ChrisWeigant.com

Full Court Press

[ Posted Thursday, April 15th, 2021 – 16:07 UTC ]

Democrats in both the House and Senate just unveiled bills to increase the size of the Supreme Court from its current nine members up to 13. The motivation behind this is obvious: Democrats see two out of the three Supreme Court justices Donald Trump got to appoint as being totally illegitimate. First, Barack Obama was denied a pick because Mitch McConnell got all sanctimonious about a brand-new "tradition" he made up out of whole cloth: "the voters should have a say" in such decisions. This cuts completely against what the United States Constitution actually says, but whatever. Second, when Ruth Bader Ginsburg died, McConnell suddenly developed a great passion for denying the voters a chance to be heard in the decision, and hustled through a Trump pick in record time, just before the election. Because two seats flipped from liberal to conservative, the court's makeup is now 6-3 conservative, whereas it would have wound up 5-4 the other way if liberals had had their way. So, to rectify this, Democrats are proposing to hand Joe Biden four new picks, which would leave the balance at 7-6 liberal, in a new 13-member court.

This is, quite obviously, court-packing. Liberals don't care what you call it, they consider it righting a wrong and providing fairness once again. They consider it the only way to see true justice done, in other words.

However, the bills are going nowhere. Nancy Pelosi has already stated: "I have no intention to bring the bill to the floor" of the House, which is pretty much a death sentence, right there. Pelosi explained that she wants to give the blue-ribbon commission just announced by President Joe Biden a chance to do its work and make its recommendations. She didn't outright condemn the idea of court-packing, she just says she wants to wait, for now.

But maybe these bills are more of a political motivator for the court itself? That, like the concept of packing the highest court in the land, certainly has precedent. The term "court-packing" was coined to describe the effort by Franklin Delano Roosevelt to get a Supreme Court that wouldn't strike down all the things he was trying to do in his New Deal. After several major initiatives of his were struck down by the conservative court he inherited, Roosevelt proposed adding up to six new justices, via the "Judicial Procedures Reform Bill of 1937." This would have heavily swung the court to his ideological side.

His own Democrats in Congress killed the idea. It was too much for them to stomach. But here's the aftermath, or at least one popular version of it, from Wikipedia (picks up right after F.D.R. devoted one of his famous "Fireside Chats" to sell the public on the idea):

Three weeks after the radio address, the Supreme Court published an opinion upholding a Washington state minimum wage law in West Coast Hotel Co. v. Parrish. The 5-4 ruling was the result of the apparently sudden jurisprudential shift by Associate Justice Owen Roberts, who joined with the wing of the bench supportive to the New Deal legislation. Since Roberts had previously ruled against most New Deal legislation, his support here was seen as a result of the political pressure the president was exerting on the court. Some interpreted Roberts' reversal as an effort to maintain the Court's judicial independence by alleviating the political pressure to create a court more friendly to the New Deal. This reversal came to be known as "the switch in time that saved nine"; however, recent legal-historical scholarship has called that narrative into question as Roberts' decision and vote in the Parrish case predated both the public announcement and introduction of the 1937 bill.

This interpretation (rightly or wrongly) assumes something that most people never talk about or want to admit (or even contemplate): the justices of the Supreme Court do not live in a vacuum and are susceptible to political pressure, especially when the makeup of their own court is in question. Which indeed might be the whole point of Democrats introducing the bills right now -- as a sort of warning shot across the Supreme Court's bow.

That is certainly possible. But the news, as well as speculation on what the blue-ribbon commission will agree upon, has started another round of suggestions for other possible court reforms. And one of them seems to me to be a lot more appealing than the others.

The Washington Post had an article today outlining four of these suggested schemes. The others, very quickly are:

 

Allow every president to name two new justices per presidential term

This scheme is succinctly described in the article:

To discourage obstruction, these two seats should "open" in the first year of the president's term, and they should expire if they are unfilled at the end of four years so as not to provide a windfall to a future president. As new justices join the bench and sitting justices depart, the size of the Court would fluctuate and likely stay above the current nine justices, and it would include periods with an even number of justices. Over the course of 20 years the Court would likely expand to somewhere in the range of 15 justices. Critically, such a change could be implemented without a constitutional amendment.

