March 20, 2019

Expanding the Court

“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

“Beijing is [also] looking to a seemingly unlikely place for support: Europe. In recent days, Chinese ambassadors across the continent have gone on the offensive to rally Europe behind Hong Kong’s government and against the protestors. As part of their campaign to promote Beijing’s line, China’s ambassadors are publishing op-eds in local papers and publicly criticizing European leaders for failing to denounce what they are trying to frame as violent protests…

“While Washington has been antagonistic, Beijing has been careful to strike all the right chords… [But] to uphold their shared values, both the United States and Europe need to collectively push back against China’s unfair trade and investment practices, its blatant human rights abuses, and the anti-democratic norms and practices it seeks to spread… Europe must realize where its long-term interests lie, and not let [the Trump] administration or the allure of economic gains prevent the right choice. The health of liberal democracy will depend on it.”
Andrea Kendall-Taylor and Rachel Rizzo, Politico

Regarding the Cadillac tax, “high-premium employer-based plans raise the cost of health care for everyone by encouraging the overconsumption of expensive services. This means that even Medicare and Medicaid face higher prices. Quite aside from its benefits for the health-care market, the Cadillac tax would also have the effect of expanding the tax base and making the tax code more efficient. It would raise revenues by about $15 billion a year… Rather than killing or delaying the Cadillac tax, Democrats should be trying to make it operational. The tax would raise revenue, lower costs, increase the efficiency of the tax code and give the Obamacare individual market its best chance at success.”
Karl W. Smith, Bloomberg

“The two issues with which he is most often associated, support for a balanced budget and opposition to free trade, put him at odds with both of our major political parties. An old-fashioned, soft-spoken Southerner, he nevertheless held views on so-called ‘social issues’ that would be to the left of the mainstream of the Republican Party, both then and now. He was a fervent supporter of the Vietnam POW/MIA movement in the late '80s and early '90s, but he was not in any sense a hawk. Never mind 2003. Perot opposed the first war in Iraq in 1990… Perot's death should be mourned by all Americans who regret the fact that it is no longer possible to make reasoned, non-ideological arguments about questions of public import, and by the devolution of our political life into mindless partisan squabbling.”
Matthew Walther, The Week

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

“Trump should be overjoyed. Tariffs are taxes paid by Americans on the things Americans buy. The only way China can be paying any of them is if something else, something extra, then happens — like the yuan dropping. This makes all imports into China more expensive for Chinese citizens. That's China paying for Trump's tariffs when the yuan falls. Without this happening, only Americans pay. With the yuan dropping, China pays as well. This is the claim Trump has been making all along, that China's really paying those trade taxes — now they are… Imposing significant export tariffs on a country should mean the value of that currency falls. This is what is happening. Why is Trump complaining about it?
Tim Worstall, Washington Examiner

“NBC and MSNBC embraced Sen. Elizabeth Warren of Massachusetts in the first debate of Democratic presidential candidates Wednesday night, treating her like the star of the show. The debate led off with Warren, who had a huge popularity advantage from the start… NBC anchor Savannah Guthrie started it off sounding more like Warren’s press secretary. ‘You have many plans – free college, free child care, government health care, cancelation of student debt, new taxes, new regulations, the breakup of major corporations,’ Guthrie said, before teeing up an economy question. Guthrie even used Warren’s plan to break up tech companies as the foundation for a question for Sen. Cory Booker of New Jersey… the round-robin final comments also ended with Warren, as Maddow asked her for the ‘final, final statement.’ That let NBC bookend the entire debate with Warren and Warren.”
Dan Gainor, Fox News

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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