For crying out loud, stop calling it “court packing.” Packing the court is what McConnell, the Federalist Society, and the Heritage Foundation have already done. Correcting that horrible injustice, increasing the size of the court to acknowledge the growth of the nation and the number of appellate circuits, and staggering term limits to ensure each POTUS a fair share of nominations, is not “packing.” It is the opposite.
I don't shy away from calling it court packing because that's what it is, and I don't think it adds anything to hide the ball behind euphemisms. Nor do I think there's anything good in the abstract about adding more seats just for the sake of adding more seats. Like, acting as if this is about matching the number of circuits is ridiculous, that's just a transparent pretense nobody actually cares about. It's about flipping the composition of the court because the current majority's rulings have been that egregiously bad. That can be a valid justification if the circumstances are compelling enough, and I think they are. But you're not going to convince anybody it's because 13 is really a better number than 9 as if you'd be saying that anyway.
As for blocking Garland and rushing through Barrett (and whatever you make of the other nomination controversies), I don't premise the case on that because it does not actually stand as any kind of independent reason. It just circles back to how they've made very bad anti-constitutional rulings, which they have. But if their appointments had been more in line with traditional political norms, it wouldn't make those same rulings any better. And if similar political process had produced justices who didn't do the substantive objectionable things we're talking about, then it would be irrelevant. I think it's true you can say McConnell accelerated the mask-off politicization of appointments, and that's relevant political context. But that basket of gripes about how any of the individual justices got on the court is neither necessary nor sufficient to the case for adding more seats.
Re: staggered and limited terms, yes, that's what I call for as the desirable end goal. But that's not what I refer to as court packing. That *is* a long-term reform that stands on its neutral merits regardless of what one thinks of the current justices.
You’re intentionally avoiding the point by pretending that there is no legitimate nonpartisan reason to expand the size of the court. There clearly are sound reasons. The number of SCOTUS justices is not defined by the Constitution and has changed several times over the course of 250 years. The increase in population, number of cases filed, the sheer number of petitions for writ of certiorari alone calls for an increase in the number of justices. A larger panel of justices deciding cases adds legitimacy to the decisions, makes it less likely for a decision to hinge on a single justice, and gives an extremist on the Court less influence. And that increase in the number of justices is not “packing” if it is achieved in steps with staggered and limited terms, ensuring two nominees during each presidential term.
I wouldn't say such positions are illegitimate or deny there are people who make nonpartisan / neutral good government arguments in good faith, that they think it would be better to have more justices in principle regardless. In which case sure, if you're advocating that position you might take a different stance on calling it court packing. Just that I don't find them very compelling and they aren't my reasons. My position is that a rogue court has been so misbehaving, and with such severe consequences to the whole constitutional order, that Congress would be justified in using its break-glass-in-case-of-emergency tool against them. That's the position where I don't see much use in denying that would be a kind of court packing, or that it can be denied convincingly. Instead I prefer to own it and make the case it's justified. Your mileage may vary.
I do think the argument for matching the number of circuits, that you mentioned, is particularly weak. I really doubt it would otherwise have any serious advocacy on its own merits. It's just numerically and historically convenient but ignores how being a circuit justice today doesn't entail anything like riding circuit in the old days. There's not really any indication the ones who end up having two instead of one do a noticeably worse job at it. Though the higher caseload arguments, that it'd be better to have randomized panels, all those things, sure. I don't think people who argue for those things are lying or anything like that. I'm just not convinced those things would be better for their own sake.
We largely agree on all of that, except for the number of circuits being immaterial. There is a reason that the number of circuits increased, and the same reason points to the need for a larger SCOTUS.
What I really object to is the shrill use of “packing” in this context without acknowledging the packing that has already occurred. There is a lot of rhetoric objecting to the possible changes to the Court that many are calling “packing,” a lot of it partisan, some of it attempting to be objective, but very little acknowledgement of the egregious means by which the current SCOTUS has been populated.
To be objective, one must first acknowledge the means and the ends of the current makeup of the Court. The approach I advocated cannot be seriously called packing at all. As for Congress using the “break-glass-in-case-of-emergency” tool, if you mean an immediate influx of several new justices chosen by a POTUS and Congress aligned in partisan fashion, then, OK, that would be a type of packing—actually a “re-packing” in response to the already packed court.
Then the issue wouldn’t be merely “packing” vs not packing, but a question of whether two wrongs make a right. In this case, it’s arguable that while the second wrong has some problems, not doing it—and allowing the first wrong to continue ruling—is far more harmful.
I think the argument would be the breaking of norms in the denial of a vote on Merrick Garland and the rushing through the confirmation of Amy Barrett. Depending on your view of the timing, it has swung the current court by one or two conservative votes. Not illegal but certainly going against long-established political norms, or if you think there wasn't enough history to have set norms, a sense of what I naively might call "fair play." Which, even at 76 and having been in the legal system for fifty years as a lawyer, I still believe matters. (Talk about naive!) As the author notes, the 6-3 majority "has proven far less constrained than the 5-4" Court it replaced."