 

Institute term-limits on the high court

Allow justices to serve only 18 years. After that, they would not actively hear any more cases. This gets a little tricky, because there are two questions to answer: what would they do afterwards, and would the current justices be subject to the new rules, or would they be grandfathered in (or, considering their advanced ages, more like great-grandfathered in)? Could they somehow be "kicked upstairs" to some "senior status" or "Justice Emeritus" position, where they would (assumably) still technically be lifetime appointments and draw their salary, but be judicially powerless? Or maybe move them back to their previous appellate court positions? Also, another tough hurdle -- would this plan require a constitutional amendment?

 

Make the selection process bipartisan

This is the most vague of all the four ideas. Somehow, in some sort of fashion, make the nominees be suggested by some sort of bipartisan group. Again, since the Constitution is pretty clear on this one, it would likely require an amendment to strip this power from the president. Also, now may not be the best time to rely on achieving bipartisanship in Washington for anything, much less high court nominations.

 

But it's the fourth idea that to me is (pun intended) most appealing. Instead of having nine permanent members of the Supreme Court, handle each case the same way that appellate courts now assign them -- randomly, to a panel that is a subset of the whole. Here is one idea for how to make this concept work:

The basic idea is that each of the approximately 180 active federal appeals court judges would be appointed as associate justices of the Supreme Court. Then, every two weeks, nine of these judges would be randomly selected to serve on the nation's highest Court. After two more weeks, a different panel of nine would be selected. (In this system, the current justices could also be eligible to rotate onto a temporary panel of nine, but they would no longer sit permanently on that panel.)

To me, it makes more sense to do it on an actual case-by-case basis rather than "two weeks," but I could see problems with such a scheme, too. Who, after all would decide which cases to accept? Would they have to assign a different nine for every single case submitted, and then if a majority voted not even to hear the case, then that would just be that? Or would one set of nine make the decisions for a future (unchosen, as of yet) group of nine?

You could even bend pretty far in the other direction -- that might work too. Name nine Supreme Court justices for each term, and have them serve a full year. That might be more workable, but it would be less flexible (if one particular random pick wound up with a heavily-tilted court, the other side is not going to be very happy about that, to point out the obvious problem).

But such details could likely be worked out, to everyone's partial satisfaction (at least). The assignments would have to be totally random, but the appeals courts have already largely solved this problem -- you rarely hear one side or the other complain all that loudly about which judges they get assigned to them in appellate cases.

These are all likely to be studied by the blue-ribbon commission. Perhaps one or more of them will be recommended, even. There are more ways to reform the high court than just packing it to assure the balance swings to your side, after all.

I remain skeptical that any of these things will actually happen, though. Especially the ones that would require a constitutional amendment, since the ratification bar is so impossibly high. Biden's not all that gung-ho about reforming the court to begin with, so he could essentially let his commission report and then put that report on a shelf to collect dust. That'd be the most likely result -- it has certainly happened before with all sorts of important issues.

To be fair, in my mind the most likely positive outcome here could well be the one that happened before -- the current court gets so defensive about the raw politics being contemplated to "fix" it that the conservatives on the court start considering maybe siding with the liberals a wee bit more often -- at least on some select high-profile cases. This would defuse the politics enormously.

F.D.R. got his own revenge -- and a much friendlier Supreme Court -- by essentially living long enough (and getting re-elected enough times). By the time he died, enough justices had left the court (died or retired) that he was able to name his own majority. So he got the last laugh, in the end.

That option is, for obvious reasons, not going to be very viable for Joe Biden. No matter how hale and hearty he is, he is still the oldest man elected president in all American history. And the Twenty-Second Amendment now forbids him from serving more than two terms, no matter what his lifespan may ultimately prove to be.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

30 Comments on “Full Court Press”

  1. [1] 
    John From Censornati wrote:
  2. [2] 
    nypoet22 wrote:

    yeah, this isn't ever going to happen, it's just a little nine-dimensional chess on the president's part.

