I'm reading "Biden Supreme Court Commission Issues Final Report/The report doesn't endorse court-packing or term limits. But it's generally more to the latter than the former. It also provides valuable overview of a wide range of SCOTUS-related issues" — by Ilya Somin (at Reason).
If Court-packing ever happens, it will be the Supreme Court that decides whether Court-packing is unconstitutional, and if this happens soon, with the current configuration of the Court, I doubt that "the dominant view among legal scholars" will matter much.
I feel like quoting the Thoreau adage again — last quoted 10 days ago — "Any man more right than his neighbors constitutes a majority of one already." In this light, Randy Barnett is the majority. Or will be to any Supreme Court that finds itself on the receiving end of a packing plan.
It is the Necessary and Proper Clause, which empowers Congress to make a law that is necessary and proper to carry into execution the judicial power that Article III vests in the judicial department.
Article III does not specify the size of the Court, but for the past one hundred and fifty-two years, a nine-member Supreme Court has become an entrenched constitutional norm. To change the Norm of Nine, Congress needs to pass a new law. According to the letter of the Constitution, any such law must be both "necessary" and "proper."... A law must have an appropriate "end" or "object" and "the means" it adopts must be sufficiently related to that end....
Having set the number of justices, Congress may not then enact a law to change that number for the illegitimate end of affecting how the Court rules....
While Congress has the constitutional duty to staff the Supreme Court with multiple justices, it is improper for Congress to use its power to set the number of justices for the end of affecting the decisions of the Court....
Suppose Congress passes a law stating that, if the Supreme Court overturns Roe v. Wade in the pending case of Dobbs v. Jackson Women's Health Organization, there shall be created three new Supreme Court justice positions which can be filled immediately by President Biden. If your theory of Congress's power to set the number of judges cannot say why such a law is unconstitutional, there is something wrong with your theory....
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70 comments:
I saw someone on TV opine to the effect that it offended democracy to have a 6-3 conservative majority with 3 of the 6 conservatives nominated by Trump. This "scholar" of course failed to note that all 6 conservatives were confirmed by the Senate.
We never heard a peep from the Dems when they had the Court locked up. Hypocrites.
Occasionally you run across a theoretical Constitutional conundrum and think (or at least I do), "The best result would be if this theoretical question never became a concrete one that actually needs to be decided." The strain on the system seems too much.
Barnett's position (and I have great respect for him) on "necessary and proper" seemed unconvincing to me, but his hypothetical--court-packing contingent on a case outcome--certainly makes you think.
Here's hoping we never find out.
So now we have to deal with legislative stare decisis too?
"Congress may not then enact a law to change that number for the illegitimate end of affecting how the Court rules.... it is improper for Congress to use its power"
Illegitimate, improper--says who? Congress and SCOTUS are political institutions, and they decide themselves what they deem legitimate and proper. The tender feelings of constitutional experts have little to do with it, except as convenient window-dressing. (That is how it's taught in law schools, isn't it? If not, students should get their money back.)
Necessary and proper has long been interpreted to mean necessary or proper. Unfortunate, wrong, but there it is.
However, I expect that a court ruling on a law expanding the court will defer to congress on the legitimacy of its motives by ruling that motive is a political question outside their power to review. Unless congress explicitly says it is expanding the court for an improper purpose, I think the court would hold the law constitutional.
It's simply amazing that every time a governmental entity or system fails to deliver for Democrats, it becomes untenable and needs to be reformed or terminated in some way that gives Democrats a boost: the Supreme Court, the Electoral College, gerrymandering, the filibuster, equality of the Senate, the First Amendment, and our election and campaign finance procedures all come to mind.
Fair points regarding necessary and proper. Does the commission or anyone else give counter examples of what necessary or proper could mean if not limiting Congresses ability to curtail or increase the court?
Could Congress decide to shrink the court by two justices and pass a law that no new member would be appointed after one passes away or resigns?
Trump should have announced his plans to add three Justices to the Supreme Court. Democrats would have been up in arms and the "9 on the Court" Amendment would have passed in record time.
So where does it end?
Biden puts six lefties on the court.
Trump then adds 23 conservatives.
In one hundred years the court will have more members than congress.
A law must have an appropriate "end" or "object" and "the means" it adopts must be sufficiently related to that end....
so, if the "end" or "object" is to permanently enshrine demo power..
how, is packing the court not "the means" sufficiently related to that end?
who is it (where is it) saying that the court is not/should not be a wing of the demo party?
i mean, other than the 2nd amendment?
first of all, we're talking about REPUBLICAN judges - who are scared of their own shadow. Would they have the guts to overturn a "Court packing scheme"? Of course not.
