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 liked this idea from Mayor Pete when I heard him talking about it. So he got it from Yale Law? Interesting.

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Pete is the rarity, an open-minded Harvard man! 🙂

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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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You're committing a logical falacy here. Saying the court shouldn't "make it impossible to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities" is not the same thing as saying it should "ensure" those things. The whole point of the article is that courts should show discretion in interfering with legislatures. Of course the courts don't exist to ensure these things - legislatures do, and they should be allowed to do their jobs to the extent that they don't unduly infringe on individual liberties. Courts and judicial review exist to protect people's fundamental rights against the "tyranny of the majority" - not to overturn legislation which represents the will of the people and their prerogative to address matters of general concern to society.

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Perhaps "ensure" was inappropriate choice of words. We agree that "courts and judicial review exist to protect . . . . against "tyranny of the majority". However, courts also exist to honor the constitution, which means that sometimes the court should overturn legislation that represented the will of the people.

The article's suggesting that the court not stand in the way of the people's wills on these issues misses 2 points (a) it is not at all clear that there is as yet a common "will of the people" as regards climate change, universal healthcare, etc. and (b) "will-of-the-people" legislation may have unconstitutional features that warrant court overturning.

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As to point a), I think you should check some recent polls. I believe you will find that a strong majority of Americans do, in fact, support efforts to curb climate change. And while that may be a more recent development, the idea of *some* sort of "universal health care" has been wildly popular for some time. Yes, the details matter - people largely don't want Bernie Sanders' compulsory Medicare-for-all, but they generally do favor Medicare-for-more or Medicare-for-whomever-wants-it. And though it is definitely a reversal from the opinion of 10 years ago, Americans now do largely want to preserve the ACA.

As to point b), we both agree that the "will of the people", i.e. the majority, is not absolute. That's where people's rights come into play, which limits the laws that Congress and state legislatures can pass. Still, there's a broad universe of legitimate legislation since the Constitution prohibits rather than allows on this point. I'm willing to grant that Roe v. Wade may have been an overreach, and perhaps other decisions that liberals prize, if there is indeed no Constitutional basis for taking such things out of the hands of (or placing them in the hands of) legislatures. How do you feel about, say, "Citizens United"? Was that not an example of the courts invalidating a legitimate law with reasonable provisions to ensure more fair and democratic elections? Or "Rucho v. Common Cause": should the court really have been prevented from stepping in to prevent blatant abuse of legislative power to further entrench political power? Is there any way conservatives and liberals can come to agreements on what constitutes judicial overreach, independent of our desired political outcomes?

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On point a) climate change. Polling people on belief in / support for mitigation of climate change is notoriously tricky. It's like asking people whether they like apple pie. Nearly everyone says yes, until you tell them that it costs $1,000 a slice. Polls, e.g. https://www.nbcnews.com/news/us-news/more-americans-believe-global-warming-they-won-t-pay-much-n962001, indicate that folks aren't willing to pay more than ~$100/year to mitigate climate change. Support evaporates above that.

Similar polling finds that people support universal healthcare (when characterized in certain ways, e.g., covers pre-existing conditions and caps out-of-pocket), yet reject it when they learn that they'll loose access to their preferred corporate plan and choice of physician.

My personal views on Citizens United are quite conflicted, so I won't comment.

My general view is that the congress has abdicated way to much power to both the executive branch administrative authorities and to the federal courts. The former results in legislation by un-elected/mostly unaccountable administrators, the latter politicizes the judiciary. I'd much prefer that the supreme court circumscribe the rule making (aka legislative) authority of the executive administrative offices AND punt contentious political issues, e.g., abortion, same-sex marriage, back to the legislature - possibly to state legislatures. Nancy Pelosi's comment on the ACA - that "we need to pass it to learn what's in it" is a great example of abdicating lawmaking authority to the administrative branch. A court review of Chevron Deference would be nice.

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Agreed that the courts should "punt" on contentious issues. Just don't take it up at all. Let the voters decide.

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No, that is not his point. His point is, if they overide what is done legislatively, (as in, say, universal healthcare) THEN go ahead and appoint new judges.

It is not up to the judges to determine how we provide for the general welfare. It is up to the legislative body. If they can't refrain from undoing the will of the people, thru their representatives, then we need to reform the court.

There are other ways to reform the court besides packing it.

