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PaperclipPerfector  3mo ago (text post)   34139 thread views

Culture War Roundup for the week of July 29, 2024

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President Biden proposed a reform of the Supreme Court:

https://www.whitehouse.gov/briefing-room/statements-releases/2024/07/29/fact-sheet-president-biden-announces-bold-plan-to-reform-the-supreme-court-and-ensure-no-president-is-above-the-law/

  1. A Constitutional Amendment undoing the recent Presidential immunity ruling.
  2. Term limits. Biden proposes 18 years, which would put nominations for the 9 judges on a regular 2-year cadence. This means every President would normally nominate two new judges.
  3. Enforceable conduct and ethics rules

I don't know if 1 is really necessary, I honestly kind of like 2 and are sceptic how to enforce 3. Certainly a more centrist approach instead of court packing.

Reminds me of this:

https://nedroid.com/?305

Is he/Kamala counting on a critical mass of voters not understanding the constitutional amendment process such that they think this is a thing that might happen if Kamala gets elected? It would never make it out of Congress, much less 38 states on board.

Maybe some kind of long game to fail at this and go after the Electoral College next as a scapegoat?

They're trying to do the second one in effect with possibly-Constitutional but very contorted regular legislation. Won't happen as long as Republicans have a filibuster, and I have my doubts as to whether they can even get all Democrats to sign on.

Quite frankly I don't see almost anything wrong at all with the term limit proposal (#2), it seems pretty well thought out.... as long as long as we could fix the problem about the Senate indefinitely delaying holding hearings or constantly shooting down nominees. A notable silence.

In fact I like it quite a bit. 18 years is over four presidential cycles, which is quite a while (and nicely out of sync) and it would arguably make people treat presidential elections even more seriously if they knew that they were guaranteed a say in the judicial running of the country. Plus, there's at least some middle to long-term incentive for both parties to get it done, I think (short term of course it seems probably technically irrational from a pure power struggle perspective for the GOP).

Of course the link doesn't contain actual proposed language that I can see, and that would be nice to have. Would show some seriousness. I suppose people need to chew on the idea a little bit of course.

My main concern (aside from constitutionality) with this is that it seems like it might lead to more politicization. Currently, in theory, any president could appoint more justices, but the risk of big political swings is tempered by justices choosing to resign sometimes under favorable presidents, which reduces the chance of any given president changing the court's composition too much—they mostly replace justices with somewhat like-minded justices. On the other hand, this would mean that for every election, the president would get to appoint two justices independent of the retiring justices' leanings. This raises the salience of supreme court picks to presidential candidates, which only serves to politicize the court further. Now every election they would need to talk about court picks, and those picks will often matter.

See below — if the court is a check on the executive the president being able to alter 2/9 of the court in one term and 4/9 in two terms really lessens the check and balance of the court.

That's somewhat fair. Do note of course that the Senate is still involved and has to sign off, so it's still involving all 3 branches, not just one. I think the proposal needs a little more detail or clarification about the expected role of the Senate.

Additionally, the fact that justices can't be removed (assuming #3 about ethics either doesn't pass or doesn't go too crazy partisan, and which needs WAY more work IMO to be worth considering) is still a big balance. 18 years is still mostly a lifetime appointment, and justices still care about the legacy of the court and their own reputation and such. Worrying about selection bias is still a totally valid concern though.

All of this misses the point though. We already see justices nominated and confirmed in roughly 18 year cycles! All this proposal does is standardize and make these changes more regular!! So basically the proposal can only make things better, not worse.

I could see however a variant of #3 being included either on its own or along with #2 (or implemented by tradition), where justices abstain by default from cases involving the sitting president who nominated them being a good compromise? That means a justice can't bail out their benefactor right away. That would come with its own downsides of course (e.g. a 5 justice court 7 years in to a two-term president). So I don't think it would work.

I'd rather have one scotus pick per presidential term and a variable sized court. Keeps the incentives of a lifetime position for the judges while reducing the importance of any particular nomination.

I like that. It sort of inflicts the court with a modern appointment for each term, to give the past (and sometimes far past) less sway.

