Outside the Beltway

Thoughts on ACB and SCOTUS in General

Some judicial alphabet soup in dialog with my co-blogger.

Steven L. Taylor · Friday, October 16, 2020 · 12 comments

As is often the case, that which started as a comment has blossomed into a post. So, to agree with my friend and colleague, it is definitely the case that James and I are of similar minds on the disturbing trajectory of American democracy and that whatever disagreements we have tend to be marginal. I think it is fair to say that my level of distress may be slightly higher or perhaps it is just that my distress has lead me to more willingness to seek what I would consider somewhat dramatic changes in the short term (see, for example, here). And, of course, one of those areas is expanding the US Supreme Court.

A few issues raised in his post on this subject in James’ post inspired this post from me.

First,

Steven and I disagree mostly at the margins on the problems caused by the increasing unrepresentativeness of the American system. In particular, he counts the two nominees that George W. Bush got through in his second term as part of the problem and I don’t, since he was re-elected by a popular vote majority. (Although I fully concede his point: He almost certainly wouldn’t have been elected in 2004 were it not for his having been elected under inversion in 2000.)

In fairness to James there is a cogent argument to be made that the two Bush appointees are in a different category than the soon-to-be three Trump appointees. After all, Bush won the popular vote in 2004.

If 2000 had been an aberration of the the hundred-year flood variety, then I might be persuaded that the post-2004 nominees were just the result of aberrant circumstance. However, I think 2000 (and, therefore, 2004) has to be re-evaluated in the context of 2016 (and the reality that the odds of popular vote/electoral vote inversions have increased due to the unequal growth in different state populations). One inversion in over a century is one thing, two out of five elections is yet another. This is especially true when it has been estimated that the only way to guarantee an Electoral College win is to win the popular vote by 5% or more.

To be clear, and likely to repeat myself to a degree: we have gone almost three decades and have had one GOP presidential term supported by a majority of voters (2004). Yet there have been three presidential terms (2000, 2004, and 2016) held by Republicans that have generated hundreds of judicial appointments (340 for Bush and 190 for Trump through the end of 2019). That’s a lot of influence and power for a party that has only been able to generate majority popular vote support once in seven presidential elections and only then in a re-election. So when we talk about trying to fix disequilibria, it is really more than SCOTUS, but fixing SCOTUS is easier (but not easy) than fixing the entire judiciary and it could help rectify some of the egregious representational problems to be associated with, say, Trump’s 133 district court appointees in his first three years in office.

The depth of this situation is profound and I see no way to address it all, but fixing the constitutional court would help immensely.

Another point I wanted to address:

I think it would simply be illegitimate for Democrats to ram three, four, or five Ruth Bader Ginsburg clones in and overturn the outcome of three decades’ worth of elections* in one fell swoop. Not only would it invite tit-for-tat if Republicans ever win again but it would undermine the role of the courts, turning them into a much more blatantly partisan instrument.

First, speaking for myself at the moment, I am not sure what the appropriate number of additions would be. A minimum of two, rather obviously, but certainly potentially more. But, I am not seeking, necessarily, a Justice-for-Justice balance.

I will beat this drum, however: expansion is not, in my opinion, overturning anything, it would be re-balancing that which the Electoral College in particular imbalanced (and that the nature of the Senate makes even more unbalanced).

I will say that I suspect any expansion will be considered outrageous by some, but likewise celebrated as just by others. But, if the logic by Republicans now is: we have the votes, then if the Democrats have the votes later, then what is the actual difference?

I have come to a point where I think it an appeal to a romanticized view of American governance to suggest that we are going to come to a point any time soon where power politics isn’t that actual driver of outcomes (or that it was ever anything else).

I keep thinking about “Cabinet Battle #1” from Hamilton: “You don’t have the votes (you don’t have the votes!)” Legislative politics (which is what confirmation is) boils down to either having the votes or not.

