We have had the same rules since the dawn of the country. When Democrats lose - they think the rules should be changed so they can win. Literally, alter EVERYTHING so they can win. They are delusional, poor losers. The problem is not the system- the problem is the their message and ideology. They are getting rejected, and can't deal with the reality of why.
When will we admit that the constitution is a spectacularly flood document as is the whole concept of states in a country has interconnected and as large as the US is. That the people of Wyoming have as much vote in the Senate as the people California is ludicrous. Especially when so much of the Flaws by the federal government applies to everyone. But a small group of conservative States get to hold inordinate power. Thomas Jefferson recognized at the outset that this was ludicrous it's Constitution could apply to Future Generations. Given the onerous amendment process, we are stuck with a really flawed document
The Senate exists because the Founders envisioned a large country, not a small one. Many of them farmers, they understood urban rule, by those unfamiliar and uninterested in rural life. They had no desire to continue to be subservient to those who considered themselves morally and intellectually superior, by virtue of birth or address.
In actuality, they anticipated today's US, with nearly unimaginable accuracy.
Until the United States came into existence- you lived totalitarism, feudalism or monarchy. What this country did was so revolutionary, that it's sad that you cannot even recognize the brilliance of the founders and that document.
Indeed, representative democracy was a great achievement. That, virtually all of the representatives to the Federal Convention of 1787 is a credit to them, though some, as you may know, wanted more class patriarchy. But the debate itself was highly political between the small and large states, and the large states compromised way too much, in my opinion, just to get most of the attendees to sign it. At the time the largest states weren’t even 10 times the size of the smallest state. Today California is 66 times larger than Wyoming. There is so much more the founders could not have anticipated that it’s problematic that the Constitution is so difficult to amend.
I would counter that treating the States as any less sovereign than the countries of EU is ludicrous. The right balance had been struck until the 17th Amendment. That is what needs to be repealed in order to let each State be the State they want to be.
I don’t think that’s a great analogy. The citizens of different states are not that different. There is greater commonality between the rural residents of Wyoming and New York and the urban residents of Florida and California. I don’t think states are homogeneous is this global society.
Bob - I believe you've skipped over a critically important factor about the Senate: without it, there would be no United States of America.
Before the revolution, the independent states were not dissimilar in structure to the today's EU member states.
Over the course of the 13 years it took to arrive at what it's called today the Constitution, one thing became abundantly clear: there was no way in the world the smaller states were going to sign on to a proportional representation system that allowed bigger states to dwarf them in political power.
The question to you and other proponents of a unicameral, proportional-only legislative body" is: why on earth would a smaller than average sovereign state ever agree to this?
For example, if today you were the president of Malta, would you join the EU if it meant Germany and its 83 million people would have 139 votes in the legislature to Mata's 1? (Malta has about 600,000 people.)
And if you did, would you feel you had appropriately represented Malta's citizens? Or would you feel you had just consigned Malta to be a remote outpost of big states, with little to no say in its own governance?
The ratios in the 13 colonies were not on the same scale, but they were stark nonetheless. In 1780, Virginia's population was 540,000. Delaware's was 45,000, Rhode Island's was 53,000, and Georgia's was 56,000.
A single body legislature with proportional representation would have given Virginia literally 10 times the power of these three states. It essentially would have returned them to "subject" status -- a status they'd just fought a bloody war to shed.
In response, the framers agreed to split the difference, and provide a bicameral legislature of each stripe: one based on proportional representation; the other an "even up" body where each state gets two votes, regardless of size.
Here's how the modern-day math looks: California currently has 52 votes in the House, while six states have 1. So in that body, California has 52 times the legislative power of the Delawares and Wyomings.
(Similarly in the House, California has 26 times the power of the five states that have 2 seats, and about 18 times the legislative power of the five states that have 3 seats. All told, just under half the republic -- 23 states -- have 5 or fewer seats in the House, and the combined 46 House seats apportioned to the 20 smallest states still don't add up to California's legislative clout in the House. Soi this is an issue of great significance.)
Now here is what the math looks like in the Senate, where every state gets two seats: Delaware, with its population of 1 million, has 40 times the legislative power of California and its 40 million people. So do Wyoming, Alaska, North and South Dakota, and Vermont, although California's House power ratio is actually higher than 52-1 since the latter five states have populations are in the 600k-900k range.)
In summary, in our bicameral legislature, California has 52x the power of those six states in the House, and those six states have 40x the power of California in the Senate.
So I again I ask: how and why in some people's minds is this such a monumental travesty of legislative representation? Until about 10 years ago, it was seen as an eloquent compromise intended to equalize (roughly) the legislative power and influence of the California and the Delawares.
I've put this question to several proponents of "abolishing" the Senate, which they've been led to believe was created to [their paraphrasing] hold down the citizenry, codify white supremacy, etc.
They all go silent, though in fairness the people I hang with are generally not nearly as well-informed as the folks on your average Substack comment board.
Am I missing something? Can anyone tell me why it's a bad thing to equalize legislative power this way? It's exasperating to see politicians and media intentionally deceiving people about the great compromise when the framers also provided voluminous public records of exactly why they landed on a bicameral legislature.
They also were trying to divide power as widely as possible, and fearful that a unicameral legislature would become too powerful relative to the rest of government.
Thanks for your thoughts. Here are mine but first with a few qualifiers:
I’ve never advocated the elimination of the Senate because:
It’s constitutionally impossible. The equal representation of states in the Senate is specifically mentioned as not subject to an amendment.
Reading the debate in the Constitutional Convention, it is certainly possible that the smaller states may have refused to sign it, but that doesn’t mean that eventually they would have relented given that as small states, they would have been defenseless against further outside aggression. But that’s all speculation. We can only speculate what would have happened if just the big states united.
But we can mitigate the unfairness of the Senate by eliminating or reforming the filibuster, which was accidental when Aaron Burr made a suggestion to change the Senate rules that no one at the time understood the consequences. By the 1830s, a few Senator realized there was no way to cut off debate, and thus, the filibuster was born. It was then codified in the Senates rules and changed a couple of times. At the very least the filibuster should be changed because as it now stands states representing about 17% of the population can prevent legislation that states representing 83% of the population want. We could change it so that the states would need to represent at least 45% of the population or the filibuster is invalid.
And the amendment process has made it too hard to fix things. See Jill Lepore’s book “We the People: the History of the Constitution.”
Your comment that “In summary, in our bicameral legislature, California has 52x the power of those six states in the House, and those six states have 40x the power of California in the Senate” ignores “One man, one vote,” which is what democracy should be, IMHO.
The concept of states is outdated in today’s global society, but there’s little we can do about. In colonial America, people rarely left their state, the economies were more homogeneous. Today, the residents of Jackson, MS have more in common with the residents of Chicago, and the rural residents of MS have more in common with the rural residents of NY, but in both cases one group has no power in the Senate.
We can argue all day about whether the founders got it right, but let’s admit that it was a political compromise—not genius—that big states made that has come back to haunt us
So what you’re saying is that you could never sincerely take an oath to “preserve, protect, and defend the constitution of the United States”, because both the constitution and the idea of states are worthless.
Why is the argument regarding the disproportionate representation of larger states always about constitutional change? The simpler solution, and one for which there is historical precedence, would be to divide the larger states into more manageable smaller states. The "Cal 3" proposal was an attempt at this. I would argue the bulk of Americans would rather fix what's broken and not just tear it all down.
The 17th Amendment seems to have confused a lot of people (and should be undone as far as I'm concerned). The Senate does not represent the people or the population, per se, but each state's interest as a whole. Without that, what would be the reason for the states to even be united?
That's not true of the 60-vote cloture rule to end filibusters, which the Senate adopted in 1917 at the urging of Democratic President Woodrow Wilson. It's a century-old Senate rule, not part of the Constitution or an original feature of our government.
The filibuster started way before Woodrow Wilson. It was a fluke that the senate had no rule for debate closure. I think it was Senator Calhoun who first took advantage of it.
Democrats are mad about the cloture rule, as the article noted. C.C 95 commented: "We have had the same rules since the dawn of the country." That’s not true of cloture.
