Why would the party with a favorable court feel the need to pack it?
Packing the court would not require amending the Constitution. On the other hand, refusal by the Senate to consider a SCOTUS nominee would (in theory at least).
They could pack the court to build a large young majority, then (regarding the amendment possibility) place a limit on the size.
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I can’t read the article (not unblocking ads for them). Can you give me the case it talks about?
There are several. I can cut and paste.
Great insights…
This really explains how SC Justices at times tend to “disappoint” their base. (Just the other day, I heard some Conservative Pundit on FOX railing about how “We will not be fooled with another Souter!”)
I pose a question to you @mertdawg (and others…)
While it may be against out Tribal nature; doesn’t what you suggest mean that we are, at worst, best off as a Nation having a Court that is split?
Yet Scalia’s commitment to his jurisprudence led him to write many important liberal opinions, although they are less well-known than his conservative decisions, with their often provocative language.
In criminal cases, Scalia was the court’s leading protector of defendants’ rights under the confrontation clause. Because the testimony had not been subject to cross-examination, he disallowed the use of previous grand jury testimony by a witness who was unavailable at trial. He prevented screens to shield child witnesses in child abuse cases from seeing their alleged abusers. Likewise, Scalia was liberal in his interpretation of the double jeopardy clause and the prohibition against ex post facto judicial decisions under the due process clause. He insisted that indictments, to be valid, list all the elements of a crime, and consistently relied on the rule of lenity, which requires criminal statutes to be clear before they are enforced against a defendant. He also broadly supported the right to trial by jury in civil cases, protected by the Seventh Amendment.
Scalia took a similarly liberal approach on questions of what constitutes an unreasonable search or seizure. He protected homes from searches by heat-detectors seeking signs of marijuana plants or dogs sniffing around a house to detect narcotics. He dissented when the court upheld the taking of a DNA sample from the mouth of someone arrested on one offense and then charged with another crime based on a DNA match. Invasive searches to detect the commission of other crimes, he said, violated the Fourth Amendment and due process. He insisted that any interference with personal property by law-enforcement officers amounted to a search that required a warrant or exigent circumstances, such as when the police affixed a GPS device on a suspect’s car without a warrant.
When it came to the Sixth Amendment’s right to trial by jury, Scalia once again was a leader of the liberal position. He insisted that juries, not judges, make the critical decision of whether an action amounted to a hate crime, and therefore was subject to more severe punishment. Scalia made the powerful point that judges were part of the state, and that trial by jury was designed to protect Americans from the state.
On matters involving the First Amendment, Scalia advocated a broad scope for freedom of speech. Notwithstanding Trump’s argument that flag-burners should be subject to criminal prosecution, Scalia joined the opinion of liberal justice William Brennan striking down laws making flag desecration a crime as unconstitutional. He wrote his own opinion striking down a law prohibiting cross-burning that intimidated African Americans. Scalia’s First Amendment prohibited making distinctions based on the content of a statement. He opposed extending the limited protections afforded obscenity to animal cruelty and violence on First Amendment grounds. However, to the dismay of many liberals, he rejected all attempts by those who sought to curtail the influence of money in politics by voting to hold all limitations on campaign contributions and spending unconstitutional under the First Amendment’s right to freedom of speech.
When the time comes to evaluate Trump’s nominee to the Supreme Court, we should not be misled by statements that he or she is a conservative in the mold of Scalia. The reality is much more nuanced. The odds are that we are going to have a nominee who not only follows Scalia’s conservative opinions, but also rejects his liberal ones. In short, the court without Scalia is likely to be a lot worse than the one with him still serving.
By David M. Dorsen
January 26, 2017
Washington Post
(P.S. can you explain to me why you can’t read the article?)
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Another fascinating point.
That was pasted from the article. I need to cite.
To me, those aren’t liberal decisions. They are protecting people from the government, limiting governmental powers.
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From the Vox article: "It’s not hard to see why political scientists taking a more international view would see court-packing as, on its face, a threat to democratic institutions. As Huq and Ginsburg note, court-packing is a frequently used tool in the toolkit of would-be authoritarians.