That aside, the Democrats could simply state that the court needs to be expanded for Divsersity's sake. There aren't enough women/blacks/minorites, etc. on the Court. How could the SCOTUS find that invalid? Further, in the past Congress has expanded and contracted the number of judges. Precedent. IRC, FDR's excuse was that the Court was overworked and full of "old men" who needed more Judges to "help them".
And if you read Robert's insane "Fuck You" opinon on Trump trying to overturn Obama's executive DACA order, you realize that the SCOTUS can do ANYTHING - but only with the agreement of the powerful DC Elite. Logic or reason are not required. However, the SCOTUS never - or almost never- goes against elite opinion. If enough powerful people in the MSM and Congress want to pack the court, the SCOTUS will go along.
We can discuss the legality of packing the Supreme Court all we want. That's not the issue. The issue is that packing the Supreme Court is a straight up power grab, an overt declaration that the side packing the court will get what they want, no matter what the cost, and there is nothing you can do about it. Constitution? Doesn't matter. The law? Doesn't matter. Norms? Doesn't matter. Good sense? Doesn't matter. Elections? Doesn't matter. Bow to your superiors, peasants.
The law only really has power because enough people agree that it matters. The law can survive a little corruption, even a moderate amount of corruption. But there comes a point where the powers that be push things too far and the agreement collapses. At that point, it does not matter if the act was legal under the law as the law is no longer relevant. It is like those pointless debates about whether it is Constitutional for a state to secede. Once it has reached that point, the lawyers have been exchanged for guns and the guns will speak.
They are playing a very dangerous game.
Legalese and rc hair splitting aside, it's just a very very bad idea. The DNC Davos Dims are full of them.
That snippet of Barnett's testimony does not reflect well on him. Simply saying that something is improper does not constitute a theory.
Congress could strip out a lot of the maneuvering if it wanted to. One possibility: Enact a law saying that there shall be one Justice named by the President every four years. Set it in the year following the election, when a President's authority is greatest. Should the Court reach 15 members, skip a cycle. Should the Court fall to 5, add an extra appointment after the next election.
My non-partisan objection to increasing the number of justices is that it would make the job of divining a holding in a plurality decision even more sketchy. Imagine a decision with fifteen separate opinions in the form of “I join with justices A,B and C as to parts I, II B., and VII D. of their opinion only, and otherwise . .”
Of course, such a regime could also be termed the “Full Emplyment for Law Professors Act”, so it would have an influential, if small, constituency.
That's pretty weak tea. Of course a law expanding the size of the court would not explicitly state it was to overturn Roe. It is necessary and proper to expand the court to handle the number of cases presented to it.
"Any man more right than his neighbors constitutes a majority of one already."
This quote reminds me what an insufferable asshole Thoreau was.
“If Court-packing ever happens, it will be the Supreme Court that decides whether Court-packing is unconstitutional”
And who will be the members of that Court? In that regard, I will note that the court currently lists itself as having 12 members (including O’Connor, Kennedy, and Souter).
"Suppose Congress passes a law stating that, if the Supreme Court overturns Roe v. Wade in the pending case of Dobbs v. Jackson Women's Health Organization, there shall be created three new Supreme Court justice positions which can be filled immediately by President Biden. If your theory of Congress's power to set the number of judges cannot say why such a law is unconstitutional, there is something wrong with your theory...."
I believe the theory would be that separation of powers prevents Congress and the president from passing laws that would bring the Supreme Court under their direct control in terms of determining how cases are decided. Similarly, I don't think it would be constitutional to enact legislation pursuant to which each justice's salary would be immediately doubled if Roe is upheld but would be cut in half if Roe is overturned. I don't think such a theory of unconstitutionality would be exactly radical. Do you?
I think unpacking would be a better route than packing:
The Good Behavior Act of 2022
The tenure of any member of the federal judiciary appointed to hold office during good behavior shall cease to hold that office upon
(1) being convicted of a high crime or misdemeanor, or
(2) voting to overrule or limit the holdings of any of the super-precedents listed below:
…
Roe v. Wade
Planned Parenthood v. Casey
…
If the House of Representatives finds cause for a member of the federal judiciary to be removed clause (2), such cause shall be put to a vote of the people in the next federal election, who shall vote to retain or remove.
