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.
We have the political ability to expand the court, but not to expand the federal bench as a whole and restore filibuster for judicial appointments? Is there some procedural misapprehension I have that makes expanding the court easier?
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.
That's how it happens in the US too: the representatives of the people confirm Supreme Court justices.
However, I suspect you are implying that those representatives are not representative of the overall population. I don't believe that our constitution stipulates that they will or should be; it quite explicitly lays out a system where majority rule doesn't carry the day. I admit I'm deeply suspicious of arguments that advance the notion of majoritarianism, especially from progressives who seem to think that it's inevitable that they will remain in power forever. However, I think there are indeed structural problems with representation in congress; the House, at least, should have many more seats (there are pragmatic problems to be solved along that path, but we could solve them if we chose to do so) so that each member is far more accountable to a much smaller group of voters. However the founders of the country made the Senate explicitly representative of the states and not the populace as a whole. While a big part of the specific historical reason that was done (to protect slave states' power so they would actually sign on) was a horrific injustice, the reasons behind doing so (to ensure that the federal government was accountable to the states, so that states with large populations couldn't simply run roughshod over those with smaller populations -- a check on federal power) seem to me to hold some value. So on contentious and narrowly-decided issues, majorities cannot simply dictate. Perhaps our current dysfunction deserves re-evaluating some of those ideas, but I've yet to see a compelling argument that requires we undo this basic function. The fact that our parties cannot figure out how to compromise or moderate themselves to accomplish lesser deeds of significant value does mean the system is broken.
As for what all other western democracies may do, I don't think popularity is the best argument in favor of any policy or system. I could be swayed by an argument that their methods are better, but I'd have to see the argument.
You are right, I believe in majority rule, one person, one vote. I live in California and in the electoral college and the Senate my vote counts for very little. That is also true for the Supreme Court confirmations. I do not believe in minority rule for any reason. But under the current circumstances perhaps we should just make California into three states.
Your vote counting for little in the Senate is exactly the purpose of its design. The Senate represents the states by its very nature. By design, states with higher populations' votes count for less in the senate. If your argument is limited to "majorities should rule because it's just that every vote counts the same" I'm going to have to disagree (or, perhaps more accurately, remain unconvinced). Your argument is that our country's system of government is fundamentally ill-designed. To reflect those values, we have to throw out the Constitution and start over. I need a whole lot more and better argument before I'm willing to consider that.
Revise laws to mitigate gerrymandering? Very much in favor. Make DC and perhaps other territories a state? I can definitely be convinced; indeed, my thinking is that they should have been long ago (though perhaps another solution would be to add them to Virginia or Maryland in the case of DC). Increase the number of representatives in the House? Probably favor.
While our government was designed well to fit the 19th Century it does not fit the 20th or especially the 21 Century. Westerners who live in actual democracies can only laugh at our outmoded Republic (or most recently with Trump, many symbolically cried).
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.
We have the political ability to expand the court, but not to expand the federal bench as a whole and restore filibuster for judicial appointments? Is there some procedural misapprehension I have that makes expanding the court easier?
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.
That's how it happens in the US too: the representatives of the people confirm Supreme Court justices.
However, I suspect you are implying that those representatives are not representative of the overall population. I don't believe that our constitution stipulates that they will or should be; it quite explicitly lays out a system where majority rule doesn't carry the day. I admit I'm deeply suspicious of arguments that advance the notion of majoritarianism, especially from progressives who seem to think that it's inevitable that they will remain in power forever. However, I think there are indeed structural problems with representation in congress; the House, at least, should have many more seats (there are pragmatic problems to be solved along that path, but we could solve them if we chose to do so) so that each member is far more accountable to a much smaller group of voters. However the founders of the country made the Senate explicitly representative of the states and not the populace as a whole. While a big part of the specific historical reason that was done (to protect slave states' power so they would actually sign on) was a horrific injustice, the reasons behind doing so (to ensure that the federal government was accountable to the states, so that states with large populations couldn't simply run roughshod over those with smaller populations -- a check on federal power) seem to me to hold some value. So on contentious and narrowly-decided issues, majorities cannot simply dictate. Perhaps our current dysfunction deserves re-evaluating some of those ideas, but I've yet to see a compelling argument that requires we undo this basic function. The fact that our parties cannot figure out how to compromise or moderate themselves to accomplish lesser deeds of significant value does mean the system is broken.
As for what all other western democracies may do, I don't think popularity is the best argument in favor of any policy or system. I could be swayed by an argument that their methods are better, but I'd have to see the argument.
You are right, I believe in majority rule, one person, one vote. I live in California and in the electoral college and the Senate my vote counts for very little. That is also true for the Supreme Court confirmations. I do not believe in minority rule for any reason. But under the current circumstances perhaps we should just make California into three states.
Your vote counting for little in the Senate is exactly the purpose of its design. The Senate represents the states by its very nature. By design, states with higher populations' votes count for less in the senate. If your argument is limited to "majorities should rule because it's just that every vote counts the same" I'm going to have to disagree (or, perhaps more accurately, remain unconvinced). Your argument is that our country's system of government is fundamentally ill-designed. To reflect those values, we have to throw out the Constitution and start over. I need a whole lot more and better argument before I'm willing to consider that.
Revise laws to mitigate gerrymandering? Very much in favor. Make DC and perhaps other territories a state? I can definitely be convinced; indeed, my thinking is that they should have been long ago (though perhaps another solution would be to add them to Virginia or Maryland in the case of DC). Increase the number of representatives in the House? Probably favor.
While our government was designed well to fit the 19th Century it does not fit the 20th or especially the 21 Century. Westerners who live in actual democracies can only laugh at our outmoded Republic (or most recently with Trump, many symbolically cried).
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.