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Pack the Supreme Court! The latest rallying cry of #TheResistance

Pack the Supreme Court! The latest rallying cry of #TheResistance

If they regain control of government, they want to expand the size of SCOTUS to install a liberal majority.

The left knows there is virtually nothing Democrats can do to prevent Trump from carrying out his second appointment to the Supreme Court, so they’re thinking outside the box.

How can they retake the majority? Just change the rules once they’re back in power.

Harry Cheadle writes at Vice:

The ‘Neutron Option’ Democrats Could Use to Retake the Supreme Court

A political scientist has a radical proposal to pack the court and create a new majority of liberal justices.

David Faris has a way to cheer frustrated liberals up—and maybe scare the hell out of everyone else. The Chicago-based political science professor came out with a book this spring called It’s Time to Fight Dirty that imagines a variety of extreme hardball tactics Democrats can employ if they gain power in 2020 to ensure Republicans won’t be able to stop their agenda. For Faris, getting rid of the filibuster that allows a Senate minority to block most legislation (a.k.a. the “nuclear option”) is just the start: He’s talking about shit like breaking up California into seven states and doubling the size of the House of Representatives. But he told me that the section of the book he “had a sleepless night over” was a chapter about what he called the “neutron option for the Supreme Court.”

That would involve first proposing a constitutional amendment to end lifetime tenure on the court and pushing a proposal to let each president pick two justices per term, a compromise that Faris hopes would “end the court wars.” He suspects Republicans wouldn’t go for that, however, so he’d advise the next Democratic president to just “pack” the court as FDR tried to do in 1937 before Congress rose up against him and prevented it. That would involve passing a bill to expand the size of the court and allowing the president to appoint however many justices would be needed to create a new liberal majority, with the friendly Senate signing off on any appointee. (This would be legal, Faris points out, because there’s nothing in the Constitution stipulating the size of the court, which has in fact fluctuated in the past.)

Sounds crazy, right? Not to this member of the faculty at Harvard Law:

Or this member of the faculty at Fordham Law:

Allahpundit of Hot Air, to whom I owe a hat tip for this story, makes this point:

Calling for Court-packing when it’s *the other party* that’s momentarily in position to follow through — and that’s favored to build on its Senate majority this fall — is a strange impulse. It’s understandable as a tantrum borne of frustration that the Court’s about to swing further right but bananas as a semi-serious idea, especially with a loose cannon like Trump in charge. A President Romney or McCain wouldn’t have entertained the idea of Court-packing for an instant. President Trump, though? All McConnell would need to tell him is that Democrats don’t think he has the balls to do it. He’ll be tweeting about it tomorrow.

The always level-headed Ed Morrissey provides a fix for all this:

If you think the left looks crazier by the day, you’re not alone, just remember much of this lunacy is being driven by desperation.


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It’s pillow talk for the progressives. But.. I would enjoy it if the President talks about it this matter… that the left is frustrated and they want to pack the court. Then say.. ” you know what folks? Maybe we should do that now then and put 7 more conservatives on while we have the votes! Hahaha. That would kill all of this packing speculation.

rabid wombat | July 1, 2018 at 12:21 pm

The D’s have no use for historical norms, rules, or practice. It is all about power and control, POWER AND CONTROL.

“A President under investigation for impeachment has never…”

I don’t see how that is relevant, since Trump is not currently under investigation for impeachmentt.

This fool is apparently still operating under the fake news assumptions that: 1. Mueller will find or make something up, 2. The Democrats will win back the house and be able to impeach trump.

He is unhinged now, but imagine how flustered he will he be when the elections are over and Mueller has passed into irrelevance.

    oldgoat36 in reply to Dr. Ransom. | July 1, 2018 at 7:01 pm

    Or the dreamed of “blue wave”, which is highly unlikely given the numbers they have to gain, turns pinkish, where the Republicans gain seats… oh the horror… and then the Republicans pack the SCOTUS with additional judges, (it was FDR who wanted to do just this to push his new deal if it was challenged – should have been – and appointing judges was his back up plan to make sure any challenges would be ended.) I wonder what the plan would be then, wait till 2024 and add a hundred SCOTUS justices to make America left again?

