If Democrats are Going to Pack the Supreme Court, They Might as Well Go Big

Hei Lun Chan

Hei Lun is a retail manager living in Massachusetts. His interests include eating, running, video games and board games. He's a sports fan who doesn't watch sports. He's mostly a libertarian even though Facebook ad preferences thinks he's a "very liberal". His Twitter handle is @heilun_chan

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81 Responses

  1. Damon says:

    I’d expect that the effort would turn not to add/replace Dem justices with Repub justices, but to REMOVE the existing ones. Vox even provided a roadmap.


  2. Dark Matter says:

    Counterintuitively, I also think it would be harder for Republicans to retaliate once they re-attain power if Democrats add six new justices, compared to two or four.

    Seriously? You really think that the GOP, after spending many decades following the written rules for putting Supremes on, will simply let their 6-3 be turned into 6-9 without doing anything? Because 15 is a round number?

    Trump’s full list(s) is here. His original lists in 2016 were 21 people. He’s since added about 5.: https://en.wikipedia.org/wiki/Donald_Trump_Supreme_Court_candidates#Possible_nominees

    You should assume that for every Judge packed on, the GOP will counter pack with two more at first chance.

    You should also assume every decision they don’t like from the 6-9 court will be viewed as utterly illegitimate.Report

    • Philip H in reply to Dark Matter says:

      they didn’t follow any rules – they made them up.

      “We can’t even meet with, much less approve a President’s nominee in February of an election year because the people deserve a say.”

      “We will approve a President’s nominee in October of an election year after voting has started when we are the same party as the President.”

      When they get past that we’ll talk.Report

      • Pinky in reply to Philip H says:


      • Dark Matter in reply to Philip H says:

        they didn’t follow any rules – they made them up.

        Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the president to nominate and, with the confirmation (advice and consent) of the United States Senate, to appoint public officials, including justices of the Supreme Court.

        It’s not spelled out what happens when they disagree so presumably we have a deadlock and/ political pissing match.

        “We can’t even meet with, much less approve a President’s nominee in February of an election year because the people deserve a say.”

        “We will approve a President’s nominee in October of an election year after voting has started when we are the same party as the President.”

        A politician was a lying hypocrite? Isn’t that like complaining about fish liking water?Report

        • Philip H in reply to Dark Matter says:

          Hardly. Democratic Senates met with, held hearings on and voted on Republican presidential SCOTUS nominations all the time. Since Moscow Mitch and Co. didn’t succeed in Making Mr. Obama a one term president they decided to disregard all that history and make one last stab at stabbing his legacy. Its a special brand of hypocrisy that deserves public shaming – and the soon to be completed electoral defeat of the Party in question.Report

          • Dark Matter in reply to Philip H says:

            Obama needed the consent of the GOP controlled Senate to flip the court during an election year. He didn’t get it. A big part of the why of that is they were elected in 2014 on the promise of preventing that.

            There’s a strong argument that this issue is what put Trump (of all people) in the Presidency.Report

  3. Philip H says:

    I’ve come to believe that court packing is probably a distracting waste of time. The Roberts Court – way more so then its predecessors – keeps making decisions centered on the phrase “Ok, Congress, solve this mess for us.” Should Democrats get the Senate and White House and retain the House, there are several good suggested lists floating around of legislative approaches that could be done in 2 years that would force the Court to either rule on the merits on a number of issues, or force Republicans to start campaigning on Supreme Court Packing to try to keep their illegitimate majority-minority status.

    Of course, the modern Democratic Party seems unable to have the message and legislative discipline Republicans have, so I doubt it would succeed.Report

    • Dark Matter in reply to Philip H says:

      legislative approaches that could be done in 2 years that would force the Court to either rule on the merits on a number of issues

      Can you expand on that?Report

        • Dark Matter in reply to Philip H says:

          Ah. Yes, the Dems (or Congress in general) could nerf the Supremes by just doing their jobs and write laws that aren’t deliberately ambiguous. They’d stop needing judicial philosopher kings to “help” them.

          I’m strongly in favor of this.Report

        • George Turner in reply to Philip H says:

          From the article:

          “There is, however, a better way for Democrats to achieve their policy goals without responding to Republican court-packing with court-packing of their own.”

          Do Democrats even know what “court packing” means, or is did they just make up a new definition because they got caught being stupid? I ask because a few weeks ago they had Webster’s Dictionary redefine the term “sexual preference” in a way nobody had ever heard of.

