A Court-Packing Plan I Could Support

A Solomonic solution from the commentariat.

With multiple ongoing threads related to the legitimacy of expanding the size of the Supreme Court ongoing, adding another feels like beating a dead horse. But a proposal from one of the threads from a regular commenter deserves spotlighting:

@Jim Brown 32:

All Biden would have to do is appoint a bi-partisan committed to come up with a list of 10 candidates. He picks 4 to be added to the Court-“legitimacy’ problem solved.

[…]

This is what escalation with exit ramps to de-escalation looks like. It also makes Democrats look more like good-faith actors should the Republicans try to expand the Court in retaliation.

I agree that something like that would be much more acceptable than adding two or more very liberal Justices to the Court, whether as a make-up for the Republicans “stealing” the seat that should have gone to Merrick Garland, because it’s unfair that duly-elected Presidents who lost the popular vote got to pick Justices, or any other reason based on party politcs.

But, aside from the novelty of the suggestion, what really intrigues me is his rationale:

It is entirely unacceptable for a “Judge” to be completely predictable in the way they vote. How are they different that partisan legislators? I would expect a Judge, someone with incredible insight and reasoning to find ways to both perceive and apply the law that average people simply haven’t considered. That’s not what we have on the court today. They goes for both the Conservative rubber stamps and the Liberal ones.

Granting that this is something of an Aaron Sorkin-type fantasy about how government should work (indeed, it’s reminiscent of a compromise reached on a West Wing episode) I could actually get on board with this proposal. Expanding the Court in this manner would be the opposite of Court-packing.

Rather than poke a thumb in the eye of Red America and the Republicans to make up for perceived grievances, it would be the opposite: an acknowledgement that the game of tit-for-tat we’ve been playing with our highest court for decades has damn near broken the institution and that it’s time to stop. Rather than escalating, the Democrats—with control of the White House, House, and Senate—would reset America’s political constitution and restore the Court to what it was ostensibly designed to be.

Why would they do that? After all, every incentive is to use power when you have it. The only way I could see this working is to link it to the passage of a Constitutional amendment institutionalizing the practice. Given the alternatives, I would think the Republicans would happily go along.

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FILED UNDER: Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. EddieInCA says:

    Given the alternatives, I would think the Republicans would happily go along.

    You haven’t been paying attention the last two decades. If you think Fox, and people llike Jim Jordan, and Matt Gaetz, and Ron Johnson and Mike Pence will go along with something like this, I have a bridge to sell you.

    The GOP has made it clear for the last two decades that Dem governing is illegitimate. From stripping Dem Governors of their power when they get elected to voter suppression, to ignoring the deficit while GOP presidents are in office, to doing all they can to keep power while a getting a minority of votes.

    You keep ignoring this very salient factor.

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  2. SKI says:

    Given the alternatives, I would think the Republicans would happily go along.

    You are deluding yourself. The current Republican mindset is based on the twin ideologies of (a) maintaining power and (b) punishing “the Libs”. Such a mindset can’t compromise or even participate in any reform effort because doing so cannot achieve either ideology.

    My preferred outcome is (1) the (necessary) restructuring of the Circuits to 15 to better balance the actual work of the judiciary with (2) one SCOTUS seat per Circuit but (3) smoothing out the political unrest by adding 2 seats to the Court the year after each of the next 3 presidential elections (2 in 2021, 2 more in 2025 and 2 more in 2029).

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  3. James Joyner says:

    @EddieInCA:

    The GOP has made it clear for the last two decades that Dem governing is illegitimate. From stripping Dem Governors of their power when they get elected to voter suppression, to ignoring the deficit while GOP presidents are in office, to doing all they can to keep power while a getting a minority of votes.

    So, I fully acknowledge that my former party is more eggregious than the Democrats along these lines. Not because they’re less virtuous but because they’re more desperate—they win playing the game the way they’re playing it without cheating. But let’s not pretend Democrats don’t do this sort of thing, too. Massachussets has been notorious for stripping powers from governors when the citizenry has the temerity to elect a Republican.

    @SKI:

    The current Republican mindset is based on the twin ideologies of (a) maintaining power and (b) punishing “the Libs”.

