The latest media faux outrage over a ‘court packing scheme’

The latest faux outrage from the concern troll media villagers and pundits is over 2020 Dems warm to expanding the Supreme Court. Oh noes!

I’m sorry, but where was the outrage from the concern troll media villagers and pundits when “The Enemy of The People,” Senate Majority Leader Mitch McConnell, was engaged in an unconstitutional judicial blockade of President Barack Obama’s judicial nominees and even stole a Supreme Court vacancy, Mitch McConnell Committed a Judicial Heist and Blames Obama for His Crime, and is currently engaging in an unprecedented court packing scheme of his own, packing the federal courts with unqualified judicial nominees whose only qualification is that the have the stamp of approval from the far-right Federalist Society? McConnell’s laser focus on transforming the judiciary; Trump Is Rushing Through ‘Unqualified’ Judges Faster Than Any Other President; McConnell Cements a Legacy for Trump With Reshaped Courts.

There is nothing sacrosanct about the U.S. Supreme Court having nine justices. In fact, that number has varied over the past 230 years. 7 Things You Might Not Know About the U.S. Supreme Court:

The U.S. Constitution established the Supreme Court but left it to Congress to decide how many justices should make up the court. The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number was bumped up to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing anyone new to the court. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since.

In 1937, in an effort to create a court more friendly to his New Deal programs, President Franklin Roosevelt attempted to convince Congress to pass legislation that would allow a new justice to be added to the court—for a total of up to 15 members—for every justice over 70 who opted not to retire. Congress didn’t go for FDR’s plan.

FDR’s “court packing scheme” is where lazy concern troll media villagers and pundits are drawing a comparison today. But the latest calls to expand the court bear no resemblance to FDR’s plan, so enough already.

There is a rational basis for expanding the U.S. Supreme Court. There are currently 13 appellate courts that sit below the U.S. Supreme Court. It is neither radical nor extremist to suggest that each circuit court should have its own presiding Supreme Court Justice to supervise the circuit.

The justices of the Supreme Court have responsibilities on the circuit courts and circuit courts of appeals. For the history on how the circuit courts of appeals have been allotted to Supreme Court Justices over the years, see Supreme Court of the United States: Circuit Allotments.

One can reasonably argue there should be, at a minimum, 11 Supreme Court Justices — the D.C. Circuit Court of Appeals and the Federal Circuit probably can be adequately supervised by the full court. (Republicans have for years threatened to divide the 9th Circuit, so there could be 12 Supreme Court Justices).

Congress has the power to decide how many justices make up the Supreme Court. Adding two justices seems entirely reasonable and appropriate. It is in no way a “court packing scheme.” This is a pejorative being being bandied about by conservative media to cover for their own blatant abuses of the federal judiciary for partisan ends.

Eric Levitz writs at New York Magazine’s the Intelligencer, Democrats Don’t Want to ‘Pack the Supreme Court’ — They Want to Reform It (excerpt):

Politico’s coverage of this issue elides (or underemphasizes) three critical points:

1. Democratic candidates want to reform the courts, not pack them.

Court-packing is a pejorative in American politics, one that connotes a partisan power grab. Thus, it makes sense that Republicans would wish to describe the plans that Warren and Harris are mulling as “court packing.” But progressive advocates for those plans should probably avoid doing so —not least because the term is inaccurate.

As Warren suggests, the goal is not merely to expand the Supreme Court, or to turn a bastion of conservative judicial activism into a liberal one. Rather, the idea is that one could nullify the threat that a reactionary, activist judiciary (appointed largely by men who were not popularly elected) poses to self-government in the U.S. without triggering an endless court-packing arms race — by establishing new rules that lower the stakes of Supreme Court appointments, and suppress judicial partisanship.

In article for Vox last fall, the legal scholars Daniel Epps and Ganesh Sitaraman outlined two different ways in which this could be achieved. When Warren mentioned “bringing appellate judges into Supreme Court cases,” she may have been referencing their first suggestion:

[C]hanging the Supreme Court from nine permanent justices to a rotating group of justices, similar to a panel on a court of appeals. Every judge on the federal court of appeals would also be appointed as an associate justice of the Supreme Court. The Supreme Court “panel” would be composed of nine justices, selected at random from the full pool of associate justices. Once selected, the justices would hear cases for only two weeks, before another set of judges would replace them.

This approach would effectively eliminate the high stakes of Supreme Court appointments, thereby taking the Court out of the electoral and political realm. It would also significantly decrease the ideological partisanship of each court decision. No single judge would be able to advance an ideological agenda over decades of service or develop a cult of personality among partisans. And it would be very difficult to be a judicial activist on any given case because the next panel — arriving as soon as two weeks later — might have a different composition and take a different tack.

Cases would also be chosen behind a veil of ignorance. While serving their two weeks, the justices would consider petitions for Supreme Court review. But with such short terms of service, the justices could not pick cases with a partisan agenda in mind; another slate of justices would hear the cases they select.

