A Defense of Expanding the US Supreme Court

It is about finding ways to combat minority rule.

The unfortunate death of Justice Ginsburg raises tensions in what has already been one of the most politically tense eras in the last half-century. Her death in this context, unfortunately, leads minds (mine included) to contemplate the political implications, both short and long term, more than reflecting on her life, career, and contributions.

In terms of the basic politics, James Joyner is correct: unified government (unlike after Scalia’s death) means that there are no constitutional barriers to stop the Republican Preisdent from sending a nomination to the Republican-controlled Senate, who will then almost certainly confirm that nominee.

The only clear potential barriers would be two Republicans on the Judiciary Committee voting with the Democrats to block nominees from leaving committee or, more directly, four Republican Senators saying that they would not vote for any confirmation (Murkowski of Alaska has already said so, but I am not sure where the other three come from).

And let’s face facts: yes, this makes McConnell look like one of the biggest hypocrites of all time, and the rest of GOP with him. But they will all gladly suffer the slings and arrows of being called hypocrite by their enemies in exchange for a Supreme Court seat.

Temporary excoriation (and even being more permanently scarred in the history books) is a small price to pay for a lifetime appointment to the Court and, therefore, multiple decades of influencing constitutional law in the United States.

So that gets me to this from James’ post:

The related question, then, is of packing the Court. I’m four-square against it but could be persuaded that adding a single Justice to undo a lame duck appointment was reasonable.

With the exception of a three-year period from 1863-1866, the Supreme Court has been at nine Justices since 1837—nearly two centuries. Even the incredibly popular Franklin Roosevelt generated enormous backlash when he proposed packing the court with younger Justices after growing frustrated at seeing his New Deal policies ruled unconstitutional. That was nearly a century ago. Nine is sacrosanct.

There was a time where I would have agreed (if anything on practical grounds). Even within the last year I probably still felt that way, but as I noted in a post just last month (Reforms: the Possible, the Improbable, and the Unpossible) there are a limited number of real options when it comes to addressing some very significant flaws in our system, and increasing the size of the Court is one of them.

Let’s considers some basic numbers, ones that are not new to my writings.

Since 2000:

  • Five presidential terms
  • Three terms for Republicans (Bush x2, Trump)
  • Two terms for Democrats (Obama x2)
  • One popular vote win by Republicans (2004)
  • Four popular vote wins by Democrats (2000, 2008, 2012, 2016)
  • Four Supreme Court Justices appointed by presidents who initially came to office* after having lost the popular vote (Roberts, Alito, Gorsuch, Kavanaugh)

And, of course, that last category appears highly likely to about to become five. Morever, that would mean three members of the Court (fully a third) would have been appointed for life by a president who lost the popular vote by almost three million and whose approval rating has been under 50% for his entire presidency, save a few days at the very beginning of his term.

In addition to the flawed process we elect the president, there is also the fact that Senate, which holds the keys to confirmation, and the nature of life appointments to the court are part of the problem.

I want the solution to be: go vote! Let the myriad voices of America come together via fair competition so that we, the collective people, directly influence government. Majority rule with minority rights is supposed to be the basic notion of representative democracy.

Instead, we have here, again, minority rule. The minority picked Trump. The minority controls the Senate. And the confluence of structures that empower the minority over the majority already have been able to seat four Justices, and is about to seat a fifth (and to overall bring their majority on the Court to six).

And yes, lest anyone is tempted to tell me, these outcomes are direct consequences of the constitutional rules under which we operate. I understand the rules, their origins, and their functioning all too well. But that doesn’t make these outcomes good, just, appropriate, or even defensible if one values representative democracy.

I would note, that the constitutional mechanism designed by the Framers did not envision westward expansion as it ultimately occurred. Just look at the geographic size of the 37 states added over time, and compare them to the first 13. And think about how large, largely peopleless (in a relative sense) states like Wyoming, Idaho, and the Dakotas distorts the EC and the Senate (institutions that already distort majority influence). And, on the other end of the spectrum, how vast, highly populated, states like California and Texas also distort the original design.

If anyone is tempted to “republic, not a democracy” this situation, please at least acknowledge that what you are defending is minority rule and you are defending it because the minority to which you belong is the one that is benefitting.

And please, don’t pretend like the United States is a shining city on a hill or a model for the world.

This all gets me back to expanding the size of the Supreme Court (which I prefer to the term “court packing”). Anyone who has read my writings here knows my preference for having a popular vote for the presidency and various other, deeper, reforms to the way we elect Congress, and even substantial restructuring of the Senate. I am certainly cognizant of the difficulties (near impossibilities?) of these reforms, especially in the short term. And while I will continue to try to educate anyone who will listen concerning these options, the increased erosion of the basic representativeness of our system means that practical solutions are also needed.

