September 22, 2020 at 2:08 pm #47879
I fear that if the Democrats pack the Supreme Court, that may literally lead to the end of the Constitution. I’m trying not to be hyperbolic. But it seems that once the party in power gets a chance to stack the Supreme Court in its favor, it will…and then the legitimacy of the Court as a fair body will be completely eliminated.
Meanwhile, the party in power’s incentive to stay in power will be so great – because the consequences of losing will be so catastrophic – that they will do literally anything to rig an election…similar to the stance Trump and the Republicans are now taking. But the Democrats may become just the same way. It’s not hard to imagine Democrats following this reasoning: my god, if Republicans re-take control in the next election, millions will lose their health insurance, abortion will be banned again, blah blah blah. So keeping power at any cost will make sense. Whatever the party in power chooses to do, the Democratic-controlled Supreme Court will just rubber stamp the decision, like in any banana Republic.
Not that the federal courts haven’t already been drifting to be more and more political with every decade, but stacking the Supreme Court would seem like an exponential escalation. I mean, some Court cases have definitely been surprises right? E.g. John Roberts voting with the liberals on several decisions. That will be eliminated in a new Political Supreme Court.September 22, 2020 at 2:26 pm #47880
Your post would have been correct a decade ago.
We’re already there. The GOP has absolutely no respect for the Constitution or for precedent.
It’s just a choice now of being beat up lying on the ground saying it’s not fair or rising up and defeating the bullies.
September 22, 2020 at 2:34 pm #47882
- This reply was modified 2 months ago by radiogeek.
I have come up with an odd (probably implausible) solution to this problem: if the Democrats win everything in November but Republicans still fill RBG’s seat with a right-winger, get Clarence Thomas to pledge to retire early in 2021, as long as Democrats promise not to stack the Supreme Court. Then Biden could appoint another liberal to restore the balance to what it had been until RBG died.
Now you may think, “No way Thomas would ever go for that!” but think about this: if Thomas stays, he’s going to see his power and influence on the Court diminished anyway in a newly packed Court, right? Right now he’s one of nine and in the majority. If the Democrats add say four justices, all liberals, now he’ll be one of thirteen in the minority. (Or maybe one of 30 or something like that.) What’s the fun in that? He might as well just retire anyway…and do some good for the country.September 22, 2020 at 2:55 pm #47883
Andrew, you’ve got to stop believing in any scenario where there is cooperation or any “deal” is honored. Those days are over.
Besides, you’d have to get the approval of Mrs. Thomas for her husband to come home and have nothing to do everyday. That by itself is a deal breaker.September 22, 2020 at 3:09 pm #47884
I’m sure Clarence Thomas can get a cushy job on some corporate board somewhere.
The thing is, we have been in a spiral of escalation between the two parties for a while – and I feel it is about to get exponentially worse and more destructive (under Trump, maybe it already has). When you are in one of these spiraling conflicts, each step of escalation looks logical and appropriate. E.g. in the 1980s, when Teddy Kennedy managed to keep Robert Bork off the Supreme Court, Republicans remembered and retaliated when they had the chance. And then Democrats retaliated…
But no one wins in one of these escalations.
I assure you, there are privately numerous Republican senators who are alarmed at the prospect of destroying the Supreme Court and would prefer not to appoint a replacement for RBG. But…they feel compelled to go along. It is logical for them. And the Democrats will feel compelled to retaliate by stacking the Court if they can in 2021 (assuming Biden wins! Who knows?)
I’m just hoping cooler heads may prevail at some point and try to halt this destructive escalation. It could be that once Trump is gone, enough Republicans will be able to vote their consciences that they may be able to work something out with some of the more reasonable Democrats. Maybe. But while Trump is still here, there’s no way anyone will compromise with Democrats. The pressure on them is too great.September 22, 2020 at 7:48 pm #47889
I’m not sure why the number nine is so sacrosanct on the Supreme Court. It started as six originally, and grew to ten for a short time before settling on nine. While Andrew Johnson was president (the first impeached POTUS) Congress reduced the number of seats to seven for purely political reasons, which was to deny Johnson the ability to fill vacant seats. Once he was no longer president, they restored it back to nine seats.
And speaking of political tinkering with the Court, remember when the court was reduced to eight after Scalia died? The Republican majority Senate held Scalia’s seat empty “so the People could decide who fills it” then vowed if Clinton won to keep the seat unfilled indefinitely, applying their unspoken but obvious belief that only Republicans are now allowed to name federal judges.
It is getting tiresome to watch Republicans obliterate norms and rules left and right, yet we still expect Democrats to play by the rules. When do Democrats get to play dirty, if even a little bit?September 22, 2020 at 8:58 pm #47890VitalogyParticipant
Time is now. Fuck norms. Dems must pursue complete power to do what they can do if they are elected. Anything less is unacceptable. Playing by the rules is a fools game.September 23, 2020 at 7:20 am #47894
What remains of the GOP has sold it’s soul.
Here’s the definition of the party name that gained power in the 1930’s, the National Socialist German Workers’ Party, Nationalsozialistische Deutsche Arbeiterpartei.