Fewer court members = greater importance on a single member, which only triples down on the trend of nominating way young people (which hurts the ability to fairly evaluate candidates as well as their average actual ability and experience) and makes a single nomination more fractious, not less...? For context there have been 116 justices ever and only 59 terms so that would imply the average size of the court, long term, would be only 4-5 justices under that proposal (of course if the average age dips that number could get larger, but the court on average would still be likely smaller, I think). Very rough math but the principle checks out.

Sure, so nominate two per term for an average of 8 or three for an average of 12. Seems fine to me.

...so basically the exact same as the Biden proposal but without the 18 year limit? I assume you'd have to throw in something as a tiebreaker in case of even membered courts. But yeah, that doesn't sound so fundamentally different than the proposal overall.

Indeed, because term limits make a big difference from the perspective of a judge.

I am reassured in that when I heard him saber rattling about "reform" of the court I thought he meant packing.

As for the substance of it, 1 can be argued but is a question of constitutional taste, I like powerful executives personally. 3 is a complete non starter that would undermine the entire constitutional order and put the people who rule on such ethics in charge of the judiciary. Impeachment exists already, just because you can't get people to agree with you that Thomas ought to be removed doesn't mean you get to or ought to change the rules.

2 is more interesting, but it also undermines the intention of stability behind the court, and much like removing a senate or any other institution based on seniority, makes change easier and therefore institutions more vulnerable to the danger of fads which is an ever present feature of democracy.

The power analysis is more straightforward as always: the court is a rival castle and must be brought in line because originalism is in the way of what dems like Biden want. And this is just building more precedent to try and do it.

The concern on #3 is like asking "who judges the judge of the judges" which is accurate and also makes me chuckle. I don't think it's entirely impossible, but it would need some more thought than it has currently received, and I think a well-written ethics policy could be fairly robust to manipulation.

I think a well-written ethics policy could be fairly robust to manipulation.

If I were to summarize my entire political ideology, opposition to this statement may be a good start. With due respect.

My default assumption is if the means and motive to abuse something exist, someone (government or otherwise) will attempt to abuse it (and usually succeed).

"this ethics policy has been ruled robust to manipulation by the Harvard school of government committee for Progressing Public Policy. Conspiracy theories claiming without evidence that the ethics policy will be abused have been determined to be unethical and will be punished harshly by the ethics review board"

Term limits set by Congress might not even be Constitutional. And it would be the Supreme Court’s job to determine if it is.

Does SCOTUS get to rule on the constitutionality of amendments? I guess they're still in charge of interpreting them at the end of the day, but my understanding was always that you're perfectly allowed to do unconstitutional things if you properly amend the constitution in this way.

Of course if we get to that level of antagonism between branches it raises to a constitutional crisis and violence would ultimately resolve it rather than legalism at that point.

The proposal only had 1 as a constitutional amendment, not 2 and 3.

I should add that my answer earlier applies to what you asked but not what was originally brought up -- Congress is sorta-mostly allowed to determine various things about how the Supreme Court is implemented (famously, the size is not actually specified anywhere). Whether or not Congress is allowed to meddle with things like term limits and size without using an actual amendment is an open question that last time (FDR's court packing) ended up being dodged after public outcry.

Notably, the effort died in the Senate itself partially at the hands of his own party (and the main legislator dying of a heart attack), after being pushed by the president as the originator not Congress itself, so we never got the showdown. Also, the original rationale was to add extras for each justice over age 70 largely due to them having a caseload that was too large, but this claim about caseload was strongly refuted. Of course, it was buried even deeper because the SC did in fact rule in FDR's favor in a few key cases soon after... but whether this was the swing justice caving to fear about court packing, or other reasons, was never fully settled at the time or by historians since.

So yeah. Open question. Might work. Probably not, due to politics. It would trigger at least some form of crisis though.

Also, remember that the earliest Supreme Court was often a traveling court and didn't even work together all of the time, and didn't take the constitutional review role for themselves for another decade. With that said, virtually everyone thought it was a good idea and has been somewhat retconned in some way into the Constitutional lore (checks and balances was a big thing but my understanding is judicial review itself wasn't quite explicit). So the omission of a few key points about how the Court would work, and some of the related checks, is somewhat understandable in that light.