A system that allows the party that cannot muster majority support to nonetheless frequently control one half of the legislature, win the executive with minority support at a rate that has outpaced the ability of the other party to win it with majority support, and to therefore be able to dominate the constitutional court for the next several decades is a highly problematic system.

It is an unrepresentative system.

It is an unjust system.

And it is a system that will lead to protests and even breakdown at some point. (I honestly think that at least part of what is driving some of the current protests are feelings of not being represented, even if the protestors don’t understand why–and we don’t correct this problem, it will get worse).

As such, I have come around to the notion that if the Democrats can control the White House and the Congress starting in 2021 that they should add states and they should increase the size of the Court. I do not reach that conclusion lightly, nor am I especially thrilled at having reached it.

I would note that there are both constitutionally allowed actions. They break norms (the last time we added states we did so with partisan balance in mind, and James is right that nine Justices has been the norm for most of the history of the republic).

I would prefer that the norm-breaking end. But since that does not appear to be likely, I am willing to support norm-breaking that is both constitutional and that would have at least some ability to address the representational imbalances in the system.

Adding Justices would counter-balance five Justices appointed by Presdidents who came to the White House without majorirty support.

Adding states would make the Senate, and the Electoral College, slighgtly more representative.

It is also why I support increasing the size of the House.

If we cannot get a new system, and I aware of the dangers of even trying, then we need to do our best to make the current structure as representative as we can.


*Bush did not get any appointees in his first term.

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Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Jay L Gischer says:

    I pretty much agree. What about some sort of term limits on SC justices? 10 year or even 20 year terms. This business where so much turns on when someone dies is kind of nutty.

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  2. James Joyner says:

    So, we’re in violent agreement that the current way we elect the President and Senate is highly unrepresentative. But I’m dubious of this argument:

    Four Supreme Court Justices appointed by presidents who initially came to office* after having lost the popular vote (Roberts, Alito, Gorsuch, Kavanaugh)

    Granting that it’s quite possible Bush isn’t President from 2005-2009 if he doesn’t win Florida in 2000, the fact of the matter is that he was indeed the popular vote winner at the time he nominated Roberts and Alito. Beyond that, it’s quite conceivable that John McCain or another Republican could have defeated Al Gore in 2004. So, I just don’t see how we can argue Roberts and Alito are somehow illegitimate.

    As to this,

    Just look at the geographic size of the 37 states added over time, and compare them to the first 13. And think about how large, largely peopleless (in a relative sense) states like Wyoming, Idaho, and the Dakotas distorts the EC and the Senate (institutions that already distort majority influence). And, on the other end of the spectrum, how vast, highly populated, states like California and Texas also distort the original design.

    it’s worth noting that most of the westward expansion here was done by Republicans—back when they were the liberal party—during the Civil War and early Reconstruction period when the South was unable to vote precisely to water down the South’s power. That it eventually had the opposite effect is a strange irony.

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  3. James Joyner says:

    Honestly, overall, I see no rationale for packing the Court to undo the effects of an antiquated system that was operated justly. The Garland gambit provides some justification, since it was a huge violation of norms. Ditto compounding that with ramming in a Ginsburg replacement (although, again, that would be fine were it not for the Garland hypocrisy). But Gorsuch, Alito, and Kavanaugh* were perfectly legitimate appointments.

    ______________
    *There are plenty of caveats to be issued about Kavanaugh personally and I issued them in real time. But someone who votes just like Kavanaugh would be there instead.

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  4. EddieInCA says:

    I suggest adding 6 to the court, All liberals in their late 30’s.

    Seriously.

    I’m all out of phlying phucks, and have none left to give.

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  5. Michael Reynolds says:

    @EddieInCA:
    I’m with @Eddie. If it’s war, then let’s fight it and win it. Enough with being the reasonable ones, reasonable is a losing position with these people. Any game they can play, we can play.

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  6. Moosebreath says:

    @Michael Reynolds:

    “If it’s war, then let’s fight it and win it. Enough with being the reasonable ones, reasonable is a losing position with these people.”

    Agreed. Being reasonable when the other side isn’t gets you nowhere with the other side, and makes you look weak to your side.

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  7. @James Joyner:

    Granting that it’s quite possible Bush isn’t President from 2005-2009 if he doesn’t win Florida in 2000, the fact of the matter is that he was indeed the popular vote winner at the time he nominated Roberts and Alito. Beyond that, it’s quite conceivable that John McCain or another Republican could have defeated Al Gore in 2004. So, I just don’t see how we can argue Roberts and Alito are somehow illegitimate.

