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Thread: Supreme Court Expansion

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    Default Supreme Court Expansion

    I really hope that we do not go the route of expanding the SC. Nine is enough, and expanding it should not be used as a counterbalance to the court drifting in any ideological direction.

    Sounds like this commission will recommend against expansion. It is too bad that even this debate has become "partisan" among even this panel of 36 (now 34) members (according to the reporting from the Examiner).

    I don't fault Biden for setting up the commission (this article calls it cynical), but I have a strong opinion about what is best in terms of maintaining the integrity of the independence (it ain't perfect, of course) of that body.

    No expansion.

    Term limits? I don't know (I haven't thought about it much). My inclination is no (again, no major changes), but what do you all think?

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    Last edited by TSherbs; October 17th, 2021 at 09:44 AM.

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    Default Re: Supreme Court Expansion

    Merrick Garland should have been able to be considered, so, we can blame the current problem on Mitch McConnell. He’s a scourge on democracy.

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    Default Re: Supreme Court Expansion

    The court has been expanded in the past long before MM.

    My question is, should the court be expanded now, again?

    It's your reply a yes, no, maybe?

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    Default Re: Supreme Court Expansion

    Oops

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    Default Re: Supreme Court Expansion

    My bad. Sorry for the rant. I agree, no expansion. However, McConnell should not have been allowed to have a double standard.

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    Default Re: Supreme Court Expansion

    Good topic.

    Maybe it was Mark Levin (I don't recall off the top of my head) who proposed an amendment allowing something like 3/5 of each house of Congress, or 2/3 of the States to override a SC decision. I'm torn on the idea. Certainly there needs to be recourse to "bad" SC decisions (some are simply partisan, but some are indeed bad - like Plessy v Ferguson or even Wickard v Filburn).
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    Default Re: Supreme Court Expansion

    Quote Originally Posted by dneal View Post
    Good topic.

    Maybe it was Mark Levin (I don't recall off the top of my head) who proposed an amendment allowing something like 3/5 of each house of Congress, or 2/3 of the States to override a SC decision. I'm torn on the idea. Certainly there needs to be recourse to "bad" SC decisions (some are simply partisan, but some are indeed bad - like Plessy v Ferguson or even Wickard v Filburn).
    And where do you stand on expansion? Or term limits?

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    Default Re: Supreme Court Expansion

    Term limits sound good, but I see too much potential for it going wrong. Not a term limit precisely, but mandatory retirement plagues the general/flag officer ranks, who go work for some defense contractor and apply pressure to active duty Colonels to get their stuff purchased. Without digressing too much, the only way for a Colonel to get promoted to General is if the "club" lets them in - and the club consists of retired generals leveraging after-retirement job opportunities to current generals. It's ugly, and disappointing.

    So hypothetically say there is a 12 year term limit (it was Levin, btw, and that was one of his proposals too). Amy Coney Barrett is 48-49 or so. A term limit would boot her at 60-61. I don't want any SC Justice looking for a new job because it could easily create a problem similar to the GO/FO problem. Simply too much opportunity for corruption, on top of the partisan complaints we all have already.

    Perhaps an age limit would be more effective. 75? 80? I'm not sure, and changes in medicine should continue to extend human lifespan. The lifelong tenure intended to free them from influence leaves us with the SC equivalent of a Senator Feinstein or Grassley. Call me agist, but I don't think 90 year olds should still be involved in government. RBG comes to mind as a most recent example of the problem with justices, but I'm sure there are others.

    Expansion just creates new problems, and a high possibility for a political SC arms race. Each admin/party could just keep appointing more new justices to sway the balance to their side. FDR's threats on steroids, so to speak. I don't think the people would tolerate it, particularly when their party isn't in power.
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    Default Re: Supreme Court Expansion

    I agree: no to term limits, yes to age limit (80), no to expansion.

    I do not like the idea of Congressional over-ride, no matter how the large the majority. Keep the independent power completely independent.

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    Default Re: Supreme Court Expansion

    Now, how about what to do about moves in the Senate hearing and confirmation process? Should anything be done to take away the Senate leader's ability to table (stall, delay) a nomination?

    I say yes, but I don't know how to do it because the Senate would never approve an amendment taking away that power. It seems, as with the filibuster (which I also disagree with), neither party has the desire to relinquish one of their tools.

    What do others think about this?

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    Default Re: Supreme Court Expansion

    I tend to agree with no congressional override. I think State override is more feasible. I'm still undecided on each.

    I think the problem with the hearing and confirmation process is just a symptom of the disfunction of the Senate, not a problem in and of itself. When the issue of separate powers is raised, people often think of Legislative v Executive v Judicial; and forget about State v Federal. That's an important balance that has been turned on its head, particularly after the passing of the 17th Amendment. For our international friends, Senators used to be appointed by State legislatures. The 17th amendment changed that to an election.

    The point of the Senate was not just to temper the passions of the House, but to represent the States (in a 10th Amendment sense of "powers reserved to the States"). The best example I've heard is: an unfunded mandate imposed by the federal government on the states. A Senator is much less likely to vote in favor of such a measure, when they have to answer to a state legislature (who has to figure out how to pay for said mandate). I understand the concerns that prompted the 17th amendment, and local political machines and big money; but we've just relocated those to the beltway and made it easier to influence more Senators. Levin argued repealing the 17th amendment as well, but that's a much older idea than his proposal.