Yes, but the whole point of doing it is to return the Court to a leftist majority. You wouldn’t be saying this if the opinions were going your way all the time.
Wrong. Yes, I would be saying this. Perhaps everything you advocate is for partisan advantage, but some of us actually care about justice, fairness, and rationality.
It's curious that no one ever seemed to offer this solution when the court reliably returned leftist decisions for decades. That's why I don't believe you or anyone else.
You’re misrepresenting mostly centrist, rational decisions as “leftist,” but regardless of decisions, nobody before McConnell ever packed the Court so egregiously by thoroughly abusing the “Advice and Consent” power of the Senate. Even though no SCOTUS justices in recent history, despite being purported “textualists” and “originalists," made a practice of completely ignoring the clear text of the Constitution and the original meaning, as well as blatantly misrepresenting facts, as Alito and Thomas consistently do whenever they don’t like the results that sticking to principles would produce—even though—it’s the extraordinarily corrupt PROCESS that McConnell used to create the right wing majority that has people calling for this needed change.
As for your implication that the right never suggested expanding the court, they howled incessantly, and continue to do so, over every decision, no matter how well reasoned, when it doesn’t fit their partisan ideology. They employed a long term strategy of taking over the courts, especially SCOTUS, devised by the Federalist Society and related right-wing groups, culminating in McConnell’s capping achievement.
Regardless of one’s political leanings, it’s a plain fact that appointments to the courts, and particularly SCOTUS, have always had political ramifications. Some more than others. The tiered, staggered expansion, with term limits that I suggest actually helps to alleviate that.
There is no legitimate reason to expand the Court and the only people who have really wanted to do it are Democrats mad that they couldn’t get their way.
Making such a silly comment makes you seem ignorant of the facts. Are you really unaware of the shenanigans pulled by McConnell, literally preventing Obama’s nominee from even receiving a hearing (on the pretense of “too close to an election” despite the election being nearly a year away)? That he subsequently rammed through Trump’s nominee mere weeks before the election? Are you also unaware that what the author of this piece referred to as “packing,” and what I advocate, are unquestionably constitutional? You need to educate yourself.
I don't think this semantic argument is worth making. Nobody opposed to or on the fence about "court packing" is going to change their minds the second it's called "court expansion".
You’re ignoring the fact that the Court has already been egregiously packed. The semantic argument is not just worth making, it is absolutely essential.
Just throwing a loaded term onto something and saying QED doesn't make you right or even politically smart. People will just notice you're playing with words and tune you out.
Yes, I agree with this. Any discussion of the Court that doesn't frame it as already packed is a poor frame. The Court was packed when McConnell held a seat open in 2016.
The reason no one has done it is because there is an obvious game theoretical problem. Let’s say the Dems get a clean sweep in 2028, and add 4 justices. Why wouldn’t the GOP add another 3-5 when they get back in power?
That’s has always been the legitimate argument, but it’s irrelevant to the method of court expansion that I advocated and described here. On top of replacing retiring/deceased justices, two additional justices added in each four-year presidential term, until the desired total number (at least 13, perhaps more), is reached. Then term limits, term expirations staggered to guarantee two replacements during each four-year presidential term.
First, it’s an issue that has been visited many times over the entire history of the nation. And one significant difference between now and the Warren years is that the Warren Court had not been packed via the egregious abuse of power by an unethical, dishonest operative like Mitch McConnell.
Yes, the composition of the court has been an issue. But it's always a bunch of leftists who cry and scream when they don't win 100% of time. People like you would have to be committed to the psychiatric ward if you went through a period of losing like the right did from FDR to Obergefell.
By you, apparently viewing everything through Fox-colored glasses. Your comment says far more about you than me. You’re so stuck on the idea that your belief is the only legitimate one, that someone voicing a different opinion must be “dishonest.” A shame Substack doesn’t have a block feature—at least I haven’t found one—because you’ve earned it.
No, I didn’t make any assumption at all. Fox-colored glasses is merely a metaphor. And after calling me a liar for having an opinion different from yours, you’re the last person who should be pointing the finger at anyone else for making assumptions or using stereotypes. Your hypocrisy is defining you.
In fact, your trollish behavior is so bad that I’m done interacting with you in any way. Too bad I haven’t found a way to block your account on Substack—as that passive ignore feature isn’t available, I’ll just have to actively ignore you. Bye now.
What is the proper role of government, and why? What is the role of SCOTUS and the Constitution more broadly in maintaining such a government?
These are the questions that need to be answered before we make changes to institutions that have functioned for centuries. I would argue that if our mainstream political commentators actually knew the correct answers to these questions, we wouldn't be in the situation we're in today, and structural changes wouldn't even be necessary.
This tells us the problem isn't with the Supreme Court itself.
I'll use one of the article's own examples to illustrate. Let's say the Supreme Court *did* rule tomorrow that Catholicism is the established religion of the United States. And? What would be the mainstream, politically literate argument against it?
