Supreme Court with Justice Barrett on Board

[Randy Bosch]

Since the Confirmation Hearings are long gone, I'm starting a new thread to follow Supreme Court activity of interest, and copied my last comment from the "Confirmation Hearings" thread here.  Charles Austin suggested this a while ago, and the idea is more than ripe now, given some of the digressions on the old thread.  We'll see.  Be civil!

I've linked a very readable and interesting article prognosticating some of the possible effects of Judge Barrett's addition to the Supreme Court regarding several issues spotlighted in the confirmation hearings.  No sturm und drang or partisanship, but basic analysis from understanding the several issues and the workings of the Court.
Worth reading, in my opinion:
https://lawliberty.org/the-new-courts-docket/

[Randy Bosch]

John O. McGinnis's article, linked in the above comment, addresses a number of important cases.  The "ADA" case is Texas v. California.  His major input is into the concept of "severability", and he predicts that a heavy majority of the Court will rule out the ADA clause  in question - with severability; i.e., the rest of the ADA law stands, the clause can go away because Congress eliminated its  effect and did not shoot down the whole ADA law when it did that.  We'll see...

Here are the two paragraphs addressing that:
"Even assuming the mandate provision has become unconstitutional since it lacks monetary consequences, the important practical issue in the case is whether the rest of the Act is severable from that provision. The traditional test for severability is whether Congress would have wanted the other provisions to go into effect, absent the unconstitutional provisions. The almost universal opinion of conservative and liberal commentators is that the rest of the Act should and will be severed. After all, Congress did not repeal the rest of the Act when it changed the mandate provision. At her confirmation hearing, Amy Coney Barrett walked through traditional severability analysis in a way that implied she would likely sever the Act and leave Obamacare essentially unchanged. I predict an 8-1 or 7-2 vote in favor of severability." 

In other words, he thinks they will shoot down the one clause and limit it to that via addressing severability whether or not Justice Barrett votes.

"Assuming that the case is decided in favor of the Act's retention, it will have more significant political than legal implications. Senate Democrats spent much, if not most, of their time at the Barrett hearing raising fears that the Roberts Court would destroy the Affordable Care Act. When the case comes down with an overwhelming majority in favor of severability, it may take much of the wind out of the sails when it comes to court-packing plans, even in the event of a Biden presidency and unified Democratic Congress. If this case represents the worst of a Court with Amy Barrett on it, it will become harder for Democrats to persuade ordinary voters that they have much to fear."

[JEdwards]

I think this is spot on. With respect to proposals for Court packing, my hope is that Biden's proposal for a commission to study the issue is simply a device to delay a confrontation until cooler heads recognize that the current 9-member Court is not some kind of existential threat to liberty.  I don't give Biden any points for courage, but I do think it's a fairly adept political move to retain the support he needs from the left wing of the party while planning for a bad idea to die a slow death.

Peace,
Jon

[Richard Johnson]

I think this is spot on. With respect to proposals for Court packing, my hope is that Biden's proposal for a commission to study the issue is simply a device to delay a confrontation until cooler heads recognize that the current 9-member Court is not some kind of existential threat to liberty.  I don't give Biden any points for courage, but I do think it's a fairly adept political move to retain the support he needs from the left wing of the party while planning for a bad idea to die a slow death.

Peace,
Jon

There are actually some sensible reasons for expanding the SC, but how that could be done sensibly in the current partisan divide is beyond my imagination. The only conceivable way might be to wrap it into a package of some of the reforms we discussed elsewhere, like requiring (constitutionally) a high threshold vote of the Senate to confirm any justice.

[James J Eivan]

I think this is spot on. With respect to proposals for Court packing, my hope is that Biden's proposal for a commission to study the issue is simply a device to delay a confrontation until cooler heads recognize that the current 9-member Court is not some kind of existential threat to liberty.  I don't give Biden any points for courage, but I do think it's a fairly adept political move to retain the support he needs from the left wing of the party while planning for a bad idea to die a slow death.

Peace,
Jon

If there is a Biden, delay is not our friend ... as one views Biden's condition, there is little doubt that a Biden election will net a Harris presidency in the next 4 years.

There is always a small hope that the Congress slows things down ... but the power of the hypothetical Harris pen is scary.

What does expanding the SC gain ... outside of partisan goals?

Unless we come together as a country, constitutional amendments hold little chance of passing 2/3 of the states.

[Charles Austin]

Richard writes:
There are actually some sensible reasons for expanding the SC, but how that could be done sensibly in the current partisan divide is beyond my imagination. The only conceivable way might be to wrap it into a package of some of the reforms we discussed elsewhere, like requiring (constitutionally) a high threshold vote of the Senate to confirm any justice.
I comment:
This makes a lot of sense. We should not simply rule out expanding the court by calling it a political Ploy.

[Dan Fienen]

Agreed, there could be good reasons for expansion, but simply to tilt the court in your favor isn't one of them. If the Supreme Court is supposed to be part of the checks and balances just packing the court to get your way defeat that purpose.

[Charles Austin]

I think the point  of both Richard's comment and my response was to say that the reason for considering expanding the court was not to "tilt the court" towards a political side. Just take that concern out of the discussion. Don't use that concern; don't suspect that concern from others.

[peter_speckhard]

Setting aside partisan concerns, how is an 11 or 13 member SCOTUS preferable?

[Richard Johnson]

I think this is spot on. With respect to proposals for Court packing, my hope is that Biden's proposal for a commission to study the issue is simply a device to delay a confrontation until cooler heads recognize that the current 9-member Court is not some kind of existential threat to liberty.  I don't give Biden any points for courage, but I do think it's a fairly adept political move to retain the support he needs from the left wing of the party while planning for a bad idea to die a slow death.

