I think Mr. Nunziata's reasonable argument suffers from a significant omission. Democrats' dissatisfaction with the current Court certainly stems in part from their view of its rulings, but it more basically derives from the procedural manner in which the Court members were appointed. Prior to 2016, the Senate had invariably exercised its role to advise and consent on Presidential nominations, and this had been true regardless of party alignment. Not all Presidential nominations were approved by the Senate: LBJ had his joint nominations of Fortas and Thornberry defeated, Nixon had Haynsworth and Carswell defeated, Reagan's nomination of Bork was rejected. But these were substantive votes based on specific nominees. Republicans tended to oppose liberal nominees and Democrats tended to oppose conservative ones, but rejected nominations were rare: even so controversial a nominee as Thomas was approved by a dominantly Democratic Senate.
When Barack Obama nominated Merrick Garland in early 2016 this tradition was altered. The GOP refused even to grant Garland interviews and no hearings or votes were held on the grounds that it was inappropriate for a president to nominate a candidate "only" ten months before the end of his term. No precedent for such a standard existed. The goal was transparently to use a Republican majority not to block a specific nominee, but to refuse to allow a Constitutionally mandated process to proceed in the hope of partisan advantage, with a possible Republican successor to Obama inheriting the right to nominate. This act established a new precedent in which SCOTUS appointments were explicitly partisan. This was the first time in almost 80 years that the Court appointment process was manipulated for partisan advantage, and in the prior 1937 case FDR's attempt to pack the Court was scuttled by his own party despite its supermajority.
Then in 2020, only six weeks before a presidential election, McConnell's Senate improvised a new rule to allow the appointment of Amy Coney Barrett: it was only inappropriate for the President to nominate and the Senate to confirm a SCOTUS appointee when the Presidency and Senate were controlled by different parties. A more cynical manipulation of the Court appointment procedure could hardly be imagined.
The Senate's charge to consider and Court nominees is explicit in the Constitution, but the size of the Court is not. The force of extra-Constitutional tradition was such that the Democrats exercised restraint in the case of FDR's 1937 packing attempt, but the Republicans did not allow them for inventing a transparently irrelevant excuse for evading the Senate's Constitutional duty in 2016 and then reversing themselves when partisan advantage fell the other way just four years later.
Given this history, I do not think a possible Democratic decision to add justices beyond the current nine seats in 2029, if they are able to, should be seen as anything but redressing a partisan distortion of a Constitutionally mandated process by the GOP, particularly if the expansion is framed as a temporary measure designed to incentivize both parties to reach a more permanent solution that will better constrain partisanship.
I don't know that it would actually be a good idea for a possible Democratic president to add seats to the Court in 2029. I think it would be wise to wait until closer to the date to see how the present Court's rulings play out in the interim. (After the 1937 court-packing scheme failed, the Court's behavior nevertheless changed significantly because it had been sensitized to a changed political environment.) But I think Mr. Nunziata's omission of this history is a very significant weakness in his argument.
Great analysis! There is a case for a well reasoned reform of the Supreme Court that may end up enlarging the Court and changing the appointment and advise and consent practices with which we have become accustomed.
BUT to do so now in this viciously hyper-partisan environment would be a disaster. Any changes must be deeply and profoundly bipartisan.
Many proposals for or against expanding the court flow from frustrations with the reality that the Constitution can and is read in different ways, over time and each of those different readings is legitimate. The results can be weak or strong. The "Living Document" versus "Originalist" debate is largely a false dichotomy.
The answer to the frustration of court decisions is not to change the court which seems to be the driving obsession of both Republicans and Democrats since the Warren Court. The focus should be upon overcoming the Constitution through the Amendment process.
For example if there was an Amendment defining and protecting the explicit right to privacy then Roe vs Wade and other controversial decisions would have stood up on a sounder foundation that just precedent which we all know can and does alter over time.
We all hate Citizens United but the answer is an explicit amendment that grants Congress and the states power to regulate campaign finances in spite of free speech concerns.
The problem is that Amendments are hard to do and politicians, wanting to avoid the heavy lifting of the amendment process, keep holding onto the bad idea that the courts are the easier softer way to get what they want. But it really isn't.
Huh, so you're telling me a federalist society guy doesn't think a court that can barely restrain itself from reading the 14th amendment out of the Constitution isn't that bad? Wow, I'll have to reevaluate my stance.