Since everyone in the mainstream, including those who call themselves "liberals," wants the government involved in every single aspect of our lives, there is no longer any principled opposition to be made against a ruling like that.
The emergency is indeed real, but it has nothing to do with the Court. It has everything to do with the rotten ideas being advocated by our mainstream political commentariat.
Yours is pipedream if you are expecting answers to your weighty questions. There is no grand enlightenment that is going to come from an increasingly dumb and disengaged citizenry. Pack the court.
People who don't know anything about politics shouldn't even be voting, let alone demanding changes be made to constitutional mechanisms they don't understand.
Confirm the entire DC circuit to the SCOTUS bench.
Then empanel every case randomly from that large pool of justices.
It defuses the retaliation MUCH better than staggered terms, and does NOT require an amendment. The law can even strip SCOTUS of the jurisdiction to strike it down.
The author addressed a version of this and explained why it’s a problem. I can tell you from experience that the author’s analysis is correct, because Connecticut’s 7-member Supreme Court used to use randomly-selected panels of five of the Justices to decide ALL cases (the reason was that CT is such a small state that one or two Justices are likely to have conflicts in any given matter). The problem was that predictability went out the window. The court would definitively rule on the meaning of a statute, and someone who didn’t like the ruling would still try to appeal a factually indistinguishable case, only a year or two later, in the hopes of getting a more favorable panel. It was a complete circus and the Court finally pulled the plug and started acting like an actual court of last resort again.
I still like the Briley/Epps/Sitaraman lottery proposal better, because dispersing the power to make final appellate decisions among a large group of judges who don't know when they will be called on to exercise it is good in itself, and worth a certain amount of hysteresis. I don't think any set of only nine individuals should ever again be trusted with the power SCOTUS has.
That said, you have convinced me that this is a game theoretically viable alternative path that would be a drastic improvement over the status quo, so if this is what gets traction instead of the lottery route, it's well worth supporting.
If the Democratic Party supports court packing it will be its worst decision since nominating Kamala Harris. Find some candidates who realize how toxic the woke wing of the party is - and will say so publicly.
I’m with you, and thank you for making the argument clearly and cogently.
If Democrats are too chickenshit to play Constitutional hardball in order to defend the Constitution, then we have already lost it as far as I can tell. Its going to be an uphill battle to right this ship.
Fwiw, I’m not so dead-set on a Constitutional amendment. I think if a popular supermajority can get on board, then thoughtful legislation could be enough to get back to a more healthy place. It is certainly the easier path practically speaking tho I share concerns about tit for tat. I think that could be managed by designing the legislation smartly tho.
I think it should be expanded to 13 and have term limits to ensure a more orderly process. And in order to quell concerns re court packing, the 4 additional justices can be added 1 at a time over 2 Presidential terms, even starting with the following Presidential term that has not yet been elected. This could be concurrent with 1-per-year replacements for the current justices or as they reach their term limits. With 13 or 26 year terms, eventually you’d get to an orderly process with a justice being replaced every year or every other year.
I’m open to any number of formats for sure but one thing is for certain. The status quo is toxic and needs fixing
It's so cute when Democrats take time off from claiming the Constitution is a "living document" that needs to adjust to the times, after all it was written by dead White men, to pretend to care about it.
pfft, its a sorry joke when Republicans pretend to care about the Constitution
Good luck with your campaign to destroy American constitutional governance and crown a fucking king, while blaming Democrats for not enough faithfulness to the Constitution your team is flushing down the tubes as we speak.
Oh yes, all you commentors (save a couple), looking for a structural fix to the fact that you're losing the popular argument (which, apparently, you cannot conceive, so arrogant and presumptive are you). "Oh, this will fix it". "We'll just tinker with this over here, and nobody will notice that we had the monkey with the process because our arguments aren't resonating". It's all such a bunch of bullshit. If the shoe were on the other foot, you'd be screaming bloody murder. But you have such a high opinion of yourselves that it doesn't occur to you that what you're considering/advocating is justifiably interpreted by the majority of this country as just the authoritarianism you supposedly decry. You couldn't be any more transparent or corrupt, and dressing it as combating fascism or other such crap isn't fooling anyone. Crawl back in your fucking hole and try to come up with a winning strategy that doesn't rely on slight of hand to accomplish it.
The "crawl back in your fucking hole" sentiment means that there's no winning strategy "we" could come up with that would ever meet your approval. Put up a reasoned argument that directly addresses the issue at hand; otherwise assume that you're going to be ignored.
You're being overly hysterical. The current court is not as bad as you're portraying it. They overturn Trump's tariffs and they have also blocked some of his more extreme immigration actions, such as halting deportation flights to CECOT and upholding rulings that forced them to return Kilmar Abrego Garcia. They also are very unlikely to uphold his EO on birthright citizenship. I feel confident they aren't going to support a slide in authoritarianism or an attempt to overturn an election.
The correct path is, as always, elect a different president so that that President can appoint new justices when the current ones retire.
