{"id":20447,"date":"2021-04-16T11:19:21","date_gmt":"2021-04-16T16:19:21","guid":{"rendered":"https:\/\/www.kith.org\/vardibidian\/?p=20447"},"modified":"2021-04-16T11:19:21","modified_gmt":"2021-04-16T16:19:21","slug":"court-packing-or-not","status":"publish","type":"post","link":"https:\/\/www.kith.org\/vardibidian\/2021\/04\/16\/court-packing-or-not\/","title":{"rendered":"Court-Packing, or not"},"content":{"rendered":" \r\n\r\n

Some legislators have begun the task of passing a revision to the Supreme Court bench<\/a>, raising the number of Justices to thirteen. This is both a reasonable political response to the current unfortunate state of the Court and also a terrible political move that will go no-where quickly. Plenty of analysis to read about both of those things, in more or less the usual places.\r\n

But I had a bit of a thought I hadn\u2019t seen before about the situation, so here it is:\r\n

At the moment, I think it\u2019s fair to say that the political \u2018center\u2019 of the Supreme Court is significantly to the right of the political \u2018center\u2019 of the country at large, keeping in mind the difficulty of determining what any of those words mean. But in the simplest of terms, the Democrat won the Presidential election pretty soundly, there\u2019s a slim Democratic majority in the House, an even split in the Senate, and many more people voted for Democrats than Republicans nationwide\u2014but six of the nine Justices are Republican-aligned.\r\n

But there is no real political momentum for \u2018packing\u2019 the court (by which I mean expanding it to re-center it with more Democratic-aligned Justices) and there won\u2019t be until the court makes some decision that is egregiously outside the mainstream of the country. As long as the Court nibbles at precedents, the Senate isn\u2019t going to be rewarded for chomping on them\u2014but if the Court takes a big enough bite, that would change. If he completely overturns (just f\u2019r\u2019ex) Roe v. Wade or Brown v. Board or even Obergefell v. Hodges, then<\/i> there is the possibility of people organizing to pack the court to get back what they lost.\r\n

And the thing is, presumably, the Chief Justice knows this. Right? Truly dimwitted people rarely get to be Chief Justice, and politically ignorant people perhaps even more rarely. So the Chief Justice is aware that there exists a boundary, within which decisions are probably safe for a good long while (until Justices are replaced through normal attrition). The Chief Justice may not, and probably would not, know precisely where that boundary is, but would know that it exists. And venturing outside that boundary would spark unpredictable politics that could, potentially, result in losing the majority on the Court and lots of decisions that the current majority would loathe.\r\n

It\u2019s a feedback system, innit? It\u2019s more or less the same Madisonian political system that drives the rest of the government, except that instead of relying on personal ambition, it relies on the Justices really caring about their interpretations of the Law remaining the most influential ones. And then choosing Justices who do care about that, of course. But the incentives are general, and don\u2019t really depend on who happens to be on the bench or in the White House or Speaker\u2019s chair.\r\n

It\u2019s certainly not a perfect system, and there\u2019s no guarantee it will work. I can easily imagine the current majority, for instance, deciding to roll the dice on some issue that is of overpowering importance to them\u2014probably relating to pregnancy, but possibly to some other matter that connects with their religious beliefs. And, obviously, there\u2019s a lot of damage they can and will do to our government and our nation while staying well within the political mainstream. We may yet wind up court-packing at that level. But there are reasons why we might not.\r\n

A couple of additional points, since I\u2019m rambling. One is that the Democrats in the Legislature should absolutely be moving to increase the number of federal judges on the lower level. They would face no real political penalty for doing that, and would rebalance the Senate having blocked the Previous Democratic President\u2019s nominations. And, while I\u2019m not an expert, I\u2019ve read that the workload for federal judges actually would justify there being more of them, anyway.\r\n

On a different related point: it\u2019s not clear to me what role activists can usefully play at this point. Support the current expansion proposal to lay the groundwork for possible future expansion? Spotlight the decisions of the current Court to highlight the damage already being done? Focus on the potential damage of overturning a few important cases to stake out where the boundary is? Those all sound useful in various ways, but there are limited resources and everyone has a limited attention span, so everything<\/i> isn\u2019t so much an option.\r\n

Tolerabimus quod tolerare debemus,<\/I>
-Vardibidian.\r\n\r\n","protected":false},"excerpt":{"rendered":"In Which Your Humble Blogger muses about the system and its incentives.","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[202,204],"tags":[],"class_list":["post-20447","post","type-post","status-publish","format-standard","hentry","category-news-item","category-politics"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/posts\/20447","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/comments?post=20447"}],"version-history":[{"count":3,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/posts\/20447\/revisions"}],"predecessor-version":[{"id":20450,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/posts\/20447\/revisions\/20450"}],"wp:attachment":[{"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/media?parent=20447"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/categories?post=20447"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/tags?post=20447"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}