They also offer a “balanced court” solution, in which “ten justices — five Republican and five Democratic — would be chosen through a political process much like our current system” and then “these politically appointed justices would need to unanimously pick five additional justices, drawn from the courts of appeals, to sit with them for a year.”

Of course, today’s Republicans are likely to view any reform that nullifies their hard-won stolen Supreme Court majority as an illegitimate power grab. But if you squint hard, you can imagine a world in which Democrats win federal power, pass one of these judicial reforms — and then retain power long enough to endow the new system with bipartisan legitimacy. That said, red states would liable to start nullifying Supreme Court decisions in the interim.

Regardless, such concerns are almost certainly moot for the foreseeable future because:

extremely unlikely to have the votes necessary for reforming the Supreme Court.

Democratic senators Cory Booker, Amy Klobuchar, Michael Bennett, and Dianne Feinstein have all already voiced opposition to meddling with the Supreme Court’s composition. Which is to say: It isn’t just red-state moderates like Jon Tester and Joe Manchin who stand in the way of judicial reform — it’s the median member of Chuck Schumer’s caucus. Heck, many of the Senate’s most progressive senators can’t even bring themselves to endorse abolishing the (utterly irrational) legislative filibuster.

Meanwhile, Democrats will need to pull off a minor miracle just to secure a single-vote Senate majority in 2021. And even if they dominate the next two election cycles, they still (almost certainly) won’t be in a position to pass any laws that don’t have the support of the likes of Booker and Klobuchar. What’s more, absent a drastic escalation in the Roberts Court’s activism, public opinion is unlikely to force moderate Democrats’ hands. Thanks to the public’s capacious ignorance of 99 percent of Supreme Court rulings, rank-and-file Democratic voters actually espouse a broadly positive view of the existing judiciary; as of last month, a plurality of Democratic voters approved of Chief Justice John Roberts, while just 7 percent described him as “very conservative” (despite the man’s evisceration of landmark civil-rights legislation, and myriad efforts to expand corporate power).

Reforming the courts is a good policy — and may prove a necessary one. But there’s no evidence it’s good politics. Which means that moderate Democratic senators are unlikely to budge, absent a massive judicial power grab that eviscerates a core Democratic achievement.

Nevertheless, the push for Supreme Court reform remains worthwhile because:

3. Building support for reform could temper John Roberts’s appetite for judicial activism.

Franklin Roosevelt never managed to pass his “court packing” scheme — but the threat alone (ostensibly) forced a reactionary high court to make peace with the New Deal state.

There’s reason to think that contemporary efforts to politicize the court (or, perhaps, to politicize the right’s politicization of said courts) could have a similarly beneficent effect. In her forthcoming biography of John Roberts, The Chief, journalist Joan Biskupic reports that Roberts initially intended to join his four conservative colleagues in voting to strike down the Affordable Care Act, but was reluctant to make such a sweeping intervention into an issue as potent as health care. Thus, he reportedly negotiated a “compromise” with Stephen Breyer and Elena Kagan, which resulted in those two liberals voting to undermine the Medicaid expansion, while Roberts voted to preserve the bulk of the law.

Biskupic holds out the possibility that Roberts’s “change of heart really arose from a sudden new understanding of the congressional taxing power.” But the weight of the available evidence suggests otherwise.

And even if the justices do not consciously consider the risk of political backlash, that threat still might unconsciously inform their reasoning. So long as progressives are loudly preparing plans for stripping the court of its present prerogatives, its conservative jurists will have some cause to worry that striking down the next expansion of public health insurance might be more trouble than it’s worth.

Granted, as stipulated above, the threat to reform the courts isn’t currently an empty one. But Roberts may wish to protect this status quo, by declining to give Amy Klobuchar & Co. a good excuse to change their minds.

An actual “court packing scheme” was Arizona Governor Doug Ducey’s adding two justices to the Arizona Supreme Court, despite unanimous opposition from the sitting justices on the court. Ducey signs law adding 2 justices to Arizona Supreme Court. “Additional justices are not required by the court’s caseload,” Chief Justice Scott Bales wrote to Ducey.

Arizona Republicans are in no position to be heard about a court packing scheme after supporting Governor Ducey’s blatant power grab.

UPDATE: Leave it to authoritarian Republicans: Rep. Mark Green (R-TN) on Tuesday said he will introduce a constitutional amendment this week to limit the number of Supreme Court justices to nine after several Democratic presidential candidates have floated the idea of expanding the high court’s bench.

“The Supreme Court must remain a fair and impartial branch of government not beholden to party,” Green said in a statement.

His total lack of self-awareness is hilarious.

Not to be outdone, Senator “Little Marco” Rubio (R-FL) announced yesterday that he too will introduce a constitutional amendment that would keep the high court at nine justices.

This amendment has zero chance of making it through Congress, let alone ever being ratified by 38 states. It is a reactionary response from attention-hungry Republicans who are playing to the conservative media entertainment complex and their GOP crazy base.