How Democrats Could Pack the Supreme Court in 2021

[newpublius]

You just..say it. Is there some provision I'm not aware of explicitly stating that laws pass by a simple majority?

You're trying to create statutory entrenchment. The reason that doesn't work is because a subsequently passed statute always takes precedence over a previously passed one. So you can go ahead and pass the statute, but it can be automatically undone by an ordinary statute.

A statute cannot say, "This statute can only be repealed by a statute passed with a supermajorty"

Just as a thought experiment if you think you can do something like that imagine: "This statute simply cannot be repealed or can only be repealed unanimously" <---this reveals better the absurdity of statutory entrenchment.

Its not a thing, there's no such animal.

The subsequent statute passed in ordinary course can say, "The statute purporting to require a supermajority to be repealed can now be repealed by simple majority vote"

And the subsequent statute will take precedence.

Of course what's looming over this is separation of powers to the extent it infringes on a constitutional power delegated solely to the Senate.

 

[swing_voter]

Biden won't go for packing the courts. So Trump will get his pick, McConnell and Co will vote for them, and we'll have to deal with the consequences. Trying to court pack is a bad idea and would only start an arms race of sorts.

Let's all be reminded that Trump's picked Supreme Court Justices, just put gay people on the list of protected minorities.


Most justices will uphold the law. It doesn't matter if it's right or left.

 

[BlueTex]

Not giving Garland a hearing wasn't nice, but they weren't going to say yes and they aren't constitutionally obligated to do so. The response is to return the favor if a Republican President nominates a justice with a Democratic Senate. But court packing? That's disproportionate and instant political illegitimacy.

"The president is to nominate, and thereby has the sole power to select for office; but his nomination cannot confer office, unless approved by a majority of the senate. His responsibility and theirs is thus complete, and distinct. He can never be compelled to yield to their appointment of a man unfit for office; and, on the other hand, they may withhold their advice and consent from any candidate, who in their judgment does not possess due qualifications for office." -- Joseph Story, Commentaries on the Constitution.

Bottom line, to get an appointee through requires a constitutional tandem. Obama had the political clout to do so towards the beginning of his term. Towards the end of his term, elections happened that had the consequence where he was being affirmatively 'checked' -- that's basic checks and balances.

Why would it be disproportionate and instant political illegitimacy? Their COULD be a political price but I'm not so sure.... Certainly not with liberal voters..

 

[BlueTex]

Let's all be reminded that Trump's picked Supreme Court Justices, just put gay people on the list of protected minorities.


Most justices will uphold the law. It doesn't matter if it's right or left.

And keep in mind, especially with a pandemic, most of the justices are not young..

 

[newpublius]

Why would it be disproportionate and instant political illegitimacy? Their COULD be a political price but I'm not so sure.... Certainly not with liberal voters..

Because he wasn't getting the seat anyway.

And yes, court packing really IS instant political illegitimacy. Its a Rubicon that cannot be crossed.

There can be a political price. Filibuster is fair game, admitting Puerto Rico is fair game (DC is sketchy). Splitting states is even theoretically possible.

But court packing is a no-go zone. Go there, country is over.

 

[kamikaze483]

How Democrats Could Pack the Supreme Court in 2021

Their base is already calling for a radical next move. Would they do it?

In light of Mitch McConnell's stonewalling in 2016, if McConnell goes through with this vote, then the Democrats should wield their 2020 hard power to remedy the SCOTUS makeup inflicted upon us by McConnell.

Here is why this will not work. While Congress has the power to increase the number of SCOTUS seats, packing the courts to change the balance of power is illegal. Congress would have to justify the decision to increase the size of the court based on some factor other than to intentionally shift the balance of power. The last time the size of SCOTUS was increased, they justified it due to having increased the number of federal district courts (they needed more courts because there was such an increase in the number of cases and the existing courts were overwhelmed). In this case, Democrats would come up with some justification, someone would sue (probably in Texas), and the case would end up being decided by SCOTUS.... which, with a 6-3 conservative majority, would see through the Democrat's thinly veiled efforts to legislatively change the balance of power. Thus, this effort would fail- which is why FDR abandoned his plan to do this during the Great Depression.

