March 20, 2019

Expanding the Court

Editor's note: We couldn’t be more proud of one of our teammates, Isaac Rose-Berman, who penned his first op-ed this week in USA Today: “How college students can bridge American divides: 'Study abroad' in Alabama or New York.” Please give it a read, and share far and wide!

“Trump has appointed conservative Justices Brett Kavanaugh and Neil Gorsuch to the court since taking office in 2017, cementing its 5-4 conservative majority. Supreme Court justices are appointed for lifetime terms, and both his appointees potentially could serve for decades. In response to Trump’s appointments, a handful of liberal activists have argued that if Democrats win the White House in the November 2020 presidential election, they should expand the number of Supreme Court justices to tip the balance of control toward liberals.” Reuters

“The Constitution allows for Congress to decide on how many Justices sit on the Supreme Court’s bench.” The number of justices has changed seven times throughout the course of US history, but has remained at nine since 1869. National Constitution Center

See past issues

From the Left

The left is divided, with some arguing that the idea has merit, and others arguing that we should think long and hard before taking drastic measures to reshape the Judiciary.

“It's been three years since Antonin Scalia died and President Barack Obama, looking for a justice Republicans would have a hard time objecting to, chose Garland, a mild-mannered moderate whom some Republican senators had praised in the past… [But Majority Leader Mitch McConnell] simply refused to allow Garland either a hearing or a vote…

“The mere fact that Democratic presidential candidates are even talking about this shows that the party — not everyone in it, but a healthy portion of its members and elected representatives — is simply fed up with getting walked all over for being noble… When it came to exploiting loopholes, stomping all over norms and fighting dirty, for some time Republicans have been the party of ‘Yes we can’ while Democrats have been the party of ‘Maybe we shouldn’t.’ But that may be changing.”
Paul Waldman, The Washington Post

Supporters of the idea contend that “courts can, and have at times, stagnated our government’s ability to respond to critical political and economic issues of the day… The court’s conservatives stand in the way of our efforts to keep dark money out of politics, to prevent the suppression of the voting rights of people of color, and to solve the polarization that has come with political gerrymandering…

“It’s no accident that the Constitution grants Congress the right to make the Supreme Court as large or small as it likes. Having the ability to change the composition of the Court in this way ensures that Congress has the power to prevent stagnant visions of our law from threatening the growth of our democracy.”
Tim Burns, New Republic

Critics of the idea posit that “McConnell will be damned in American history for his shameless hyper-partisanship, but his actions did not amount to an illegitimate theft of the seat. The president has every right to nominate a Supreme Court justice, and the Senate has every right to ignore him…

“[Moreover] today’s court-packing debate is premature. The Supreme Court hasn’t even finished its first full term with its current bench, and Chief Justice John Roberts has begun siding with the court’s liberal bloc more often than usual. He will never be mistaken for a liberal jurist, but he’s known as an institutionalist who wants to protect the court’s reputation. Roberts may yet refuse to join sweeping rulings by his conservative brethren on major social issues or political disputes, just as he did by saving the Affordable Care Act in 2012.”
Matt Ford, New Republic

Dated but relevant: “The political backlash would probably be even more severe [than in 1937]. The [political] right now possesses huge institutional weapons — national news media outlets, well-established interest groups and think tanks, and vast sources of campaign money — that could quickly be deployed. They have invested heavily in reshaping the courts over the past few decades. Given that the Republicans have tended to care about the courts more than liberals, it is likely that court packing could be more effective at energizing Republicans than Democrats.”
Julian E. Zelizer, New York Times

“Yes, the Constitution states that public officials may only be impeached for ‘high crimes and misdemeanors,’ but that phrase had an expansive meaning when it was written into the Constitution… The impeachment power, Alexander Hamilton wrote in the Federalist Papers, extends to ‘those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.’... As a member of Congress, James Madison argued that a president could be impeached for ‘wanton removal of meritorious officers.’… Trump’s claim that he was improperly impeached is simply wrong.”
Ian Millhiser, Vox

“By declaring that the United States will respond with airstrikes to any attacks on American targets or assets, Mr. Trump is drawing a bright red line that Iran cannot cross. And yet, Iran relies on a network of proxy actors from Yemen, Syria, Iraq and Lebanon. Must they all respect Mr. Trump’s red line? There are plenty of hotheads in those proxy forces that will be incensed by the assassination, the same way young men with weapons and minimal discipline often are… Mr. Trump can’t keep an entire region from crossing his red line, making violent conflict all the more likely if the president holds to it…

“It is crucial that influential Republican senators like Lindsey Graham, Marco Rubio and Mitch McConnell remind Mr. Trump of his promise to keep America out of foreign quagmires and keep Mr. Trump from stumbling further into war with Iran.”
Editorial Board, New York Times

Others argue that “Biden was almost the only one on the stage who talked like a normal person. There was a point near the end of the debate when he was talking about getting men involved in stopping domestic violence and he said that we need to keep ‘punching’ at it… I knew that the twitterati and the analysts would tut tut. Ol’ Joe is just out of touch! He doesn’t know you can’t use words like that. Meanwhile, every non-political junkie watching the debate thought there was nothing wrong with this. Biden was just using ordinary language, not worrying too much if it was fully approved by the woke brigade.”
Kevin Drum, Mother Jones

From the Right

The right argues that packing the court would erode judicial independence, as future Presidents could pack any courts that attempted to stand up to them.