The way in which you are right or wrong is often more important than what you are right or wrong about. If we've been able to muddle along with nine justices for these part hundred and fifty years, what are the overwhelming problems that require this solution--other than that the majority of justices are more conservative than the majority of legislators at this moment in time would like....There's something to be said for term limits though.. A lot of justices hang on way past their expiration date. This is a particular problem when they become bowel and bladder incontinent. As Sotomayor has pointed out, this can sometimes cause a stench that makes it hard to concentrate.
That excerpt of Barnett's argument is entirely unpersuasive.
If the President, with Congress, can pack the courts, then where is the checks on power?
Conversely, what is the check on the Supreme Court's power?
The people running around yelling "authoritarian" are the first to move us toward authoritarianism.
It's not an insult. It's an applause line.
Could Congress decide to shrink the court by two justices and pass a law that no new member would be appointed after one passes away or resigns?
Yes, the court was expanded to 10 justices once, but before the tenth judge was confirmed it was shrunk back to 9. Originally the Court only had six justices.
What if Congress packed the Court, but the current Court decided that the new justices do not get to vote, and that only successors to the current nine seats get to vote.
Does the Supreme Court have this power? Doesn't the Supreme Court get to decide the rules and procedures that govern the conduct of the various courts?
I can't find anything in the Constitution one way or the other on this.
Randy is wrong. Congress has the power to expand the Courts, including SCOTUS.
Congress also has the power to take a decision out of SCOTUS's power:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make
What the Democrats do not have, right now, is the votes. And if they did have the votes, and did it, they would find that no Republican governor would care anything about what SCOTUS ruled.
IOW, doing it would spark a Civil War, and once again, the Democrats would lose that war.
But they're welcome to try
Left Bank of the Charles said:
the court currently lists itself as having 12 members (including O’Connor, Kennedy, and Souter).
Interesting. So the Court ALREADY HAS non-voting members. So the Court could, presumably, make another category of non-voting members, i.e., the additional justices appointed to pack the Court.
@Geoff Matthews
The checks on the Supreme Court are clumsy and limited because it was assumed by the Framers to be the least dangerous branch (Hamilton noted its lack of armies or spending power). In addition, although Marbury was rightly decided and there is support for the concept of judicial review having been anticipated, IMO the Framers did not fully appreciate the full implications of judicial review. The temptation for the Court to exercise raw power in favor of its policy preferences (e.g., Roe/Casey and Obergefell) is aggravated by the lack of practical constitutional remedy.
Field Marshall Freder: "It is necessary and proper to expand the court to handle the number of cases presented to it."
LOL
So "neutrally" "principled".
Filed under: Things never said or written from Jan 2017 to Jan 2021...but then magically absolutely necessary after Jan 2021.
was the commission hearing an open hearing? is it available to view?
Left Bank: "(2) voting to overrule or limit the holdings of any of the super-precedents listed below:
…
Roe v. Wade
Planned Parenthood v. Casey"
"super precedents"!!
Why not super duper precedents?
Sometimes I wonder if Left Bank is secretly trying to make lefties look moronic....cuz if he is,its working.
Left Bank of the Charles said...
(2) voting to overrule or limit the holdings of any of the super-precedents listed below:
You are such a pathetic wanker.
There's no such things as a "super-precedent". If there was, Lawrence v Texas, Windsor, and Obergefell would all have come out the other way (the Court ruled in the 70s that there was no right to gay "marriage", it ruled in the 80s that not only was that correct, but there was no Constitutional protection against laws punishing people for engaging in homosexual sex).
Roe and Casey are illegitimate decisions, and they're both going to be overruled this term.
Heck, they already have been overruled. Whole Woman's Health v. Jackson and United States v. Texas were argued Nov 1. Texas's ban on abortions after a heartbeat is detected is still legal, and causing people not to have such abortions in TX. If Roe was still good, SCOTUS wouldn't be letting that happen.
Lifetime appointments, get over it. And if you think that assassinating SCOTUS members you don't like is the only fix you need, think about all the Democrats Senators who would be replaced by Republicans if you opened that can of worms.
You're in the wrong, you're going to lose. Suck it
Static Ping at 11:49 AM hit it on the head.
The Dems only got away with the Court games they've played because they stayed, just barely, within the lines.
Packing blows the lines up
Let me throw another conundrum at y'all.
Congress simply abolishes current Supreme Court. IOW lifetime appointment means lifetime of Supreme Court.