    DaveGinOly in reply to Dr. Ransom. | July 1, 2018 at 7:34 pm

    “A president under investigation for impeachment has never appointed a Justice. Not Nixon, not Clinton, not Andrew Johnson. Never.”

    Has a president under (credible) threat of impeachment, or already impeached, had an opportunity to nominate a person for a SCOTUS seat? The OP of this thread probably thinks the fact this has never been done is an indication of precedent or tradition, but neither Nixon nor Clinton had opportunities to nominate anyone to SCOTUS when they had their (second term) problems, and Johnson didn’t have the opportunity at all. So this apparent traditional prohibition on the nomination of SCOTUS justices by teetering administrations is just a figment of the OP’s over-active imagination.

This is even weirder than it seems at first glance.

Proposing a scheme to put one party permanently in power (which is what this amounts to) is suicidal, if it’s proposed when the other party is in power and in a position to do it first.

Which implies that it’s not serious, and some unknown is just looking for publicity for an upcoming book tour.

    Gremlin1974 in reply to tom_swift. | July 1, 2018 at 12:58 pm

    Tom their entire way of thinking is suicidal for our country, remember they don’t really care about ideas, people, or civility unless it furthers their power and they will embrace anything that has a chance to do so.

    Why the panic, because a SCOTUS that has a majority that relies on the actual law and not feelings and opinions will stall their power advance for the next 20 years.

    MaggotAtBroadAndWall in reply to tom_swift. | July 1, 2018 at 1:47 pm

    Elected Democrats have not proposed this. Or endorsed it. It’s just a bunch of academic flakes and hyper-partisan hacks.

    Of course, if someone at The Federalist Society made a similar proposal to do it now – with Trump as president and the Senate in Republican hands – the media would ask every Republican Senator in a swing state for comment.

    We’ll see how Manchin, Heitkamp, Donnelly, Tester, and McCaskill respond.

    Just kidding.

Act of congress and all that. Presumably the Demorats would nuke the filibuster for regular order legislation. Can you imagine the alternative of a Demorat super majority?

In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing anyone new to the court. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since.

    Gremlin1974 in reply to Freed Serf. | July 1, 2018 at 1:00 pm

    Humm, well they are screaming that Roe vs. Wade is settled law and has been for 45 years, so I am guessing that this should be settled law since it has been the same for more than 100 years, lol.

If they were to get away with this in time SCOTUS would have as manny members as the Senate plus one.

Gremlin1974 | July 1, 2018 at 1:18 pm

I have a theory regarding the panic and wanted to see what my fellow travelers here at LI thought about it.

I think that Kennedy’s retirement isn’t the main source of the panic, sure its not what they want but it’s not like no decisions will ever go their way for the next 40 years. Especially since I think Roberts will become the swing vote much as he was on Obamacare.

What I think is causing the actual panic is the realization that with this appointment the chances of Trump getting to appoint a 3rd Justice have just risen significantly, since 2 of the liberal Justices are nearing or past traditional retirement age.

RGB is 85 and has a history of severe medical problems. There have been rumors that she wanted to retire “when” Hillary won, but changed those plans. She has been on the court since 1993.

Breyer will turn 80 in August of this year. He has been pretty healthy. He has been on the court since 1994.

The only justice that has been on the court longer than these 2 (besides Kennedy) is Thomas but he is also 10 – 15 years younger than either of these 2.

With the current average age for the past few justices retirement being 80 with a service time of 27 years (according to Business insider), and with RGB being a frail 85. The chances are actually pretty good that trump may get a 3rd pick even before his first term is over.

Combine this with, at least in my view a lack of confidence on the left of actually retaking either house in 2018 (regardless of false bravado) and you get a nightmare for the left. A SCOTUS with a 6 – 3 split for the next 30 years. I think that is driving the panic more than the thought of a 5 – 4 right leaning court.


Here’s a proposal. Have Senate Republicans propose a bill that limits the Supreme Court to nine justices, and dare Democrats to filibuster it. In late October. Should be a clarifying experience.