There’s nothing wrong with some moderate national pride, I’m a fan of some socialism (Social Security, Medicare, Public Schools, Public Roads, Fire, Police) and I don’t mind having a job either.
It’s all in how you do it, how you accommodate opposition in the political world, how you view relations with the rest of the world, how you value the lives of other human beings.
Today’s GOP has sold it’s soul to the Devil and the brand is so damaged that no one could repair it.
EdSeptember 23, 2020 at 10:26 am #47895
The Constitution is just a piece of paper with words written on it.
What matters is that Americans respect the institutions that are based on the Constitution. But not every institution was established right after 1789. Some have evolved – like the Supreme Court, which has been unchanged in over a hundred years.
There’s nothing magical about the number 9 – what matters is the purpose of changing it. How would you have felt if Republicans in 2017 had added four new seats to the Supreme Court, then appointed four right-wing justices to fill them? Would you still respect the Court’s decisions? Do you think the governments in the blue states would?
As much as you think Trump and the Republicans have grabbed power in an unprecedented way, they didn’t kill the filibuster in 2017 and didn’t stack the Court. They could have done that, could have stacked the Courts with Republicans, could have then voted to ban abortion nationwide, could have enacted a bunch of new laws greatly restricting voting to give them a permanent advantage in elections so they could stay in power indefinitely.
How would you have reacted then had Republicans done that?
How do you think the 60 million+ Trump voters will react in 2021 if Democrats do the same? Do you think they’re not going to take the same steps and then some next time they re-take power, which could be sooner than you think?
You can’t think about how expanding the Court affects things today – you have to think about everything, over the next few decades.
I’m not saying Democrats should roll over and play nice if they win in November. They need to make it clear to Republicans that they are willing to stack the Courts. Let Democrats negotiate from a position of strength. Give Republicans a chance to back down and give up something – e.g. convince Thomas to resign and re-balance the Court and maintain some of the legitimacy, without completely destroying the Court. I think the Court needs some reforms – e.g. term limits. Let Republicans agree to support those things too if Democrats will agree not to stack the Courts.September 23, 2020 at 11:26 am #47896BobParticipant
Isn’t this all thanks to Harry Reid?September 23, 2020 at 4:17 pm #47897
Harry Reid only removed the filibuster on judicial nominees except for Supreme Court justices. It was McConnell who got rid of the filibuster on Supreme Court justices. Reid’s action certainly made it easier for McConnell, but who knows if he wouldn’t have done it anyway no matter what Reid had or hadn’t done. If Reid hadn’t gotten rid of the filibuster in 2013, Republicans would have filled even more vacancies in the federal courts.September 23, 2020 at 6:33 pm #47898
Andrew: “There’s nothing magical about the number 9 – what matters is the purpose of changing it. How would you have felt if Republicans in 2017 had added four new seats to the Supreme Court, then appointed four right-wing justices to fill them?”
Not great, but here’s the point: Let BOTH sides play this add-seats-to-SCOTUS game for awhile, and let’s watch the number grow. Over time, adding seats becomes less and less politically advantageous as each justice’s influence on the decision is diluted, until we get to the point that tinkering with the makeup of the SC becomes essentially futile. This should get SCOTUS and the federal court system to the point it should have been all along – a body that deliberates on the meaning of the law and the Constitution that is insulated from particular political influences. ONE person’s vote on the SC should not decide major issues like abortion and the right to health care, but a nine person panel makes this all too likely and all too common. It is much less likely with a 15 or 21 or 25 or (pick whatever large odd number you want) that decisions will be made by a one vote margin. This would bring the court in line with the democratic principles that shape the Senate and House. Another step in the right direction would be the elimination of the filibuster…but that’s for another thread topic.September 23, 2020 at 8:13 pm #47899
edselehr, I think the larger the membership of the Court grows, the more difficult and complicated decisions will become. Having 25 members deciding a case sounds like a nightmare. The Court isn’t supposed to be a mini-legislature where members are just voting yes or know.September 25, 2020 at 1:33 am #47919
“The Court isn’t supposed to be a mini-legislature where members are just voting yes or (no).”
But…isn’t that exactly what it is now? An extremely mini legislature? Because that’s how it is behaving.
We can keep hoping and pretending that the court will someday revert to being a panel of impartial jurists, if only we select the right people to nominate them and confirm their lifetime appointments. Or, we can learn from history and repair (or differently apply the language of) the Constitution, which in this instance was clearly too optimistic about lifetime appointments insulating justices from political influence. The framers made no real allowances for political parties (“factions”), naively assuming that a large country with a large population would disperse any majority faction that would threaten to take over the branches of government (Federalist 10). They did not foresee modern mass media, modern transportation, and the Internet. The physical distance between people no longer prevents the growth of toxic factions. We need to either update the Constitution to address this new truth, or lean into the polarization by making it harder for a particular faction to have too much power. That is done by increasing the size of the deliberative body. It works best in the House, a bit less well in the Senate. It could work in the SC too.September 25, 2020 at 10:32 am #47921Andy BrownParticipant
It’s becoming increasingly clear that the rules for becoming a presidential candidate must be amended in several ways. First, however, the country needs to rid itself of drumpf.
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