Let's be real...

If the right-leaning folks got a chance to replace Ginsberg with a conservative Justice, they'd jump at it.


The left-leaning folks mostly want to replace Scalia with a leftist.



This is no surprise, nor is it some kind of evil act in itself.


It is just politics.



Now that, is the actual problem... that the Court has become so powerful (and thus politicized) that the replacement of ONE SINGLE JUSTICE can have far more profound consequences on the nation's fate and future and society than who controls Congress.


It was never supposed to be that way. A single appointed judge was never supposed to outweigh the entire elected body of representatives, in their effect on our government and society. The idea that one man can be that important is anathema to representative democracy.



The panic on the Right and piratical glee on the Left serve to throw this fact into stark revelation: we've invested FAR too much power in the Court.


We need to fix this, and we need to do it quick.



BTW, if you're one of those who are gleeful, bear in mind that next time it could be YOUR ox being gored...

Goshin said:

If the right-leaning folks got a chance to replace Ginsberg with a conservative Justice, they'd jump at it.


The left-leaning folks mostly want to replace Scalia with a leftist.



This is no surprise, nor is it some kind of evil act in itself.


It is just politics.



Now that, is the actual problem... that the Court has become so powerful (and thus politicized) that the replacement of ONE SINGLE JUSTICE can have far more profound consequences on the nation's fate and future and society than who controls Congress.


It was never supposed to be that way. A single appointed judge was never supposed to outweigh the entire elected body of representatives, in their effect on our government and society. The idea that one man can be that important is anathema to representative democracy.



The panic on the Right and piratical glee on the Left serve to throw this fact into stark revelation: we've invested FAR too much power in the Court.


We need to fix this, and we need to do it quick.



BTW, if you're one of those who are gleeful, bear in mind that next time it could be YOUR ox being gored...

Click to expand...

It is not one judge, it takes 5 for a majority, and what exact method do you propose to determine constitutionality of laws?

Goshin said:

The panic on the Right and piratical glee on the Left serve to throw this fact into stark revelation: we've invested FAR too much power in the Court.


We need to fix this, and we need to do it quick.

Click to expand...

I agree, they should put Judge Judy in as the newest SC judge right away!

My suggestions are as follows: Increase the size of the court from 9 to 16. This will act to disperse the power somewhat and reduce the odds that replacing a single justice could change the entire direction of the Court.


That's for starters.


Next up, a ten year term limit for Justices. Frankly, no Justice should ever wield such power for 20-30 years.


Thirdly, Congress has the power to limit the purview of SCOTUS. This is considered a "nuclear option" and one most politicians are loathe to even mention, but the power of the Court to effectively "make law" must be curtailed. That is properly the function of the legislature. Judicial review should continue but be redefined as a more narrowly construed power.

Redress said:

It is not one judge, it takes 5 for a majority, and what exact method do you propose to determine constitutionality of laws?

Click to expand...

It takes 5 yes.


Up to this point, the Court has had 4 relatively right-leaning members, 4 rather left-leaning members, and a "pivot man" known for swinging either way depending on the subject.


Replacing one right-leaner with one left-leaner changes the court to a 3-5-1 balance and will likely have a profound effect on society for years to come. Many years to come, perhaps, if the next POTUS replaces one or two Justices with more left-leaners.


Or then again, to put it in terms you'll appreciate better, what if the next POTUS is a Republican and Ginsburg (83) dies during his term? If the Senate succeeds in delaying the appointment until the next POTUS is elected that could change the balance of the Court 5-3-1 to the RIGHT.... which I think you would not care for, no?


Better to curtail the Court's power somewhat. It has grown far beyond all reason, when we arrive at such a point as this.

Redress said:

It is not one judge, it takes 5 for a majority, and what exact method do you propose to determine constitutionality of laws?

Click to expand...

I would also note that predictions about the influence of a particular judge is often very hard to predict and, indeed, can sometimes come out exactly the opposite of intended. For example, Clinton nominated Justice Thomas - one of the most conservative judges on the court - and Bush nominated Chief Justice Roberts - the pivotal vote in favor of upholding Obamacare.