          “Court packing” refers to increasing the number of seats on the court so that the party in power can, in essence, overrule the existing justices by rigging the court. The idea is similar to increasing the size of the House by letting one party’s states add seats until they gain a House majority, or letting a party split states apart to gain seats in the Senate.

          The Washington Post flat out lies and says “without responding to Republican court-packing”. There hasn’t even been a suggestion by Republicans to pack the court. Appointing a judge to one of the nine seats is not “court packing”. Ruth Bader Ginsberg wasn’t “packed” onto the court either. She was appointed to one of the nine seats, like every justice appointed for the past 152 years.

          It would be nice if the press would stop lying, but I’m not holding my breath on it.Report

          • Pinky in reply to George Turner says:

            maybe a typo for “picking”?Report

            • George Turner in reply to Pinky says:

              Well, Ruth Bader Ginsberg weighed in on court packing during an NPR interview with Nina Totenberg (who was a card carrying communist).

              “Nine seems to be a good number. It’s been that way for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.” . . .

              “If anything would make the court look partisan,” she said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.'”

              That impairs the idea of an independent judiciary, she said.

              Court packing is a feature of Third World kleptocracies, and undermines the independence of the judiciary, making it just another tool of the legislative and executive branches.

              Ted Cruz has just put forth a Constitutional Amendment that sets the number of seats on the Supreme Court to nine.Report

              • Oscar Gordon in reply to George Turner says:

                Cruz is an idiot. The problem with the court is structural. I am ever more convinced we need to make it merely the final federal appeals court, and thus structure it as such.

                Fixing the number at 9 simply ensures that the court will forever remain a political football that allows legislators to avoid doing the difficult work of crafting laws carefully, and instead be sloppy and quick and let the court sort it out.Report

              • Aaron David in reply to Oscar Gordon says:

                I mostly agree with this, but I do think there needs to be a much more solid method of increasing (or decreasing) the count, to take us out of the realm of politics, and move it into the realm of process.Report

              • Oscar Gordon in reply to Aaron David says:

                1) Make it a function of case load. There are X cases potentially before the SCOTUS this term, hence, via some simple bit of math, we need Y justices seated to hear them.

                e.g. you need a minimum court of 9 (TRADITION!!!), and that court can reasonably asses and rule from a pool of 2700 cases. Once you hit 2701 cases, you empanel 3 more justices. If judge panel = 3 judges;
                cases/900 <= panels 2) Stealing someone else's suggestion (Burt, maybe?), the court itself maintains a list of qualified candidates, and the president is only allowed to choose from that list. If the number of cases causes the court to shrink (using a FIFO rule and term limits), the judges who are furloughed are the first to be picked back up should the court have to expand again.Report

              • Aaron David in reply to Oscar Gordon says:

                While interesting, I was thinking along the lines of a two-thirds vote of the senate.

                I am very leary of attaching numbers to anything like SCOTUS and the number of justices, as it gives a false sense of Science! when in reality it is nothing of sort. Science! can only inform, not decide.

                And I am adamantly against term-limits for SCOTUS, as they are supposed to act as a smoothing brake without fear of political retribution, and terms and limits politicize that overwhelmingly. If judges are in the habit of making piss-poor rulings ie non-compos mentos or extra-legal, then we need to impeach them, not wait for them to term out.Report

              • Jaybird in reply to Oscar Gordon says:

                Word. I want a way to fix the courts in such a way that can get everybody to be vaguely dissatisfied with it but assumes that it knows what it’s doing.Report

              • George Turner in reply to Jaybird says:

                Instead of trying to fix the court, why not get Congress to quit passing so many unconstitutional laws and get Presidents to quit issuing so many unconstitutional executive orders, so that we can all go back to not carrying about the how the court will rule in Bald Man v Buzz Cuts R Us?Report

              • Oscar Gordon in reply to George Turner says:

                You figure out a way to get the parties to nominate serious legislators rather that popularity contest clown shows and I’ll sign on.Report

              • Jaybird in reply to Oscar Gordon says:

                Return to 1800ish levels of representation in the House. Move to 3 Senators in the Senate. Two are direct election as now, the third is picked by the State House in the old fashion.Report

          • North in reply to George Turner says:

            Odd, your boy Mitch and his flock wouldn’t shut up about Obama “packing” the court when it was the DC circuit and other federal positions being filled. As with all Republicans these days, it’s packing if it’s being done by Democrats but it’s governing when it’s done by Republicans.Report

            • Pinky in reply to North says:

              I don’t remember that terminology. Citation?Report

            • George Turner in reply to North says:

              Actually they did shut up. Grassley was quickly corrected by a colleague about his incorrect use of the term, and back then the Washington Post at least knew what the term meant.

