The Moderate Proposal for Court-Packing

[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.

[a completely inoffensive name]

Call me an "incremental reformist" if you want, but I do think that the following would be a politically palatable start to reform the current SCOTUS selection.

1. Appeals Courts for each district nominate one member each among them for the president to pick from.
2. Constitutional Amendment to return the confirmation of all Federal judges to a 60 vote requirement (or a 60% equivalent of a larger Senate).
3. A one month mandatory FBI investigation into the candidates background and financial history to provide a preliminary account of any conflicts of interest.

[Montmorency]

Call me an "incremental reformist" if you want, but I do think that the following would be a politically palatable start to reform the current SCOTUS selection.

1. Appeals Courts for each district nominate one member each among them for the president to pick from.
2. Constitutional Amendment to return the confirmation of all Federal judges to a 60 vote requirement (or a 60% equivalent of a larger Senate).
3. A one month mandatory FBI investigation into the candidates background and financial history to provide a preliminary account of any conflicts of interest.

And who's going to pass this (60 votes to modify judicial framework)? You want to spend political capital, or wait until enough Democrats are elected, on something that shores up the SCOTUS and will have an effect only in decades? Not something that is actually superior to the current arrangement? At that point when you will actually have votes to pass something?

You want the Republicans to call up a Constitutional Convention for the sake of a squickling supermajority requirement for SCOTUS confirmation?

This is the problem with incrementalism. You reach for the mud and you end up 6 feet under.

You need revolutionary incrementalism, a revolutionary long-term program with steady steps taken towards its milestones.

[Montmorency]

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


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

The Constitution gives Congress the authority to rewrite the appellate power of the SCOTUS at will. This is within the framework of the Founders. As are Constitutional amendments, which we will also need. Right now, the courts are more powerful than they have ever been, the SCOTUS especially.

Taney Court. Reconstruction era. Lochner Court. It is flat out wrong to claim that "tempers all manners of reform, not just the left." It's factually, historically wrong.

I don't like this mindset. Employ the right norms, the mannered pretense, and the substance doesn't matter even if it's the same either way. You suggest the "checks" we need are a return to the old normative political discourse - except those are exactly the checks that have failed. Pretending not to be political is not what keeps Trump from seizing all power, that's the basic structure of government and American society - but even those restraints have been steadily eroded. Checks on Trump, the Republican Party, future authoritarians - those involve real change, not a patina of "civility" between elite stagehands.

That's not the choice before us and you know it. How about, fucking around with the courts is on the path where we avoid either a left-wing or right-wing dictator? Not only do we have the opportunity to improve the institutions we have, but we must if we expect to avert or mitigate disaster. Stop thinking an institution is sound as it is just because it can be labeled with the word "institution".

And how will engagement come about? The schema at least is simple: mass appeal and mobilization with a vanguard policy and political cohort. You need both. You need a popular, straightforward, agenda, and the meritorious and audacious policy to satisfy it and advance it to the next stage. Passing laws and putting them into effect is more important than playing nice with Republicans who couldn't care less about it.

But we must be clear that only when SCOTUS shows their hand and cedes its own legitimacy does the left defy them.

(Just to be clear, no president has really overtly defied the courts, though they have criticized them. The examples of Jackson, Lincoln, and FDR, as we discussed a few months ago, involve the courts proactively avoiding offending the government or enjoining them to act or not act in a specific way, for that purpose of maintaining their institutional integrity.)

I agree with you here. Everything a revamped Democratic Party/progressive movement does has to be telegraphed, explained, and justified to the public. 'If we have these votes, we will pass this law. If the courts do X under Y, we will respond with Z.' That means setting out a great deal in advance, but reducing it to the simplest and most digestible components (e.g. you deserve healthcare, education, economic security, etc.). See

"mass appeal and mobilization with a vanguard policy and political cohort. You need both. You need a popular, straightforward, agenda, and the meritorious and audacious policy to satisfy it and advance it to the next stage."

One of the desirable aspects of vanguardism is also of course a unified message from the top.

[a completely inoffensive name]

The Constitution gives Congress the authority to rewrite the appellate power of the SCOTUS at will. This is within the framework of the Founders. As are Constitutional amendments, which we will also need. Right now, the courts are more powerful than they have ever been, the SCOTUS especially.

