Makes sense. I wonder if you've had a chance to read this article in the Yale Law Review urging a structural reform of the Supreme court not designed to re-balance by ideology but to buffer the court from existential battles in the Senate over every opening. Link: https://www.yalelawjournal.org/feature/how-to-save-the-supreme-court

Mayor Pete mentioned this idea frequently in his campaign, and it was always misrepresented as his willingness to "pack the court." Far from it. I think he was pointing toward a more lasting redesign of the court, so neither side would feel the need to pack the court in order to make it more fair.

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I agree in part. Though, I would argue that SCOTUS is not necessarily ‘preventing’ the enactment of healthcare, safety-net programs, and such based on ideological grounds. It seems that our respective views of the court’s proper role create the divergence we see today.

Depending on which political prism through which one sees the world, one will see the role of the court as more of an ‘injustice preventer’ or more as ‘constitutional guide rail’.

I am no right-winger but I do think the conservatives (and originalists) have the better of the argument here. The law should be applied according to its plain language and intent. It is the responsibility of congress to change it where needed (their failures to not do so are manifold in my opinion). The effective rule of law requires as much.

Viewing the court’s role as substantive (‘injustice prevention’) undermines the rule of law by muddling the respective roles of the branches of government and preventing the system of checks and balances from working properly. Essentially, the court becomes an extension of the legislature.

As far as I can tell, that (1) lets the legislature off the hook from doing their job by allowing the court to do it for them and, as a consequence, (2) politicizes the court in a way that undermines the rule of law by focusing on the end results of their rulings instead of the legal reasoning.

I am open to being proven wrong here and I hope someone takes me up on it!


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"If the Court makes it impossible to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities." ??????

Since when is it the responsibility of the court to ensure universal healthcare, redress climate change, and realize egalitarianism? Isn't this the job of the legislature?

This last claim makes a mockery of the author's prior argument to depoliticize the court.

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That this essay is a progressive writing to progressives is not, I assume, in contravention of any Persuasion rules -- I assume that the goal here is to promote a certain kind of political *process*, regardless of outcomes.

Still, that's no excuse for the inflammatory (and false) language it uses: The implication that the Trump appointees are unqualified, that the "conservative majority" (more on that in a moment) is "ill-gotten", and the general conclusion that, if the Court fails to produce the desired outcomes, *then* pack it -- essentially vitiating the claim that the Court should weigh in on politics from the outside, rather than replace the Legislature or adjudicate-to-order.

Add to this the obliviousness to the fact that it's the "conservative" Justices who tend to vote according to their understanding of the Law, rather than their socio-political leanings (as evidenced by the independence of their votes) and it's the "progressives" who vote in lock-step on socio-political issues, and the essay becomes something that doesn't seem to belong in Persuasion.

(And, just because it's something about which I know a little, the insult to Netanyahu -- while it would find ample support in Haaretz -- betrays a lack of awareness of the differences between the US and Israeli Supreme Courts.)

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This is probably the dumbest article I've read from Persuasion (and there's been more than a few). As a lawyer who studied under Derrick Bell, yet still acknowledges the overreach of many Critical Theorists, I am shocked and annoyed that this piece made it to my inbox today. We're not operating in a world of "shoulds" right now. We're in a genuine democratic and constitutional crisis, and conservatives / Republicans are supporting a wannabe demagogue, and not playing by any rules or norms. It's absolutely crazy to me that Mr. Walzer suggests the Left unilaterally disarm. What is his end goal? That we feign respect for an institution the other side has _ quite literally _ stolen from the American people?

I became a paying member of Persuasion so I could hear from a diverse group of intelligent voices discussing reality. Mr. Walzer's arguments are as weak and dangerous as any QAnon member's or Critical Theorist's. C'mon Persuasion team. You can do better...

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Would it not be simpler and sounder to legislate for maximum terms? Say sixteen years, which allows a (presumably) Democratic president to instantly fill two positions, and move to a 5-4 conservative majority, with a flip to 4-5 by the end of the term. Ditto for the appeals courts. It's silly to allow appeals judges to serve to their dotage, and everybody gets stale in a job after 12 to 15 years.

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I disagree that the left should wait on court reform. Court reform does not have to be packing the court, but could also be term limits, age restriction (they have to leave by age 65) and changing how the seats are appointed. I think we should go with what Mayor Pete was advocating...three justices appointed by Dems, three by Repubs and the last three chosen by the judges themselves.

Those last three would always be moderates. That would help keep the court safe from politics.

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The Supreme Court in the United States is undemocratic because justices are confirmed by a body, the Senate, which is not representative of the population. In every other western democracy judges are confirmed by a body that is representative of the population.

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