Ah, fair point. I saw the filibuster/cloture notion as separate from the court discussion and so did not read C.C.'s comment as being encyclopedic so much as thematic. We've had plenty of constitutional, statutory, and rule changes since 1789, but as a constitutional republic, our framework has been remarkably stable for a long time, even when severely tested during and after the Civil War. To C.C.'s point, it is remarkable how Dems want to change the rules when they don't win. 50+ years of a "liberal"-leaning SCOTUS wasn't enough. They seem to want it to be permanent.
And to the original author's point about being cautious in changing the rules, it wasn't so long ago that many came to regret Harry Reid's decision to nuke the filibuster for non-SCOTUS nominees.
Not sure we need to be declaring party affiliation, but I'm not even an independent. I'm a [small l] libertarian. ;)
1) I am not a fan of the Democrats, but the Republicans are no better on any of this.
2) The Supreme Court nominations are a different kettle of fish, as vacancies are random and if they keep coming when the other party is in power, then you end up with Trump nominating over a four year period the same number of Supreme Court Justices as Obama and Biden did over a 12 year period.
3) When the Senate abuses its role of advice and consent and refuses to consider a Supreme Court nominee for purely partisan advantage, don't act offended when Democrats feel the need to complain about the system not working.
The democrats believe that if they don't win = the system is not working and must be upended. They are the unruly child that flips the game board because they are not winning.
"The Eastman memos, also known as the "coup memo",[6][7] are documents by John Eastman, an American law professor retained by then-President Donald Trump, advancing the fringe legal theory that the Presiding Officer of the United States Senate, either the President of the Senate or the President pro tempore, has the unilateral authority to count, deliberate over, and reject certified state electors and electoral votes."
"Trump and Eastman adhered to the memos in an unsuccessful campaign to pressure then-vice president Mike Pence into obstructing the 2021 United States Electoral College vote count and overturning the 2020 United States election of Joe Biden, in an attempt to have Trump retain power.[10] The Trump campaign engaged Eastman with a formal retainer agreement signed December 5 for services in litigating the election outcome.[11][12] The memos have been described as an instruction manual for a coup d'état.[13]"
Unlike Donald Trump and much of the GOP that believe everything was fair and no cheating when they lose...
Not saying you are wrong about the Democrats. Just saying that they are not unique and both parties bitch and moan about the system being broke when things do not break their way.
We seem to have all forgotten that the federal government is supposed to be under full control of the states, not the people, and certainly not political parties. All elections to federal office run thru individual states. There is no national popular election for anyone, and that was on purpose.
Political parties have no authority whatsoever.
While you're at it, remember that independents are by far the biggest majority in America, far exceeding either party.
These are things that the MSM media prefer that you not think about, so they never bring it up. I bring it up.
The Electoral College is ingenious. We would have no reason to be "united states" without it. Just like having 2 senators representing each state, we have electors allowing each state to have a say in who becomes our president. How long do you think we'd stay united if California and New York were the only states with input?
The people, by population, are represented by the House. That's it.
No. I am talking about the Democrats. They want to abolish the Senate, The Supreme Court, the Pentagon, and the Constitution. Literally, changing every rule, law, and the very structure of our country.....Just so they can win.
So Democrats' proposed solution to their perception of the politicization of the SC is to further politicize the SC. Their endless "the sky is falling" rhetoric makes it impossible for them to see more than one step ahead.
"Confirmation hearings for new justices carry extremely high stakes and only serve to worsen tensions between the parties..." And if we go with term limits, we'll be treated to these tensions endlessly. It was the Democrats' blatant weaponization of an objectively substanceless and unverifiable sexual assault alegation against Kavanaugh that began my turn away from the Left in 2018. They've only gone further and further off the deep end since then.
Democrats don't address the "What happens when Republicans get to use that power?" question because their plan is always that Republicans will never get power again.
I don't think this is a Democrat thing. It's just a partisan thing.
Look at the way DJT has used Executive Orders in the past two years.
You'd have to plan on the Democrats never having power again to believe that the same methods won't be used by them on Republicans in the future.
When a future Dem president issues, on day 1 of their administration, the 'Executive Order to Establish Universal Single-Payer Healthcare in the United States', and starts acting on it immediately--knowing it will be months before the Supreme Court rules on it--will there be any self-reflection on the GOP's part? Or when [insert future Dem president] creates the 'Department of Governmental Modernization' to begin spending the funds required for a Single-payer system, regardless of the Congressional appropriation rules?
In this polarized environment I highly doubt either party will do any amount of self-reflection. Particularly now that Trump has shredded the last remaining uncodified norms that kept the parties from descending entirely into unilateral political realpolitik.
Isn't there something to the case that they should at least be making the threats? Republican threats to nuke the filibuster in 2003-2004 provoked concessions by Senate Democrats.
What should Democrats do in a world where Roberts genuinely is ruling by fiat? If more Alito dissents started becoming majority opinions? Packing skeptics struggle to define a red line, because doing so would risk admitting that Roberts already crossed it in Callais, Trump v. US, the Insurrection Case, etc.
Pick up a book on the Warren Court. For nearly 15 years it was hard to find opinions that even leaned slightly Right.
No one sought to pack SCOTUS. Dems controlled the House for decades. No Reps demanded more seats. They altered their policies to be more popular.
Roberts has slapped Trump plenty. Biden's SCOTUS losses largely stemmed from far Left polices that no one else would even attempt. Biden began by forgiving farm debt, based exclusively on skin hue. If an American was born at the tail end of the Baby Boom, that has been blatantly illegal their entire lives. Biden enacted the policy knowing it would be struck down, but handing out as money as possible, via skin color, before SCOTUS killed it.
Central to this argument, which I support, is the idea that restoring the trust and legitimacy of America’s governing institutions is a core imperative sitting *upstream* of any given political objective. And that is vital to internalize, because there is so often a tradeoff between trust and temporary gains.
“The other option… is to simply do the hard work of persuading more voters to support them and building a large, durable coalition that can eventually reform the court through the current process. “
Simple, yet profound and widely ignored. If both parties tried to do this we would be an even better country today (and we are by far the best already).
This is so self-evidently a fig leaf for a partisan court packing scheme that it is difficult for me to believe anyone can say it with a straight face. If this is the rationale, can we do it today and give Trump four more appointments? If we had a single honest journalist in this country that a Democrat would agree to be interviewed by, this would be the obvious first question.
The other option is the only option. There is not going to be an amendment radically changing any aspect of our Constitutional structure that the Democrats see as a shortcut back to power. No dissolution of the Senate. No radical change in how the Court is chosen. No doing away with the electoral college. Every time these proposals are pushed or someone delegitimizes an institution of our Constitution, it weakens the system that much more. Its long past time for both parties to stop with the politics of grievance and start the much harder act of persuasion.
No ammendment is required to change the structure of the court. The Constitution gives the legislature the power to set up the federal court system only requiring a Supreme Court with lifetime members appointed bt the President and approved by the Senate. No mention of how many members on SCOTUS. The last expansion to 9 members was done by a law.
Incorrect. The Supreme Court is made up of members who the Constitution required be appointed by the president for life. The numbers can be changed but not the others.
What "others"? The power to replace a justice who dies in office or retires would still belong to the current President. Only newly created offices would be limited so the next elected President gets to make the choice. Indeed, SCOTUS itself could refuse to seat any new appointee after a packing attempt was made.
Article III of the Constitution states that the Justices of the USSC will be appointed by the president subject to Senatorial consent for life. Any change to that requires a Constitutional amendment. Period.
The amazing thing is that- SCOTUS should be, by its very nature- completely partisan-free. They have ONE job and one job only: Is it Constitutional? That is not about ideology, that is about adherence to the written law.
Hence the whole departure from the originalist position. The whole progressive position can be summed up by a theoretical blank page filled by whatever happens to be popular in liberal elite circles at the time.
The living constitution argument is one predicated on equal outcomes not equal treatment. It's two different visions of equality. The Progressive view is an ideological rarity globally. It doesn't really exist outside the West. The rest of world is perfectly fine with entrenched hierarchies. It's why every other culture scores higher on Hofstede's Power Distance Index. When socialist revolutions do occur its because the population wants to be rid of a foreign elite, a less corrupt ruling elite, or because they want to be part of the new elite themselves, not because they want a more flat and equal society, although universal poverty usually delivers in this last regard.
