There’s A Better Option For Democrats Than Expanding The Supreme Court

This article is part of TPM Cafe, TPM’s home for opinion and news analysis.


This is a companion discussion topic for the original entry at https://talkingpointsmemo.com/?p=1341901
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Just peg the number of SC Justices to the number of Federal Appeals Courts.

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Yup
And let them scream and complain as you know they will
Democrats need to play hardball
All the time
In every situation

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The Constatution says a judge is appointed for life. However, it doesn’t say they are appointed to any particular court. After a SC justice has 18 years on that bench, rotate them down to an appalant court. Does anyone see a problem with this?

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The time for 1/2 measures and “either/or” has long passed.

We need to implement all options immediately.

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I don’t see a problem but I can think of 9 folks who might.

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There will be plenty of time to discuss alternatives to the status quo, after the election is won. It’s a little premature now. There is merit, however, in ramping up the pressure to do something that threatens the Republican/Dominionist plans to remake American society to their liking.

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Six new justices, Eighteen-year limits.

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That assumes the false premise that we have to accept that this is an either or proposition,

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There is no point in worrying about what they will do at some point in the future. Expand the court to 13, protect voting rights and keep winning elections. They would need WH + Congress to do anything. Looking at the House, that won’t be anytime soon, especially if we can undo more gerrymanders. Their 2022 Senate map is looking bad. And we would have the WH under a hopefully popular incumbent or the first woman VP who doesn’t have decades of attacks as baggage. Go big or go home. Going home is no longer an option so we need to do this - and also require supermajority to nullify federal laws.

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“That presents the Democrats with a stark choice: pack the Court, or reform it to prevent Republicans from doing so in the future.”

JFC, can we stop using Republican framing?

The GOP out-and-out, in-your-face cheated – twice!

They “packed” the Court.

Reforming the Court – or, bear with me here, “Unpacking the Court” – is what some Dems propose.

Keep using Republican framing, and you’ll keep playing right into their hands.

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Lots of universities hire and tenure department heads, but limit how long they stay in that position. They then have the option to leave or rotate down to a faculty position, maintaining their salary minus the admin pay. Seems like implementing this sort of this thing for SCOTUS wouldn’t be too far out there.

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This issue is not about “good faith playing by the (so-called) rules” Democrats vs. Republicans, but a very long-standing deep split in the capitalist class over certain social and economic philosophical and policy issues (but unity against the working class). Adopting 18-year terms won’t change that, and certainly not in the near term, since this bunch would be grandfathered. It’s of course theoretically possible that the majority could change by the end of the next term if Biden were elected, but the author doesn’t speak to how, i.e., who might die or quit, why given a majority decades longed for someone would quit except for extreme health, or any other circumstances that would change the views of three members thinking so quickly.

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Oh I agree. I’m just saying you will need to get that past a hostile SC.

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I don’t see why both can’t be done. You expand the court to 13, give any appointment after thereafter an expiration date, and then do some legal fuckery to make it impossible for them to unpick without an overwhelming majority.

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Structural reform is fine, and needed.

But it doesn’t solve the immediate problem of a stolen, illegitimate court obstructing all progressive legislation through the entire Biden first term (at a bare minimum).

And frankly, we’re at a point in polarization where NO substantive Constitutional amendments - about ANYTHING - can pass, so reform is likely a complete non-starter anyway.

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No, no, no, no, no! This is the same chickenshit sort of reform Democrats have accepted for years, and it won’t even work. This guy’s plan, if I hear it right, is:

Let Republicans control the court for the next 18 years. Pass a a law (which will only stay in force as long as Democrats continue to hold power) which will mean that IF we hold power for most of the next 20 years, we might slowly, gradually get more influence in the courts.

Meanwhile the existing court will continue to gut civil rights, reproductive rights, expand corporate rule, empower polluters, and generally systematically favor Republican power for the next 18 years. And we just have to suck it up. This is unacceptable, and it is pure cowardice.

We need to expand the court NOW. That is the only remedy. Without that all legislative agenda is blocked. I cannot believe some “serious democratic stategist” thinks it would be better to accept some fig leaf of a reform and let ourselves be dominated for the forseeable future by the Federalist society, all out of fear that maybe someday the Republicans might retaliate?

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President Trump has made three nominations to the Supreme Court in his first term. What would be a 6-3 conservative majority in early 2021 could very well be a 5-4 or even 6-3 liberal majority by the end of a President Biden’s first term.

So instead of packing the Court, which would grant Democrats only a fleeting advantage on the Court that would provoke partisan retaliation, they can instead choose to seize this moment to enact true reform that de-politicizes the judiciary. The most often proposed solution is simple: fixing the size of the Court at nine Justices, imposing an 18-year term rather than a life appointment and setting a regular appointment schedule of a new Justice every two years.

  1. Fleeting advantage is necessary in order to do the stuff that needs to be done

  2. The chances of Biden’s term ending with a liberal majority is miniscule

  3. Fixed terms could easily be overthrown by the GOP, who would certainly do so if the liberals are in the majority

  4. A bird in the hand is better than two in the bush

  5. Hard to see how you hold the D Party together if you let GOP have judicial veto on D legislation

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Simple - Use Trump’s Federal Employees Executive Order and dismiss:

Associate Justice Clarence Thomas
Chief Justice John G. Roberts, Jr.
Associate Justice Samuel A. Alito, Jr.
Associate Justice Neil M. Gorsuch,
Associate Justice Brett M. Kavanaugh.

… yeah it does not apply - but so what - it won’t apply to the situations where Trump will try to apply it

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Other than the fact that this Supreme Court would nix it?

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