    I think this overstates it more than a bit. But I think they’d go along because they see the courts as the biggest threat to their preferred outcome. Over time, SCOTUS always goes hard left in terms of traditional values.

    My preferred outcome is (1) the (necessary) restructuring of the Circuits to 15 to better balance the actual work of the judiciary with (2) one SCOTUS seat per Circuit but (3) smoothing out the political unrest by adding 2 seats to the Court the year after each of the next 3 presidential elections (2 in 2021, 2 more in 2025 and 2 more in 2029).

    It has been years since I spent much time studying the lower courts but am inclined to support enlarging the number of Circuits. I don’t see any obvious reason to tie SCOTUS slots to the Circuits given that they no longer “ride circuit” but I guess there’s a modest argument on the emergency appeal front. If you’re going to do that, though, while keeping partisan appointment it would be a lot easier sell going 2025, 2029, 2033.

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  4. a country lawyer says:

    The Constitution provides that all federal judges and that includes Supreme Court justices serve for terms of “good behavior”. What that has come to mean is that Article III judges serve for life. It’s doubtful that most of the proposals posted here to limit the terms of the Justices would survive constitutional muster because it would violate that “lifetime” provision.
    However Article III judges can retire under the “rule of 80”. That is, when the judge’s age and term of service adds to 80, he or she may retire with full benefits. An alternative under the law is that rather than fully retiring a judge may take “senior status”. A senior judge retains his or her commission and continues to hear cases on a reduced schedule.
    Using the rule of 80 as a model, a plan which might satisfy the constitutional mandate is to make the rule of 80 mandatory. That is when a justice satisfied the rule of 80 he or she would automatically become senior and a replacement would be appointed. The senior justice would retain his or her commission for life and could sit when desired on the various courts of appeal and as the ninth justice when a sitting justice recuses or the seat becomes temporarily vacant.

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  5. EddieInCA says:

    @James Joyner:

    Massachussets has been notorious for stripping powers from governors when the citizenry has the temerity to elect a Republican.

    No. Stop it. You can’t compare one MA instance, done to keep the will of the people intact, and compare it equally to Wisconsin, North Carolina, Michigan, which were just naked power grabs.

    Its like when liberals point out that Trump lies, the retort is, “yeah, well Obama said you could keep your Doctor if you want to.” As if 20,000 confirmed lies, equals one.

    So, no. Stop it.

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  6. James Joyner says:

    @a country lawyer:

    It’s doubtful that most of the proposals posted here to limit the terms of the Justices would survive constitutional muster because it would violate that “lifetime” provision.

    Right. It would absolutely require a Constitutional amendment.

    @a country lawyer:

    Using the rule of 80 as a model, a plan which might satisfy the constitutional mandate is to make the rule of 80 mandatory. That is when a justice satisfied the rule of 80 he or she would automatically become senior and a replacement would be appointed.

    A rule allowing the appointment of a new Justice when a sitting one reached a certain age would almost certainly be Constitutional. Indeed, it was the basis for FDR’s court-packing plan. I can’t imagine that forcing him/her out of office, or even relegating them to reserve status, would pass muster.

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  7. flat earth luddite says:

    @James Joyner:

    Over time, SCOTUS always goes hard left in terms of traditional values.

    James, I’m not sure I see this, unless by “traditional values” we mean slavery, women as chattel, and the like. But then again, I’m from the left edge of the disc.

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  8. MarkedMan says:

    James, I agree with Eddie and SKI. Republicans don’t negotiate with Democrats on anything except the budget. They don’t compromise, they don’t try to find a reasonable path forward and haven’t since Gingrich. Remember the months long effort to get a single Republican to support health care reform? It was a waste of time because in the end any Republican who is seen compromising with the evil Dems will find themselves with Mercer, Koch, etc money flowing into their primary opponent and once out they have no chance of every riding the wingnut welfare train.

    So your proposal might have merit or it might not but that is immaterial. The only things that can get enacted are ones that the Dems can do alone. And the Dems should accept that and act accordingly.