Or perhaps we need an Amendment saying that the Court requires a supermajority to rule on anything other than the law of the case before them... that is, to make their decision a general one impacting all law in the USA, might require a minimum 6 out of 9 justices voting together. Maybe 7 of 9.


A 2/3rds or more majority, in other words.

MrT said:

I would also note that predictions about the influence of a particular judge is often very hard to predict and, indeed, can sometimes come out exactly the opposite of intended. For example, Clinton nominated Justice Thomas - one of the most conservative judges on the court - and Bush nominated Chief Justice Roberts - the pivotal vote in favor of upholding Obamacare.

Click to expand...

It's true that judges, once appointed, are no longer beholden to whatever political factors may have motivated their appointment, and that their political/ideological "loyalty" may be hard to pin down.


However, it is true that we've had a LOT of people on DP calling for the appointment of a strong Leftist to fill Scalia's slot.

Goshin said:

If the right-leaning folks got a chance to replace Ginsberg with a conservative Justice, they'd jump at it.


The left-leaning folks mostly want to replace Scalia with a leftist.



This is no surprise, nor is it some kind of evil act in itself.


It is just politics.



Now that, is the actual problem... that the Court has become so powerful (and thus politicized) that the replacement of ONE SINGLE JUSTICE can have far more profound consequences on the nation's fate and future and society than who controls Congress.


It was never supposed to be that way. A single appointed judge was never supposed to outweigh the entire elected body of representatives, in their effect on our government and society. The idea that one man can be that important is anathema to representative democracy.



The panic on the Right and piratical glee on the Left serve to throw this fact into stark revelation: we've invested FAR too much power in the Court.


We need to fix this, and we need to do it quick.



BTW, if you're one of those who are gleeful, bear in mind that next time it could be YOUR ox being gored...

Click to expand...

The main problem is the much increased relativity of the Constitutiin giving way to total redefinition of fundamental principals according to popular demand.

Goshin said:

My suggestions are as follows: Increase the size of the court from 9 to 16. This will act to disperse the power somewhat and reduce the odds that replacing a single justice could change the entire direction of the Court.

Click to expand...

You just created court packing in SCOTUS. You also created ties.

That's for starters.


Next up, a ten year term limit for Justices. Frankly, no Justice should ever wield such power for 20-30 years.

Click to expand...

Such a move would be subject to review by SCOTUS(ironically) and probably not pass that as the precedent is pretty clear. Barring success there, you would need to amend the constitution, which is not happening.

Thirdly, Congress has the power to limit the purview of SCOTUS. This is considered a "nuclear option" and one most politicians are loathe to even mention, but the power of the Court to effectively "make law" must be curtailed. That is properly the function of the legislature. Judicial review should continue but be redefined as a more narrowly construed power.

Click to expand...

The first two are not terrible ideas, but have practical problems. This one is a terrible idea. You are taking the power to determine constitutionality away from judges, and putting it in the hands of politicians. That should scare you, especially since they would then have the power to make laws, and determine if they are constitutional. At least now the limit is that SCOTUS can only consider laws made by others.

Goshin said:

It takes 5 yes.


Up to this point, the Court has had 4 relatively right-leaning members, 4 rather left-leaning members, and a "pivot man" known for swinging either way depending on the subject.


Replacing one right-leaner with one left-leaner changes the court to a 3-5-1 balance and will likely have a profound effect on society for years to come. Many years to come, perhaps, if the next POTUS replaces one or two Justices with more left-leaners.


Or then again, to put it in terms you'll appreciate better, what if the next POTUS is a Republican and Ginsburg (83) dies during his term? If the Senate succeeds in delaying the appointment until the next POTUS is elected that could change the balance of the Court 5-3-1 to the RIGHT.... which I think you would not care for, no?


Better to curtail the Court's power somewhat. It has grown far beyond all reason, when we arrive at such a point as this.

Click to expand...

