presumably means too political. Accordingly, a political solution is in order. But the Roberts Court can avoid such a solution by ceasing to "thumb[] its nose at popular values", which presumably means being more conscious of the political impact of its decisions.

Shorter Smith: "As long as the court issues politically motivated decisions that support my political views, its credibility need not be questioned."

Way to phone it in, Professor Smith. I want the last five minutes of my life back.
7.26.2007 1:06pm
badger (mail):
I agree that a court-packing plan would be premature, but it makes sense that Democrats should at least leave the door open. Currently the court has a 5-man majority composed of four movement conservatives and Kennedy, who increasingly sides with the movement conservatives. Say Democrats retain control of Congress and more state legislatures, and the Presidency and more governorships and start trying to pick up the progressive agenda where they left it a couple decades ago (environmental regulation, market regulation, school integration, etc.) and say that the Supreme Court just starts shooting down 80% of what they pass, often "overruling" prior precedents to do so. Are Democrats really supposed to just drop a large portion of their agenda and platform as a party to wait a few decades until one of the majority (all of whom were selected with their youth as a major factor) dies during the term of a Democratic president? Considering that their only other alternative is to conduct their legislative agenda by constitutional amendment or try to enact an amendment setting term limits on SCOTUS judges, pursuing court-packing seems like it would be worth the risk of setting the precedent for the Republicans of the future.
7.26.2007 1:06pm
badger (mail):
And let me apologize for the lack of paragraphs in the last post. If anyone sees a place where I could have put one, let me know.
7.26.2007 1:07pm
Mike F:
This doesn't seem possible from a practical standpoint. The essay says that it only takes a majority vote to change the number of seats. It seems that the Senate would require 60 votes to pass this proposal in this day and age. In the unlikely event that they could pass this with only 51 votes, it is still going to take 60 votes to fill the new seat.

Nobody in their right mind would want to polarize the country any further with this type of blatant manipulation of the Supreme Court.
7.26.2007 1:08pm
Anon. Lib.:
I don't think this court packing is a crazy idea. Congress has a duty to uphold the constitution, just like the Court, and is entitled (obligated, even) to use its legitimate powers to do so. That includes exploring ways in which "erroneous" Supreme Court decisions might be effectively overturned. Additionally, if Congress thinks that the Court is adopting unreasonable statutory interpretations, it may be more efficient for Congress to authorize additional (friendly) justices rather than attempt to reenact statutes piecemeal.

That being said, the issue is whether there is a real danger that Congress will begin habitually packing the Court to some negative effect. I don't think that one instance of court packing would start us down a slippery slope to constant packing or that constant packing would be so bad. It strikes me that court packing legislation will only be feasible when (1) the same party controls the President, the House and the Senate, (2) that party has a supermajority in the Senate, and (3) the Court is engaging in pretty flagrant conduct (for example, even though Roosevelt had 1 and 2, his court packing legislation failed). These stars will not align very often. Also, I think the precedent, or even threat, of court packing would create incentives for the Court that might reduce support for court packing. First, the prospect of future court packing would reduce the value to Congress and the President of court packing at any particular time. In a world where packing is an option, domination of the Court will become less valuable. Second, the payoff to packing for Congress and the President is uncertain. Justices can change their ideas on the bench or reveal ideas that were not previously apparent. And the impact of any particular Court is limited by the issues that come before it. Third, the Court will have an incentive to follow a more small-c conservative approach in order to avoid sparking future packing attempts and preserve their own influence.

Indeed, I think there are reasonable, non-partisan, arguments that increasing the size of the Court from time to time would be a good thing. First, it is bad for the country when the Court is perceived to be captured by a particular ideology. Allowing court packing from time to time will make such capture more difficult. Second, by reducing the value of any particular spot on the Court, we will reduce the incentive to pack the court with young, ideologically sound justices. This might decrease political rancor over appointments and encourage Presidents to appoint more experienced and better justices. Third, it would make the appointment of the "best" legal talent possible. The current members of the Court are not the best of the best when it comes to American legal talent. Right now, Presidents have every incentive to try to hit a political home run with someone who is young, reliable, and confirmable. But we would be better off if the Easterbrooks or Calabreses of the world were appointable. If court packing were politically acceptable, legislation might allow increases for the purpose of appointing particularly insightful and meritorious judges. Fourth, in terms of accuracy, it is generally true that the majority of an 11, 13 or 15 member body will be "correct" more often than the majority of a 9 member body. Fifth, a larger court can assume a greater workload and decide more cases. And sixth, by reducing the value of spots on the Court, we would reduce the incentive for older justices to hang on forever.
7.26.2007 1:13pm
Ted Frank (www):
A majority of Democrats voted to filibuster Alito, including all of the Senators running for President, and the ones who didn't were targeted for defeat by the base of the party. We would surely see a filibuster in 2007 or 2008 if Bush were to make a nomination.

Orin's tongue is very very far into his cheek, but it still amazes me the way the left insists that Warren Court precedents are more deserving of stare decisis than all of the precedents the Warren Court ignored. And why is the 5-4 narrowing of the appalling four-year-old McConnell decision more problematic than McConnell's 5-4 overruling of the two-century-old First Amendment? The vitriol being thrown at Roberts and Alito is positively Orwellian. The oldest and most venerable precedent overturned this term was Twombly's rejection of Conley v. Gibson's test for the sufficiency of a complaint, and that was by a large majority.
7.26.2007 1:14pm
p.d.:
I'm still puzzled by liberal academics who insist that the current Kennedy court is somehow out of the mainstream of public opinion. The only way to make this point is, for instance, to create insidious motives for the 5-4 court's ruling on the partial-birth abortion statute (they're REALLY just setting the table for more restrictions!) or the plurality's decision on the Schools cases (they're REALLY trying to turn back the clock to gut Brown v. Board!).

I'm sympathetic to Breyer's point that the case for federalism and deference to local communities is strong in the Schools cases, but none of the decisions this term struck me as profoundly out of line with or "thumbing their nose" at popular values.
7.26.2007 1:16pm
Josh James (mail):
I am curious why people point to the "original intent" of the Framers when referencing how the Constitution should be construed. So far as I know they're all very dead, and when they were alive, they lived in a world very different from our own. It seems rather silly to me for us to be beholden to the "original intent" of these framers for several reasons.

1. It is very nearly impossible to know what they intended when writing our Constitution. The records, to the best of my knowledge, are incredibly sketchy. I'm not sure that it makes much sense to try and determine the "intent" of a body of men engaged in bargaining during the process- it's conceivable they all had different intentions.

2. Even if they intent could be found, why should we care? I might buy arguments that we should respect the wishes of the dead, but that seems to hold very little weight because of the time elapsed between now and then. Arguments that they were uniquely situated to set out the "best" conception of government for our nation are also weak; they deny that any progress has been made in political science since 1788.

So I would very much like to hear some good reasons for holding to "original intent". I know this topic is only tangentially related to the original post, but the opening posters' comments have kindled my interest in the topic again.
7.26.2007 1:16pm
Ben Hall:
Josh James--

One problem with ignoring "original intent" is that it proves too much. If the words don't have meaning beyond our desired outcomes, then where does the court get its authority to over-rule laws? Why should we limit the presidency to native-born citizens? Etc. If we remove original intent as an interpretive tool, then not only the Bill of Rights becomes mutable, the rest of the text does as well.

Also, there's a reason the Framers put in Article V. Changes should follow that route, not the whim of justices.
7.26.2007 1:25pm
JonC:
This isn't entirely on topic, but I'd be interested to see a discussion on this blog of reports that Justice Breyer recently "tattled" to Sen. Alren Specter regarding his colleagues' Justice Alito's and Chief Justice Roberts' supposed lack of respect for precedent. If this is true (and I agree that's a big if, as details seem to be sketchy), it would seem to be a historically-unprecedented attempt by a sitting Justice to manipulate another branch of the government to attack fellow sitting Justices. Could Justice Breyer truly be that brazen?
7.26.2007 1:31pm
Joe Bingham (mail):
<i>And why is the 5-4 narrowing of the appalling four-year-old McConnell decision more problematic than McConnell's 5-4 overruling of the two-century-old First Amendment?</i>

I really liked this.
7.26.2007 1:31pm
Joe Bingham (mail):
<i>And why is the 5-4 narrowing of the appalling four-year-old McConnell decision more problematic than McConnell's 5-4 overruling of the two-century-old First Amendment?</i>

I really liked this.
7.26.2007 1:31pm
Mark Field (mail):

I am also not quite sure what Mark Field's point was. His argument appears to be that because the Supreme Court chooses to hear fewer cases, it may need more justices. Huh?