I don’t see the point of this. Why would the Ds bother trying to filibuster it, when it wouldn’t change anything. Current law already sets the court at 9 members. The D’s proposal is to change that law at some future time when they have the numbers to do so. Passing another law that says the same as the current one would do nothing to prevent that. Now if you made it a constitutional amendment, then they might have reason to object.

    Barry in reply to Milhouse. | July 1, 2018 at 3:21 pm

    “I don’t see the point of this.”

    Then you haven’t thought it through.
    Think political, not legal, and see if you can find the point.

      Milhouse in reply to Barry. | July 1, 2018 at 6:56 pm

      I am thinking politically. Why would the Dems lift a finger or say a word to oppose it? How would it hinder them in any way? The proposed bill would pass unanimously and thus attract no attention whatsoever. So what would be the point of introducing it?

        Barry in reply to Milhouse. | July 1, 2018 at 11:04 pm

        It would put them on record affirming the current number, or tell the current politicians its OK to expand it.

        Not that it will happen, nor would I be in favor of it. The progs never use logic, their support doesn’t care if they say one thing today and something else tomorrow.

        It would be cute politically however.

          Milhouse in reply to Barry. | July 2, 2018 at 2:25 am

          It would put them on record affirming the current number,

          So? The current number is the current number, and they don’t want it changed just now, so of course they would support keeping it the same. How would that prevent them from changing it when and if they ever have the numbers to do so?

DouglasJBender | July 1, 2018 at 2:00 pm

The Supreme Court is the same entity that legalized abortion. They have no moral authority whatsoever.

    Milhouse in reply to DouglasJBender. | July 1, 2018 at 6:57 pm

    Nobody has ever claimed it has moral authority. But it certainly has legal authority.

    oldgoat36 in reply to DouglasJBender. | July 1, 2018 at 7:26 pm

    I think far too much power has been given to the SCOTUS, while they are the legal branch, they don’t have the power to stop a President from ignoring their ruling, though it seems the left believes they have the last word.

    When we have three branches which are supposed to be checks and balances, it seems odd that the SCOTUS rulings are “more equal” than the executive branch, especially in cases decided by a one vote margin.

    I believe the SCOTUS got it wrong with Roe v. Wade, which is the sacred cow of the left. This should have been left to the state to decide. Same with Same Sex Marriage. They are supposed to decide based on things being allowed by the Constitution, not arbitrary decisions such as these were, which affect the whole nation and yet have nothing within the Constitution to allow it. The Constitution is a “negative” document, which Obama lamented, because it sets limits on government, not the other way around as he had wanted.

The funniest thing should be that when Trump gets reelected he announced that this talk of expanding the SCOTUS makes sense and that he would move to add two seats. Watch the heads exploded, especially since Bryer or Ginsburg are likely to retire/croak by then.

But I was looking at the picture and thought “that looks like too many”. Then I realized that Trump was in the middle and ionspiration took me over.

Expanding to eleven would take a couple of years. Adding the tenth would take a bit more, so in his seventh year Trump could appoint himself to the SCOTUS, resigning effective his Presidency effective the date of swearing in. Leaving Pense as a incumbent eligible for two terms.

Watch heads explode then.

    Barry in reply to RodFC. | July 1, 2018 at 10:54 pm

    “so in his seventh year Trump could appoint himself to the SCOTUS”

    The president could nominate himself. Getting the votes in the senate…

    Now, were he do it today, the senate just might approve to get rid of him. 🙂

They should be careful what they wish for.

Roosevelt tried the same:

President Franklin Roosevelt attempted to convince Congress to pass legislation that would allow a new justice to be added to the court—for a total of up to 15 members—for every justice over 70 who opted not to retire. Congress didn’t go for FDR’s plan.

We (Trump) should pack the court. A good idea is a good idea.

    oldgoat36 in reply to | July 1, 2018 at 7:31 pm

    FDR feared the SCOTUS would overturn his New Deal, though it wasn’t challenged. FDR was concerned his signature moves, (kind of like Obama), would be erased should they be challenged and brought before the SCOTUS. That was the impetus behind his trying to change the number of justices, to stack the deck being he would be the one to make the nominations, thereby ensuring challenges to his New Deal would be decided “his way”.