Congress creates new and improved and tastes great Supreme Court.
Good enough for me.
what say y'all -
Simply saying that something is improper does not constitute a theory.
One must first argue the necessity. Only when the ends have been established, can their propriety and the means to achieve them be evaluated.
wow, that's a pretty strong argument/interpretation
he probably should have used a gay rights case to make the point
but it's definitely a strong point, of the Marbury v. Madison variety
I saw someone on TV opine to the effect that it offended democracy to have a 6-3 conservative majority with 3 of the 6 conservatives nominated by Trump.
offended democracy?
is that like offending the statue of liberty?
She's going to whack them with a sword or something?
(Roosevelt, by the way, put 8 liberals on the Court. Weirdly, democracy was not offended).
Left Bank has arrogated to himself the power to decide if SCOTUS Justices can keep their jobs.
LOL! Thanks for the laugh.
The Senate is 50-50. And Joe Manchin is pro-life (allegedly). West Virginia is pro-life (definitely).
Joe Biden is deeply unpopular now. Way less popular than Roosevelt was when he tried to pack the Court.
The odds that they try it have to be less than 1%. It would be an insane move, doomed to failure, and making the majority of the country even more unhappy with the Dems.
My opinion, this "court packing" rhetoric is just a poker bluff, trying to influence the Supreme Court's abortion opinions without actually doing anything.
Saint Croix said...
(Roosevelt, by the way, put 8 liberals on the Court. Weirdly, democracy was not offended).
Yes, but that was the good old days when the Democrat party was made up of sleazy crooks, not wannabe royalty like we have today.
Congress has the power to expand the Courts, including SCOTUS.
Obviously, they've done it multiple times. But his point (I think) is that trying to pack the Courts specifically to overrule a Supreme Court interpretation of the Constitution is unconstitutional.
(Presumably that's why Roosevelt felt the need to hide his rationale for his attempt to pack the Court).
Understand too that the Supreme Court is an institution that is very concerned with its own power. So if the Democrats tried to pack the Court to reverse a Supreme Court opinion, don't be surprised if Breyer or Kagan would oppose them, and get assigned the opinion to boot. If it's construed as an attack on the Court, it's likely to unite them in opposition.
When Truman seized the steel mills, it was all the Roosevelt appointees (including Black, Frankfurter, Douglas, Jackson) who smacked him down. It's an interesting case because all the heavyweight intellects are united in opposition, and it's only the lightweights who supported what was a rather extreme example of executive power.
I would expect most of the smart people on the Court to see how dangerous such a move would be against their Court. (It literally decreases the power of every one of them). So it might actually be a 9-0 opinion.
although Marbury was rightly decided
No it wasn't. Marshall should have never written the decision or ruled on the case. He should have recused himself...he created the controversy in the case when he was The Secretary of State and Chief Justice at the same time.
"It is necessary and proper to expand the court to handle the number of cases presented to it."
That's just stupid. More justices does not mean more cases. With the Supreme Court it means more justices sitting in on the same number of cases.
What if Congress packed the Court, but the current Court decided that the new justices do not get to vote, and that only successors to the current nine seats get to vote.
Does the Supreme Court have this power? Doesn't the Supreme Court get to decide the rules and procedures that govern the conduct of the various courts?
I can't find anything in the Constitution one way or the other on this.
12/8/21, 3:28 PM
It seems to me that the lack of clarity makes it up to SCOTUS to decide. To be honest, I've dabbled with the idea that SCOTUS should have 15 judges, but only the Chief Justice and eight seniormost associate justices vote on cases. The rest would handle circuit court duties, and step up whenever a voting member has to recuse himself.
The benefit of such an arrangement is that it would take away a lot of the importance of judicial nominations. Since newly appointed justices would be unlikely to actually vote on cases for several years minimum, there would be less political urgency to fill appointments. Also, since everyone would know who was the next justice in line to fill a position, judges would have less incentive to try and stay in the seat until a suitable administration was in power.
If the President, with Congress, can pack the courts, then where is the checks on power?
Conversely, what is the check on the Supreme Court's power?
Congress has the power to limit the court's appellate authority, something it has done in the past. As far as I know there's nothing stopping Congress from simply declaring that abortion is not a SCOTUS issue.
Greg The Class Traitor is right. Barnett is wrong. Ann is wrong. Congress can put as many justices on the court as it wants. The words are black and white:
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make..."
I don't even know what Barnett is trying to say. It is just as bad as that stupid "Super Precedent" bullshit. People just refuse to read actual words and jsut make shit up.
