Democrats to introduce legislation to expand Supreme Court | Hacker News Reader

Democrats to introduce legislation to expand Supreme Court

politico.com

22 pointskoolba36 comments

So the supreme court will become a parliament. In a sense it is the logical consequence of it shifting to making laws rather than enforcing the compliance to the constitution.

But that's also the death of a counter-power. And this should not be taken lightly. If you can take it over, the other side can too.

> So the supreme court will become a parliament.

It already is.

The whole notion of judicial review was from its conception a political tool.

My limited understanding of the history is that until recently (I think probably the 80s), supreme court judges were confirmed at a near unanimity. But then the supreme court decided to use the constitution as a tool to make changes that should be the realm of congress. And logically, appointment to the court became highly politicized.

The notion that the Supreme Court wasn’t political until the 1980s is an interpretation I’d rather strongly disagree with. Whether the Supreme Court was making rulings that were more properly the domain of Congress, well, that’s a matter of opinion at any point. The Dredd Scott decision, for instance, was decided on a political basis and was arguably an overstep for the Court.

>If you can take it over, the other side can too.

The Republicans already have. Remember Merrick Garland?

> the first legislation in recent years designed to add seats to the high court

The article bizarrely does not qualify "recent", but that's an understatement, to say the least. The court has been at 9 justices since 1869, and the most recent unsuccessful attempt to change it was in 1937. If successful, this would be the first change in size in 152 years.

https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_St...

I find this schtick to be incredibly shortsighted at best and stupid at worst.

If the Dems do this now, it gives the GOP cover to do the exact same thing in 4-8 years and the whole process will be repeated ad nauseam.

Too late for playing fair, the GOP threw down the gauntlet when they rammed through as many senators as they could on Trump's watch.

Exactly. Republicans realize politics is about attaining, preserving, and exerting power and they're mad that the Democrats are finally starting to figure this out after 40+ years.

I think we can all agree the current Supreme Court system is broken. It is completely based on 1) during what term a judge happens to die in. 2) wether the party controlling the senate will grant the president his constitutional right to appoint a judge. (So even if a judge dies before the term is over, they can just say nah let’s wait for the next guy)

Adding more judges would help a little because the random affect of a judge dying is smaller, though it’s still not a good long term fix.

A reasonable idea I've seen floated: Each presidential term gets exactly one new "seat" and the size of the court fluctuates between these additions and justices retiring. There's no reason it needs to be a fixed size.

It needs to be an odd number.

IMO, it ought to be an even number. It would help make the court less active and more (operationally) conservative by requiring them to have more consensus in their rulings.

The US Senate has a hard time passing new bills precisely because it reflects the growing ideological divide in this country. This should be a time for less activism and more consensus-building, not less.

Why? Justices recuse themselves in some cases, so ties are already possible. I believe the lower court ruling is upheld in those cases.

They recuse in some cases but not most. Given that all Justices are expected but not guaranteed to vote in cases, it makes the most sense to have an odd number to minimize the cases of ties.

Assuming the case is close enough that a tie is plausible. There are plenty of 9-0 and 7-2 decisions: https://www.washingtonpost.com/news/posteverything/wp/2018/0...

>The 5-to-4 decisions, by comparison, occurred in 19 percent of cases.

Is the problem that the wording of the constitution is so old its interpretation is so dependent on the political and personal leanings of the judges?

Judicial review was dreamt up by nervous federalists looking for a way to tie Jefferson’s hands. It is not so much a matter of it being unable to keep up as people not necessarily finding it desirable for it to work as designed anymore.

> wether the party controlling the senate will grant the president his constitutional right to appoint a judge

The president only has a right to nominate a judge. He needs the consent of the senate to appoint one. If the senate does not consent, no rights are being denied.

Yes, but that's not what happened in the salient case - they didn't say they believed the nominated judge was unsuitable and turned them down. They said it was inappropriate to even look at a nomination "so close" to the end of the president's term (an entire year).

>Senate Majority Leader Mitch McConnell said he would consider any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president

So the senate didn't give their consent, as is their right. But you think the reasoning (or, lets face it, excuse) behind withholding that consent was somehow unconstitutional?

It's not unconstitional. But neither is the proposal here. That's the problem: the rules allow a lot of things that are considered unfair and un-collegial. If that's successful, then eventually the tactics will be considered by the other side.

It's a political judgment call of whether it will be a net benefit to them. (My guess is that they'll conclude that packing the court is not but term limits for future nominations are.) But it will undoubtedly be constitutional -- and pushed as far as they think it can be.

That's true, but the statement I was addressing was

wether the party controlling the senate will grant the president his constitutional right to appoint a judge

Not granting someone their constitutional right can only be interpreted as claiming that doing so is unconstitutional.

Wow, 13 is just enough to give the democrats a majority on the court. Interesting.

The Supreme Court is an extremely political institution and it's nice to see the Democrats finally realize this. If the court had been 6-3 in favor of the Democrats, Republicans would have done this years ago.

> If the court had been 6-3 in favor of the Democrats, Republicans would have done this years ago.

History suggests the opposite. The only attempt was a democrat one.

https://www.weblinenews.com/wp-content/uploads/2016/02/supre...

Warren Court aside, the Supreme Court is typically more useful for conservative ends.

The purpose of the SC is widely understood to determine constitutionality. Interpreting the law is perhaps considered more "conservative", but that is good thing because Justices are unelected. Legislate (liberal, conservative, or otherwise) in Congress, not the SC.

Here in the practical world, being able to throw out legislation is naturally conservative and, besides that, structural forces make the Supreme Court more conservative than the electorate. The idea that the Court should rule in an impartial way is nice as a soundbite, but does not and has never really described how it operates.

Agreed, and there's nothing wrong with a judiciary being conservative, particularly since they're unelected and should not act in a manner which legislates. In a control theory sense, the judiciary is an example of feedback, which more naturally lends itself to the "conservative" mindset with its focus on refinement rather than expansion.

Anyone who thinks the SC shall be a beacon of impartiality doesn't understand that government is inherently political, the SC notwithstanding. Each Justice will sit on the bench with a particular lens. In that sense, the SC is most just when each Justice sees the world a bit differently with a distortion towards the legal documents themselves. I expect the expansion of seats will decrease a focus on legal documents and focus more on expanding the objectives of a particularly political organization, which abuses the judiciary.

I’m not persuaded that purportedly originalist judges who sit on the bench now are really doing what they say, rather than finding post hoc rationalizations for their preferred outcomes.

It is impossible to know, but I suspect the Garland nomination is the key factor that made this politically palatable.

In this hypothetical scenario we don’t know what precipitated the 6-3 majority.

Yeah extremely political with bias to Democrat, realize it? Supreme Court is biggest friend of Democrats because everything it does Unconstitutional.

If Biden "isn't a fan" of the idea then this legislation is DOA. There's better things reform can look at, starting with term limits. Lifetime appointments may have made sense in the 18th century, but now it doesn't make so much sense. Especially given the trend of appointing younger justices. I would suggest a 20 year term.

I would also suggest a Senate supermajority should be able to remove a justice at any time, without incurring the process of impeachment. If you can get 2/3 of the U.S. Senate to agree on anything then it must be something seriously impacting the country.

Finally, there needs to be the concept of a quorum. If enough justices aren't able to hear a case due to term expiration or reclusion, then the court can't hear the case at that time.

As always, the Devil is in the details.

This sort of thing might split the Union, so I completely support it.

Reply on news.ycombinator.com