No, my suggestion (it wasn't really an argument) was that 9 justices can only hear so many cases. Adding two more might increase the number of cases the Court can hear. Since more cases get filed every year, the proportion a nine-member Court can take declines every year. That affects the ability of the Court to supervise lower courts, one of its principal jobs.
7.26.2007 1:32pm
Joe Bingham (mail):
stupid internet explorer.
7.26.2007 1:32pm
Mark Field (mail):
Oh, and Dave, since you're here, there's a golden opportunity for you in this thread to prove that you condemn conservatives as well as liberals for uncivil posts.
7.26.2007 1:35pm
jacobus:

Since more cases get filed every year, the proportion a nine-member Court can take declines every year. That affects the ability of the Court to supervise lower courts, one of its principal jobs.


isn't this assuming that the percentage of cases that raise important issues stays the same? i would assume that the number of cases raises for different reasons (better technology, easier to file (in all courts: like a trickle-up effect), more popular exposure to the court) and that a large proportion of the "added" cases each year are not exactly vital.
7.26.2007 1:38pm
George Lyon (mail):
Re Josh James's post above.

The question really is does the Constitution limit the federal government's powers to those enumerated in the document in some meaningful manner. For example, the commerce clause power is now stretched so wide as to allow the federal government to proscribe what you can grow on your own land even if it never goes into the stream of commence on the theory that what you grow affects items in commence because your growing an item would affect the supply and demand of the items in commence. That leaves virtually no human activity beyond the commence clause's jurisdiction. An original intent analysis would suggest this reading of the commence clause to be erroneous because the original intent of the clause was to prevent states from imposing trade barriers on one another. Of course any common sense analysis would suggest the current reading of the commence clause is erroneous as absurdly overbroad. Nevertheless the expansive reading of the clause was endorsed by Scalia of all people in the medical marijuana case.
7.26.2007 1:38pm
bittern (mail):
Bad, bad idea. I'm a liberal Dem, more or less, but I agree with crazyman Maviva on this one. Each side ups the ante when it gets into power? Not good. We're getting a little too close to Uzbeko-Nigerian gov't procedures already. Though I'm impressed that badger is, uh, brave to take up the other position.
7.26.2007 1:42pm
Brian G (mail) (www):
It can be bolied down like this. You like the Supreme Court decision, it was based in law, precedent, and represents the intent of the founding fathers. You don't like the decision, the court is imposing its political will on the people making decisions base on ideology and are giving the the thumbs up or down on whatever it strikes their collective fancy at that moment.

I think if Hillary or Obama wins, she and Congress should propose adding another 6 judges to the court. I think the American people would be all for it. After all, Americans love lawyers and I don't see reason they wouldn't want more judges telling them what to do.
7.26.2007 1:45pm
Dave N (mail):
Mark Field,

Is there a particular post that you think is not civil?
7.26.2007 1:46pm
DrGrishka (mail):
It seems to me that if the goal is to make sure that justices do not "thumb their noses at popular values," court packing is a relativelly ineffective and dishonest way to achieve it. If that is in fact the goal, it seems to me that Robert Bork's solution of Congress disapproving of SCOTUS' decision is both more honest and more likely to achieve the goal, as Congress is most likely to reflect contemporary values.
7.26.2007 1:46pm
Mr. Impressive (mail):
There is nothing wrong with expanding the size of the Supreme Court. Rhetoric about "court packing" aside, the size of the Supreme Court is set by statute, not the Constitution. There is nothing wrong with changing that statute.

The real issue, of course, is overcoming a filibuster in the Senate. I personally am in favor of a majority voting to end the 60-vote supermajority requirement for ordinary legislation, which should only need a bare majority.

Democrats need to learn to be aggressive. Goodness knows that whenever conservatives have the smallest amount of power, they are completely and unapologetically aggressive in wielding that power. Liberals should be no different.

Conservatives. Remember your "majority of the majority" policies and other ruthless efforts to totally marginalize liberals? Pay back is a bitch.

We could use an 11-member or 13-member Supreme Court. It has been too long since we increased the size of that institution. We should have a greater diversity of legal views in that institution.
7.26.2007 1:52pm
Mr. Impressive (mail):
DrGrishka,

There is "dishonest" about changing the size of the Supreme Court. The size is set by statute. Congress has a right to change that statute.
7.26.2007 1:54pm
Mr. Impressive (mail):
bittern,

As a liberal Democrat, you should avoid falling for conservative alarmist rhetoric. There is nothing wrong with changing the size of the Supreme Court. In fact, it has been done many times in the history of this country.

The founders, in their wisdom, left it to Congress to set the size of the Supreme Court. Clearly, the founders expected that Congress would change the size of the court by statute from time to time. Changing the size of the Supreme Court fits firmly into our constitutional and historical traditions.

Calm down and don't fall for conservative alarmist rhetoric suggesting otherwise.
7.26.2007 2:00pm
Bretzky (mail):
Josh James:


I am curious why people point to the "original intent" of the Framers when referencing how the Constitution should be construed. So far as I know they're all very dead, and when they were alive, they lived in a world very different from our own. It seems rather silly to me for us to be beholden to the "original intent" of these framers for several reasons.

My response to this question is always because this is how the rule of law works. Contrary to what many contemporary Americans seem to believe, the "rule of law" is not an adherence to the laws written by the government. The "rule of law" is actually directed at lawmakers themselves.

The rule of law limits the actions of lawmakers both in style and substance. The rule of law is basically the rulebook that the people use to determine what is and is not appropriate "governing" by their government. The rule of law necessarily limits the power of a government to the precedents that came before it.

In our system of government, the ultimate limiting precedent is the Constitution as ratified by the people. The Constitution is the most basic rulebook that Americans have to determine whether or not our government is playing fair or foul with the law.

If we cease to adhere to the original meaning of the Constitution, then we have effectively killed the rule of law. At which point, we would be functioning under the rule of men, which is the definition of tyrrany.
7.26.2007 2:04pm
Mr. Impressive (mail):

A majority of Democrats voted to filibuster Alito, including all of the Senators running for President, and the ones who didn't were targeted for defeat by the base of the party. We would surely see a filibuster in 2007 or 2008 if Bush were to make a nomination.


Ted, you are right. I am sure that conservatives would attempt to filibuster both any attempt to change the size of the court and any attempt to confirm nominees.

But that is why we Democrats are going to change Senate rules and the number of votes necessary to invoke cloture to 51. We got the idea from your side, who thought ending the ability to filibuster judicial nominees was such a great idea.
7.26.2007 2:05pm
DrGrishka (mail):
Mr. I,

Congress certainly has a right to change the statute. No one is arguing otherwise. What is dishonest about it is on one hand arguing that the Court should be free from popular pressure, while on the other hand demanding that it not "thumb its nose at popular values."

If popular values are what is important to liberals (suddenly) then a far more honest way to go about implementing them is Bork's approach. Though I doubt that liberals care about popular values as they are the ones seeking to invalidate popularly enacted measures such as Partial Birth Abortion Act, Michigan's Prop 2, Pledge of Allegiance, etc.
7.26.2007 2:05pm
Q the Enchanter (mail) (www):
Jurisdiction stripping would be a lot more economical.
7.26.2007 2:06pm
Mr. Impressive (mail):
Bretsky,

Actually, the rule of law applies to both lawmakers and all other citizens, not just lawmakers.
7.26.2007 2:07pm
Grange95 (mail):
First off, I agree that any court packing plan is simply too dangerous for either party to attempt to implement. However, I think the criticism by Brooks Lyman is significantly in error:


The Roberts court, on the other hand, is more attuned to original intent, which, granted, may serve a conservative political paradigm, but that is also the paradigm the founders set in place.

In short, the current "liberal," or "left-liberal" view of the Constitution is not the view of the people who wrote it. Whether this makes those "liberals" traitors or subversives is a question that each citizen must decide for himself at the ballot box....


The Founding Fathers were, in fact, the subversives and liberals of their day. The concepts embodied in the Constitution were radical, even revolutionary. Thus, the Constitution can hardly be said to be conservative in nature, nor does a "conservative" intepretation necessarily hold any truer to the intent of the Founders in drafting the Constitution (and the values incorporated therein) than does a liberal interpretation. People can have an honest disagreement about the best manner of interpreting the Constitution without being labeled as "traitors" or "subversives".
7.26.2007 2:11pm
WHOI Jacket:
Mr. Impressive, then you'd be all for this scenario: Republican wins White House in 2008. Republicans also retake the senate. Pres. _______ then announces he is placing 6 more justices on the Supreme Court, all of whom are committed to striking down Roe v. Wade?

I mean, it's a statute right, it should be altered on a whim.
7.26.2007 2:12pm
Bretzky (mail):
DrGrishka:


It seems to me that if the goal is to make sure that justices do not "thumb their noses at popular values," court packing is a relativelly ineffective and dishonest way to achieve it. If that is in fact the goal, it seems to me that Robert Bork's solution of Congress disapproving of SCOTUS' decision is both more honest and more likely to achieve the goal, as Congress is most likely to reflect contemporary values.

How would this work?