  3. [3] 
    MtnCaddy wrote:

    Nancy Pelosi has already stated: "I have no intention to bring the bill to the floor" of the House, which is pretty much a death sentence, right there.

    And HERE is where I suspect that Nancy is, like Joe, "practicing politics."

    This is a gentle reminder that if we want a functional government we should elect people ("damned

  4. [4] 
    MtnCaddy wrote:

    ...swamp creatures/Washington insiders.") Unlike, say, the last administration. Trump ruined it for Oprah and Tom Steyer and others.

    Yep, I think Wikipedia offers analysis that BEST explains the SCOTUS "turnaround."

    Recall, too, that Dubya's Chief Justice John Roberts has caught a sort of "What's going to be my legacy here on the SCOTUS fever" that afflicts many a Justice who teaches "The Show."

  5. [5] 
    MtnCaddy wrote:

    IMO McConnell packed the courts to establish a second bulwark against "majority rule" here in 'Murica. The Senate being, as in the 60s onward, the FIRST bulwark. For this reason I predict zero Repug cooperation on "Court Reform."

  6. [6] 
    John M from Ct. wrote:

    OK, that's an interesting list of ways to reform the Court.

    The first rule of reform is (or should be), "OK, so how will the bad guys try to subvert this?"

    In other words, think ahead with your opponents' point of view. Here, let's say, the opponents are the conservative party with a structural minority of the electorate, but a constitutional majority in the Senate and Electoral College that lets them put conservative justices on the Supreme Court in numbers far outweighing their relative success in getting the popular vote for president and for senators nationwide. How are these guys going to capture and put to use your favored fourth option, the one about the Appeals Courts providing a rotating cast of Supreme Court justices?

  7. [7] 
    Don Harris wrote:

    We will not get a Supreme Court that is worth a damn until we get a political system that is worth a damn.

    We will not get a political system that is worth a damn until we purge the big money interests from our political system.

    We will not purge the big money interests from our political system until we get a press that does their job instead of being useless propagandists breathlessly pontificating about the show as if it was real.

    Over 500,000 dead and you keep spewing moosepoop.

    Q: "Hey Bungalo Bill what did you kill?"
    A: Over 500,000 Americans, millions of non-Americans in our endless wars and democracy.

    Wake up. Wise up. Rise up.
    Get real.
    Get Credible.

  8. [8] 
    MtnCaddy wrote:

    I love the following quote from a fresh and interesting POLITICO article, Democrats agonize over game theory on Biden’s $2T-plus spending plan.
    Democrats are clearly at a crossroads on whether or not to work with their GOP colleagues. And the clock is ticking.

    Sen. Joe Manchin (D-W.Va.) expressed a desire to collaborate with Republicans but acknowledged that at some point Democrats might end up going their own way, according to a source familiar with the call.

    So. I hope, in my secret heart of hearts, that this is Mr. Joe "Don't fergit...that Ah Keeps Winning in Redneckville" Manchin is, like Joe and now Nancy (h/o CW,) "doing politics?" Or "working politics" or even "playing politics" -- as in, "I'm in a GROOVE! The damn basket looks big as an ocean to me! Just gimme tha damn ball!" A leaping and hopping on a moon shadow easy?

    Signed --
    Hopeful. But Not Quite Exacatackaly Holding my breath in Country-Cali

  9. [9] 
    MtnCaddy wrote:

    'Tever, Weigantia. Things are way better under Joe "C'mon...do I look like a Radical Socialist? With a soft spot for rioters? Really?" Biden and we ain't close to hunnert days yet.

  10. [10] 
    Kick wrote:

    Great writeup, CW.

    I tend to agree with MtnCaddy on this issue. The career politicians know exactly what they're doing here, and Biden et alia have an angle they're playing. Remember that Biden has been on the "DC beat" for eons now and knows exactly what he's doing... playing a game of "good cop/bad cop" as per standard operational procedure... with the exception that he's now in a position to play both of them. Biden is the coach and the quarterback, and I wouldn't bet against him getting a lot done during the time of his presidency. No president is going to be able to deliver on everything, but Biden is the right man for the times we are living in.

