Tag: court packing

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ideological culture judiciary national politics & policies U.S. Constitution

Packing Unpacked

Supreme Court, Justice, court packing

The “court packing” notion that progressives itch to implement has obvious flaws — which have been addressed (but not settled) in the recent report of the Presidential Commission on the Supreme Court of the United States, initiated by the Biden Administration last April. 

The report, just out, did not give progressives what they want. “Opponents contend that expanding — or ‘packing’ — the Court would significantly diminish its independence and legitimacy and establish a dangerous precedent that could be used by any future political force as a means of pressuring or intimidating the Court. The Commission takes no position on the validity or strength of these claims.” 

Not a few Democrats wanted the Commission to take a very negative position on those claims. Democrats currently maintain a shaky hold on power in the Legislative and Executive branches. Had the Commission given them the green-light to push progressives onto the Court — to overwhelm the current “conservative” majority — they might have consolidated power.

The report is inconvenient for that political move — as is Associate Justice Stephen Breyer’s opposition. Damon Root, at Reason, summarizes Breyer’s case: “It is a tit-for-tat race to the bottom. One party expands the size of the bench for nakedly partisan purposes, so the other party does the same (or worse) as soon as it gets the chance.” Breyer fears that court-packing would undermine Court authority, and liberalism itself would suffer.

By “liberalism” I take Breyer to mean the order that is defined by the Constitution itself: separation of powers, basic rights, citizen control of government. And there is a way to save this kind of “liberalism”: fix the size of the Supreme Court in the Constitution.

The very opposite of court packing.

This is Common Sense. I’m Paul Jacob.

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Constitutionalize the Court

Supreme Court, court packing

“To undo the damage Republicans did by stealing multiple Supreme Court seats,” argues Demand Justice, “we should immediately add seats to the Supreme Court and appoint justices who will restore balance.”

“Stealing”? That’s hyperbolic, to say the least. The Senate used its constitutional prerogative by refusing to approve President Obama’s nomination of Merrick Garland in 2016 and four years later by swiftly voting to confirm Justice Amy Coney Barrett.

The group’s proposal? Add four new justices. 

Facing a 3 to 6 justice deficit (Dem-nominated vs. GOP-nominated), many Democrats and groups like this one have settled on adding four.

For “balance.” 

Which means, to them, going from the minority to the majority.

And you thought Democrats weren’t good at math!

Last week, President Biden announced a commission to look into this “court packing” notion, as well as other possible changes to the High Court, including term limits. 

“My colleagues and I need not wait for the findings of a commission,” offered Rep. Mondaire Jones (D-N.Y.). It is “obvious,” he added, “we must expand the Supreme Court, before it’s too late.”

That is, before the next election or a resignation or tragic death of a single D-Senator might flip the Senate to Republican control. 

“Adding seats is straight-forward and easy,” reminds Demand Justice, correctly explaining that the Constitution specifies no number, “so Congress can change it at any time.”

Yes, even with the slimmest of congressional majorities Democrats could completely re-make the High Court. Without a single Republican vote. 

A partisan takeover of the Supreme Court is way too “easy” — until we place the number of justices firmly in the Constitution, away from poisonous partisan politicians. 

It’s the most urgent reform of all.

This is Common Sense. I’m Paul Jacob.

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Biden’s Court-Packing Scheme

Joe Biden, Supreme Court, court packing, election, Democracy

Hold on! What scheme am I talking about?

Joe Biden hasn’t said that he agrees with other Democrats (including former Democratic presidential candidates) who propose that the U.S. Congress act to dramatically expand the number of U.S. Supreme Court justices.

Joe Biden hasn’t said that at all. 

In his first and so-far-only debate with President Trump he refused to say, because if he did then that would become the issue.

“The issue is the American people should speak,” he said, and then turned to the camera. “You should go out and vote. . . . Vote and let your senators know how strongly you feel. Vote now. Make sure you in fact let people know.”

Know what, precisely? To vote to allow a Democratic administration to seize control of the Court, overcoming any constitutional objections to his (or her) socialist schemes?

