Warren’s Argument for Court Packing

It's not compelling.

Massachusetts Senator Elizabeth Warren takes to the pages of the Boston Globe to demand we “Expand the Supreme Court.” Leaving aside that there aren’t remotely the votes to do so even if there weren’t a filibuster and there will likely be fewer votes, still, in the next Congress, it’s just an incredibly weak argument coming from a former high-caliber law professor.

This month, a majority of justices on the United States Supreme Court signaled their willingness to gut one of the court’s most important decisions over the past century, threatening to eliminate Roe v. Wade and a person’s right to choose.

This is not the first time this extremist court has threatened, or outright dismantled, fundamental rights in this country. For years, the Supreme Court’s conservative majority — recently supercharged to 6-3 — has issued decision after decision that veers away from both basic principles of law and widely held public opinion.

As I’ve argued before, Roe is just about the worse possible precedent on which to hang this argument. The opinion is widely ridiculed in legal circles for making up a Constitutional right out of whole cloth, down to deciding which trimester of a pregnancy the Constitution protects a mother’s right to choose. And public opinion on an issue has nothing at all to do with the Constitution says or doesn’t say.

With each move, the court shows why it’s important to restore America’s faith in an independent judiciary committed to the rule of law. To do that, I believe it’s time for Congress to yet again use its constitutional authority to expand the number of justices on the Supreme Court. I don’t come to this conclusion lightly or because I disagree with a particular decision; I come to this conclusion because I believe the current court threatens the democratic foundations of our nation.

Were this a student essay, I would have advised that she needed a paragraph of transition ahead of this one establishing that “America’s faith in an independent judiciary committed to the rule of law” actually required restoration. But, since I’m inclined to believe that it does, I’ll let it slide.

For years, I have argued for reforms to the ethical practices of the Supreme Court. Justices should not be allowed to receive big checks and all-expenses-paid trips from extremist right-wing legal groups or go on expensive hunting trips with litigants who appear before the court.

Were this a student essay, I would advise striking this paragraph entirely, as it’s a distraction from her main argument. (For example, while I generally agree with her, it would be absurd, indeed, to argue that Supreme Court Justices should have no social relationships with their political peers. There’s nothing improper in the least about the late Justice Scalia having gone hunting with then-Vice President Cheney.)

But the problems with today’s court run deeper than ethical abuses.

Over the past few years, Senate minority leader Mitch McConnell hijacked America’s Supreme Court. First, in 2016, he engineered the theft of one seat, breaking from longstanding precedent by denying even a hearing to President Obama’s highly qualified nominee. Four years later, he reached new heights of hypocrisy when he reversed direction — breaking his own “rule” barring votes on justices in an election year — to ram through the confirmation of Justice Amy ConeyBarrett only days before President Biden’s election.

So, in my view, the shenanigans via which McConnell and company held the seat vacated by the sudden death of Scalia is far and the best argument in favor of a Democratic makeup. But the argument is undermined by the silly pretense that Trump’s getting to fill the vacancy caused by the sudden death of Justice Ginsburg counts as a second offense. Either a President gets to fill any seat that opens while he’s in office or he doesn’t. (And, no, McConnell wasn’t being hypocritical: he was consistent from the beginning that the so-called “Biden Rule” only applied in cases where the President and Senate were in opposite-party control—a distinction other Senate Republicans allowed to get blurred.) The pretense weakens her argument, in that it makes it about partisan advantage rather than principle.

(I’m also amenable to my co-blogger Steven Taylor’s broader argument that the structural inequities which over-represent Republicans in the Senate and the White House has skewed the Supreme Court. But Warren doesn’t advance that point.)

Similarly, Warren belies her contention that she’s interested in legitimacy rather than results here:

This Republican court-packing has undermined the legitimacy of every action the current court takes. But rather than trying to restore Americans’ confidence in an independent judiciary, this court leans into extremism and partisanship. This radical court has reversed century-old campaign-finance restrictions, opening the floodgates for corporations to spend unlimited sums of money to buy our elections. It has reversed well-settled law that once required employers to permit union organizers to meet with workers. It has trampled on the Constitution’s guarantee of equal protection by upholding a racist Muslim ban. It has twisted the law to deny Americans their right to a day in court, despite the clear intent of Congress. And it has gutted one of the most important civil rights laws of our time, the Voting Rights Act, not once but twice.