    Speaking of Supreme Court chicanery, Biden delivers Merrick Garland to head the Department of Justice. You don't think that was mere coincidence, do you? I don't. :)

  11. [11] 
    Kick wrote:

    Don Harris
    7

    We will not purge the big money interests from our political system until we get a press that does their job instead of being useless propagandists breathlessly pontificating about the show as if it was real.

    You appear to be confused regarding the American press and dumbfounded regarding a political blog versus "the press." The press in America generally reports on current events. Your bullshit is neither current nor an event.

    Over 500,000 dead and you keep spewing moosepoop.

    Your stale shit hasn't changed since the first person died so what exactly is it that you are doing to change anything besides the same thing that has gotten you nowhere? Rhetorical question.

    Meanwhile, look at all the destruction you've allowed to happen, Death Harris. Murderer.

  12. [12] 
    Kick wrote:

    MtnCaddy
    8

    Signed --
    Hopeful. But Not Quite Exacatackaly Holding my breath in Country-Cali

    I feel ya.

    https://www.youtube.com/watch?v=9vYCjqtNaKA

    :)

  13. [13] 
    MtnCaddy wrote:

    [11]

    It's true, Death Harris. All the years you've put into, what's it called, "Oh -- Dimentia!" when you coulda been saving half a million 'Murican's lives.*smh*

  14. [14] 
    MtnCaddy wrote:

    [12]

    Yeah, Kiddo. I was just napping my comment and the 24/7 juke box in my head just jumped onto those lyrics.

    "It's a Boomer thang...and you wouldn't understand," Miss Texas.

  15. [15] 
    MtnCaddy wrote:

    ...just BAPPING IN my comment..."

  16. [16] 
    MtnCaddy wrote:

    Enough! More Scotch...quickly!

    But Captain! Tricorder readings indicate the lack of scotch in the area.


    Dammit! Damned tribbles have been raiding the ship's alcohol stores again?

  17. [17] 
    MtnCaddy wrote:

    Then set phasers on "Kill" and shoot those tribbles.

    Make it so!

  18. [18] 
    MtnCaddy wrote:

    And here's an intriguing POLITICO article The GOP-Big Business Divorce Goes Deeper Than You Think.

    In short, it posits that Corporate America cares far more about the instability that will inevitably follow in the wake of Repug voter surpression. In fact, the author states that having to pay higher taxes isn't even in the same ballpark. This is why folks like Coca-Cola and MLB are taking a stand in Georgia.

  19. [19] 
    Don Harris wrote:

    Kick (11)-
    I am confused about the press vs. a political blog?

    Nothing you said cleared anything up.

    Normally when making a comparison you describe the differences between the two or more things.

    You simply said the press reports on current events.

    What is the difference between the press and a blog?

    One Demand is not current?

    Did I miss the part when big money was eliminated from our political process?

    The people in a position of power are the ones responsible for the deaths.

    That is the Deathocrats, Republikillers, the big money interests and the media (including bloggers) that have enabled the Deathocrats, Republikillers and big money interests by spewing their moosepoop instead of exposing their lies and hypocrisy.

    Way to blame one of the victims for the deaths caused by the people that are oppressing the people that are trying to solve problems.

    MY "stale shit" hasn't changed because CW and the rest of the deceivers "stale shit" hasn't changed.

    And it is CW and the rest of the deceivers "stale shit" that caused the election of Trump and the over 500,000 covid deaths because they used their power for evil instead of doing good.

    It is not too late to do the right thing, CW.

    All you have to do is defend democracy instead of helping to kill it along with the millions it kills annually around the world and at home.

    You don't have to become Edward R. Murrow, but you have to at least stop being a "reporter" on Entertainment Tonight cheerleading the deception.

