Let’s say the Democrats wind up with, say, a 53-47 Senate majority after this election - the same majority Republicans currently have. And they have a slightly expanded House majority - let’s say, 240 House seats.
Assuming Biden agrees to pack the Supreme Court, how many Congressional Democrats would, or wouldn’t, go along with the plan? Red-state D’s would presumably be under heavy pressure not to approve such legislation. Even a few blue-stater Democrats may be reluctant. In the Senate, a 50-50 tie would be enough to get it through since Vice President Harris would be there to break the tie but what are the odds of it falling short?
(Note: This is not a debate over whether packing the Court is a good thing or not, only a thread about whether it is possible to pull off or not .)
You’re framing this as though it’s a Democrat dirty trick. It’s not, it’s to neutralize Republican dirty tricks, so I think it would depend on exactly what the Republicans have actually done, and what they try to do, and therefore what is necessary or justified as a response.
If, for example, Barrett is confirmed, and the SC strikes down the ACA in November in the middle of the pandemic, maybe some Republican senators would endorse packing the Court…
It depends on a few things. Assuming Barrett is confirmed, and assuming the ACA is overturned, then I think it would be quite likely. I think the Democratic (and possibly the public and bipartisan) rage could well be overwhelming such that it could be impossible not to expand the size of the court.
There was this guy FDR that tried it. As popular as he was it did not work out well for him politically. I think that politicians would remember how that turned out and there is no way it passes the Senate.
So, let’s ignore what the Republicans have actually done, and let’s pretend that the Democrats would do something the Republicans wouldn’t hesitate to do if they felt the need to do so?
I’m sorry, but taking marching orders from The Powers That Be is a Republican thing. Too much actual independence amongst the Democrats for this scheme to work.
Yes, this was the question. Pelosi once compared leading Democrats to herding cats, and so even Democratic control of both houses wouldn’t necessarily guarantee enough votes to pack the Court.
If somehow the ACA survives, then I’m not sure if there will be enough support to do this. But there may be enough for one of the other proposals – like Ro Khanna’s, which (IIRC) functionally makes SCOTUS term-limited without requiring a Constitutional amendments.
Nope and nope. FDR had legislation introduced. It never made it out of committee, so “tried it” is overstating the reality.
Despite some conservative opinion, it worked extremely well nevertheless. Justice Owen Roberts, an opponent of progressive legislation, shifted his vote to support a minimum wage law. Did he do so because he suddenly realized he was wrong on the law or because he read the writing on wall? We don’t know for sure, but I know which way to bet.
Did the conservatives in Congress dislike the move? Of course. But also of course conservatives are on the wrong side of every issue, so except for being a pointer on what not to do, what difference does their opinion make?
Will court packing pass the Senate? I hope it’s not necessary. But the fact that there will be a political stink is not the reason. There will be a political stink about absolutely everything the Democrats do, so one more is hardly an issue. The only reason to want to avoid it is that the Democrats too often lack the spine to play as dirty as the Republicans do every day and that’s painful to watch. If they grow spines and realize that crushing the Republicans in every conceivable way is the only possible option for a decent future, then it will be a delight.
Different times, obviously. I’d assume any new effort will be part of a greater package of reforms and presented as restoring some sort of bipartisan consensus and accountability to the Supreme Court rather than “lol we in power now, fifty new Democratic justices!!!”. Given the past few confirmation processes, that could prove fairly popular.
A package including term limits (which would likely require an amendment) might even gain some Republican support if the alternative is just straight court packing.
How would this work? I saw an op-ed today also suggesting term limits can be done legislatively (without an amendment) but without further comment on how. Do you have a reference with further explanation? (Was the idea about just re-assigning justices out of SCOTUS and onto some other lower court? Is that doable?)
That article says nothing to address the question: How would it be constitutional? I only know that idea of shifting judges down to another court from Saint_Cad’s remark just above and another similar remark someone posted on this board a few days ago. Is this an idea that’s making the rounds in Dem circles?
It’s known as the switch in time that saved nine. My impression has always been that it would have been expected to pass had the Supreme Court not stopped striking down all progressive legislation – which was passing, obviously.
Although, it turns out that it may not have prompted the jurisprudential change. But it became unnecessary, in any event.
First they would have to nuke the legislative filibuster. As of July 4 Senate Democrats opposed that. One is Jones from Alabama who is facing an election this year against someone who is not Roy Moore. That still leaves three. A lot of other Senators have not openly supported the idea and might not support it. Not even Shumer has come out in favor of nuking the legislative filibuster.
I think the issue is likely dead just based on not having votes to remove the filibuster.
Doug Jones may either be the most cooperative or uncooperative of all Democratic senators. If he is reelected, he could either refuse to go along with court-packing (since doing so would destroy him in a red state, Alabama) or he might go along with it, reasoning that he can’t possibly get reelected in 2026 anyway and he might as well wreak as much damage on the GOP as he can.
Of course, if Jones loses this November, all of that is moot.