Expand the Supreme Court?

My question with the court-expansion idea is, how do you stop it from becoming an ever-increasing cycle of expansion? Wouldn't Republicans simply expand the court when they took the Senate again? Then Democrats would expand it again...

I'm not necessarily opposed to the idea of adding justices, but that seems like step one of a two step plan, and I haven't heard what step two is.


Not sure what step two would be. In 1837 when the number of Justices was first set at 9 there were 242 members of the House and 52 Senators. Today there are 435 voting House members and 100 Senators.  The original number of Justices was roughly related to geography and the number of States. Perhaps there could be a formula for setting the number of Justices.


the expansion should be significant - maybe double the size, or triple it. It should be part of a reformation of the Supreme Court, so that random panels are selected for each case. If they just add two justices it would be an utterly wasted effort. With a big expansion, the Dems could even ask the R's to submit a list of potential candidates for some of the seats, so that it becomes more of a bipartisan effort.

Here's one approach

https://time.com/5338689/supreme-court-packing/

But even if it turned into a back and forth where each party adds new justices when they can, it would still be beneficial. The more justices there are, the less powerful each individual justice becomes, which is a good thing. The current structure of the court is a relic unsuited for a modern U.S.


STANV said:

Not sure what step two would be. In 1837 when the number of Justices was first set at 9 there were 242 members of the House and 52 Senators. Today there are 435 voting House members and 100 Senators.  The original number of Justices was roughly related to geography and the number of States. Perhaps there could be a formula for setting the number of Justices.

 Yeah, you'd need something along those lines, for a couple of reasons. One, it has to appear fair to most Americans rather than just a power grab. Republicans can get away with that for structural reasons (the skew of the Senate, the cohesive nature of their electorate), but Democrats can't. Casting a change in terms of something like ensuring proper representation makes it more likely they'd get enough support.

Two, whatever the rule was would have to be self-limiting in some way, and a formula is a good approach. That would force Republican retaliation to be a true escalation rather than a pure tit-for-tat. Yes, they might do that anyway once they took power again, but although Republicans have an edge Senate races they're still more likely than not to have pretty small margins where they can't afford to lose too many votes, and it'd be harder to hold all their members together with a "let's unilaterally expand the court" than with a "let's do exactly what the Democrats did last time."


I like the way the German constitutional court works. That court has two senates of eight judges each, where each senate has three chambers. Normally, cases are heard by a chamber composed of three judges.

What's interesting is that the Bundestag and Bundesrat each select eight justices. If we had a similar system, we would have a SC of sixteen justices, eight selected by the House and eight by the Senate.

Their system lets them handle many more cases than our en banc SC court can.

The court consists of two senates, each of which has eight members, headed by a senate's chairman. The members of each senate are allocated to three chambers for hearings in constitutional complaint and single regulation control cases. Each chamber consists of three judges, so each senate chairman is at the same time a member of two chambers. The court publishes selected decisions on its website and since 1996 a public relations department promotes selected decisions with press releases.[5]
Decisions by a senate require a majority. In some cases a two-thirds vote is required (§ 15 IV 1 BVerfGG). Decisions by a chamber need to be unanimous. A chamber is not authorized to overrule a standing precedent of the senate to which it belongs; such issues need to be submitted to the senate as a whole. Similarly, a senate may not overrule a standing precedent of the other senate, and such issues will be submitted to a plenary meeting of all 16 judges (the Plenum).

PVW said:

 Yeah, you'd need something along those lines, for a couple of reasons. One, it has to appear fair to most Americans rather than just a power grab. Republicans can get away with that for structural reasons (the skew of the Senate, the cohesive nature of their electorate), but Democrats can't. Casting a change in terms of something like ensuring proper representation makes it more likely they'd get enough support.

Two, whatever the rule was would have to be self-limiting in some way, and a formula is a good approach. That would force Republican retaliation to be a true escalation rather than a pure tit-for-tat. Yes, they might do that anyway once they took power again, but although Republicans have an edge Senate races they're still more likely than not to have pretty small margins where they can't afford to lose too many votes, and it'd be harder to hold all their members together with a "let's unilaterally expand the court" than with a "let's do exactly what the Democrats did last time."

