Is it time to restore the Supreme Court to legitimacy?

If Democrats had stuffed two extra justices onto the court, then the dems wouldn't have much ground to stand on. Somehow, the GOP gets a pass for their version of court packing.

 

They haven't engaged in court packing (or at least haven't done so since the 1860s, no one has). Court packing is a term of art that explicitly means adding seats to the court so you can appoint more justices to support your agenda. The number of seats on the court has been the same for over 150 years. The GOP filled vacancies. People get real hung up on Garland not getting a hearing, but the GOP had enough votes to just vote him down anyway (hence McConnel being majority leader) with 54 Republican Senators. McConnel should have just held a vote, voted him down, and sent a list to Obama of people they would confirm. Then no one would be talking about it. I can't imagine who the other seat you think they stole was. Barrett? Did you think McConnel was right, but he just had the cutoff too far away?

 

Democratic lawmakers resist calls to expand court — for now

https://thehill.com/homenews/senate...wmakers-resist-calls-to-expand-court-for-now/

 

Biden was right: Expanding the Supreme Court is a boneheaded idea

https://thehill.com/opinion/3541613...nding-the-supreme-court-is-a-boneheaded-idea/

excerpt:

Sen. Elizabeth Warren (D-Mass.): “I believe we need to get some confidence back in our court and that means we need more justices on the United States Supreme Court.”

Rep. Adam Schiff (D-Calif.): “We can expand the court. Codify rights. And move America forward again.”

Rep. Alexandria Ocasio-Cortez (D-N.Y.): “Not only should we look at expanding the Supreme Court, but I think we need to acknowledge that the Supreme Court of the United States has very few checks and balances.”

Sen. Ed Markey (D-Mass.): “Again, I ask my colleagues in the Senate what other judicial outrage must we endure from the illegitimate, far-right majority on the Supreme Court before we act? Fight back and expand the Court now.”

***
Today, President Biden deserves credit for his long opposition to expanding the court.

"It was a bonehead idea," Biden said as a senator in 1983. "It was a terrible, terrible mistake to make. And it put in question, for an entire decade, the independence of the most significant body -- including the Congress included in my view -- in this country, the Supreme Court of the United States of America."

White House press secretary Karine Jean-Pierre echoed that perspective on the president's behalf earlier this week.

"I was asked this question yesterday, and I’ve been asked it before — and I think the president himself … about expanding the Court. That is something that the president does not agree with. That is not something that he wants to do," Jean-Pierre told reporters on Air Force One.

Expanding the Supreme Court was a bad idea in 1937 and 1983, and it's a bad idea now. But Democrats know their power is about to go away after the next midterm elections and are throwing a Hail Mary that will not see the end zone.
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more at the link

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Tomato, tomato. Hence the reason I said "their version of court packing".

In the past 150 years, nobody has played the games that McConnel has played to remake the court in their own image. So call it what you want but the result is what it is and now we have a radical court that overturning precedents after lying about it.

 

These are excellent points you brought up.

The founders are very old and their ideas make sense at that time, but looking back, not all of their ideas are great (slavery and all). But their wise intuition of gov overreach is solid, still to this day. Gov of the people, by the people, for the people.

If you look back to the early days, we have a *functional* executive and Congress. The Court was weak. If the Court doesn't do what the executive or Congress wants, they simply change the Court (unpack/pack blah blah blah). Functional government isn't "overreach" as long as it's representing what the People want and the People can vote them out if they overreach, which was the case.

Today? The system has been so gamed and twisted that the people are frustrated as hell. We largely have a non-functional government, a gov that isn't representative of what the people want, and a gov that can overreach and do overreach (and the people can't immediately or in the short term do much of anything about it).

What many people today fear of Gov overreach is giving Gov more power in the structure it is in today. That's scary as hell. If the Gov isn't representative, doesn't do what the people want, and can hardly be voted out, why should anyone want to give it more power?

