Harris , Gillibrand and Warren endorse packing the Supreme Court

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My admiration for the three of them just went up immensely.

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By the way, anyone wants to guess which progressive candidate is opposed not only to packing SCOTUS but even to abolishing filibuster, which is the most serious roadblock to enacting progressive legislation?

It's Booker, isn't it?

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Time for a quick history lesson!

In 1858, Lincoln’s famous debates with Stephen Douglas turned on the Republican attack on judicial supremacy. Douglas, like other conservatives, accused Lincoln’s party of seeking “to destroy public confidence in the highest judicial tribunal on earth.”  Yet Lincoln persisted in rejecting judicial supremacy — and also the basic idea underlying it, that law somehow exists before or beyond politics, and thus it was illegitimate to resist the proslavery Court through popular antislavery mobilization.  https://quod.lib.umich.edu/l/lincoln/lincoln3/1:30?rgn=div1;view=fulltext  Across the late 1850s, Lincoln argued that “the American people,” not the Supreme Court, were the true arbiters of the Constitution, and that the only way to defeat the proslavery judiciary was through mass political struggle.  https://quod.lib.umich.edu/l/lincoln/lincoln3/1:137?rgn=div1;view=fulltext  After Lincoln and Hamlin were elected in 1860, the new president’s inaugural address articulated this view in perhaps the strongest language he ever used:

the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

Once in power, Lincoln and congressional Republicans “reorganized” the federal judiciary and “packed” the Court, adding an additional justice in 1863. More fundamentally, though, they simply ignored the proslavery precedents established in the 1850s.  Drawing direct “lessons from history” is a fool’s errand, but at least this should remind us that judicial power — however grandly it may be imagined by friends and foes alike — is critically dependent on political currents.

All this comes from a series of tweets from historian Matt Karp.  https://twitter.com/karpmj/status/1054749247717994496

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Packing the courts regardless who does it is dumb. We already have a hyper partisan court and just packing it will continue it's drift to being the 3rd political arm. For the last 70 years this court has become such a partisan issue it's not even funny anymore.

Not only that, it would open up the likelihood that every president would just add justices, and we'd see just about every court case reversed and restored practically every time the presidency changes.

That would be better than the current state of affairs.

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What is to stop the Republicans from packing the courts after the Democrats lose an election, if the Democrats do it? Why even have a supreme court at that point?

The Supreme Court should have the authority to decide particular cases, but not to settle larger political disputes over the meaning of the Constitution.  The roots of "judicial review,” as it's called, are not legal or constitutional but themselves political.  If we believe in democracy, the Court should be empowered to make decisions, but not make the law.

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What is to stop the Republicans from packing the courts after the Democrats lose an election, if the Democrats do it? Why even have a supreme court at that point?

The Supreme Court should have the authority to decide particular cases, but not to settle larger political disputes over the meaning of the Constitution.  The roots of "judicial review,” as it's called, are not legal or constitutional but themselves political.  If we believe in democracy, the Court should be empowered to make decisions, but not make the law.

I agree. The supreme court is far too powerful. I don't see how that is relevant to court packing, though.

Because if court packing is normalized, it adds democracy to our system and will actually serve to restrain judicial overreach.  If the composition of the Court might change every time a party gains control of both the presidency and the Senate (which happens, what, every ten years or so?), then for any given Court to make rulings with lasting impact it will have to pursue moderate, bipartisan consensus.  Under our current system, where one party can control the judiciary for a generation or more, there's really no incentive for restraint or moderation.

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A Democrat with a hundred times the mandate that could be won today already tried.

Spoiler alert: it failed.

This is a faulty comparison.  FDR was in his second term by the time he started arguing for judicial reform, and at that point practically no big initiatives were getting through Congress--the country was on the mend and there was a general disinterest in further societal/political change (aside from arming our ally Great Britain).  Furthermore, Congressional Democrats torpedoes FDR's Court proposal because they feared a more liberal Court might interfere in the Jim Crow system in the South.  So, once again, systemic racism kept the country from progress.  The important point is that future Democratic presidents won't have these handicaps.

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A Democrat with a hundred times the mandate that could be won today already tried.

Spoiler alert: it failed.