No matter how fair you do it, the Republicans will go tit-for-that at the earliest possible opportunity. I wouldn't waste time and just seat 4 more justices immediately. The Republicans will then add a few more, and so on and so forth, essentially blowing up the SCOTUS. I'd rather have a blown up court than one that is stacked conservative for the next 40 years because they will do unprecedented harm to our country. Oh, and we need statehood for Puerto Rico and DC too, and get rid of the Electoral College.

One could argue that all of this is even more important than economic, domestic, or international policy. Because if we don't, they will just block or destroy any progress we can make on healthcare, systemic racism, gun control, the environment, women's rights, LGBTQ rights, income inequality, etc. The current administration clearly shows that it takes only a fraction of the effort to destroy something when compared to what it took to create something.


PR and DC should be states on the merits, even disregarding any other considerations. Admitting them as states wouldn't even involve any norm-stretching by Congress.


Opinion: Mitch McConnell is going to turn me into a socialist

...

"I've admired Vermont Sen. Bernie Sanders' focus on trying to level the economic playing field but have never considered voting for him -- I thought him to be too radical. I've long gotten New York Rep. Alexandria Ocasio-Cortez's blue collar appeal but have vehemently disagreed with her on policies, believing some of them would be taking us too far to the left."

...

"If they go through with this, I'm willing to sign up for whatever political extreme necessary to undo their damage. The thought of Democrats increasing the number of seats on the Supreme Court if they retake power once turned my stomach. Not anymore. That should be the first thing on their agenda if they maintain the House and retake the Senate and White House. You can't defeat your enemies by becoming like the enemy, we've long been told. But it's nonsensical to allow McConnell and those of like mind to pervert this democracy without a bare-knuckle fight, especially because we've already accepted too much."

...

"That's dangerous. That can't stand for long. If the Electoral College threatens to cement minority rule -- a nearly all-White party gaining outsized political power in a diversifying nation -- then it, too, must be abandoned."

...

https://www.cnn.com/2020/09/21/opinions/mcconnell-rushing-ginsburg-replacement-bailey/index.html


Biden has clearly indicated that court-packing is not going to happen. 


jimmurphy said:

Biden has clearly indicated that court-packing is not going to happen. 

I think this whole GOP push to ram through an RGB replacement is fundamentally going to change US politics and the role of the Senate in particular


basil said:

jimmurphy said:

Biden has clearly indicated that court-packing is not going to happen. 

I think this whole GOP push to ram through an RGB replacement is fundamentally going to change US politics and the role of the Senate in particular

 That's RBG.


Anyone like the idea of term limits? Not as an alternative, just because I don't see the sense of any office being lifetime. I've often expressed the wish for congressional term limits.


Dennis_Seelbach said:

basil said:

jimmurphy said:

Biden has clearly indicated that court-packing is not going to happen. 

I think this whole GOP push to ram through an RGB replacement is fundamentally going to change US politics and the role of the Senate in particular

 That's RBG.

Your are right, my bad. So now I googled it, and it turns out I wasn't the only one making that mistake


Morganna said:

Anyone like the idea of term limits? Not as an alternative, just because I just don't see the sense of any office being lifetime. I've often expressed the wish for congressional term limits.

 I'm not a huge supporter of term limits for elected office, but for non-elected offices (like SCOUTS seats) I think they have a lot to recommend them.


R BG CDS ODS? 

F U 8 M.


PVW said:

 I'm not a huge supporter of term limits for elected office, but for non-elected offices (like SCOUTS seats) I think they have a lot to recommend them.

I think you have to give up your Scout seat when you turn 18, but you can be an adult troop leader after that.   smile

It's a rough day for acronyms, I guess.  


Morganna said:

Anyone like the idea of term limits? Not as an alternative, just because I don't see the sense of any office being lifetime. I've often expressed the wish for congressional term limits.

 18 year terms, new Justice every two years, would make sense.

Lifetime appointments meant something different back in the 18th Century.


nohero said:

PVW said:

 I'm not a huge supporter of term limits for elected office, but for non-elected offices (like SCOUTS seats) I think they have a lot to recommend them.