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I understood his point. Mine is that the "will of the people" does not always prevail. By your reasoning

(a) law = what the legislature passes (and Pres. approves),

(b) what the legislature passes = the will of the people, and

(c) the supreme court should never overturn the will of the people

Then there would be no purpose for the supreme court - as by definition all law is legitimate. What matters is not whether a law = "will-of-the-people", rather what matters is whether the law is constitutional.

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I understand. But my broader point is that they justices contort themselves to find things "unconstitutional" just because they don't like the politics of the party that passed the legislation.

Obamacare was, and is, constitutional. But so many right wing judges tried their hardest to find it "unconstitutional". They also tried it to undo social security and medicare the same way.

That is what is wrong.

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The Court exceeds its authority if it makes anything not barred by the Constitution "impossible." That includes legislation "to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities."

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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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Firstly, no, of course nobody here is required to argue for progressive causes. All points of view are welcome if they are made respectfully.

Second, I'll address the "implication that the Trump appointees are unqualified". Here I believe the author is referencing the federal judiciary, where the Trump administration has indeed appointed a number of judges who have been rated "unqualified" by the American Bar Association.

Thirdly, let's discuss "the obliviousness to the fact that it's the 'conservative' Justices who tend to vote according to their understanding of the Law". There have been plenty of decisions where the "liberal" justices have joined the "conservative" justices in a majority opinion (like the "gay wedding cake" decision). I don't know what the overall numbers are on this, but I would propose there is a tendency to perceive that the conservative justices are the more flexible ones because of the fact that there is a conservative majority, so that when a conservative "crosses sides" it is more likely to sway the decision and become a focus of attention. And I do know that there have been an overwhelming number of 5-4 splits in recent years (moreso than there have been historically) where the political leaning of each justice just happens to neatly align with their "understanding of the law".

Finally, as to "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" - this is an unfair representation of the argument being made here. The author is saying that if courts *fail* to leave political matters to the political branches and attempt, as you say, to "replace the legislature or adjudicate to order", then liberals should consider "packing the courts". Your overly general notion of "desired outcomes" obfuscates the distinction between questions of potential judicial overreach and the results of the laws that they may or may not overturn. The Affordable Care Act was not the result of a Supreme Court "outcome" - it was the result of legislation passed by Congress, and the Supreme Court (appropriately, in my view) declined to overrule it, because there was nothing "unconstitutional" about it. It is perfectly legitimate for the left to want to restructure the courts if they are failing to show deference to legislatures when they should. Conservatives have spent generations attempting to do just that for the sake of eliminating Roe v. Wade - which may indeed have been an example of judicial overreach (and the author accounts for this by proposing a shift to focusing on state legislatures). Of course, each side is ulitimately motivated by their desired legislative outcomes, but that should not prevent us from trying to come to some sort of a general consensus about the appropriate scope of the courts' power, and working to ensure a federal judiciary that embodies this consensus.

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I had understood the author to be referring to the Supreme Court alone, but I accept your proposition that "unqualified" was referring justifiably to the lower courts ("ill-gotten" seems wrong in any case).

Further, I concede that I should have written "tend to vote in lock-step". Thanks for the correction. For the numbers I refer you to Ilya Shapiro's article https://www.usatoday.com/story/opinion/2019/09/10/liberal-supreme-court-justices-vote-in-lockstep-not-the-conservative-justices-column/2028450001/. I'm no kind of expert on this, but I assume he is, and anyway the raw data is available.

Your final paragraph is eminently reasonable, but given that the author wrote "If the Court makes it impossible to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities, then—and only then—expand the number of justices to eleven," I can't square what you wrote with what he wrote. He's talking about outcomes, not jurisprudence. I suppose you can argue that "makes it impossible" means that the conservatives vote for certain outcomes regardless of the law or the facts, but I don't take that to be the plain meaning.

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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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The senate is representative of the citizens of their representative state in which they are elected democratically. They are not proportionately representative of the entire country. This was an intentional decision on the part of our constitutional framers who sought to protect against tyranny of a democratic majority. See Federalist Paper #62 for more on this topic.

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Yes, this is part of "American Exceptionalism". I would rather live in a full democracy...

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I understand your sentiment - but we do live in a democratic republic, not a pure democracy. To achieve your wish we'd need to eliminate all legislatures and live by ballot measure alone. Do you really think this is viable given the complexity of our society and limited citizen time and intellect to understand relevant issues?

