> Effectively, the Constitution is whatever 5 Supreme Court justices say it is
The Supreme Court is more defined by acts of Congress than by the Constitution. The Constitution is ultimately what the Congress says it is.
The Supreme Court is more defined by acts of Congress than by the Constitution. The Constitution is ultimately what the Congress says it is.
Also, nominees are purposely vague about how they would rule on future cases, sometimes to the consternation of the President who appointed them.
The confirmation aspect is one end, but Congress also has the power to impeach Supreme Court justices. So, theoretically, Congress could impeach all the justices that are believed to be acting in unconstitutional ways, and then refuse to confirm any new nominees that are believed would act similarly.
Far from theoretical. We got the New Deal because the Congress bullied the court.
[1] https://balkin.blogspot.com/2012/04/who-won-new-deal-confron...
This is the entire text of Article III [1]. Section 1, the part that concerns itself with the Supreme Court, is 64 words. That and the Appointments clause [2] are all the Constitution has to say about our entire judiciary.
Everything else is a creature of statute. Which means a simple majority of the House and Senate, together with the President, can change it.
[1] https://constitution.congress.gov/constitution/article-3/
[2] https://constitution.congress.gov/browse/essay/artII-S2-C2-3...
My point, though, was that the First Amendment, cited by the OP, is not necessarily going to stop this particular action, because as things stand now, barring a fundamental change in structure that nobody in the Congressional majority is currently proposing, the current Supreme Court decides what the First Amendment means, and the majority seems content to allow the current President to do basically anything he wants.
I mean yes, SCOTUS rules supreme until at least 2026. My point is Democrats have had two trifectas in the last 20 years. We used one to pass ACA. We wasted the second.
The idea that the current structure of SCOTUS is immutable has somehow become lore. It is not true. The Constitution is brief on the courts because it left constructing them to Congress.
1. I did not say that it was immutable.
2. There was actually quite a bit of public debate during the Biden administration about expanding the Supreme Court, which Biden himself explicitly rejected. So you're not telling me anything I didn't already know.
It's not as simple in that case because the Constitution requires a 2/3 vote in the Senate to remove, which cannot be overridden without an amendment. The nation is split pretty much 50/50 not 60/40, so a 50 vote threshold is easier to achieve.
Nope. The whole point is the Congress can restructure the Supreme Court in highly profound ways.
Shadow docket? The whole thing where the court chooses which cases it tries? The lack of a standard of ethics? These are not Constitutionally empowered. (Hell, the fact that the Supreme Court is a permanent bench of justices versus a rotating set chosen by lot for each case?)
Worst case I guess you need 60 votes in the Senate to remove.
Then change that rule. The sixty-vote threshold can be changed by the majority. They're literally chamber rules, not even statute.
> US population is living comfortably enough that they simply do not care about any of these things
I wouldn't say this. Americans care about pocketbook issues. Not democratic ideals. Not foreign policy.
It's not that simple, for a reason.
To abolish the Supreme Court, the Constitution itself would need to be changed. This requires a constitutional amendment, which requires much more than simply 60 senators and a majority in the house.
It's almost as if our country wasn't founded by complete morons - who had the insight to figure out that at some point in the future, it would be possible for morons to get a simple majority.
You can expand the supreme court with 60 senators - but that's only happened a handful of times (13 - 4 of which happened under FDR, 5 of which happened from 59-69, so 4 times outside of that, and only once since 79 after the 2008 meltdown).
Remember the nuclear option [1]? That was the Senate removing the 60% rule for judicial appointments.
("Originally, the Senate's rules did not provide for a procedure for the Senate to vote to end debate on a question so that it could be voted on, which opened the door to filibusters. In 1917, the Senate introduced a procedure to allow for ending debate (invoking cloture) with a two-thirds majority, later reduced in 1975 to three-fifths of the senators duly chosen and sworn (60 if there is no more than one vacancy).")
> To abolish the Supreme Court, the Constitution itself would need to be changed
To abolish, yes. To restructure, no. Again, § 1 of Article III and the Appointments Clause are everything the Constitution has to say about the supreme Court.
> You can expand the supreme court with 60 senators
You can expand it with 50. Nothing in the Constitution says anything about 60 Senators--the only time it requires a supermajority is in § 3 of Article I in respect of impeachments [2].
Senate rules say 60 Senators. A simple majority can amend the Senate's rules.
> You can expand the supreme court with 60 senators - but that's only happened a handful of times (13 - 4 of which happened under FDR, 5 of which happened from 59-69, so 4 times outside of that, and only once since 79 after the 2008 meltdown)
Nothing here is correct.
SCOTUS was expanded five times: 1801, undone in 1802, 1807, 1837 and 1863; then thinned in 1866 and 1867; then expanded again in 1869 [3]. FDR threatened to expand the court, but didn't. Nothing happened in 1979 or 2008.
Most of those votes did not occur with a supermajority (we literally don't even have the vote counts for many of them). None of them required 60 votes because during all of them the Senate had fewer than 100 members.
[1] https://en.wikipedia.org/wiki/Nuclear_option
[2] https://constitution.congress.gov/constitution/article-1/
[3] https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_St...
Judges are already randomly assigned to cases in practically every jurisdiction. You don't get to re-roll.
If you mean continuously re-rolling issues, that problem is preserved whether we choose by lot or by appointment. The difference is choosing by lot out of a large group makes it more difficult to stack.
Simpler: just use the appelate bench's 179 judges [1]. They become the "Judges of the supreme Court" [2]. (The only time a chief Justice is mentioned in the Constitution is when it pertains to impeachment (Art. 1 § 3). That could just be defined by statute as the longest-serving circuit judge.)
Every case is assigned 9 random judges. They decide whether to hear the case. If they pass, precedent stands. If not, they hear the case and write an opinion.
[1] https://en.wikipedia.org/wiki/List_of_current_United_States_...
[2] https://constitution.congress.gov/browse/essay/artII-S2-C2-3...
I've been making noise about this option but it doesn't seem to have entered even the online-politics-discussion mainstream yet. Everyone's like "expand the court" but I think both expanding it to match the count of circuits, and forming it by lot from lower courts each session (or multiple lots for a session—it might be good to at least have one group choose the cases, and a different one hear and rule on them) is a far more elegant solution and provides longer-lasting protection against problems, while also depoliticizing the reform to a degree (it wouldn't just be whoever's in control instantly gaining several justices) which I think makes it far more likely to actually be an achievable and durable reform.
It's even got a phase-in option that'd be immediately beneficial and also side-step any questions about whether an SC justice can be "demoted" to merely another federal judge: leave the current ones in place, start drawing the new seats by lot immediately. Existing justices' seats fall under the lot system as they come open. Done.
The SCOTUS majority has very clearly stated that they are starting with an originalist analysis for everything.