But we got to keep a few things in mind. The reasons we have this gov today is due to actions by gov officials themselves to weaken some parts of the gov itself, strengthen other parts, and limit the power of the People. These includes:

- Congress reforming the Court for lifetime appointment (Federal and Supreme court judges)
- The Supreme Court refused to strike down partisan gerrymandering (even though it recognizes that partisan gerrymandering is anti-democratic)
- The Supreme Court allows unlimited spending on elections increasing the power of a few very rich individuals and diluting the power of the common people
- Senate changes the rule to "veto" legislation by default (a 60-vote is needed to override)
- Congress capped the number of House members to 435 in the 1920s (the US population has grown 300% since)
- Voters restrictions
... and so on

After decades of these "reforms", we have reached a point where our gov is lopsided. Congress is largely dysfunctional and can't get much of anything done with the default "veto". The executive of course can veto easily. Where this leaves us is that the executive and Congress are kept in check (or more precisely, making new laws is extremely difficult). But, the Court, very little check on it. They can strike down laws or (as we have seen), "legislate" from the bench, ignore long-standing precedents, and there is almost nothing we can do about it. The people can't directly vote them out. The people have very little power to indirectly vote them out - they depend on Congress and the Executive. But both of those branches of government have self-sabotage their ability to check the Court (60-vote + control of both branches are required to reform the Court).

The founders started with a powerful Executive and Congress and a Court that wasn't that powerful. Since the Executive and Congress are directly voted in, they were good with this. Where we are today is a weak Executive and Congress with a powerful Court. What they feared has come true - a Gov that isn't representative of the people and a branch of gov (Court) that overreach. I think if they knew, I bet they would not have allowed lifetime appointments and would make it easier to reform the Court.

All of this can be corrected. Instead of attacking the Gov to make it dysfunctional, unbalanced, and not representative, we need to reform all of the Gov (maybe starting with the Court first as they can be the gatekeeper and reject any reform) to make it more representative, functional and balanced. Unfortunately, because the gov has been so severely altered, it now likely takes a super majority to correct it...

 

If things had broken the other way for Democrats and they had been able to appoint the last few justices they wouldn't be in here complaining about how broken the system is. That's obvious. It's complete partisan nonsense.

Garland? If Barack Obama wanted to appoint Supreme Court justices then he should have maintained control of the United States Senate. Simple as. He didn't and Republicans, naturally, didn't just allow him to appoint one.

 

do away with the whole thing

and they say Trump is an insurrectionist

 

This part of the debate right now is a bit of a distraction IMO at this point. Of course there's nothing wrong with elements of our government having majorities based on democratically held elections giving the sitting government more appointees. That's part of Democracy that we understand.

HOWEVER the issue is the actions of this Supreme Court. The Constitution is clear about the role of the Supreme Court for damn good reasons. Their role is not to govern or legislate. Their constitutional mandate is to simply read the laws. You could argue that Congress has failed, etc. etc. but why they are failing is still an issue with the Supreme Court's rulings on allowing unbridled corruption of Congress with a bizarre interpretation of the 1st amendment applying to corporations and dark money groups with no accountability.

So what do we do then about a SCOTUS that goes rogue whether it be a Liberal Super Majority or a Christian Nationalist Super Majority in the pockets of fossil fuel billionaires???

IMO this is an existential crisis because what SCOTUS is doing is essentially creating 2 Americas. With just a few decisions they have ruled that if you are politically and religiously aligned to us, you are free to have full states rights on THESE laws. However on the laws that we don't ideologically agree on, BIG GOVERNMENT is going to be forced into laws we agree with. It's going to force America to be two different countries with one of them dealing with an over reaching BIG GOVERNMENT.

I for one think that with such a crisis looming and the potential for a blatantly partisan SCOTUS bench governing and acting as Kings instead of readers of law, it is perfectly acceptable for Congress to step in and pull the fire alarm to at the very least strike a blow across the bow of SCOTUS so they are put in check, or are neutered in their ability to be as partisan and dangerous as they are showing they are.