To give a few examples:
In 2004, Hugo Chavez’s allies in the National Assembly of Venezuela expanded the Supreme Court from 20 members to 32 and packed it with Chavez loyalists.
In 1946-47, Argentina’s populist president and former military coup conspirator Juan Perón successfully impeached four out of the country’s five Supreme Court justices in a bid to consolidate power.
In 1989, Argentine President Carlos Menem, fearing Supreme Court opposition to his privatization schemes, expanded the court from five to nine members and packed it with sympathetic judges.
In 2012, Juan Orlando Hernandez, then the president of Honduras’s National Congress and today the increasingly dictatorial country’s right-wing president, conspired to sack four of the five Supreme Court justices and replace them with his allies.
As part of Viktor Orban’s rise to power as Hungary’s dictator, in 2010 he and his Fidesz party amended the rules of Supreme Court appointment so that the opposition no longer had to assent to nominees; in 2011 they expanded the number of judges from 11 to 15; in 2012 and 2013 they expanded terms on the bench from nine to 12 years and eliminated the 70-year age limit previously in place. These moves, together, resulted in 11 out of 15 judges being Fidesz loyalists.
Poland’s authoritarian nationalist Law and Justice party in 2017 seized control over the Supreme Court by pushing legislation that gives the ruling party the ability to appoint new judges and the power to dismiss judges below a certain retirement age (which happens to disproportionately enable the dismissal of judges critical of the Law and Justice party). In the wake of massive public opposition, the president vetoed the legislation, only to accept a very similar bill months later. All this followed the party’s 2015 decision to not swear in judges appointed by their predecessors and to force a supermajority requirement on the court, effectively weakening it.
Among many other attempts to weaken the judiciary, Turkey’s authoritarian President Recep Tayyip Erdoğan, then the prime minister, in 2010 pushed through a referendum increasing the Constitutional Court’s size from 11 to 17 and enabling him and his loyalists to fill the new vacancies.
The pattern is clear: Court-packing is what autocrats do as they begin to consolidate their power. And it’s been a particularly popular method in the past couple decades. It’s not a thing of the past, and is currently used by the authoritarian backsliders (Orban, the Law and Justice party, Erdoğan) that people who worry about Trump’s anti-democratic tendencies compare him to."
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Gorsuch has already side with “the dems” on the court and against the Admin. I can see the threat and I do think we should be cognizant of it going forward, but this isn’t Honduras.
I think, like a lot of the media, Vox is oversimplifying the situations. There were a lot of other issues in Venezuela, Hungary, and Honduras to begin with.
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I actually see the Gorsuch decision as good reason to pump the brakes on court-packing. “Good” judges will (hopefully) rule on law rather than policy.
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Do you think he didn’t rule on the law in this case? Because, if he didn’t, then neither did the other majority Justices. Isn’t that a pretty big problem too?
No, I think he did! I’m saying he did the “right” thing (as far as my very limited understanding goes), and that there is less reason for “the other side” to need as drastic a measure as court-packing to counter the feared “conservative takeover”.
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Oh, okay, gotcha. I’m tracking now.
They were constitutionally and governmentally conservative (which in this case I would say IS “liberal” in the sense that appropriate conservatism is liberal), but my point here was that he did not side with the right wing activist position, which in these cases were not constitutionally or governmentally conservative. That is why I said that conservative justices tend to be more likely to go politically against the party on the right more than liberal justices are to go against the party on the left, because they tend to be constitutionally and governmentally conservative even when the political wing doesn’t want them to be.
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My guess is that Trump will pick whomever will fire-up the Base the most; and that most likely is the one who gives off the most anti-RvW “vibe”…(remember…Trump always goes with his “gut”…)
SCOTUS picks seem to be the only thing Trump really takes seriously. If he sticks to his GOP designated list like a good boy, everything should be fine.
That being said, if he doesn’t get a Roe v Wade rejection out of this, there’s gonna be a hella lot of Zebs wondering why the hell the GOP stomachs Trump so much.
Hopefully so, though I’m not his base as I didn’t vote for the man. But, I’ll take it!
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If we can get rid of abortion without something like the Civil War? Hell yes.
I may be hoping for too much. Other than the children being killed, someone is likely to hurt another.