Have you read the Lion and the Unicorn? Orwell makes a good deal of the natural suspicion of authority. I think it's something laudable found across all of the Anglosphere. Put another way, the Anglosphere has an allergy to being managed. It's ironic, given we live in cultures replete with both corporate and bureaucratic managerialism.
This is indeed a running narrative, but recent rulings like the one on Birthright Citizenship has made clear there are, in actuality, no 'originalists' on the Supreme Court.
Actually, Chief Justice Marshal claimed the prerogative for SCOTUS to declare a law or part thereof, unconstitutional. The original concept was simply how does a law as written apply in this case and in general. Until Marshal, what ever Congress passed as a law was legal. It was declared early in the new government, 1803, was generally accepted, and has been respected ever since. How the law applies as written is still the chief duty of all courts, and if guaranteed rights have been respected.
The only coherent argument for court-packing is an accelerationist one, in which you are knowingly inciting a race-to-the-bottom that will involve each successive political administration adding more justices until the system more or less implodes, and both parties are forced to agree on some kind of large-scale reform.
It is a coherent idea, but a very very bad one.
I would note, however, that what McConnell did to block Obama's nominee is itself just a surreptitious method of court-packing--so you could argue we've unfortunately already begun the process. It's on the Democrats to hold back the urge to respond in kind...and in this polarized environment, that restraint will be increasingly difficult to find.
It's a credit to Biden that he explicitly rejected the idea.
Obama was a lame duck with zero control of the senate when McC did that. The voting public had taken away Obama's ability to anoint someone, and McC understood this. Obama did not even attempt to use the bully pulpit to put pressure on McC.
He was a weak president, and this is what happens to weak presidents. ==
That realpolitik ‘might makes right’ logic is exactly the logic deployed by advocates of (further) court packing.
The constitution doesn’t specify how many justices there are on the Supreme Court. That is set by statute. So court-packing supporters argue that next time the Dems have regained Congress and the presidency, they should change the relevant statutes on court size to expand the court, and allow the sitting Democratic president to select a new supermajority of justices. All of that is perfectly legal to do.
In response to criticism that even if legal, this tramples on norms of good statecraft and will elevate partisan warfare further, they’ll say “who cares about such ‘norms’? The people will have voted for it, by voting us into power. The GOP will be too weak to stop us, and this is what happens to weak parties..”
As the author of the article is trying to point out, such a view is corrosive to American democracy, because it leads to mutually destructive escalation. If you want to use it to rationalize what McConnell did, fine—but you are also rationalizing the strategy of advocates for packing the court. And it all ends in a worse place for the country.
Politics is about summoning the will of the people. And, in the McC block, he paid no price for it. Obama was weak, and at that point in his presidency had lost every bit of the ability to summon the people to come to his defense and force the R's to consider Garland. Indeed, the public rewarded McC with turning down HRC and electing Trump.
When FDR attempted court packing, he was swiftly rebuffed in the court of public opinion, showing what even a popular president can face when he goes against the wishes of the voting public. The Dems can also try packing the court, but if they make too much noise about it, as they are currently doing, it could cost them the presidency they would need to make it happen. Or, not, and it could go through fine. That is where and when the corrosive effect takes place, and it isn't where the blame is currently being placed.
Right now the power of the left is waning, even with Trump being not super popular at this time. Why? They were up too long, and have forgotten how to engage with the people on a one to one level, and, instead, have relied on a media that has lost control.
I am neither a Rep or Dem, and this isn't something that even remotely concerns me. The wishes for "good statecraft" are self serving BS that imagines a past that never existed. Look at the thirties, with the forementioned FDR shutting out the Reps at every opportunity as the depression wore on and there was a left populist feel in the air, and that was only stopped by WWII. Look at the Civil War, look at the reactions to Jackson. Look at 1968, and how that changed politics. This is nothing new, and trying to make up some past era of great comity is not going to help.
Again, power is shown in the use of it, no matter how much our host or his former colleagues may long for a past time. Which, looking back, never existed.
If power is shown in the use of it, then there’s really no point to democracy. In fact, under that paradigm, democracy is a terrible system, where you are willingly relinquishing power to the people you are supposed to use power to rule over.
That was, btw, the theory of statecraft that Mussolini and the Italian fascists endorsed. Allowing power to be dictated by the whims of a politically and economically divided populace was seen as diluting the power of the nation-state, and its ruler, and thus limiting their ability to fully use it to accomplish the goals of the nationalist project. (The communists likewise had to be crushed for this reason)
The President who signs a bill changing the Supreme Court should not get to appoint any new member created by that law. A new President, elected at least 1 year and one inauguration after the bill is signed, would be enabled to make any new appointments due to a law change. This would insist that a vote that could change the party in power must happen first and give the people a say in who gets to choose the new members. It should slow down any attempt to pack the court for pure political reasons because a loss tothe opposition would be a serious blow.
Republicans, too conservative to try and pack the court themselves, might try to pass such a law to prevent Democrats from packing the court. Some Senate Democrats might go along with it, to prevent the Republican default position of going ahead and packing the court first. If Trump demanded and enough Senators seem to be saying,"Try this first, then we can go nuclear if it fails." In truth, it does protect both parties.
Any attempt to change the rules of the system so that one's party can gain power demonstrates that the party in question is UNWORTHY of holding that power. Democrats embrace of the urban Brahmin Left has made them a minority party that is NOT competitive in elections nationally. Whining about the Supreme Court and Electoral College demonstrates that Democrats have no interest in representing all Americans...but only the special interest groups that constitute their base. The Electoral College exists to insure that both large and small states, urban and rural areas, and all parts of the country remain integral to forming the national government and prevent a few large population centers from running roughshod over more lightly populated areas. The rural voters in states dominated by urban areas (NY, MN, IL) could just as easily argue that their state executives should also be elected via a county style electoral system that would restore balance to THEIR governments. So...sorry...but the more Democrats seek to "change" the system for their benefit, the more the voters will reward Republicans. Democrats need to look in the mirror and address the problems with their own policies...not blame the country for rejecting the often truly idiotic positions that arise from an antisemitic party that cannot even define the difference between a man and a woman.
Democrats would do well to spend a second to imagine how conservatives felt through four decades of a progressively-leaning SCOTUS. And the worst that conservatives did was sport bumper stickers that said, “Impeach Earl Warren”.
I think he’s more supportive of a system involving two rational groups with similar goals and different tactical approaches who can cobble up solutions that work while pissing off roughly equal groups of voters.
Ever notice how housing affordability and affordable homes are two entirely different things and almost always mutually exclusive? I've been looking at Japan's system of zoning. It combines very high building standards with an approach which is many ways more libertarian than Texas. They are the only country which has both managed to keep house prices close to the rate of inflation and do it in a way which doesn't reduce overall home ownership or involve large government expense.
My point would be that it's possible for most people in most Western countries to agree on the goals, but almost impossible to get them to agree on how to get there. The smart way to tackle American housing would be to introduce a new rung on the ladder for starter homes and build massively, with a exemption for most non-safety building codes and zoning laws. It's a class of homes which is drastically underserved in America and hasn't been built at scale for decades.
The trick would be explaining to people that starter homes would add value further up the housing ladder, because building equity quickly expands people's purchasing power.
The average home size in Japan is around 1,000 square feet. How hard would it be to have affordable tiny apartments or homes? Who would want to live in them...
As I used to put it in Seattle 30 years ago: “Affordable housing” is not the same thing as a dirt cheap apartment.
Non-safety building codes shouldn’t exist. They only serve to drive up the cost of housing and make starter homes unprofitable.
A big problem on the US west coast is growth boundaries, that constrain the land available for new housing. The environmental rationale behind them is understandable, but in the words of Thomas Sowell: There are no solutions; only trade offs.
When it comes to zoning my only firm stance is that those decisions are made locally and not forced from state capitals or worse DC.
I agree. I probably fall into the former liberal mugged by reality category. I should also mention that it was only when I hit my late forties that I finally realised that for my entire life my core political value had been civil libertarian. In the last few years I have discovered a love of C.S. Lewis and Chesterton quotes.
Another favourite is Sevareid's Law "The chief cause of problems is solutions."
You're absolutely right about intentions. I used to be hopelessly naive.
