In the battle over the US supreme court, Democrats can still have the last laugh

[mysteryowl]

Opinion piece:
https://www.theguardian.com/commentisfree/2020/sep/19/if-republicans-play-hardball-with-supreme-court-democrats-should-too

...should Democrats capture the White House and the Senate, they need to bear in mind that it is Congress and not the Constitution that sets the size of the supreme court. In 1937, Franklin Roosevelt, frustrated by a hidebound supreme court that had struck down New Deal laws, proposed expanding the number of justices to fifteen. That court-packing plan was rightly rejected by Congress as a heavy-handed attempt to manipulate the court’s composition to generate specific political outcomes.


A new Democratic court-packing plan in 2021 would be prompted by a very different logic. Adding two additional justices to court’s ranks would simply counterbalance the abuse of constitutional rules that enabled the confirmation of Gorsuch and RBG’s replacement. Such an act would be a justified gesture of constitutional restoration, not usurpation. So much for Mitch McConnell’s chuckling.

[aquamarina]

1. I would love to see the Court expanded to 13.

One justice for every circuit.

[dweller]

2. that's logical

👏🏻

✌🏼

[paleotn]

10. Makes sense. And then...

quickly pass a law limiting its size. Dilute the bastards.

[Lonestarblue]

27. I agree. I've thought this for a long time.

In addition to more SC justices, we need to look at the next levels down as well. We have 94 district courts and 13 circuit courts. I didn’t have time to do a thorough search, but the number of each type of courts has been the same for decades. During those decades, not only has the population of the US grown significantly, it has also moved around considerably, especially from rural areas to cities and from northern states to the sunbelt. We need more district and appeals courts because currently it can take years for a case to work its way through the courts. That’s way too long. We thus need more SC justices to oversee the circuits.

[aquamarina]

31. I completely agree.

For far too long, the number of judges in the courts and the number of representatives has stagnated. By any measure highly populated states are completely underrepresented. To me this is not about packing anything. It is about keeping faith with the Constitution about equal representation. How is it fair that my vote in CA is worth so much less than one vote in VT or WY? Same thing for judges. The work load has increased but the numbers of judges has stayed the same. How is that fair to the parties seeking justice?

[BeyondGeography]

3. I think we should forget that

Biden is an institutionalist running on restoring sanity and normalcy to government. He will inherit a severely depressed economy and a global pandemic. The Court will dominate the news for awhile, but most voters won’t see it as their main issue. One could easily question the political wisdom of elevating court packing to top priority status. Plus court packing isn’t done by fiat. You’d have to ride herd on Senate Democrats not all of whom will be on board. Stressful work (How stressful? it gave FDR’s Senate Majority Leader a fatal heart attack in 1937). Biden has limited time to make his mark legislatively and avoid a repeat of the 2010 midterms. Court packing isn’t something he would do even if he had the time and the capital. Come next January, he won’t have either.

[Tommymac]

6. I respectfully disagree. Biden will be riding a huge Blue Wave

And he will have the political capital and the momentum to do pretty much what he wants. Perfect time to use that capital up - early in his honeymoon, rather then later.

Adding 2 justices will simply rebalance the court to nullify the abuses of the Rethugs in 2016 and now.

And Dems not onboard to increase court? Please name names - I don't see this as an issue.

[BeyondGeography]

8. How about starting with Biden's DE buddy Chris Coons

DiFi, an easy get? Manchin? Bennet? Tester?

If a moderate like Bullock wins, does he want to tell Montanans he was sent to DC to pack the Court?

You really want Biden to waste his time on this when the country is trying to avoid an economic depression?

[Gore1FL]

9. yes

SCOTUS is at least as important as the economy.

[BeyondGeography]

13. Biden is on the record as opposed to packing the court

So is Sanders, for that matter:

https://www.washingtonpost.com/graphics/politics/policy-2020/voting-changes/supreme-court-packing/

And Hickenlooper, who looks like a sure thing.

[Gore1FL]

18. They also oppose the GOP rat-fucking the courts, I suspect.

You said "You really want Biden to waste his time on this when the country is trying to avoid an economic depression?"

I said yes.

[BeyondGeography]

19. My answer is he probably sees this as a waste of time to begin with

Based on his stated position.

[Gore1FL]

21. You asked DU, not Biden. nt

[Mr.Bill]

11. If the SC strikes down Roe v Wade, gay marriage,

voting rights and allows voter suppression, job discrimination, religion in schools, etc., it will start to look like the #1 issue to most people.

