So I think there are several factors contributing to how liberals are viewing this court opening, including the obvious parallel to Merrick Garland's nomination, the ample examples of bad faith and violation of norms by congressional Republicans in the last 12 years, and pure outcome-based consideration (a 6-3 conservative court). I want to focus on that last one, which to me suggests that an expansion of the court makes a lot of sense. I will posit that despite the mitigating factors you mentioned, the composition of the court does matter. While justices do sometimes defect and there can be surprising decisions, more often than not politically charged cases are decided on predictable votes. The simple fact is Democrats have controlled the White House for 16 of the last 30 years, and yet find themselves outnumbered 2:1 on the Supreme Court. In other words, the composition of the court is not aligned with any democratic process. It is, as you said, a roll of the dice, with every opening on the court playing out as a high stakes no holds barred conflict. That doesn't seem ideal. If the court were expanded to 15 (preferably even with age or term limits), turnover would be more regular and the composition of the court would shift more fluidly. And given the higher frequency of vacancies and reduced stakes that implies, it would seem unlikely that either the public or the Senate could sustain the level of attention needed for the three ring circus nomination processes we have now. If you want to improve the legitimacy of the court, fairness needs to be a consideration.
I would worry about how those extra six seats would be filled. They could be created in such a way that the Court would go from a conservative majority to a liberal one in a single go. Then, the next Republican majority in congress would have reason to make another adjustment to turn the tables again, and so on. That would create a scenario where the Court is tugged back and forth by the political tides. Courts could be tempted to ram politicized rulings through before the tide turned. And following courts might become less respectful of precedent. The tug of war that currently holds sway in the legislature and the executive would end up infecting the judicial branch. Which I think would be much worse than no change. If the seats can't be created in a way that feels legitimate to both parties, I don't think it should be done.
A more speculative worry would be that a larger Court might be less conducive to dialog and compromise. It would be harder for fifteen justices to fully comprehend and respond to one another's positions. It might be more likely for the wings of the court to form caucuses that don't bother to understand one another. In her lecture that I cite in the article, Ginsburg relates:
"On the few occasions each year when we sit en banc—in the District
of Columbia Circuit, all twelve of us when we are full strength—I can
appreciate why unanimity is so much harder to achieve in Supreme
Court judgments. Not only do the Justices deal much more often with
constitutional questions, where, in many cases, only overruling or constitutional amendment can correct a mistake. In addition, one becomes
weary after going round the table on a first ballot. It is ever so much
easier to have a conversation—and an exchange of views on opinion
drafts—among three than among nine or twelve."
One of the things that struck me reading the writings of, and watching lectures by, Supreme Court justices for this article was the obvious collegiality of the court, and how, serving for many years with a small close-knit group appeared to allow them to grow deeply familiar with and sympathetic to one another's philosophies. It felt like the Court, despite the political turmoil surrounding it, has managed to remain one of our healthiest institutions. It would be sad if restructuring brought an end to that state of affairs.
I think there might be a false dichotomy presented here: given the choice between the essentially fungible Biden rule or McConnell rule, the Senate majority will simply pick the one that favors them more. I will assert these rules are not equally good, and furthermore that neither is the best possible rule for accomplishing the stated ends.
As noted, the Biden Rule - which should perhaps more accurately be termed the Thurmond Rule given its roots from 1968 - has stood as a semi-precedent for a considerable amount of time. The recent and seemingly arbitrary clause of "in a divided government" throws a new corollary on that precedent; it is the infield fly rule, the en passant move, the "except on every third Sunday" fine print, introduced at just such a time that the introducer sees maximum benefit.
But argument from tradition is hardly compelling, particularly in an age of norm-defying politics. One needs to dig deeper into the intention and spirit of the rule. Fundamentally, the McConnell rule appeals to the notion that the current will of the people should be expressed more loudly than a lame-duck president's final actions. In his most recent letter, McConnell appeals to the notion that not only are the Senate and President of the same party, but furthermore that the Senate majority increased in 2018. Let's take him at his word, and ask, "Does same-party representation in Senate and Presidency accurately reflect the will of the people in an election year? Does growth of that representation also reflect that will?"
