The Moderate Proposal for Court-Packing

[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.

[Montmorency]

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.

Complications:

1. Who cares what the Founders wanted? Let's get things done on their merits.
2. The Supreme Court has almost always been overwhelmingly reactionary. Liberals only respect it because it was merely 'somewhat conservative' during the 50s and 60s.
3. The Supreme Court has always been political in its appointment, and speaking abstractly of "checks" in the modern environment requires detachment from reality.
4. The only value of institutions is in their fruits. Why should we value a hypothetical stability that promises only loathsome results?
5. The contemporary Republican Party and the Federalist movement offer conclusive proof for the necessity and effectiveness of vanguard politics.
6. The American left needs to pass sweeping social and economic reforms in the medium-term. If 5 Republicans can block all of these, we have two options:
a. Pack up, go home, get wasted as we slouch toward oblivion.
b. Defy the courts.

I think the more reasonable option is to act early and reform the courts.

[a completely inoffensive name]

I'm lazy with formatting, so responses in bold.

Complications:

1. Who cares what the Founders wanted? Let's get things done on their merits.
Because we must work within the framework provided by the Framers. This framework was built with specific aspects and distribution of powers. Any reforms must be carefully thought through and able to conform within the basic framework provided. Most attempts at radical reform do not do this, if we want to make the SCOTUS anew we will need to make a brand new Constitution. If I was a car guy, this is where I would make some point about how you can't keep swapping parts out to make a Toyota Corolla into a Ferrari or something.
2. The Supreme Court has almost always been overwhelmingly reactionary. Liberals only respect it because it was merely 'somewhat conservative' during the 50s and 60s.
The power of Judicial Review is inherently a reactionary power. Without a SCOTUS to say no, anything Congress passes is Constitutional. This branch is respected by liberals because its reactionary nature tempers all manners of reform, not just the left. Where the respect was lost has been due to its activist conservatives of the past 30 years.
3. The Supreme Court has always been political in its appointment, and speaking abstractly of "checks" in the modern environment requires detachment from reality.
The Supreme Court has always been picked by politicians, but the degree to which the picks are political corresponds to the degree to which politicians obeyed parliamentary norms and behaviors. I don't see how the idea of checks is somehow detached from reality when "checks" are the only thing right now preventing the Republican party from ceding all political power to Trump.
4. The only value of institutions is in their fruits. Why should we value a hypothetical stability that promises only loathsome results?
This is as detached a statement as anyone could make. A stable form of government is the only form in which real social and political progress can be made and held, even if its results are mediocre to begin with. I would rather take another 200 years of divided government under this current form, then live under a liberal dictator.
5. The contemporary Republican Party and the Federalist movement offer conclusive proof for the necessity and effectiveness of vanguard politics.
The contemporary Republican Party and the Federalist movement offer conclusive proof for the necessity of the left to leave behind its cynicism and apathy, nothing more. The left and right would be in opposite positions today due to the sheer demographic changes of the past 50 years if the left had simply engaged themselves within the current structure.
6. The American left needs to pass sweeping social and economic reforms in the medium-term. If 5 Republicans can block all of these, we have two options:
a. Pack up, go home, get wasted as we slouch toward oblivion.
b. Defy the courts.
We have seen this situation already when the SCOTUS blocked FDR's New Deal programs. The power of the court lies in its legitimacy, since it has no power to enforce its own decisions. If 5 Republicans defy a clear mandate of the people spoken through their elected representatives based entirely on naked politics, then we defy the courts. It's been done before. But we must be clear that only when SCOTUS shows their hand and cedes its own legitimacy does the left defy them.
I think the more reasonable option is to act early and reform the courts.

I think we both agree the courts are in need of immediate reform, but what kind of reform is where we completely differ.