[RhodeIslandOne]

26. So we've los the Supreme Court for 20 years?

Thanks, good to know.

[BeyondGeography]

30. Hate to break it to you

But we’ve lost it already for at least that long. Which is why we should never have found ourselves in this position to begin with. But that’s the topic for another thread:

https://www.democraticunderground.com/100214100503

[LiberalFighter]

33. Biden doesn't have to do this all by himself.

[kurtcagle]

4. There's another, similar rationale

Right now, even at the Appelate level where you may have as many as twenty nine judges (ninth circuit court, for instance), a typical en banc court is prescribed at eleven judges. One of the central problems that the SC currently faces is that its court load is horrendous, as it is the choke point through which most major judgments end up being heard by. What I suspect would make reasonable sense (though will of course be opposed by Republicans) is that fifteen judges are appointed, but that a case can only be heard if a quorum of 11 of those judges are present. Judges are appointed for life, but this way, should a judge be in the hospital or otherwise be unable to hear a case, the court can function as an independent entity with fewer than the full fifteen.

The other recommendations would require a constitutional amendment:

* A president can recommend no more than two judges per term. This means that it may take a few years for a full court to be established, but it also keeps any one president from shifting the ideological balance of the SC significantly.
* The Senate must vote on any candidate within sixty days of their submission. Should it fail to do so, then the right to vote on the candidate passes to the House. If after 120 days, neither Senate nor House have voted on that candidate, then the candidate will be automatically approved.
* A president who has been impeached forfeits the right to appoint Supreme Court Justices.

[bucolic_frolic]

5. That really cuts to the chase

it's call legitimacy. Very intangible, even undefinable, but you know it when you see it.

[ooky]

7. Possibly, but we have an election to win first.

If we can sweep the House, Senate and White House then that discussion picks up steam. For now I think Senator Schumer's comments about that were good, and we should just leave it at that and focus on doing whatever we have to do to win this election. Trump is going to try to turn his losing campaign messages toward the Supreme Court. M$M will help him. We need to try to steer the narrative back toward our messages, such as his plan to end social security payments in 2023, and the almost certain destruction of the ACA now on the horizon. Healthcare was a winning message in 2018 and should be again. Social Security is a huge issue if people really believe they are at risk of losing it from a second Trump term. As far as SCOTUS we need to capitalize on what it all means to womens' rights and human rights and try to make the issue work for us to get our voters motivated, which can very possibly work well for us, but I feel there are going to be more voters on both sides now, so GOTV just got even more important than it already was.

[yaesu]

12. yep, and we should but RBG is on record saying she is against packing the court. I think we should

use any power we have to undo the fascists dirty war.

[bucolic_frolic]

22. We wouldn't be packing the Court, we'd be unpacking the Court.

Bringing bipartisanship and fairness back to the process as well as the result.

But yeah, we have an election to win first. Biden, and the Senate. And nothing brings evangelicals to the polls like Supreme Court vacancies because it's how they work their hatred of "others".

[liberalla]

14. "a justified gesture of constitutional restoration, not usurpation"

That works just fine for me - I like it!

[Miguelito Loveless]

15. Nope. I want 15 justices

and Kavanaugh impeached.

The time for half measures has past. I want them to have to build a whole wing on Riker’s Island just for Trump criminals.

[Scruffy1]

16. The "court packing" plan was simple politics.

It was never a serious plan and all the garbage that has become accepted by the public is just plain bad history. FDR never even talked to the House Leader about it. It was just his way of sending a message of what could happen if the Supremes kept on with their BS. They had already become a bad joke with their Lochner era BS. It worked. By 1940 the Supreme egomaniacs had reversed themselves on most of the important issues of the day such as child labor laws and working hours
Roosevelt was a master politician and gradually the bunch of old white guys who lived in a bubble came to realize how out of step they were and started thinking about their legacy. I think it was a stroke of genius.

[OhioTim]

17. Even More

When you have a small number, like nine, any single appointee can change the court. With a larger number, say 21, each justice has less power and we wouldn't see the craziness when an opening happens.

[lastlib]

24. .

https://democraticunderground.com/100214099825

Expanding the Court might actually DE-politicize it. There would be a big fight over doing it, but once that passes, it would be extremely beneficial.