              But the Republicans did have a point. The DC circuit had eight justices, but three empty seats. The argument was that the DC circuit, which has the lightest caseload, only needs nine justices, not eleven, as nobody had really needed those extras. So there was a proposal to reduce the DC Circuit to nine instead of eleven. If you’ve got a nine-seat court in mind, and then the other side wants to up it to 11 by nominating three judges at once, it could strike someone as “packing”.

              Frankly, I think the Supreme Court should be reduced to seven seats to help cut the federal deficit. Justices don’t work for free, you know, and each one gets a big staff of clerks. More importantly, they eat up parking spaces that are in short supply in DC. The lack of spaces ripples all the way down to affect some junior staffer at some obscure bureau who has to walk through a dangerous neighborhood to get to work, all because Bret Kavanaugh parked where he did.Report

            • KenB in reply to North says:

              It would be good to have a term for any sort of shenanigans relating to “unfairly” increasing one side’s representation in a court — I guess it might as well be “court-packing”. Obviously there will always be arguments about what qualifies but that’s preferable to arguing over specific word definitions.Report

  4. Jaybird says:

    The Supreme Court is the one institution that still regularly polls at above the old what-used-to-be-considered-bipartisan numbers.

    If I wanted it seen as illegitimate, the thing I would do is pack it.

    If I wanted the states to see the Supreme Court’s decisions fall still-born and have the Supreme Court see that the states cannot be forced to yield to this or that mandate, I’d pack the court first.

    At that point, it’d be left to the various wokies to boycott South Dakota or whatever. “We’re going to stop going there on vacation and for our various conventions!”, they can threaten.Report

    • Pinky in reply to Jaybird says:

      Agreed. This article argues for 15 justices as the highest number that wouldn’t be absurd, as if the act of choosing a number for maximum political benefit isn’t absurd.Report

  5. Chip Daniels says:

    The strongest reason for expanding the court is that the opposition party has stopped being a reliable partner in democracy.
    Unless and until the Republicans demonstrate a willingness to respect the norms of a representative democracy they have to be kept away from the levers of power by any means necessary.Report

    • Damon in reply to Chip Daniels says:

      You want to define “they have to be kept away from the levers of power by any means necessary.”? “Cause a lot of folks might interpret that statement as a whole lot different than what you might think.Report

    • Aaron David in reply to Chip Daniels says:

      Respect the norms like threatening to pack the court at the first opportunity because Republicans are following the constitution?

      Respect the norms like screaming about the need to impeach even before a president-elect takes office? And then impeaching him over a crime that the Dem candidate actually bragged about doing?

      Respect the norms like attempting to end the electoral college when their loser of a candidate couldn’t even beat Donald F’n Trump?

      Respect the norms like changing the process for selecting judges and then complaining when your ideological opponent uses those methods?

      That kind of respect the norms? Or were you talking about some other kind of respect?Report

  6. Chip Daniels says:

    And today, the court ruled against curbside voting in Alabama.

    Again, the only consistent logic is whatever reduces voter participation.Report

    • y10nerd in reply to Chip Daniels says:

      The Democratic Party would not be able to meaningfully legislate in a world with a 6-3 conservative majority whose most frequent target is making it harder on all peoples, particularly ethnic minorities to vote.

      Their goal is South Africa.Report

    • Michael Cain in reply to Chip Daniels says:

      No. The district court ruled that a federal court could grant county election officials the authority to create new voting methods — curbside — in violation of Alabama constitution and statute that reserve that authority to the state. The SCOTUS ruled that the district court was incorrect about being able to grant such power.

      The same argument would apply in Colorado if some of the counties tried to create curbside voting at the vote centers they operate for people who prefer in-person voting. Under the state constitution and statute, the counties lack the authority to do that.Report

      • Chip Daniels in reply to Michael Cain says:

        Sometimes the state’s authority over elections is upheld, other times overruled.

        The only consistent outcome is that every time, access to voting is reduced.