I think you have to give up your Scout seat when you turn 18, but you can be an adult troop leader after that.  
smile

It's a rough day for acronyms, I guess.  

 lol


basil said:

Dennis_Seelbach said:

basil said:

jimmurphy said:

Biden has clearly indicated that court-packing is not going to happen. 

I think this whole GOP push to ram through an RGB replacement is fundamentally going to change US politics and the role of the Senate in particular

 That's RBG.

Your are right, my bad. So now I googled it, and it turns out I wasn't the only one making that mistake

 2 (or  more) wrongs don't make it right !


PVW said:

My question with the court-expansion idea is, how do you stop it from becoming an ever-increasing cycle of expansion? Wouldn't Republicans simply expand the court when they took the Senate again? Then Democrats would expand it again...

I'm not necessarily opposed to the idea of adding justices, but that seems like step one of a two step plan, and I haven't heard what step two is.

 Aaron Belkin, a poli-sci professor and think tank director, in an Atlantic interview basically arguing that it's not worth worrying about Republicans responding with their own court-packing:

This is perhaps the No.1 concern that’s been voiced, but it doesn’t
stand up to scrutiny. A couple problems with this: The first thing is
that the Court has already been stolen. If your wallet is stolen, you
don’t forgo efforts to recover it just because it might be stolen again.
It would probably take a generation—25 or 30 years—for the Democrats to
get the majority on the Supreme Court back. If the Republicans steal
the court, then the Democrats un-steal it. And if the Republicans steal
it again, then the Democrats un-steal it again. It’s much better to have
that zigzag than to just have unilateral surrender.

For people who are worried about Republican retaliation, court expansion is the safest way to protect democracy and the safest way to de-radicalize the Republican Party. The party has become completely unmoored from facts and reality. Progressives have a fantasy that thrashing the Republicans at the ballot box can de-radicalize them. That’s not true. The only way to de-radicalize the Republican Party is [for Democrats] to come back into office after the 2020 election and do three things: kill the filibuster, pass a democracy-reform bill, and expand the Court. If you unrig the system, the GOP will have to be de-radicalized at least a bit in order to win elections, and that is what will make the courts safe from Republican retaliation. They’ll be less radical as a party.

One weakness I see in this argument is that Republicans have an edge in the Senate, so it's not hard to imagine that they'd win back the chamber well before they de-radicalized.


PVW said:

PVW said:

My question with the court-expansion idea is, how do you stop it from becoming an ever-increasing cycle of expansion? Wouldn't Republicans simply expand the court when they took the Senate again? Then Democrats would expand it again...

I'm not necessarily opposed to the idea of adding justices, but that seems like step one of a two step plan, and I haven't heard what step two is.

 Aaron Belkin, a poli-sci professor and think tank director, in an Atlantic interview basically arguing that it's not worth worrying about Republicans responding with their own court-packing:

This is perhaps the No.1 concern that’s been voiced, but it doesn’t
stand up to scrutiny. A couple problems with this: The first thing is
that the Court has already been stolen. If your wallet is stolen, you
don’t forgo efforts to recover it just because it might be stolen again.
It would probably take a generation—25 or 30 years—for the Democrats to
get the majority on the Supreme Court back. If the Republicans steal
the court, then the Democrats un-steal it. And if the Republicans steal
it again, then the Democrats un-steal it again. It’s much better to have
that zigzag than to just have unilateral surrender.

For people who are worried about Republican retaliation, court expansion is the safest way to protect democracy and the safest way to de-radicalize the Republican Party. The party has become completely unmoored from facts and reality. Progressives have a fantasy that thrashing the Republicans at the ballot box can de-radicalize them. That’s not true. The only way to de-radicalize the Republican Party is [for Democrats] to come back into office after the 2020 election and do three things: kill the filibuster, pass a democracy-reform bill, and expand the Court. If you unrig the system, the GOP will have to be de-radicalized at least a bit in order to win elections, and that is what will make the courts safe from Republican retaliation. They’ll be less radical as a party.

One weakness I see in this argument is that Republicans have an edge in the Senate, so it's not hard to imagine that they'd win back the chamber well before they de-radicalized.