Peace,
Jon

If there is a Biden, delay is not our friend ... as one views Biden's condition, there is little doubt that a Biden election will net a Harris presidency in the next 4 years.

There is always a small hope that the Congress slows things down ... but the power of the hypothetical Harris pen is scary.

What does expanding the SC gain ... outside of partisan goals?

Unless we come together as a country, constitutional amendments hold little chance of passing 2/3 of the states.

Changing the number of justices does not require a constitutional amendment; Congress has the authority to do it.

The current number of nine justices has been the case for more than 150 years. In that time, the size of both houses of Congress has grown over the years to accommodate greatly increased population. The number of federal district courts has also increased. One might argue that the caseload of the court is inhibited by the number of justices available to handle the work.

[James J Eivan]

I think this is spot on. With respect to proposals for Court packing, my hope is that Biden's proposal for a commission to study the issue is simply a device to delay a confrontation until cooler heads recognize that the current 9-member Court is not some kind of existential threat to liberty.  I don't give Biden any points for courage, but I do think it's a fairly adept political move to retain the support he needs from the left wing of the party while planning for a bad idea to die a slow death.

Peace,
Jon

If there is a Biden, delay is not our friend ... as one views Biden's condition, there is little doubt that a Biden election will net a Harris presidency in the next 4 years.

There is always a small hope that the Congress slows things down ... but the power of the hypothetical Harris pen is scary.

What does expanding the SC gain ... outside of partisan goals?

Unless we come together as a country, constitutional amendments hold little chance of passing 2/3 of the states.

Changing the number of justices does not require a constitutional amendment; Congress has the authority to do it.

The current number of nine justices has been the case for more than 150 years. In that time, the size of both houses of Congress has grown over the years to accommodate greatly increased population. The number of federal district courts has also increased. One might argue that the caseload of the court is inhibited by the number of justices available to handle the work.

Yes ... it's painfully apparent that we are one president and 3 or 4 senators away from court packing ... the constitutional amendment comment was prompted by the upthread statement ..

The only conceivable way might be to wrap it into a package of some of the reforms we discussed elsewhere, like requiring (constitutionally) a high threshold vote of the Senate to confirm any justice

One wonders if we allow law making to return to the US congress and legislatures of the states if any change on court size is really necessary ... currently both sides are attempting to foist their will on the American people any way the can ... perhaps the place to start is term limits.

[James S. Rustad]

Changing the number of justices does not require a constitutional amendment; Congress has the authority to do it.

The current number of nine justices has been the case for more than 150 years. In that time, the size of both houses of Congress has grown over the years to accommodate greatly increased population. The number of federal district courts has also increased. One might argue that the caseload of the court is inhibited by the number of justices available to handle the work.

How does expanding the court help handle an increased workload?  The justices all take part in each decision.  Or are you intending a change where each case is initially assigned to a portion of the court?  Are you intending to allow an appeal to the full court?

[peter_speckhard]

Changing the number of justices does not require a constitutional amendment; Congress has the authority to do it.

The current number of nine justices has been the case for more than 150 years. In that time, the size of both houses of Congress has grown over the years to accommodate greatly increased population. The number of federal district courts has also increased. One might argue that the caseload of the court is inhibited by the number of justices available to handle the work.

How does expanding the court help handle an increased workload?  The justices all take part in each decision.  Or are you intending a change where each case is initially assigned to a portion of the court?  Are you intending to allow an appeal to the full court?

That would be my question, too. Representatives and Senators grow as the number of states grows. But we still have one president. Lower courts are regional; the SCOTUS is not. Nine may be an arbitrary number, but it seems to me no less arbitrary than 11 or some higher number.

[Jim Butler]

Changing the number of justices does not require a constitutional amendment; Congress has the authority to do it.

The current number of nine justices has been the case for more than 150 years. In that time, the size of both houses of Congress has grown over the years to accommodate greatly increased population. The number of federal district courts has also increased. One might argue that the caseload of the court is inhibited by the number of justices available to handle the work.

How does expanding the court help handle an increased workload?  The justices all take part in each decision.  Or are you intending a change where each case is initially assigned to a portion of the court?  Are you intending to allow an appeal to the full court?

That would be my question, too. Representatives and Senators grow as the number of states grows. But we still have one president. Lower courts are regional; the SCOTUS is not. Nine may be an arbitrary number, but it seems to me no less arbitrary than 11 or some higher number.

Just one thing wrong with that argument: the number of representatives has not grown as the population has increased. The current number, 435, was set in 1911 when the US population was 93 million. We have since tripled to 330 million, but with no increase in the size of the House.

If any branch of government should be increased in size, it's the House, because it was created to reflect the population.K Instead, Congress subtracts seats from some states and adds to others. Because of this, representatives are much less connected to the people they are to serve as, on average, the ratio of constituents to representative has gone up (from an average of 1:209,000 in 1911 to 1:745,000 currently).

[aletheist]

If any branch of government should be increased in size, it's the House, because it was created to reflect the population.K Instead, Congress subtracts seats from some states and adds to others. Because of this, representatives are much less connected to the people they are to serve as, on average, the ratio of constituents to representative has gone up (from an average of 1:209,000 in 1911 to 1:745,000 currently).

The original Bill of Rights consisted of twelve proposed amendments to the Constitution. Ten were adopted right away, and an eleventh--which stipulates that Congressional salary adjustments do not go into effect until after the next election--became the 27th Amendment when it was finally ratified more than 200 years later, in 1992. The only one never implemented would have required the House of Representatives to have one member for every 50,000 persons. Based on the 2010 census, the total U.S. population was just under 309.2 million, thus requiring a minimum of 6,184 Representatives. Presumably there would have been subsequent amendments to keep this number more manageable.