Without reform, the court’s 6-3 conservative supermajority will continue to threaten basic liberties for decades to come. In this term alone, the Supreme Court is considering whether to nullify the right to an abortion in America, whether to bar states and cities from regulating guns on our streets, and whether to eviscerate the federal government’s abilities to fight climate change. The fact that the Supreme Court is even considering questions to upend decades of settled law jeopardizes the fundamental principle of the rule of law. But conservative justices’ recent decisions and their apparent appetite to overturn decades of precedent underscore one important truth: This court’s lawlessness is a powerful threat to our democracy and our country.

These are silly characterizations of these decisions from a serious legal mind. They’re stump speech fodder, which is fine for a politician, but they’re hardly persuasive as an argument for massive structural reform.

And, again, I’m persuadable on reform. But Warren is simply saying we need more Democrats on the Court who will vote the way she way she likes, not making an argument that the Court is too small or too geriatric or too anything else other than Republican.

I believe in an independent judiciary. I also believe in a judiciary that upholds the rule of law — not one that ignores it to promote a deeply unpopular and partisan agenda at odds with the Constitution and the settled rights of our citizens. And when a court consistently shows that it no longer is bound by the rule of law, Congress must exercise its constitutional authority to fix that court.

It’s true that the Constitution gives Congress the power to set the size of the Supreme Court. But it has been fixed at 9 Justices since 1869 and attempts to change its size have rightly been looked upon as partisan “packing” since. Even Franklin Roosevelt couldn’t get away with it.

Restoration of “a judiciary that upholds the rule of law” would indeed be a compelling rationale for violating this norm. But, again, Warren has done nothing to persuade me that it’s not doing that now. She’s worried that a judicially-created right to abortion may be eroded to nothingness and that state legislatures will be empowered to do things she doesn’t like. That has little, indeed, to do with the rule of law.

And it gets more brazenly partisan:

To restore balance and integrity to a broken institution, Congress must expand the Supreme Court by four or more seats.

Four! Or more! That’ll teach McConnell to use hardball politics to fill one seat.

And she doubles down by repeating her earlier argument:

First, it was McConnell, along with Donald Trump, who used two stolen seats to pack the court. The same people who reduced the size of the court for over a year solely for their own partisan gain and then turned around and jammed through another nominee days before losing the presidency cannot complain about a clearly constitutional proposal to fix the mess that they made.

So, again, there’s an argument to be made for undoing to Garland Gambit. But pretending that there was anything untoward in racing against the clock to seat Comey undermines it. Had Trump done so as a lame duck, I’d be more persuadable on that point. But it was done before the election.

Second, adding seats to the Supreme Court may be one of the few ways to deescalate the arms race around the court. If we stand by while the highest court in our land bows to special interests and destroys the long-acknowledged rights of individuals, we reward those who broke the rules in the first place, encouraging bad actors to further corrupt the court without any consequences.

But, of course, partisan packing will beget partisan packing. The second the Republicans have the White House and Senate at the same time, we’ll get five or ten more Republican Justices. Talk about your arms races.

Finally, between its ethical failings, its stolen seats, and its radical right-wing opinions on abortion, voting, dark money, unions, corporate power, and more, this Supreme Court has hit record lows in the eyes of the public. Rebalancing the court is a necessary step to restore its credibility as an independent institution, one that works for the American people and not just for the wealthy and the powerful.

This is frankly a nonsensical argument. Packing the Court with Democrats would, rightly, be seen as a naked power grab. It would destroy the legitimacy of the judiciary as an independent entity—although, granted, Americans increasingly don’t believe in that, anyway.

Again, given that this has zero chance of passing in a Senate that can’t even agree on the signature legislation a Democratic President campaigned on, this seems like political grandstanding rather than a serious reform proposal.

