As Democrats ramp up their efforts for the 2024 election, some are dangling an old enticement from 2020: if we win, we can pack the Court. In the last election, President Joe Biden refused to say if he favored packing the Court. Now the chatter has again started in the same quarters that a Democrat retaking the White House would allow the packing of the Court with an immediate liberal majority to force through sweeping court mandates.
Liberals are again stating that the Supreme Court is not fundamentally “broken” because a majority of justices do not share their views on legal questions. In the name of fighting ideological bias, they demand packing the Court with reliable ideological allies from the left.
This convoluted logic was on display in the Washington Monthly in an article on “how to fix the Supreme Court.” It is a must read for anyone interested in following the new rationalizations for destroying the independence of the highest court.
Author Rob Wolfe explains with alarm how a majority of justices now do not share his or Democratic views on various issues. Even though this Republican majority has repeatedly voted against conservative positions and often ruled unanimously, it is not enough for Wolfe. They have to be packed.
Wolfe rattles off extreme proposals matter-of-factly as all viable options:
Anyone concerned about the Supreme Court today should be working to prise that window open further. And to do so, they ought to draw on the robust and inventive debate that is brewing among scholars in law schools, think tanks, and advocacy organizations over how to fix the Court. Some of their ideas are bold structural changes: dividing the Court into rotating panels, stripping it of jurisdiction over certain issues, or controlling its certification process. Others are practical and based on policies already proven to work elsewhere, such as creating a “Congressional Review Act” for Supreme Court decisions, as already exists for executive branch regulations. What these ideas share is a recognition that the rights-giving 20th-century Court that liberals came to respect, even revere, is gone. Today’s progressives now realize that the high court is not an infallible fount of wisdom, and that it is historically more often a conservative force; and with that understanding comes a question that these scholars will help us all to answer: What is the Supreme Court even for?
That last question has been raised by Democratic members like Rep. Alexandria Ocasio-Cortez (D-N.Y.) who has questioned the need for a Supreme Court.
Once again, packing the Court with reliable liberal votes is being proposed to “save democracy”:
President Joe Biden and other Democratic leaders have not embraced this deeper reform debate, perhaps recognizing that the political moment hasn’t yet arrived. When the survival of democracy depends on each coming election, a little short-term thinking is understandable.
But one day that moment will come, and it may come suddenly: a wave election, a string of Senate vacancies, a scandal of new, earth-shattering magnitude, or a series of decisions as harmful as Dobbs. When that happens, reformers need to have a plan ready to go—a plan that will require broad public consensus about what problems need to be solved … and a detailed road map to achieve those goals through nitty-gritty policy…Being ready means spending years on movement building to bring together academics, policy wonks, and regular Americans, all waiting to grasp that perhaps fleeting and unforeseeable opportunity. Either that, or submit to being governed for another 30, 40, or 50 years by unelected partisans in robes.
However, what is most striking about the Washington Monthly article is how Orwellian the logic becomes once you admit that your are packing a court with ideological allies. The argument is now that packing the Court is unpacking the Court.
The Supreme Court needs to be thought of as a neutral arbiter for political disputes, not just another player in them, the law professors argued—and so fixing it today is a question of restoring that aura of public trust. Right away, that goal disqualified the most talked-about idea at the time: court packing. Supporters of court packing like the political scientist Aaron Belkin argue that the Supreme Court has already been stacked with highly ideological conservatives who gained their seats through norm-breaking political brinksmanship, and so to add, say, six liberal or moderate justices would actually be to unpack it.
The article then adds the voices of the most radical elements of academia who support “resistance” by any means, including targeting and harassing justices.
“I want to suggest that courts are the enemy, and always have been,” Josh Chafetz, a Georgetown Law professor of the “disempowering” school, said on an afternoon panel with Doerfler, Sitaraman, and another Georgetown scholar, Victoria Nourse. In one exchange, Chafetz called for retaliation against the justices as individuals, wondering aloud whether Congress should consider withdrawing funding for law clerks or even “cutting off the Supreme Court’s air conditioning budget.” The quip drew a faint chuckle from the crowd, but Doerfler, deadly serious, interjected: “It should not be a laugh line. This is a political contest, these are the tools of retaliation available, and they should be completely normalized.” What put us here, he said, is the idea that the Court is an “untouchable entity and you’re on the road to authoritarianism if you stand up against it.”
