I think there's an additional reason why the supreme court has become increasingly politicized: dysfunction in the legislative branch. Because congress has significant incentives to ensure that no one gets a victory, it rarely accomplishes anything meaningful outside emergencies. That leaves the other two branches of government as avenues for change, so we have a politicized judiciary and an ever-more-powerful executive.
"A far better plan would be to reform the courts in a bipartisan way, perhaps by expanding the federal bench as a whole and restoring the filibuster for judicial appointments."
And how would that "bipartisan" thing work exactly? Over my lifetime, I've gone from believing the SCOTUS was a fairly neutral branch of government to one being run for the benefit of the Republican Party, starting explicitly with Bush v Gore, 2000.
Your ideas, if implemented could work, but let's be realistic. Mitch McConnell and the rest of his caucus (Republican, GQP, insurrectionists) have no intention of doing anything you ask and I am tired of being held hostage by a religious minority. Expand the court.
Senate Majority Leader Mitch McConnell refused to hold a hearing on President Obama’s nominee, Merrick Garland. Should Dems go tit for tat with Reps? Or can they show the American public a better strategy than ‘getting even?’
Nothing needed but to restore requirement for super-majority in Senate. And thanks for reminders of past confirmation votes. Founders clearly did not intend consequential decisions to be taken by an eyelash in the Upper Chamber
Our Supreme Court judges should be confirmed by a legislative body that represents the population of the United States. This is the method in all other western democracies.
To see how fragile our current situation is one need only look at the failure of reconstruction to see how quickly democracy as a real functioning system can vanish, with the combination of legislative action, election process subversion, a compliant court system and violence. Although we are not there yet, we are certainly "in the neighborhood" and the proposals put forward in the article need to have an addendum which takes into account the possibility that one of the partisans needed for a "bi-partisan" effort is acting entirely in bad faith with a view to holding on to power as a minoritarian party. Such maintaining of power is fundamentally inimical to democracy in which the will of a majority of citizens is supposed to be determinant. Failure to take this current situation into account in the analysis and the proposals is, unfortunately leaving out a critical component that needs to be addressed.
On it's face this is a very reasonable argument except that it is out of context. Donald Trump in conjunction with Mitch McConnell accelerated a long standing effort on the part of the Republican party to undermine the judiciary and make it into a partisan branch serving their party interests. This is now far more serious as Republican State Legislatures are currently passing bills that not only restrict the franchise but also undermine the mechanisms of implementing free and fair elections. This is evident in Georgia where the legislature can now remove State election boards whose decisions they don't like and replace them *after the election* with ones that are more compliant. The only defense to save the democratic process should they act in this way would be the courts, but if the courts have been undermined, as we have seen in Hungary and elsewhere, they will not serve this function and will permit democracy to be subverted. A realistic discussion of the pros and cons of altering the Supreme Court and indeed the Federal Judiciary generally has to include a discussion of the role of such change in the preservation of a democracy under threat. -- As an example one of the reasons we are able to have this discussion in Constitutional Democracy is due to Harry Reed's willingness to use the "nuclear option" to allow Obama's judicial selections to be confirmed without a super majority.
Liberal Democracies are dying across the globe, primarily because there is no longer any sort of representative republic that is actually able to stand up to the AI propaganda we all face every day. Even this wonderful publication, and I mean that with all my heart, is still giving me more what I want to read than a fully authentic counter argument that makes me question my own biased perspectives. There are only two solutions to the angry unreasonable faction-based government we now have. Neither solution is terribly good: Either let us have a democracy of animal passion or give us an autocracy that eliminates liberty entirely. The dream we have here, is somehow a just Supreme Court might be guided by reason rather than factional passion, and perhaps pull us from the brink. But if Biden foolishly packs the court the same factions now destroying liberal democracies everywhere will merely be accelerated to destroy the Supreme Court our last hope of a reasonable branch of republican democracy left in America. Raw democracy allows the majority to eat the minority; autocracy allows the ruling class to eat us all. Court packing is equivalent to a purely factional government, which means the elimination of any reasonable representative republic. Who will eat you?
Expand it to 33 seats, vastly increase the number of cases it can review, establish a board that both filters incoming cases and randomly assigns justices to hear them.
Would take all of the value of the body as a partisan tool from SCOTUS, and would do much to return Congress to an active state.