[SunSeeker]

20. And to the hand-wringers who say this politicizes the Court, well it already IS politicized.

Bush v. Gore put the nail in the coffin of an apolitical SCOTUS. They are a thoroughly partisan branch of government.

[Quemado]

23. Raise the number to 21 by adding 12 more justices.

The 12 justices would each be younger than 50 years old, thereby ensuring that they will be in place for at least 25-30 years.

Adding 12 non-conservative justices to the current three on the bench (Breyer, Kagan, Sotomayor) would result in a a 15-6 advantage which should last a few decades.

[andym]

25. Until even later when the GOP can get back control of House/Senate + Presidency

which hopefully wouldn't be for a while-- and add to the court's numbers again.
Might be several hundred justices on the SC before the US is done.

This is satirical at the moment-- but I think there is no choice but to change the number of court members if the Democrats can take back power., but don't be surprised if something like this scenario becomes reality.

[Nasruddin]

28. Turnabout

Why would any court packing scheme work out? The next time the Senate changes hands - & it would be unstable in Democratic hands until some more equitable apportionment of membership by population takes place - the Republican majority would just pack it higher with a new slate.

I am personally more aligned with (some) conservatives on this issue. The Supreme Court is just a weird, unaccountable, unelected legislature (increasingly elderly). And it's never solved any problems, no matter which side you're on. If you disagree with these premises then you'll probably not like what follows. You may not agree that it acts like a party-based legislature. You may argue that it does solve problems (until it doesn't, & the system breaks down into civil war - well ok).

Why not revisit the Judicial Act of 1789, & reduce it to 0 members? That would be the best. And that would definitely depoliticize it.

If you can't do that, why not reduce it to 1? The Chief Justice is the only constitutionally named officer. Or, let him or her pick 8 more justices every year from the pool of Federal judges. One from each district. Expand the pool by 8 to compensate. One term and one term only, every year a new set.

If it's still possible to reduce the purview of the SC, then do that too. To an absolute minimum.

If you can do something about depoliticizing the federal judge system too, by all means. Since terms are probably needed a constitutional amendment probably required.

[RicROC]

36. great idea!

"The Chief Justice is the only constitutionally named officer. Or, let him or her pick 8 more justices every year from the pool of Federal judges. One from each district. Expand the pool by 8 to compensate. One term and one term only, every year a new set."

What a great idea! An idea I have not heard at all but find it to be quite appealing. If to some people, it would seem to be too much turnover, maybe change the the years of service to be two years, selected on the odd years between general elections.

[NNadir]

29. If Moscow Mitch pulls this shit, with his decidedly unconservative contempt for the Constitution...

...this would be absolutely appropriate.

[CaptainTruth]

32. My question is, if we add justices, where does it end?

We can add justices now & Republicans will just add justices the next time they (God forbid) control the government, & knowing the bastards they'll add twice as many as we added. And then we add more & then we end up with ... a few dozen justices? Where does that end?

Edit to add:
I say this because we all know damn well that if we do it they will do it twice as much.

[JGug1]

38. They'll do it

Let's deal with the existential problem. The majority of
Americans do not support the republican agenda. Maybe the Party will change.

[LiberalFighter]

34. 6 Justices in 1790 when population was just under 4 million. nt

[JGug1]

35. Supreme Court

If two justices were added, conservatives would still have a majority. 13, as someone else pointed out, is not a god number for people who believe it is unlucky. Let' go to 15.

[wnylib]

37. If Trump gets his replacement for RBG in time

to rule on election results, this entire thread might be moot. A 6-3 court might put Trump and other R candidates into office.

This is NOT intended to be a doomsayer post. Never give up and never stop fighting. But be prepared for what could happen and think ahead on how to handle that possibility.

Our best bet is a blue landside because then the public would not tolerate SC BS rulings on the election outcomes.

But, some House and Senate races look too close for a landslide. Those are the ones that the court will focus on giving to the R's. We will need to fight those cases in the media as well as in the courts.

[Alpeduez21]

39. A lot of comments here stating Biden isn't for it

It's not up to Biden it's up to congress and Biden just signs it. I doubt he would veto it if it passed congress.

While we're on the topic, I think expand the courts, all of them and then limit the terms. No lifetime appointments. You get twelve years or eighteen and stagger the retirements. Every president will always be making appointments. That would even the playing field.

[Captain Zero]

40. Or reduce it to 7

With the longest serving one and the newest one going off ? Not sure who that gets at the top end...