FILED UNDER: Elizabeth Warren, Law and the Courts, Supreme Court, US Politics
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. SC_Birdflyte says:

    James, when you say “racing against the clock to seat Comey,” I assume you mean “racing against the clock to seat Barrett.” While I think expanding the size of the Supreme Court is a justified response against both the “Garland gambit” and the “Barrett gambit,” it’s a political judgment, not a legal one. OTOH, we aren’t the same country we were in 1869 and shouldn’t delude ourselves that clinging to worthless precedents has any legal value.

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  2. wr says:

    Good point. When Republicans pack the court with Federalist Society hacks who overturn decades of established law simply because they don’t like them — we used to call that “legislating from the bench” — that’s just good jurisprudence. But if Democrats try to change the court, why that’s an outrage!

    Here’s the thing you seem not to be able to understand — it doesn’t matter if you think Roe was a bad decision or a silly decision. It has been the law of the land for half a century and these six reactionary hacks are going to take away a fundamental right from all Americans — sorry, all Americans not rich enough to buy a plane ticket and a hotel room — simply because they want to.

    How you just whistle past this is incomprehensible to me.

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  3. KM says:

    Restoration of “a judiciary that upholds the rule of law” would indeed be a compelling rationale for violating this norm. But, again, Warren has done nothing to persuade me that it’s not doing that now.

    Quite frankly, it’s not someone like you she’s trying to persuade. She’s attempting to reach the people who are losing faith in the system because they see that “rule of law” is being used to suppress the intent and function of the law. When the system is being cynically manipulated and destroyed from the inside, the only way to keep said system intact is to work within the system to rebalance. There’s absolutely no reason to NOT have more justices other than “we’ve always done it that way”. Many cases do not get SC review simply because there isn’t enough time in the year – a larger court can handled a bigger case load and thus serve their purpose more efficiently. A larger population and expanded world interaction means that a larger court can more equitable service their needs and it counterbalances partisan lean, something definitely not in the Founders’ plans or intentions.

    We should not be able to predict how a case goes based on the judges’ personal leanings. More justices make it more like it should be – a case will have a decent chance of succeeding based on its merits, not on partisan push. The simple fact that rank partisanship in the Legislative branch – an equal branch it’s designed to Constitutionally counter – can stop this is the greatest reason to do it. Contamination from one branch should not control and influence another’s path as it completely subverts the idea of checks and balances. “You can’t fix your problems because it will cause ME problems” is *not* a good governmental principle to support in any fashion.

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  4. gVOR08 says:

    I think you left out a paragraph yourself, James. Republicans have been politicing around the Supreme Court since the “Impeach Earl Warren” days of the fifties and against abortion for 40 years, but it’s wrong for Democrats to politic around the Supreme Court because….

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  5. Jay L Gischer says:

    The point of mentioning Barret is not as a second offense, but to highlight the lack of any principle other than “naked power grab” in Mitch McConnell’s actions.

    I don’t know that I like “they did it first” as a justification, but if you’re going to talk about “naked power grabs”, then try to take note of all of the pertinent ones, please.

    Honestly, I support abortion rights, but I’m even more worried about what this court will do with voting rights. I don’t expect Roberts to support an overthrow of abortion rights, but he has, and probably will again, supported radical changes to voting laws. He threw out the VRA, which was long established, and supported by large majorities of Congress.

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  6. gVOR08 says:

    @Jay L Gischer: You’re entirely right that abortion isn’t the biggest worry. The Stepford Wife Federalists intend to destroy what they view as the Regulatory State. That’s what the Billionaire Boys Club founded the Society to do. Originalism is a tool carefully crafted to find whatever they want in the Constitution and overturn precedent.

    It occurs to me that I’ve been calling them Stepford Judges for years. Long before they made it almost literal with Amy Rabbit Barret and her Michelle Bachmann eyes.

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  7. Michael Reynolds says:

    Corruption encourages more corruption. The Supreme Court has been a corrupt institution for many years. Each new proposed justice, before facing questions in Congress, is carefully briefed by the White House on how to lie.

    Do I have an opinion on Roe? Are you referring to fish eggs, Senator?

