"It is Time for Ruthless Aggression"

[Calheel]

SCOTUS has to get fixed, but agree expanding is a hot topic that’s a likely temporary fix and could do more harm than good in the long run. I’m a bigger fan of limits on time served. The last conservative Justice before Trump took office was in 2006. So 20 years sounds like a good number.

Term limits require a constitutional amendment, which is nearly impossible in the current political climate. Expanding can be done by legislation.

 

[altmin]

John Cena is not going to like this co-opting of his stuff.

He also doesn't like directly controlling phone graphics while working on a Netflix movie and he requests that someone off camera controls them remotely, but that's neither here nor there for this conversation.

 

[superrific]

SCOTUS has to get fixed, but agree expanding is a hot topic that’s a likely temporary fix and could do more harm than good in the long run. I’m a bigger fan of limits on time served. The last conservative Justice before Trump took office was in 2006. So 20 years sounds like a good number.

Arguably the Supreme Court is the reason we are where we are. Trump could not have happened without the Supreme Court's fuckery.

So making sure the Supreme Court can no longer fuck us is a top, top priority and we need to pull out all the stops to defeat it.

One way of doing so is to expand the court once. Then issue $500B in bonds with a clause in their terms requiring the US to pay $500 per bond should the Supreme Court be expanded again, or should any other debt issue receive a similar rider. It would then cost $2.5T for the Pubs to re-expand the court.

 

[RockyMtnHoo]

Term limits require a constitutional amendment, which is nearly impossible in the current political climate. Expanding can be done by legislation.

Just talking this through, that would require 2/3 approval, correct? And the 20 year limit would remove 3 (conservative) current Justices. I already know the (un)likelihood of this happening, but extend an olive branch by replacing them with 1 liberal, 1 conservative and 1 mutually agreed on nominee. That makes it 4-4 with the deciding vote being a moderate.

But that would require a functioning government.

 

[05C40]

Just talking this through, that would require 2/3 approval, correct? And the 20 year limit would remove 3 (conservative) current Justices. I already know the (un)likelihood of this happening, but extend an olive branch by replacing them with 1 liberal, 1 conservative and 1 mutually agreed on nominee. That makes it 4-4 with the deciding vote being a moderate.

But that would require a functioning government.

Also, why would the right-wing ever agree to the 4-4-1 plan when a very significant portion of the Democrats' support consists of the "too cool for school types" who just can't be bothered, ugh!, to vote in EVERY single election.

 

[RockyMtnHoo]

It’s an alternative to court expansion which I don’t think either side really wants. But like I said, this proposal requires compromise and actual good faith negotiations, which is non-existent in this climate.

 

[Centerpiece]

Does the Supreme Court get to decide if expanding the Supreme Court is Constitutional? If a Dem prez says he wants to add numbers to SCOTUS, can SCOTUS overrule that? Is there a cart and horse here?

 

[mpaer]

Does the Supreme Court get to decide if expanding the Supreme Court is Constitutional? If a Dem prez says he wants to add numbers to SCOTUS, can SCOTUS overrule that? Is there a cart and horse here?

Congress can do it
Senate needs 60 by "tradition"
President would have to sign it

 

[rodoheel]

Arguably the Supreme Court is the reason we are where we are. Trump could not have happened without the Supreme Court's fuckery.

So making sure the Supreme Court can no longer fuck us is a top, top priority and we need to pull out all the stops to defeat it.

One way of doing so is to expand the court once. Then issue $500B in bonds with a clause in their terms requiring the US to pay $500 per bond should the Supreme Court be expanded again, or should any other debt issue receive a similar rider. It would then cost $2.5T for the Pubs to re-expand the court.

Super, come on That is not a remotely realistic lever for preventing the Court from being expanded again (and in any event would likely not withstand constitutional scrutiny; a partisan court - heck, even a non-partisan one - would simply declare the bond issuance or the laws relating thereto unconstitutional and we'd be right back at square one.

Bottom line is there is no way to expand the court and guarantee it's the only time, and in any event an expansion of the court that simultaneously sought to preclude any further expansion would be just as flagrantly in violation of democratic norms as anything the Trump admin has done.

As I often say, I understand and share your anger at the various forms of fuckery the Roberts court has engaged in, but I just don't find any of your retaliatory proposals to be either wise or realistic.