While I understand the ramifications of expanding the Supreme Court, the current court has so routinely chosen to ignore stare decisis or precedence and endorse openly political positions, as well as open corruption in the cases of Alioto and Thomas, that extreme remedies are required.
The greater danger to Democrats is cementing their reputation as the party unable to serve their constituents effectively, and thus losing the trust of their own base, which is where they are currently.
Would I, as a liberal independent, accept another measure of effectiveness? Certainly, Medicare for All, raising the earnings cap on Social Security taxes to ensure the solvency of the program, or cutting wasteful defense spending and procurement would be other examples of achievements.
What the party cannot continue to endure though is the reputation a vote for their politicians is a vote for nothing getting done. Uselessness is worse than over reaching.
One needs to be careful that moderation does not mean staying forever in the middle of the road among dead armadillos, as John Hightower, a long ago Democratic party stalwart, once put it. Moderation must mean effective yet careful change, evaluated for improvement as time goes on.
There is a crucial difference between ineffective rule and necessary and cautious change. The latter is vital for success, the former where the party currently exists.
If your complaint is that the court is too political, then depoliticize it—I give explicit examples in the piece that people seem intent on skipping over for some reason—don’t make moves that are guaranteed to make the problem worse for everyone.
I think far too many people are allowing their frustrations with the court to cloud their judgment and ability to think strategically. There are precisely two possible outcomes to Democrats packing the court: 1) Republicans escalate the next time they have power (in which case you did not actually solve the problem but exacerbated it) or 2) Republicans can’t escalate because there were undemocratic measures taken in pursuit of this end (in which case court-packing proponents have contributed to the “threats to democracy” they purport to want to end).
There’s really no good argument against trying to depoliticize the judiciary unless it’s for purely partisan/retaliatory purposes.
The argument is it can't be done: the justices themselves even made their own code of conduct optional, although such codes are binding on the rest of our courts and judges.
Impeachment has never been a useful solution due to needing 67% of both chambers of congress to agree, which is too high a bar to be workable.
The only hope, outside of declaring martial law and executing the justices, is to expand the court.
Yes, I think this likely to result in an ever expanding court over time and to weaken the court as a result, but the court has too often made critical errors, from destroying the regional consensus on slavery (permitted in the South, banned in the north and west) with Dred Scot, to weakening our first amendment rights to free speech in Schenck, to the unjust imprisonment of Japanese-Americans during WWII (but not, let us note, German or Italian Americans).
I'm okay with a weaker Supreme Court. I'm not okay with a reckless political court, and don't think reform is possible at this point. Given their lifetime tenure (although technically our constitution uses a standard of "good behavior"), the justices have resisted any reforms that might limit their power or whims, and our legal system unfortunately lacks any effective means of ensuring compliance.
We can put up with what we've got or we can change. At this point I personally favor change.
There's also the risk that passivity will provoke more norm-breaking by Republicans. Tit-for-tat is stereotyped as leading to constant escalation. But, in actual game theory, it's the optimal paradigm for competitive environments. https://en.wikipedia.org/wiki/Tit_for_tat
Talk to folk who deal with Medicaid, people who work in your local county hospital. Medicare For All implemented by the folk I just mentioned will tell you that is not going to happen.
Medicare for All isn't the panacea you imagine it to be. Your system is broken because it's wasteful, not because it's underfunded. A good example would be preventative medicine. It could save you a fortune. Because I'm over 50 and somewhat overweight and live in the UK, my GP automatically flagged me for BPM and blood tests. I now take a blood thinner and another medication. The NHS has shifted the needle in hundreds of thousands of cases. Just imagine how costly that would have been providing surgeries, triaging heart attacks, and providing specialist follow up care. Most UHC systems do this. America has a lot of intensive and costly specialist care that does nearly nothing to mitigate the problem before the horse has bolted from the barn.
In the US you have a moral hazard clause at the CBR., although its technically not a clause and is called Patient Cost-Sharing Mechanisms. The theory is that if healthcare is free, patients will be tempted to overuse it. It's not the only thing which is broken about your system. Medicare for All won't fix the problem. Your system needs radical structural reform. You would probably be better off scrapping your current system entirely and adopting the Australian system. It's hybrid model of public commission with private supplementation and both public and private provision seems to work better than either the UK or Canadian models of mostly or purely public healthcare provision.
The problem is that your political system operates on the basis of overly simplistic binaries and narrative messaging. Most health experts globally now acknowledge that the dual-track architecture of Australia is superior to a single track approach, but if you were to poll experts in America they would probably state a preference for Canada over Australia. That's how deep the ideological entrenchment goes. The ACA combined the worst of a hybrid system, the opposite of how Australia operates. It subsidizing private profits without public cost controls.
Great topic, most ignore. We seem to be too engrossed in "will they or won't they", to worry about what happens the day after.
Dems seem very likely to pull the trigger, at their first opportunity. So it might behoove us to contemplate a SCOTUS controlled by Sotomayor, KBJ and their clones.
SCOTUS can reach down and grab any case it so chooses. SCOTUS cases need not wind their way up the legal ladder. That means a Dobbs challenge, filed in a tiny County Courthouse, could theoretically sit before SCOTUS, the next day.
Most of SCOTUS is custom, not Constitutional mandate. Dobbs could be overturned mere days after argument, not with a return to Roe, but with an opinion that abortion can no more be regulated, than a gallbladder removal. That would swiftly make abortion until delivery, the law of the land.
The piece de resistance, however, would be Heller. American gun ownership has long seemed irrevocably protected by the 2nd Amendment and the Ex Post Facto Clause, that bans US retroactive law. There are 400-500 million guns in the US, most legally purchased and never criminally utilized.
While their outright confiscation would seem implausible, nothing prevents a packed SCOTUS from upholding federal law that demands insurance and storage, in such a manner, that renders legal retention all but impossible, for most.
Toss in regulated ammunition, and Dems have the perfect trinity to quickly neuter most US gun ownership. The potential ramifications, boggle the mind.
Admittedly, the above sounds crazy, and for most our history, it would have been. Unfortunately, Dems now seem determined to govern in tantrum. The notion of incremental change no longer enjoys even Left lip service. As the 25th anniversary of 9/11 approaches, we should consider what the failure of imagination has cost us in the past.
Courts are a symptom, not the disease, and often enough justices break ranks and vote with the other team. The disease is ultra partisanship in defence of power, mostly dictated by access to money. That's not to say that the system can't be overcome.
Trump did it in 16, by running against his own party. Do you remember how much the Republicans hated him? With each new primary they supported someone, anyone, who could put a stop to "never touch social security, Iraq was a huge mistake, tariffs, and immigration". All it would take for Democrats would be to have someone run whom both factions of the Brahmin left hated.
We have had the same rules since the dawn of the country. When Democrats lose - they think the rules should be changed so they can win. Literally, alter EVERYTHING so they can win. They are delusional, poor losers. The problem is not the system- the problem is the their message and ideology. They are getting rejected, and can't deal with the reality of why.
When will we admit that the constitution is a spectacularly flood document as is the whole concept of states in a country has interconnected and as large as the US is. That the people of Wyoming have as much vote in the Senate as the people California is ludicrous. Especially when so much of the Flaws by the federal government applies to everyone. But a small group of conservative States get to hold inordinate power. Thomas Jefferson recognized at the outset that this was ludicrous it's Constitution could apply to Future Generations. Given the onerous amendment process, we are stuck with a really flawed document
Many of us see it as brilliant, not flawed.
The Senate exists because the Founders envisioned a large country, not a small one. Many of them farmers, they understood urban rule, by those unfamiliar and uninterested in rural life. They had no desire to continue to be subservient to those who considered themselves morally and intellectually superior, by virtue of birth or address.
In actuality, they anticipated today's US, with nearly unimaginable accuracy.
Until the United States came into existence- you lived totalitarism, feudalism or monarchy. What this country did was so revolutionary, that it's sad that you cannot even recognize the brilliance of the founders and that document.
Indeed, representative democracy was a great achievement. That, virtually all of the representatives to the Federal Convention of 1787 is a credit to them, though some, as you may know, wanted more class patriarchy. But the debate itself was highly political between the small and large states, and the large states compromised way too much, in my opinion, just to get most of the attendees to sign it. At the time the largest states weren’t even 10 times the size of the smallest state. Today California is 66 times larger than Wyoming. There is so much more the founders could not have anticipated that it’s problematic that the Constitution is so difficult to amend.