Term limits would probably be struck down, without an amendment—the constitution specifies that they serve "on good behavior", which is implicitly a life term.

To what extent the Supreme Court can review the constitution is an interesting question. People often read Marbury as an assumption of judicial power, but Michael Stokes Paulsen has argued, fairly compellingly, that what they described there was both necessary, and not exclusive to the judiciary—all branches of the government, at least in all offices that take the oath, are bound to interpret and uphold the constitution. Hence Lincoln was correct in his refusal to recognize Dred Scott—it was wrong; the supreme court only decides the meaning of the constitution as appled to the particular case or controversy in question (in that case, Dred Scott himself), and he as the executive has the duty to follow the constitution as he sees it.

I think this probably matches how Thomas and Gorsuch think the court should act.

Theoretically, no, not really. The Constitution declined to put limits in place on what exactly could and could not be amended. There has been a smattering of attention here and there about a what-if scenario about how an amendment might be ruled unconstitutional if it substantially altered something fundamental about the system as a whole (like replacing it all whole cloth with a dictatorship) but the reality is that the threshold for amendments is set so high that such a ruling would be highly, highly unlikely to overturn the will of the people (and from a pure power perspective, even more unlikely -- the state and national governments basically is the government, not the judiciary, at the end of the day). One other narrow but related issue is can you amend the amendment process itself? But the answers are similar. Especially given that technically major parts of SCOTUS' judicial review power is itself the result of SCOTUS' own taking of the role (Marbury v Madison), at least philosophically, which weakens SCOTUS' argument even if they were to advance one.

The one major exception to this is the Constitution stipulates that you can't take a specific state's representation away unless they say it's okay. That is, you can't "un-state" a state even if you meet the amendment requirements. The argument about that one is slightly more up for debate.

My understanding is other countries have to confront this problem more directly in some cases specifically because they lack the high threshold we do.

There is a specific cause of action that individual states can bring which boils down to “we entered the Union under certain guarantees, and this legislation violates those guarantees.” So changing the Senate to proportional representation or something similar that would screw over small states, or changing the separation of powers might fall under that. That said, at a Constitutional convention you could theoretically do anything, even repeal the Constitution and dissolve the United States.

Recommending a constitutional amendment when your own personal approval rating is probably sub 30% is some balls-out "FUCK IT WE'LL DO IT LIVE" levels of confidence. Or 4th quarter hail marying.

Or...what this really is, which is a goofy signal boost to the progressive / Big-L-Liberal base. This goes nowhere and is DoA.

Term limitis with rolling appointments will just make SCOTUS much like congress in that it will gridlock. People forget that the overwhelming majority of SCOTUS cases are 9-0 or 8-1. 5-4 cases are incredibly rare and often do deal with pretty big issues. With the ability to "wait 2 years" for another judge to show up, SCOTUS would probably stop taking any borderline cases at all (remember, they get to take up a case or not. No one tells them what to put on the agenda). The practical effect is that when a circuit court (all the way from the 5th to the 9th) makes a decision ... that's pretty much it. You can hope and pray your appeal makes it to the court, but it probably won't and, if it does, it will take years and years and be delayed countless times.

Liberals love ambiguity and grey area because their preferred solution is to build in more expansive interpretations. Conservatives will default "back" to a minimally scoped or traditionally supported interpretation of a law. Leaving something unsettled allows for it to grow, metastisize, and become embedded within the system.

On point number 3, I have no idea what "enforceable" means. I guess everyone is very upset that a black Republican went to Alaska?

I'm not following the gridlock part. Wouldn't there still be an old number of justices?

Enforceable means making a weapon to take justices they don't like off the court.

I think it would be gridlock in a game theoretic sense.

"Should we take this case, which might come down to 5-4 or 6-3 with the court the way it is right now, or wait 2 years when it's a little more lopsided?"

If everyone starts to employ that thinking (both the justices on the court as well as the White House appointing them) you get into situations where the court really isn't every doing anything because they're always waiting for that next justice to be appointed again and again.

That's my theory anyway

I think they'd just take the case, if they thought they had the votes.

