Honestly, a newly conservative court overturning the ACA could be a blessing. If there’s one “upside” to this, it’s that John Roberts will no longer be able to save the conservative majority from signing off on whatever politically disastrous, whack-a-doodle rulings they want to. As the fifth conservative vote, he could force opinions that made steady progress toward conservative goals without upsetting the apple cart so egregiously as to generate a political backlash. He’s been particularly adept at this in rulings on the ACA, chipping away at it while not throwing the health care market into chaos.
But if the Court throws out the entire ACA in one fell swoop – depriving millions of Americans of their health insurance, blowing holes in insurers’ financial models, eliminating protections for the sick – people will be up in arms and demand that Congress fix it. If (big if) Biden wins and Ds take back the Senate, they can pass whatever health care plan they want and say that the Court forced them into it. If Rs in the Senate try to filibuster, Democrats can point to the health care havoc and Republican obstructionism as all the reason they need to eliminate the legislative filibuster.
Would the Court then strike down the new health care law? Maybe, but it’s always possible another opening could come up on the court in the years it would take the matter to work through lower courts. And even conservative justices may blanche at tearing up peoples’ health care twice in a few years. And if they do, well that’s a good case to make to the American people why the Supreme Court is in need of reform.
Being a minority liberal court does not de-legitimize it.
What McConnell was bad for the stability of the country but he was acting within his constitutional power. If you don’t like it, maybe you should focus more on appealing to the broadest electorate and less on electing the most woke person a constituency will tolerate.
Half the people on this board are to the left of RBG.
Justices are less predictably in synch with partisan interests than actual elected politicians. See Roberts on ACA and recognizing discriminating against people based on sexual identity and preference as “sex” discrimination.
You ever notice how former politicians frequently sound a lot more reasonable than they did when they were active politicians?
But regardless of whether or not this is true reliably enough to make a huge difference, it is undoubtedly true that the stakes would diminish if there are 27 seats instead of 9. It would become less important to get the younger most partisan ideologue you can find.
I don’t know where the sweet spot is but clearly more justices mean the nominations become less important and it would become less important to nominate ideologues, the justices would be come less reliably partisan and this would lead to a more independent judiciary.
The fact that reading simple sentences in a constitution is a function of partisan ideology is much sadder, yet completely unsurprising, than folks thinking that expanding the number purely out of sour grapes won’t come back to bite them on the ass.
Is it possible for one side - Democratic or Republican - to pack the Court in such a way that it couldn’t ever be done back in return? Using Cold War analogies, like an all-out nuclear first strike so devastating that the other side never recovers to do a retaliatory second strike.
So for instance: Suppose Biden and a Democratic Senate expand it to 39 seats, packing in thirty new diehard liberals. Such a Supreme Court would be so lopsided in favor of Team Blue that they could then rule any subsequent Republican attempt down the road to expand the Supreme Court unconstitutional.
In other words, "Screw you, and in such a way you can’t screw me back."
(McConnell and the R’s would technically be capable of such a nuclear first strike too, if they struck first.)
No. They absolutely can’t. It would take a constitutional amendment and that definitely won’t fly. Furthermore, folks forget the nature of institutional power. Once an institution becomes they way to gain power the people that institution attracts changes which in turns changes that institution. Let’s say that the Democrats or Republicans were the only viable party. Do you honestly think that the power hungry would be content to be members of a non viable minority party? No. They’d change party allegiance and work within the system to change that party.
How would Biden and the Democrats expanding the Supreme Court to 11 or 13 justices be something that only needs Congressional legislation passed, but expanding it to 39 would require a Constitutional amendment? It’s only a difference of mere numbers.
No. I’m saying it would take a constitutional amendment to make it practically impossible for the tit for tat packing to occur. You are correct, nothing would stop retaliation. Which is why is one of many reasons why it’s such a stupid idea.
Having quickly read this thread, I see no mention of the other popular notion of how to fix the Supreme Court: Limited time terms for each justice. Yes, this would require a Constitutional amendment.
Each justice should be seated for 18 years, and they cannot be re-appointed. (That prevents them from biasing their opinions with a view towards getting a second term. ALL justices are ALWAYS lame ducks.) The terms should be on a schedule such that one justice comes up every two years, so every presidential term gets two new justices.
One of the important but rarely mentioned arguments for having lifetime terms for judges is stability. The White House, the House of Reps, and the Senate change hands regularly, with resulting great swings in the flavors of legislation they enact. But the Supreme Court, with its very slow changing of hands, tends to hold fairly steady over long periods of time. This serves to tamp down the volatility in governing that Congress and the President would create.
So that is why the justices on the Court need to have lengthy terms, even if not life-long terms, and why it’s important to have slow turn-over in the Court.
As far as the SCOTUS, things couldn’t be worse than they are now for the Democrats (if McConnell gets his way). So there’s no incentive not to pack the court. I still don’t get how you think this could “backfire”. The worst has already occurred.
Let’s say Trump and Biden get asked at one of the debates about expanding the number of Justices on the Supreme Court; how would you advise Biden to reply?
And — just to be clear — if he’s then called out on that, and explicitly pressed for a clear answer rather than a vague one, then in your opinion he should, what, again do his best to be vague and again do his best to change the subject?
"An extreme action like expanding the court must never be taken likely. Only in extreme circumstances would I even consider supporting expanding the court. Hopefully we’ll never see such circumstances, but I’ll leave all options on the table if Trump and McConnell act in a corrupt fashion ". Or something like that.
I agree that this is much the preferable way to “fix” the court. Fixed term appointments, with a seat coming open on a regular rotation, would greatly lower the stakes of any individual confirmation.
One interesting proposal I saw to get around the Constitutional provisions points out that nowhere are “lifetime appointments” mentioned in the Constitution. The exact wording in Article III is that, “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour. . .” That’s been interpreted to mean that the only way to remove a Supreme Court justice against his or her will is through impeachment (presumably for “bad behavior”). But the proposal would move Justices at the end of their term into senior status at full pay. They would still be judges, and could sit on lower courts or even temporarily fill in for a vacancy on the Supreme Court until it could be filled.
Would this fly? Who knows? But I much prefer this option to tit-for-tat expansions of the Supreme Court.
They already have policies more palatable to the majority of the country. That’s why Republicans have been openly undermining the electoral system for years. It’s why they’ve been throwing hundreds of thousands of legitimate voters off the rolls. It’s why they have been working to restrict access to voting in every way possible to traditionally left-leaning demographics, including spiking ACORN with false accusations, cutting early voting, cutting back on polling stations (and the number of polling booths) in Democrat-heavy neighborhoods, resisting court orders to redistrict where illegal levels of gerrymandering have been confirmed and blocking the reinfranchisement of felons. It’s why they have been steadily removing protections against hacking of voting machines while working directly with a foreign power which has already been shown to be willing and able to hack voting machines, and it’s why they’re currently destroying the Post Office to undermine postal voting. It’s why they and their fellow travellers employ troll farms on a grand scale to spread misinformation. And it’s why multiple Republicans, including McConnell, have admitted that the more people who vote, the harder it is for Republicans to win.
But if you prefer to blame the Democrats for that, well, we can’t stop you.
Back on topic: I genuinely don’t see how expanding the Supreme Court
Once that can of worms is opened, it will make the sort of partisan skulduggery Republicans are currently up to look like a walk in the park.