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  9. Sleeping Dog says:

    @a country lawyer:

    A Rule of 80 provision would work and be constitutional for all federal judges but the SC, since the Constitution empowers Congress to establish a court system.

    We’re focused on the SC, but many of the problems we’re complaining about first become issues at a district court level, mandatory retirement at 75 and perhaps a rule of 75 rather than 80 would lessen the temptation to appoint recent law school grads.

    @james, problems I see with your proposal is who nominate and appoints the committee? Assuming Dems take control of the Senate, who on the R side has standing to represent them? Are only R’s and Dems represented on the committee, roughly a third of all voters are registered independents? If I were a wily R operative, when the legislation to enable such a system is enacted, I’d file a law suit, hoping to tie the process up long enough to get an R senate majority.

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  10. MarkedMan says:

    @James Joyner:

    . Over time, SCOTUS always goes hard left in terms of traditional values.

    You need to spell it out James. Just what do you mean by traditional values? Because the SC has most certainly not consistently gone hard left on gun rights or pollution or corporate rights or much of anything. One exception: very slowly the court has moved towards a philosophy that governments and public services can’t discriminate against people on account of religion, race or sexual orientation.

    That’s what is meant by “traditional values”. That’s what gets the right angry. They are offended that some queer boy or Jew feels they can walk into a store and expect to be treated like any other customer. That a public official would be held to account for the quality of the schools in a colored neighborhood just as they would for the “real” schools. That they can’t dictate that everyone’s child be forced to learn science from a tattered collection of ancient scribblings.

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  11. James Joyner says:

    @EddieInCA:

    You can’t compare one MA instance, done to keep the will of the people intact, and compare it equally to Wisconsin, North Carolina, Michigan, which were just naked power grabs.

    I was naming one instance that stood out to me, after acknowledging that the problem is much more widespread on the other side.

    Its like when liberals point out that Trump lies, the retort is, “yeah, well Obama said you could keep your Doctor if you want to.” As if 20,000 confirmed lies, equals one.

    I’ve been pretty consistent on this one, I think—including defending Obama in that instance.

    @flat earth luddite: The Equal Rights Amendment was twice defeated by state legislatures. It is nonetheless the law of the land, thanks to the Supreme Court. SCOTUS has also written gay marriage into the Constitution and transgender rights into legislation written in the 1960s by a legislature that would have considered it anathema.

    @MarkedMan:

    Republicans don’t negotiate with Democrats on anything except the budget. They don’t compromise, they don’t try to find a reasonable path forward and haven’t since Gingrich.

    Gingrich negotiated with Clinton; that was the only way to get legislation done. They tried to negotiate with Harry Reid, with less success, during the Bush years. But there was the Gang of 8 and other notable compromises. The recalcitrance is really a product of the Obama years and is about to blow up in their face. Unless they manage to hold onto the Senates, the Democrats will have enormous power. Faced with “We’ll pack the Supreme Court today unless you go along with this Amendment,” I think they’d happily choose the latter.

    @Sleeping Dog:

    problems I see with your proposal is who nominate and appoints the committee?

    Who knows? Let’s call it the Democratic and Republican Leaders and the chairman and ranking member of the Judiciary Committee.

    If I were a wily R operative, when the legislation to enable such a system is enacted, I’d file a law suit, hoping to tie the process up long enough to get an R senate majority.

    I don’t see how they could possibly have standing. Article III is pretty clear on Congress’ power here.

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  12. James Joyner says:

    @MarkedMan:

    Because the SC has most certainly not consistently gone hard left on gun rights or pollution or corporate rights or much of anything.

    Aside from gun rights, I’m hard pressed to see how those fall under “traditional values.” And, last I checked, Congress retains enormous power to regulate both pollution and corporate governance issues.