    This is very possible. But it is an alternate reality. It remains the case that Bush’s 2004 win was made possible by his 2000 win.

    it’s worth noting that most of the westward expansion here was done by Republicans—back when they were the liberal party—during the Civil War and early Reconstruction period when the South was unable to vote precisely to water down the South’s power. That it eventually had the opposite effect is a strange irony.

    Sure. But my point has nothing to do with how or why we expanded. My point is that the constitutional mechanisms created by the 1789 Constitution were designed for a different type of state, on balance, than the preponderance of the ones we added. It further threw the mechanism out of equilibrium.

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  8. @James Joyner:

    I see no rationale for packing the Court to undo the effects of an antiquated system that was operated justly.

    I agree the system has operated within the parameters of the US Constitution.

    We disagree on whether it operated justly. I don’t think it did. (A system cab be legally legitimate and still be unjust).

    And I maintain that there is nothing unconstitutional about trying to add seats the the Court.

    I am dead serious when I say that I think we are coming to a point wherein the system breaks if we can’t find a way, within established structures, to address some inherehent injustice.

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  9. @James Joyner:

    So, I just don’t see how we can argue Roberts and Alito are somehow illegitimate.

    I forgot to note: I don’t see them as illegitimate.

    That’s not the point.

    I see a system that allows what I describe above as profoundly unjust and unrepresentative.

    I think we are at a point where action has to be taken to deal with that fact.

    Sitting around hoping for the right people to die at the right moment in time is both ghoulish and a terrible way to run a country.

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  10. HarvardLaw92 says:

    @Michael Reynolds:

    I can agree with that. There are 13 federal judicial circuits, and only 9 justices, so it makes perfect sense that – given the situation that individual justices sit in judgment regarding emergency petitions from the circuits – no one justice be given the power to influence more than one circuit. 13 circuits, 13 justices, and it would require nothing more than an act of Congress to accomplish it.

    The only problem with that is that once that door has been opened, packing the court as a means to obtain a favorable judicial environment will become the norm every time control in DC shifts.

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  11. @HarvardLaw92: An interesting argument and number. I think this makes some sense (as I will confess as not having a specific number in mind as yet).

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  12. James Joyner says:

    @Steven L. Taylor:

    I am dead serious when I say that I think we are coming to a point wherein the system breaks if we can’t find a way, within established structures, to address some inherehent injustice.

    Oddly, I think we’re just as likely to break the system through means so many will see as illegitimate.

    Maybe wrongly, but I see expanding the size of the House, even radically so, as a much more reasonable and defensible measure than packing the court. The former seems a move in the direction of greater democracy. The latter seems like a naked and illegitimate power grab that forever alters the balance of power.

    I, for one, would cease to view the Court as legitimate. I already see it as tainted and partisan. But there’s at least reason to pretend that it’s a good faith institution. It wouldn’t be if it were simply a Democratic rubber stamp created by packing.

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  13. gVOR08 says:

    My recollection, perhaps faulty, is that FDR failed to expand the court, but the court backed down from their knee jerk opposition to the New Deal in response to the threat. It wasn’t entirely a failure.

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  14. @James Joyner:

    illegitimate power grab

    Honest question: how is acting in a way that is fully commensurate with the constitution, “illegitimate”?

    I already see it as tainted and partisan. But there’s at least reason to pretend that it’s a good faith institution. It wouldn’t be if it were simply a Democratic rubber stamp created by packing.

    We already will have a Court that is packed due to flaws in the system. We are already here, more or less.

    Trump’s appointees are likely to influence the court for 30+ years. His influence on the Court could very possibly, if not likely, outlive you and me.

    What’s worse: the court being tainted by minority rule or tainted by majority rule?

    I would argue that it is tainted either way, so which is the lesser of the taints?

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  15. @James Joyner: Another thought, the fact that divided government between President and Senate in 2016 meant no vote and a unified Senate and White House in 2020 means a filled seat means, de facto, that we are at Justices being partisan, at least at the time of their appointment (Kavanaugh, likewise, went down that path in his hearings).

    If we were going to adhere to the notion that SCOTUS was at least partially above that fray, 2016 should have resulted in a compromise candidate instead of holding the seat until post-election.

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  16. wr says:

    @EddieInCA: “All liberals in their late 30’s.”

    I nominate AOC, Ilhan Omar and Rashida Tlaib, along with Katie Porter, Michelle Obama and a draft pick to be named later.

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  17. wr says:

    @James Joyner: ” But there’s at least reason to pretend that it’s a good faith institution. ”

    Speaking as one on the other side of so many “good faith” decisions, I’m pretty tired of pretending that they’re anything more than political hacks. And I suspect I’m not alone.