    It really comes down to a question of principle vs, effect. Do we continue to maintain the threadbare fiction that SCOTUS is apolitical? Or do we embrace the corruption fully, end the polite fictions, and unmask the court as little more than a nakedly political institution?

    Every time the US goes to war we tell ourselves we’ll be the good guys, restrained, humane, and then we end up burning plantation homes in South Carolina, firebombing cities full of civilians in Japan, or killing 60 civilians for no purpose in Afghanistan. Wars quickly erode principles. In war the only enduring ‘principle’ is destroying the enemy by any means available.

    Are we at war? Are we having a slow-rolling civil war? If so, then you do what you have to do to win. If we aren’t there yet – and I don’t think we are – then better to cling a bit longer to principle, even a moth-eaten principle like an independent Supreme Court.

    We are either trying to steer this country back to the Constitution, democracy and the rule of law, or we’re tossing all that aside and going for the throat. I think it’s too early for abandoning core principles.

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  8. As is known, I am in favor of court expansion, but I think that it is not a legitimate argument to argue that because of one case (whatever case that may be) that the court should be expanded.

    Indeed, such argument distract from more significant problems with the court’s overall democratic legitimacy.

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  9. reid says:

    I have not read her column, but I have heard that this one is good:

    https://www.washingtonpost.com/opinions/2021/12/09/expand-supreme-court-laurence-tribe-nancy-gertner/

    Note: I have not read that one, either.

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  10. Rick DeMent says:

    As I’ve argued before, Roe is just about the worse possible precedent on which to hang this argument. The opinion is widely ridiculed in legal circles for making up a Constitutional right out of whole cloth

    Wow, in the pantheon of Making up law out of whole cloth, Roe isn’t even in the same galaxy as “corporations are legal persons”, “Money = speech”, and the soon to be enshrined, “A fetus is person with rights under the constitution”.

    I get it, there is nothing in the constitution grants a right to privacy or bodily autonomy any more then it grants SCOTUS the power of judicial review, but waving your and and bestowing right to a fetus is in the same creating law from the bench league as calling corporation a person with rights under then constitution. It’s nothin g more then creating a law to get the legal outcome you want and is based on nothing in the law or constitution.

    Corporate law in this country is jam packed with precedents based on decisions citing the 14th amendment. For originalists this should be galling because not one of the framers of the 14th had any notion that its constitutional protections should extended to corporations. They just took an offhanded remark in an opinion and expanded it. No one voted on it, congress did not pass a law it. It just took on a life of it’s own.

    Now were are going to do the same damn thing to the fetus. If they want to give a fetus rights isn’t that some thing that should be enshrined in the constitution? And if they do give fetus’s rights will woman require a fetal rights attorney assigned at the fist missed period in order to properly administer those rights?

    Proclaiming that a fetus has rights under the constriction from the bench is making law so bad that it makes Roe look like an example of perfection in jurisprudence.

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  11. KM says:

    @Rick DeMent:

    there is nothing in the constitution grants a right to privacy or bodily autonomy

    Sure there is- it’s just not specifically enumerated or uses the word “privacy” or “bodily autonomy”, probably because those weren’t really something the Founders thought they had to spell out. How can you have free speech or association if you don’t have control over your body? If the government can control your bodily autonomy, they can control your voice and your form and thus your free speech and where you go to associate. There’s a reason why there’s no right to life listed (besides that no human can promise such a thing), you can’t exercise any rights until you are born as being alive is a fundamental perquisite to doing anything. Even the abomination of corporate personhood uses a proxy person that is alive to maintain the fiction as you need a some body to be somebody. Privacy is foundational for 3rd, 4th and 9th – the notion of ownership, inherent rights and exclusion of private property from government intrusion requires the notion of privacy being something involute. Not to mention the 9th straight up says just because it’s not spelled out in the document doesn’t mean it’s “invented” , it’s just not listed at that time.

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  12. Rick DeMent says:

    @KM:

    But that’s exactly what I meant, not specifically enumerated or uses the word “privacy” or “bodily autonomy”.

    I think that the 4th amendment means a right to privacy. But apparently, according to some Judges, that goes out the window the moment you are a pregnant woman talking to your Dr.