Albigensian | July 1, 2018 at 3:10 pm

The logical conclusion might be that if the party in power packed the court then when they were out of power the party in power would super-pack the court, until the party out of ;power super-super packed the court, and …??

Perhaps in time the Supreme Court would contain more members than the House of Representatives.

It really doesn’t matter if Republicans “pack” the court. If/when the left regains control of the other two branches, they’ll do whatever is necessary to either regain control of the court or put it back into its proper place as the weakest branch simply by overruling or ignoring any ruling they don’t like. How could the court enforce their will? In the meantime, I would suggest that every conservative member be provided with 24 hour security. We don’t need any more Scalias.

    We also need a bill from Congress limiting the court to nine.

    In that same bill, revoke obamacare.

      As another commenter pointed out, the law already limits the number to 9. Another law to that effect wouldn’t mean anything, not only because it would be redundant, but because it could simply be replaced by another piece of legislation. The only way to cement the number is via constitutional amendment, and that ain’t gonna happen, IMHO.

I’m with Popehat.

How unbelievably stupid do you have to be to announce you’re going to pack the courts when the OTHER side is in power?

The reason to broadcast the idea (by a small number of outlier Democrat leader-wannabes) is the get the Republicans to jump and use it as proof that the Republicans are not to be trusted with the courts.

Subotai Bahadur | July 1, 2018 at 5:39 pm

This is a pretty good indicator that the Democrats, if ever returned to any semblance of power, will become dictators forever overturning the Constitution to remain in power. Which has interesting implications for those who have taken the Oath. Apparently, Democrats do not honor that Oath, which again has implications.

They are not the brightest lot to broadcast their sedition so widely.

Again, the menace of this creeping wannabe apotheosis of SCOTUS is worth noting. We really, really don’t want the federal government to become a novemvirate of unelected, lifetime judge-emperors who determine—all on their own, with no interference from outside parties, such as the executive, the legislature, or the citizenry—all government policy and laws. And all “In the Name of the Constitution” no matter how tenuous those emanations of penumbras may be. Shoot, just shorten “In the Name of the Constitution” to something like “SPQR” (just following precedent, there) and it will at least be easier to spell.

The next step, and not a terribly large one, would be to make this ennearchy (no, novemvirate is probably better) hereditary, thus eliminating the need for a President or Senate. Superficially that might seem like an improvement … certainly much less noisy than at present. But a government of the people, by the people, for the people, would have perished from the earth.

    oldgoat36 in reply to tom_swift. | July 1, 2018 at 7:38 pm

    Wouldn’t shock me if the leftists wanted to bring back a King, as some had wanted back right after the revolution.

    Nothing shouts leftists like regression while calling it “progress”.

Even the Dems, as loony as they are at the moment, are going to expand and pack the Court. Why, because if they do that, then the GOP can do the same thing if THEY get power. In fact, the GOP could, theoretically, do that right now. We could see a SCOTUS with more members than the 9th Circus. Once you open those floodgates, there is no end in sight. Then, of course, the number of justices can be reduced, as well. Traditionally, when this has happened, attrition was supposed to take care of that reduction.

    Barry in reply to Mac45. | July 1, 2018 at 10:58 pm

    “are not going to expand and pack the Court.”

    Assuming you left out the not,

    Don’t expect the loons to use logic in their calculations.

      Barry in reply to Barry. | July 1, 2018 at 11:00 pm

      Ouch, let’s try that again:

      “are not going to expand and pack the Court.”

      Assuming you left out the not,

      Don’t expect the loons to use logic in their calculations.

I am waiting for the Democrats to finally become honest in their efforts and submit a bill defining how one Democrat vote is equal to two Republican votes in all matters.

henrybowman | July 2, 2018 at 12:58 pm

(Ed Morrisey:) “Here’s a proposal. Have Senate Republicans propose a bill that limits the Supreme Court to nine justices…”

A bill.

For a constitutional deficiency.

A mutable, repealable bill.

What a maroon.