    If the legitimacy of the institution depends on its victims being willing to pretend it’s fair when they know it’s not, it’s pretty much over.

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  18. Teve says:

    Two years from now when Roe is over and the Affordable Care Act has been ruled unconstitutional, i’m not going to be thinking, “well at least we took the high road.”

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  19. James Joyner says:

    @gVOR08: Yes, that’s my understanding as well.

    @Steven L. Taylor: Yes, we’re in agreement: Garland, an oldish, moderatish pick, should have been confirmed.

    @wr: Almost by definition, because SCOTUS tends to take the hardest, most divisive cases, people are going to be wildly unhappy quite often by their rulings.

    @Teve: Roe was rather clearly a case of legislating from the bench that has roiled the country for half a century. Regardless, I highly doubt it’ll be overturned—the Court will just allow state legislatures more latitude in chipping away at it. The ACA overall is no more unconstitutional than Medicare or Social Security and no one seems to be arguing otherwise. The question was always over the mandate.

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  20. Kurtz says:

    @Steven L. Taylor:

    (A system cab be legally legitimate and still be unjust).

    It’s interesting this came up, because I have been trying to figure out Joyner’s ideas about legitimacy lately. I almost asked him other day when legitimacy was briefly discussed in a different context.

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  21. Kurtz says:

    @HarvardLaw92:

    The only problem with that is that once that door has been opened, packing the court as a means to obtain a favorable judicial environment will become the norm every time control in DC shifts.

    This is my concern as well.

    But I think it’s a moot point, because I have my doubts that the Dems can get it through the Senate unless they get to 54 seats. Even then…

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  22. Michael Reynolds says:

    @HarvardLaw92:

    The only problem with that is that once that door has been opened, packing the court as a means to obtain a favorable judicial environment will become the norm every time control in DC shifts.

    It’s a bit like saying, ‘once you bomb Berlin, Winston, shit’s gonna get real.’ They opened the door with Garland. If this is the game they insist on playing, cool. But I suspect Congress would stumble its way eventually to a compromise enacted in law.

    Of course all this presupposes we take the Senate. I haven’t started doing the math on how this will affect Senate contests.

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  23. Gustopher says:

    Expanding the court would make the importance of each individual justice less, so the nation is less on knife’s edge when appointments do come up.

    But … and this is a big but … a Sir Mix-A-Lot big but … without changing the underlying problems that have led the court to become so lopsided against the will of the people, it risks cementing that lopsided nature in as it drifts to the normal replacement in a system favoring empty, rural states.

    I’m inclined to say that’s a problem for the next generation, or the one after that, and we do it anyway. And maybe the sharp correction will bring Republicans to the table to forge a lasting, fairer, more legitimate compromise. But either way, it’s less worse for the short-to-medium term.

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  24. Gustopher says:

    Adding states would make the Senate, and the Electoral College, slighgtly more representative.

    No it wouldn’t. Not institutionally at least. It would just balance the current unrepresentative nature a bit by propping up the other side — sticking a shim under the short table leg.

    Definitely worth doing, but if we wanted to make it more representative and not just get a short term fix, we would need to require states to split when they have more than N times the population of the average state, and merge when they have less than 1/N times the average. We need fewer Dakotas and more Californias and Texases.

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  25. Gustopher says:

    @Steven L. Taylor:

    (A system cab be legally legitimate and still be unjust).

    At some point, when you are qualifying the word “legitimate” with “legally”, you just have to drop the word “legitimate”. It depends on the laws, of course.

    I would question whether a legal framework that allows a plurality loser to reshape the judiciary for a generation with radical ideologues is entirely legitimate.

    The number of points in the process that distort and subvert the intent of the nation’s populace is very high, and they all bend in one direction. From voter suppression, to gerrymandering, to the senate, to the electoral college, to single representative districts, to the lack of runoffs to ensure a majority approved candidate for any office, to lifetime appointments…

    I can’t point to one of them and say “that is the problem right there where we go from legitimate to illegitimate.” I’m not even sure we fully have.

    I do think that we are edging to the point where people don’t have faith in the institutions, and that consent of the governed is not a given. I would call that a legitimacy problem. It’s not just unpopularity — it’s a belief that you aren’t being represented and that you have no voice in the future of the country.

    And I think Donald Trump has done amazing damage to the legitimacy of our institutions, and is continuing to undermine the legitimacy of the next election.

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  26. Moosebreath says:

    @James Joyner:

    “The latter seems like a naked and illegitimate power grab that forever alters the balance of power.