This response only makes sense if you didn't read the article and you think the author argues that the SCOTUS is entirely in Trump's pocket. They obviously don't argue this because they explicitly mention the same examples you just mentioned.
Likewise your confidence that the SCOTUS WOULDN'T facilitate a slide to authoritarianism is belied by the criminal immunity ruling, how Trump v Slaughter is being handled (allowing Trump to fire heads of independent agencies at will before a ruling), and the conveniently partisan invocation of the Purcell principle which repeatedly favors the GOP. How have these rulings NOT facilitated the total obedience to and unaccountability for a figure like Trump?
Oh FFS! Only leftist children think this isn't authoritarian. But, like a true liberal, you come waltzing along, lose, then want to change the rules mid-stream. You're so pathetically transparent and myopic. But you assholes go ahead and put this on your agenda and see how the country reacts - outside of you demented leftists, of course. If not for nothing, you infants are consistent.
Changing the rules mid-stream like the SCOTUS when it conveniently only invokes the Purcell principle when it would disadvantage the GOP otherwise? Or making up criminal immunity when they've larped as originalists? Or when they respect Humphrey's executor for the FED but not for the other independent agencies? What's not in question now is that the people HAVE reacted to this current SCOTUS and they're not happy with it.
"Suppose the Supreme Court ruled tomorrow that Catholicism is the established religion of the United States—a decree lawless on its face. The prescribed remedy, impeachment, requires 67 senators. Thirty-four senators of the justices’ party refuse to convict. Is the answer that the country must simply submit?"
Do you understand how the court works? They rule on the Constitutionality of laws, Congress would have to pass a law making Catholocism the established religion for the court to be hearing the case and ruling on anything about it, if anything Congress would be impeaching the justices for overturning the law they passed, not for upholding it - was this just a terrible hypothetical or do you fundamentally not get how that works?
This is wrong, all they’d need is an interest group to challenge a gay marriage on the basis that it goes against the constitutional establishment of “Catholicism as the religion of the United States”, whether the constitution says anything of the sort is now irrelevant. The Supreme Court can rule in favor of the interest group by inventing some new originalist/textualist/histories and traditions/whatever bullshit they want legal doctrine and voila now the constitution says that Catholicism is the established religion. That will be the new precedent that can be used to challenge any law that cuts against the ruling.
Also, see III.A of this recent ruling, establishing standing isn’t necessarily required to get a merits ruling (Alito only claims this for interim rulings here, but no reason a theoretical court couldn’t do it for a merits) - https://www.supremecourt.gov/opinions/25pdf/25-1083_f204.pdf
So if you make up a bunch of stuff that could potentially happen in a way that would be novel to the court's behavior, then the bad things you worry about would happen. Compelling argument.
I’m only pointing out that the Supreme Court could do this, which was the point under contention. Nobody thinks the court is itching to make Catholicism the established religion, it was a hypothetical.
What about senate confirmation? This new concept rests on faith in the senate, a non-democratic body with built in Republican structural advantages, to operate in good faith and takes its job seriously again. The reason you're advocating for this new system is that this is not the case. And yet they'd still hold the keys.
For crying out loud, stop calling it “court packing.” Packing the court is what McConnell, the Federalist Society, and the Heritage Foundation have already done. Correcting that horrible injustice, increasing the size of the court to acknowledge the growth of the nation and the number of appellate circuits, and staggering term limits to ensure each POTUS a fair share of nominations, is not “packing.” It is the opposite.
I don't shy away from calling it court packing because that's what it is, and I don't think it adds anything to hide the ball behind euphemisms. Nor do I think there's anything good in the abstract about adding more seats just for the sake of adding more seats. Like, acting as if this is about matching the number of circuits is ridiculous, that's just a transparent pretense nobody actually cares about. It's about flipping the composition of the court because the current majority's rulings have been that egregiously bad. That can be a valid justification if the circumstances are compelling enough, and I think they are. But you're not going to convince anybody it's because 13 is really a better number than 9 as if you'd be saying that anyway.
As for blocking Garland and rushing through Barrett (and whatever you make of the other nomination controversies), I don't premise the case on that because it does not actually stand as any kind of independent reason. It just circles back to how they've made very bad anti-constitutional rulings, which they have. But if their appointments had been more in line with traditional political norms, it wouldn't make those same rulings any better. And if similar political process had produced justices who didn't do the substantive objectionable things we're talking about, then it would be irrelevant. I think it's true you can say McConnell accelerated the mask-off politicization of appointments, and that's relevant political context. But that basket of gripes about how any of the individual justices got on the court is neither necessary nor sufficient to the case for adding more seats.
Re: staggered and limited terms, yes, that's what I call for as the desirable end goal. But that's not what I refer to as court packing. That *is* a long-term reform that stands on its neutral merits regardless of what one thinks of the current justices.