The only reason the Democrats do not pack the court is because that would trigger a violent renegotiation of our current social pact.
>>To be honest, I've dabbled with the idea that SCOTUS should have 15 judges, but only the Chief Justice and eight senior most associate justices vote on cases.
The fundamental issue with the Supreme Court is not them, but us. We have accepted that they are a super legislature, and the final authority on every issue, with no checks or balances on their power.
Congress can pass whatever laws they like, and the Supremes can just say no.
Or, even worse, Supremes can just invent new definitions of old laws to fit what *they* think the law should be.
The founders gave us a process for amending the constitution. It requires 3/4ths of the states to vote on an amendment... not a 5/4 vote of unelected judges.
What's to decide?
(1) Since the Constitution states, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," and (2) since the number of justices has varied from 5, 7, 9, 10, there's no dispute that Congress can, if it wishes, vary that number of justices any time it wishes.
We're all aware that there's a Supremacy Clause.
What many are NOT aware of is that Supreme Court opinions are NOT listed in Article VI.
Says something, n'est ce pas?
While the number of supreme court justices is not listed in the written constitution, the number 9 is to be found in the penumbras and emanations.
trying to pack the Courts specifically to overrule a Supreme Court interpretation of the Constitution is unconstitutional
It is an asinine argument that says that the co-equal Legislative Branch cannot provide a check on the Judicial Branch, specifically the Supreme Court. OF COURSE Congress can enlarge the Court for any damn reason it wants to.
Checks and balances provide all the "proper" they need.
Narayanan said...
Let me throw another conundrum at y'all.
Congress simply abolishes current Supreme Court. IOW lifetime appointment means lifetime of Supreme Court.
It can't, because the Supreme Court is defined in Article III of the US Constitution
As a matter in theory Congress can add whoever many judges it wants with the President's assent or override him. As a practical matter there aren't enough Democrats to actually pass such a bill.
Which is just as well the Democrats can't pull this off simply because by going to this extreme invites another extreme, Congress controlled by Republicans with a Republican President remove by legislation rulings they don't like and remove the subject matter out the court's subject matter review. Trump got three Supreme Court judges thanks to Harry Reid. The Democrats should remind themselves doors can swing both ways.
Saint Croix said...
Congress has the power to expand the Courts, including SCOTUS.
Obviously, they've done it multiple times. But his point (I think) is that trying to pack the Courts specifically to overrule a Supreme Court interpretation of the Constitution is unconstitutional.
After Lincoln was assassinated, Congress cut the size of SCOTUS for the sole purpose of keeping his successor from being able to appoint any members.
If Congress wants to remove SCOTUS's appellate jurisdiction over abortion, they can do that. Heck, with 2/3 of the Senate and 50% of the House they can impeach and remove any Justices they desire.
So the idea that it's unconstitutional for Congress to change the size of the Court, for any reason or no reason at all, is just ludicrous.
The limit on that is not the Constitution, it's not SCOTUS. The limit is what We The People will put up with
If they’re going to do it, they’ve got about a year. It’s unlikely the Dems will hold both houses come 2023. If they lose the Presidency in 2024, then in 2025 Congress can set the number back to 9 and send the new Justices back whence they came.
In the interim 2 years I assume the packed court would screw up by the numbers like everything else this administration touches, perhaps generating sufficient impetus for an amendment codifying a 9 Justice Court, or one requiring a supermajority for such structural changes.
1. When FDR proposed "packing" the Court, he had just won his second landslide election, He was tremendously popular.
2. FDR CLAIMED that he wanted to add additional justices to help out the existing elderly justices. He didn't SAY he was trying to change the direction of the Court, although "everyone knew" that's what he was trying to do.
3. In 1937 court packing was defeated because a lot of congressmen and senators still respected the Supreme Court as a JUDICIAL institution, even when they disagreed with it on policy.
4. Biden has the most narrow possible majority of support in Congress, and he is likely to lose that in the mid-term elections.
5. The Supreme Court has come to be perceived by many members of the public and of Congress as a "political" branch of Governement (although not necessarily a partisan one).
6. My opinion (that's all it is) is that Biden wouldn't be able to pull it off.
I’d read Randy Barnett’s argument for why court packing is unconstitutional and found it persuasive. When I started to read your post, I kept trying without success to remember it. Then as I read on, I got reminded of it and remember why I thought it was convincing. I still think that.
why such serious discussion about D-ploy for finding a place to park Kamala Harris so that she will voluntarily give up VP
Greg The Class Traitor said...