    I, for one, would cease to view the Court as legitimate. I already see it as tainted and partisan. But there’s at least reason to pretend that it’s a good faith institution. It wouldn’t be if it were simply a Democratic rubber stamp created by packing.”

    The problem is that literally every word you say here is the direct opposite of how Democrats view the Supreme Court over the last couple of decades. The refusal to consider Merrick Garland was “a naked and illegitimate power grab that forever alters the balance of power”. It is already seen by Democrats as being “tainted and partisan”. It has acted as a Republican rubber stamp in cases like Bush v. Gore and Shelby County v. Holder.

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  27. SC_Birdflyte says:

    @Steven L. Taylor: Just so. In the 1790 census, the ratio of the population of the most populous state (Virginia) to the least populous (Delaware) was on the order of 12:1. As of the 2010 census, the ratio between California and Wyoming was 66:1. I doubt the Founding Fathers envisioned creating a large number of states with vast land areas and very few people.

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  28. James Joyner says:

    @Moosebreath:

    The problem is that literally every word you say here is the direct opposite of how Democrats view the Supreme Court over the last couple of decades. The refusal to consider Merrick Garland was “a naked and illegitimate power grab that forever alters the balance of power”. It is already seen by Democrats as being “tainted and partisan”. It has acted as a Republican rubber stamp in cases like Bush v. Gore and Shelby County v. Holder.

    But Bush v. Gore happened with a judiciary where no one could reasonably question the nominations.

    The nine justices at the time:

    Rehnquist, William H. Arizona Nixon January 7, 1972 September 26, 1986*
    Stevens, John Paul Illinois Ford December 19, 1975 June 29, 2010
    O’Connor, Sandra Day Arizona Reagan September 25, 1981 January 31, 2006
    Scalia, Antonin Virginia Reagan September 26, 1986 February 13, 2016
    Kennedy, Anthony M. California Reagan February 18, 1988 July 31, 2018
    Souter, David H. New Hampshire Bush, G. H. W. October 9, 1990 June 29, 2009
    Thomas, Clarence Georgia Bush, G. H. W. October 23, 1991
    Ginsburg, Ruth Bader New York Clinton August 10, 1993
    Breyer, Stephen G. Massachusetts Clinton August 3, 1994

    With the possible exception of Stevens, appointed by a man who was not elected President or Vice President, all were appointed by Presidents who won a plurality of the popular vote. And Stevens dissented on most parts! I can understand not liking the outcome, but it’s clearly a legitimate Court. And, the fact that it was 5-4 in the overall result despite having 7 Republican appointees and 2 Democratic appointees means it wasn’t even a partisan ruling.

    I suppose there’s more reasons to be upset about Shelby County vs Holder, although I think they got it right. But, again, the Justices ruling in the case

    Majority Roberts, joined by Scalia, Kennedy, Thomas, Alito
    Concurrence Thomas
    Dissent Ginsburg, joined by Breyer, Sotomayor, Kagan

    were all appointed by Presidents who won the popular vote. (Yes, Roberts and Alito were appointed by George W. Bush. But after he’d won re-election.)

    I get why 5-4 decisions decided by Neil Gorsuch would piss people off. Merrick Garland should have had the seat. But you’re just pointing to cases where people are mad because they didn’t like the outcome, not the process.

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  29. Just nutha ignint cracker says:

    @Steven L. Taylor:

    We already will have a Court that is packed due to flaws in the system. We are already here, more or less.

    True, but it is packed in a manner that Dr. Joyner acknowledges he is unlikely to object to. In fact, he noted that in an earlier post saying that while he prefers Biden for President, he likely would find Trump court picks superior.

    “No harm [to me], no foul.”

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  30. Teve says:

    Huh. Neal Freaking Katyal:

    If they do this, the Democrats will be well within their rights to expand the Supreme Court… they’ll be well within their rights to expand it to 13 or 15 or even 17 to nullify these games.

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  31. gVOR08 says:

    @Moosebreath:

    It has acted as a Republican rubber stamp in cases like Bush v. Gore and Shelby County v. Holder.

    Yesterday I read a piece in VOX Chief Justice Roberts’s lifelong crusade against voting rights, explained. For some reason I thought it might explain why Roberts opposes voting rights. Perhaps a strong belief in Federalism. Perhaps a weird feeling that voting should be hard. Perhaps just some lingering racism. Perhaps some relative lost a close election. But no, it was just a history of his opposition, going back to 1981, no comment on motivation. One is left to assume it’s either habit or naked Republican partisanship.

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  32. Kathy says:

    @Steven L. Taylor:

    We disagree on whether it operated justly. I don’t think it did.