Yeah sure the Alito sycophant is making a “good faith” argument. The current scotus majority was won by cheating across multiple elections and not earned whatsoever. Alito flying the upside down flag is as nakedly partisan as it gets.
Regardless of its ambiguity, the Trump v U.S. decision is unquestionably missing the constitutional mark by a historically aberrant margin. It has taken American jurisprudence back to medieval times, before the Magna Carta. Those principles led to the Enlightenment and the Enlightenment led to the founding of the United States. From my perspective, the Court has otherwise exhibited institutional drift towards granting Trump greater and greater unitary executive power. It has pushed back on the most outlandish bald-faced violations against the Constitution. Except the absolute most crucial one: that immunity is granted to no one by virtue of office, stature, or anything. That is so fundamental to what defines our system of self-government, no other pushback mitigates the damage done by Trump v U.S.
That said, I'm skeptical of enlarging the Court. Impeach them and disbar them. If that fails, then yes, enlarge the Court.
I read this article with increasing anger. The right wingers on this court have an extrajudicial agenda. I hesitate to call it a partisan, political agenda, but I believe it is a social agenda, and I believe this attitude goes back at least as far as Robert Bork, who I think was rightly kept off the court because of his obvious extra-judicial social agenda, even if the process of doing that was distasteful in some respects.
Furthermore, all of the right-wing members of the court deceived Congress and the public in their nomination hearings, about their respect for precedent and just calling balls and strikes. They obviously have an agenda that does not respect precedent at all, and seem quite willing to put their thumbs on the scale when it suits them. Furthermore, at least one of the right-wing justices got in by underhanded means and now occupies a position that should have been chosen by a Democratic President. I have no problem with an opposition party maneuvering to have a voice in the approval process, but outright denying a president the opportunity to even try to put forth a consensus nominee is way out of bounds.
As far as I am concerned, some of the opinions of current right-wingers on the court cannot possible be that inept and are clearly papering over an obviously extra-judicial agenda.
"Looking to judicial “reforms” as the solution to our present crisis is looking in the wrong place. The other two branches are the bigger problem." Amen.
I think Mr. Nunziata's reasonable argument suffers from a significant omission. Democrats' dissatisfaction with the current Court certainly stems in part from their view of its rulings, but it more basically derives from the procedural manner in which the Court members were appointed. Prior to 2016, the Senate had invariably exercised its role to advise and consent on Presidential nominations, and this had been true regardless of party alignment. Not all Presidential nominations were approved by the Senate: LBJ had his joint nominations of Fortas and Thornberry defeated, Nixon had Haynsworth and Carswell defeated, Reagan's nomination of Bork was rejected. But these were substantive votes based on specific nominees. Republicans tended to oppose liberal nominees and Democrats tended to oppose conservative ones, but rejected nominations were rare: even so controversial a nominee as Thomas was approved by a dominantly Democratic Senate.
When Barack Obama nominated Merrick Garland in early 2016 this tradition was altered. The GOP refused even to grant Garland interviews and no hearings or votes were held on the grounds that it was inappropriate for a president to nominate a candidate "only" ten months before the end of his term. No precedent for such a standard existed. The goal was transparently to use a Republican majority not to block a specific nominee, but to refuse to allow a Constitutionally mandated process to proceed in the hope of partisan advantage, with a possible Republican successor to Obama inheriting the right to nominate. This act established a new precedent in which SCOTUS appointments were explicitly partisan. This was the first time in almost 80 years that the Court appointment process was manipulated for partisan advantage, and in the prior 1937 case FDR's attempt to pack the Court was scuttled by his own party despite its supermajority.
Then in 2020, only six weeks before a presidential election, McConnell's Senate improvised a new rule to allow the appointment of Amy Coney Barrett: it was only inappropriate for the President to nominate and the Senate to confirm a SCOTUS appointee when the Presidency and Senate were controlled by different parties. A more cynical manipulation of the Court appointment procedure could hardly be imagined.
The Senate's charge to consider and Court nominees is explicit in the Constitution, but the size of the Court is not. The force of extra-Constitutional tradition was such that the Democrats exercised restraint in the case of FDR's 1937 packing attempt, but the Republicans did not allow them for inventing a transparently irrelevant excuse for evading the Senate's Constitutional duty in 2016 and then reversing themselves when partisan advantage fell the other way just four years later.