People are responding out of anger, which is why we have a republic in this country, rather than a democracy.

 

[BlueTex]

Here is why this will not work. While Congress has the power to increase the number of SCOTUS seats, packing the courts to change the balance of power is illegal. Congress would have to justify the decision to increase the size of the court based on some factor other than to intentionally shift the balance of power. The last time the size of SCOTUS was increased, they justified it due to having increased the number of federal district courts (they needed more courts because there was such an increase in the number of cases and the existing courts were overwhelmed). In this case, Democrats would come up with some justification, someone would sue (probably in Texas), and the case would end up being decided by SCOTUS.... which, with a 6-3 conservative majority, would see through the Democrat's thinly veiled efforts to legislatively change the balance of power. Thus, this effort would fail- which is why FDR abandoned his plan to do this during the Great Depression.

People are responding out of anger, which is why we have a republic in this country, rather than a democracy.

On what planet is expanding the court illegal? Justify to whom?

 

[BlueTex]

Because he wasn't getting the seat anyway.

And yes, court packing really IS instant political illegitimacy. Its a Rubicon that cannot be crossed.

There can be a political price. Filibuster is fair game, admitting Puerto Rico is fair game (DC is sketchy). Splitting states is even theoretically possible.

But court packing is a no-go zone. Go there, country is over.

You still haven't said how it would be politically illegitimate. In whose eyes? Conservatives?

 

[Praxas]

Biden won't go for packing the courts. So Trump will get his pick, McConnell and Co will vote for them, and we'll have to deal with the consequences. Trying to court pack is a bad idea and would only start an arms race of sorts.

It would be just another step. It was also a bad idea to prevent Obama from getting his pick during an election year only to hypocritical pick a SCOTUS member during Trump's election year. The slippery slope has already been done, so packing the courts is the next step. I hope he does do it and pack the courts since Republicans have no interest in fair play anymore.

Besides, Republicans should LOVE the idea since they have always been complaining about 9 justices making decisions for the country for the last 3 decades, now there will be more so they should be happy.

 

[newpublius]

You still haven't said how it would be politically illegitimate. In whose eyes? Conservatives?

Yes, conservatives, but then eventually there will be a Republican President and a Republican Senate and then they will return the favor and that is when the result becomes clearly absurd.

You can't win an election and put a rubber stamp court kangaroo court in place. And now unfortunately the Sword of Damocles is hanging over judicial independence so we'll see where that leads.

 

[BlueTex]

Yes, conservatives, but then eventually there will be a Republican President and a Republican Senate and then they will return the favor and that is when the result becomes clearly absurd.

You can't win an election and put a rubber stamp court kangaroo court in place. And now unfortunately the Sword of Damocles is hanging over judicial independence so we'll see where that leads.

Didn't McConnell in 2017 change the senate rules to a simple majority vote for supreme court justices? Many might consider the courts already a kangaroo court given how republicans have acted....

 

[newpublius]

Didn't McConnell in 2017 change the senate rules to a simple majority vote for supreme court justices? Many might consider the courts already a kangaroo court given how republicans have acted....

Then we are at the point where we need to go our separate ways. The Republicans had the necessary tandem to appoint justices, Obama had the tandem and LOST IT, and the electoral consequence is the then-Republican held Senate could and did check him. I get it, they wouldn't give Garland a hearing, but he wasn't getting the seat. And we all know the Democrats would've if they could've but didn't because they couldn't, whereas the Republicans can and, apparently, will.

The filibuster for lower judicial appointments generally was killed by Reid I think and then the Republicans killed it for Supreme Court justices. So if Thomas passes well then Dems don't need 60. If the Dems want to retaliate for Garland and filling Ginsburg's seat, fine, if they want to escalate and 'go nuclear' generally, THAT is legitimate. Filibuster is procedural only, killing the fillibuster doesn't make your action illegitimate. So if Schumer says to McConnel, "Look, if you fill Ginsburg's seat now, I will kill the filibuster." <----that's a legitimate political threat.