I think there's an additional reason why the supreme court has become increasingly politicized: dysfunction in the legislative branch. Because congress has significant incentives to ensure that no one gets a victory, it rarely accomplishes anything meaningful outside emergencies. That leaves the other two branches of government as avenues for change, so we have a politicized judiciary and an ever-more-powerful executive.
Thank you for this common sense article, and for your willingness to go on record with your point of view, Professor. It's kind of rare these days.
"A far better plan would be to reform the courts in a bipartisan way, perhaps by expanding the federal bench as a whole and restoring the filibuster for judicial appointments."
And how would that "bipartisan" thing work exactly? Over my lifetime, I've gone from believing the SCOTUS was a fairly neutral branch of government to one being run for the benefit of the Republican Party, starting explicitly with Bush v Gore, 2000.
Your ideas, if implemented could work, but let's be realistic. Mitch McConnell and the rest of his caucus (Republican, GQP, insurrectionists) have no intention of doing anything you ask and I am tired of being held hostage by a religious minority. Expand the court.
Senate Majority Leader Mitch McConnell refused to hold a hearing on President Obama’s nominee, Merrick Garland. Should Dems go tit for tat with Reps? Or can they show the American public a better strategy than ‘getting even?’
Nothing needed but to restore requirement for super-majority in Senate. And thanks for reminders of past confirmation votes. Founders clearly did not intend consequential decisions to be taken by an eyelash in the Upper Chamber
Our Supreme Court judges should be confirmed by a legislative body that represents the population of the United States. This is the method in all other western democracies.
To see how fragile our current situation is one need only look at the failure of reconstruction to see how quickly democracy as a real functioning system can vanish, with the combination of legislative action, election process subversion, a compliant court system and violence. Although we are not there yet, we are certainly "in the neighborhood" and the proposals put forward in the article need to have an addendum which takes into account the possibility that one of the partisans needed for a "bi-partisan" effort is acting entirely in bad faith with a view to holding on to power as a minoritarian party. Such maintaining of power is fundamentally inimical to democracy in which the will of a majority of citizens is supposed to be determinant. Failure to take this current situation into account in the analysis and the proposals is, unfortunately leaving out a critical component that needs to be addressed.
On it's face this is a very reasonable argument except that it is out of context. Donald Trump in conjunction with Mitch McConnell accelerated a long standing effort on the part of the Republican party to undermine the judiciary and make it into a partisan branch serving their party interests. This is now far more serious as Republican State Legislatures are currently passing bills that not only restrict the franchise but also undermine the mechanisms of implementing free and fair elections. This is evident in Georgia where the legislature can now remove State election boards whose decisions they don't like and replace them *after the election* with ones that are more compliant. The only defense to save the democratic process should they act in this way would be the courts, but if the courts have been undermined, as we have seen in Hungary and elsewhere, they will not serve this function and will permit democracy to be subverted. A realistic discussion of the pros and cons of altering the Supreme Court and indeed the Federal Judiciary generally has to include a discussion of the role of such change in the preservation of a democracy under threat. -- As an example one of the reasons we are able to have this discussion in Constitutional Democracy is due to Harry Reed's willingness to use the "nuclear option" to allow Obama's judicial selections to be confirmed without a super majority.
Liberal Democracies are dying across the globe, primarily because there is no longer any sort of representative republic that is actually able to stand up to the AI propaganda we all face every day. Even this wonderful publication, and I mean that with all my heart, is still giving me more what I want to read than a fully authentic counter argument that makes me question my own biased perspectives. There are only two solutions to the angry unreasonable faction-based government we now have. Neither solution is terribly good: Either let us have a democracy of animal passion or give us an autocracy that eliminates liberty entirely. The dream we have here, is somehow a just Supreme Court might be guided by reason rather than factional passion, and perhaps pull us from the brink. But if Biden foolishly packs the court the same factions now destroying liberal democracies everywhere will merely be accelerated to destroy the Supreme Court our last hope of a reasonable branch of republican democracy left in America. Raw democracy allows the majority to eat the minority; autocracy allows the ruling class to eat us all. Court packing is equivalent to a purely factional government, which means the elimination of any reasonable representative republic. Who will eat you?
Expand it to 33 seats, vastly increase the number of cases it can review, establish a board that both filters incoming cases and randomly assigns justices to hear them.
Would take all of the value of the body as a partisan tool from SCOTUS, and would do much to return Congress to an active state.