This is a faulty comparison.  FDR was in his second term by the time he started arguing for judicial reform, and at that point practically no big initiatives were getting through Congress--the country was on the mend and there was a general disinterest in further societal/political change (aside from arming our ally Great Britain).  Furthermore, Congressional Democrats torpedoes FDR's Court proposal because they feared a more liberal Court might interfere in the Jim Crow system in the South.  So, once again, systemic racism kept the country from progress.  The important point is that future Democratic presidents won't have these handicaps.

It also gives precedence for the Republicans to do the same, which is extremely dangerous.

Are you being serious?  "Oh no!  Republicans might steal a Supreme Court majority!  We can't ever can't let that happen!"  I hate to be the one to tell you this, but that ship has already sailed.  If Democrats don't take back the majority when they have the chance (which, let's be honest, they probably won't even though they should), they are essentially endorsing what Republicans have done.

And in any case, it would be an improvement on our current system to normalize more frequent changes in the Court's ideological balance.  Let's just accept that every time a party has control of both the presidency and the Senate it can reapportion the Court.  That happens about once a decade, so the Court would still be significantly more stable than the presidency or the Senate, and it would add some democratic accountability to the Court's actions.  Adding more democracy to our political system would be a good thing!

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These were FDR's majorities in both houses when he tried


House:

Democrats: 334
Republicans: 88

Senate:

Democrats: 74
Republicans 17

Again, this is misrepresents the actual circumstances.  A large block of those Congressional Democrats were pro-segregationists conservatives from the South (and Congressional leadership in particular was overwhelmingly from the South) who were opposed to expanding judicial authority lest it threaten Jim Crow.  A modern Democratic president wouldn't have the numbers you cite, but the Congress he or she would be working with would be infinitely more unified ideologically.

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What is to stop the Republicans from packing the courts after the Democrats lose an election, if the Democrats do it? Why even have a supreme court at that point?

The Supreme Court should have the authority to decide particular cases, but not to settle larger political disputes over the meaning of the Constitution.  The roots of "judicial review,” as it's called, are not legal or constitutional but themselves political.  If we believe in democracy, the Court should be empowered to make decisions, but not make the law.

The way it was explained to me, is that Judicial Review is more of a result than a prescription.

So for example, if SCOTUS deicdes a specific gay couple can get married because of the equal protection clause, then all lower court justices will feel compelled to follow that precedent or they know their cases will get reversed under the same justification. Rather than have a zillion cases following this path and clogging the courts, most jurisdictions will realize any laws they have against gay marriage have effectively been overturned and stop enforcing them.

Yeah, that's a nice story, but it's not what we have in practice.  In the real world, the Court arbitrarily decided that the incentives the ACA created to expand Medicaid were excessively powerful and states should be allowed to opt out of expansion without losing access to existing federal funding streams. There is absolutely no basis for this idea anywhere in the text of the Constitution — and millions of Americans have been deprived of their health insurance as a result.   In the real world, we have the case of Bush v. Gore, a refusal to look at the problem of partisan gerrymandering,  a series of judicial decisions striking down efforts to regulate the campaign finance system, the Shelby County v. Holder decision in which five conservative justices arbitrarily decided that racially motivated voter suppression was no longer a problem, etc. etc.  In what world are rulings like these not prescriptive?

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These were FDR's majorities in both houses when he tried


House:

Democrats: 334
Republicans: 88

Senate:

Democrats: 74
Republicans 17

Again, this is misrepresents the actual circumstances.  A large block of those Congressional Democrats were pro-segregationists conservatives from the South (and Congressional leadership in particular was overwhelmingly from the South) who were opposed to expanding judicial authority lest it threaten Jim Crow.  A modern Democratic president wouldn't have the numbers you cite, but the Congress he or she would be working with would be infinitely more unified ideologically.

Even then , Liberals still had a clear majority in both houses of Congress. It wasnt until after the 1938 midterms that the Conservative Coalition was able to take control

I gotta keep pushing back on this.  Roosevelt spent 1938 openly campaigning against members of his own party because they were already kneecapping his agenda.  Even at the height of New Deal liberalism, Congressional leaders were always very careful to place limits on federal power, to protect "states' rights" to segregate, and to exclude black people from federal assistance whenever possible.  That's why so many of those New Deal programs only passed with clear sunset provisions, why universal health care and UBI were nonstarters, and why Social Security initially excluded service workers and agricultural workers.  The running theme is that Congressional Democrats during FDR's presidency were willing to support liberal initiatives up to the point that those acts might threaten the racist status quo.  And as subsequent decades would prove, they were right to fear that a more liberal Supreme Court would undermine institutional segregation.