        Yes, I know there is a logical argument for why this is so.
        Because there is ALWAYS a logical argument for virtually anything. That’s why decisions are not unanimous, and there are always dissents.

        I just think its no coincidence that we never see Republican judges rule in ways that expand voting access.

        When faced with two logical arguments, they always pick the one favoring reduction in voter access.Report

        • Pinky in reply to Chip Daniels says:

          What are your parameters here? My understanding is that the PA decision had Roberts siding with the liberals. Do we count that? How far back do we go? I’d think that the current cases have to be counted differently because we’re facing an unprecedented situation. So, which are the cases we’re considering?Report

        • Michael Cain in reply to Chip Daniels says:

          Well, the federal judge did kick the Republicans out of court in Nevada, although I do not know who appointed him.

          It was a particularly stupid case, since the Republicans were asserting that vote by mail in and of itself violated federal statute and the Constitution. That was all they had, since Nevada’s VBM for this election was not done by some officials stretching their authority. The state legislature had a special session and added a decent VMB system to the state’s election laws.Report

  7. Pinky says:

    “The four new justices will all be liberals of one sort or another, but they won’t all have the same judicial philosophy and invariably one of them (or one of the current liberal justices) will side with conservatives in one case or another”

    I think you have that backwards. So many decisions are 5-4 on the side of the liberal justices, because the liberals vote in a pack and the conservatives are willing to follow the law and their jurisprudence to different positions. Do you think that the kind of judge who would be nominated in order to pack the Court is going to be wildly more flexible than the current liberal justices? The whole idea of packing the Court is of a kind with the liberal judicial approach of getting the political benefit you want without regard to the law. As a matter of statistical fact, the Democratic-nominated justices are far more likely to reach the conclusion favored by the Democrats than the Republican-nominated justices are to reach the conclusion favored by the Republicans.Report

  8. Chip Daniels says:

    The inside story of how the Trump campaign sought to suppress minority voting in Florida:

    How the Trump campaign used big data to deter Miami-Dade’s Black communities from voting

    Once more, the Republican Party has decided that since they can’t persuade citizens to vote for them, they simply try to keep them from voting.

    It isn’t hyperbole to say the Republican Party is a direct threat to American democracy.Report

    • George Turner in reply to Chip Daniels says:

      Why would they want to do that? Lots of blacks are voting for Trump.

      Kanye, 50 Cent, Ice-T, Ice-Cube, the list keeps growing. Voting Trump is rebellious. It’s freedom. It’s bucking “the man” by being a man. Trump rap is a genre now. Trump Is Your President (remix)

      What’s amusing is that when the black community flips, Democrats will double down on keeping blacks from voting, just like they did for two centuries.Report

    • Pinky in reply to Chip Daniels says:

      When you say “suppression”, you mean “not suppression”, right?Report

      • Philip H in reply to Pinky says:

        so you don’t agree the things in Chip’s article are designed to prevent Black Americans from voting?Report

        • Chip Daniels in reply to Philip H says:

          They themselves literally called it “deterrence”. They wanted to deter African Americans from voting.

          This isn’t open for debate. They said this.Report

          • George Turner in reply to Chip Daniels says:

            Heck, I want to deter Democrats from voting Democrat. I want to deter everyone from voting Democrat. ^_^

            I won’t even pussy foot around the subject. It’s wrong and they shouldn’t do it.Report

        • George Turner in reply to Philip H says:

          Well, judging by the article, we can probably ban the Democrat party for trying to illegally suppress Trump voters by running ads that say “Don’t vote for Trump!” Running negative ads that might incline someone not to vote for the other candidate is now “voter suppression” in liberal la-la land.

          The article itself says

          Murtaugh did not answer questions about how the campaign defined deterrence, what messages it targeted to those voters, or why the deterrence category even existed in its internal data if those voters were shown the same ads as persuasion voters.

          Gee, running ads aimed at getting people to vote for your candidate instead of the other candidate, by pointing out the other candidate’s record, is now some kind of evil, nefarious scheme?Report

        • Pinky in reply to Philip H says:

          prevent =/= deter

          Black people have agency.

          Beyond that, it looks like they categorized people by beliefs and likelihood of voting, and targeted ads to all 8 groups, right? It doesn’t even look like they did meaningful racial targeting if they were discouraging Cuban-Americans from voting.Report

          • Chip Daniels in reply to Pinky says:

            But its noteworthy that the Republicans have given up any hope at all persuading Black people to vote for them.