    Also there are Jurists, most of them conservatives, who consider the 9th an ink blot (Famously asserted by disgraced judge and Saturday Night Massacre bingo winner Robert Bork and others of his ilk). How many people like to sneer at the idea of “Penumbra” and clam it’s what “liberal” judges use to find “new rights”. There are also those who claim that conservatives judges never do this just as they are on the precipice of “discovering” rights of a fetus under the constitution.

    I actually agree with just about most everything in your comment. But let’s be clear, unless you assert the a fetus has rights under the constitution there should be no way you can “outlaw” abortion and the hand ringing over 15 weeks v 24 weeks is just nonsense. I’m trying to figure out how anyone on the court is going to turn themselves into a pretzel to assert that abortion before 15 weeks is constitutional (or more appropriate or whatever nonsense they are going to come up with) and 24 is not. That calculus has to involve the notion that that 24 week old fetus has rights that the 15 week old fetus does not.

    So all of your comment, “How can you have free speech or association if you don’t have control over your body … ” Will have be ignored for any of the justices to uphold the MS 15 week ban because nothing else makes any sense.

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  13. gBOR08 says:

    @Rick DeMent:

    Now were are going to do the same damn thing to the fetus. If they want to give a fetus rights isn’t that some thing that should be enshrined in the constitution?

    One should note that in 1797 abortion was legal in most states. Yet the Constitution says nothing specific about it or fetal rights. One would think that would count for something with”original oats.

  14. gVOR08 says:

    @Rick DeMent:

    Now were are going to do the same damn thing to the fetus. If they want to give a fetus rights isn’t that some thing that should be enshrined in the constitution?

    Especially so since abortion was legal in most states when the Constitution was ratified. You’d think that would carry some weight with “Originalists”. And it would if they weren’t lying sacks of it.

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  15. just nutha says:

    @wr:

    How you just whistle past this is incomprehensible to me.

    That’s strange; it’s not incomprehensible to me at all. Still, I do see that Warren’s argument is primarily political, and that perception may well bias people against being amenable to it. Dr. Taylor’s argument was far more persuasive, in my opinion anyway.
    Then again, it’s possible that this argument is not for an audience listening to a high-caliber law professor, but rather to an audience of constituents of a Democratic Senator of a strongly Democratic state. That might change the message some; whether that change is a wise choice is another issue.

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  16. Gustopher says:

    @gVOR08:

    Especially so since abortion was legal in most states when the Constitution was ratified. You’d think that would carry some weight with “Originalists”.

    Wouldn’t that “most” actually bolster the argument for putting it in the hands of the states?

    Granted states now are an almost entirely different beast than states then (this would be either under the Articles of Confederation, where they were mini-countries, or colonial period… in either case far stronger than any federal government at the time)

    But, you’re not making the point you hope to make.

    (Ultimately, it comes down to “does a fetus have rights? If so, how to they balance with the rights of the woman? and if not, can the government outlaw abortion just for funsies?”)

  17. Rick DeMent says:

    @Gustopher:

    Hell no, if corporations can take advantage of 14th amendment protections, when we all know that no thinking person would agree it was never ever meant to apply to them, then why can’t woman?

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  18. Raoul says:

    The court needs to be changed because current jurisprudence is frankly insane. The is no predictability or legal understanding what they are doing. I will not go down the list of stupefying bad decisions, I will only point at the Texas bounty abortion law. Even Roberts himself is aghast at the gang of 5. Allowing private citizens trump the bill of rights by using court actions is nuts.

  19. Tony W says:

    To me the biggest problem with court packing is that it starts an arms race. The next Congress will do it again to correct perceived injustices (ahem).

    I would prefer a different approach. If we are going to pass legislation for this, I would rather pass legislation that rotated people on and off the Supreme Court after four or five years of service on that court, back into the circuit court chiefs. That makes it much harder to game the system and create majorities out of minority positions, and it keeps everyone involved much more interested in maintaining the independence of the judiciary because their tenure on SCOTUS is impermanent and soon they themselves could be overruled.