Yes, at this point they're just burning Biden as fuel for leftist turnout in a way that doesn't implicate kamela. I wonder if we'll get a sudden hard left shift from him on Palestine if they think there's still some meat left to gnaw there.

This is just smart politicking, there's obviously no chance of passing these with the current Congress, so it's just forcing the Republicans to defend what are probably moderately unpopular positions about the Supreme Court.

Biden isn't actually trying to build a legacy as a lame duck, is he? This has to be campaigning. Energize, synergize, winner-gize!

Generally, if Congress wants to pass a new amendment reducing executive immunity, I say go for it. That's what they're for. Do I trust they are capable of writing an amendment better than the SCOTUS ruling even if they had support? No.

How vulnerable a president should be to prosecution is a difficult question. It's a question I suspect SCOTUS didn't want to answer. I think most would have preferred to keep the presidential pardon norm, avoid the question, or avoid the candidate and cases that spurred it. Personally, I don't like the ruling, but I do think SCOTUS landed on the correct side of the trade off. I prefer an executive getting a lot of legal protection, because I'd really like to push the Rubicon crossing as far away as possible. Voting, impeachment, and the three different "layers" of presidential immunity seems fine. It'll cause some problems, but any policy will cause some problems.

Term limits seem fine, so long as we can agree to start with term limits in fifteen or twenty years. Some medium-far date that demonstrates we're changing the rules on principle, rather than political convenience of today.

Conduct and ethics rules I am only fine with if they expand to include Federal elected legislators, judges, and executive appointees. If Congress can pass a law that will hold themselves to the same standards they want to apply elsewhere, then sure let's do it.

Just for clarity, are you suggesting that a Rubicon crossing is less likely if we allow the President more leeway? Personally I disagree. I think being too permissive with a President is the more dangerous road. Think of it like parenting. While of course being "too strict" with your kids often leads to trouble and rebellion eventually, that's not the situation we're in. Since the Presidency (and Executive) in general is currently receiving more "lax parenting" from the legal process, I think doing a better job of setting rules and boundaries is more helpful and more likely to prevent a President doing something dramatically bad. In other words, those boundaries and restrictions on the President prevent malfeasance. I think giving the President too much space to do whatever they want without good boundaries is a recipe for the President to push those boundaries as much as possible. Much like teens might, boundary-pushing is expected and declining to set any in the first place is not a good parenting strategy.

There is an amendment currently proposed, as follows.

No officer of the United States, including the President and the Vice President, or a Senator or Representative in Congress, shall be immune from criminal prosecution for any violation of otherwise valid Federal law, nor for any violation of State law unless the alleged criminal act was authorized by valid Federal law, on the sole ground that their alleged criminal act was within the conclusive and preclusive constitutional authority of their office or related to their official duties.

This is very bad, stripping all immunity, not merely limiting it. This would allow Congress, for example, to make vetos illegal. The court raised the example in the immunity decision that one of the charges against Trump could arguably be applied to any example of deliberate underenforcement of the law, which there tends to be some form of under every administration (e.g. immigration). In effect, it will be impossible to legally carry out the office of the presidency, and presidents will be free to bear grudges against their predecessors. Further, this includes immunity in the exclusive and preclusive powers, which even the liberal justices conceded would make sense—now Congress can set rules on when they can be vetoed? This dramatically harms the separation of powers. (Roberts notes also that no immunity would incentivize clinging to power.)

I'll note also that while the immunity ruling went too far in places (the evidence portion?), it left a lot of space, from the extreme of absolute immunity for all official conduct (which, evidently, one justice, at least, wanted) to Barrett's reading of it, which seemed always to take the most limited stance the opinion allows. It had to be written in such a way to satisfy all the people signing onto it. You can bet that if this case returns to the court after lower courts decide that Trump is not immune on the remaining questions (fake slates of electors, speeches, pressuring Pence), you will have at least four justices siding against Trump, with a pretty good chance of Roberts or Kavanaugh siding with them. That is, this is not indicative of a general principle that they're going to side with Trump.

I think it's worth taking seriously Roberts' own statement that this was intending to set forth generic principles, not ruling separately for Trump.