Given this history, I do not think a possible Democratic decision to add justices beyond the current nine seats in 2029, if they are able to, should be seen as anything but redressing a partisan distortion of a Constitutionally mandated process by the GOP, particularly if the expansion is framed as a temporary measure designed to incentivize both parties to reach a more permanent solution that will better constrain partisanship.
I don't know that it would actually be a good idea for a possible Democratic president to add seats to the Court in 2029. I think it would be wise to wait until closer to the date to see how the present Court's rulings play out in the interim. (After the 1937 court-packing scheme failed, the Court's behavior nevertheless changed significantly because it had been sensitized to a changed political environment.) But I think Mr. Nunziata's omission of this history is a very significant weakness in his argument.
That is a good point!
Great analysis! There is a case for a well reasoned reform of the Supreme Court that may end up enlarging the Court and changing the appointment and advise and consent practices with which we have become accustomed.
BUT to do so now in this viciously hyper-partisan environment would be a disaster. Any changes must be deeply and profoundly bipartisan.
Many proposals for or against expanding the court flow from frustrations with the reality that the Constitution can and is read in different ways, over time and each of those different readings is legitimate. The results can be weak or strong. The "Living Document" versus "Originalist" debate is largely a false dichotomy.
The answer to the frustration of court decisions is not to change the court which seems to be the driving obsession of both Republicans and Democrats since the Warren Court. The focus should be upon overcoming the Constitution through the Amendment process.
For example if there was an Amendment defining and protecting the explicit right to privacy then Roe vs Wade and other controversial decisions would have stood up on a sounder foundation that just precedent which we all know can and does alter over time.
We all hate Citizens United but the answer is an explicit amendment that grants Congress and the states power to regulate campaign finances in spite of free speech concerns.
The problem is that Amendments are hard to do and politicians, wanting to avoid the heavy lifting of the amendment process, keep holding onto the bad idea that the courts are the easier softer way to get what they want. But it really isn't.
Huh, so you're telling me a federalist society guy doesn't think a court that can barely restrain itself from reading the 14th amendment out of the Constitution isn't that bad? Wow, I'll have to reevaluate my stance.
Yeah sure the Alito sycophant is making a “good faith” argument. The current scotus majority was won by cheating across multiple elections and not earned whatsoever. Alito flying the upside down flag is as nakedly partisan as it gets.
Regardless of its ambiguity, the Trump v U.S. decision is unquestionably missing the constitutional mark by a historically aberrant margin. It has taken American jurisprudence back to medieval times, before the Magna Carta. Those principles led to the Enlightenment and the Enlightenment led to the founding of the United States. From my perspective, the Court has otherwise exhibited institutional drift towards granting Trump greater and greater unitary executive power. It has pushed back on the most outlandish bald-faced violations against the Constitution. Except the absolute most crucial one: that immunity is granted to no one by virtue of office, stature, or anything. That is so fundamental to what defines our system of self-government, no other pushback mitigates the damage done by Trump v U.S.
That said, I'm skeptical of enlarging the Court. Impeach them and disbar them. If that fails, then yes, enlarge the Court.
Ridiculous. _Nothing_ will move forward unless the Court is packed. Nothing. Why is this so hard to understand?
I stopped reading at "I agree with much of Somin’s account and take an even more positive view."
The big difference between Trump v. US and previous outrages like Dred Scott and Korematsu is that the latter were not nakedly partisan.
I read this article with increasing anger. The right wingers on this court have an extrajudicial agenda. I hesitate to call it a partisan, political agenda, but I believe it is a social agenda, and I believe this attitude goes back at least as far as Robert Bork, who I think was rightly kept off the court because of his obvious extra-judicial social agenda, even if the process of doing that was distasteful in some respects.
Furthermore, all of the right-wing members of the court deceived Congress and the public in their nomination hearings, about their respect for precedent and just calling balls and strikes. They obviously have an agenda that does not respect precedent at all, and seem quite willing to put their thumbs on the scale when it suits them. Furthermore, at least one of the right-wing justices got in by underhanded means and now occupies a position that should have been chosen by a Democratic President. I have no problem with an opposition party maneuvering to have a voice in the approval process, but outright denying a president the opportunity to even try to put forth a consensus nominee is way out of bounds.
As far as I am concerned, some of the opinions of current right-wingers on the court cannot possible be that inept and are clearly papering over an obviously extra-judicial agenda.
"Looking to judicial “reforms” as the solution to our present crisis is looking in the wrong place. The other two branches are the bigger problem." Amen.