Considering that the decisions aren't made simply by an up-or-down vote, but by the actual opinions issued by the Court, how would Congress go about disapproving of those decisions? Would Congress have to issue its own decisions and how would it deal with decisions that are muddied by multiple concurring and dissenting opinions, like Planned Parenthood v. Casey? Or would Congress simply order the Court to come to a different decision?
7.26.2007 2:12pm
WHOI Jacket:
Bretzky: "Mr. Marshall has made his decision. Now let us see him enforce it" comes to mind.
7.26.2007 2:15pm
Mr. Impressive (mail):
Dr Grishka,

No one is arguing that the court should be "free" from popular pressures.

You seem to be confusing the idea that individual justices should have some independence from being punished by Congress for their decisions (except by impeachment) by either a decrease in salary or being removed from their position and equating it with the idea that the Supreme Court as an institution should be completely unaccountability to the People.

There have always been checks on the Supreme Court built into our Constitution. Ultimately, the Supreme Court serves the People, not vice-versa. The founders did not intend the Supreme Court to be wholly independent from political pressure. The Constitution could have easily set the Supreme Courts size in stone. Instead, the founders purposely and consciously left this decision to the Congress, an institution, which, of course, is accountable to the People.

There is nothing deceptive going on here. If you have strong feelings that there is something magical about the number 9, despite the historical fact that the size of the Supreme Court has in fact changed numerous times throughout our history, may I suggest that you inform your representatives and register that opinion at the ballot box.
7.26.2007 2:17pm
Bruce Hayden (mail) (www):
I oppose the packing because I see one of the beneficial features of the Supreme Court its ability to slow down change a bit, esp. at the political point of view. From a quasi-mathematical point of view, a smoothing function.

The Democrats' basic problem here is that Republicans have won 7 of the last 10 presidential elections. As a result, 7 of the 9 sitting members were Republican appointees - though two turned out to be turncoats (from a Republican point of view). Just think of where we would be if Justices Stevens and Souter voted the party line of the party that put them on the Court like Justices Ginsberg and Breyer do (ok, Kennedy appointee White voted the other way a bit)

So, no matter how much Impressive would like packing the Court, it ain't going to happen any time soon. The Democrats in the Senate are not about to get rid of the filibuster, since many of them have fond memories of using it so adroitly when the Republicans last controlled the body. They have a 1/2 seat advantage right now (since one of their members apparently hasn't been able to show up to vote this year), and may pick up one or two seats in the upcoming election (or, they may lose the seat that gives them a majority, but if Hillary wins, her VP would break the tie).

So, without a super majority, this plan is dead, and the Democrats are highly unlikely to get such in the near future in the Senate.
7.26.2007 2:20pm
DrGrishka (mail):
Bretzky,

I would imagine, it would be something along the lines of Canadian "notwithstanding clause." Suppose SCOTUS rules Pledge of Allegiance unconstitutional. Congress could then vote on a resolution to "disapprove the rule of law stated in In Re Pledge."

Or there could be a process similar to legislation. Every SCOTUS decision is subject to Congressional approval within say 6 months. Failure to take a vote would count as approval (like President not signing a bill).
7.26.2007 2:21pm
Mr. Impressive (mail):
WHOI Jacket,

If a majority of Congress votes to increase the size of the Supreme Court I am fine with that. That this Congress is Republican rather than Democratic does not change the legitimacy of that action. Elections matter. If that is what the people vote for, that is what they should get.

Obviously, the confirmation of justices is a job of the Senate. While I personally think that nominees should not be allowed to dodge questions as they do today, I can live with the outcome of that process. If I was a Senator, I would have voted against the confirmation of both Roberts and Alito. But, when a majority of my colleagues disagree, I can live with that decision.
7.26.2007 2:24pm
Bretzky (mail):
Mr. Impressive:


Actually, the rule of law applies to both lawmakers and all other citizens, not just lawmakers.

Several defintions that I've picked up from the web for the rule of law:

1) The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.

2) the doctrine that all people are equal before the law, and that the government is subject to the law.

3) the absence of arbitrary executive power.

4) A legal system in which rules are clear, well-understood, and fairly enforced, including property rights and enforcement of contracts.

The rule of law is the idea that the government may only conduct business and govern in a manner consistent with existing precedent and within boundaries that do not conflict with the people's inalienable rights. Of course, the people must know what those precedents and rights are, which is where documents like the Declaration of Independence and the US Constitution come in handy.
7.26.2007 2:25pm
Mr. Impressive (mail):
WHOI Jacket,

It should be noted, that my position is nothing more controversial than that we should follow our Constitution. The Founders purposely left the size of the Supreme Court to the discretion of Congress and nominations to the President, and confirmation to the Senate.
7.26.2007 2:26pm
Mr. Impressive (mail):
Bretsky,

I take your point number 4 as a concession. Obviously, the rule of law implicates all other citizens as well as lawmakers and other government officials and your response is in fact a concession of that point.
7.26.2007 2:29pm
Dave N (mail):
Mark Field,

I do think suggesting that liberals are "traitors" because a poster disagrees with them is in bad form for this site. Name calling is name calling. To the extent that Brooks Lyman's post made that suggestion, I think it is over-the-top and inappropriate.
7.26.2007 2:29pm
AntonK (mail):
Typical babblings of an Angry-Left, half-witted moron.

Nothing to see here, everybody move on....
7.26.2007 2:31pm
Mr. Impressive (mail):
Bruce Hayden,

I am afraid that Democrats are not as afraid of getting rid of the filibuster as you imagine.

We are going to be doing a lot of good things by ending it, including making the District of Columbia a state. Two new Democratic Senators should solidify our majority nicely.

Over all, the filibuster has disproportionately helped and enabled conservatives. Just think about how often conservatives used the filibuster to stop civil rights legislation. We Democrats are not so stupid as to fail to recognize which party is the primary beneficiary of the filibuster.
7.26.2007 2:34pm
Mr. Impressive (mail):
Oh, and I should make an additional quick point. Democrats are not going to end the filibuster. They are simply going to change the number of votes needed to pass cloture to 51.
7.26.2007 2:37pm
DrGrishka (mail):
Mr. I,

There is nothing magical about number 9. But changing the size of the Court to achieve political means, while at the same time claiming that the court should be free from public pressure is intellectually dishonest.

And it is intellectually dishonest to suggest that no one ever argued "that the court should be "free" from popular pressures." That has been precisely the liberal argument from the days of the Warren court. That has always been brought up when the Court made unpopular decisions.
7.26.2007 2:43pm
Mark Field (mail):

I do think suggesting that liberals are "traitors" because a poster disagrees with them is in bad form for this site. Name calling is name calling. To the extent that Brooks Lyman's post made that suggestion, I think it is over-the-top and inappropriate.


That was the one I had in mind. Just wanted you to notice; this stuff actually happens pretty regularly. There have been at least 4-5 examples of similar posts since you made the comment that it was the liberals who were alone (or mostly) guilty of such conduct.

Just to be clear, I ignore such comments from both sides. Anyone who makes such a comment discredits himself as a poster. But it happens on both sides.
7.26.2007 2:47pm
Mr. Impressive (mail):
DrGrishka,

First, no decision made by Congress can be said to be non-political. If your standard is that the size of the Supreme Court can only be changed for non-political reasons, then you are saying that Congress can never change the size of the Supreme Court. The Founders knew that Congress was a political institution that would make political decisions. Knowing this, the founders nonetheless gave Congress the power to set the size of the Supreme Court. Whatever standard your trying to foist on this decision now is entirely foreign to our Constitution and our history.

Second, I do not see how the possibility of having new colleagues constitutes "pressure" on the current court. I don't think having new colleagues would be so horrible that it would actually be somehow coercive to current members of the court.

Third, the Supreme Court has never been "free" from some accountability as an institution. Obviously, the political branches and the people get their say. Nixon explicitly campaigned on the composition of the Supreme Court as did Bush.

You are confusing limits on accountability with absolute freedom from all accountability whatsoever. That I am not similarly confused about the arguments of serious liberals does not make me "intellectually dishonest." Enough with the over-the-top rhetoric. It is not persuasive.
7.26.2007 3:00pm
DDG:
That's the funniest thing I've read all day. Are we sure it wasn't the Onion?
7.26.2007 3:01pm
Bretzky (mail):
Mr. Impressive:


It should be noted, that my position is nothing more controversial than that we should follow our Constitution. The Founders purposely left the size of the Supreme Court to the discretion of Congress and nominations to the President, and confirmation to the Senate.

The question isn't so much does Congress have the power to change the number of justices; but, is it good for the Court and the country that Congress would change it for partisan reasons?

If you have a situation where the Court is hopelessly out of touch with the overwhelming prevailing opinion of the day regarding constitutional interpretation, then it might not be a big issue. If you have a situation, as we have today, where the country is evenly divided on the issue, and on highly partisan lines, you have the potential of completely undermining the Court's authority and reducing them to nothing more than a puppet of the legislature and/or executive in the eyes of the opposition party.

