And then when a few years later the Republicans take back control, determine, without a hint of irony, that saving the unborn falls within the powers of the federal government and so a federal ban on abortion is constitutional.
Genuine question for anyone who might know:
If congress passes a law that limits state restrictions on abortion, and a state continues to enforce its now illegal abortion law and gets sued for it, what’s to stop the federal courts from saying “there’s nothing we can do, it’s not our jurisdiction” and either just letting the state law stand, or leaving it to a state court ruling that may have gone in favor of the law?
“Dramatic plans” are pretty much always strikingly unpopular when they’re being worked on, so, probably none of it. That’s not a reason not to do big things if they’re necessary, but it sure is a reason not to draw attention to a plan that you can’t actually enact.
Part of “acting like a leader” is the wisdom to refrain from making useless gestures that lead people to ridicule you. Biden has no authority whatsoever over what any member of Congress does.
Two of the most activist conservative members of the Supreme Court—Alito and Thomas—are 72 and 74 respectively, with highly conservative but less prone to making radical reversions to precedent Roberts being 67. Statistically, odds are good that at least two of these three members will retire or die in the next decade. Of the liberal contingent, only Sotomayor (68) has a reasonable chance of retiring in that period. On the other hand, ‘packing’ the Supreme Court would require adding four new seats and then electing to them four reasonably young non-conservative justices in order to prevent there from being a conservative majority or permanent split.
The likelihood of being able to make that happen before the 2022 midterms or (assuming the Democrats manage to somehow maintain their just-barely-a-majority in the Senate for two more years) the 2024 presidential election is, to put it charitably, not good, whereas if even two of those four new hypothetical seats is another highly conservative justice—say, Amul Thapar, Noel Francisco, or Paul Clement—the conservative majority may remain for decades regardless of other changes in composition.
The argument for expanding the Supreme Court and attempting to “pack” it with liberal justices is one of those things that seems expedient in the heat of the moment but may have even more dire consequences in the long term if the plan doesn’t go exactly how advocates anticipate, and thus far, nothing has gone to plan for Democrats since the beginning of this century. When you are at the bottom of a hole, the first lesson is to stop digging.
Stranger
And since the Supremes have zero legal enforcement power, it may be just easier to ignore the rulings. Sotomayor warned back in December that tossing out the landmark rulings establishing abortion rights would tarnish the court’s reputation and open the floodgates to other challenges to well-settled law.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible," she said, while questioning Mississippi Solicitor General Scott Stewart.
So, what happens when the states start ignoring SCOTUS and start implementing gun laws that have been overturned by them?
How is SCOTUS going to enforce its gun ban ban?
Presumably, convictions obtained under a state’s laws that SCOTUS deemed unconstitutional would be overturned on appeal.
How will SCOTUS force a state to give back the guns it confiscated “unconstitutionally”, or prevent a state from shutting down a gun store?
How will SCOTUS get someone out of state prison when they fecklessly claim that the state doesn’t have the right to incarcerate them?
SCOTUS has powers because the govt institutions respect the powers that SCOTUS bestowed upon itself. I actually prefer it that way, in fact. But if SCOTUS is no longer going to act in a respectable way, then it doesn’t need to be treated with respect and can be safely ignored as though they were yelling at clouds.
I prefer the impeachment process. Maybe all 9 of them because they’re all political hacks. It has the same major problem as expansion, the other side isn’t going to cooperate since they have a solid majority now.
So the result is now clear, the recent decision on abortion will become as notorious as the Dred Scott decision. We never got things cleaned up after that one, and over 150 years later it is integral to the makeup of the court. Even if the Union holds, our status as the world’s champion of freedom will continue to degrade. Let us hope the free nations of the world we once inspired can hold up the dream for a while.
While it is true that the Supreme Court cannot enforce its decisions in any direct way, by striking down law and precedent they allow states to act as they will without any restraint by the federal government. This is, of course, what conservatives with their concept of “states’ rights” desire. “Packing” the court in a way that is widely perceived as illegitimate isn’t going to do anything other than bolster certain states into just ignoring the federal courts entirely.
