The following is the first installment in a TPM series, “Not Safe At Home: Solutions For Our Democratic Crisis.” As America battles the coronavirus, this series takes a look at fixes the next Congress and President should consider to how our democracy works — ideas that predate the coronavirus, and that will resurface after it has passed. This essay is part of TPM Cafe, TPM’s home for opinion and news analysis.
Very interesting. Most if not all of the remedies described will require Democratic majorities in Congress as well as holding the presidency. This needs to be our only focus this year to begin removing the stain of Trump from the country. Judges will be his unfortunate legacy.
Josh, thanks for your historical analyses. They are one of TPM’s strengths.
Can we reasonably expect fair, impartial rulings from Republican appointees? I fear not. That is a tragic irony of historical import. Republicans in general, and McConnell in particular, have profoundly damaged the underlying legitimacy of the judicial branch.
Judicial legitimacy may be as hard to reclaim as virginity, once lost. Short of nullifying all partisan 5-4 decisions in which the pretender ‘justice’ Gorsuch participated, I don’t see how the federal judiciary’s legitimacy can be restored.
McConnell packed the Court with Republican partisans by refusing to allow a vote for Garland and then allowing Trump to appoint Gorsuch. As soon as the Democrats control the White House, House, and Senate, they need to appoint 2 new Justices in order to re-balance the Court. Maybe that will happen in 2020. But if it takes 50 years, so be it.
At the root of this issue is that the Senate is no longer representative of the liberal and centrist majority of the country due to the urbanization of the country. It’s why there have been now two occasions in recent history where the president lost the popular vote and won the EC. It has radical implications on the courts. We are living in a time of tyranny of the majority by the minority. I’m not sure how there can be a lasting resolution to these types of issues while the Senate continues to be structured the way that it is. I’m absolutely an advocate for packing the courts although I don’t know how that provides a durable solution either given the retributive nature of Republicans. The authors recommendation, essentially, of political and legislative pressure on the court assumes that there is a viable “threat” from elected representation. I don’t think that’s likely for the foreseeable future.
“Packing” the Supreme Court would be politically difficult, even if the Senate filibuster were eliminated.
But … it would be far easier to increase the number of District Court and Court of Appeals judges, to require three judge District Court panels to rule on any case involving the validity or interpretation of any federal law or agency regulation, and requiring five judge panels in all Court of Appeals cases. And legislation curbing the authority of the Supreme Court to rule on certain cases would also be appropriate.
By the way, on a different but related topic to the one I made above… a big part of the reason for the divisions in the country are conservative media. If we expect to have any chance to work the legal/politics spectrum via public support, we need to figure out a way to crush conservative media. I’m an advocate for wielding anti-trust powers and perhaps other federal powers to weaken and fragment conservative corporate media.
The question is can Congress immediately reduce the size of the courts though a reduction in force (RIF) procedure as part of a budget that cannot be filibuster. That is under the guise of shrinking government and saving taxpayer money, can the Congress reduce the size of the Supreme Court by 2/7th and I think should apply it to the lower courts thereby laying off the most recently appointed judges and justices. After 2 years, the courts could return to size and those laid off would have no right to return meaning any expansion would be filed by the current Congress and President.
Cannot happen. An Article III federal judge is confirmed for life (or good behavior, i.e., not impeached) and cannot be removed from the bench via any means other than impeachment, and cannot have his pay decreased. That’s all in the Constitution to try to make an independent judiciary.
So I disagree that “packing the Court” (actually, the courts plural) with more justices/judges is a last resort. There’s nothing sacrosanct in the Constitution or elsewhere that 9 is the perfect number. It’s been that number for 150 freakin’ years, but that’s just tradition and as we’ve seen under Trump and the Republicans, traditions don’t count any longer when it comes to exercise of partisan power.
It should be obvious to everybody that if the Rs had the opportunity and felt they needed to do so, they would increase the number of judges in a heartbeat to meet their political goals. They didn’t need to do so from 2017-2018, so they didn’t bother even though they could have. Further, we can be sure that if the Ds increase SCOTUS to 11 or 13 or something like that, when the Rs get back in control (if that ever happens once voting rights are secured by the new SCOTUS), they will increase it again to secure a majority they feel entitled to.
But nobody has done it because they worry that the public will blame them for being partisan, although the Ds could easily deploy the argument that the country is more diverse so we need SCOTUS to better reflect that diversity with more bodies. Plus, Ds should increase lower court judges, too, to reduce the length of time it takes for cases to be decided by reducing the heavy workload on judges’ dockets.
Thank you, Prof. Fishkin. I would suggest that it is worthwhile both to depoliticize the Court by radically expanding its size and forcing senior status at age 65 or 70, plus poison-pilling every piece of progressive legislation. Don’t like Medicare for All? Oopsie, here’s a 20% annual wealth tax on billionaires. Don’t like the wealth tax? So sad, you just eliminated preferable treatment of capital gains. Etc.
Senior. Status. Automatically, at age 65 or 70 or whatever. They would get to sit on three-judge panels for ordinary cases, but no authority to sit on the en banc panels where the big cases would actually get decided. Let’s see how many of these octogenarians hang onto their seats when their 1-in-9 chance of swinging the Constitution evaporates.
It is as far as I know my idea. The question is does the constitution “appointed for life” make federal judges immune from budgetary reduction in force. As the matter has never been previously adjudicated it would wind up in the courts where every affected judge to include Supreme Court justices would have to recuse themselves, my own view is it is constitutional because of congressional power to control funding is more important to the constitution than a federal judges right to serve for life.
For instance, consider jurisdiction-stripping: providing by statute that the federal courts, including the Supreme Court, do not have the jurisdiction to hear some particular type of challenge to a particular statutory provision.
I didn’t know this was possible. Could work wonders in saving the ACA, if SCOTUS doesn’t destroy it before the next election.
Jurisdiction-stripping was floated by crazy rightwingers in the 80s and 90s, back when they thought they could get congressional majorities against abortion and teaching evolution and a bunch of other things. I think it’s ultimately not a good idea. But the threat of it might be.
One idea I heard for the non-Supremes was to just assign all of the Trump judges to the Northern Mariannas jurisdiction.
They could work remotely.
But we’d still have to pay their salaries.
It would be a small price to pay. And many of them might resign. (You wouldn’t have a lot of administrative costs, so figure less than $100M. Which would be peanuts to get a sane judiciary back.)
Could they still be appointed for life, i.e., to receive a pay check (but at a reduced rate), yet not serve on a court (reason for lower pay) because their numbers had to be reduced for budgetary reasons?
Constitution says their salaries shall not be diminished. I think the framers had an idea of the tricks they would want to keep themselves from engaging in.