Republicans find themselves in a position to claim a great political prize at the moment because they have the votes. If Democrats win the Senate and the presidency in three weeks, then they will have the votes. In some ways the political math is clear: use your power while you have it. That was what McConnell did in 2016, and it is what he is doing now. While I had personal preferences in 2016 and have them now, the reality is what it is. While I think there is an argument McConnell had a constitutional obligation to at least give Garland a hearing, let’s not kid ourselves about what the outcome would have been.

Debate (or, really, “debate”) whether in hearings or on the floor, almost never changes minds.

Does anyone think that the Amy Coney Barrett hearings will have one iota of effect on the vote in the Judiciary Committee? Or that it will influence what later happens on the floor of the Senate?

It has been performance art, at best (which has long been true of this process). There is little actual advising going on and the consent is foregone.

Secondly, along those lines, I am not so sure that the Court isn’t already, and hasn’t been for quite some time, blatantly partisan. On the one hand, Justices do not have Rs and Ds by their names, and yes, sometimes a Justice, once appointed, behaves differently than expected. But let’s again face facts: the vetting process has evolved to such a degree that one can get a decent idea of how a nominee will behave on the bench.

The confirmation process does this dance, one that has been honed over decades by nominees of both Democrats and Republics, to make it sound like no nominee knows anything about anything.

But we all knew the RBG wasn’t going to vote to make abortion illegal. And we know that ACB isn’t going to vote to remove all restrictions on it.

It is clearly not the case that the only thing that matters is “judicial philosophy” but, also what the individual nominee personally believes. Further, there is an inevitable synergy between the two. For example, is it just a coincidence that originalists tend to be conservative and vice versa?

Even the Justice who claims to only call balls and strikes comes to the game with a personal view of how to interpret the strike zone. If it really was a neutral matter of weighing clearly written rules, we could have an all machine Supreme Court.

I also continue to struggle with the usage of “illegitimate” in this context, but since I realized I never had the chance to read James’ lengthy post on the subject, I cannot fully engage him directly on this.

I will say this: the usage here reminds me of the term “illegitimate child,” which really had more to do with the social and legal status of the child, specifically the ability of the the father to reject his offspring. The concept is one that is rarely used now, but note the “legitimacy” of the child does not stop the biological function needed for procreation. It does not make such a child nonexistent. And, in fact, over time we have figured out how not to treat children born outside of marriage the same way we treat those born within it.

The point of the analogy is that “illegitimate” in the context above was a combination of legal and societal views that both changed over time (but you can still find people who hold the old view but that stubbornness doesn’t change the broader reality).

And, more directly: calling court expansion illegitimate doesn’t stop a party that has the votes from doing so. Calling it illegitimate doesn’t stop the appointed and confirmed Justice from taking the seats. And, eventually, people will have to adapt, even if some never quite get on board. (And I am not saying that James doesn’t understand any of the that, but I am pointing out why I don’t find the term especially persuasive).

I prefer, actually, to say that court expansion would be norm-breaking, which could cause backlash in the public and escalate a game of tit-for-tat with the Republicans. Both of these things have potentially serious implications. However, I think that we are already at a point where the norm-breaking by the GOP means the need for significant action has come.

All of this is compounded by the fact that the Republican Party seems well aware of its minority status and is actively seeking to exploit the system to continue minority rule instead of having to compete for majority support. Indeed, that is why I support Court expansion: there is a somewhat rare chance that in 2021 we will have a federal government that actually represents the majority of the population. The opportunity to establish at least some modicum of actual majority rule has to be taken while it can be taken, as it could easily go away as soon as the 2022 mid-terms.

(And that was more than I intended to write on this, and I do promise to read James’ post on legitimacy and to return to this topic more in full).

*I think that while the race was quite close, the reality is that Gore won the popular vote, full stop. And, therefore, the “tie” narrative is incorrect. And if we had a reasonable electoral system, we would have been in a position to fully sort our that election without the nonsense that ensued.