  20. [20] 
    Bleyd wrote:

    MtnCaddy [18]

    Makes a lot of sense. Taxes are one thing, they can be accounted for ahead of time and figured in to operational costs. Protests and riots though, those are pretty hard to predict and account for, and can potentially be far more costly. Shops are going to order a lot less Coca-Cola when they're closed or on fire. Also, the stock market in general tends to frown upon instability and uncertainty, so shareholders are going to get hit there as well.

  21. [21] 
    nypoet22 wrote:

    @caddy/bleyd,

    good point about taxes vs. social unrest.

    the solution of course is pie.

  22. [22] 
    TheStig wrote:

    DH-19

    I agree with the first 3 words of your post...you are confused. The rest of the words entirely support this assertion.

  23. [23] 
    nypoet22 wrote:

    some people are confused by pie. fruit? meat? meringue? it's a very complex topic, but a very elegant solution to all our political problems.

  24. [24] 
    Kick wrote:

    Don Harris
    19

    I am confused about the press vs. a political blog?

    State the obvious; your confusion has been obvious for many and multiple years. Normally when people use a question mark, it is preceded by an actual question rather than a glaringly self-evident fact.

    Nothing you said cleared anything up.

    Reading is fundamental; understanding simple English and comprehending the written word isn't your strong suit... the very reason why you are repeatedly encouraged by multiple posters to "take a class" or "work on it."

    Normally when making a comparison you describe the differences between the two or more things.

    Said the board "poster boy" comparing diametrically opposed political entities while insisting repeatedly there is little difference... one of the primary reasons you are frequently not taken seriously.

    You simply said the press reports on current events.

    I don't have memory issues, and I also pointed out that you were confused and dumbfounded... among other points I made.

    What is the difference between the press and a blog?

    I hereby rest my case on the obvious fact that you've been demonstrably confused about this for multiple years, and your incessant equating of those different things is not at all unlike your obvious confusion regarding the two dominant political parties among the many others in America.

    One Demand is not current?

    Normally when people use a question mark, it is preceded by an actual question rather than a glaringly self-evident fact. Full disclosure: I nicked that comment from above... stole it verbatim from myself because it seemed infinitely appropriate in both instances.

    Did I miss the part when big money was eliminated from our political process?

    You have repeatedly missed the part and the obvious fact that individual contributions are already limited by definition in United States statute and that your personal crusade to redefine "big money" to fit "your idea" wouldn't even scratch the surface to accomplish said elimination and doesn't address the reality of where the "really big money" is actually originating. "Your idea" misses the forest for the trees... a swing and a miss... batter out.

    The people in a position of power are the ones responsible for the deaths.

    The people who lied about the virus are definitely responsible for some of the deaths; however, a virus is responsible for the deaths... it's science but not rocket science.

    That is the Deathocrats, Republikillers, the big money interests and the media (including bloggers) that have enabled the Deathocrats, Republikillers and big money interests by spewing their moosepoop instead of exposing their lies and hypocrisy.

    You too have a website presenting your political opinion, and that therefore makes you the equivalent of "the press"... by your own definition, of course. Murderer.

    Way to blame one of the victims for the deaths caused by the people that are oppressing the people that are trying to solve problems.

    Thank you for confirming my observations about you and your whining grievances... ever the whiney "victim" and victimhood that comprises the near entirety of the platform of the GQP, QAnon nuts, MAGAts and Trumpanzees.

    I reiterate my prior statement that no one is oppressing your ability to state your opinion... least of all CW who has given you a platform for a shit-ton of years (nearly) unabated in which to "solve problems." I reiterate also that you are undeniably and irrefutably the author of a website containing your political opinions, and by your own definition, that makes you "the press" of which you obsessively bitch and moan. Murderer.

    MY "stale shit" hasn't changed because CW and the rest of the deceivers "stale shit" hasn't changed.

    I think it is a major step that you've admitted your shit is indeed stale. Now we're getting somewhere... you're going to have to change your stale shit or continue to accomplish what you've accomplished so far... the murder of Americans because of your obvious inaction in selling your political opinion on your website and CW's website and however many websites of the other "press" where you've failed along with your own, of course.