You’re intentionally avoiding the point by pretending that there is no legitimate nonpartisan reason to expand the size of the court. There clearly are sound reasons. The number of SCOTUS justices is not defined by the Constitution and has changed several times over the course of 250 years. The increase in population, number of cases filed, the sheer number of petitions for writ of certiorari alone calls for an increase in the number of justices. A larger panel of justices deciding cases adds legitimacy to the decisions, makes it less likely for a decision to hinge on a single justice, and gives an extremist on the Court less influence. And that increase in the number of justices is not “packing” if it is achieved in steps with staggered and limited terms, ensuring two nominees during each presidential term.
I wouldn't say such positions are illegitimate or deny there are people who make nonpartisan / neutral good government arguments in good faith, that they think it would be better to have more justices in principle regardless. In which case sure, if you're advocating that position you might take a different stance on calling it court packing. Just that I don't find them very compelling and they aren't my reasons. My position is that a rogue court has been so misbehaving, and with such severe consequences to the whole constitutional order, that Congress would be justified in using its break-glass-in-case-of-emergency tool against them. That's the position where I don't see much use in denying that would be a kind of court packing, or that it can be denied convincingly. Instead I prefer to own it and make the case it's justified. Your mileage may vary.
I do think the argument for matching the number of circuits, that you mentioned, is particularly weak. I really doubt it would otherwise have any serious advocacy on its own merits. It's just numerically and historically convenient but ignores how being a circuit justice today doesn't entail anything like riding circuit in the old days. There's not really any indication the ones who end up having two instead of one do a noticeably worse job at it. Though the higher caseload arguments, that it'd be better to have randomized panels, all those things, sure. I don't think people who argue for those things are lying or anything like that. I'm just not convinced those things would be better for their own sake.
We largely agree on all of that, except for the number of circuits being immaterial. There is a reason that the number of circuits increased, and the same reason points to the need for a larger SCOTUS.
What I really object to is the shrill use of “packing” in this context without acknowledging the packing that has already occurred. There is a lot of rhetoric objecting to the possible changes to the Court that many are calling “packing,” a lot of it partisan, some of it attempting to be objective, but very little acknowledgement of the egregious means by which the current SCOTUS has been populated.
To be objective, one must first acknowledge the means and the ends of the current makeup of the Court. The approach I advocated cannot be seriously called packing at all. As for Congress using the “break-glass-in-case-of-emergency” tool, if you mean an immediate influx of several new justices chosen by a POTUS and Congress aligned in partisan fashion, then, OK, that would be a type of packing—actually a “re-packing” in response to the already packed court.
Then the issue wouldn’t be merely “packing” vs not packing, but a question of whether two wrongs make a right. In this case, it’s arguable that while the second wrong has some problems, not doing it—and allowing the first wrong to continue ruling—is far more harmful.
How has the court packing already occurred ?
I think the argument would be the breaking of norms in the denial of a vote on Merrick Garland and the rushing through the confirmation of Amy Barrett. Depending on your view of the timing, it has swung the current court by one or two conservative votes. Not illegal but certainly going against long-established political norms, or if you think there wasn't enough history to have set norms, a sense of what I naively might call "fair play." Which, even at 76 and having been in the legal system for fifty years as a lawyer, I still believe matters. (Talk about naive!) As the author notes, the 6-3 majority "has proven far less constrained than the 5-4" Court it replaced."
It hasn’t.
Yes, but the whole point of doing it is to return the Court to a leftist majority. You wouldn’t be saying this if the opinions were going your way all the time.
Wrong. Yes, I would be saying this. Perhaps everything you advocate is for partisan advantage, but some of us actually care about justice, fairness, and rationality.
It's curious that no one ever seemed to offer this solution when the court reliably returned leftist decisions for decades. That's why I don't believe you or anyone else.
You’re misrepresenting mostly centrist, rational decisions as “leftist,” but regardless of decisions, nobody before McConnell ever packed the Court so egregiously by thoroughly abusing the “Advice and Consent” power of the Senate. Even though no SCOTUS justices in recent history, despite being purported “textualists” and “originalists," made a practice of completely ignoring the clear text of the Constitution and the original meaning, as well as blatantly misrepresenting facts, as Alito and Thomas consistently do whenever they don’t like the results that sticking to principles would produce—even though—it’s the extraordinarily corrupt PROCESS that McConnell used to create the right wing majority that has people calling for this needed change.
As for your implication that the right never suggested expanding the court, they howled incessantly, and continue to do so, over every decision, no matter how well reasoned, when it doesn’t fit their partisan ideology. They employed a long term strategy of taking over the courts, especially SCOTUS, devised by the Federalist Society and related right-wing groups, culminating in McConnell’s capping achievement.
Regardless of one’s political leanings, it’s a plain fact that appointments to the courts, and particularly SCOTUS, have always had political ramifications. Some more than others. The tiered, staggered expansion, with term limits that I suggest actually helps to alleviate that.
There is no legitimate reason to expand the Court and the only people who have really wanted to do it are Democrats mad that they couldn’t get their way.