Court packing though is NOT legitimate. Its banana republic bullshit.*

*(Its legal but only because there was a time when justices physically rode circuit. So expansing it for non-political purposes is legal, but its plain as day that is not the case here)

 

[BlueTex]

Then we are at the point where we need to go our separate ways. The Republicans had the necessary tandem to appoint justices, Obama had the tandem and LOST IT, and the electoral consequence is the then-Republican held Senate could and did check him. I get it, they wouldn't give Garland a hearing, but he wasn't getting the seat. And we all know the Democrats would've if they could've but didn't because they couldn't, whereas the Republicans can and, apparently, will.

The filibuster for lower judicial appointments generally was killed by Reid I think and then the Republicans killed it for Supreme Court justices. So if Thomas passes well then Dems don't need 60. If the Dems want to retaliate for Garland and filling Ginsburg's seat, fine, if they want to escalate and 'go nuclear' generally, THAT is legitimate. Filibuster is procedural only, killing the fillibuster doesn't make your action illegitimate. So if Schumer says to McConnel, "Look, if you fill Ginsburg's seat now, I will kill the filibuster." <----that's a legitimate political threat.

Court packing though is NOT legitimate. Its banana republic bullshit.*

*(Its legal but only because there was a time when justices physically rode circuit. So expansing it for non-political purposes is legal, but its plain as day that is not the case here)

Your whole argument is a political argument... The republicans used their majority in the senate to block Garland's appointment by Obama. They used their majority in the senate in 2017 to change the rules for Gorsuch's nomination. It's time for democrats to play by the same rules: naked political power..

The "banana republic" excuse went out the window when the GOP failed to hold hearings and appoint federal judges during the Obama administration...

 

[digitusmedius]

How Democrats Could Pack the Supreme Court in 2021

Their base is already calling for a radical next move. Would they do it?

In light of Mitch McConnell's stonewalling in 2016, if McConnell goes through with this vote, then the Democrats should wield their 2020 hard power to remedy the SCOTUS makeup inflicted upon us by McConnell.

Dems must stop letting Rethuglicans stomp roughshod over our institutions, particularly the judiciary. They have used extra-legal means to do so but there's nothing illegal or unconstitutional about changing the number of justices on SCOTUS. It is a nuclear option, however. The Republicans are the only ones who can prevent it from happening but it appears they're not up to the job as usual. BTW, citing a Biden quote of 2019 is the equivalent of citing a Lincoln quote from 1862 in the sense that that was then and this is now.

 

[newpublius]

It's time for democrats to play by the same rules: naked political power..

No, court packing is not the same rules. Its foundational. It goes to legitimacy and the appointment of a political court. Its a Hugo Chavez tactic and its perfectly legal but morally wrong and the country will end, right there, right then.

The "banana republic" excuse went out the window when the GOP failed to hold hearings

First off, the hearings aren't a 'thing' per se. I mean, don't get me wrong, they have BECOME a thing, but they never were a thing until 1925. They just made it up. They never did it prior. Pre-internet, hearings make sense because who knows who this nominee is or whether or not they have any judicial knowledge or experience at all at a time when we weren't in the information age.

Now, forget it, the second Garland was nominated, every decision he ever authored was pulled up instantly over Westlaw.

The hearing has become political theater. Sure, I agree, not giving the hearing was a bit much.

But he still wasn't getting the seat and he wasn't going to get it and the Republicans weren't constitutionally obligated to give it to him.

Yes, court packing really is a Rubicon.

 

[digitusmedius]

Court packing though is NOT legitimate. Its banana republic bullshit.*

Yet, it has been packed and unpacked in the past. Were we a "banana republic" in 1868 and 1876? As for Obama "losing it" I have to wonder would sort of condition would allow you to be deaf, dumb and blind to what Moscow Mitch did in 2016 and turn around and do the opposite now and think it was Obama's or the Dems' "fault."