Had this level of activism been happening from the bench with a Liberal supermajority that is potentially creating a powder keg that could lead to some sort of Civil War or Secession, you know you would be arguing for the Republicans in Congress to be taking action to save the Union.

So I guess the difference between your view of SCOTUS and mine is I actually believe in how the framers mandated the Supreme Court to operate while you view them as partisan actors who can govern like Kings instead of simple law interpreters who inform Congress of gaps in laws that need legislation.

 

Why is it "natural" that Republicans wouldn't consider Obama's centrist nominee?

 

They didn't agree with his jurisprudence.

I'm not naive to believe a Democratic majority senate would have approved a Trump nominee, and in fact, Barret got 0 votes from Democrats, Neil Gorsuch got 3 and Brett Kavanaugh got one. Not even three Republicans breaking ranks would have gotten Garland on the court.

 

The vast majority in here wouldn't be in here complaining if that were the case. It's rank hypocrisy.

 

The POTUS doesn't get to appoint a Supreme Court Justice. The POTUS nominates and the Senate provides advice and consent (confirm).

It certainty was in the power of the Senate to not consent (confirm), but to not even consider... a first. Senate Republicans' reasoning is to leave it to the people since it was an election year. Fine, let's that be the new precedent. Then McConnell turned around and rushed a nomination 1M before the election.

Your first statement might be true or false. It didn't happen, so we don't know. You are simply guessing or projecting. For me, if the Dem did that, they unpack and repack. But whatever, it's partisan craps and I would expect the Rep to return in kind.

 

Because the vast majority of people are not corrupt Christian Nationalists so they'd probably be happy that positive changes where happening.... BUT they also would be wrong if a Liberal SCOTUS was governing like Kings in defiance of their Constitutional mandate.

I'm also pretty damn sure that Republicans would also be looking at pulling the fire alarm and doing everything they could, as unprecedented as it would be, in order to reign in a Supreme Court that is conducting a Judicial Coup.

So yes Liberals would be wrong to applaud a Liberal SCOTUS that conducted a Judicial Coup because it might help them and the world. Because the ramifications would be the potential destruction of the Union. I mean how many times have we heard about Republicans wanting Texas to secede and that was ONLY because of Democrats holding positions that are fairly Democratically held and replaceable through elections every 2,4, or 6 years? If a Liberal SCOTUS was doing what the current SCOTUS is doing then those threats would be much much more real and would actually be a threat to the Union any which way you slice it.

 

Perhaps more than three would have broken ranks, given his reputation as a centrist and neutral judge. I disagree that it's natural or normal for his nomination to not even be considered. That was partisan nonsense. Democrats responding by not voting for Trump's decidedly conservative nominees (as evidenced by their overturning of Roe) isn't much of a defense for it.

 

When was the last time a senate not controlled by the Presidents party confirmed a justice?

Want your nominations confirmed? Win the senate. Nobody was robbed of anything.

Mitch McConnell is the elected representative of the Republican caucus of the senate. They gave him authority to hold hearings or not.

 

Facts

 

Just because an elected official has the legal or constitutional ability to do something doesn't make it right. A president has the agility to start a war but that doesn't mean we should celebrate it as a virtue or not be able to critique it or people in the opposition have the ability to speak to changes to curtail bad decisions like that.

Also Clarence Thomas was confirmed by a Democratic party majority in the Senate so there certainly is precedent.

What McConnell did was legal for him to do, but it was wrong for him to allow that process to not just stack the court, but stack the court with people who have decided to crown themselves as Kings, and potentially create 2 Americas. McConnell had the ability to do what he did but also hold the country together with some level of bipartisan cooperation. Not saying he should have mandated that the Senate only hold hearing if Trump nominated Lawrence Tribe, but he certainly could have done a much much better job of not driving a wedge through the country with nominees who would try to govern the country as anointed Kings.

 

I said nothing about Garland needing to be confirmed. I recognize that McConnell had the authority to hold a hearing or not hold a hearing, and I think the choice he made was blatantly partisan and bad for the country.