Once the judiciary becomes the plaything of partisan machinations, it's extremely difficult to put that genie back into the lamp and you may have effectively neutered the legitimacy of the Court for a generation, if not for ever.
7.26.2007 3:10pm
DrGrishka (mail):
Mr. I,

You can make a decision non-political by increasing the size of the court, but delaying the increase by say 10 years, so that no one knows who will fill those seats.

Second, stacking the Court is quite different from replacing retiring justices with new ones who are more likely to reflect the view of one who appointed them.

Third, it is in fact intellectually dishonest to pretend that you wish to have a court of law, while taking actions to turn it into a political body that can be stacked with political appointees whenever you are not getting your way. If that is how you view that Court, fine -- but come out and say it.
7.26.2007 3:14pm
A.S.:
You can make a decision non-political by increasing the size of the court, but delaying the increase by say 10 years, so that no one knows who will fill those seats.

I think that it would be appropriate if the party proposing the legislation proposed the following:


The number of justices comprising the whole Supreme Court shall be increased by [X] justices, such increase to become effective upon the first date that the [opposite party] controls the Presidency and the Senate.


That way, if the Democrats proposed this legislation, it would only become effective the next time that Republicans controlled the Presidency and the Senate. Any Democrat who says that they support increasing the size of the Court for non-partisan reasons should still support this legislation, right?
7.26.2007 3:27pm
tvk:
Isn't is a fairly straightforward case of the common fallacy that anything not expressly forbidden by the capital "C" Constitution must be ok?

I mean, on the legal merits, JES is right. A majority of Congress plus the president could add Supreme Court justices that are partisan hacks; a majority of the Senate could get rid of filabusters by the nuclear option; the newly taken-over Federal government could then pack the state legislatures by imprisoning political opponents (which the newly-packed Supreme Court will find constitutional); and newly-packed state legislatures could then pass Constitutional amendments that legitimate everything. All perfectly legal, and not that different from what Hitler did.

The true defense against this slippery slope is not a piece of paper written two centuries ago (it helps, but it has plenty of loopholes). The true defenses are that party loyalty does not yet stretch that far, and that there will be riots in the streets. In short, there are strong norms against court-packing, strong norms protecting the legislative minority, and strong norms against imprisoning political opponents. None of these norms are expressly Constitutionalized -- and they do seem to be weakening in our hyper-partisan atmosphere.
7.26.2007 3:27pm
Christian K:
Question: What if the proposal were to shrink the size of the court? For a smaller government and all that? Justices are appointed for life by the President. Would the current President need to re-appoint them, or remove them by seniority?

Just a thought.
7.26.2007 3:47pm
Dr. Weevil (mail) (www):
There are closer and far more recent parallels than Hitler’s Germany. Here is the pertinent part of a December 2004 story about the Venezuelan Supreme Court:

"The law passed in May expanded the court from 20 to 32 members. In addition to the justices named to the 12 new seats, five justices were named to fill vacancies that had opened in recent months, and 32 more were named as reserve justices for the court. Members and allies of President Chávez's Fifth Republic Movement (Movimiento V República, or MVR) form a majority in Congress.

"In 1999 a constituent assembly convoked by President Chávez drafted a constitution that guarantees the independence of the judicial branch and the autonomy of the Supreme Court. The Constitution specifically seeks to guarantee the independence of Supreme Court justices by establishing an impeachment process according to which justices may only be removed for 'serious offenses' by a two-thirds majority vote by Congress.

"But in May, President Chávez signed a court-packing law that allowed his governing coalition in the legislature to obtain an overwhelming majority of seats on the country’s highest court. The 17 new justices (and 32 reserves) were selected yesterday by a simply majority vote of the governing coalition, which did not reveal the names of the nominees to the opposition members of Congress until the time of the vote.

"The court-packing law signed in May also gave the governing coalition the power to remove judges from the Court without the two-thirds majority vote required under the constitution. In June, two justices retired after facing possible suspension from the Supreme Court as a result of these new provisions.

"The political takeover of the Supreme Court will compound the damage already done to judicial independence by policies pursued by the court itself. The Supreme Court, which has administrative control over the judiciary, has failed to provide security of tenure to 80 percent of the country's judges. In March, the court summarily fired three judges after they had decided politically controversial cases.

"Chávez supporters have justified the court-packing effort largely as a response to pro-opposition rulings in a deeply divided court, such as a highly questionable decision that absolved military officers who participated in the 2002 coup."

Comments:

1. Why would anyone ever want a Supreme Court with an even number of members? Isn't that just asking for tie votes?

2. It's not entirely clear from the story, but it looks like Chavez made sure that he only needed 50.1% to fire old justices and appoint new ones, but it will take 66.7% for some later president (if there ever is one) to remove any of his new appointees.

3. Handpicking 17/32 of your Supreme Court is a good way to make sure there's no pesky constitutional crisis when you want to rule by decree for however long you like, as Chavez has since arranged to do.

4. What does a "reserve justice" do? If they fill in for the regulars when they're out sick, why do you need 32 of them? Or are they like 32 vice presidents, automatically moving into a particular slot when the regular justice dies or retires or is removed for some other reason?

5. A lot more Americans know that Gen. Musharraf fired the Chief Justice of Pakistan, and despise him for it, than know that Chavez has done far worse to the Venezuelan Supreme Court.

6. Court-packing is a very efficient way of making your country look like a banana republic.
7.26.2007 3:52pm
Truth Seeker:
Great idea! I think we should add 2 new justices now. And let Bush fill them before he leaves office.
7.26.2007 3:53pm
Horatio (mail):
LIBERALISM

That school of capitalist philosophy which attempts to correct the injustices of capitalism by adding new laws to existing laws. Each time conservatives pass a law creating privilege, liberals pass another law modifying privilege, leading conservatives to pass a more subtle law recreating privilege, etc., until "everything not forbidden is compulsory" and "everything not compulsory is forbidden."

--Hagbard Celine, "The Illuminatus Trilogy"
7.26.2007 4:03pm
Mr. Impressive (mail):
Dr Grishka,


There is no requirement in the Constitution that changes in the size of the court be delayed by 10 years. Yet such a requirement would have been easy enough to include in the Constitution.

It is thus evident that our Constitution and our Founders have a very different view on this issue that you do. Nonetheless, you assert that anyone who adheres to the rule of law as defined by our Constitution and our history is "intellectually dishonest." I suppose by extension that our Constitution and the Founders themselves are also "intellectually dishonest" as they did not think that limits on Congresses power to change the size of the Supreme Court were necessary for the rule of law, but rather left it to Congress, an inherently political institution.

You sir, are nothing more than a second-rate hack. I have no problem with those who bring charges of intellectual dishonesty. When well-founded. But you have nothing more to offer than ill-founded accusations to supplement your total lack of substantive argument. The Constitution was not written as you might wish it to be and your ideas are in conflict with our history. Given the lack of law or history to support your point of view, you resort to poisonous vitriol.
7.26.2007 4:03pm
Mr. Impressive (mail):
Christian K,

It would be possible to decrease the size of the court, but only by not replacing current justices when they retire.
7.26.2007 4:06pm
srg:
Mrk Field (and others),

The obvious flaw in adding 2 members to the court is that initially it would inevitably be done in a totally partisan way.
7.26.2007 4:12pm
Mark Field (mail):

It would be possible to decrease the size of the court, but only by not replacing current justices when they retire.


I'm not sure this is true under Stuart v. Laird.
7.26.2007 4:17pm
Mr. Impressive (mail):
Bretsky,

You are asking the right question when you ask whether it would be good for the country if Congress changed the size of the court. In fact, that is the right question for any legislative change whatsoever.

The question of what is "good for the country" is obviously a political one. Go register your opinion with your representative and vote. But I do not see any reason to be unduly worked up about this issue.

As far as your concern about the legitimacy of the court are overblown. The Courts legitimacy has always supposedly been at risk, from Marbury v. Madison, to he discredited Taney decision in Dred Scott that helped spark the Civil War, to the ill-conceived victory of social Darwinism in Lochner. to the Warren-court era when conservatives proclaimed that the court was illegitimate, to Bush v. Gore, when liberals proclaims the court was illegitimate.

Even reading current judicial opinions might bring an overly anxious individual to worry about the Court's legitimacy, as the justices savage each other in rhetoric that seems more appropriate for talk radio debates or the Fox News Channel than dignified judicial decisions.

Despite this long history of concern, the Court's legitimacy has remained intact. And it has always remained in question. Which, in reality, is an excellent balance. We wouldn't want a populace lacking in skepticism towards any of the branches of government.

Given this, I say we stick to the Constitutional plan. By all means, ask whether it is wise policy or not to change the size of the Supreme Court. But, if I were you, I would not have an anxiety attack over the normal political process taking its course as intended by our Constitution and the Framers. Changing the size (and hence the composition) of the court is a perfectly reasonable thing to do if one feels it is out of step with the People.
7.26.2007 4:20pm
Mark Field (mail):

The obvious flaw in adding 2 members to the court is that initially it would inevitably be done in a totally partisan way.