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These were FDR's majorities in both houses when he tried


House:

Democrats: 334
Republicans: 88

Senate:

Democrats: 74
Republicans 17

Again, this is misrepresents the actual circumstances.  A large block of those Congressional Democrats were pro-segregationists conservatives from the South (and Congressional leadership in particular was overwhelmingly from the South) who were opposed to expanding judicial authority lest it threaten Jim Crow.  A modern Democratic president wouldn't have the numbers you cite, but the Congress he or she would be working with would be infinitely more unified ideologically.

Even then , Liberals still had a clear majority in both houses of Congress. It wasnt until after the 1938 midterms that the Conservative Coalition was able to take control

I gotta keep pushing back on this.  Roosevelt spent 1938 openly campaigning against members of his own party because they were already kneecapping his agenda.  Even at the height of New Deal liberalism, Congressional leaders were always very careful to place limits on federal power, to protect "states' rights" to segregate, and to exclude black people from federal assistance whenever possible.  That's why so many of those New Deal programs only passed with clear sunset provisions, why universal health care and UBI were nonstarters, and why Social Security initially excluded service workers and agricultural workers.  The running theme is that Congressional Democrats during FDR's presidency were willing to support liberal initiatives up to the point that those acts might threaten the racist status quo.  And as subsequent decades would prove, they were right to fear that a more liberal Supreme Court would undermine institutional segregation.

FDR's agenda really didnt start to unravel until the court packing attempt and the 1937 recession.  Until then he had basically rammed through almost everything he wanted

I don't want to keep hijacking this thread with this tangent, and if you want to continue this discussion in another more appropriate forum I'll be happy to, but I'll just make one final comment on this here before letting it drop.  This isn't an accurate description of FDR's terms in office.  He got a lot accomplished, but he and his administration were constantly watering down their legislative initiatives almost from the start because of Congressional resistance.  He was a canny enough politician to adapt and keep making progress, but he and his closest advisors were constantly frustrated by obstinate (Southern) Congressional Democrats. 

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Yeah, that's a nice story, but it's not what we have in practice.  In the real world, the Court arbitrarily decided that the incentives the ACA created to expand Medicaid were excessively powerful and states should be allowed to opt out of expansion without losing access to existing federal funding streams. There is absolutely no basis for this idea anywhere in the text of the Constitution — and millions of Americans have been deprived of their health insurance as a result.   In the real world, we have the case of Bush v. Gore, a refusal to look at the problem of partisan gerrymandering,  a series of judicial decisions striking down efforts to regulate the campaign finance system, the Shelby County v. Holder decision in which five conservative justices arbitrarily decided that racially motivated voter suppression was no longer a problem, etc. etc.  In what world are rulings like these not prescriptive?

I don't see how any of that contradicts what I said. I'm not saying any of those rulings were arrived at correctly. Rather they were cases between parties in which the Supreme Court gave opinions, and the "striking down" aspect is yours, and the political world's, interpretation of the practical effect of those rulings.

Interpretation?  If these aren't clear examples of "striking down" duly enacted laws, then what would be?  Do words even have meaning?

Like how would things be different if there was no judicial review. Take the medicaid expansion. Lower courts should not follow the precedent? Each state that doesn't want the medicaid expansion has to get their exemption individually from the SCOTUS? What's the point? It's going to be the same result each time, only with a lot of time and money wasted getting there.

Most other developed countries have perfectly functioning political systems without our form of "judicial review."  The worldview you're advocating is that Congress lacks the power to decide for itself what its own laws mean or how to set up regulatory agencies, that the agencies themselves lack the power to decide how to enforce the rules, and that American citizens lack enforceable rights to have their votes counted.  This is a perverse viewpoint that is profoundly undemocratic and, frankly, un-American. 

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I don't see how any of that contradicts what I said. I'm not saying any of those rulings were arrived at correctly. Rather they were cases between parties in which the Supreme Court gave opinions, and the "striking down" aspect is yours, and the political world's, interpretation of the practical effect of those rulings.