I don't know that I quite follow what you are saying. You seem to be saying that the courts are treating the presidency too deferentially, and so he needs to have immunity stripped. But do you have any indication of deferentiality besides the recognition of immunity (I think I've indicated why that can't be generalized)? Then your position seems closer to being that any form of immunity grants the president too much power. That is, your position on immunity, at least insofar as you articulated it here, does not seem contingent on how the courts treat him.

My expectation is that we see the immunity consistently read in the narrowest manner, making this not that impactful.

Keep in mind that he crossed the Rubicon because a Senate oversight committee ordered him to come home unguarded so he could be executed after a show trial. That was literally the only reason he needed to do it in the first place.

But Trump wasn't going to get a show trial and usually a hypothetical president wouldn't either. So the Rubicon is a bad example in that sense and a framing that better reflects reality has to acknowledge that? Or is the core concern that the justice system a former president would be subjected to is too unreliable and there need to be more checks and balances involved?

I mean I think we agree that former presidents shouldn't have to deal with nuisance lawsuits but we shouldn't let that caution overpower the actual need for accountability mechanisms. There's an especially large hole currently in the accountability process during the lame duck period, where a president can no longer be held to electoral accountability, the Senate might not move fast enough to use impeachment, and the president might after getting out of office be in practice near totally immune to legal accountability. With how much power we give presidents as individuals, that worries me.

are you suggesting that a Rubicon crossing is less likely if we allow the President more leeway?

Yes, of course. Caesar's enemies don't need to placate all of his ambition. They need a bit less obstructionism, unyielding perspective, bitter zero sum politics, and a few clicks down on the compulsion to destroy their political rivals. Employ a bit more savvy, a bit more compromise, and outcomes other than the destruction of the Republic become more likely. Hopefully those outcomes even become appealing or preferable. I would not go back in time to tell Cato that if he imposes a few more limitations -- just one more extra long filibuster -- on his bitter enemy that everything would work out. The obstructionism, the politics, the factionalism is how you find out, woops, I guess power can be different than what it appears to be.

I didn't argue that the executive shouldn't have any limitations to immunity. Just that the Trump v. US ruling landed in about the correct area. The President is not practically any more or less "immune" to murdering his political enemies than he was 10 years ago. I have only read excerpts of the opinions and dissents, by the way.

It sounds like you have a lot more trust in the entities that enforce "rules and boundaries" than I do. I believe if the President had no legal immunities today they would be mired in nothing but lawsuits. I'd wager we agree there, then at some point from no limitations on prosecution to has chip in his brain that puts him to sleep when he thinks about a crime we diverge. Allowing the President to do stuff without having obstructionism and factionalism destroy the Republic is good. The qualm about the bribes hypothetical that ACB (I think) brought up as and the related evidentiary issue is a sticking point. I don't mind the President being immune to extra presidential bribes if it means another 100 years of of peace. This ruling gives the nation more time to iron out the details in the future.

We have cases of "no immunity" to full immunity, we have a mechanism to impeach, and we have a mechanism to remove a president every 4 years. It's fine, it's enough. Asking for much more from the same people, those that can get lost in the of their own perception of power, carries a risk. SCOTUS majority probably saw that people imposing rules and boundaries couldn't stop themselves or, if they didn't think so now, they saw a future where they couldn't.

A reliable, peaceful transfer of power is worth a hundred consecutive Trump presidencies.

That's an interesting perspective! I did ask mostly because I was curious and I appreciate your thoughts.

On reflection, I guess to me the bribe issue seems a little too close to plausibility for me, especially when you cross it with the pardon power. While typically I trust presidents not to abuse the pardon power too badly, or if they do it's generally not a big deal, its specific interaction with the recent ruling seems a bit more dangerous than either aspect in isolation.

I am very happy to see 1 and 2, and very unhappy about number 3.

  1. I don't have strong feelings about the substance of this either way, but it is very nice to see someone responding to a SC ruling they don't like the way they are supposed to - passing a new law. The court says the law currently doesn't work the way you want it to, so change the law don't just fight about the court. I'd hope this succeeds this even though I don't care about the merits just because I want everyone to respond to SC rulings in this productive manner.