There have been many times in history when the court is not 5-4 in lean. The world did not end. While the current court system is not perfect, it works. Making any change should be done very very very very carefully.

Redress said:

You just created court packing in SCOTUS. You also created ties.

Click to expand...

Sigh. Point taken. 15 would have been better but it could still end up with one or two "pivot justices" determining many outcomes.

The first two are not terrible ideas, but have practical problems. This one is a terrible idea. You are taking the power to determine constitutionality away from judges, and putting it in the hands of politicians. That should scare you, especially since they would then have the power to make laws, and determine if they are constitutional. At least now the limit is that SCOTUS can only consider laws made by others.

Click to expand...

Well, no, letting Congress determine the Constitutionality of laws was not quite what I had in mind. Ideally the SCOTUS would still be able to throw out a law as unConstitutional, but not to engage in activist interpretations of the law imposing positive requirements on elected bodies.


Okay now I read back over that and it is too vague and ill-defined. And no I don't want Congress to determine what is Constitutional or not, that would be putting the fox in charge of the henhouse.



I'll admit I'm not sure what the answer is, exactly. Just that having so much riding on the replacement of one or two Justices, and having the appointment of same become so overtly politicized, is a problem.

Goshin said:

If the right-leaning folks got a chance to replace Ginsberg with a conservative Justice, they'd jump at it.

The left-leaning folks mostly want to replace Scalia with a leftist.

This is no surprise, nor is it some kind of evil act in itself.

It is just politics.

Now that, is the actual problem... that the Court has become so powerful (and thus politicized) that the replacement of ONE SINGLE JUSTICE can have far more profound consequences on the nation's fate and future and society than who controls Congress.

It was never supposed to be that way. A single appointed judge was never supposed to outweigh the entire elected body of representatives, in their effect on our government and society. The idea that one man can be that important is anathema to representative democracy.

The panic on the Right and piratical glee on the Left serve to throw this fact into stark revelation: we've invested FAR too much power in the Court.

We need to fix this, and we need to do it quick.

BTW, if you're one of those who are gleeful, bear in mind that next time it could be YOUR ox being gored...

Click to expand...

So the solution is? <crickets>

You are very much correct in that we have a huge problem with the politicization of the court system, right up to how the process plays out to get someone on the Supreme Court depending on the disposition of the White House and Senate.

The issue then becomes how to remedy this, and the options are few given the power that establishment politics has today. Which for all intensive purposes creates a Constitutional conundrum between the very issue you are talking about and the right to associate.

Redress said:

There have been many times in history when the court is not 5-4 in lean. The world did not end. While the current court system is not perfect, it works. Making any change should be done very very very very carefully.

Click to expand...

The world didn't end, but let's not pretend a strictly one-sided court is a good thing for the country.

Goshin said:

My suggestions are as follows: Increase the size of the court from 9 to 16. This will act to disperse the power somewhat and reduce the odds that replacing a single justice could change the entire direction of the Court.


That's for starters.


Next up, a ten year term limit for Justices. Frankly, no Justice should ever wield such power for 20-30 years.


Thirdly, Congress has the power to limit the purview of SCOTUS. This is considered a "nuclear option" and one most politicians are loathe to even mention, but the power of the Court to effectively "make law" must be curtailed. That is properly the function of the legislature. Judicial review should continue but be redefined as a more narrowly construed power.

Click to expand...

I must respectfully disagree here, and with your OP.

We have 550 Congress Critters, and it often enough comes down to one hold-out vote to move legislation forward or kill it. So 16 ain't gonna do it!

You're not going to ever eliminate the effect you're speaking of.

It's there. It's life. Deal with it.

You can't make the inherently difficult job of governing 1/3 Billion people easy; not going to happen!

Goshin said:

If the right-leaning folks got a chance to replace Ginsberg with a conservative Justice, they'd jump at it.


The left-leaning folks mostly want to replace Scalia with a leftist.



This is no surprise, nor is it some kind of evil act in itself.


It is just politics.



Now that, is the actual problem... that the Court has become so powerful (and thus politicized) that the replacement of ONE SINGLE JUSTICE can have far more profound consequences on the nation's fate and future and society than who controls Congress.