 

[newpublius]

Yet, it has been packed and unpacked in the past.

For non-political reasons. There was a day and time when justices physically rode circuit at a time when travel was really onerous.

If you're packing the court with a political motive, that's a no-go zone.

 

[BlueTex]

No, court packing is not the same rules. Its foundational. It goes to legitimacy and the appointment of a political court. Its a Hugo Chavez tactic and its perfectly legal but morally wrong and the country will end, right there, right then.

Congress determines the number justices on the supreme court...

 

[newpublius]

Congress determines the number justices on the supreme court...

Ok, but this is why I will stand with Trump if he wants to disavow the election.

In fact, honestly I think the Republicans need to make the election contingent dependent on an Amendment to prevent it. The threat of court packing needs to be addressed right here, right now.

Its the ONE thing that you CAN do that you just CANNOT do.

You can do ANYTHING else that you CAN do. Kill filibuster, admit states, etc.

The country WILL end on court packing.

I don't think people understand the seriousness of it yet.

Instant loss of legitimacy.

As an aside Ginsburg obviously should have resigned under Obama. I understand rolling the dice on the risk of your own mortality, but ultimately Hillary threw the political equivalent of a pick 6 here.

 

[BlueTex]

Ok, but this is why I will stand with Trump if he wants to disavow the election.

In fact, honestly I think the Republicans need to make the election contingent dependent on an Amendment to prevent it. The threat of court packing needs to be addressed right here, right now.

Its the ONE thing that you CAN do that you just CANNOT do.

You can do ANYTHING else that you CAN do. Kill filibuster, admit states, etc.

The country WILL end on court packing.

I don't think people understand the seriousness of it yet.

Instant loss of legitimacy.

As an aside Ginsburg obviously should have resigned under Obama. I understand rolling the dice on the risk of your own mortality, but ultimately Hillary threw the political equivalent of a pick 6 here.

What would you call what the GOP has been doing to the federal courts and now the supreme court?

 

[newpublius]

What would you call what the GOP has been doing to the federal courts

Pack the lower courts as much as you want, I really don't care much.

and now the supreme court?

There's an opening, they have a constitutional tandem, they're filling the seat. They're allowed to do that.

On the eve of Scalia's death it was 5-4. Now if they fill Ginsburg its 6-3. Biden prevails he'll replace Breyer and you guys will likely pick up Thomas bringing it back to 5-4 with Roberts sketchy.

HRC lost, the consequence was the court didn't flip.

 

[BlueTex]

Pack the lower courts as much as you want, I really don't care much.




There's an opening, they have a constitutional tandem, they're filling the seat. They're allowed to do that.

On the eve of Scalia's death it was 5-4. Now if they fill Ginsburg its 6-3. Biden prevails he'll replace Breyer and you guys will likely pick up Thomas bringing it back to 5-4 with Roberts sketchy.

HRC lost, the consequence was the court didn't flip.

And congress is allowed to change the number of justices... It's a little late to be whining about decency...

 

[mrjurrs]

I don’t see DC happening since it’s the seat of government and it looks like one or more constitutional amendments would be required. Making it a State was previously ruled unconstitutional. Not impossible, but not a simple matter either.

No Constitutional Amendment needed (Article 4, Section 3, Clause 1)

 

[mrjurrs]

everytime they have tried to motion a rule change on the filibuster it has been filibustered. in fact there have been 3 attempts to get rid of the filibuster since 1907 when it was officially implemented. each time the motion was filibustered and died.

please look up actual history for facts not leftist wingnut sites that are based on emotion.

Not quite. You are referring to changing the rule mid-session. Senate rules can be changed in the first day's of the Congressional term by simple majority.

 

[newpublius]

And congress is allowed to change the number of justices... It's a little late to be whining about decency...

Simply but it wasn't 'indecent' for a Republican-controlled Senate to stop a Democratic appointee.

Its about legitimacy.