ETA: also, to be clear, no Supreme Court fuckery was needed for Trump to be elected in 2016.

 

[rodoheel]

Does the Supreme Court get to decide if expanding the Supreme Court is Constitutional? If a Dem prez says he wants to add numbers to SCOTUS, can SCOTUS overrule that? Is there a cart and horse here?

In theory the Court can assess the constitutionality of any statute, including one expanding the court. But they would be hard-pressed to find a constitutional basis for rejecting a simple numerical expansion of the court.

 

[superrific]

Super, come on That is not a remotely realistic lever for preventing the Court from being expanded again (and in any event would likely not withstand constitutional scrutiny; a partisan court - heck, even a non-partisan one - would simply declare the bond issuance or the laws relating thereto unconstitutional and we'd be right back at square one.

Bottom line is there is no way to expand the court and guarantee it's the only time, and in any event an expansion of the court that simultaneously sought to preclude any further expansion would be just as flagrantly in violation of democratic norms as anything the Trump admin has done.

As I often say, I understand and share your anger at the various forms of fuckery the Roberts court has engaged in, but I just don't find any of your retaliatory proposals to be either wise or realistic.

Well, I agree with you that it's very unlikely. However, I would have said the same thing about bounty laws that make the 14th Amendment more or less optional, and yet here we are.

I don't think there is anything unconstitutional about that bond issuance. Nothing at all. Especially not under the unitary executive theory. And this would be done after the court is expanded so the Roberts fuckwad machine won't carry the day.

But anyway, if you decide that there is no solution and then shit on every idea you come across, well guess what -- there will be no solutions.

I also think that there is absolutely nothing anti-democratic about the proposal. It is not antidemocratic to use tools to protect democracy. What is truly antidemocratic is the Supreme Court. Using the democratic process to eliminate an automatic partisan veto and general dissolution of the constitution is not objectionable.

 

[Mulberry Heel]

I do enjoy Episcopalians

"Wherever you find four Episcopalians, you'll always find a fifth."

 

[superrific]

In theory the Court can assess the constitutionality of any statute

By that same theory, though, the executive doesn't have to respect that constitutionality.

So they pass the bill expanding the Supreme Court, and included in the bill is a provision that strips jurisdiction for any court to evaluate it. If they try to exercise their jurisdiction anyway, the executive says "suggestion noted" and puts people on the court anyway.

This is a major weakness in our constitution. One of many, many weaknesses.

In general, separation of powers has turned into an incredibly outdated idea with costs that are far greater than the benefits. It was such a product of 18th century thinking. Of course it was separated into three -- almost everything came in groups of three back then. And of course it was assumed to be a nice tidy separation. They were drawing on abstract musings with little connection to the world, and of course as the world got more complex, the separation became even less workable.

Basically our constitution is simultaneously a) one of the great achievements in world history; and b) an institution that has outlived its usefulness and needs to be replaced.

 

[Mulberry Heel]

It’s well past time that Democrats took seriously their campaign appeals to democratic values. Talk is cheap. Put the gloves on!

Yes, but as long as Chuck Schumer is the Democratic leader in the Senate that will never happen. Chuck just ain't a political warrior or crusader and never will be. If you want real change from the party leadership, guys like Schumer are going to have to step aside, or be forced to.

 

[UNCBAdookJD]

In theory the Court can assess the constitutionality of any statute, including one expanding the court. But they would be hard-pressed to find a constitutional basis for rejecting a simple numerical expansion of the court.

Yeah, the Constitution is silent on the court’s size. Itscurrent size of 9 is only set by the Judiciary Act of 1869.

The Judiciary Act of 1789 had originally made it 6. By the 1850’s it was 10, reduced to 8 immediately after the Civil War before the 1869 act set it at 9.

There is historical precedent for the court fluctuating in size (including being larger than 9) and 2029 is the time to increase it to 13 to align with the circuit courts, and assigning a justice to ride each circuit.

 

[superrific]

Just talking this through, that would require 2/3 approval, correct? And the 20 year limit would remove 3 (conservative) current Justices. I already know the (un)likelihood of this happening, but extend an olive branch by replacing them with 1 liberal, 1 conservative and 1 mutually agreed on nominee. That makes it 4-4 with the deciding vote being a moderate.