Anyone who believes that the federal court system and the Supreme Court in particular is the stalwart fortification that is going to hold back the advancing tide of proto-fascism needs to take a look at the judiciary of the Weimar Republic and how it facilitated the rise of Nazism.
Stranger
That would only work, if it works at all, when the court forbids a government entity from directly doing something. For a lot of stuff (like abortion), the whole point is that lots of entities wanted to do something and the court said yes. And the government enforces a lot of stuff through the courts; if the court rules that the Widget Regulation Agency can’t enforce Regulation XYZ, which it enforced by collecting fines via civil suits, a widget company can happily violate that regulation in the knowledge that the regulators are now totally toothless.
I’m perfectly well aware that this has almost no realistic chance of passing in the current Congress, and that the political ramifications of doing so are uncertain.
It just seems to me that this is like the argument about whether the Democrats should have bothered to impeach Trump again with a week left in his term. At a certain point, you just have no choice but to put political calculations aside. When a President blatantly violates the Constitution, you do your best to impeach him, not because you’re going to successfully remove him from office but because if you don’t, why bother even having a Constitution?
When your neighbor starts rolling tanks across your border and bombing your cities, you declare war on him. Not because the declaration is going to stop the tanks, but because failure to do so tells the world that you’re either too stupid to notice you’ve been invaded, too apathetic to care, or too scared to risk doing anything that might further anger the people who are already trying to kill you.
The problem is that except among the converted expanding the supreme court is not popular, it barely breaks 50% even among those who support abortion rights. Sure there are times that you need to take an action that is doomed to fail to send a message, but only if sending that message supports your cause. Expanding the supreme court makes it look like the Democrats care just as little about the historical democratic norms of a civil society as the Republicans. It feeds perfectly into the “both sides are the same” narrative. Given the desperate straights in which we find ourselves it probably would be worth the political fallout to try to expanding the supreme court if it could work. But trying and failing is the worst of both worlds, we would suffer all the political fallout without any actual gains.
The global war equivalent of this would be like Ukraine announcing their intention to launch bombing raids on civilian targets in Russia, knowing that such attacks would fail. Not only would it not hurt Russia but Ukraine would lose the moral high ground.
…you haven’t correctly identified the problem.
Is packing the court unpopular now? Sure.
Will the first thing the Republicans do when they retake the Senate, the House and the Presidency be pack the court?
Yep.
There is an existential threat to American democracy. And it will take extraordinary measures to stop a rapid decline into Christian white supremacist rule. It starts with 1) recognizing that this threat exists, then 2) deciding to do something about it.
Unfortunately the Democrat leadership hasn’t proceeded beyond step 1) yet. So they are still guided by “focus-testing” that has convinced them that using labels like Ultra MAGA are good ideas that will win them votes.
And if you can’t get past step 1) , then you are never ever going to be able to “decide to do something about it.”
If the Supreme Court continues to legislate from the bench, and if they continue to turn the fabric of American society upside down at a whim, and if the only hope of rebalancing the courts is to pack them with left-leaning partisan judges, then it would be incumbent on the administration to make that case to the American people.
Is packing the courts unpopular? Sure. Because the Republicans have spent years decrying it. And the Democrats have essentially taken it off the table.
The polls are exactly in line with what one would expect. Its a self-fulfilling prophecy. If one side constantly demonize’s it and the other side never advocates for it then why would the polling show anything different?
This isn’t an argument in favour of packing the court. It’s an argument against using polling and focus-groups as a reason to avoid taking bold action to protect democracy. Many popular ideas started out as unpopular ones. It takes effort to turn things around.
The Democrat strategy needs to be bold. The Republican Party is now the party of hypocrites, of Christian white supremacy, of conspiracy theorists and trolls, they are a danger to democracy and don’t deserve to have power and the Democrats do a disservice to their constituents every time they pretend that “everything is normal.”
As a citizen of the world, I simply do not want the party of Christian white supremacists with delusions of rapture to take control of the world’s most powerful fighting force and nuclear arsenal. As bad as everything is right now: things have the potential to get so much worse.