As others have pointed out, there are ways around this. For example, the new positions might take effect only after the next presidential election. But even if this is true, I'm not sure it should get in the way of a needed reform (assuming it IS needed). The appointment process right now is "totally partisan". Adding new judges wouldn't change this. In the long run, both parties will have the same opportunity to shape the Court to their own desires. Good or bad.
7.26.2007 4:21pm
wooga:
Shrinking the court would be easiest by simply saying that when the next one or two justices leave, they aren't replaced. Trying to "re-do" all the current justices would be impossible. Souter, Scalia, Thomas, Ginsburg would each cause DC to explode.
7.26.2007 4:22pm
Gaius Marius:
The SCOTUS should be enlarged from nine (9) to 101 Justices.
7.26.2007 4:24pm
wooga:

The appointment process right now is "totally partisan". Adding new judges wouldn't change this.

Mark,
I think he meant "unfairly partisan" - in the sense that the winner in 2008 would get to name something like 4 new justices, and every other pres after would still be at 1 or 2 a term. Assuming the parties had equal time in the presidency, whichever party won in 2008 would still always have the numerical advantage.
7.26.2007 4:26pm
Mr. Impressive (mail):
Mr. Field,

Despite interpretations of Stuart v. Laird that might suggest the opposite, I find it highly unlikely that an attempt by Congress to decrease the size of the Court and remove any currently sitting justices would pass Constitutional muster.

I think the context of the 1801 act and the fact that a sitting duck Federalist Congress created the court and that it was in operation for a very short time before being repealed entirely as an institution would be enough to distinguish it from an attempt to decrease the size of the Supreme Court. Clearly, the Supreme Court, unlike the court in Stuart has been in operation for a very long time. It, unlike the court in Stuart, is mentioned explicitly in the Constitution, and it, unlike the court in Stuart, cannot be repealed entirely as an institution with anything short of a Constitutional amendment.

I think any lawyer advising Congress would have to advise against the idea that it is constitutional to decrease the size of the Supreme Court and, in effect, throw sitting justices out of a job.
7.26.2007 4:33pm
Dr. Weevil (mail) (www):
A "sitting duck Federalist Congress"? You do mean "lame duck", right?
7.26.2007 4:44pm
Mr. Impressive (mail):
Dr. Weevil,

Comparing the United States to Argentina is truly overwrought. If I were you, I would be nice to yourself and your body and avoid the high blood pressure and high levels of anxiety that are part and parcel with such frivolous comparisons.

The reason the United States is not like Argentina has a lot more to do with the American people than it has to do with the Supreme Court, which, as anyone who has studied our history should realize, is woefully inadequate as a protector of our civil liberties. Indeed, the myth that we owe our liberties to the Supreme Court is a very dangerous one, as it tends to decrease vigilance and jealousy regarding our liberties among the people.

If Congress exercises its discretion to change the size of the Supreme Court, this will not turn us into a banana republic. In fact, those who are concerned about us turning into a banana republic should instead look to the extraconstitutional invocations of executive privilege and outright defiance of the law by current and past members of the executive branch. Unlike the exercise of Congressional discretion in changing the size of the Supreme Court which is clearly contemplated by the Constitution, outright defiance of the law by past and current members of the executive branch as is now occurring is most definitely not contemplated by the Constitution, which instead imagined that the President and his underling would "take care that the laws be faithfully executed."
7.26.2007 4:47pm
David M. Nieporent (www):
There is nothing wrong with expanding the size of the Supreme Court. Rhetoric about "court packing" aside, the size of the Supreme Court is set by statute, not the Constitution. There is nothing wrong with changing that statute.
There's nothing unconstitutional about it. There's something wrong with it, both politically and practically. (I'm not even counting the fact that it's going to be impossible to accomplish, since it would take control of the House, supermajority control of the Senate, and the presidency.)

Expanding the court because one thinks nine justices aren't enough to handle its job is one thing; expanding the court because one dislikes its decisions is quite another. There's no principled stopping point there. If you add two judges to get decisions you don't like changed, there's no reasonable argument against the next administration adding two more judges beyond that to get decisions it doesn't like changed. Which removes any pretense that this is about anything except power.

Moreover, 11 justices means fewer unanimous decisions/more concurrences and dissents. It means more fractured plurality decisions which are impossible for lower courts to apply. It means less-well-settled law, which obviates the purpose of having the Court speak at all. If we're not going to get decisive answers from the Court, we might as well stick to the circuit courts.

And it means more frequent confirmation fights. (I don't buy the "with 11 justices, the stakes are lower than with 9, so the fights will be less intense" argument. With 50 justices, perhaps. But not with 11.)


As a liberal Democrat, you should avoid falling for conservative alarmist rhetoric. There is nothing wrong with changing the size of the Supreme Court. In fact, it has been done many times in the history of this country.
No, it hasn't. It's been done very few times, the most recent instance of which being 140 years ago; it hasn't even been attempted in 70 years, and was resoundingly rejected as a horrid idea even by a Congress of the same party as the president who proposed it.
7.26.2007 4:48pm
Mr. Impressive (mail):
Dr. Weevil,

You are correct. I did mean lame duck.
7.26.2007 4:49pm
David M. Nieporent (www):
It's not very impressive of Mr. Impressive to confuse Venezuela and Argentina. Let alone Venezuela and the United States.
7.26.2007 4:56pm
KeithK (mail):
Why stop with two additional justices? As someone pointed out a series of 6-5 decisions would be just as divisive as 5-4 decisions. So why not pack the court with four or six new justices? Or we could raise the number to 435, with one per congressional district, and make it a real super-legislature. Still unelected, of course. Aside from the pesky constitutional provision requiring appointment we couldn't afford to let the rubes from Idaho or Alabama actually elect their black robed masters. Could you find 426 people who are qualified to serve on this new SCOTUS? Sure, since it's just a super-legislature the only qualification would be a good political outlook.

Just because something is legal (which court packing certainly would be under our Constitution) doesn't mean it is a good idea.
7.26.2007 4:58pm
Dr. Weevil (mail) (www):
Mr. Impressive has an impressive ability to garble significant details:

1. I didn't say packing the Supreme Court would make the U.S. a banana republic, just that it would make us look like one.

2. I never mentioned Argentina, and know nothing about its judicial system. The country with recent experience in court-packing is Venezuela. They both have long names and are in South America, but don't have a lot else in common.
7.26.2007 5:00pm
Mark Field (mail):

Despite interpretations of Stuart v. Laird that might suggest the opposite, I find it highly unlikely that an attempt by Congress to decrease the size of the Court and remove any currently sitting justices would pass Constitutional muster.

I think the context of the 1801 act and the fact that a sitting duck Federalist Congress created the court and that it was in operation for a very short time before being repealed entirely as an institution would be enough to distinguish it from an attempt to decrease the size of the Supreme Court.


All true enough. I'm not even sure that Stuart v. Laird was correct. However, the effect of the statute was to deprive actual, confirmed judges of their position. It's at least plausible that Stuart might permit a reduction in size of the Court which affected sitting justices. That doesn't mean I think it would be a good idea.


I think he meant "unfairly partisan" - in the sense that the winner in 2008 would get to name something like 4 new justices, and every other pres after would still be at 1 or 2 a term. Assuming the parties had equal time in the presidency, whichever party won in 2008 would still always have the numerical advantage.


Yeah, that's why the suggestion to delay implementation makes sense. In the long run (and it could be a very long run), though, the chances for each party to appoint justices tends to even out.
7.26.2007 5:00pm
theobromophile (www):
If the values are so "popular," why can they not be legislated into being? NOTHING done by the Roberts Court has prevented legislation on the issues. Ledbetter proved that. Carhart was about Congressional legislation. Don't like Carhart? Repeal the PBA ban.

It amazes me that leftists want to entrench their political values in the Constitution so that they may be above attack from those evil conservatives. This all amounts to, "This has to be a constitutional issue, because, if it's not, the conservatives can introduce legislation that we don't particularly care for."

Her last sentence basically says, "Bow to our wishes unless you want us to undermine your power."
7.26.2007 5:03pm
Mark Field (mail):

Why stop with two additional justices? As someone pointed out a series of 6-5 decisions would be just as divisive as 5-4 decisions. So why not pack the court with four or six new justices?


This argument doesn't prove much. Any number is arbitrary. The size of the Court varied several times between 1789 and 1870. No number is sacred even if we've come to accept 9 as standard.
7.26.2007 5:04pm
Mr. Impressive (mail):
David M. Nieporent,

First, there is no super-majority requirement to pass ordinary legislation in the United States Senate. Any Senate rules that make this effectively so can be changed by a simple majority. In fact, the number of votes needed to invoked cloture has been changed in the past and will no doubt be changed in the future.

Second, as to your point that the number of justices on the Supreme Court has been changed long ago, this strengthens the argument for change rather than weakening it. The fact that the size of the Supreme Court has been changed numerous times so close to the Founding period confirms that such changes were in fact contemplated and approved by our Constitution. We are moving to a practice closer to that of the Founders when we move to change it today. Further, that it has been so long since we changed the size of the Supreme Court is good reason to consider our policy on that issue now.