    Of course it didn’t.

    When the rules apply unevenly depending on whose side holds power, it’s called abuse. That is patently unjust.

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  33. @James Joyner:

    Granting that it’s quite possible Bush isn’t President from 2005-2009 if he doesn’t win Florida in 2000, the fact of the matter is that he was indeed the popular vote winner at the time he nominated Roberts and Alito. Beyond that, it’s quite conceivable that John McCain or another Republican could have defeated Al Gore in 2004.

    Coming back to this: if Gore had won the presidency in 2000 with the most pop votes and then lost in 2004, then 2016 would be the aberration and not another data point in a forming pattern.

    My list of terms and popular vote wins and so forth matters because of the tale they tell in the totality, including about control of the SC. These are not just a set of discrete events.

    I honestly am still stunned by the fact that there has only been 1 GOP popular vote win since George H. W. Bush left office . It is really a stunning fact, especially when we know that the Reps have had plenty of time in office during that expanse of time. It is indicative of a deep problem. And since the presidency shapes the Supreme Court, this lack of majority support for GOP presidents over three+ decades is also very important in understanding how we should look at that Court.

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  34. @James Joyner:

    Yes, we’re in agreement: Garland, an oldish, moderatish pick, should have been confirmed.

    I think that is true in our fantasy about how the government should work, but the reality is it works that way McConnell is demonstrating: the most votes wins.

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  35. @Gustopher:

    when you are qualifying the word “legitimate” with “legally”, you just have to drop the word “legitimate”.

    Legitimacy is a tricky concept. Things can be legally legitimate, or morally legitimate, and a host of other modifiers. In this context, I picked the modifier fairly deliberately

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  36. @Gustopher: Well, typo notwithstanding, I did say “slightly”– the Senate would be slightly more representative of the country if it elected 2 Senators from an urban state (DC) and an Hispanic state (PR). It would also likely mean 4 Democratic Senators, which would also make the Senate slightly more representative of the country. Likewise, PR’s EVs would slightly decrease the chance of an EV/PV inversion, and hence makes its outcomes slightly more representative of the country as a whole.

    Seriously, you’d think if anyone would get the benefit of the doubt on questions of institutional effects on representativeness, it would be me 😉

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  37. HarvardLaw92 says:

    @Kurtz:

    I feel pretty certain that there would be enough senators who would object to it on the grounds that its just a bad idea in the long run / undermines confidence in the last branch of government anybody has at least some left for that the attempt would probably die in the Senate, but stranger things have happened.

    Personally, I don’t love the idea because I love the court and I know what something like this would do to it, but I get the reasoning behind why people here and elsewhere would want to try. If McConnell does get that woman confirmed, it’ll tilt the court decidedly to the right for a generation. The game will be over.

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  38. HarvardLaw92 says:

    @Michael Reynolds:

    I agree. I just had to tack that onto the end to be certain I’d laid it all out.

    i.e. “you can do this, it really isn’t that difficult at all with control of the WH and Congress, but it ain’t all going to be a delightful ongoing bake sale afterward if you do. There will be consequences – some of them nasty – that you need to be ready to accept.”

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  39. Teve says:

    @Steven L. Taylor:

    I honestly am still stunned by the fact that there has only been 1 GOP popular vote win since George H. W. Bush left office .

    Several years ago I made a quick graph of % of the popular vote GOP candidates have gotten since Nixon. There was noise in the data, but there is a very clear trend line down. Nixon got a higher percentage than Reagan, Reagan got more than Bush, Bush got a higher percentage than Trump.

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  40. An Interested Party says:

    Ironically, RGB’s passing has made it more likely that SCOTUS will be expanded…I recall reading about how many moderate Democratic senators were opposed to doing that previously, but with McConnell’s hypocritical naked power grab, he leaves Democrats with no choice but do that which they were previously hesitant about doing…

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  41. EddieInCA says:

    Collins is a no.
    Murkowski is a no.
    Romney is probably a no.

    Who will be the fourth?

    I still maintain McConnell doesn’t have the votes. And Trump isn’t going to help because he can’t think past the next 10 minutes.

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  42. Moosebreath says:

    @James Joyner:

    “But you’re just pointing to cases where people are mad because they didn’t like the outcome, not the process.”

    No, I am pointing to cases where the Supreme Court acted as a partisan political entity, violating well established norms for how the Supreme Court has previously acted in order to aid Republicans.

    For example, in Shelby County v. Holder, the 15th Amendment says in so many words that Congress has the power to pass laws to ensure “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Congress reauthorized the law in question (the Voting Rights Act of 1965), including the coverage formula which the Supreme Court objected to, less than a decade earlier (and indeed amended the law to overturn two Supreme Court decisions which previously had limited the act). The Supreme Court decided it knew better than Congress whether the law was needed, a position which, if it were done by the liberals on the bench, would have been denounced as legislating from the bench.