Narayanan said...
Let me throw another conundrum at y'all.
Congress simply abolishes current Supreme Court. IOW lifetime appointment means lifetime of Supreme Court.
It can't, because the Supreme Court is defined in Article III of the US Constitution
-----
I don't see why not - looking at language there can be only ONE which does not preclude REPLACEMENT with another - I will concede that will be fully transparent of intent.
/The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
gahrie said... about "although Marbury was rightly decided'
No it wasn't. Marshall should have never written the decision or ruled on the case. He should have recused himself...he created the controversy in the case when he was The Secretary of State and Chief Justice at the same time.
----------
would I be wrong to find out Marshall and Marbury were Democrats? vs Democrats
From the post:
:I feel like quoting the Thoreau adage again — last quoted 10 days ago — "Any man more right than his neighbors constitutes a majority of one already."
That didn't work out so well for Dietrich Bonhoeffer, or Aleksandr Solzhenitsyn.
"In this light, Randy Barnett is the majority. Or will be to any Supreme Court that finds itself on the receiving end of a packing plan."
I think that's right, when viewed along with Conrad's point that this looks like a separation of powers issue. The Judicial Branch shouldn't be beholden to either the Executive Branch or the Legislative Branch. Oh, those pesky checks and balances.
The checks on the Supreme Court are clumsy and limited
Actually they aren't. The number of justices aren't fixed. They can be expanded or contracted. And Congress holds the purse strings and under the Constituion the district and appeals courts are TOTALLY under the control of Congress. Congress can in fact decide what the types of cases end up in the district and appeals court.
The ability of the SCOTUS dominate society rest entirely on the unwillingness of Congress to assert its dominance. Why is that? Simple, the SCOTUS is a tool of the rich and powerful to thwart the popular will. That's the real reason its there. The Power elite don't like local/state laws telling them they can't have abortions - so poof "The right to an abortion" is magically in the constitution. Prior to WW 2, the SCOTUS used the 14th Admendment to prevent Corporations from being regulated. Somehow, child labor laws or the NRA were deemed "Unconstitutional".
Its all Bullshit. We should just get rid of the SCOTUS and as much of the Federal courts as possilble. But Conservatives are too stupid to understand they're supporting a tool of the Left to destroy their values.
For a fairly comprehensive explication of Marbury from one America's most brilliant constitutional law scholars (RIP Wm VA) see:
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2205&context=dlj
RightWingNutter said...
If they’re going to do it, they’ve got about a year. It’s unlikely the Dems will hold both houses come 2023. If they lose the Presidency in 2024, then in 2025 Congress can set the number back to 9 and send the new Justices back whence they came.
No, if the Dems enlarged the Court, then when the GOP got back in control we'd add twice as many members as the Dems added, at least.
Because short of impeachment Congress can't "send the new members packing".
Of course, at the same time we'd increase every single Circuit by enough members so that we'd have an actual majority of honest (not just "GOP appointed") judges in every Circuit.
Because once you open the door, you can't close it, or prevent the other side from using it.
Which is why the Dems are going to posture and shout, but do nothing
Blogger Narayanan said...
/The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
I would say it's an open question as to whether or not Congress can "de-establish" those lower courts once they've been established.
The idea that it could shut down SCOTUS and create a new one has no support in the Constitution
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
No way to get rid of any judge other than via impeachment. No power to eliminate their Offices
That's just stupid. More justices does not mean more cases. With the Supreme Court it means more justices sitting in on the same number of cases.
Not necessarily, you could restructure the Supreme Court to be like appellate courts and have most cases decided by a panel rather than the full court.
So, that's not stupid, fuck you very much.
No power to eliminate their Offices
Not true. In fact it's been done. Under Lincoln, the Supreme Court was expanded to 10 Justices. Under Andrew Johnson it was reduced to 7. It was then restored to 9 and has remained that way ever since.
Freder Frederson said...
"That's just stupid. More justices does not mean more cases. With the Supreme Court it means more justices sitting in on the same number of cases."
Not necessarily, you could restructure the Supreme Court to be like appellate courts and have most cases decided by a panel rather than the full court.
So, that's not stupid, fuck you very much.
Gee, and you can have unicorns poo out decisions instead of Skittles, too!
But, until the SCOTUS reorg has taken place (which could happen just as easily with 9) your idea is just as stupid as described
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