From the Right

The right argues that packing the court would erode judicial independence, as future Presidents could pack any courts that attempted to stand up to them.

“Court-packing would transform constitutional law into a jumble of political calculations with ulterior motives. It would shake public confidence in the administration of justice and cripple separation of powers—a structural Bill of Rights—by making the Supreme Court an appendage of the political branches.”
Bruce Fein, The American Conservative

“There is simply no way Democrats would be pushing this conversation were there a solid liberal majority rather than a Supreme Court that currently tilts in a conservative direction… Over the past two years, we've heard a lot about actions that President Trump has taken to destroy norms — and I've joined in the criticism at times myself. But Democrats running to replace him in 2020 are not campaigning on a platform of restoring norms, they are just pushing to destroy different norms that they don't like.”
Philip Klein, Washington Examiner

“In March 1937, Senator Burton Wheeler (D-Montana) warned against the precedent that FDR’s plan [to pack the court] would create: ‘Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.’ More than 80 years later, Democrats should re-read Wheeler’s advice and once again scrap a truly awful idea.”
Charles Sykes, The Bulwark

“Although Senate Majority Leader Mitch McConnell's machinations deserve some of the credit, Trump's success [in nominating judges] can really be attributed to former Senate Democratic Leader Harry Reid, who nuked the judicial filibuster in 2013. And now Democrats, who handed Trump his greatest achievement through their own ill-considered power grab, now want to combat Trump's greatest achievement by making another ill-considered power grab… Embracing court packing will simply hand their foes another weapon that will be used against them much more effectively in the future.”
Tiana Lowe, Washington Examiner

Some say, “Why wait on this terrible idea? Let’s do it now. Donald Trump should announce that he has nominated six justices to the Supreme Court to expand it to 15 seats. With a 53-seat majority in the Senate, Mitch McConnell could get them all confirmed by the end of the summer at the latest…

“I’d like to see Trump do it — but not to get those seats added to the Supreme Court. If Trump tries it, Congress would move heaven and earth to block him from succeeding at his court-packing plan, and that would be a bipartisan effort… [Trump would] get exactly what he wants — a way to make sure that the current composition of the court endures, plus a strengthening of an institutional norm as his legacy. At the very least, it would expose his potential 2020 challengers as the idiots and blowhards they are for floating this idea in the first place, and that is in itself priceless.”
Ed Morrissey, Hot Air

“If a dozen drones or missiles can do the kind of damage to the world economy as did those fired on Saturday—shutting down about 6 percent of world oil production—imagine what a U.S.-Iran-Saudi war would do to the world economy. In recent decades, the U.S. has sold the Saudis hundreds of billions of dollars of military equipment. Did our weapons sales carry a guarantee that we will also come and fight alongside the kingdom if it gets into a war with its neighbors?… the nation does not want another war. How we avoid it, however, is becoming difficult to see. John Bolton may be gone from the West Wing, but his soul is marching on.”
Patrick Buchanan, The American Conservative

Others note, “I’d hate to be a Democratic member of Congress trying to convince Joe Sixpack that this is a whole new ballgame. The transcript shows Trump being Trump and Ukrainian president Volodymyr Zelensky trying to ingratiate himself with the big dog by, for instance, mentioning that he stays at Trump hotels. Trump’s conversation is typically scattershot, wandering all over the field, leaving a reasonable listener puzzled about what the takeaways are supposed to be…

“I think Joe Sixpack’s response is going to be a hearty shrug. After all that has emerged about Trump so far, his approval rating is closely tracking Obama’s approval at the same point in his presidency. To get Mr. Sixpack’s attention you are going to have to do better than this.”
Kyle Smith, National Review

President Trump should be happy. As much as Warren is articulate, obviously intelligent, and energetically supported by Democrats, she would also be far easier to defeat than Joe Biden… Considering Trump's economy, the president is well placed to defeat Warren.”
Tom Rogan, Washington Examiner

“It seems frankly bizarre that the left is raising the idea now, under this president. Do you believe that Trump is the worst president in U.S. history, a would-be dictator? Have you cheered as courts have checked the president’s more constitutionally dubious moves on immigration policy? Why, then, would you want to gut the independence of the judiciary?

For that would be the inescapable endgame of this scheme: Any time a president’s party controls Congress, they would add enough justices to gain a comfortable majority willing to endorse the president’s desires — and to strike down whatever their predecessors got up to.”
Megan Mcardle, Washington Post

On the bright side...

Meet the Flintstone House, a home so odd it was declared a ‘Public Nuisance’.
New York Times

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