You do understand that the senate is not about population? It is about each state being sovereign. Population is taken care of in the house.
I would counter that treating the States as any less sovereign than the countries of EU is ludicrous. The right balance had been struck until the 17th Amendment. That is what needs to be repealed in order to let each State be the State they want to be.
I don’t think that’s a great analogy. The citizens of different states are not that different. There is greater commonality between the rural residents of Wyoming and New York and the urban residents of Florida and California. I don’t think states are homogeneous is this global society.
Bob - I believe you've skipped over a critically important factor about the Senate: without it, there would be no United States of America.
Before the revolution, the independent states were not dissimilar in structure to the today's EU member states.
Over the course of the 13 years it took to arrive at what it's called today the Constitution, one thing became abundantly clear: there was no way in the world the smaller states were going to sign on to a proportional representation system that allowed bigger states to dwarf them in political power.
The question to you and other proponents of a unicameral, proportional-only legislative body" is: why on earth would a smaller than average sovereign state ever agree to this?
For example, if today you were the president of Malta, would you join the EU if it meant Germany and its 83 million people would have 139 votes in the legislature to Mata's 1? (Malta has about 600,000 people.)
And if you did, would you feel you had appropriately represented Malta's citizens? Or would you feel you had just consigned Malta to be a remote outpost of big states, with little to no say in its own governance?
The ratios in the 13 colonies were not on the same scale, but they were stark nonetheless. In 1780, Virginia's population was 540,000. Delaware's was 45,000, Rhode Island's was 53,000, and Georgia's was 56,000.
A single body legislature with proportional representation would have given Virginia literally 10 times the power of these three states. It essentially would have returned them to "subject" status -- a status they'd just fought a bloody war to shed.
In response, the framers agreed to split the difference, and provide a bicameral legislature of each stripe: one based on proportional representation; the other an "even up" body where each state gets two votes, regardless of size.
Here's how the modern-day math looks: California currently has 52 votes in the House, while six states have 1. So in that body, California has 52 times the legislative power of the Delawares and Wyomings.
(Similarly in the House, California has 26 times the power of the five states that have 2 seats, and about 18 times the legislative power of the five states that have 3 seats. All told, just under half the republic -- 23 states -- have 5 or fewer seats in the House, and the combined 46 House seats apportioned to the 20 smallest states still don't add up to California's legislative clout in the House. Soi this is an issue of great significance.)
Now here is what the math looks like in the Senate, where every state gets two seats: Delaware, with its population of 1 million, has 40 times the legislative power of California and its 40 million people. So do Wyoming, Alaska, North and South Dakota, and Vermont, although California's House power ratio is actually higher than 52-1 since the latter five states have populations are in the 600k-900k range.)
In summary, in our bicameral legislature, California has 52x the power of those six states in the House, and those six states have 40x the power of California in the Senate.
So I again I ask: how and why in some people's minds is this such a monumental travesty of legislative representation? Until about 10 years ago, it was seen as an eloquent compromise intended to equalize (roughly) the legislative power and influence of the California and the Delawares.
I've put this question to several proponents of "abolishing" the Senate, which they've been led to believe was created to [their paraphrasing] hold down the citizenry, codify white supremacy, etc.
They all go silent, though in fairness the people I hang with are generally not nearly as well-informed as the folks on your average Substack comment board.
Am I missing something? Can anyone tell me why it's a bad thing to equalize legislative power this way? It's exasperating to see politicians and media intentionally deceiving people about the great compromise when the framers also provided voluminous public records of exactly why they landed on a bicameral legislature.
They also were trying to divide power as widely as possible, and fearful that a unicameral legislature would become too powerful relative to the rest of government.
Thanks for your thoughts. Here are mine but first with a few qualifiers:
I’ve never advocated the elimination of the Senate because:
It’s constitutionally impossible. The equal representation of states in the Senate is specifically mentioned as not subject to an amendment.
Reading the debate in the Constitutional Convention, it is certainly possible that the smaller states may have refused to sign it, but that doesn’t mean that eventually they would have relented given that as small states, they would have been defenseless against further outside aggression. But that’s all speculation. We can only speculate what would have happened if just the big states united.
But we can mitigate the unfairness of the Senate by eliminating or reforming the filibuster, which was accidental when Aaron Burr made a suggestion to change the Senate rules that no one at the time understood the consequences. By the 1830s, a few Senator realized there was no way to cut off debate, and thus, the filibuster was born. It was then codified in the Senates rules and changed a couple of times. At the very least the filibuster should be changed because as it now stands states representing about 17% of the population can prevent legislation that states representing 83% of the population want. We could change it so that the states would need to represent at least 45% of the population or the filibuster is invalid.
And the amendment process has made it too hard to fix things. See Jill Lepore’s book “We the People: the History of the Constitution.”
Your comment that “In summary, in our bicameral legislature, California has 52x the power of those six states in the House, and those six states have 40x the power of California in the Senate” ignores “One man, one vote,” which is what democracy should be, IMHO.
The concept of states is outdated in today’s global society, but there’s little we can do about. In colonial America, people rarely left their state, the economies were more homogeneous. Today, the residents of Jackson, MS have more in common with the residents of Chicago, and the rural residents of MS have more in common with the rural residents of NY, but in both cases one group has no power in the Senate.
We can argue all day about whether the founders got it right, but let’s admit that it was a political compromise—not genius—that big states made that has come back to haunt us
So what you’re saying is that you could never sincerely take an oath to “preserve, protect, and defend the constitution of the United States”, because both the constitution and the idea of states are worthless.
Why is the argument regarding the disproportionate representation of larger states always about constitutional change? The simpler solution, and one for which there is historical precedence, would be to divide the larger states into more manageable smaller states. The "Cal 3" proposal was an attempt at this. I would argue the bulk of Americans would rather fix what's broken and not just tear it all down.
* flawed document * laws not flaws
Click on the three dots above your comment to edit it.
The 17th Amendment seems to have confused a lot of people (and should be undone as far as I'm concerned). The Senate does not represent the people or the population, per se, but each state's interest as a whole. Without that, what would be the reason for the states to even be united?
Who determines “each state’s interest”?
The same state legislatures, which should still be appointing their senators.
That's not true of the 60-vote cloture rule to end filibusters, which the Senate adopted in 1917 at the urging of Democratic President Woodrow Wilson. It's a century-old Senate rule, not part of the Constitution or an original feature of our government.
https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate
The filibuster started way before Woodrow Wilson. It was a fluke that the senate had no rule for debate closure. I think it was Senator Calhoun who first took advantage of it.
Indeed. But the controversy the article cited is over the cloture rule, which was not adopted until 1917.
Correct. But what does that have to do with C.C. 95's point?
Democrats are mad about the cloture rule, as the article noted. C.C 95 commented: "We have had the same rules since the dawn of the country." That’s not true of cloture.
FWIW, I'm a political independent.
Ah, fair point. I saw the filibuster/cloture notion as separate from the court discussion and so did not read C.C.'s comment as being encyclopedic so much as thematic. We've had plenty of constitutional, statutory, and rule changes since 1789, but as a constitutional republic, our framework has been remarkably stable for a long time, even when severely tested during and after the Civil War. To C.C.'s point, it is remarkable how Dems want to change the rules when they don't win. 50+ years of a "liberal"-leaning SCOTUS wasn't enough. They seem to want it to be permanent.
And to the original author's point about being cautious in changing the rules, it wasn't so long ago that many came to regret Harry Reid's decision to nuke the filibuster for non-SCOTUS nominees.
Not sure we need to be declaring party affiliation, but I'm not even an independent. I'm a [small l] libertarian. ;)
They like it when it benefits them and dislike when it doesn't.
1) I am not a fan of the Democrats, but the Republicans are no better on any of this.
2) The Supreme Court nominations are a different kettle of fish, as vacancies are random and if they keep coming when the other party is in power, then you end up with Trump nominating over a four year period the same number of Supreme Court Justices as Obama and Biden did over a 12 year period.
3) When the Senate abuses its role of advice and consent and refuses to consider a Supreme Court nominee for purely partisan advantage, don't act offended when Democrats feel the need to complain about the system not working.