    Generally I think a return to a limited federal government with specified responsibilities and powers (in line with the Framers' intent) would solve a lot of the national "issues" we see today. If State A wants recreational marijuana, for example, and State B doesn't; what business is it of the federal government? (and again for our international friends: marijuana is currently "illegal" because the federal government says so - it's a schedule 1 drug, classified so by the FDA). I'm actually surprised the blue-er states haven't jumped on the "Convention of States" idea (or something similar intended to restore power to the States).
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    Default Re: Supreme Court Expansion

    I'll stay on the Supreme Court, of you don't mind.

    I don't like the idea of State override, either. The Constitution applies to all 50 states equally, and I would not prefer to allow the states to exempt themselves from constitutional rule of law. Any state could, in theory, take away any of our federal Constitutional protections (the bedrock of all our legal freedoms).

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    Default Re: Supreme Court Expansion

    Keep it as is

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    Default Re: Supreme Court Expansion

    Ok, but I was just answering your Senate question. I'd rather stay away from that as well.

    The Constitution would still apply to the States. That's the real point of the supremacy clause (and the SC's interpretation of it). Somewhere along the line, that got turned into: every federal law is supreme because of the supremacy clause. There's really not much justification for that outside the SC decision in Wickard v Filburn.

    The majority of federal laws passed since then cite the authority to regulate interstate commerce, with the SC holding that "An activity does not need to have a direct effect on interstate commerce to fall within the commerce power, as long as the effect is substantial and economic." That was never the point of the interstate commerce clause, and many justices have questioned where the limit of that seemingly endless authority is. It's argued that the decision (1942) was a result of "“the switch in time that saved nine.”
    Last edited by dneal; October 17th, 2021 at 08:06 PM. Reason: fixed link...
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    Default Re: Supreme Court Expansion

    Quote Originally Posted by dneal View Post
    Ok, but I was just answering your Senate question. I'd rather stay away from that as well.

    The Constitution would still apply to the States....
    But aren't you in effect suggesting that it will apply, except for when it won't (when a state legislature could over ride it)? You appear to be suggesting that this would occur, in your mind, only in limited cases, but I am not reassured by this.

    I sympathize with the pov that we are a long way from the weaker federal govt of the first days of the Republic. This I do not rue as you may. And I don't believe that we are ever going back. Our federal heritage as a nation is both a blessing and a burden, at times, alternatively and even simultaneously.




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    Default Re: Supreme Court Expansion

    Not really. The 14th Amendment and incorporation led the SC to rule that the bill of rights applied to States (where previously it only applied to the federal government). That's what prevents state legislatures from overriding the constitution. I'm ok with that, and I think it was the correct decision. I also imagine that most see the sense in the decision. The States delegate power to the Federal government, through the Constitution (with its amendments) that they ratified. They bound themselves to it. That's where its legitimacy comes from - the consent of the governed.

    The states never gave the federal government the majority of power it exercises today. It is a usurpation of the powers clearly defined in the 10th amendment. I am skeptical of us going back as well, although the Convention of States movement has been making steady progress.

    It's curious that the majority of people have little trust in the federal government, yet won't take back their own power through a process clearly described in Art V. Some seem to think that the federal government will see the error of its ways and relinquish power of their own accord. I see a Convention of States as the last offramp before a civil war. When (or if) either of those happens is of course not clear - but since we don't teach civics anymore it wouldn't surprise me if the latter happens first. Everything has become dangerously volatile - the SC debate just being one more potential spark that would set the whole thing off.

    We're simply too diverse to be governed centrally, and the enormity of the corruption in DC is obvious to even the most casual observer.
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    Default Re: Supreme Court Expansion

    Well like I said, I started this thread on expansion of the SC, and will keep my involvement in this thread focused on that. Others can discuss federal power expansion with you if they would like.

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    Default Re: Supreme Court Expansion

    Ok, but I'm responding to questions that you are asking.

    "Now, how about what to do about moves in the Senate hearing and confirmation process? Should anything be done to take away the Senate leader's ability to table (stall, delay) a nomination?"

    and

    "But aren't you in effect suggesting that it [the Constitution] will apply, except for when it won't (when a state legislature could over ride it)? You appear to be suggesting that this would occur, in your mind, only in limited cases, but I am not reassured by this."
    Be your own tenth man.

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    Default Re: Supreme Court Expansion

    Quote Originally Posted by TSherbs View Post
    The court has been expanded in the past long before MM.

    My question is, should the court be expanded now, again?

    It's your reply a yes, no, maybe?
    I think I learned that the last expansion was to correspond to the increase in the number of federal judicial circuits. Doesn't apply now.

    Other than the obvious exercise of naked politial power I've not seen any justification for expanding the size of the Supreme Court.

    I didn't follow the rationale for setting up the commission: other than a political partisan threat is there a purpose for it? (I'm not addressing all political partisanship, it would take too long and go far off topic.)

    I answer "No."

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    Default Re: Supreme Court Expansion

    Quote Originally Posted by kazoolaw View Post
    Quote Originally Posted by TSherbs View Post
    The court has been expanded in the past long before MM.

    My question is, should the court be expanded now, again?

    It's your reply a yes, no, maybe?
    I think I learned that the last expansion was to correspond to the increase in the number of federal judicial circuits. Doesn't apply now.

    Other than the obvious exercise of naked politial power I've not seen any justification for expanding the size of the Supreme Court.

    I didn't follow the rationale for setting up the commission: other than a political partisan threat is there a purpose for it? (I'm not addressing all political partisanship, it would take too long and go far off topic.)

    I answer "No."
    I don't see any "reason" other than to appease those groups asking for it (hold the party together) and as some measure of trying to do something after the Garland delay tactics (another naked ploy for power). There are Democrats asking that Biden as a leader not roll over for McConnell on this one. I feel the pain, but I disagree with this tactic.

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