Easy for you to say when you ignore all the legitimate reasons that actually exist.
Nobody believes that you’re stupid enough to think that filling court vacancies through the Constitutional process is “court packing”.
You’re just a dishonest person.
Making such a silly comment makes you seem ignorant of the facts. Are you really unaware of the shenanigans pulled by McConnell, literally preventing Obama’s nominee from even receiving a hearing (on the pretense of “too close to an election” despite the election being nearly a year away)? That he subsequently rammed through Trump’s nominee mere weeks before the election? Are you also unaware that what the author of this piece referred to as “packing,” and what I advocate, are unquestionably constitutional? You need to educate yourself.
I am more aware of the details than you are, and not nearly childish enough to play along with your game.
That’s a laugh. Nothing you wrote is anything but childish. You need to grow up.
What an odd endorsement of McConnell
I don't think this semantic argument is worth making. Nobody opposed to or on the fence about "court packing" is going to change their minds the second it's called "court expansion".
You’re ignoring the fact that the Court has already been egregiously packed. The semantic argument is not just worth making, it is absolutely essential.
No, words mean things and redefining them to fit your partisan feelings just makes you look dumb.
You’re the one showing your ignorance. Words do mean things, and the author’s use of “court packing” is a partisan misrepresentation.
Just throwing a loaded term onto something and saying QED doesn't make you right or even politically smart. People will just notice you're playing with words and tune you out.
https://www.merriam-webster.com/dictionary/court-packing
You just defeated your own argument. Throwing the loaded term “court packing” onto something is just the problem that I identified.
And btw, I just glanced at your posting history. It’s clear that you act like a troll without a single objective cell in your entire brain.
Uh...sure man
Yes, it’s funny how an elegant argument deteriorates when it takes as its base a piece of loaded terminology.
Yes, I agree with this. Any discussion of the Court that doesn't frame it as already packed is a poor frame. The Court was packed when McConnell held a seat open in 2016.
The reason no one has done it is because there is an obvious game theoretical problem. Let’s say the Dems get a clean sweep in 2028, and add 4 justices. Why wouldn’t the GOP add another 3-5 when they get back in power?
That’s has always been the legitimate argument, but it’s irrelevant to the method of court expansion that I advocated and described here. On top of replacing retiring/deceased justices, two additional justices added in each four-year presidential term, until the desired total number (at least 13, perhaps more), is reached. Then term limits, term expirations staggered to guarantee two replacements during each four-year presidential term.
Why did no one have this idea during the Warren Court? Just a coincidence?
First, it’s an issue that has been visited many times over the entire history of the nation. And one significant difference between now and the Warren years is that the Warren Court had not been packed via the egregious abuse of power by an unethical, dishonest operative like Mitch McConnell.
Yes, the composition of the court has been an issue. But it's always a bunch of leftists who cry and scream when they don't win 100% of time. People like you would have to be committed to the psychiatric ward if you went through a period of losing like the right did from FDR to Obergefell.
Based McConnell playing 4D chess while RGB refused to retire
This sort of language gaming is why you’re not seen as honest.
By you, apparently viewing everything through Fox-colored glasses. Your comment says far more about you than me. You’re so stuck on the idea that your belief is the only legitimate one, that someone voicing a different opinion must be “dishonest.” A shame Substack doesn’t have a block feature—at least I haven’t found one—because you’ve earned it.
Fox colored glasses?
Oh, I see, you made assumptions about my media consumption because I think your strategy is awful. I don't watch Fox News. Was never a viewer.
Update your stereotypes. The reasons people don't like you are independent of what TV channels people watch.
No, I didn’t make any assumption at all. Fox-colored glasses is merely a metaphor. And after calling me a liar for having an opinion different from yours, you’re the last person who should be pointing the finger at anyone else for making assumptions or using stereotypes. Your hypocrisy is defining you.
In fact, your trollish behavior is so bad that I’m done interacting with you in any way. Too bad I haven’t found a way to block your account on Substack—as that passive ignore feature isn’t available, I’ll just have to actively ignore you. Bye now.
You’re retarded.
Ooh, so intelligent and witty of you. Your name fits you.
To save democracy, we must abolish democracy!
What is the proper role of government, and why? What is the role of SCOTUS and the Constitution more broadly in maintaining such a government?
These are the questions that need to be answered before we make changes to institutions that have functioned for centuries. I would argue that if our mainstream political commentators actually knew the correct answers to these questions, we wouldn't be in the situation we're in today, and structural changes wouldn't even be necessary.
This tells us the problem isn't with the Supreme Court itself.
I'll use one of the article's own examples to illustrate. Let's say the Supreme Court *did* rule tomorrow that Catholicism is the established religion of the United States. And? What would be the mainstream, politically literate argument against it?
Since everyone in the mainstream, including those who call themselves "liberals," wants the government involved in every single aspect of our lives, there is no longer any principled opposition to be made against a ruling like that.
The emergency is indeed real, but it has nothing to do with the Court. It has everything to do with the rotten ideas being advocated by our mainstream political commentariat.