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  43. Kurtz says:

    @HarvardLaw92:

    Yeah, I get the stakes, so I understand the feeling. But it’s just that–a feeling. Many Dems feel bullied and haven’t had anyone really fighting back for a long time.

    In the end, there are serious political downsides for 2022. The Senate map is favorable to the Dems if they’re willing to slowplay their plans.

    If Kelly has the ceiling he seems to have, it’s a bad position to put him in with a full term at stake after just two years.

    It appears the GOP will be defending more competitive races than Dems in 2022, and it seems like a better plan to focus on building toward 2024 by laying low and picking up more seats.

    There’s a decent chance Roberts drifts left, even if only out of institutionalism.

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  44. Ken_L says:

    The introduction of compulsory voting would go a long way to remedying some of the problems in the US electoral system. It would not require any constitutional amendment, and be hard to attack as a partisan measure.

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  45. An Interested Party says:

    @Kurtz: How long must Democrats wait to fight back? How long should Democrats allow Republicans to walk all over them? I understand what you are saying about 2022, but if the Dems just wait until the right moment to do something, that moment will never come…the Democrats need to realize something that Republicans already know–all of this is about power and politics, nothing more, nothing less…

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  46. Gustopher says:

    @Steven L. Taylor: Oh, I’m just being pedantic. Mostly.

    I think that while we have no industrial policy that revitalizes the empty states, and the empty states voting for a party that has no desire for an industrial policy, the flight from rural to city will continue, and problem will keep getting worse as those left behind get a greater and greater influence.

    Adding two states just slows that process down for a little bit. It makes things more representative at large* but doesn’t change the trends.

    Fundamentally we have to either create opportunities for people in rural states so they can stay and their kids will be as well off as they are, or change the structure of our government to make states less important. The first seems easier.

    The Green New Deal has a lot of stuff in it that could be the basis of that industrial policy. But, it’s attacked as socialism and of course we all know climate change is a hoax.

    ——
    *: A company I used to work for was very diverse on paper, so long as you never looked too closely. White teams, Chinese teams, Indian teams, Women teams… all in the good ol’ US of A. Met their diversity targets, despite being an implementation of espérate but equal. Adding states expected to vote Democratic is like adding another team where everyone speaks Mandarin at work and patting yourself on the back for making the company more diverse.

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  47. Gustopher says:

    @Kurtz: Historically, the party with the Presidency underperforms during the midterms.

    There’s no reason to assume 2022 will be an exception. Power is meant to be used. Slam through an agenda in the first year, some that increases democracy, some that helps people with bread and butter issues, and have a record to run on in the midterms.

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  48. Gustopher says:

    https://tucson.com/news/local/govt-and-politics/ducey-signs-law-adding-2-justices-to-arizona-supreme-court/article_19f500f3-4db7-5d64-b6c4-2b053df92a00.html

    Republicans packed the Arizona Supreme Court, so… I’d say the Court Packing Genie has been out of the bottle for a while.

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  49. James Joyner says:

    @Just nutha ignint cracker:

    True, but it is packed in a manner that Dr. Joyner acknowledges he is unlikely to object to. In fact, he noted that in an earlier post saying that while he prefers Biden for President, he likely would find Trump court picks superior.

    “No harm [to me], no foul.”

    Well, no. I voted for Hillary Clinton with a Supreme Court seat in the balance–and with an elderly Ginsburg presumably going to retire early in the term if she were elected—and am voting for Biden this go-around. The Supreme Court is important—too important—but it’s not everything.

    But I don’t consider elected Presidents appointing Justices to natural vacancies with the advice and consent of the Senate to be “packing” the Court. That term arose when FDR threatened to add one new Justice for every elderly Justice then serving on the Court in order to ram his New Deal through and has stuck. Expanding the size of the Court for that purpose is simply illegitimate.

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  50. James Joyner says:

    @Moosebreath:

    The Supreme Court decided it knew better than Congress whether the law was needed, a position which, if it were done by the liberals on the bench, would have been denounced as legislating from the bench.

    While the concept gets abused, I reserve “legislating from the bench” for things like Griswold or Roe where the Court literally makes up new rights out of whole cloth in order to match their policy preferences.

    Regardless, I think the case was rightly decided if by a rather strained reasoning. I would have preferred they simply ruled that, while the 15th Amendment granted Congress the rights to ensure states didn’t deny the right to vote, it didn’t supersede the Constitution’s requirement that all states be treated equally under Federal law. Which means Congress would simply have had to re-pass that section but apply it to all 50 states rather than basing it on the status quo of 1964.