The reality though, IMHO, is that this discussion is pretty much academic at this point. I think it’s all over. The Democrats simply aren’t doing enough.
And how does giving them political cover to take this move help us? Listen if we had a chance of succeeding I might say go for it. But until the Dems get a senate that doesn’t require Manchin and Sinema’s vote, shooting off political capital for no gain is bad strategy.
It’s a weird situation, because your OP is right that if the court rules in favor of the independent state legislature theory, there really is no solution but to pack the court and every election you wait is just waiting for the election when the GOP pulls the trigger and actually throws out the results and the courts uphold the coup - realistically, you have to assume that they’ll never really let you win to enough of a degree that you could actually respond meaningfully.
Unfortunately packing is one of those “if you come at the king you best not miss” type situations. And with the senate failing to even be willing to nuke the filibuster to pass a simple voting rights restoration that should be entirely uncontroversial we already 100% know that this senate won’t be willing to pack the court.
…who is talking about “giving them political cover?”
I’m just calling it like I see it.
The Democrats aren’t going to pack the courts. They will follow the polling and just-not-talk-about-it.
Then they will lose.
Then the Republicans will pack the courts.
There is no “give them cover” step. That doesn’t happen. Stop worrying about something that simply isn’t going to happen.
I clearly stated that that I wasn’t making a case for packing the court.
Because packing the courts wouldn’t work in isolation. It would take an entire shift in strategy, in paradigm, in order for that to happen.
If you don’t want Christian white supremacists with delusions of rapture to take control of America, you have to do something about that. It took them 50 years to overturn Roe vs Wade. But they did it. They had a simple plan: elect presidents that would nominate people to SCOTUS that would overturn Wade. And they did it.
The Democrats will fail to protect democracy if they continue to be driven by fickle politics. They need to develop a long-term vision of what they want America to be. Then they need to develop a long-term strategy on how they are going to get there.
And that strategy has to, in part, needs to revolve around the long-term marginalization of the Republican Party. The short-term focus has to be to hold onto the House, the Senate, and the Presidency, along with an election strategy that tells the American people what they need to do to overcome the Manchin and Sinema block.
The next step is to start pushing back. School boards. Mayors. City Councils. Judges. Sheriffs. They need to go after everything. You aren’t ever going to be completely the Christian white supremacist movement with delusions of rapture. But you can push them back into the margins where they belong. Because you either let them control what books you can read at the library, or who can or can’t cross state lines, or whether transgender people can meaningfully exist, or not.
I don’t think that there is any other practical way to rebalance the Supremes without packing the courts. But the obvious danger of that is that when the Republicans regain power they will simply pack the courts again in their favour.
So there really is only one solution to that. And that is to not let the Republicans back in power, ever again.
I really don’t see any other way to do it. The Republicans of 2022 are not here to negotiate. They are not here to compromise. They are not here to argue in good faith. They are here to win. The militias are mobilizing. The police will rally behind them.
Packing the courts will only work if you go “all in” on everything else. It simply won’t work unless you firstly acknowledge that your political opposition has no interest in democracy and then commit to spending the rest of your lives fighting them on every front.
But the Democrats (by and large) can’t even acknowledge that democracy is at threat. So again, everything I’ve said is purely academic.
Or the TLDR version:
You
Yes, which you’d realize is exactly what I was saying if you had read my post and what I was responding to. Actively trying to pack the court knowing you don’t have the votes and are going to fail, is stupid. Shout to the roof tops that the Republicans are gunning for a dictatorship, win local races, use whatever tricks in and out of the book to stymie Republicans. But don’t take potshots at the king with a BB-gun just because we “Need to do something!”
…my post addressed the idea that “packing the court is not popular.”
It isn’t popular because of Republican propaganda and Democrat disinterest. It isn’t a measure of whether packing the court is a good idea or not.
The thing is: packing the courts isn’t a matter of “needing to do something.”
It’s a matter of urgency. The Supremes are unbalanced, and they will continue to legislate from the bench until that unbalancing is somehow addressed.
Packing the courts is a very specific solution to a very well-defined problem and to portray that as just “needing to do something” shows that you are just completely unaware of the stakes at play here.