Yours is pipedream if you are expecting answers to your weighty questions. There is no grand enlightenment that is going to come from an increasingly dumb and disengaged citizenry. Pack the court.
Then there's no point in packing the court.
People who don't know anything about politics shouldn't even be voting, let alone demanding changes be made to constitutional mechanisms they don't understand.
That's my whole point.
You’re missing the obviously superior fix.
Confirm the entire DC circuit to the SCOTUS bench.
Then empanel every case randomly from that large pool of justices.
It defuses the retaliation MUCH better than staggered terms, and does NOT require an amendment. The law can even strip SCOTUS of the jurisdiction to strike it down.
The author addressed a version of this and explained why it’s a problem. I can tell you from experience that the author’s analysis is correct, because Connecticut’s 7-member Supreme Court used to use randomly-selected panels of five of the Justices to decide ALL cases (the reason was that CT is such a small state that one or two Justices are likely to have conflicts in any given matter). The problem was that predictability went out the window. The court would definitively rule on the meaning of a statute, and someone who didn’t like the ruling would still try to appeal a factually indistinguishable case, only a year or two later, in the hopes of getting a more favorable panel. It was a complete circus and the Court finally pulled the plug and started acting like an actual court of last resort again.
Oh thank you so much for telling me. That definitely proves it.
/s
I have been making this exact argument, albeit less elegantly, since the immunity decision came out. Thank you for the well-reasoned exposition!
I still like the Briley/Epps/Sitaraman lottery proposal better, because dispersing the power to make final appellate decisions among a large group of judges who don't know when they will be called on to exercise it is good in itself, and worth a certain amount of hysteresis. I don't think any set of only nine individuals should ever again be trusted with the power SCOTUS has.
That said, you have convinced me that this is a game theoretically viable alternative path that would be a drastic improvement over the status quo, so if this is what gets traction instead of the lottery route, it's well worth supporting.
Interesting idea…forced expansion until ratification. I think it could work.
If the Democratic Party supports court packing it will be its worst decision since nominating Kamala Harris. Find some candidates who realize how toxic the woke wing of the party is - and will say so publicly.
what does woke mean?
Having a world view that frames everything in an oppressor/oppressed dichotomy.
and what does that have to do with this article?
I’m with you, and thank you for making the argument clearly and cogently.
If Democrats are too chickenshit to play Constitutional hardball in order to defend the Constitution, then we have already lost it as far as I can tell. Its going to be an uphill battle to right this ship.
Fwiw, I’m not so dead-set on a Constitutional amendment. I think if a popular supermajority can get on board, then thoughtful legislation could be enough to get back to a more healthy place. It is certainly the easier path practically speaking tho I share concerns about tit for tat. I think that could be managed by designing the legislation smartly tho.
I think it should be expanded to 13 and have term limits to ensure a more orderly process. And in order to quell concerns re court packing, the 4 additional justices can be added 1 at a time over 2 Presidential terms, even starting with the following Presidential term that has not yet been elected. This could be concurrent with 1-per-year replacements for the current justices or as they reach their term limits. With 13 or 26 year terms, eventually you’d get to an orderly process with a justice being replaced every year or every other year.
I’m open to any number of formats for sure but one thing is for certain. The status quo is toxic and needs fixing
It's so cute when Democrats take time off from claiming the Constitution is a "living document" that needs to adjust to the times, after all it was written by dead White men, to pretend to care about it.
pfft, its a sorry joke when Republicans pretend to care about the Constitution
Good luck with your campaign to destroy American constitutional governance and crown a fucking king, while blaming Democrats for not enough faithfulness to the Constitution your team is flushing down the tubes as we speak.
Care to address my actual point?
Or are you just going to keep up the pretend no one can remember what you were saying last year routine?
What was i saying last year exactly Eugine?
I was referring to you (plural).
Or were you pushing back when your fellow leftists were calling the constitution outdated? If so, please provide links to said pushback.
https://www.theunpopulist.net/p/the-unfortunate-necessity-of-court/comment/284718291
Are you suggesting that wholesale abandonment of the Constitution is a mainstream left opinion?
Maybe you are taking something you saw online and applying it to everyone you see left of center?
The Constitution needs adjustment but it has mechanisms to do that
Why is Trump waiting to declare himself King? I've heard this since 2017
You seem blind as a bat bruh
I fully expect after Trump leaves office in 29 we will hear 8 more years of screeching that Vance will be a king any day now
It's almost like ending the peaceful transition of power is not something you can live down. Conservatism is finished as a political movement.