It is certainly not “a laugh line,” it is a chilling call for mob rule and political harassment of jurists for not ruling as demanded. Harvard Law Professor Ryan Doerfler wants to show that individual justices are “touchable” by harassing them as individuals when they dare to defy our will. He is not alone in such extremist ideology among the “radical chic” of academia.
I previously criticized Georgetown Law Professor Josh Chafetz who supported more “aggressive” protests targeting justices “when the mob is right.” Such voices are common at Georgetown and other law schools.
The Washington Monthly’s article normalizes such extremist rhetoric and dangerous threats against the justices. It is another example of the license of the age of rage.
Professor Turley,
Do you statistics to back up your claim that “Even though this Republican majority has repeatedly voted against conservative positions and often ruled unanimously”?
Last year, most of the blockbuster opinions were 6-3 splits. https://pluralpolicy.com/supreme-court-2023/
And in the 2021-2022 term, only 29% of the court’s decisions on the merits were unanimous. This is a sharp drop from the 43% average over the past decade. 6-3 splits were the MOST COMMON ALIGNMENT, with 30% of cases being decided along those lines. https://www.scotusblog.com/2022/07/as-unanimity-declines-conservative-majoritys-power-runs-deeper-than-the-blockbuster-cases/
(Side note: SCOTUSBlog has not yet posted their review of the 2022-2023 Term yet, hence the less statistically deep review of last year)
I do not support court-packing, but you continue to fail to acknowledge the hyper-polarization of this Court as well as the “packing”-like political moves made by the GOP to deny Obama’s ability to fill a vacant seat. In my opinion, these political moves are equivalent. I also don’t think two wrongs make a right.
Does SCOTUSblog do an anylaysis of how many times the left joins the right in decisions and vice a versa? I think the Volokh Conspiracy has been tracking that stat.
Memory is that conservatives join the leftist at a far greater frequency.
All of the analysis carefully avoids explaining what decisions were wrong. Dobbs is not wrong Adheres to the Constitution. Returns the decision to the people like it was for 180 years, until Roe stripped the people of their power to create the law they live under.
Try to think about what you write logically.
If you have a 6-3 majority, you have no need to court the liberal justices by writing a moderate opinion.
Think Alito vs… Kennedy.
If the liberals want to reach a majority (like in the 5-4 AL redistricting case), they need to court conservatives to get to a majority. So, of course, there would be more movement in that direction.
That doesn’t tell us anything.
“If you have a 6-3 majority, you have no need to court the liberal justices by writing a moderate opinion. ”
The have been 5-4 decisions where Conservative Justice has joined the libs in dissent. My point being, there is a far greater idealogical spread, in the Republican appointed Justices, than the other way around. Libs go far left and never waiver. Ignoring the Constitution in order to get the outcome they left wants.
Obviously in 9-0 rulings liberals are joining conservatives and vice versa. 9-0 rulings are the plurality of rulings.
First thing we must do is find a commonality of definition for the word “democratic” and very carefully note that “Democrat” is a completely different word and concept and applies to the people of the United States who ascribe to that organization and its agenda.
When we use the word “democratic” we must also stipulate and accept the fact that the Democrat Party and “Democrats” do not act in a “democratic” fashion ever.
Grammar and spelling Rules are going to require a national effort to correct the misuse of the word “democratic” when applied to anything remotely referring to the Democrat Party or Democrats.
Lawyers should file a Civil Suit and force the DNC to alter its own name out of the interest for honest advertising as currently it is definitely guilty of false advertising.
Latest example is the way the DNC is ignoring the New Hampshire State Law re that State having to be the first State to hold its Primary Election during National Elections.
Then, look at the offerings of Jaime Raskin (D-MD) re Hunter Biden’s criminal Contempt of Congress.
Look back to the January 6th Select Committee origin and conduct.
Or….look at the two Impeachments of President Trump particularly the Second Impeachment.
Add in the Colorado and Maine Decisions particularly the Maine Decision that was not done by a Court, Judge, or even a Lawyer.
Check the constant Party Line vote by the Democrats….when it is anything or any one of them at risk. (Look at the upcoming House Vote on the Contempt Resolution for a perfect example.).