  2. I think this is good and I have been advocating this plan for years. Every President gets exactly 2 picks, they happen regularly every 2 years. This lowers the luck factor in the court both high and low, makes terms a little shorter which is probably good, and should as a result hopefully lower the tensions around Presidential elections on this front.

  3. WTF is this supposed to be. Impeachment is the answer to this, just like it is for Presidents and other electeds. This just seems like an attempt to get a set of seemingly neutral rules which can be wielded in an decidedly unneutral manner in order to be able to force the other side's justices out even though you don't have the votes to impeach.

1 is bad, it puts each former president at the mercy of his successors, as there are several broad statutes that would apply to common presidential decisions. It also grants Congress too much power, radically changing the constitutional order. Reducing immunity? Fair enough (though I imagine we'll see the courts limit it on their own). Eliminating it? Another thing entirely.

2 is bad, as it will increase politicization. They already try to avoid the luck factors by often resigning under favorable presidents. This forces supreme court to be top of the mind for every election.

I think 2 is a mistake. It means that a president can effectively shift a little over 20% of the court to his POV per term. If you already had a few allies, it easily removes checks and balances against the president. If you get two terms, you are almost ensured to have a majority.

But the rules now mean that some Presidents can get really lucky (or unlucky). George H.W. Bush and Trump were one term Presidents and both got 3 SC judges. Clinton and Obama only got two (Obamas third being stolen by McConnell).

W got 2 nominees in 2 terms, but notably both were in his second term. So his first had zero.

I am in full agreement with you on 1, ambivalent about 2 (i think there are reasonable arguments to be made either way), and agree that 3 is an obvious end-run around not having enough votes to impeach.

The whole point of no term limits on supreme judges is so they remove the incentive of selling out to interest groups to maximize their income or social interested during their tenure. Unless there's evidence that long standing judges do in fact profit more than, say, congressmen in the nature of their duration as supreme court judges, #2 is pure culture war and could end up backfiring spectacularly.

#1 is from what I've read on this from here and other places, is a way to push things through this through disingenuous reading of the ruling and ignores the nuance of what the judges put forth. The only reason to put this into the reform is to go after an ex-president legally, and if it doesn't go through is a way to blame "those wiley Republicans are preventing the rule of law, what power hungry hypocrites!" It's pure dog-whistle for Democrats.

#3 is too open ended and essentially is a way to perpetuate those in power by hemming in the presidency. The liked president who toes the party line will get a pass, the unliked or controversial president will be hamstrung by 'morality' and 'ethics' which will mean whatever people want it to mean at the time.

The whole point of no term limits on supreme judges is so they remove the incentive of selling out to interest groups to maximize their income or social interested during their tenure. Unless there's evidence that long standing judges do in fact profit more than, say, congressmen in the nature of their duration as supreme court judges, #2 is pure culture war and could end up backfiring spectacularly.

That didn't seem to workout in the Thomas case, given all the gifts he received. And, his claims of being underpaid are another reason your statement seems false.

Those are a partisan hit job, and badly misrepresent things.

In any case, it would be obvious if you read Thomas that he's not being swayed. He's clearly one of the most principled justices, in that he cares most about what the Constitution actually says. See, for a recent example, his Netchoice opinion, where he weakens his own agreement with Alito's pseudo-dissent by saying he thinks Zauderer might have been wrongly decided. If that's not the impression you get of him, your ratio of reading slander:his opinions might be out of whack.

You would have to argue that the gifts he received was quid pro quo, and that multiple justices have done it in recent history, as one dissenting ruling doesn't seem to have an impact on the supreme court. Democrats have been attacking Thomas for 30 years, so him hobnobbing with wealthy friends hardly constitutes a new attack on his character. Who doesn't bellyache about getting paid enough?

I would imagine that spending 18 years, on top of having enough of a legal career to merit consideration as a SC justice (they would probably return to older nominations because the lifetime incentive to nominate super young ones would disappear), would be a long enough span of time that by the time you're done on the SC, your career is basically done anyways. So 18 years is too short to worry about a revolving door, at the very least for this particular position (might not extend to senators).

In fact, if you look at historical data the median age range (50-54) already serves an average of 18.6 years. That means a nominee of that age is going to be 68-74 when they're done, which leaves not that much time for corrupt profit. Or even no time at all! Remember, that historical average time served on the bench is usually ended by, uh, literal death or often major illness. And the most common age group is actually 55-59, so the problem would be even less notable.