“I can’t see the world in front of my face but I will continue to brag about this sad fact to people totally unsympathetic”
Cool
Oh yes, all you commentors (save a couple), looking for a structural fix to the fact that you're losing the popular argument (which, apparently, you cannot conceive, so arrogant and presumptive are you). "Oh, this will fix it". "We'll just tinker with this over here, and nobody will notice that we had the monkey with the process because our arguments aren't resonating". It's all such a bunch of bullshit. If the shoe were on the other foot, you'd be screaming bloody murder. But you have such a high opinion of yourselves that it doesn't occur to you that what you're considering/advocating is justifiably interpreted by the majority of this country as just the authoritarianism you supposedly decry. You couldn't be any more transparent or corrupt, and dressing it as combating fascism or other such crap isn't fooling anyone. Crawl back in your fucking hole and try to come up with a winning strategy that doesn't rely on slight of hand to accomplish it.
have you considered either A) having a coherent argument or B) shutting the fuck up?
The "crawl back in your fucking hole" sentiment means that there's no winning strategy "we" could come up with that would ever meet your approval. Put up a reasoned argument that directly addresses the issue at hand; otherwise assume that you're going to be ignored.
The court's falling legitimacy in the eyes of the populace would like a word with your claim about us "losing the popular argument".
Sleight of hand. I hope you don’t take that as a slight.
Dan Greenberg at Cato has published a piece on their blog responding to this essay, which I respond to here.
https://andycraig.substack.com/p/a-reply-to-against-court-packing
You're being overly hysterical. The current court is not as bad as you're portraying it. They overturn Trump's tariffs and they have also blocked some of his more extreme immigration actions, such as halting deportation flights to CECOT and upholding rulings that forced them to return Kilmar Abrego Garcia. They also are very unlikely to uphold his EO on birthright citizenship. I feel confident they aren't going to support a slide in authoritarianism or an attempt to overturn an election.
The correct path is, as always, elect a different president so that that President can appoint new justices when the current ones retire.
This response only makes sense if you didn't read the article and you think the author argues that the SCOTUS is entirely in Trump's pocket. They obviously don't argue this because they explicitly mention the same examples you just mentioned.
Likewise your confidence that the SCOTUS WOULDN'T facilitate a slide to authoritarianism is belied by the criminal immunity ruling, how Trump v Slaughter is being handled (allowing Trump to fire heads of independent agencies at will before a ruling), and the conveniently partisan invocation of the Purcell principle which repeatedly favors the GOP. How have these rulings NOT facilitated the total obedience to and unaccountability for a figure like Trump?
In order to save democracy we must abolish separation of powers!
Oh FFS! Only leftist children think this isn't authoritarian. But, like a true liberal, you come waltzing along, lose, then want to change the rules mid-stream. You're so pathetically transparent and myopic. But you assholes go ahead and put this on your agenda and see how the country reacts - outside of you demented leftists, of course. If not for nothing, you infants are consistent.
Changing the rules mid-stream like the SCOTUS when it conveniently only invokes the Purcell principle when it would disadvantage the GOP otherwise? Or making up criminal immunity when they've larped as originalists? Or when they respect Humphrey's executor for the FED but not for the other independent agencies? What's not in question now is that the people HAVE reacted to this current SCOTUS and they're not happy with it.
"Suppose the Supreme Court ruled tomorrow that Catholicism is the established religion of the United States—a decree lawless on its face. The prescribed remedy, impeachment, requires 67 senators. Thirty-four senators of the justices’ party refuse to convict. Is the answer that the country must simply submit?"
Do you understand how the court works? They rule on the Constitutionality of laws, Congress would have to pass a law making Catholocism the established religion for the court to be hearing the case and ruling on anything about it, if anything Congress would be impeaching the justices for overturning the law they passed, not for upholding it - was this just a terrible hypothetical or do you fundamentally not get how that works?
Claim religious harm under a radically new interpretation of the establishment clause.
This is wrong, all they’d need is an interest group to challenge a gay marriage on the basis that it goes against the constitutional establishment of “Catholicism as the religion of the United States”, whether the constitution says anything of the sort is now irrelevant. The Supreme Court can rule in favor of the interest group by inventing some new originalist/textualist/histories and traditions/whatever bullshit they want legal doctrine and voila now the constitution says that Catholicism is the established religion. That will be the new precedent that can be used to challenge any law that cuts against the ruling.
How would the group establish standing
Also, see III.A of this recent ruling, establishing standing isn’t necessarily required to get a merits ruling (Alito only claims this for interim rulings here, but no reason a theoretical court couldn’t do it for a merits) - https://www.supremecourt.gov/opinions/25pdf/25-1083_f204.pdf
So if you make up a bunch of stuff that could potentially happen in a way that would be novel to the court's behavior, then the bad things you worry about would happen. Compelling argument.
I’m only pointing out that the Supreme Court could do this, which was the point under contention. Nobody thinks the court is itching to make Catholicism the established religion, it was a hypothetical.
What about senate confirmation? This new concept rests on faith in the senate, a non-democratic body with built in Republican structural advantages, to operate in good faith and takes its job seriously again. The reason you're advocating for this new system is that this is not the case. And yet they'd still hold the keys.
A Supreme Court which can be packed is a Supreme Court which can be re-packed and will be.
Not if they use the packed court to enable 2020-style or even worse massive election fraud.