Interpretation?  If these aren't clear examples of "striking down" duly enacted laws, then what would be?  Do words even have meaning?

Like how would things be different if there was no judicial review. Take the medicaid expansion. Lower courts should not follow the precedent? Each state that doesn't want the medicaid expansion has to get their exemption individually from the SCOTUS? What's the point? It's going to be the same result each time, only with a lot of time and money wasted getting there.

Most other developed countries have perfectly functioning political systems without our form of "judicial review."  The worldview you're advocating is that Congress lacks the power to decide for itself what its own laws mean or how to set up regulatory agencies, that the agencies themselves lack the power to decide how to enforce the rules, and that American citizens lack enforceable rights to have their votes counted.  This is a perverse viewpoint that is profoundly undemocratic and, frankly, counter to American ideals.  

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Are any Democrats aware of the precedent this would actually set? Pack the court, and when Republicans hold the trifecta, they'll increase the seats to suit their own agenda. Only that time, they'll use it to enforce discrimination agains the LGBT community, strip women of their right to choose, and roll back renvironmental regulations.

But it's okay, because we got to one-up them once.

Isn't this what elections are supposed to be for?  If a party does bad, unpopular things, they get voted out of office.  Isn't this how the rest of the developed world works?  Most other developed nations don't rely on an over-powered, accountability-free judiciary to keep order, and they all seem to be functioning just fine.

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Too much democracy is a bad thing.

Jesus.  Do you really think our problem is that we have too much democracy?  I'd say we're pretty far from that being an issue of concern.  It seems to me that adding more accountability and democracy to our government, by normalizing court packing or whatever other means, would only make our politics more functional.

And I'll just repeat a point I made earlier but that no one has responded to:  most other developed countries lack anything close to our over-powered, accountability-free judicial system, and they're all doing just fine.  Let's learn from the rest of the developed world and curtail judicial overreach and institute some accountability.

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The only sustainable path forward is deescalation and devolution. We need to return control of most policies to the state level. It's not ideal--I'd rather a more unitary system--but the fact is that we're proving that we as a people can not be responsible and respectful with such totalizing power. We cling to every slight grievance in perpetuity as a foundation to justify taking everything at any cost. The only way to thwart this is to depower the prize everyone fights so viciously for.

Do you really think both sides would agree to this?  I don't think many on the left would be happy about returning abortion to the state level compared to the status quo, for example.   

To add to this, if you look at our nation's history, a commitment to "states' rights" has rarely gone hand-in-hand with economic or social progress.  Just the opposite, really.

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Too much democracy is a bad thing.

Jesus.  Do you really think our problem is that we have too much democracy?  I'd say we're pretty far from that being an issue of concern.  It seems to me that adding more accountability and democracy to our government, by normalizing court packing or whatever other means, would only make our politics more functional.

And I'll just repeat a point I made earlier but that no one has responded to:  most other developed countries lack anything close to our over-powered, accountability-free judicial system, and they're all doing just fine.  Let's learn from the rest of the developed world and curtail judicial overreach and institute some accountability.

The reason why you should avoid packing the courts is that Republicans will do the exact same thing and use it to enforce an archaic social agenda, and no one will be able to stop them.

How are you incapable of seeing that?

Voters will be able to stop them. The fear of electoral loss is the check on power that makes democracy work. How are you incapable of seeing that?

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Too much democracy is a bad thing.

Jesus.  Do you really think our problem is that we have too much democracy?  I'd say we're pretty far from that being an issue of concern.  It seems to me that adding more accountability and democracy to our government, by normalizing court packing or whatever other means, would only make our politics more functional.

And I'll just repeat a point I made earlier but that no one has responded to:  most other developed countries lack anything close to our over-powered, accountability-free judicial system, and they're all doing just fine.  Let's learn from the rest of the developed world and curtail judicial overreach and institute some accountability.

The reason why you should avoid packing the courts is that Republicans will do the exact same thing and use it to enforce an archaic social agenda, and no one will be able to stop them.

How are you incapable of seeing that?

Voters will be able to stop them. The fear of electoral loss is the check on power that makes democracy work. How are you incapable of seeing that?