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I agree that republican democracy is favorable to direct democracy, in that it frees the average citizen of the need to be well-versed and well-informed regarding numerous matters of civic interest.

But we shouldn't conflate this justification with the side effect of having disproportionate representation for different segments of the population. Yes, to some extent this will happen in a republic, and the Senate was indeed constructed as it was so that the interests of smaller states would not be overwhelmed by those of larger states. Yet I'm not sure the founders envisioned a 70-to-1 ratio between the populations of the largest and smallest states. Furthermore, they envisioned the Senate being more "detached" from the ear-to-the-ground politics of the House (hence the six year terms). The Senate was to be the more distinguished and "deliberative" body, and one more inclined to put politics aside when appropriate. They hoped that political parties would not come to dominate the Senate, and that it would value its own institutional authority and prerogatives over shared political goals with the executive. That is why they were given the task of advice and consent to Supreme Court nominees (and conducting impeachment trials). Needless to say, while at times the Senate has approached this ideal, it is far from it today.

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Note: the Electoral College was constructed to preserve slavery: Finkelman, "The proslavery origins of the Electoral College," Cardoza Law Review 23 (4) 2002.

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I agree with your points. Here's a thought. Rather than adding DC and Puerto Rico as states, how about splitting California north/south possibly coast and central/mountain, along with Texas into 3-4 blocks? While one can't easily 10x the population of WY, one can segment the larger states. This would decrease the 70-1 ratio.

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I'm not opposed to breaking up California and Texas, but seeing it as an alternative to adding Puerto Rico and DC as states is somewhat problematic.

Firstly, from an idealistic standpoint. As much as any of us might see these things in terms of political advantage for one party or the other (and I'm not going to deny that would be a significant part of my motivation and/or concern), ultimately I think we all understand that, ethically speaking, the interests of the people of these states and regions, specifically their rights to demand representation, must have primacy.

Much as I want to add DC and Puerto Rico as states to balance out things in the Senate, I wouldn't support any attempts to do so without the support of a clear majority of their people. To that end, support is overwhelming in DC, and nowadays there appears to be majority support in Puerto Rico (though we'll find out more in the November election).

As far as breaking up California and Texas, public support is questionable, and even if people agreed on doing so in principle to gain better Senate representation, I'm skeptical about finding agreement on how exactly to partition them. California has been subject to numerous such proposals in recent years, largely by frustrated conservatives and venture capitalist Tim Draper (his most recent attempt in California was a referendum which was slated for the 2018 ballot before being pulled by the California Supreme Court for review). As for Texas, there hasn't been any serious talk about it for a long time.

However, even with clear "consent of the governed", we still do have to deal with the practical issue of getting any proposal through Congress. Political scheming aside, to some extent you'd have to sell this to the public. And one would have to think that while adding PR and DC would likely be viewed as a matter of simple fairness to the average American (and not really worth bickering over in any case), breaking up our two largest states, the electoral bulwarks of our respective political parties, could potentially generate controversy to rival the filling of a Supreme Court vacancy.

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No, I do not think our citizens are any less able that Western European citizens. And I believe that the popular vote should determine who gets to be president. Our current system is not working. Living in California I feel cheated!

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People tend to want to change the rules not on principle or consideration of long-term consequences, but rather when they believe that doing so is in their current favor. The best recent example is Maj. Leader Reid removing the filibuster for federal court judges believing (mistakenly) that Democrats would control the senate and presidency for a long time to come. Here we are with Trump/McConnell having appointed/confirmed 218 new federal judges.

Some of the latest progressive thinking is to (a) eliminate the electoral college; (b) eliminate the senate filibuster completely; (c) admit 2 new state to effectively pack the senate; and (d) pack the court.

This thinking is buttressed by belief in the inevitable tide ("we're on the right side of history") and faith in perpetual growing democratic majorities. If history is any teacher, it took barely 1 election cycle (in 2010 and 2016) to dispel this thinking, yet people persist in these beliefs.

Do you really belief that this sort of thing is prudent - when the possible retaliation could be, for example, the segmenting of Texas into 10 new states? Or the further packing of the court?

PS: you shouldn't feel cheated living in California (as regards election of the president) because CA's electoral college count is proportionate of CA to national population.

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