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PaperclipPerfector  3mo ago (text post)   32892 thread views

Culture War Roundup for the week of August 5, 2024

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Constitutionally, there's nothing specifying 9 seats. That's only by statute and convention.

Sure, I get that. But you guys have the whole thing where new statutes get stayed when they are challenged in court. So in this scenario where the Democrats pass a bill allowing them to appoint new justices, that new law gets challenged and reviewed before it goes into operation, right? So there wouldn't be any new appointments prior to the bill being found unconstitutional, unless I've misunderstood something.

Besides which, the law as it stands says it's 9 justices. So even if appointments get made, if the new law is overturned then you go back to that. So in a scenario where Alito/Roberts/Thomas were given "senior status" and new appointments were made, then the law gets found unconstitutional... then you have 12 justices and the law says there can only be 9. So the first most obvious thing is not to allow that circumstance to occur in the first place, and the second most obvious thing is to invalidate the new appointments made under an unconstitutional law.

True, these are relevant details. My gut is that since appointments are a constitutionally provided thing, and the statute is merely federal law, they couldn't be stopped from appointing people, nor would their appointments be dependent on the validity of the statute. But I really don't know; good point about a stay.

Generally, when striking down laws, SCOTUS only strikes down the part that's unconstitutional. The hypothesized law would look something like this:

  1. The number of seats on SCOTUS is 9+N where N is the number of justices who've been there longer than 18 years.
  2. SCOTUS justices who've served longer than 18 years don't vote.

The point Felagund is making is that #2 would be struck down but #1 is not unconstitutional and would thus stay.

I guess that's possible, but it would depend on the technical language of the bill, which we don't have. It could also end up being written in a way where that potential outcome doesn't occur. And by the time it made its way through the judicial process it could end up being the President after next who first gets to use it. Seems a bit early to be declaring it an end-run around court-packing norms just yet.

Standing would be an issue

Surely Thomas, Alito, and Roberts would have standing.

Though of course they would need to recuse themselves from the case if it got to SCOTUS which creates its own complications.

The ones who would inherit the power vacuum caused by recusal would, by the same logic, need to recuse themselves, leaving nobody.

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