The democrats believe that if they don't win = the system is not working and must be upended. They are the unruly child that flips the game board because they are not winning.
https://en.wikipedia.org/wiki/Eastman_memos
"The Eastman memos, also known as the "coup memo",[6][7] are documents by John Eastman, an American law professor retained by then-President Donald Trump, advancing the fringe legal theory that the Presiding Officer of the United States Senate, either the President of the Senate or the President pro tempore, has the unilateral authority to count, deliberate over, and reject certified state electors and electoral votes."
"Trump and Eastman adhered to the memos in an unsuccessful campaign to pressure then-vice president Mike Pence into obstructing the 2021 United States Electoral College vote count and overturning the 2020 United States election of Joe Biden, in an attempt to have Trump retain power.[10] The Trump campaign engaged Eastman with a formal retainer agreement signed December 5 for services in litigating the election outcome.[11][12] The memos have been described as an instruction manual for a coup d'état.[13]"
John Eastman, 'January 6 scenario'--https://www.govinfo.gov/content/pkg/GPO-J6-DOC-CTRL0000923171/pdf/GPO-J6-DOC-CTRL0000923171.pdf
Donald Trump & John Eastman. "Re: Engagement Letter for Legal Services" https://storage.courtlistener.com/recap/gov.uscourts.cacd.841840/gov.uscourts.cacd.841840.132.2.pdf
'Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol'. https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf
Unlike Donald Trump and much of the GOP that believe everything was fair and no cheating when they lose...
Not saying you are wrong about the Democrats. Just saying that they are not unique and both parties bitch and moan about the system being broke when things do not break their way.
Dems didn’t do this though. You are talking about hypotheticals
Some of those rules, like the electoral college, are bad
Why?
We seem to have all forgotten that the federal government is supposed to be under full control of the states, not the people, and certainly not political parties. All elections to federal office run thru individual states. There is no national popular election for anyone, and that was on purpose.
Political parties have no authority whatsoever.
While you're at it, remember that independents are by far the biggest majority in America, far exceeding either party.
These are things that the MSM media prefer that you not think about, so they never bring it up. I bring it up.
We haven't forgotten. The Democrats just reject it.
How is that a case for using a system borrowed from the Holy Roman Empire?
Huh?
Do you have a point?
The Electoral College is ingenious. We would have no reason to be "united states" without it. Just like having 2 senators representing each state, we have electors allowing each state to have a say in who becomes our president. How long do you think we'd stay united if California and New York were the only states with input?
The people, by population, are represented by the House. That's it.
It’s not ingenious. It’s a system that leads to failure.
It's almost like you didn't read beyond the word 'ingenious.' Maybe you'd prefer to actually be 50 separate countries with no umbrella?
Failure as in Democrats don't get their way?
In the UN, each nation gets one vote, regardless of size. Do you oppose this?
You are talking about Trump.
No. I am talking about the Democrats. They want to abolish the Senate, The Supreme Court, the Pentagon, and the Constitution. Literally, changing every rule, law, and the very structure of our country.....Just so they can win.
So Democrats' proposed solution to their perception of the politicization of the SC is to further politicize the SC. Their endless "the sky is falling" rhetoric makes it impossible for them to see more than one step ahead.
"Confirmation hearings for new justices carry extremely high stakes and only serve to worsen tensions between the parties..." And if we go with term limits, we'll be treated to these tensions endlessly. It was the Democrats' blatant weaponization of an objectively substanceless and unverifiable sexual assault alegation against Kavanaugh that began my turn away from the Left in 2018. They've only gone further and further off the deep end since then.
Democrats don't address the "What happens when Republicans get to use that power?" question because their plan is always that Republicans will never get power again.
I don't think this is a Democrat thing. It's just a partisan thing.
Look at the way DJT has used Executive Orders in the past two years.
You'd have to plan on the Democrats never having power again to believe that the same methods won't be used by them on Republicans in the future.
When a future Dem president issues, on day 1 of their administration, the 'Executive Order to Establish Universal Single-Payer Healthcare in the United States', and starts acting on it immediately--knowing it will be months before the Supreme Court rules on it--will there be any self-reflection on the GOP's part? Or when [insert future Dem president] creates the 'Department of Governmental Modernization' to begin spending the funds required for a Single-payer system, regardless of the Congressional appropriation rules?
In this polarized environment I highly doubt either party will do any amount of self-reflection. Particularly now that Trump has shredded the last remaining uncodified norms that kept the parties from descending entirely into unilateral political realpolitik.
100%. There will never be a republican senator or congressman in New Mexico after their State Supreme Court approved political gerrymandering.
Isn't there something to the case that they should at least be making the threats? Republican threats to nuke the filibuster in 2003-2004 provoked concessions by Senate Democrats.
What should Democrats do in a world where Roberts genuinely is ruling by fiat? If more Alito dissents started becoming majority opinions? Packing skeptics struggle to define a red line, because doing so would risk admitting that Roberts already crossed it in Callais, Trump v. US, the Insurrection Case, etc.
Pick up a book on the Warren Court. For nearly 15 years it was hard to find opinions that even leaned slightly Right.
No one sought to pack SCOTUS. Dems controlled the House for decades. No Reps demanded more seats. They altered their policies to be more popular.
Roberts has slapped Trump plenty. Biden's SCOTUS losses largely stemmed from far Left polices that no one else would even attempt. Biden began by forgiving farm debt, based exclusively on skin hue. If an American was born at the tail end of the Baby Boom, that has been blatantly illegal their entire lives. Biden enacted the policy knowing it would be struck down, but handing out as money as possible, via skin color, before SCOTUS killed it.
Central to this argument, which I support, is the idea that restoring the trust and legitimacy of America’s governing institutions is a core imperative sitting *upstream* of any given political objective. And that is vital to internalize, because there is so often a tradeoff between trust and temporary gains.
“The other option… is to simply do the hard work of persuading more voters to support them and building a large, durable coalition that can eventually reform the court through the current process. “
Simple, yet profound and widely ignored. If both parties tried to do this we would be an even better country today (and we are by far the best already).
So much constructive thought and sound advice. Are any Dems listening? [And for the long haul, any Reps as well?)
There are any number of Senate Democrats who, for better or worse, have established firm positions against packing or even nuking the filibuster.
Who , recently, other than Fetterman?
Like Joe Manchin or Kyrsten Sinema?
"Some Democrats have argued that this is a commonsense measure designed to align the number of seats on the Court with the number of district courts."
Did you mean the number of federal appeals courts? There are 13 of those, as opposed to 94 federal district courts.
Thanks for catching that -- just updated the piece.
I respect someone who admits a mistake and corrects it gracefully.
This is so self-evidently a fig leaf for a partisan court packing scheme that it is difficult for me to believe anyone can say it with a straight face. If this is the rationale, can we do it today and give Trump four more appointments? If we had a single honest journalist in this country that a Democrat would agree to be interviewed by, this would be the obvious first question.
They'll just move on to citing the 94 as justification for the next expansion once the 13-person court swings to the Right
The other option is the only option. There is not going to be an amendment radically changing any aspect of our Constitutional structure that the Democrats see as a shortcut back to power. No dissolution of the Senate. No radical change in how the Court is chosen. No doing away with the electoral college. Every time these proposals are pushed or someone delegitimizes an institution of our Constitution, it weakens the system that much more. Its long past time for both parties to stop with the politics of grievance and start the much harder act of persuasion.
No ammendment is required to change the structure of the court. The Constitution gives the legislature the power to set up the federal court system only requiring a Supreme Court with lifetime members appointed bt the President and approved by the Senate. No mention of how many members on SCOTUS. The last expansion to 9 members was done by a law.
Incorrect. The Supreme Court is made up of members who the Constitution required be appointed by the president for life. The numbers can be changed but not the others.
What "others"? The power to replace a justice who dies in office or retires would still belong to the current President. Only newly created offices would be limited so the next elected President gets to make the choice. Indeed, SCOTUS itself could refuse to seat any new appointee after a packing attempt was made.
Article III of the Constitution states that the Justices of the USSC will be appointed by the president subject to Senatorial consent for life. Any change to that requires a Constitutional amendment. Period.
