I Was Reagan's Solicitor General. Here's What Biden Should Do With the Court.

[elleng]

Joe Biden should be open to enlarging the number of justices. But first, he should see if the conservative majority overplays its hand.

By Charles Fried

'Joe Biden got it exactly right in expressing an ambivalent openness to pushing for legislation — entirely constitutional — enlarging the number of Supreme Court justices, if Democrats win the presidency and the Senate in November.

Such a move would make blazingly clear what some of us hope is not quite true: that the court is a partisan political institution, a conception that would invite further rounds of enlargement in a different political moment.

But to paraphrase Churchill, such a maneuver is a bad idea, except for all the alternatives. Here the alternatives boil down to just one: a predictable, reactionary majority on the Supreme Court for perhaps as long as another generation.

I write reactionary, not conservative, because true conservative judges like John Marshall Harlan are incrementalists, not averse to change, respectful of precedent and unlikely to come into the grips of radical fantasies like eliminating or remaking the modern regulatory-administrative state.

But with the seemingly inevitable rise of Amy Coney Barrett to the court, this impending six- person majority is poised to take a constitutional wrecking ball to generations of Supreme Court doctrine — and not just in matters of reproductive choice.

Just look at the record. In the 2018 Janus labor law case, Justice Samuel Alito took the first long step to undoing years of legislation that allowed majority unions to compel not membership, but payment of dues — an arrangement first found constitutional by the Supreme Court in 1977. . .

The infamous Citizens United decision in 2010 — again in the name of the First Amendment — precluded meaningful legislation to discipline campaign finance commanded by rich and secretive forces. . .

In 2019, Chief Justice John Roberts — he of the “balls and strikes” — precluded on constitutional grounds judicial intervention to prevent blatant partisan gerrymandering. And he was the author of an uncompromising four-person dissent that would forever preclude referendum-installed, nonpartisan state commissions to redraw congressional districts, outside the power of state legislatures. . .

And perhaps most consequential of all, in 2013, Chief Justice Roberts invoked the irrelevant and arcane “equal footing doctrine” to invalidate a section of the Voting Rights Act, first enacted in 1965 and re-enacted as recently as 2006, which had been the bulwark against the gross voter suppression schemes that then immediately popped up and have wrought havoc in subsequent elections. . .

As for the few moderate decisions of the last few years — the citizenship question on the census, the health care mandate in the Affordable Care Act said to be a tax, the ban on LGBTQ employment discrimination — they can all be undone by legislation.

So there is a lot at stake. . .

But before going forth on any enlargement plan, a Biden administration would do well to see if the Supreme Court might not heed the lesson of history. Consider the well-known episode indelibly judged as President Franklin Roosevelt’s “failed” court packing plan. F.D.R. waited to propose his “Judicial Procedures Reform” legislation until 1937, after his first four years in office during which the reactionary Supreme Court majority relentlessly obstructed desperately needed experiments to combat the Great Depression.

F.D.R.’s move is viewed as a rare failure by a master politician. But was it? Immediately after unveiling his proposal, the court ruled 5 to 4 that the Wagner Act, restructuring American labor law and relations, was constitutional, and a spate of pro-New Deal decisions followed. The very threat of court packing and the passage of time made this “nuclear option” unnecessary.

Let’s see if the current Supreme Court majority overplays its hand. If it does, then Mr. Biden’s nuclear option might not only be necessary but it will be seen to be necessary.

But for now, let him not overplay his hand.'

https://www.nytimes.com/2020/10/19/opinion/biden-supreme-court.html?

[Bernardo de La Paz]

1. Interesting analysis. . . nt

[mopinko]

2. didnt blasey ford sue kavanaugh?

or am i misremembering?
get that fucker off the bench first.

[kurtcagle]

3. I agree

The election will determine how all of this falls out. Barrett is going to get selected in the next couple of weeks, because McConnell knows there is a good chance he will not have the numbers afterwards. It's also worth noting that Roberts is more concerned about the court's legacy under him, and I suspect that he will tend to vote more liberal just to compensate (I would also not completely rule out Kavanaugh as a moderate justice) if his voting patterns are any consideration to date.

[myccrider]

4. Interesting, but not sure I agree completely.

I think that the Democrats need to do something to depoliticize the SC as much as possible. We have relied to a large extent on norms to prevent the disaster McConnell et al have created.

The reasoning and proposals have to be very clear and obviously fair to all sides. That will decrease the resistance to the changes by showing that we crazy libs sincerely want the judiciary to be an objective arbiter of our laws. I have my own ideas about possible changes, but am open to anything that accomplishes the goal of reducing all the judicial nominations as political footballs.

I think that we can easily defend adding 2 justices to the SC by referencing the ‘cheating’ wrt Garland and whatzherface and as "rebalancing" not "packing" the court. Eventually, a larger number could be mandated by law, but instituted more gradually.

I liked the idea someone else suggested that would limit each SCJ to a finite term, 18 or 20 or 22 years, as a SCJ but then have them take up duties in lower courts until death or retirement. We need to expand the lower courts, too. It takes way too long to get cases adjudicated because of backlogs.

Just some thoughts.