For the last reminder let’s remember the two tiered justice system in this Country courtesy of the Democrats.
One thing is absolutely clear…..if democracy is what the Democrats are advocating then we as a Nation want nothing of it, their agenda, or them in any government job, office, or educational position.
If they hate America, and hate the majority of the American population, it stands to reason that they would hate the Constitution and the Supreme Court.
What I can’t fathom is the reason that they continue to live here if they hate everything about us – oh wait – they don’t hate our free stuff or our cushy government affirmative action jobs… I think anyone who wants to destroy our government should be quietly given a one-way ticket to the socialist tyranny of their choice.
I’m liberal, and I love America, love our Constitution, and like the majority of Americans, though extremists on the right and left concern me. I believe that SCOTUS has become too politicized, and that concerns me too.
Just admit Democrats are unrepentant Fascists!
if you Vote Democrat you are either ignorant or blind to their CRIMES!
Democrats are fighting their 2nd Civil War against America…this time the party should be abolished…and THOUSANDS of Democrat Criminals SHOULD BE JAILED
Republicans need to elected Scorched Earth leaders like the Founding Fathers!
Time for scotus to review the legality of congressional insider trading
Time for scotus to review the legality of congressional insider trading,
You are part of problem.
The people need to review the legality of congressional insider Trading.
You know who would provide a pathway for that to happen?
President Trump.
The only reason the DC swamp, including REPUBLICANS are against Trump is because President Trump would take actions to start stripping the grift from DC
DeSantis, or Haley are part of that grift. they might give lip service, but will actively hide and obscure details to protect the status quo.
There is little Trump can do about insider trading in congress – just as congress can not impose ethics rules on the supreme courts.
We do not really want it any other way.
Congress makes its own ethics rules. We need to elect people who are more ethical.
One of the reasons that is a problem with democrats – as evidenced by Turley’s post – is that there are no moral foundations to the modern left.
Right and wrong are decided by feelings, not by time tested principles.
I would like to see Trump at least talk about the grift going on in Congress. The public is very uninformed about the wealth that these insiders are accruing.
There is little Trump can do about insider trading in congress
The only thing the President can do is use the bully pulpit to expose the grift. President Trump is the ONLY candidate that is willing to expose the grift.
Lets not piss all over DeSantis and Halley.
This is not their moment. That is all.
I have issues with Halley going full neocon. But I have issues with some Trump policies too.
I am not going to get a “perfect” candidate.
I am hard pressed to think of a single republican – and frankly not many democrats that would be worse than Biden as president.
We do not get perfect politicians or presidents.
As best as I can tell Halley was a good governor. She was a good UN Ambassador.
But I do not agree with her neocon foreign policy positions.
That does not make her evil.
Absolutely Halley has profited privately.
GREAT – More power to her.
It is valid to question what that means regarding her policies.
I think it is reasonable to expect that a politician who is well paid by specific groups or whose donors reflect specific causes – that politician will reflect their interests in office.
That is not bribery or a conflict of interests.
People tend to work for people they agree with.
Politicians receive donations from those they agree with.
It is not corrupt to be paid or to take donations.
But voters should presume the candidate may reflect the values of those who they associate with, work for or receive donations from.
This is in contrast to the Biden corruption scandal where this was not about policies, but litterally about buying the execercise of govenrment power.
If you do not want to vote for Halley because he is too neocon for you – that is reasonable, and I would not either based on her recent remarks and history. But I would still pick her over Biden or Newsome.
Nor would I rule out a Role in A Trump cabinet.
They can’t.
separation of powers
The power to make laws rests with congress not the courts.
The issue is fundimentally the same as congress trying to make ethics rules for the supreme court – they can’t.
The fix to unconstitutional and/or immoral conduct by the left, is not for the rest of us to double down on bad ideas.
Do Democrats ever think of anything new? Isn’t this talk essentially along the lines of “coordinating” the justice system, to align it with interests of the Democratic party? It seems there was another political party who went beyond talk and actually did this — spring of 1933 or so…
There exist no history for leftists. (except Hitler, thats evergreen) Each day wipes history clean.