Those who would argue yes would look no further than the midterm election as proof that the pulse of the nation had been accurately measured - if they didn't like the guy in charge, they wouldn't have kept his friends in the Senate, right? Unfortunately, the Senate has 6-year terms, which by definition means only a fraction of the people have a voice; not every state can have a Senator come due for election at every midterm.
Moreover, with only 1/3 of the Senate at stake in a given midterm, there can be immense statistical bias. The 2016 Senate saw 52 Republicans and 46 Democrats; however, in the 2018 election, 24 Democrats were fighting for their seats, while only 9 Republicans did so. Assuming a 33% turnover in both parties, one would naturally expect 8 Democratic seats to flip, but only 3 Republicans. That results in a net gain of 5 seats for Republicans, and a 57-41 split in the Senate. Now this bias will flip back in 2020, as a majority of Senate seats coming up for re-election are Republican (23-to-12), but that's further evidence that a single Senate election cannot accurately reflect the will of the people.
As Republican Senate leader for the past 14 years, McConnell is no stranger to the above calculations. It is not unreasonable to speculate that he is knowingly exploiting his letter's mathematical fallacy to cover his raw realpolitik - "justice is merely the will of the stronger" - with a thin veneer of virtue. At the risk of ad hominem, it certainly wouldn't be out of character for him.
If, on the other hand, we do take him at his word, there should be a better way to measure the pulse of the nation at midterm elections: an office that is re-elected every two years, thereby ensuring all states have a voice and no party bias can occur. If any modification needs to be made to the Biden-Thurmond rule to more accurately reflect the updated and most current will of the people, it should be whether the House of Representatives and President are of the same party.
That perspective makes sense. It's true that McConnell's arguments are a veneer over realpolitik. I'm not sure that a more nuanced process is workable given the degree of polarization and mistrust that currently exists in America. The McConnell rule is the one that holds, not because it's the most justifiable, but because it's a Nash equilibrium: both sides make the move that gains them the most advantage. It's a true expression of what's actually going on.
I would like for both sides to instead be able to take actions that foster goodwill and faith in government. My philosophy in these articles in general is that, in order to get to that state of affairs, the people need to become more willing to cooperate and less inclined to see each other as threats. The behavior of congress, I'm saying, is downstream of the attitudes of the people.
The position I'm staking out in this article is an attempt to answer the question "how can we de-escalate tensions in the face of the kind of intense conflicts as those surrounding these Supreme Court confirmations." It's an attempt to interpret things in a way that allows us to move toward moderation. I think we need to look for such moves if we want to get out of this state where both sides use their power more and more aggressively. This kind of escalation leads to a cycle of increasing polarization and extreme behavior. I think escaping from that cycle needs to be our top priority.
This discussion seems to be somewhat over my head, so I will just stick to the practical cases and bring up the fact that there already 5 conservatives on the court. Even the similar configuration 4 liberals and 5 conservatives have resulted in:
the Citizens United decision which has fundamentally changed our elections
I am old enough to know that 6 conservative justices only makes it more hopeless that these wrongs will be righted. If, as I hope there will be there is legislative action on these issues, we can be all but certain that court cases will immediately follow tying up any amelioration of these injustices long beyond my natural lifetime. It is enough to make the people cry out for justice and take to the streets if that seems to be the only option. Remember those who have already done enough suffering for the vote in this country. Is there no remedy for justice but to continue to wait indefinitely?
The franchise is definitely fundamental. Without the opportunity to vote, people don't even get a say in the composition of the legislatures that I'm saying should be the focus of change.
These issues justify concern. But I wouldn't characterize the relevant decisions by the courts as "wrongs". And to say that Shelby County v. Holder "broke" America is the kind of catastrophizing that worries me. Once we go from "I disagree with this decision" to "this decision broke the country" we get into dangerous territory. What's the point of safeguarding our institutions if everything's already broken? How can I cooperate with people who want Supreme Court justices on the bench who will deliberately use their positions to perpetrate injustices?
There's an assumption that getting angry and taking increasingly radical measures helps defend against the misbehavior of the other side. But I think it's those things that make the other side unreachable to us. They do more harm than good, by preventing real solutions.