 Puerto Rico and DC


basil said:

PVW said:

PVW said:

My question with the court-expansion idea is, how do you stop it from becoming an ever-increasing cycle of expansion? Wouldn't Republicans simply expand the court when they took the Senate again? Then Democrats would expand it again...

I'm not necessarily opposed to the idea of adding justices, but that seems like step one of a two step plan, and I haven't heard what step two is.

 Aaron Belkin, a poli-sci professor and think tank director, in an Atlantic interview basically arguing that it's not worth worrying about Republicans responding with their own court-packing:

This is perhaps the No.1 concern that’s been voiced, but it doesn’t
stand up to scrutiny. A couple problems with this: The first thing is
that the Court has already been stolen. If your wallet is stolen, you
don’t forgo efforts to recover it just because it might be stolen again.
It would probably take a generation—25 or 30 years—for the Democrats to
get the majority on the Supreme Court back. If the Republicans steal
the court, then the Democrats un-steal it. And if the Republicans steal
it again, then the Democrats un-steal it again. It’s much better to have
that zigzag than to just have unilateral surrender.

For people who are worried about Republican retaliation, court expansion is the safest way to protect democracy and the safest way to de-radicalize the Republican Party. The party has become completely unmoored from facts and reality. Progressives have a fantasy that thrashing the Republicans at the ballot box can de-radicalize them. That’s not true. The only way to de-radicalize the Republican Party is [for Democrats] to come back into office after the 2020 election and do three things: kill the filibuster, pass a democracy-reform bill, and expand the Court. If you unrig the system, the GOP will have to be de-radicalized at least a bit in order to win elections, and that is what will make the courts safe from Republican retaliation. They’ll be less radical as a party.

One weakness I see in this argument is that Republicans have an edge in the Senate, so it's not hard to imagine that they'd win back the chamber well before they de-radicalized.

 Puerto Rico and DC

 Helps, but not enough to completely neutralize the advantage.

---

ETA quote from my second link:

Even if D.C. or Puerto Rico were states (as some on the left advocate),
Republicans would still have the advantage. It’s true that the
statehoods of D.C. and Puerto Rico would help Democrats close the
small-state gap, but even if both were states and elected two Democratic
senators, Republicans would still have had a two-seat majority in 2019,
while only representing 48 percent of the population.

PVW said:

basil said:

PVW said:

PVW said:

My question with the court-expansion idea is, how do you stop it from becoming an ever-increasing cycle of expansion? Wouldn't Republicans simply expand the court when they took the Senate again? Then Democrats would expand it again...

I'm not necessarily opposed to the idea of adding justices, but that seems like step one of a two step plan, and I haven't heard what step two is.

 Aaron Belkin, a poli-sci professor and think tank director, in an Atlantic interview basically arguing that it's not worth worrying about Republicans responding with their own court-packing:

This is perhaps the No.1 concern that’s been voiced, but it doesn’t
stand up to scrutiny. A couple problems with this: The first thing is
that the Court has already been stolen. If your wallet is stolen, you
don’t forgo efforts to recover it just because it might be stolen again.
It would probably take a generation—25 or 30 years—for the Democrats to
get the majority on the Supreme Court back. If the Republicans steal
the court, then the Democrats un-steal it. And if the Republicans steal
it again, then the Democrats un-steal it again. It’s much better to have
that zigzag than to just have unilateral surrender.

For people who are worried about Republican retaliation, court expansion is the safest way to protect democracy and the safest way to de-radicalize the Republican Party. The party has become completely unmoored from facts and reality. Progressives have a fantasy that thrashing the Republicans at the ballot box can de-radicalize them. That’s not true. The only way to de-radicalize the Republican Party is [for Democrats] to come back into office after the 2020 election and do three things: kill the filibuster, pass a democracy-reform bill, and expand the Court. If you unrig the system, the GOP will have to be de-radicalized at least a bit in order to win elections, and that is what will make the courts safe from Republican retaliation. They’ll be less radical as a party.

One weakness I see in this argument is that Republicans have an edge in the Senate, so it's not hard to imagine that they'd win back the chamber well before they de-radicalized.