As to the idea that ideology should not be of concern in the political process, that idea is absurd coming from any member of the Federalist Society, which would include most (if not all) of the bloggers at Volokh.com. Nixon, Reagan, and Bush all campaigned on confirming judges of a certain ideological stripe. The ideological composition of the judiciary is already a political and ideological issue. For members of the blatantly political and ideological Federalist Society to pretend otherwise is laughable. You have formed an organization whose sole goal is to shape the ideological composition of the judiciary, and that organization has been remarkably successful in doing so. But, having brought this issue into politics, you Federalist Society members would like to take it out of politics. Why? Obviously because the political winds have turned against you. Well, whatever else you want to say about liberals, we are not stupid.

Just as you are able and willing to push precedent in order to confirm judicial nominees that you find ideologically favorable (i.e. threatening to end the filibuster via the so-called "nuclear option") you can expect the same from our side.

The general ideological orientation of members of the judiciary is a legitimate political issue, even while neither side would approve of judges taking into consideration the politics of particular litigants before them.

Just as the Federalist Society unabashedly recruits and positions conservatives (and hell, even sometimes libertarians, as distasteful as that bunch is) for judicial appointment, liberals will move to recruit and confirm judicial nominees with ideologies more favorable to our point of view.

And there is nothing wrong with that.
7.26.2007 5:06pm
Mr. Impressive (mail):
Mr. Weevil,

You are of course right that I should have said Venezuela. An important fact, no doubt. But in this case not affecting the substance of my comment.

Your concern that we will "appear" to be a banana republic is rather unimportant. One could say the same about the decision in Bush v. Gore. Or how about this administrations outright defiance of the law? What about Guantanamo? I for one find this selective concern about the "appearance" of the United States by conservatives amusing.

I personally am not one for letting concerns about appearance trump substance (though, if you can both appear favorably and maintain substance, that probably is a good idea). But, if you are going to be obsessed with appearance at expense of substance, at least be consistent.

In my view, that you are only concerned about appearance rather than substance suggests that your comment is objection is even less significant.
7.26.2007 5:13pm
DrGrishka (mail):
Mr. I,

That the Constitution does not prohibit an action does not make the action political in nature. Like I said, if you want the Court to be nothing but a super legislature come out and say so. Otherwise, it is in fact intellectually dishonest to pretend you are really concerned with nothing but a rule of law, while implementing purely court reforms.
7.26.2007 5:19pm
John D. Galt (mail):
The Supreme Court has been, effectively, ideologically "packed" in a leftist direction ever since FDR bullied them into (wrongly) upholding the National Labor Relations Act against the individual right of contract by threatening to pack the court.

It is imperative that this threat be removed forever by amending the constitution to fix the size of the court.

Then we can get started on the badly needed job of reversing pretty much every change the court has made to constitutional law since that time, and rolling back the federal government to its proper, constitutional size and scope.
7.26.2007 5:24pm
Mr. Impressive (mail):
theobromophile,

Interesting point. Here are a couple of ideas in response.

(1) If you have a Court that fails to interpret legislation reasonably, you may have the ability pass more legislation. But that same Court will be interpreting the new legislation as well. If they twisted the meaning and frustrated the purpose of the old legislation, they can just as easily twist the meaning and frustrate the purpose of the new legislation.

(2) Our system tends to biased against new legislation. It has to be passed by two houses of Congress, go through legislative committee where it might very well be amended into something that is unrecognizable, survive any attempts to filibuster, fit into a busy legislative calendar, and be approved by the President or be approved by a supermajority. It is no small thing to go through this whole process again in order to correct an abusive interpretation by the courts. Indeed, it may not be possible if the political winds have shifted somewhat, and the Senator for Wyoming, representing a relatively small number of people, has changed his mind.

(3) The concerns of liberals with the current court are not limited to just matters of statutory interpretation. We are concerned with matters of constitutional interpretation as well.
7.26.2007 5:25pm
DrGrishka (mail):
That should read "purely political court reforms."
7.26.2007 5:25pm
Mr. Impressive (mail):
DrGrishka,

I do not understand what you are trying to say in your last less than coherent comment.
7.26.2007 5:28pm
Brooks Lyman (mail):
Grange95:

Yes, the founders were "radicals" in their day, but in the sense that they were proposing a basically conservative Constitution - the rule of law, not the rule of men: King George, in particular - their structure was profoundly conservative.

And of course, by current definitions of "conservative" and "liberal" - which are somewhat turned around from what those words meant in the 18th and 19th century - the founding fathers were definitely conservative.
7.26.2007 5:37pm
DrGrishka (mail):
Mr. I,

Let me try it again.

We all agree that the Constitution allows Congress to change the size of the Court. That is hardly the point. That's why your argument that the Constitution does not require a 10 year lag is a non-sequitur. Of course it doesn't require it. But allowing for a 10 year lag would allay the concerns of those who would view the enlargement as a political power grab as opposed to an efficiency enhancement measure.

The point is that changing the size of the Court simply to serve your momentary political goals is transforming what is a legal institution into a political organ. If you do not find that to be problematic, that is fine. But you should be honest enough to say that you wish SCOTUS to be a political and not a legal body. It is intellectually dishonest to say that the Court should be obeyed and respected because it is "interpreting the law," while on the other hand attempting to impose political will on the court.
7.26.2007 5:39pm
Greg May (mail) (www):
Where would this stop? Once the initial resistance is overcome, there will be more packing with each change of power as citizens not only get used to it but demand it as a perk of winning the last election.

A hundred years from now, we'll see an article in the New York Times begin with "A bitterly divided U.S. Supreme Court, in a 76-75 decision . . ."

OK, maybe that's a little cynical.
7.26.2007 5:41pm
dwlawson (www):

I suspect the "average" citizen couldn't name 2 Supreme Court justices, let alone tell you what "court packing" is.


Easy: Judge Judy and Judge Wapner!
7.26.2007 5:46pm
Mr. Impressive (mail):
DrGrishka,

Law and politics are on a spectrum, they are not absolutely separate spheres. Congress is a political institution, yet it makes laws. Courts are chosen by Presidents who often campaign on the sort of judges they will appoint. The Federalist Society has actively served as an incubator for judges with a particular ideological perspective to take office.

I think your view of the law is simply incredibly naive, to the extent that you think that law is or ever has been a rarefied realm altogether separate from the hurly-burly of politics.

There are separations of law and politics that we can all agree on. For example, Democratic judges shouldn't favor Democratic litigants in contract disputes. But to go from that to this idea that on a fundamental level, the decisions of judges are separate from their ideology is completely naive.

The Federalist Society does not think that the ideology of judges is irrelevant. That is why they serve as incubators for individuals with a certain ideology. Successive Republican administrations have not thought that the ideology of judges is irrelevant. That is why they have explicitly campaigned on the issue of appointing conservative judges.

Do I think we should increase the size of the Supreme Court in order to bring ideological balance. Absolutely. Is my concern about ideological balance in conflict with the rule of law? Absolutely not. Not any more than the Federalist Society's obsession with creating a movement to appoint conservatives to the bench.

Judicial ideology matters. Period. It always has. From Marbury v. Madison, to Dred Scott, to Lochner, to Miranda, to Bush v. Gore and countless other decisions, ideology has mattered.

Don't expect that your side is going to aggressively attempt to shape the ideology of the Federal bench with no response from my side. Suddenly, blatantly ideological members of the Federalist Society who appoint blatantly ideological members of the judiciary are complaining that the concern about ideology on the Democratic side is somehow improperly political? Give me a break. Talk about self-serving rhetoric.

Here is what I am saying to you. We should increase the size of the Supreme Court in order to bring about ideological balance consistent with the rule of law. There is nothing dishonest about that.
7.26.2007 6:25pm
DrGrishka (mail):
The difference between the conservative attempts to shape the judiciary and what you are proposing is that the conservatives have suggested simply replacing judges as they naturally retire or die. What you are suggesting is rigging the game so that whenever you fail to replace a judge due to a lack of vacancy you would get an appointment anyway.

Second, I am somewhat baffled about your insistence on "increasing ideological balance." You do not care about "balance," but rather adding judges of a particular political stripe. That is hardly about "bringing balance." So that is yet more intellectual dishonesty.

(BTW, if anything, the present court is quite balanced with 4 conservatives, 4 liberals and 1 moderate.)

Finally, you and I fundamentally disagree about the function of the courts. You seem to view them as an extension of political branches. I do not. Your argument that Congress is political yet makes law is another non-sequitur. The point is that it is Congress' job to make laws according to the political preference of the day. It is emphatically NOT the Court's job to do the same.