It was never supposed to be that way. A single appointed judge was never supposed to outweigh the entire elected body of representatives, in their effect on our government and society. The idea that one man can be that important is anathema to representative democracy.



The panic on the Right and piratical glee on the Left serve to throw this fact into stark revelation: we've invested FAR too much power in the Court.


We need to fix this, and we need to do it quick.



BTW, if you're one of those who are gleeful, bear in mind that next time it could be YOUR ox being gored...

Click to expand...

Personally, I think it's all been blown out of proportion. Recently Scalia sided with Ginsburg, Kagen and Sotomeyer while Breyer went with Thomas, Alito, Kennedy and Roberts on a case, but no one ever talks about that one. In another case, Thomas sided with the gals and was joined by Breyer hence defeating the votes of Scalia, Alito and Roberts. I forgot which way Kennedy went on that one.

All the justices vote this way or that now and then. It's just that we like binary arguments. So, we see it all as Left or Right.

Goshin said:

If the right-leaning folks got a chance to replace Ginsberg with a conservative Justice, they'd jump at it.


The left-leaning folks mostly want to replace Scalia with a leftist.



This is no surprise, nor is it some kind of evil act in itself.


It is just politics.



Now that, is the actual problem... that the Court has become so powerful (and thus politicized) that the replacement of ONE SINGLE JUSTICE can have far more profound consequences on the nation's fate and future and society than who controls Congress.


It was never supposed to be that way. A single appointed judge was never supposed to outweigh the entire elected body of representatives, in their effect on our government and society. The idea that one man can be that important is anathema to representative democracy.



The panic on the Right and piratical glee on the Left serve to throw this fact into stark revelation: we've invested FAR too much power in the Court.


We need to fix this, and we need to do it quick.



BTW, if you're one of those who are gleeful, bear in mind that next time it could be YOUR ox being gored...

Click to expand...

No wiser words..........

Chomsky said:

I must respectfully disagree here, and with your OP.

We have 550 Congress Critters, and it often enough comes down to one hold-out vote to move legislation forward or kill it. So 16 ain't gonna do it!

You're not going to ever eliminate the effect you're speaking of.

It's there. It's life. Deal with it.

You can't make the inherently difficult job of governing 1/3 Billion people easy; not going to happen!

Click to expand...

Upon reflection, no... but one of the fundamental principles of our republic is separating and dispersing power. 15 would TEND to reduce the importance of a single justice at least to some degree, I'd think. Not always, but more so than is the case now.


But yes, I concede that governing 330 million people is no easy task... and it is one reason the Fedgov was supposed to be much more limited in its impact on the average citizen than is now the case.



Are you familiar with an old concept called the Ard Ri or High King? In ancient societies, sometimes you'd have many different kingdoms or lands, each ruled by a King or Clan Chief or somesuch, each with its own rules and laws and customs and culture... but there would be a High King that all other Kings answered to. The High King didn't try to rule over every single subject in every single domain, but rather over the Kings themselves, in particular in matters of dealing with foreign nations or disputes between his own internal kingdoms.

That was more the original concept of the Fedgov. It would manage foreign policy, relations between the States, and a very few other limited things. The average citizen would be far more concerned with his State and local government, as the Federal government would have little impact on his life.


Over the course of the 20th Century this changed. Now every citizen has great concern over the Fedgov's actions and the decisions of the Court, as we are impacted by them on a daily basis.


I've wandered a bit far afield of my original brief (lol) but my point is the average citizen should not have to fear major changes in his rights and legal standing just because one Justice died and is replaced. It's a big problem.

calamity said:

Personally, I think it's all been blown out of proportion. Recently Scalia sided with Ginsburg, Kagen and Sotomeyer while Breyer went with Thomas, Alito, Kennedy and Roberts on a case, but no one ever talks about that one. In another case, Thomas sided with the gals and was joined by Breyer hence defeating the votes of Scalia, Alito and Roberts. I forgot which way Kennedy went on that one.