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  13. MarkedMan says:

    @James Joyner:

    Gingrich negotiated with Clinton

    This is an… interesting view of the influence of Gingrich. Yes, he did negotiate, but in such a way that it ended up destroying any chance of future negotiations. Specifically he promulgated the practice of testing the waters to see how a particular bill was doing and if was going to pass with more than a sliver of margin, he would add in things that Democrats were against until it would just pass. But the things he added weren’t in pursuit of some noble conservative cause, instead it was mostly things that would hurt Democrats with specific constituencies. He considered any bill that passed with anything more than the minimum number of Democrats as a wasted opportunity to screw the opposition. It’s not just my opinion. I think this Wiki excerpt sums it up:

    1] According to Harvard University political scientists Daniel Ziblatt and Steven Levitsky, Gingrich’s speakership had a profound and lasting impact on American politics and health of American democracy. They argue that Gingrich instilled a “combative” approach in the Republican Party, where hateful language and hyper-partisanship became commonplace, and where democratic norms were abandoned. Gingrich frequently questioned the patriotism of Democrats, called them corrupt, compared them to fascists, and accused them of wanting to destroy the United States. Gingrich furthermore oversaw several major government shutdowns.

    University of Maryland political scientist Lilliana Mason uses Gingrich’s instructions to Republicans to use words such as “betray, bizarre, decay, destroy, devour, greed, lie, pathetic, radical, selfish, shame, sick, steal, and traitors” about Democrats as an example of a breach in social norms and exacerbation of partisan prejudice.[7] Gingrich is a key figure in the 2017 book The Polarizers by Colgate University political scientist Sam Rosenfeld about the American political system’s shift to polarization and gridlock.[8] Rosenfeld describes Gingrich as follows, “For Gingrich, responsible party principles were paramount… From the outset, he viewed the congressional minority party’s role in terms akin to those found in parliamentary systems, prioritizing drawing stark programmatic contrasts over engaging the majority party as junior participants in governance.”

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  14. MarkedMan says:

    @James Joyner: OK, I’ll bite. Just what traditional values were you referring to?

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  15. SKI says:

    Gingrich negotiated with Clinton; that was the only way to get legislation done.

    Do you realize how long ago that was? If you have to go back a quarter century for an example, maybe it isn’t a good thought.

    (Even if it were true and MarkedMan lays out why it likely isn’t)

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  16. MarkedMan says:

    @SKI: In fairness, his response was to my comment that began, “ever since Gingrich”

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  17. Michael Cain says:

    @MarkedMan:

    Republicans don’t negotiate with Democrats on anything except the budget. They don’t compromise, they don’t try to find a reasonable path forward and haven’t since Gingrich.

    Well, it’s been a really bad 120 years for the 40-45% of the population the Republicans now represent. To a very large extent, the progressives won the policy war. Women vote. There’s an income tax. We have a public pension system, of sorts. Really poor people get health care. The Civil Rights and Voting Rights Acts passed. There’s an EPA and a Clean Air Act and an Endangered Species Act. The (R)s are fighting a scorched earth retreat at this point.

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  18. Just Another Ex-Republican says:

    For me, Gingrich is where the Republican party changed from thinking of government as a *necessary* evil, to thinking of it as simply evil (or at least moved that opinion from a minor trend to a dominant one). They certainly stopped thinking they were responsible for of effective government. Gingrich, in my opinion, “broke” the House, turning it into an institution more interested in virtue-signaling than governance, and counting on the Senate to be the adults. Which kinda sorta held together (barely) until Mitch went full obstructionist in 2010 and broke the Senate too. Now we have an entire legislative branch that is basically incapable of legislating. The House passes a lot (whether it’s 40 votes to overturn the ACA, or all the wondrous legislation the Pelosi House has sent off), but it’s easy to get those votes when every member KNOWS it doesn’t actually matter because it’s not getting a hearing, let alone passing, the Senate. Meanwhile the Senate does little except approve judicial appointments anymore. In 3 years I can only think of 2 significant pieces of legislation actually passing Congress: the tax cuts that exploded the deficit and made the rich richer; and the First Step Act that is actually good (which is probably why Trump regrets signing it).

    The Founders never imagined that the most important branch of government (in their minds) would simply stop doing it’s job. There are lots of reasons the executive has accrued far too much power in the last few decades, but Congress increasingly evading it’s responsibilities as a governing partner to the farce we have today is definitely one of them.