But that would require a functioning government.

The tightest choke point in a constitutional amendment isn't the 2/3 in Congress. It's the 3/4 of states. Though that can also be gotten around with sufficient creativity.

 

[superrific]

Yeah, its current size of 9 is only set by the Judiciary Act of 1869.

The Judiciary Act of 1789 had originally made it 6. By the 1850’s it was 10, reduced to 8 immediately after the Civil War before the 1869 act set it at 9.

There is historical precedent for the court fluctuating in size and 2029 is the time to increase it to 13 to align with the circuit courts, and assigning a justice to ride each circuit.

Better -- there is no requirement that there be "justices." The Supreme Court could be selected anew every year from the appeals court judges.

 

[Calheel]

Better -- there is no requirement that there be "justices." The Supreme Court could be selected anew every year from the appeals court judges.

Of course, the Supreme Court could rule against you on that. It’s not like they have problems inventing doctrines. Then you have the problem of what you do if the Court says you can’t demote justices. Do you use the Army to escort them out? How would that play out if the law was passed very narrowly with the removal of the filibuster?

 

[rodoheel]

Well, I agree with you that it's very unlikely. However, I would have said the same thing about bounty laws that make the 14th Amendment more or less optional, and yet here we are.

I don't think there is anything unconstitutional about that bond issuance. Nothing at all. Especially not under the unitary executive theory. And this would be done after the court is expanded so the Roberts fuckwad machine won't carry the day.

But anyway, if you decide that there is no solution and then shit on every idea you come across, well guess what -- there will be no solutions.

I also think that there is absolutely nothing anti-democratic about the proposal. It is not antidemocratic to use tools to protect democracy. What is truly antidemocratic is the Supreme Court. Using the democratic process to eliminate an automatic partisan veto and general dissolution of the constitution is not objectionable.

A bond issuance that includes terms that are intended to coerce or prevent future legislation is pretty clearly violative of the long-standing legal framework legislative authority. A current Congress can't bind the hands of a future Congress by forbidding it from acting, it It would be like Congress passing laws and putting at the end of every law "and if a future Congress repeals this law there will be a $500 billion penalty payable to China." You can't use obviously coercive financial provisions to prevent laws from being changed any more than you could simply say in the statute "this law may never be repealed or amended,"

Also, to be clear, I have not decided there is "no solution." Earlier today in this thread I posted about the things that I thought would be helpful. None of them are going to solve everything, or even close to everything, because (1) as a nation of 350 million people living in a rapidly changing and unpredictable world our problems are deep and complex and evade easy solutions, and (2) human beings are human beings and there is no perfect system of government you can create that human beings can't destroy, degrade, or corrupt through violence, greed, ambition, or some combination or those things. What I will push back against are what are (to me) obvious pie-in-the-sky fantasy solutions that seem ignorant of reality and how other people are likely to react. Passing a law with the bond-issuance trigger like you suggest is not going to help restore legitimacy and proper functioning to our government; it will only further degrade it.

 

[rodoheel]

By that same theory, though, the executive doesn't have to respect that constitutionality.

So they pass the bill expanding the Supreme Court, and included in the bill is a provision that strips jurisdiction for any court to evaluate it. If they try to exercise their jurisdiction anyway, the executive says "suggestion noted" and puts people on the court anyway.

This is a major weakness in our constitution. One of many, many weaknesses.

In general, separation of powers has turned into an incredibly outdated idea with costs that are far greater than the benefits. It was such a product of 18th century thinking. Of course it was separated into three -- almost everything came in groups of three back then. And of course it was assumed to be a nice tidy separation. They were drawing on abstract musings with little connection to the world, and of course as the world got more complex, the separation became even less workable.

Basically our constitution is simultaneously a) one of the great achievements in world history; and b) an institution that has outlived its usefulness and needs to be replaced.

I don't entirely disagree but what's the alternative? Almost every modern democracy over the last 250 years or so has followed our lead in some respect, with some version of an executive body, legislative body, and judicial body that serve distinct functions and are meant to check each other in some way. As I said before, there's no such thing as a perfect system of government that humans can't fuck up somehow by being ourselves.