This debate the Dems with the attention span of a two year old. They must have what they want immediatly. They refuse to do the work required to advance their agenda. So they demand the court do it for them. Abortion is still a great example. The Dems got 5 people to declare abortion a right. Because the Dems could not get legislation passed to usurp States Plenary Power, to make decisions about those thing not mentioned in the Constitution.
The vote on Roe v. Wade was 7-2, as I recall. It was a shocking instance of legislation by the judiciary.
That’s true. Nineteen years later it was 5-4 to uphold Roe in Planned Parenthood v. Casey. Thirty years after that it was 5-4 to overturn Roe in Dobbs.
The problem with the Supreme Court is not new. Politicians of all stripes and the populace has been angry at them at one time or another. Calling for ouster and packing is not new either. This will fail as always.
What bothers me is the absolute lack of understanding of history. Democrats cry over a 6-3 “Conservative” majority. Yet, they fail to see how it ended up like that due to their own hands. Do they really think they will be able to pack the Court to their liking and not give the Republicans the exact same ability when power changes hands?
The lesson here is that it is a bad idea to mess with the Court system because it works really well. Maybe not to your liking, but you will get your day.
Until someone tries to actually make changes, it is all hot air.
The supreme court should ALWAYS be conservative. That is an important check on the rest of government.
The term Conservative is a political term attached to Republican Justices and Liberal is attached to Democrat appointed Justices. It is a bit of a monomer and simplification over a complex situation.
Justices approach the law generally from one of two legal views. Originalist and Living Constitution. Both are legitimate and both have pluses and minuses.
The problem with Living Constitution is that the beloved document can be twisted to any interpretation to suit the need at the time.
The problem with the Originalist view is it can ossify and lends to the argument the founding fathers did not account for “x”.
So a perfect example is privacy. No where mentioned and yet both understood and inferred. It is so ingrained in us that we understand it without explanation, yet it had to be interpreted to be there. A great case can be made by both Living Constitutionalists and Originalists.
Yet it had to be interpreted to be there. ALL justices have always agreed there is a right to privacy. So is that Conservative or Liberal?
The Supreme Court needs to be thought of as a neutral arbiter for political disputes,
RIGHT! Polititca decision are reserved for congress.
Despite that, Dobbs is seen as radical right wing. Moving the power to decide, directly as the People decide.
There is not a single SCOTUS decision the US Congress cannot overturn.
Todays ballott issues is simple. SCOTUS just needs to point out Congress enforces 14th amendment when votes are certified. That means the Peoples Representative can be held responsible for their decisions at the next election.
What Dems are too stupid to understand/admit, is there Ideas are not supported by the People, so the political bodies refuse to make the decision and demand the courts implement what they fail to legislate.
Again, Abortion is a perfect example. 50 years and super majorities of the House, senate and White House, and Democrats never codified abortion. Because the People do no support the abortion laws the Democrats demand.
Dear Prof Turley,
‘They’, (democrats and republicans) could unpack Democrat and Republican political parties, leaving only Bernie Bro the Independent . .. but I wouldn’t count on it.
Personally, I’d outlaw all privately owned political parties .. . and require candidates to stand on their own two feet.
*clearly, some kind anti-trust action is required . .. Democrats and Republicans have ‘cornered the market’!
“Rep. Alexandria Ocasio-Cortez (D-N.Y.) who has questioned the need for a Supreme Court.”
Sandy the bartender, part of a brain trust America should hear from, NOT.
“Sandy the bartender”
‘Sandy’ is that like a Guy? or a Girl? or Trans?
No of you are safe Today Baby!
Did Ferdinand Marcos Sr. and Hillary Rodham Clinton have a Love Child named Alexandria Ocasio-Cortez (a.k.a.: A.O.C.) ???
It must be said that it is deeply disturbing that a Congressional Member would not understand the Fundamentals of the Separation of Powers.
A.O.C. is a “Monocrat”.
I wonder if she’s trying for free tuition to the Electoral College?
Their main complaint with the Court is that it returned the abortion issue to the democratic process. And they see that as harmful to democracy?
“… What is the Supreme Court even for?
That last question has been raised by Democratic members like Rep.