As the Brennan Center article you linked says "94 percent of Americans blamed wealthy political donors for political dysfunction, and 77 percent of registered voters said that 'reducing the influence of special interests and corruption in Washington' was either the 'single most' or a 'very important' factor in deciding their vote for Congress." There ought to be a powerful incentive for congresspeople to legislate on these issues. But it's impossible to tap into numbers like that unless we're able to cross party lines. Unfortunately, we keep making those lines brighter, sharper, and harder to cross. We have two parties with nearly equal power, that bicker constantly, and appear to exist more to spite one another than for any other reason. I don't think we have to be choosing sides in an existential struggle. We can all get what we want, but only if we work hard to empathize with and avoid demonizing the other side. We need to get out of the habit of thinking about how to win as parties and interest groups and start focusing instead on how to win as a country.
This takes me back to the point I was trying to make that legislation like the McCain Feingold campaign finance law, the Voting Rights Act or the Affordable Care Act, tries to right real problems but is overturned or rolled back by the SC. My observation would be that it is very difficult to put together a majority that is able to legislate. The constant overturning of legislation that is trying to bring progress toward fairness, on some legal grounds that people don't really understand, doesn't enhance the sense that progress is being or can be made. If no progress can be made in our lifetimes, it really calls the whole system into question.
That's a good point. It's hard to actually write and pass legislation. It is very sad for something that was able to pass to be modified in a way that makes it unworkable. It's important that the Court would be predictable enough that legislators can avoid major issues, or there really would be a big problem. I was thinking about this issue when I was writing this piece. It seems like it would be useful if there was a way for legislators to consult the Court when they're drafting legislation. I'm pretty sure there isn't. Though I'm sure they have good lawyers.
Hopefully big surprises are rare. I think that the judgements relating to those first two covered particular provisions and left most of the laws in tact, though I haven't studied them closely.
In any case, I continue to argue for proportion, and for any changes to be made with great care for the legitimacy of the Court. It's not clear to me that there's a reason that these decisions should be more controversial--many of which were very controversial--than countless others the court has made over its history. I think our politics is just more intemperate.
So I think there are several factors contributing to how liberals are viewing this court opening, including the obvious parallel to Merrick Garland's nomination, the ample examples of bad faith and violation of norms by congressional Republicans in the last 12 years, and pure outcome-based consideration (a 6-3 conservative court). I want to focus on that last one, which to me suggests that an expansion of the court makes a lot of sense. I will posit that despite the mitigating factors you mentioned, the composition of the court does matter. While justices do sometimes defect and there can be surprising decisions, more often than not politically charged cases are decided on predictable votes. The simple fact is Democrats have controlled the White House for 16 of the last 30 years, and yet find themselves outnumbered 2:1 on the Supreme Court. In other words, the composition of the court is not aligned with any democratic process. It is, as you said, a roll of the dice, with every opening on the court playing out as a high stakes no holds barred conflict. That doesn't seem ideal. If the court were expanded to 15 (preferably even with age or term limits), turnover would be more regular and the composition of the court would shift more fluidly. And given the higher frequency of vacancies and reduced stakes that implies, it would seem unlikely that either the public or the Senate could sustain the level of attention needed for the three ring circus nomination processes we have now. If you want to improve the legitimacy of the court, fairness needs to be a consideration.
That's a pretty convincing argument.
I would worry about how those extra six seats would be filled. They could be created in such a way that the Court would go from a conservative majority to a liberal one in a single go. Then, the next Republican majority in congress would have reason to make another adjustment to turn the tables again, and so on. That would create a scenario where the Court is tugged back and forth by the political tides. Courts could be tempted to ram politicized rulings through before the tide turned. And following courts might become less respectful of precedent. The tug of war that currently holds sway in the legislature and the executive would end up infecting the judicial branch. Which I think would be much worse than no change. If the seats can't be created in a way that feels legitimate to both parties, I don't think it should be done.
A more speculative worry would be that a larger Court might be less conducive to dialog and compromise. It would be harder for fifteen justices to fully comprehend and respond to one another's positions. It might be more likely for the wings of the court to form caucuses that don't bother to understand one another. In her lecture that I cite in the article, Ginsburg relates:
"On the few occasions each year when we sit en banc—in the District
of Columbia Circuit, all twelve of us when we are full strength—I can
appreciate why unanimity is so much harder to achieve in Supreme
Court judgments. Not only do the Justices deal much more often with
constitutional questions, where, in many cases, only overruling or constitutional amendment can correct a mistake. In addition, one becomes
weary after going round the table on a first ballot. It is ever so much
easier to have a conversation—and an exchange of views on opinion
drafts—among three than among nine or twelve."
