SCOTUS SUPERMAJORITY BLUES
Previously on Senseless Acts of Bloggery:
As for what happens next, that’s a whole other post and it’s going to take me a little time to get that written - and it seems that particular story is fast-moving. So I’m gonna need a little time on that.
So yeah, about that:
1. We already knew what Mitch McConnell was going to say about whether the Senate should be accepting SCOTUS nominations during an election year - i.e. literally the exact opposite of what he said in 2016 when Antonin Scalia passed away and Presidente Obama nominated Merrick Garland. It was so expected you can’t call it irony, or even a plot twist.
2. We also knew that at the end of the day, the rest of the GOP Senate would back Mitch up on it. Apparently it’s worth being lambasted as shameless opportunist hypocrites if they can get a SCOTUS supermajority - not least since at least some of them have put up with Trump for the last four years for that very purpose. If they don’t push this now, they’ll have sold their soul for nothing and they may not have an opportunity like this again.
3. I don’t have much to say about Amy Coney Barrett, except to say that, considering who else was on the shortlist, it could be a lot worse. But then that’s kind of like saying it’s better for a kaiju to destroy the city than Cthulhu.
If it helps, all those memes claiming The Handmaid’s Tale is based on People of Praise are apparently incorrect. (Short version: wrong ultraconservative Catholic splinter group.)
That said, the thing about SCOTUS (and this is important to remember) is that Supremes tend not to stick strictly to party lines, depending on the case before them and the legal arguments being made. I’m not saying ideology doesn’t matter - I’m saying it doesn’t produce a predictable result every time. In other words, having a political majority on the SCOTUS bench isn’t the rubber-stamp slam dunk everyone thinks it is. In the past year, SCOTUS has made quite a few decisions in favor of the liberal side of the case in question.
Granted, this was largely because conservative lawyers presented legally weak and sloppy arguments to make their case - which in turn was mainly because conservative lawyers went in thinking they were preaching to the choir and didn’t need to work hard because hey, it’s a 5-4 majority and two are Trump appointees, how can we possibly lose?
They lost because SCOTUS generally doesn’t work like that. To be sure, a justice’s political leanings do matter - but mainly in terms of interpretation of the law. At the end of the day, the law - and its applicability to the specific case - is what matters, not the outcome a judge might personally want. Sometimes the decision is based on technicalities (the current conservative SCOTUS team saved DACA because of sloppy paperwork).
That said, a 6-3 supermajority may well change that dynamic considerably.
4. We’ve had supermajorities before, of course. However, this particular supermajority is problematic for a couple of reasons.
One: everyone’s view of the role of SCOTUS has become increasingly politicized (i.e. most people think the role of SCOTUS is not to serve as a check against unconstitutional laws, but to settle political arguments), which is not good.
Two: This conservative supermajority is arriving in the broader context of an unhinged authoritarian POTUS who has gone out of his way to undermine the election process to ensure that he wins, and that the 40% of people who support him will accept no other result as legit.
Which means if Trump loses and refuses to step down (which is a distinct possibility), the inevitable court case will go before a SCOTUS with six conservative Supremes, three of which were appointed by Trump. That might not go the way he thinks. But if it does, SCOTUS will lose whatever legitimacy it has and Trump will be an authoritarian POTUS with a federal judicial system rigged in his favor. That’s a bad combination - unless yr part of the MAGA cult, I guess, then it’s the moment you’ve been waiting for all this time.
5. Assuming Barrett is confirmed (and it’s not yet clear just how the Demos could prevent it at this stage), the question for the Demos is: what now?
There are currently three possible Demo strategies being bandied about:
(1) Pack the court
(2) Term limits for Supremes (18 years is the most common suggestion, though there are others)
(3) Both.
6. Both are old ideas, and both are legal. I confess I’m not a fan of either strategy, but I think the court-packing option is the worst of the two for the reason mentioned above - i.e. SCOTUS is supposed to be politically independent. It’s not meant to represent the will of whatever party controls the White House and/or Congress.
To me, court-packing legitimizes the idea of SCOTUS as political-ideology enforcer because the whole point is to intentionally stack the odds in your favor. Yes, this has become the objective of SCOTUS nominations under the current system, but it’s much harder to do - unless, like Trump, you get lucky. (While we’re at it, let's admit if HRC was POTUS under the same conditions, you can bet we’d be having the same argument with everyone’s roles reversed.)
But let’s be clear - the intention of court-packing is to give the political party doing the packing control over SCOTUS. I’m not cool with that, even if (as mentioned above) the SCOTUS rulings aren’t as predictable as people seem to think.
Also, on a more practical level, if the Demos can expand the SCOTUS bench to 15 justices to give liberal judges a majority, the next GOP admin could come in and add 15 more, or knock it back down to nine, or six, or whatever. Where will it end?
7. Term limits are a better option, although I disagree with the argument that it would make nomination battles less political. If anything, it will make them more political. Still, the politicization issue is a much deeper-rooted problem that no reconfiguration of SCOTUS will fix.
Meanwhile, whether term limits would result in a more balanced bench seems to depend on the outcome of each election - if (say) the GOP wins the White House four times in a row, you’re looking at an 8-1 GOP-appointed bench that would take up to nine years to reverse. (Feel free to check my math, because I didn’t.)
Still, it's not a bad idea in itself. And if the Demos do resort to court-packing, I'd rather they make term limits part of that deal.
8. The thing is, any of these options require a Biden/Harris victory AND the Demos holding the House and retaking the Senate. If Trump wins, and/or the GOP holds the Senate, that’s not going to happen.
And as mentioned above, if Trump loses and refuses to step down, we’ve got far bigger problems.
Developing …
Judge dread,
This is dF
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