The Court in theory has ultimate authority over both branches since it could at a whim call any piece of legislature or presidential act unconstitutional. Such is the power of judicial review, it is a powerful weapon and its use or abuse rest solely on the character of the men and women on the bench. Going back to your moderate proposal, there is nothing preventing the SCOTUS from exercising the same degree of power it does today by setting up a structure of rotating chairs every 4 years.
If we implement the more radical approach and devolve the power to cross-circuit panels all we have done is shift the battle one level down. The Republicans are already packing the appellate courts with unqualified hacks, mostly from vacancies deliberately left open by obstruction during Obama's terms. The issue from the left to me seems to be the inherent power of judicial review, not the structure in which wielded.

Taney Court. Reconstruction era. Lochner Court. It is flat out wrong to claim that "tempers all manners of reform, not just the left." It's factually, historically wrong.

It's not factually wrong, I am just being a bit disingenuous by ignoring the fact that the United States started as a semi-aristocratic, slave endorsing political entity. Most reform measures over the last 200 years were 'liberal' or 'leftist' due to the nature of the country and the trajectory of the political zeitgeist of the 19th and 20th centuries.

As an aside, I would definitely consider gay marriage a conservative reform. Bans on gay marriage only took off in the late 1970s with the rise of political evangelicals in the Republican Party. Before then, there were no laws on the books stating yes or no for most states. The obstruction prior to the 1970s was social, not legal in nature (from my understanding). Constitutional bans among the states only really emerged in 2003 after Mass. legalized it. Despite being a clear platform of the Republican Party, Kennedy was a good judge and called it for what it was (although the reasoning to get there was a bit wonky from what I have read).

I don't like this mindset. Employ the right norms, the mannered pretense, and the substance doesn't matter even if it's the same either way. You suggest the "checks" we need are a return to the old normative political discourse - except those are exactly the checks that have failed. Pretending not to be political is not what keeps Trump from seizing all power, that's the basic structure of government and American society - but even those restraints have been steadily eroded. Checks on Trump, the Republican Party, future authoritarians - those involve real change, not a patina of "civility" between elite stagehands.

Most of what we considered "checks" were actually norms and norms erode. Codification of the norms (through a means more permanent than the House/Senate's internal 'rules') could force a return to twentieth century discourse or foster innovation among state policies due to Federal inaction. At the very least, the failure of codifying norms provides legitimacy to your notion of vanguard politics, since any of the radical proposals you suggest at this point of time will be seen as inherently political in intent and tyrannical in nature.

That's not the choice before us and you know it. How about, fucking around with the courts is on the path where we avoid either a left-wing or right-wing dictator? Not only do we have the opportunity to improve the institutions we have, but we must if we expect to avert or mitigate disaster. Stop thinking an institution is sound as it is just because it can be labeled with the word "institution".

I have no issues with improving what we have, but the reality is that there is always, always a gap between what is needed and what can be reasonably accomplished. The US was able to advance an internal policy of containment towards slavery through several distasteful compromises in the early to mid 19th century. The compromises bought time and curtailed the ability of slavery to grow west by trading territories and Senate seats, these compromises allowed the north to become more powerful than its southern neighbors, so that when the abolitionist movement grew impatient in the 1950s and went for the kill, the US had the internal strength to purge slavery by force. A Civil War circa 1820 or 1790 would have been a guaranteed dissolution of the union.

And how will engagement come about? The schema at least is simple: mass appeal and mobilization with a vanguard policy and political cohort. You need both. You need a popular, straightforward, agenda, and the meritorious and audacious policy to satisfy it and advance it to the next stage. Passing laws and putting them into effect is more important than playing nice with Republicans who couldn't care less about it.

Yes, and I agree with all of this. Again, I feel we may be talking past each other here. It's not the need for reform I am opposing, but the degree to which the left can push the electorate at large, and the conservatives for that matter while still maintaining legitimacy. Shoot too high and you will all too easily be painted as the US version of Latin American style socialism.

(Just to be clear, no president has really overtly defied the courts, though they have criticized them. The examples of Jackson, Lincoln, and FDR, as we discussed a few months ago, involve the courts proactively avoiding offending the government or enjoining them to act or not act in a specific way, for that purpose of maintaining their institutional integrity.)

I agree with you here. Everything a revamped Democratic Party/progressive movement does has to be telegraphed, explained, and justified to the public. 'If we have these votes, we will pass this law. If the courts do X under Y, we will respond with Z.' That means setting out a great deal in advance, but reducing it to the simplest and most digestible components (e.g. you deserve healthcare, education, economic security, etc.). See

"mass appeal and mobilization with a vanguard policy and political cohort. You need both. You need a popular, straightforward, agenda, and the meritorious and audacious policy to satisfy it and advance it to the next stage."

One of the desirable aspects of vanguardism is also of course a unified message from the top.

No disagreement on this. Do you have to use the word vanguardism though? Are you pushing for a Leninist revolution?