So basically your worry about selling out is ranges from a minimal worry to a non-issue, according to the data.

What's the point of instituting and codifying an 18 year term limit except to boot out outliers? It makes it seems it's at best a short-term political play to get the most longstanding conservative judge off the bench and refresh an old Democratic judge and is a purely partisan reform.

What's the point of amending the Constitution permanently? Uh, obviously to create permanent change? It's more weird that you consider an amendment to be a short-term strategy. At least when we're talking about the construction of the amendment itself.

In the medium to long term it seems pretty healthy for the system to institute an 18 year thing. As I mentioned in my other comment, the timeframe is already in line with the current average time on the bench (or even a little longer), and furthermore if we go farther back in history, due to shorter lifespans, the Founding Fathers already would have viewed modern bench duration as an aberration. Thus this change is not only a wise move for future systemic stability (for BOTH parties, since long-term most parties still only expect to win only a little more than half the time) but also perfectly in keeping with precedent and, more controversially but probably correctly, the Framers' intent.

While I agree that it's not good for justices to be serving at 100, the reforms would increase politicization compared to the status quo.

The other Whitehouse has submitted a new bill on point #2. There's some morbidly humorous bits about the unintentional incentives -- the newest nine justices get to handle most cases, while the President gets to appoint a new one every couple years, which is funny until you've made a 'senior' justice's ability to rule on a case dependent on a Biden 2025 appointee not having a stroke -- but for the most part it's fucking with statutory jurisdiction as a workaround to shove the older appointees out. Meanwhile, cases where SCOTUS has original jurisdiction, the whole team is supposed to get together.

So you get the worst combinations of court-packing and constitutional law problems.

Hah, thanks for posting. That's an interesting way to go about it. What would be the best way to start with term limits if you're prevented from removing the current lifetime appointees? I think the new appointees should probably be subservient to the OG justices, or even irrelevant, until they the OG's are dead.

Start building an alternative court that handles... something until OG court is down to 5 or so then combine them?

If you just put the nine current seats up every two years based on seniority, it would go Thomas, Roberts, Alito, Kagan, Sotomayor, Gorsuch, Kavanaugh, ACB, KBJ. I might have the two Dubya and two Obama appointees out of order, but it's definitely RRRDDRRRD. So assuming we start in 2026 and no one dies in between, if Kamala wins you'd get a D majority starting in 2028, and if she won two terms you'd have a 6-3 D majority. The next flip after that would require three R terms in a row. So... Unlikely. You'd have to shuffle them up to start somehow.

Approximately zero percent chance we'd start in 2026, though. Even popular amendments usually take longer to run through all the state legislatures, I think. Still good research. Might work out if Roberts/Alito/Thomas decided to retire or something, which I view as at least somewhat possible (in a longer timespan for ratification, maybe 4 years?)

Edit: I stand corrected. Looks like most take about a year, and some take up to 3?

2 is a fair idea I suppose. I agree the current system is arbitrary and conservatives are just lucky it favored them. The others are dumb and will never happen.

I agree the current system is arbitrary and conservatives are just lucky it favored them.

Mitch McConnell's entire career is "luck"?

If there's a Lisan Al-Gaib in the Senate, it's McConnell. He's a long game conservative who only ever want to ensure a true conservative majority in SCOTUS (not the lispy moderate cuckservativsm of John Roberts)

The critique one can level against McConnell is that he sold out entirely (i.e. flip flopping on Trump and J6, letting Trump talk shit about his wife) to solidify his SCOTUS strategy. But the man did what he came to do.

#3 already exists- impeachment. #1 is at least a legitimate constitutional change.

#2 is pure conflict theory.

The third makes the judiciary a subsidiary rather than an independent branch of government. (of course, "enforcable" includes "selectively enforcable"). Term limits are interesting but I'm going to stick with conflict theory... it's unsurprising that Democrats are proposing major changes to the branch they control the least.

Fuck #1.

#2 has some merit.

#3 Needs a serious case how a supreme court judge has required #3.

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