One of the things that struck me reading the writings of, and watching lectures by, Supreme Court justices for this article was the obvious collegiality of the court, and how, serving for many years with a small close-knit group appeared to allow them to grow deeply familiar with and sympathetic to one another's philosophies. It felt like the Court, despite the political turmoil surrounding it, has managed to remain one of our healthiest institutions. It would be sad if restructuring brought an end to that state of affairs.
I think there might be a false dichotomy presented here: given the choice between the essentially fungible Biden rule or McConnell rule, the Senate majority will simply pick the one that favors them more. I will assert these rules are not equally good, and furthermore that neither is the best possible rule for accomplishing the stated ends.
As noted, the Biden Rule - which should perhaps more accurately be termed the Thurmond Rule given its roots from 1968 - has stood as a semi-precedent for a considerable amount of time. The recent and seemingly arbitrary clause of "in a divided government" throws a new corollary on that precedent; it is the infield fly rule, the en passant move, the "except on every third Sunday" fine print, introduced at just such a time that the introducer sees maximum benefit.
But argument from tradition is hardly compelling, particularly in an age of norm-defying politics. One needs to dig deeper into the intention and spirit of the rule. Fundamentally, the McConnell rule appeals to the notion that the current will of the people should be expressed more loudly than a lame-duck president's final actions. In his most recent letter, McConnell appeals to the notion that not only are the Senate and President of the same party, but furthermore that the Senate majority increased in 2018. Let's take him at his word, and ask, "Does same-party representation in Senate and Presidency accurately reflect the will of the people in an election year? Does growth of that representation also reflect that will?"
Those who would argue yes would look no further than the midterm election as proof that the pulse of the nation had been accurately measured - if they didn't like the guy in charge, they wouldn't have kept his friends in the Senate, right? Unfortunately, the Senate has 6-year terms, which by definition means only a fraction of the people have a voice; not every state can have a Senator come due for election at every midterm.
Moreover, with only 1/3 of the Senate at stake in a given midterm, there can be immense statistical bias. The 2016 Senate saw 52 Republicans and 46 Democrats; however, in the 2018 election, 24 Democrats were fighting for their seats, while only 9 Republicans did so. Assuming a 33% turnover in both parties, one would naturally expect 8 Democratic seats to flip, but only 3 Republicans. That results in a net gain of 5 seats for Republicans, and a 57-41 split in the Senate. Now this bias will flip back in 2020, as a majority of Senate seats coming up for re-election are Republican (23-to-12), but that's further evidence that a single Senate election cannot accurately reflect the will of the people.
As Republican Senate leader for the past 14 years, McConnell is no stranger to the above calculations. It is not unreasonable to speculate that he is knowingly exploiting his letter's mathematical fallacy to cover his raw realpolitik - "justice is merely the will of the stronger" - with a thin veneer of virtue. At the risk of ad hominem, it certainly wouldn't be out of character for him.
If, on the other hand, we do take him at his word, there should be a better way to measure the pulse of the nation at midterm elections: an office that is re-elected every two years, thereby ensuring all states have a voice and no party bias can occur. If any modification needs to be made to the Biden-Thurmond rule to more accurately reflect the updated and most current will of the people, it should be whether the House of Representatives and President are of the same party.
That perspective makes sense. It's true that McConnell's arguments are a veneer over realpolitik. I'm not sure that a more nuanced process is workable given the degree of polarization and mistrust that currently exists in America. The McConnell rule is the one that holds, not because it's the most justifiable, but because it's a Nash equilibrium: both sides make the move that gains them the most advantage. It's a true expression of what's actually going on.
I would like for both sides to instead be able to take actions that foster goodwill and faith in government. My philosophy in these articles in general is that, in order to get to that state of affairs, the people need to become more willing to cooperate and less inclined to see each other as threats. The behavior of congress, I'm saying, is downstream of the attitudes of the people.