Alexandria Ocasio-Cortez (D-N.Y.) who has questioned the need for a Supreme Court. …”
TO: Alexandria Ocasio-Cortez (D-N.Y.) I’d say:
𝐖𝐄 𝐰𝐨𝐮𝐥𝐝𝐧’𝐭 𝐧𝐞𝐞𝐝 𝐚 𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭 𝐢𝐟 𝐂𝐎𝐍𝐆𝐑𝐄𝐒𝐒 𝐀𝐍𝐃 𝐓𝐇𝐄 𝐏𝐑𝐄𝐒𝐈𝐃𝐄𝐍𝐓 𝐃𝐈𝐃 𝐈𝐓’𝐒 𝐉𝐎𝐁 𝐀𝐍𝐃 𝐃𝐈𝐃 𝐈𝐓 𝐇𝐎𝐍𝐄𝐒𝐓𝐋𝐘.
“[A] “Congressional Review Act” for Supreme Court decisions . . .”
When you are driven by power-lust, everything the Founders created is an acceptable casualty — including the separation of powers.
“Power corrupts. Absolute power corrupts absolutely.” (Lord Acton)
Scotus would declare it invalid on separation of powers grounds. Then Congress would seek to review that decision pursuant to the struck-down act. The result would be a constitutional crisis.
In paragraph 2 when you write that liberals are saying the Court is “not fundamentally broken,” shouldn’t it be “is?” They think it needs to be fixed, ergo it must be broken.
And keep voting for these people, Professor. That’ll show ’em!
Good point and thanks. I had to wonder if he meant “now” where he wrote “not”.
The word is Democrat not democratic
Wouldn’t it be sweet if Trump wins and the Republicans take the senate? Imagine the look on these fascist’s faces when talk begins about adding Justices to the Court. Of course with shamelessness being a political superpower the Schumers of the world will call Court packing evil and not even get red in the face.
The odds of the GOP controlling the senate in 2025 are incredibly high. Manchin’s seat is going to flip. That alone flips the Senate to 50:50
and the party that elects the president controls.
Separately Dems are defending in PA, AZ, OH, MT, WI, MI, NV, and NJ. All they have to do is lose ONE of those and they lose the Senate no matter who wins.
Each of those races is different.
PA has a more centrist running, and PA is titling red this year. But Casey will likely win.
NJ is a blue state – but it has seen a backlash in recent elections against corruption. And Mendez is featured front and center right now.
AZ is going to be a 3 way race. OH is now a red state, with a relatively popular blue senator.
NV is slowly turning into a red state all recent elections have been razors edge.
MT is a deep red state with a democratic senator who PROBABLY will hold on.
Regardless, Republicans need a 1 state flip in a year that Democrats are going to do poorly.
Like they say about the Bidens: “You Don’t Mess With The Bidens”
There was a Time in this Country when Parties & Politicians said: “You Don’t Mess With The Supreme Court”
Not Today – Litigate Everything including the Court.
𝐓𝐎𝐃𝐀𝐘 – 𝐒𝐜𝐡𝐞𝐝𝐮𝐥𝐞𝐝 𝐟𝐨𝐫 𝐉𝐚𝐧 𝟗, 𝟐𝟎𝟐𝟒 (𝐓𝐔𝐄𝐒𝐃𝐀𝐘)
Tuesday, January 9, 2024 9:30 A.M. USCA (Live-Stream)
The United States Court of Appeals for the DC Circuit
𝐂𝐚𝐬𝐞#: 𝟐𝟑-𝟑𝟐𝟐𝟖 𝐔𝐒𝐀 𝐯. 𝐃𝐨𝐧𝐚𝐥𝐝 𝐓𝐫𝐮𝐦𝐩
Judges: Henderson, Childs, Pan
Filing:
https://www.supremecourt.gov/DocketPDF/23/23-624/293865/20231220140543301_23-624%20-%20U.S.%20v.%20Trump%20-%20Brief%20in%20Opposition%20to%20Petition%20for%20Certiorari%20Before%20Judgment%20-%20Filed.pdf
[Link] courtlistener.com/docket/68073028/united-states-v-donald-trump/
[Link] pacermonitor.com/public/case/51648356/USA_v_Donald_Trump
Video Link:
The totalitarian Democrat Party is on a roll, they want to totally control every aspect of government and your individual life. How Leninist of them.