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  19. al Ameda says:

    @James Joyner:

    Rather than poke a thumb in the eye of Red America and the Republicans to make up for perceived grievances, it would be the opposite: an acknowledgement that the game of tit-for-tat we’ve been playing with our highest court for decades has damn near broken the institution and that it’s time to stop. Rather than escalating, the Democrats—with control of the White House, House, and Senate—would reset America’s political constitution and restore the Court to what it was ostensibly designed to be.

    I cannot imagine a high probability scenario, or in fact ANY scenario, in which Republicans would seriously bother to consider such a proposal.

    I think they would gear up for the 2022 mid-terms as soon the ink was dry on the Democratic proposal to pack the Court with Venezuelan and Cuban communist justices.

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  20. Just nutha ignint cracker says:

    @James Joyner:

    But let’s not pretend Democrats don’t do this sort of thing, too. Massachussets has been notorious for stripping powers from governors when the citizenry has the temerity to elect a Republican.

    All the more reason for you not to get sucked in by an obvious ploy to allow Biden to pack the court with 4 hyper-liberal traitors to America under the guise of “fairness” and “non-partisanship.” Don’t allow yourself to be played this way! Tell the Demonrats to STFU and go away. We won. It’s our country now! MAWA!!
    [and I wish we had a snark font like they do @LGM 🙁 ]

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  21. Just nutha ignint cracker says:

    @James Joyner:

    I don’t see how they could possibly have standing. Article III is pretty clear on Congress’ power here.

    It seems to me that your forgetting that the new Calvinball version of the Supreme Court starts with a 6-3 Republican lean. (Or maybe your not and have a nifty way to splain that “ignint cracker” is a too too apropos nym. Either way works for me as I’m not buying today.)

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  22. Teve says:

    Rather than poke a thumb in the eye of Red America and the Republicans to make up for perceived grievances,

    Conservative host Michael Knowles, a few hours ago, speaking about possible SCOTUS nominee Amy Coney Barrett:

    “We absolutely should push her through if for no other reason than to trigger the libs. It will be very, very funny”

    To editorialize here would be to gild refined gold, to paint the lily, to throw perfume on the violet.

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  23. An Interested Party says:

    Amy Coney Barrett isn’t Trump’s only choice…he could instead turn to someone who is in favor of poll taxes…

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  24. Sleeping Dog says:

    @James Joyner:

    They probably wouldn’t have standing, but that would slow the process down and who knows what the senate looks like after the 2022 election.

    All you would need is a trump appointed Fed district judge to accept the case. Dems make claims of standing and six months later that gets heard and denied. There’s an appeal and on and on. Dragging the process out is easy.

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  25. An Interested Party says:

    Did you know that Robert Bork was mistreated even more than Merrick Garland was? No? Me neither…

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  26. LaMont says:

    @James Joyner:

    Faced with “We’ll pack the Supreme Court today unless you go along with this Amendment,” I think they’d happily choose the latter.

    I don’t think it’s that easy James. Even if the people that represents today’s Republican party somehow got smart and agreed to do something that is for the good of the country and their party in the long run, do you really believe their constituents would follow along? Do you believe today’s Republicans are even remotely who they were before the whole Tea Party movement that led to Trump? On one end, the Republican voters somehow believes liberals are truly evil. They’re also motivated with anything that they perceive pisses liberals off! On the other end, Republicans are disproportionately supported by corporate interests that don’t identify with anything other then improving their bottom line! Can today’s Republicans stand up to that kind of pressure and risk losing their most coveted power during primaries?

    You may not think we’re there yet so let me break it to you another way – we’ve been sliding down this slippery slope for a while now and unless the Republican base can somehow wake up and have a come to Jesus moment, the damages incurred may be irreversible.

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  27. Rick Zhang says:

    Though I’d like to think that reasonable people can take the offramp when presented with it, present times do feel like the buildup to WWI. All sides are too dug in and eager to prove themselves to nationalist partisan spirits that they stirred up. Historically, institutions rarely reform without some sort of pressure, whether that comes from external (war, existential threat) or internal (see: progressive enlargement of the franchise).

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  28. Mandos says:

    We need a national task force to change the poopy diapers of the sore losers.

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