I do definitely think if the liberals had even a 5-4 majority, the GOP would pack the court.
And you’re right that we’re in a weird spot because we don’t know if the current 8 justices + ACB would oveturn Roe or Oberfell. If they did, I would be completely on board with court packing even to just buy us some years of protecting women’s and gay rights.
My read on the conservative justices is that Alito, Thomas and ACB would overturn basically any conservative vs progressive case like that out of hand, Gorsuch would probably overturn them based on his strict textualism, and Kavanaugh and Roberts are solidly conservative but wouldn’t want to obviously disregard precedent. This obviously leaves very little room for surprises.
Well, but this just becomes a question of semantics. Decisive action to simply protect everyone’s right to have their vote counted along with the natural changes in demographics can put the current instantiation of Republicanism with its current policies out of power forever. Obviously nobody is suggesting that no opposition party will ever exist again. Whether what emerges is still called the Republican Party doesn’t really matter - but whatever it is, anything electable won’t look like what they are now.
You’re essentially saying that the ends justifies the means; that court-packing is justified because people might get their rights or benefits taken away. With this sort of logic you can imagine what sort of justifications conservatives could cook up likewise for doing the same.
Hey, if the repubs want to finally cut loose the crazies in the party and get back to grown-up responsible government, i’m all for that. I’m actually OK with disagreeing on the details of policy if the other party actually has the good of the country in mind and just different ideas of how to get there. But the republican party, as currently formulated, has got to go.
A lot of Democratic court-packing proponents don’t realize that packing the Court will water down its legitimacy; indeed, invite states and entities to outright flout it and dare SCOTUS to enforce its rulings (which SCOTUS has no actual power to do.) The only reason the Court still retains (most) of its legitimacy at the moment is because it hasn’t become perceived yet as a totally partisan arm of one party.
And you don’t think that overturning obergefell and roe v wade would cause a perception that it is a totally partisan arm?
That blocking any and all legislation put forth by the elected legislature would not destroy its legitimacy?
Make no mistake, I agree that SCOTUS is under threat of becoming a partisan arm, but that is entirely of the Republican’s doing.
Do you share your criticism that blocking Gorsuch in 2016 under the pretense of the same circumstances in which they are currently pushing a nominee through undermines the legitimacy of the court?
Excuse if I bump in from Europe having no clue, but from a logical point of view now that the subject has come up, and both sides, by fury or by ommission concede it so much relevance, is it not so that whoever can pack the court must do it, as otherwise the other side will do it? I mean, a court can only have so much members, say what? 11? 13? 17? Now it has 9, so next one who packs the Court wins. And if the Republicans win, being already 6-3 (ehem… not yet, but, until Election Day, prepare for the worst), they win even bigger. So the Democrats must pack the Court now, or it will be too late. Because they know now that the idea has been set loose, the Republicans will do it if they can.
It would be by legislation, so they have to have the presidency and both houses, and have them with people dedicated enough to go against convention and risk all the things that the opponents of stacking warn of.
The warnings sound thin at this point. Like, “Hey, don’t defend yourself from an attack, it will just make the attacker mad and make them attack you.”
Republicans refuse to play by convention or tradition. I don’t see why the Democrats have to allow themselves to be pummeled in service of the norms that the Republicans have broken.
Yes, when it comes to political norms generally, I think the ends justify the means.
As I said, I wouldn’t want the democrats to just break a pretty important norm to show how tough they are - I’d want them to do it if it accomplished something worthwhile. Getting a liberal supreme court for X years until the GOP packs it with their own justices isn’t worth it with how the courts currently are. But if the courts violated some fundamental human rights that marginalized groups had to fight for for decades, I think the benefits of even extending those rights is worth the downside of the court being increasingly politicized and deligitimized (more than it has been).
I don’t really have a problem with many of the norm-breaking behavior from the GOP (I have a huge problem with their election meddling, but not with their hypocrisy with the S.C.). The problem with them is the ends, and the Democrats need to be willing to play hardball in cases where it achieves important positive ends.
If D’s go for packing in 2021, what’s likely to happen is this: Enough Democratic moderates in the House and Senate - especially those from red states - would oppose the idea that it wouldn’t get the necessary votes to pass. But the Democrats would still suffer political flak for having even tried it in the first place.
So the D’s would be left with the worst of all worlds: They would fail to get packing achieved, they would get a backlash for having tried, and Republicans would be all the more on their guard and hyped up in opposition.
The idea of packing the court isn’t new, it’s been around for 80+ years but never actually done. (In the same way that nuclear weapons, although abundant, haven’t been used in a war again since 1945.)
If Republicans wanted to, they could have in 2017 and 2018 - when they held both houses of Congress and the presidency - but they didn’t. Doing so would have crossed a hitherto-uncrossed threshold. They’re still banking that enough D’s will do the right thing and call for restraint in not crossing that threshold, too.
History is a good guide on this, it will ugly in the courts at the beginning like when Roosevelt was president; but really, there is no sense on preemptively packing the court when one has not seen when or who the court will harm with their unpopular or misguided verdicts to come.
But, once a few of those verdicts are made, then an active threat to pack the court will likely be the only thing needed. The court will not be able to work in a bubble as even Republicans will not only be sending amici curiae to the courts, but “hostis curia” too. Republicans in the near future will need to avoid having their brand poisoned even more in the near future.
I came back into the thread to say basically the same thing. And that kind of response isn’t going to work in a 90 minute debate. Lots of questions would require lengthy answers that 99.99% of the voters won’t understand.
Agreed on this. Even saying “we’re weighing our options” provides enough of a soundbite for the Trump campaign to run with. Pence tried to run with the they aren’t answering that means they are going to do it - but it seems like that isn’t sticking. I think enough people think Biden is too moderate to make that step that saying “we’re weighing our options” would make some independents freak a bit. Better to not say anything and give no ammo.
If it is a response to a partisan activist court, with roe, obergfell, the ACA and all other progressive legislation overturned, Democrats will take flak for not doing it.
They didn’t need to. They had the majority on the court.
They also have to worry about the other party getting in power, and if they had set a precedent of packing the court when they already have a majority, there would have been no question as to whether the democrats would.
They just banked on the democrats being too afraid to do what the Republicans would do in the same situation.
Basically, you think that the Democrats should abide by rules that the Republicans don’t need to.
If SCOTUS gets in the way of Democrats governing, then they have already declared nuclear war. Not responding would be irresponsible.
Conservatives didn’t pack the court when Roe happened, Obergefell happened, ACA happened. But (some) liberals can’t seem to respond with the same restraint if those things get overturned.
In other words: “SCOTUS that upholds Democratic actions” = good, “SCOTUS that overturns Democratic actions,” = bad.
Imagine if McConnell and Trump had thrown down the same gauntlet in 2017. “SCOTUS, you must uphold everything we Republicans pass, or else you get packed.”
Which was a 7-2 decision. 5 Republican nominated justices were in the majority on that opinion.
That both happened on conservative majority courts.
Some liberals can tell the difference between giving rights to people and stripping them of those rights.
Even some conservatives can as well, as shown by conservative majority courts making these rulings that you think make good examples of whatever point you are failing to make.
No, that would not be an accurate “in other words.”
That would be a different gauntlet, one of only your own imagination.
“Yet” is the key word. Roberts has been maneuvering to avoid that perception, but with the 6-3 majority he won’t be able to. Roe is dead, but it is when the ACA is outlawed that the shit will hit the fan. And forget gay rights.