 Puerto Rico and DC

 Helps, but not enough to completely neutralize the advantage.

---

ETA quote from my second link:

Even if D.C. or Puerto Rico were states (as some on the left advocate),
Republicans would still have the advantage. It’s true that the
statehoods of D.C. and Puerto Rico would help Democrats close the
small-state gap, but even if both were states and elected two Democratic
senators, Republicans would still have had a two-seat majority in 2019,
while only representing 48 percent of the population.

 I'm not getting the math here. Two Dem senators? Shouldn't that be four?


drummerboy said:

PVW said:

basil said:

PVW said:

PVW said:

My question with the court-expansion idea is, how do you stop it from becoming an ever-increasing cycle of expansion? Wouldn't Republicans simply expand the court when they took the Senate again? Then Democrats would expand it again...

I'm not necessarily opposed to the idea of adding justices, but that seems like step one of a two step plan, and I haven't heard what step two is.

 Aaron Belkin, a poli-sci professor and think tank director, in an Atlantic interview basically arguing that it's not worth worrying about Republicans responding with their own court-packing:

This is perhaps the No.1 concern that’s been voiced, but it doesn’t
stand up to scrutiny. A couple problems with this: The first thing is
that the Court has already been stolen. If your wallet is stolen, you
don’t forgo efforts to recover it just because it might be stolen again.
It would probably take a generation—25 or 30 years—for the Democrats to
get the majority on the Supreme Court back. If the Republicans steal
the court, then the Democrats un-steal it. And if the Republicans steal
it again, then the Democrats un-steal it again. It’s much better to have
that zigzag than to just have unilateral surrender.

For people who are worried about Republican retaliation, court expansion is the safest way to protect democracy and the safest way to de-radicalize the Republican Party. The party has become completely unmoored from facts and reality. Progressives have a fantasy that thrashing the Republicans at the ballot box can de-radicalize them. That’s not true. The only way to de-radicalize the Republican Party is [for Democrats] to come back into office after the 2020 election and do three things: kill the filibuster, pass a democracy-reform bill, and expand the Court. If you unrig the system, the GOP will have to be de-radicalized at least a bit in order to win elections, and that is what will make the courts safe from Republican retaliation. They’ll be less radical as a party.

One weakness I see in this argument is that Republicans have an edge in the Senate, so it's not hard to imagine that they'd win back the chamber well before they de-radicalized.

 Puerto Rico and DC

 Helps, but not enough to completely neutralize the advantage.

---

ETA quote from my second link:

Even if D.C. or Puerto Rico were states (as some on the left advocate),
Republicans would still have the advantage. It’s true that the
statehoods of D.C. and Puerto Rico would help Democrats close the
small-state gap, but even if both were states and elected two Democratic
senators, Republicans would still have had a two-seat majority in 2019,
while only representing 48 percent of the population.

 I'm not getting the math here. Two Dem senators? Shouldn't that be four?

 Yes, current ratio is R:53 / D:47. If PR and DC elected two Dem senators each (for a total of 4) the ratio would be R:53 / D51, so still a 2 seat majority (instead of the current 6 seat majority)


basil said:

 Yes, current ratio is R:53 / D:47. If PR and DC elected two Dem senators each (for a total of 4) the ratio would be R:53 / D51, so still a 2 seat majority (instead of the current 6 seat majority)

 but it would take 51 Democratic senators to accomplish that, which means the resulting ratio would be 55-49.


ml1 said:

basil said:

 Yes, current ratio is R:53 / D:47. If PR and DC elected two Dem senators each (for a total of 4) the ratio would be R:53 / D51, so still a 2 seat majority (instead of the current 6 seat majority)

 but it would take 51 Democratic senators to accomplish that, which means the resulting ratio would be 55-49.

 Or 50 + Kamala, I would love rubbing it in their face like that


Morganna said:

Anyone like the idea of term limits? Not as an alternative, just because I don't see the sense of any office being lifetime. I've often expressed the wish for congressional term limits.

 Just saw this.

https://www.msn.com/en-us/news/politics/house-democrats-to-introduce-bill-setting-18-year-term-limit-for-supreme-court-justices/ar-BB19qCPn?ocid=msedgdhp



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