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  20. gVOR08 says:

    @Gustopher: My comment was in response to @Rick DeMent: comment about “Originalists” finding fetal rights in the Constitution. One or a few states may have banned abortion. Most did not. This seems sufficient demonstration that there was no generally accepted concept of fetal, or embryo, rights in 1798. And the Constitution said nothing to change that. Ergo any “Originalists” claiming there are fetal rights in the Constitution is lying.

  21. Kathy says:

    @Tony W:

    The arms race problem comes immediately to mind. It would make packing the court like eating potato chips: you can’t just pack it once. By the mid 2030s we’d have like 72 justices.

    the problem in placing term limits or even rotating judges is Article 3, which states: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” this means you need to impeach them to remove them from office, or pressure them to retire.

    One can argue rotating justices between the SCOTUS and the Circuit Courts means they still hold their offices. Alas, that argument would ultimately be resolved in the Supreme Court.

    So what’s left to do?

    I’d try enlarging the court without a fixed number of justices. Set a lower and upper limit, of say no more than 11, 13 or 17 (it needs to be a prime number to reduce the possibility of tied votes), and limit how many justices can be appointed to the court to three per full presidential term, except if an appointment is necessary to reach the lower limit.

    If we go with 13, Biden gets to appoint three, not including Breyer’s replacement, and the balance shifts to 6-6. When Breyer retires or dies, the balance shifts again to 6-5. What happens next depends on who wins in 2024.

    IMO this looks less like court packing and more like court expansion. It should be coupled with an increase of federal judges as well.

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  22. James Joyner says:

    @wr:

    it doesn’t matter if you think Roe was a bad decision or a silly decision. It has been the law of the land for half a century and these six reactionary hacks are going to take away a fundamental right from all Americans

    I tend to think Roe, as modified by Casey, should be considered settled law precisely because of those reasons (the age of the precedent combined with the fact that reversing it results in a diminution of liberty). But Congress could create a right to abortion via legislation.

    @KM:

    Many cases do not get SC review simply because there isn’t enough time in the year – a larger court can handled a bigger case load and thus serve their purpose more efficiently.

    First, she’s not making that argument, so it would have been odd to address it here. Second, I don’t think that’s true. We could simply allow Justices to hire more clerks, who do the bulk of the nug work.

    We should not be able to predict how a case goes based on the judges’ personal leanings. More justices make it more like it should be – a case will have a decent chance of succeeding based on its merits, not on partisan push.

    So, in theory, I agree with this. But Warren is arguing to pack it with more Democrats so that it’ll predictably vote in a way she likes.

    @gVOR08:

    but it’s wrong for Democrats to politic around the Supreme Court because…

    I don’t make that argument. Rather, I think someone of Warren’s ilk—a former Harvard law professor—should be making arguments about judicial reform that are systemic, not merely outcomes-based. If she wants to be a partisan hack, okay. But I can surely point out when she’s being one.

    @Rick DeMent:

    Corporate law in this country is jam packed with precedents based on decisions citing the 14th amendment. For originalists this should be galling because not one of the framers of the 14th had any notion that its constitutional protections should extended to corporations.

    That corporations have some individual rights is a common law principle that got applied through the 14th Amendment. So, for example, Walmart is clearly protected by the 1st Amendment. Neither Congress nor (via the 14th) a state could pass a law prohibiting Walmart from selling “LETS GO BRANDON” merchandise on account it’s disrespectful to the President. Nobody doubts that. The contentious issue is how far it goes. (For example, I think Hobby Lobby would have been correctly decided if it were a mom and pop or maybe even three stores owned by the same family. It’s absurd expanded to a massive corporation.)

    @Kathy:

    Set a lower and upper limit, of say no more than 11, 13 or 17 (it needs to be a prime number to reduce the possibility of tied votes), and limit how many justices can be appointed to the court to three per full presidential term, except if an appointment is necessary to reach the lower limit.

    I much prefer this method of reform to that advanced by Warren. Ideally, I’d make the law go into effect on 21 January 2025 to establish a veil of ignorance as to which party would gain immediate benefit but, given the shenanigans around the Scalia seat, I wouldn’t cry Foul too loudly over doing it now.