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Culture War Roundup for the week of July 29, 2024

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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.