The Moderate Proposal for Court-Packing

[Montmorency]

Interesting fact: In the 85 years since 1932, Democrats have held supermajorities in the Senate for 24 of them. Republicans have not held a Senate supermajority since the Harding administration a century ago. A supermajority would be needed to reform the structure of the court system. The Supreme Court has always been a political institution beneath the judicial patina, but today it is more so than at almost any other time.

Spoiler Alert, click show to read: 

In order to give the Republicans one solid chance to come in from the cold, the next Democratic government should propose an eminently centrist grand bargain:

1. The Supreme Court is expanded to 11 justices.
2. A term-limit of 20 years is put in place, with retroactive application.
3. Ruth Bader Ginsburg (liberal), Clarence Thomas (conservative), and Stephen Breyer (liberal) have been on the court for over 20 years (appointed in the 90s).
4. As a show of faith, the Democratic government should replace them with two justices on the center-left, and one on the center-right.
5. In time, the SCOTUS would be a rotating chamber like the Senate, and 2 justices would be replaced every 4 years.


It's pretty simple. The Republicans are guaranteed 2 Supreme Court picks every 4-year term, so long as they can win presidential elections. For example, if a Republican wins in 2024, they would be entitled to replace Roberts and Alito.

A refusal by Republicans to even consider the proposal on its merits should be interpreted as an official declaration of their intent to establish a single-party state.

[Csargo]

Why? I agree with limits for their terms sure, but I don't see the point in expanding the court.

[rory_20_uk]

To help improve the system requires proper proportional representation rather than first past the post at state and federal level. Suddenly this whole issue would become irrelevant.

[Pannonian]

To help improve the system requires proper proportional representation rather than first past the post at state and federal level. Suddenly this whole issue would become irrelevant.

They need a proper dual system, one house using democracy to guard against tyranny, another using technocracy to guard against ignorance. Or else have different levels of democracy representing different levels of population, as the original intention was apparently supposed to do. Having multiple houses reinforcing the same party politics is pointless.

[Montmorency]

Why? I agree with limits for their terms sure, but I don't see the point in expanding the court.

Good question.

The Supreme Court today basically acts as an elite legislature. From the partisan point of view, it would be unacceptable to have a few Republicans strike down nearly any possible Democratic reform in the coming decades. From the left philosophical point of view, a few jumped-up bureaucrats deciding the fate of millions from their cloister is unconscionable, regardless of their political orientation.

The reform proposed above is essentially centrist, in that it preserves the Supreme Court while making it a little more representative of ideology in the country (a 6/5 balance favoring Democrats would be roughly proportional).

A more thorough-going reform would be for Congress to outright legislate away the power the Supreme Court has arrogated to itself over 200 years, and start over with the larger federal court system.

2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In other words, the Left partisan reform would be to eliminate almost all appellate functions of the Supreme Court, replaced with, say, cross-circuit panels for ultimate appeals.

If Republicans reject the centrist compromise, Democrats ought to use it to justify the radical program.

To help improve the system requires proper proportional representation rather than first past the post at state and federal level. Suddenly this whole issue would become irrelevant.

Reforms of the legislature are a worthy topic, but distinct from this one.

[Csargo]

Good question.

The Supreme Court today basically acts as an elite legislature. From the partisan point of view, it would be unacceptable to have a few Republicans strike down nearly any possible Democratic reform in the coming decades. From the left philosophical point of view, a few jumped-up bureaucrats deciding the fate of millions from their cloister is unconscionable, regardless of their political orientation.

The reform proposed above is essentially centrist, in that it preserves the Supreme Court while making it a little more representative of ideology in the country (a 6/5 balance favoring Democrats would be roughly proportional).

A more thorough-going reform would be for Congress to outright legislate away the power the Supreme Court has arrogated to itself over 200 years, and start over with the larger federal court system.

I'd be in favor of your last point, because as far as I understand it the Supreme Court wasn't intended for purposes it's currently being used for, acts as an elite legislature, like you said. I don't like the idea of packing the court as you suggested, I'd much prefer for the power of the SC to be mitigated in some fashion.

[Montmorency]

I'd be in favor of your last point, because as far as I understand it the Supreme Court wasn't intended for purposes it's currently being used for, acts as an elite legislature, like you said. I don't like the idea of packing the court as you suggested, I'd much prefer for the power of the SC to be mitigated in some fashion.

Right, but these things advance in stages. So just as "Medicare for All" jumped the debate between a public insurance option and insurance subsidies while still falling short of a total upheaval of the process and logistics of healthcare in the country, you can probably expect #packthecourt to become a consensus liberal rallying cry in the next few years: 'put more dudes on the court' is easily understandable by the general public just like 'Medicare but for all the people', it's not too wild in the current framework, and fears of it ignitiing a right-wing revolt are overstated.

(lol tfw he talks about Medicare for All like it's a done deal)

[a completely inoffensive name]

Everyone knew the deal with the SCOTUS, but because of time and patience the Constitutional Convention only made Article 3 a skeleton article. Perhaps no one really had any idea of what to do with it in the first place and let future Congressmen sort it out.

But Marbury vs Madison and the advent of Judicial Review is the law of the land, and a fundamental part of Constitutional law despite its absence in the text. No Congress has seriously attempted at making the type of reforms you bring up for 200 years. Early presidents defied their rulings, but now even they have been tamed (since FDR at least). Everyone likes SCOTUS the most of the three branches because it is by far the most technocratic. With the exception of very late twentieth century to present day picks, judges were competent and prestigious in their field.

The SCOTUS has become what the Founder's tacitly approved of since they did not fight the expansion of the court's power of Judicial Review in the early 19th century. And that was a time when they were not hesitant to define SCOTUS role since they did pass the 11th Amendment shortly after a string of cases regarding state sovereignty.

Stability is not in making the picks "fair" to both sides. Good justices are invaluable and I see no reason why we should force one to step down because it's the next president's "turn" to pick one. Stability would be in creating further checks against politicizing the bench. Real reform would come in having the separate District courts nominate one of their own. The President would have his short list provided (one nominated from each district) and make his selection from that group.

The judiciary should be reformed in a direction toward insulation and away from the shifting winds in the halls of Congress.

We (as liberals) cannot delude ourselves to believe that the current SCOTUS is stacked against us because of any Republican stacking of the deck. We didn't turn out to vote for Hillary, and we lost badly because of it. Elections have consequences, adding term limits is a suggestion that loser's make and it will be interpreted that way by the public at large.