The position I'm staking out in this article is an attempt to answer the question "how can we de-escalate tensions in the face of the kind of intense conflicts as those surrounding these Supreme Court confirmations." It's an attempt to interpret things in a way that allows us to move toward moderation. I think we need to look for such moves if we want to get out of this state where both sides use their power more and more aggressively. This kind of escalation leads to a cycle of increasing polarization and extreme behavior. I think escaping from that cycle needs to be our top priority.
This discussion seems to be somewhat over my head, so I will just stick to the practical cases and bring up the fact that there already 5 conservatives on the court. Even the similar configuration 4 liberals and 5 conservatives have resulted in:
the Citizens United decision which has fundamentally changed our elections
https://www.brennancenter.org/our-work/research-reports/citizens-united-explained
and the Shelby County v. Holder which has resulted in the loss of franchise for many through voter suppression measures in many states.
https://www.theatlantic.com/politics/archive/2018/07/how-shelby-county-broke-america/564707/.
I am old enough to know that 6 conservative justices only makes it more hopeless that these wrongs will be righted. If, as I hope there will be there is legislative action on these issues, we can be all but certain that court cases will immediately follow tying up any amelioration of these injustices long beyond my natural lifetime. It is enough to make the people cry out for justice and take to the streets if that seems to be the only option. Remember those who have already done enough suffering for the vote in this country. Is there no remedy for justice but to continue to wait indefinitely?
The franchise is definitely fundamental. Without the opportunity to vote, people don't even get a say in the composition of the legislatures that I'm saying should be the focus of change.
These issues justify concern. But I wouldn't characterize the relevant decisions by the courts as "wrongs". And to say that Shelby County v. Holder "broke" America is the kind of catastrophizing that worries me. Once we go from "I disagree with this decision" to "this decision broke the country" we get into dangerous territory. What's the point of safeguarding our institutions if everything's already broken? How can I cooperate with people who want Supreme Court justices on the bench who will deliberately use their positions to perpetrate injustices?
There's an assumption that getting angry and taking increasingly radical measures helps defend against the misbehavior of the other side. But I think it's those things that make the other side unreachable to us. They do more harm than good, by preventing real solutions.
As the Brennan Center article you linked says "94 percent of Americans blamed wealthy political donors for political dysfunction, and 77 percent of registered voters said that 'reducing the influence of special interests and corruption in Washington' was either the 'single most' or a 'very important' factor in deciding their vote for Congress." There ought to be a powerful incentive for congresspeople to legislate on these issues. But it's impossible to tap into numbers like that unless we're able to cross party lines. Unfortunately, we keep making those lines brighter, sharper, and harder to cross. We have two parties with nearly equal power, that bicker constantly, and appear to exist more to spite one another than for any other reason. I don't think we have to be choosing sides in an existential struggle. We can all get what we want, but only if we work hard to empathize with and avoid demonizing the other side. We need to get out of the habit of thinking about how to win as parties and interest groups and start focusing instead on how to win as a country.
This takes me back to the point I was trying to make that legislation like the McCain Feingold campaign finance law, the Voting Rights Act or the Affordable Care Act, tries to right real problems but is overturned or rolled back by the SC. My observation would be that it is very difficult to put together a majority that is able to legislate. The constant overturning of legislation that is trying to bring progress toward fairness, on some legal grounds that people don't really understand, doesn't enhance the sense that progress is being or can be made. If no progress can be made in our lifetimes, it really calls the whole system into question.
That's a good point. It's hard to actually write and pass legislation. It is very sad for something that was able to pass to be modified in a way that makes it unworkable. It's important that the Court would be predictable enough that legislators can avoid major issues, or there really would be a big problem. I was thinking about this issue when I was writing this piece. It seems like it would be useful if there was a way for legislators to consult the Court when they're drafting legislation. I'm pretty sure there isn't. Though I'm sure they have good lawyers.
Hopefully big surprises are rare. I think that the judgements relating to those first two covered particular provisions and left most of the laws in tact, though I haven't studied them closely.
In any case, I continue to argue for proportion, and for any changes to be made with great care for the legitimacy of the Court. It's not clear to me that there's a reason that these decisions should be more controversial--many of which were very controversial--than countless others the court has made over its history. I think our politics is just more intemperate.