Because that worked fantastically 2014-2016

2014-2016 proves my point!  Senate Republicans were willing to break the rules because they recognized they were about to be relegated to a minority on the Court for a generation or more and they'd have no recourse. Unlike Democrats, Republicans haven't spent the last thirty years lying to themselves and pretending like SCOTUS is some kind of nonpartisan, objective body. SCOTUS appointments are incredibly high stakes because its ideological tilt can persist for decades. If a party could reshape the partisan balance through electoral wins, it would drastically improve incentives and ratchet down the stakes significantly.

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Too much democracy is a bad thing.

Jesus.  Do you really think our problem is that we have too much democracy?  I'd say we're pretty far from that being an issue of concern.  It seems to me that adding more accountability and democracy to our government, by normalizing court packing or whatever other means, would only make our politics more functional.

And I'll just repeat a point I made earlier but that no one has responded to:  most other developed countries lack anything close to our over-powered, accountability-free judicial system, and they're all doing just fine.  Let's learn from the rest of the developed world and curtail judicial overreach and institute some accountability.

The reason why you should avoid packing the courts is that Republicans will do the exact same thing and use it to enforce an archaic social agenda, and no one will be able to stop them.

How are you incapable of seeing that?

Voters will be able to stop them. The fear of electoral loss is the check on power that makes democracy work. How are you incapable of seeing that?

Because that worked fantastically 2014-2016

2014-2016 proves my point!  Senate Republicans were willing to break the rules because they recognized they were about to be relegated to a minority on the Court for a generation or more and they'd have no recourse. Unlike Democrats, Republicans haven't spent the last thirty years lying to themselves and pretending like SCOTUS is some kind of nonpartisan, objective body. SCOTUS appointments are incredibly high stakes because its ideological tilt can persist for decades. If a party could reshape the partisan balance through electoral wins, it would drastically improve incentives and ratchet down the stakes significantly.

Say you add two extra seats . . . okay, next time the Republicans hold the trifecta, they'll add three or four.

It's a dangerously arbitrary thing you're pushing for, and if Democrats care about getting elected at all, they won't pursue it.

You have this backwards.  Our current system is the dangerously arbitrary one--the ideological balance of the Court is now entirely dependent on the question of which old geezer dies unexpectedly, or becomes too infirm to do the job.  Democrats have won the popular vote in six of the last seven presidential elections and yet the Court has moved further and further right during this period.  You want arbitrary, consider how many justices each president has gotten to appoint over the last half century:  Nixon (a little over 1 term) - 4, Ford (less than 1 term) - 1, Reagan (2 terms) - 4, Bush I (1 term) - 2, Clinton (2 terms) - 2, Bush II (2 terms) - 2, Obama (2 terms) - 2, Trump (half a term) - 2 with maybe more to come...  Normalizing court packing would at least add some rationality and predictability to the process.

What's more, if you make the ideological composition of the Court more fluid you'd actually dis-incentivize the extremism that's come to characterize its rulings over the last twenty years.  As things currently stand, even if the Court makes wildly partisan, unjust rulings, there's nothing that can be done about it.  Maybe we get lucky and the right-wing geriatrics die while the left-wing ones don't?  Or maybe the opposite happens.  Who's to say?  The point is, the conservatives on the bench have no reason not to push the envelope--whatever they do, their rulings are likely to stand for thirty years, likely more.  Alternatively, if a Democratic president and Congress could reshape the Court (and each party wins the trifecta, what, once every ten years or so?), the "conservatives" on the bench would have an incentive to pursue the middle path, to seek bipartisan compromise, assuming they actually want their own precedents to stand.  And the same would be true for a liberal Court.

Finally. on the issue of electoral fortunes, Republicans have been using Court appointments as a political rallying point for the last fifty years, and it doesn't seem to have hindered their ability to win elections.  If anything, promising to fight for the courts has unified and rallies the Republican base more than almost any other appeal.  Why shouldn't the same be true for Democrats?

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18-year term limits on the Court could be a good idea that is less partisan than court-packing and doesn't seem to have gotten enough discussion. https://www.vox.com/polyarchy/2018/6/27/17511030/supreme-court-term-limits-retirement

That would require a Constitutional amendment, which ain't gonna happen.  On the other hand, court-packing is as simple as passing a new law (which is still really freaking hard) and has been done frequently throughout our nation's history.  There's no need to try new things here--just do what's been done numerous times before and change the number of seats on the bench.