All the justices vote this way or that now and then. It's just that we like binary arguments. So, we see it all as Left or Right.

Click to expand...

I hope you're right... and yet so many of the "most controversial" decisions end up 5-4, do they not?

Goshin said:

It's true that judges, once appointed, are no longer beholden to whatever political factors may have motivated their appointment, and that their political/ideological "loyalty" may be hard to pin down.


However, it is true that we've had a LOT of people on DP calling for the appointment of a strong Leftist to fill Scalia's slot.

Click to expand...

A person's political leanings should have nothing whatsoever to do with their qualification to be on the SC. They are there to rule on the constitutionality of laws, not to apply their own personal political, social or religious views to the law. We have had far too much personal opinion from the court in recent years, where they are not ruling from the constitution but from their own personal views and that has to stop. It shouldn't make a bit of difference if they are put up by a Democrat President or a Republican President because SC justices are supposed to be entirely non-partisan.

The fact that they're not shows how screwed up the whole system is.

Goshin said:

Sigh. Point taken. 15 would have been better but it could still end up with one or two "pivot justices" determining many outcomes.

Click to expand...

The bigger problem is the court packing. I am kinda ok with ties, they do not really bother me, it was just something I thought should be mentioned. The real problem goes like this: let's say we expand to 15 justices(or 16, or however many), and this will take effect in 2018. So, would you really want President Clinton to appoint 6 new justices herself? What would that do to the makeup of the court, and how long would it take to change that makeup enough to potentially undue that makeup of the court?

Well, no, letting Congress determine the Constitutionality of laws was not quite what I had in mind. Ideally the SCOTUS would still be able to throw out a law as unConstitutional, but not to engage in activist interpretations of the law imposing positive requirements on elected bodies.


Okay now I read back over that and it is too vague and ill-defined. And no I don't want Congress to determine what is Constitutional or not, that would be putting the fox in charge of the henhouse.



I'll admit I'm not sure what the answer is, exactly. Just that having so much riding on the replacement of one or two Justices, and having the appointment of same become so overtly politicized, is a problem.

Click to expand...

I respect what you are trying to do, but I think you are now seeing the difficulty in doing it and not making things actually worse. I would point out however that the politicization of this is nothing new, impossible to eliminate(politicians are, by their nature and by definition, political), and something we have survived and thrived with for over 200 years. Change is not inherently bad, but it has to be approached carefully, lest we break something that is working.

Goshin said:

I hope you're right... and yet so many of the "most controversial" decisions end up 5-4, do they not?

Click to expand...

It blows my mind how rare is a 9-0 vote. Some of these cases look like no-brainers to me, but they end up 5-4. Weird. But, my point was that many of the 5-4 votes end up with a strange mix. I need to look up how many times Scalia sided with Ginsburg or Thomas went his own way and opposed Scalia. I'm curious now.

Goshin said:

The world didn't end, but let's not pretend a strictly one-sided court is a good thing for the country.

Click to expand...

I certainly would not claim it is good, but it is also not as bad as all that. Even with just 9 justices, pretty much every president affect the composition to some extent, so any problem is transient.

Redress said:

I certainly would not claim it is good, but it is also not as bad as all that. Even with just 9 justices, pretty much every president affect the composition to some extent, so any problem is transient.

Click to expand...

Term limits then? Ten years seems more than reasonable, and would make it harder for courts to remain in an unbalanced state for excessively long periods of time.


Just to be clear, I don't think a Court consisting of nine Scalia clones would be a good thing any more than one consisting of nine Ginsburg clones.

Goshin said:

Or perhaps we need an Amendment saying that the Court requires a supermajority to rule on anything other than the law of the case before them... that is, to make their decision a general one impacting all law in the USA, might require a minimum 6 out of 9 justices voting together. Maybe 7 of 9.


A 2/3rds or more majority, in other words.

Click to expand...

I must point-out that every case the Court decides becomes national precedent. It has no direct cases before it. It is purely a court of appeal. So setting precedent is intrinsic to it's function.