I frankly do not see a point of further discussion. But lots of luck with attempting to stack the Court. It did not for Roosevelt who had a 74-16 majority in the Senate (with 1 independent, 1 Farmer-Labor and 1 Progressive Senator). Lots of luck trying it in the present day environment.
7.26.2007 6:42pm
Al Maviva (mail) (www):
Pardon my over the top sarcastic outburst earlier, but I'm really baffled that anybody is so short sighted and frankly blind to the consequences of this sort of path to seriously consider it. It can be boiled down to, "we want to manipulate the courts to give us what the voters and their elected representatives steadfastly refuse to provide us." I know that many have posited the counter-majoritarian role and tendencies of the federal courts, but the idea of rule by the minority via the courts is more than I can stomach. Nifty black robes don't make the idea of judicial tyranny any more appealing than any other type of anti-democratic government. And make no mistake, he isn't positing increasing the number of judges to cause better deliberations, he is positing an increased number of judges to achieve the "legal" results he is after.
7.26.2007 6:47pm
Jam:
A thought that just occurred to me:

The SCOTUS is to consist of one member per State. Appointment to the SCOTUS is done by a State's legislature. A member of SCOTUS is appointed for 6 years and cannot serve consecutive terms. Decisions on questions on the Federal government's authority must meet the same criteria as an amendment.
7.26.2007 6:47pm
Jam:
Subject to a State legilature's recall. To be paid by the State legislature.
7.26.2007 6:49pm
Mr. Impressive (mail):
Grishka,

I must agree with you about further discussion being pointless. Not only are you intellectually impotent, but you insist on proceeding with meritless charges of dishonesty. I franky have no respect for you. You are apparently lack the intelligence to have a discussion that does not involve meritless ad hominem attacks. In all honesty, if I wanted to have a discussion that devolved into the gutter, I would be better off going into the streets. At least there the ad hominem attacks are more colorful and thus more interesting than your bland accusations of intellectual dishonesty.
7.26.2007 7:03pm
Mr. Impressive (mail):
Al Maviva,

Not all members of the Federalist Society agree on every legal issue. Correct? There is diversity even among people who agree on certain general ideas concerning methodology and approach. Those differences lead to different outcomes in different cases.

To say that you want more of what you conceive of as ideological balance in a certain direction does not necessary imply that you are looking for particular results in particular cases. Instead, you may prefer a certain methodology or approach be employed to decide cases.

Finally, to increase the size of the Supreme Court is to make the court more accountable to Congress and the people, not less. After all, such a plan will only come into being if a majority of legislatures, who are directly accountable to the people, agree with it. To say that even the thought of changing the size of the court is repugnant is actually to increase the power of the court, which will then be subject to that much less influence from the more democratically responsive branches.

Notwithstanding hyperbolic alarmist rhetoric to the contrary, increasing the size of the Supreme Court is an excellent, moderate, and reasonable idea whose time has come.
7.26.2007 7:13pm
Horatio (mail):
The SCOTUS is to consist of one member per State. Appointment to the SCOTUS is done by a State's legislature. A member of SCOTUS is appointed for 6 years and cannot serve consecutive terms. Decisions on questions on the Federal government's authority must meet the same criteria as an amendment.


Subject to a State legilature's recall. To be paid by the State legislature




Let's go one step further - Let's repeal the 17th Amendment and really make things State-centric and the problems that were associated with the process prior to the adoption of the 17th.
7.26.2007 7:13pm
DrGrishka (mail):

Notwithstanding hyperbolic alarmist rhetoric to the contrary, increasing the size of the Supreme Court is an excellent, moderate, and reasonable idea whose time has come.


So let's do it immedeately. And get 2 more justices by the beginning of OT 2007. How about that?
7.26.2007 9:16pm
DrGrishka (mail):

Notwithstanding hyperbolic alarmist rhetoric to the contrary, increasing the size of the Supreme Court is an excellent, moderate, and reasonable idea whose time has come.


So let's do it immedeately. And get 2 more justices by the beginning of OT 2007. How about that?
7.26.2007 9:17pm
markm (mail):
To those who advocate increasing the size of the SC so it can take more cases: HAVE YOU EVER BEEN ON A COMMITTEE?
7.26.2007 9:32pm
Stan Peterson (mail):
Jam,

You have a grand idea. Except I would double it and make two per State appointed by the State legislature, for a 6 year term(s).

We only need to find a name of the organization as SCOTUS is not dignified,as it sounds liek a body part. I suggest "Senate" referring to the term used by the Roman Republic for its group of wise men.

Hey, I jusut realized that Mr. Madison stole my idea two hundred years ago. What a plagiarist he is/was.
7.26.2007 9:56pm
TheProudDuck (www):
Impressive: You're conflating general political ideology with a specific opinion as to the proper role of the judicial branch. The Federalist Society, by and large, isn't simply out to get "conservative judges" appointed (who would presumably write substantive conservative political ideology into the law). The objective is to maintain at least a tenuous connection between the original democratic legitimacy of Constitutional provisions -- i.e. the fact that those provisions' framers, the duly-elected representatives of the public, enacted specific language with specific meanings -- and Constitutional jurisprudence. I don't believe you admit just how radical a theory Breyer &Ginsburg et al.'s "living Constitution" is. It's one thing to interpret general language and apply it to specific situations; it's another thing entirely to declare that while a Constitutional provision once meant X, it now means Y, for no other reason than the justices think it ought to.

It would be improper to nominate or oppose a justice's appointment because of his substantive political opinions on, say, abortion. It is entirely legitimate to support or oppose that justice based on his views as to what the role of a Supreme Court justice is.
7.26.2007 10:26pm
bittern (mail):

Pardon my over the top sarcastic outburst earlier, but I'm really baffled that anybody is so short sighted and frankly blind to the consequences of this sort of path to seriously consider it.

Al M,
It's funny. If I recall correctly, I always think you're way over the top, except you weren't that time. There's got to be a little residual good faith among most of the people in the opposing factions most of the time, or some thin piece of paper isn't going to keep us USA'ans from chaos &then tyranny. (Strange though it may seem, filibustering is an accepted practice down in the senate; strange though it may seem, packing the Supremes is out).

What amazes me about this thread, and it's not about you, Al M, is how somebody can write so fast!
7.26.2007 10:38pm
ZF (mail):
It's interesting how few of the commenters above, living I guess in some sort of a legal bubble, understand the politics here. They are not complicated.

This isn't about actually moving to pack the Court, so the mechanics of doing so aren't central. It's a threat designed to intimidate, just as was the campaign, last year I think it was, to trail the argument that Scalia should be made to recuse himself on a whole range of issues because of public statements he's made in the past.

These are efforts to persuade even just one member of the current majority that bad things may happen if they don't back off cherished liberal positions. The that extent, from the proponents' point of view, the crazier the positions advanced the better.

And of course this is a campaign the NYT is happy to promote.
7.26.2007 10:51pm
robertemmet (mail):

The Supreme Court has been, effectively, ideologically "packed" in a leftist direction ever since FDR bullied them into (wrongly) upholding the National Labor Relations Act against the individual right of contract by threatening to pack the court.

It is imperative that this threat be removed forever by amending the constitution to fix the size of the court.

Then we can get started on the badly needed job of reversing pretty much every change the court has made to constitutional law since that time, and rolling back the federal government to its proper, constitutional size and scope.


I agree that it is presently impractical to change the size of the Court, but that does not mean that a return to the changing size of the Court as in the early days of the nation is impossible. I also agree that it is a good idea to fix the size of the Court in the Constitution, and I would fix it at 9 to avoid a windfall to either party. While doing it though, I would also include another idea of the founders -- that supermajorities are required to make fundamental changes to the Republic. So I would include a second clause in the Amendment that would provide that the Court could not rule an Act of Congress or a provision of the Constitution of a State contrary to the Constitution of the United States unless 2/3 of the Court (not just those voting) agree. This would keep those pesky 5-4 decisions from making substantive changes, while a 6-3 decision would be just fine (turns out that 9 is a very good number of justices).
7.26.2007 10:53pm
Jam:
Horatio: Yes to the repeal of the 17th
7.26.2007 10:57pm
Brian G (mail) (www):

As a liberal Democrat, you should avoid falling for conservative alarmist rhetoric. There is nothing wrong with changing the size of the Supreme Court. In fact, it has been done many times in the history of this country.



Sure, if you ignore that the size of the court hasn't changed since 1870 or so, that's a real valid argument Mr. (un)Impressive.
7.26.2007 11:03pm
Jam:
Stan: LOL

But one per State is good enough. I am not trying to replace the Senate. Maybe 6 years is too long, how about 3 year terms. Still no consecutive terms allowed.

It isn't plagiarism but the most sincere form of flattery.
7.26.2007 11:06pm
Brian G (mail) (www):
Come to think of it, you guys should have all ignored Mr. (Un)Impressive after he said this:


I am afraid that Democrats are not as afraid of getting rid of the filibuster as you imagine.

We are going to be doing a lot of good things by ending it, including making the District of Columbia a state. Two new Democratic Senators should solidify our majority nicely.