The amazing thing is that- SCOTUS should be, by its very nature- completely partisan-free. They have ONE job and one job only: Is it Constitutional? That is not about ideology, that is about adherence to the written law.
Hence the whole departure from the originalist position. The whole progressive position can be summed up by a theoretical blank page filled by whatever happens to be popular in liberal elite circles at the time.
The living constitution argument is one predicated on equal outcomes not equal treatment. It's two different visions of equality. The Progressive view is an ideological rarity globally. It doesn't really exist outside the West. The rest of world is perfectly fine with entrenched hierarchies. It's why every other culture scores higher on Hofstede's Power Distance Index. When socialist revolutions do occur its because the population wants to be rid of a foreign elite, a less corrupt ruling elite, or because they want to be part of the new elite themselves, not because they want a more flat and equal society, although universal poverty usually delivers in this last regard.
Have you read the Lion and the Unicorn? Orwell makes a good deal of the natural suspicion of authority. I think it's something laudable found across all of the Anglosphere. Put another way, the Anglosphere has an allergy to being managed. It's ironic, given we live in cultures replete with both corporate and bureaucratic managerialism.
This is indeed a running narrative, but recent rulings like the one on Birthright Citizenship has made clear there are, in actuality, no 'originalists' on the Supreme Court.
I keep trying to find myself a Hyman Minsky T-shirt on Amazon UK!
Actually, Chief Justice Marshal claimed the prerogative for SCOTUS to declare a law or part thereof, unconstitutional. The original concept was simply how does a law as written apply in this case and in general. Until Marshal, what ever Congress passed as a law was legal. It was declared early in the new government, 1803, was generally accepted, and has been respected ever since. How the law applies as written is still the chief duty of all courts, and if guaranteed rights have been respected.
The only coherent argument for court-packing is an accelerationist one, in which you are knowingly inciting a race-to-the-bottom that will involve each successive political administration adding more justices until the system more or less implodes, and both parties are forced to agree on some kind of large-scale reform.
It is a coherent idea, but a very very bad one.
I would note, however, that what McConnell did to block Obama's nominee is itself just a surreptitious method of court-packing--so you could argue we've unfortunately already begun the process. It's on the Democrats to hold back the urge to respond in kind...and in this polarized environment, that restraint will be increasingly difficult to find.
It's a credit to Biden that he explicitly rejected the idea.
Obama was a lame duck with zero control of the senate when McC did that. The voting public had taken away Obama's ability to anoint someone, and McC understood this. Obama did not even attempt to use the bully pulpit to put pressure on McC.
He was a weak president, and this is what happens to weak presidents. ==
That realpolitik ‘might makes right’ logic is exactly the logic deployed by advocates of (further) court packing.
The constitution doesn’t specify how many justices there are on the Supreme Court. That is set by statute. So court-packing supporters argue that next time the Dems have regained Congress and the presidency, they should change the relevant statutes on court size to expand the court, and allow the sitting Democratic president to select a new supermajority of justices. All of that is perfectly legal to do.
In response to criticism that even if legal, this tramples on norms of good statecraft and will elevate partisan warfare further, they’ll say “who cares about such ‘norms’? The people will have voted for it, by voting us into power. The GOP will be too weak to stop us, and this is what happens to weak parties..”
As the author of the article is trying to point out, such a view is corrosive to American democracy, because it leads to mutually destructive escalation. If you want to use it to rationalize what McConnell did, fine—but you are also rationalizing the strategy of advocates for packing the court. And it all ends in a worse place for the country.
Politics is about summoning the will of the people. And, in the McC block, he paid no price for it. Obama was weak, and at that point in his presidency had lost every bit of the ability to summon the people to come to his defense and force the R's to consider Garland. Indeed, the public rewarded McC with turning down HRC and electing Trump.
When FDR attempted court packing, he was swiftly rebuffed in the court of public opinion, showing what even a popular president can face when he goes against the wishes of the voting public. The Dems can also try packing the court, but if they make too much noise about it, as they are currently doing, it could cost them the presidency they would need to make it happen. Or, not, and it could go through fine. That is where and when the corrosive effect takes place, and it isn't where the blame is currently being placed.
Right now the power of the left is waning, even with Trump being not super popular at this time. Why? They were up too long, and have forgotten how to engage with the people on a one to one level, and, instead, have relied on a media that has lost control.
I am neither a Rep or Dem, and this isn't something that even remotely concerns me. The wishes for "good statecraft" are self serving BS that imagines a past that never existed. Look at the thirties, with the forementioned FDR shutting out the Reps at every opportunity as the depression wore on and there was a left populist feel in the air, and that was only stopped by WWII. Look at the Civil War, look at the reactions to Jackson. Look at 1968, and how that changed politics. This is nothing new, and trying to make up some past era of great comity is not going to help.
Again, power is shown in the use of it, no matter how much our host or his former colleagues may long for a past time. Which, looking back, never existed.
If power is shown in the use of it, then there’s really no point to democracy. In fact, under that paradigm, democracy is a terrible system, where you are willingly relinquishing power to the people you are supposed to use power to rule over.
That was, btw, the theory of statecraft that Mussolini and the Italian fascists endorsed. Allowing power to be dictated by the whims of a politically and economically divided populace was seen as diluting the power of the nation-state, and its ruler, and thus limiting their ability to fully use it to accomplish the goals of the nationalist project. (The communists likewise had to be crushed for this reason)
The President who signs a bill changing the Supreme Court should not get to appoint any new member created by that law. A new President, elected at least 1 year and one inauguration after the bill is signed, would be enabled to make any new appointments due to a law change. This would insist that a vote that could change the party in power must happen first and give the people a say in who gets to choose the new members. It should slow down any attempt to pack the court for pure political reasons because a loss tothe opposition would be a serious blow.
I like this idea, though sadly anyone pursuing court-packing wouldn't be inclined to hand-cuff themselves by adopting it.
Republicans, too conservative to try and pack the court themselves, might try to pass such a law to prevent Democrats from packing the court. Some Senate Democrats might go along with it, to prevent the Republican default position of going ahead and packing the court first. If Trump demanded and enough Senators seem to be saying,"Try this first, then we can go nuclear if it fails." In truth, it does protect both parties.
Any attempt to change the rules of the system so that one's party can gain power demonstrates that the party in question is UNWORTHY of holding that power. Democrats embrace of the urban Brahmin Left has made them a minority party that is NOT competitive in elections nationally. Whining about the Supreme Court and Electoral College demonstrates that Democrats have no interest in representing all Americans...but only the special interest groups that constitute their base. The Electoral College exists to insure that both large and small states, urban and rural areas, and all parts of the country remain integral to forming the national government and prevent a few large population centers from running roughshod over more lightly populated areas. The rural voters in states dominated by urban areas (NY, MN, IL) could just as easily argue that their state executives should also be elected via a county style electoral system that would restore balance to THEIR governments. So...sorry...but the more Democrats seek to "change" the system for their benefit, the more the voters will reward Republicans. Democrats need to look in the mirror and address the problems with their own policies...not blame the country for rejecting the often truly idiotic positions that arise from an antisemitic party that cannot even define the difference between a man and a woman.
Democrats would do well to spend a second to imagine how conservatives felt through four decades of a progressively-leaning SCOTUS. And the worst that conservatives did was sport bumper stickers that said, “Impeach Earl Warren”.
Nice to read a reasonable article from someone who obviously supports the Dems.
I think he’s more supportive of a system involving two rational groups with similar goals and different tactical approaches who can cobble up solutions that work while pissing off roughly equal groups of voters.
I think you’re both right. In that he wants to get back to the old Tip O’Niel Ronald Reagan style of governance, but he’s clearly on O’Niel’s side.
Ever notice how housing affordability and affordable homes are two entirely different things and almost always mutually exclusive? I've been looking at Japan's system of zoning. It combines very high building standards with an approach which is many ways more libertarian than Texas. They are the only country which has both managed to keep house prices close to the rate of inflation and do it in a way which doesn't reduce overall home ownership or involve large government expense.
My point would be that it's possible for most people in most Western countries to agree on the goals, but almost impossible to get them to agree on how to get there. The smart way to tackle American housing would be to introduce a new rung on the ladder for starter homes and build massively, with a exemption for most non-safety building codes and zoning laws. It's a class of homes which is drastically underserved in America and hasn't been built at scale for decades.