            But rather than reconsider their policy, all they can do is find ever more exotic ways of discouraging them from voting at all.

            So again, the Republicans have come to view democracy itself as their enemy.Report

            • George Turner in reply to Chip Daniels says:

              Are you kidding. Black people all over Youtube saying that Trump is the only person actually trying to win their vote.

              Strange fact: Any black person who votes for Trump isn’t black! Biden said so.Report

            • Dark Matter in reply to Chip Daniels says:

              Gas-lighting people into thinking they’re facing genocide doesn’t seem honourable nor conductive to having democratic norms.

              I’d say it’s a big step towards thinking the other side can’t be trusted with power and anything goes for preventing them from having it. “Anything goes” means things like court packing, murder, and even overthrowing the gov if the wrong side wins.Report

              • Chip Daniels in reply to Dark Matter says:

                America isn’t in immediate danger of genocide.

                But we are in immediate danger of losing representative democracy where the government operates with the consent of the governed.Report

              • Dark Matter in reply to Chip Daniels says:

                we are in immediate danger of losing representative democracy where the government operates with the consent of the governed

                How so?

                Is this a “[my] team needs to win or we burn stuff down” line of thinking?Report

              • Chip Daniels in reply to Dark Matter says:

                The Republicans have abandoned any pretense of wanting to represent the majority of Americans, and have resorted to trying to deter the rest from voting so as to rule by a minority.Report

              • George Turner in reply to Chip Daniels says:

                No, we’re trying to deter the rest from voting for an incredibly corrupt politician like Joe Biden, who was raking in money from Russia, Ukraine, China, Romania, Kazakhstan, and lord knows where else.

                And his associates are now rolling on him, and going to the FBI with all the e-mails, text messages, and photos.Report

  9. George Turner says:

    The effort to get Joe Biden to say whether he intends to pack the court are not, and put at least something out there before election day, as abjectly failed.

    He now says that we all have to wait until July 21, 2021 to find out if he’ll pack the court or not, and that the decision won’t actually be his, because he’s going to appoint a “bipartisan commission” to tell him whether he should pack the court or not.

    The man is incapable of making decisions.Report

  10. Koz says:

    I don’t think court packing is as big a threat as the more partisan commentators on Right and Left think it is. First of all, it requires a Demo majority in the Senate, which they might not get.

    But even if they do, it will also require almost unanimous support from a thin Demo majority in the Senate, which they probably won’t get. There will be a lot of speculation that Sen Manchin will defect, but it obscures that there will be probably at least 10 other Demo senators who will be reluctant or outright opposed, at least in their own minds.

    It’s a similar scenario to ACA back in 2009-2010, except that then, they were moving forward toward some version of collectivized health care, which is something that almost all Democrats badly wanted, even if there were substantial disagreements about exactly what form that would take. Here, they are trying to move forward on a priority that only the Twitter/identity politics Left really wants. And in the end, even Demo primary voters had little reluctance to Heisman those people. I don’t think the overall political establishment or public opinion in general will be any more favorable.

    I do think DC statehood is a little more viable.Report

  11. Mitch just said the quiet part out loud.

    A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” Majority Leader Mitch McConnell said after the vote. “They won’t be able to do much about this for a long time to come.”

    Think how good it would feel not just to restore balance to the Court but to destroy McConnell’s legacy.Report

  12. Kavanaugh is now issuing election rulings quoting Bush v. Gore (he was a lawyer for Bush).

    They’re asking for it.Report

    • George Turner in reply to Mike Schilling says:

      Why wouldn’t they cite precedent? Is the left wanting a new rule whereby justices can’t cite their previous decisions? Will they be required to overturn themselves with each new case, or what? Was Thurgood Marshall required to recuse himself from all Civil Rights cases? Was RGB forbidden from ruling on any case that involved women?Report

      • Bush v. Gore specifically says “Our consideration is limited to the present circumstance”, i.e. do *not* consider this a precedent.Report

        • Dark Matter in reply to Mike Schilling says:

          Bush v Gore had two rulings.

          1) 7-2 You can’t count one set of votes more carefully than the others in an effort to grub for votes.
          2) 5-4 Stop this endless recounting of Florida and move on.

          The first part seems like good ruling that can and should be a precedent. The 2nd was a heat-of-the-moment thing that the Supremes shouldn’t have touched.Report