But then Biden turned against the voters, when asked on Friday, whether voters deserve to know where he stands on court-packing: “No, they don’t deserve” to know. “I’m not going to play his [Trump’s] game. . . .”

So, officially, we “don’t know” whether Biden supports packing the High Court the way FDR tried in 1937.

Do voters deserve better from Biden? 

They do not! 

O, those voters — always demanding to know positions and agendas and things. Playing right into the hands of the opposition. 

Come on, man! Ya gotta vote for the guy to know what’s in him.

I know what’s on your mind. You’re asking, “Are you saying that Joe Biden’s coy covertness toward the imposition of one-party authoritarian government exemplifies a crude disdain for voters’ legitimate desire to know what their vote will get them and is even more disqualifying than his stealth court-packing scheme?”

Please. Don’t put words in my mouth.

This is Common Sense. I’m Paul Jacob.

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judiciary partisanship U.S. Constitution

Heal or Heel?

Supreme Court, packing, packed, red, blue, Republican,Democrat, right, left, partisan,

Call it High Court chutzpah?

In a Second Amendment case seeking U.S. Supreme Court review, five U.S. Senators have filed an amicus curie or “friend of the court” brief . . . that wasn’t very friendly.

“The Supreme Court is not well,” argue Sens. Sheldon Whitehouse (D-R.I.), Richard Blumenthal (D-Conn.), Mazie Hirono (D-Hawaii), Richard Durbin (D-Ill.), and Kirsten Gillibrand (D-N.Y.) in their brief against the Court accepting the case. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

A not-very-veiled threat.

Is their goal really to ‘reduce political influence’? Or to leverage influence against the Court should it not “heal itself” — or come to heel — by authoring judicial decisions more to Democrats’ liking? 

Seven Democratic presidential contenders, including Sens. Elizabeth Warren, Kamala Harris and Kristen Gillibrand, support court packing — having the next Democrat-controlled Congress increase the size of the SCOTUS beyond nine justices, to 12 or 15.

“[M]ost Americans recognize this tactic for what it is, which is a direct attack on the independence of the Supreme Court,” Sarah Turberville and Anthony Marcum write in The Hill. “It is no coincidence that court packing is employed by would be autocrats all over the world rather than by leaders of liberal democracies.”

To supposedly “depoliticize” the “partisan” Supreme Court, Mayor Pete Buttigieg wants to pick five justices to represent Democrats and five to represent Republicans, and then those ten would together choose five additional justices. 

Nothing like being overtly partisan to vanquish partisanship, eh?

This is Common Sense. I’m Paul Jacob.

Supreme Court, packing, packed, red, blue, Republican,Democrat, right, left, partisan,

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judiciary national politics & policies term limits

Reform Follows Function

Waiting for this week’s Supreme Court decision on Obamacare, which most folks expect to strike down the mandate and perhaps the entire law, George Washington University Law Professor Jonathan Turley argues in the Washington Post that the court should be expanded from nine justices to 19.

FDR, no doubt sitting up in his grave listening for details, would find Turley’s suggestion of allowing each of the next five presidents to choose two new justices very politic, even sneaky.Jonathan Turley

One reason to add more justices, Turley hazards, is the damage caused to popular government when controversial issues are decided narrowly. Predicting a 5-4 vote on Obamacare, he unaccountably thinks it would be less controversial to then give the President two new justices so that this law (or other Obamanisms) would be upheld 6-5.

If I have my arithmetic correct, there can be legal cases decided by a single justice with any odd number of justices . . . nine, eleven, 13, 15, etc. That is why we choose odd numbers, if not odd justices.

Prof. Turley is correct, however, in addressing the awesome power of each Supreme Court justice, the fierce political battles each nomination now engenders and the ensuing politicization of the Court. He simply applies the wrong medicine.

A better reform would be to end lifetime tenure for justices on the High Court (but not for lower level federal judges). By requiring rotation no one could lock in a majority on the court for decades without sustained majority support of the people.

Turley informs us that 60 percent of the public already favors this approach. But the Washington elite? No such support.

This is Common Sense. I’m Paul Jacob.