The trick would be explaining to people that starter homes would add value further up the housing ladder, because building equity quickly expands people's purchasing power.
The average home size in Japan is around 1,000 square feet. How hard would it be to have affordable tiny apartments or homes? Who would want to live in them...
As I used to put it in Seattle 30 years ago: “Affordable housing” is not the same thing as a dirt cheap apartment.
Non-safety building codes shouldn’t exist. They only serve to drive up the cost of housing and make starter homes unprofitable.
A big problem on the US west coast is growth boundaries, that constrain the land available for new housing. The environmental rationale behind them is understandable, but in the words of Thomas Sowell: There are no solutions; only trade offs.
When it comes to zoning my only firm stance is that those decisions are made locally and not forced from state capitals or worse DC.
I'm more heterodox myself. My conservative friends, have, in the past, accused me of trying to rearrange the deckchairs on the Titanic.
Results are more important than intentions. You can't be comfy where you at...
I agree. I probably fall into the former liberal mugged by reality category. I should also mention that it was only when I hit my late forties that I finally realised that for my entire life my core political value had been civil libertarian. In the last few years I have discovered a love of C.S. Lewis and Chesterton quotes.
Another favourite is Sevareid's Law "The chief cause of problems is solutions."
You're absolutely right about intentions. I used to be hopelessly naive.
While I understand the ramifications of expanding the Supreme Court, the current court has so routinely chosen to ignore stare decisis or precedence and endorse openly political positions, as well as open corruption in the cases of Alioto and Thomas, that extreme remedies are required.
The greater danger to Democrats is cementing their reputation as the party unable to serve their constituents effectively, and thus losing the trust of their own base, which is where they are currently.
Would I, as a liberal independent, accept another measure of effectiveness? Certainly, Medicare for All, raising the earnings cap on Social Security taxes to ensure the solvency of the program, or cutting wasteful defense spending and procurement would be other examples of achievements.
What the party cannot continue to endure though is the reputation a vote for their politicians is a vote for nothing getting done. Uselessness is worse than over reaching.
One needs to be careful that moderation does not mean staying forever in the middle of the road among dead armadillos, as John Hightower, a long ago Democratic party stalwart, once put it. Moderation must mean effective yet careful change, evaluated for improvement as time goes on.
There is a crucial difference between ineffective rule and necessary and cautious change. The latter is vital for success, the former where the party currently exists.
If your complaint is that the court is too political, then depoliticize it—I give explicit examples in the piece that people seem intent on skipping over for some reason—don’t make moves that are guaranteed to make the problem worse for everyone.
I think far too many people are allowing their frustrations with the court to cloud their judgment and ability to think strategically. There are precisely two possible outcomes to Democrats packing the court: 1) Republicans escalate the next time they have power (in which case you did not actually solve the problem but exacerbated it) or 2) Republicans can’t escalate because there were undemocratic measures taken in pursuit of this end (in which case court-packing proponents have contributed to the “threats to democracy” they purport to want to end).
There’s really no good argument against trying to depoliticize the judiciary unless it’s for purely partisan/retaliatory purposes.
The argument is it can't be done: the justices themselves even made their own code of conduct optional, although such codes are binding on the rest of our courts and judges.
Impeachment has never been a useful solution due to needing 67% of both chambers of congress to agree, which is too high a bar to be workable.
The only hope, outside of declaring martial law and executing the justices, is to expand the court.
Yes, I think this likely to result in an ever expanding court over time and to weaken the court as a result, but the court has too often made critical errors, from destroying the regional consensus on slavery (permitted in the South, banned in the north and west) with Dred Scot, to weakening our first amendment rights to free speech in Schenck, to the unjust imprisonment of Japanese-Americans during WWII (but not, let us note, German or Italian Americans).
I'm okay with a weaker Supreme Court. I'm not okay with a reckless political court, and don't think reform is possible at this point. Given their lifetime tenure (although technically our constitution uses a standard of "good behavior"), the justices have resisted any reforms that might limit their power or whims, and our legal system unfortunately lacks any effective means of ensuring compliance.
We can put up with what we've got or we can change. At this point I personally favor change.
There's also the risk that passivity will provoke more norm-breaking by Republicans. Tit-for-tat is stereotyped as leading to constant escalation. But, in actual game theory, it's the optimal paradigm for competitive environments. https://en.wikipedia.org/wiki/Tit_for_tat
Talk to folk who deal with Medicaid, people who work in your local county hospital. Medicare For All implemented by the folk I just mentioned will tell you that is not going to happen.
Medicare costs me over $500 a month. What politicians are talking about is Medicaid for All. Of course no journalist would ever point this out...
Medicare for All isn't the panacea you imagine it to be. Your system is broken because it's wasteful, not because it's underfunded. A good example would be preventative medicine. It could save you a fortune. Because I'm over 50 and somewhat overweight and live in the UK, my GP automatically flagged me for BPM and blood tests. I now take a blood thinner and another medication. The NHS has shifted the needle in hundreds of thousands of cases. Just imagine how costly that would have been providing surgeries, triaging heart attacks, and providing specialist follow up care. Most UHC systems do this. America has a lot of intensive and costly specialist care that does nearly nothing to mitigate the problem before the horse has bolted from the barn.
In the US you have a moral hazard clause at the CBR., although its technically not a clause and is called Patient Cost-Sharing Mechanisms. The theory is that if healthcare is free, patients will be tempted to overuse it. It's not the only thing which is broken about your system. Medicare for All won't fix the problem. Your system needs radical structural reform. You would probably be better off scrapping your current system entirely and adopting the Australian system. It's hybrid model of public commission with private supplementation and both public and private provision seems to work better than either the UK or Canadian models of mostly or purely public healthcare provision.
The problem is that your political system operates on the basis of overly simplistic binaries and narrative messaging. Most health experts globally now acknowledge that the dual-track architecture of Australia is superior to a single track approach, but if you were to poll experts in America they would probably state a preference for Canada over Australia. That's how deep the ideological entrenchment goes. The ACA combined the worst of a hybrid system, the opposite of how Australia operates. It subsidizing private profits without public cost controls.
Great topic, most ignore. We seem to be too engrossed in "will they or won't they", to worry about what happens the day after.
Dems seem very likely to pull the trigger, at their first opportunity. So it might behoove us to contemplate a SCOTUS controlled by Sotomayor, KBJ and their clones.
SCOTUS can reach down and grab any case it so chooses. SCOTUS cases need not wind their way up the legal ladder. That means a Dobbs challenge, filed in a tiny County Courthouse, could theoretically sit before SCOTUS, the next day.
Most of SCOTUS is custom, not Constitutional mandate. Dobbs could be overturned mere days after argument, not with a return to Roe, but with an opinion that abortion can no more be regulated, than a gallbladder removal. That would swiftly make abortion until delivery, the law of the land.
The piece de resistance, however, would be Heller. American gun ownership has long seemed irrevocably protected by the 2nd Amendment and the Ex Post Facto Clause, that bans US retroactive law. There are 400-500 million guns in the US, most legally purchased and never criminally utilized.
While their outright confiscation would seem implausible, nothing prevents a packed SCOTUS from upholding federal law that demands insurance and storage, in such a manner, that renders legal retention all but impossible, for most.
Toss in regulated ammunition, and Dems have the perfect trinity to quickly neuter most US gun ownership. The potential ramifications, boggle the mind.
Admittedly, the above sounds crazy, and for most our history, it would have been. Unfortunately, Dems now seem determined to govern in tantrum. The notion of incremental change no longer enjoys even Left lip service. As the 25th anniversary of 9/11 approaches, we should consider what the failure of imagination has cost us in the past.
Courts are a symptom, not the disease, and often enough justices break ranks and vote with the other team. The disease is ultra partisanship in defence of power, mostly dictated by access to money. That's not to say that the system can't be overcome.
Trump did it in 16, by running against his own party. Do you remember how much the Republicans hated him? With each new primary they supported someone, anyone, who could put a stop to "never touch social security, Iraq was a huge mistake, tariffs, and immigration". All it would take for Democrats would be to have someone run whom both factions of the Brahmin left hated.
I'd vote third party if need be.
When was the last time Sotomayer, KJB, or Kagan broke ranks on a case of any significance?