    I reiterate that CW's website is not stale and has my full support... and we now agree on yours so...

    And it is CW and the rest of the deceivers "stale shit" that caused the election of Trump and the over 500,000 covid deaths because they used their power for evil instead of doing good.

    That "good and evil" sermon you've got there is surprisingly biblical for a person who insists there is no God. Have you considered the fact that your repeated insistence that God doesn't exist is why you're an abject failure at political activism and repetitive instances of word salad contained on "press" websites... you babble on like the story of Babylon wherein God smote them with terminal confusion. That would sure explain everything. It's not too late to repent, you know. Evildoer. :)

  25. [25] 
    Kick wrote:

    nypoet22
    21

    @caddy/bleyd,

    good point about taxes vs. social unrest.

    It was.

    the solution of course is pie.

    It is... provided there is an ingredient of chocolate, of course. :)

  26. [26] 
    Bleyd wrote:

    nypoet22 [21]

    Naturally pie is the solution. There's a pie for everyone, and given enough, everyone gets a piece of the pie.

  27. [27] 
    Kick wrote:

    nypoet22
    23

    some people are confused by pie. fruit? meat? meringue? it's a very complex topic, but a very elegant solution to all our political problems.

    It becomes easy as pie with chocolate... for God invented chocolate on the third day when He separated the water and made dry ground appear and vegetation began to grow, including Theobroma cacao... the cacao tree that is native to deep tropical regions of Mesoamerica. Theobroma means "food of the gods."

    Thus ends our sermon on chocolate. :)

  28. [28] 
    nypoet22 wrote:
  29. [29] 
    Kick wrote:

    Amen... for chocolate doth indeed derive from a fruit tree.

    GOD: Right! Arthur, King of the Britons, your Knights of the Round Table shall have a task to make them an example in these dark times.

    ARTHUR: Good idea, oh Lord!

    GOD: Course it's a good idea! Behold! Arthur, this is the Holy Grail. Look well, Arthur, for it is your sacred task to seek this Grail. That is your purpose, Arthur, the Quest for the Holy Grail.

    ;)

  30. [30] 
    Kick wrote:

    A founding member of Antifa who was one of the first to enter the Capitol during the January 6 insurrection has agreed to plead guilty and testify against other groups who acted in premeditated coordination while breaching another wing of the Capitol at virtually the same time... except -- sorry (not sorry) to burst your literal bubbles, gullible righty rubes -- it wasn't Antifa at all but, in point of fact, the far-right anti-government militia group known as "Oath Keepers."

    Jon Schaffer is the first flipper in the massive investigation into the deadly insurrection and will not be the last. Jon has entered into a cooperation agreement with investigators 100 days (not a coincidence) after a mob of Trump supporters including Proud Boys and other low-life traitors to America who violently overran the Capitol and attacked and killed or maimed 140+ police officers. Schaffer, who originally faced six counts, pleaded guilty to two charges:

    * Obstructing an official proceeding
    * Entering restricted grounds with a dangerous weapon.

    Every one of these Traitors belongs in prison for their crimes against the United States, and that includes the pathological lying elected politicians who disseminated the propaganda that radicalized these terrorists and provoked their attack on the Capitol.

    In his plea deal, Schaffer acknowledged that he was among the first people to force their way through police lines and into the United States Capitol on January 6. Schaffer also acknowledged wearing a tactical vest and carrying bear spray.

    https://www.npr.org/2021/04/16/988120319/justice-department-secures-1st-guilty-plea-of-capitol-riot-investigation

    So to recap: Not Antifa. It was Oath Keepers, Proud Boys, QAnon conspiracy nuts, and various other assorted gullible Trump supporters who bought "all in" to the Big Lie and were deceived by Duping Donald... the victims of the pathologically lying con artist who claimed to be a billionaire who didn't need campaign contributions yet fleeced the gullible rubes right out of theirs (and continues doing so), radicalized them to attack the United States Capitol and our democracy, and still wouldn't spit on them to put them out if they were on fire. Enjoy prison.

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