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  51. wr says:

    @Kurtz: “It appears the GOP will be defending more competitive races than Dems in 2022, and it seems like a better plan to focus on building toward 2024 by laying low and picking up more seats.”

    This strikes me as the kind of brilliant Democratic thinking that brought us President Dukakis. The Democratic base right now is driven by rage and fear. They want to see big changes in the way this country is done, and they want it now. If a Dem senate (god willing) decides to putter around and delay for two years in hopes of getting more seats in the next election, a lot of that rage is going to turn on them… and deservedly so.

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  52. Moosebreath says:

    @James Joyner:

    “Regardless, I think the case was rightly decided if by a rather strained reasoning.”

    While I can understand (though strongly disagree with) that feeling, it is irrelevant to @my point above: “The problem is that literally every word you say here is the direct opposite of how Democrats view the Supreme Court over the last couple of decades.” Repeating that your view of whether the Supreme Court acted in a partisan manner differ from Democrats’ views does not change a thing.

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  53. @Ken_L: The comparative record on compulsory voting is mixed. It does not tend to produce what you might think it produces.

    IIRC correctly, countries that institute compulsory voting only slightly increase turnout. For example, coutnries with compulsory voting and high turnout had high turnout before compulsory voting was instituted.

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  54. @Gustopher: Fair enough. I am just thinking in terms of the doable at the moment. Clearly, if I could redsign the system the distribution of seats in the Senate would be different (as would the power of the chamber).

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  55. @Gustopher: This is basically where I am. There will be a less than two year window to get any reforms done before an uncertain midterm election. And yes, the party in the WH tends to lose seats in that election.

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  56. Which, BTW, is another absurdity in our constitution: an incoming president faces a likely change in the legislature two years into the term. It makes governance all the more complicated (not to mention it keeps the House in constant re-election mode, which takes attention away from governing).

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  57. Kurtz says:

    @An Interested Party: @wr: @Gustopher:

    Sure, they historically lose seats in the House. The Senate different.* It’s more than just the one election though.

    I didn’t say don’t do anything. I said don’t be ultra-aggro and jam a bunch of things through that poll well until the legislation is crafted.

    We’re talking about court packing, not something like Obamacare.

    The difficulty of eliminating ACA is it takes insurance away from people. The GOP can’t do it without causing direct harm unless they actually have to do something. And yes, we know they don’t want to do anything other than cut taxes and lower regulations.

    If they succeed adding justices, the effect of eliminating the two extra seats or adding more is much different. It doesn’t affect people in a concrete way like entitlement programs or health care, so reversing it carries less risk.

    I get you want to fight back. I want to as well, but do it smart politically. I never said “delay.”
    I’m just cautioning against going all out on things that make us feel tough but ensure a wipeout in 2022. Things like court packing is not the way to do it.

    We bitch constantly about the fucking Senate every day here. “Oh, the GOP has an unfair advantage. It’s bullshit.” and that’s true. But guess what, for the first time in a long time, we have a solid chance to add seats in the Senate, while holding the Presidency. Seriously, look at the States the GOP has to defend:

    Florida, Iowa, North Carolina, Ohio, Pennsylvania, and Wisconsin

    The Dems are defending Nevada, Colorado, and New Hampshire.

    If Kelly wins in AZ, he has to defend there. And Georgia, another state trending blue, is up as well.

    In the next two elections, the Dems can mitigate the structural advantage the GOP enjoys in the Senate. Do it right, and the Dems may be able to actually keep a majority in 2024 when the map is awful.

    The last thing you want to do when standing up to a bully is strike out wildly without a plan. Doing a bunch of controversial shit just because you want to throw a couple punches will get you knocked out.

    *ETA: Yes, the same is true for the Senate historically. But it typically isn’t to the same extent as the House. Of the seven times since Wilson a President’s party gained seats, only once has it not included gains in the Senate.

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  58. An Interested Party says:

    @Kurtz: Fine, maybe the Dems should wait until after the 2022 elections and then pack SCOTUS…but they should be prepared for many in their base to go completely ballistic when Republicans jam through a replacement for RGB and they do not retaliate in kind…along those lines…

    GOP Laughs at Dems’ Scorched Earth Threats as Supreme Court Battle Begins

    The last thing you want to do when standing up to a bully is strike out wildly without a plan. Doing a bunch of controversial shit just because you want to throw a couple punches will get you knocked out.

    And standing around waiting…waiting…waiting to get in the right punch can also get you knocked out…

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