That one statement should tell you what Mr. (Un)Impressive really thinks of the rule of law. He doesn't think anything of it. There needs to be a constitutional amendment to make D.C. a state, nothing less. I've heard a few people argue that an amendment is not necessary but that was just politics disguised as legal reasoning.

Sadly though, I could easily see a Dem Congress passing such a bill, a Dem President signing it, and a liberal majority on the Supreme Court upholding it by holding, effectively, that no one has the standing to challenge it (this way, they can do what they do best, avoid the merits whenever possible), and all of this happening while the liberal press cheers it on.
7.26.2007 11:30pm
Rich Rostrom (mail):
I like Mr Impressive. He's proof of what I've been thinking for years: that Democrats (and liberals) are so convinced of their own righteousness that they see nothing wrong with trashing the rules of the game or rewriting the rules in their favor. Unlike a sports game, there is no referee above both sides; only the loyalty of the "players" to the spirit of the game.

It started with "Borking", then with Clinton firing all U.S. Attorneys, then the filibusters of judicial nominees, stolen elections in South Dakota and Washington, and now the blatantly improper actions of the Democrat majority in Congress (as when Reid denied Bush the extension of his outstanding nominations across the Congressional recess, a courtesy granted to every previous President).

If the Democrats win control of the Presidency and the Congress in 2008, I will be surprised if they don't follow Mr I's plan; and it will be the last real election held in the United States. By 2016 the U.S. will be like Mexico under the PRI.
7.27.2007 12:33am
tsotha:
Brian G,

That kind of naked power grab would surely end the republic as we know it. I sure hope neither party would be so shortsighted.
7.27.2007 12:59am
DrGrishka (mail):
Brian G,

Since Mr. Impressive cloaks his argument in increasing "ideologic balance" on the court, I am willing to take him up on his offer. I suggest adding 4 seats forthwith and filling them as follows:

New Seat 1: Janice Rogers Brown. We don't really have a libertarian on the court. JRB would therefore add to the balance.

New Seat 2: Frank Easterbrook. We don't really have a real Law &Economics person on the court. Eaterbrook would change that.

New Seat 3: Mike McConnell. We don't really have anyone with his unique views on the Establishment Clause.

New Seat 4: I am willing to give this seat to anyone of Mr. Impressive's choice. Maybe Harold Koh. I concede that his brand of liberalism is absent from the court and he would add to ideologic balance.

I fully expect Mr. Impressive to endorse this plan. But perhaps I shouldn't hold my breath, since he is not interested in any "balance," but in pre-ordaining results. And if the Court's size is increased now, and a Republican happens to win the next election, but lose the following one, he will again clamor for more increases in an amount equal to nullify Republican electoral success over the last 10 Prsidential elections.
7.27.2007 1:35am
Sarah (mail) (www):
A court packing scheme is always appropriate, justifiable and the decent thing to do in the first person, as in "our court packing scheme." It's only in the third person, as in "their court packing scheme," that it becomes an unconstitutional breach of good faith.

(though, actually, even ostensibly pro-Roosevelt Democrats were opposed to the 1937 proposal.)
7.27.2007 2:00am
Jonesy:
It is a dumb idea, but a President shouldnt be able to pack the court either, and thats what conservatives want him to do. The senate should stand firm next time (if its a GOP Pres); absolutely no more 'strict constructionist' judges 'like Scalia and Thomas'.
7.27.2007 3:07am
DrGrishka (mail):
Jonesy,

Replacing judges who retire or die with judges who share President's judicial philosophy is not "packing" the Court.
7.27.2007 9:42am
archer (mail):
My only suggestion is that if this plan comes to fruition, we at least save a little money. Instead of going through the time and expense of finding suitably statist-minded judges to put on the Court, let's just borrow a few from Hugu Chavez, he has plenty to spare. This is from the Human Rights Watch website:

"But in May (2004), President Chávez signed a court-packing law that allowed his governing coalition in the legislature to obtain an overwhelming majority of seats on the country’s highest court. The 17 new justices (and 32 reserves) were selected yesterday by a simply majority vote of the governing coalition, which did not reveal the names of the nominees to the opposition members of Congress until the time of the vote.

The court-packing law signed in May also gave the governing coalition the power to remove judges from the Court without the two-thirds majority vote required under the constitution. In June, two justices retired after facing possible suspension from the Supreme Court as a result of these new provisions.

The political takeover of the Supreme Court will compound the damage already done to judicial independence by policies pursued by the court itself. The Supreme Court, which has administrative control over the judiciary, has failed to provide security of tenure to 80 percent of the country’s judges. In March, the court summarily fired three judges after they had decided politically controversial cases."
7.27.2007 10:52am
Jam:
How about adding someone like me, not a lawyer and just a regular guy. I may just begin my decision making with simply reading the text of COnstitution and see where that leads.

;)

I promise I will allow TV cameras in the SCOTUS in a very discreet way.
7.27.2007 12:32pm
Dr. Scott (mail):
Another suggestion: if this plan comes to fruition, we should plan to remodel the Supreme Court building. Or start on a new, much larger building. What goes around, comes around. If this time you "pack" with one or two justices, why, the next time it will be three or four. Or twenty. No telling how big the Packed Court will end up. Better start making more room now.

Might also be good to think about some new institution to take care of supreme judicial review. The Packed Court, full of Justices-for-Life, will be way too busy for that sort of thing.
7.27.2007 12:33pm
Brian G (mail) (www):
Dr. Grishka,

I'd throw Miguel Estrada in there simply because of how young he is, so he can be around to upset liberals for 3 decades.
7.27.2007 1:02pm
DrGrishka (mail):
Brian G,

I like Estrada, but I purposefully selected 4 people whose views don't have much representation on the current Court. From what I know of Estrada he is similar to Scalia and Roberts. So since I wish to accomodate Mr. Impressive stated goal of ideological balance, I excluded Estrada.
7.27.2007 2:13pm
just me:
Theobromophile had it right when he noted that if the Democrats do achieve a Pres. and Congressional majorities, then they can do by statute many reversals of recent Supreme Court opinions. That would include repealing the partial-birth statute, as Teho. noted, and would also include all the statutory interpretation issues, whether re-instating the Dr. Miles prohibition on resale price maintenance, or the deadline for filing equal pay claims, and so on.

Mr. Impressive responded in several ways, but most or all don't hold up.

First, Mr. I. says that the Court could misinterpret new statutes just as it had the old ones. While that is true sometimes, it usually results from fuzzy drafting. On all of the recent issues, such as the ones I noted above, it would be pretty easy to write a firmer statute. Outlawing RPM, or measuring equal pay claims from the last paycheck, is fairly easy. And just repealing the partial-birth statute is easy.

Second, Mr. I. objects that passing legislation is hard to do. But the comparison here is between passing such legislation and passing a court-packing plan. Surely the latter is harder, isn't it?

Third, Mr. I. objects that he and the left are concerned with constitutional issues, too, not just statutory ones. But a key point here is that, for the most part, the asymmetry between left and right in judicial review is that the left wants to invalidate "conservative" laws, e.g., Roe/Carhart v. Gonzales for abortion, Lawrence for sodomy laws, etc., while the right's "sin" in the left's eyes would be to allow such evil laws to stand.

This "problem," even if rooted in constitutional law, can be solved by statutory change, though, by changing the statutes. Not even Scalia/Thomas, let alone Kennedy, have ever claimed that the Constitution requires States or the federal government to outlaw abortion or sodomy or whatever.

One partly legitimate counterpoint to this is that Democratic control of the federal political brnaches could only repeal the federal abortion law, but would not stop States from enacting their own. But that is only partly legitimate because the underlying Smith article claimed that the current Court was opposing the "popular" will. If the problem is that 20-odd States passed partial-birth laws, then that undercuts Smith's claim to be vindicating "popular" stances. But to the extent that a "better/liberal" Court would police against laws that are only "popular" as outliers, e.g., one State's law, or a handful of sodomy laws, that might be an issue.

And I concede that the liberals do need a Court change, not just statutory change, to overcome the Court rulings in which the Court has struck laws that were enacted by political branches, as in the Seattle/Louisville cases re using race to assign kids to schools.

But, for the most part, Democratic control of popular branches would do the trick, even with a conservative Court, in a way that it did not work for conservatives to win popular branches under a leftish Court, and that asymmetry means that the left wins in the long run, unless the right really has everything at once. And contrary to some claims, they still have not had that. The closest they've come, with the Court now, came only at the time they lost Congress. Before then, the combo of Kennedy AND O'Connor meant hit-or-miss at the Court.
7.27.2007 6:45pm
Mark Bahner (www):
I have a better idea than packing the Supreme Court.

Amend the Constitution such that each of the 9 Supreme Court judges serves at most 18 years. Have every president get to nominate 1 judge in year one of his or her presidency, and one judge in year 3. The judge that gets replace each time is the one who has served longest on the court (if no one voluntarily resigns).

My idea insures that every president gets at least 2 nominations in each 4-year term. It also makes it a lot less likely that judges serve beyond the time they can physically and mentally handle the job.
7.29.2007 11:20pm