Starting in the 1930s, the highest judges in the German judiciary began to slowly change the law so that step-by-step Jews, gypsies, Communists and homosexuals were moved outside legal protection; and inexorably all acts against them--confiscation of property, restrictions on employment & education, loss of voting rights, branding--yellow and pink stars--and, eventually, "transportation" to labor camps (and, ultimately, death camps) became legal.
As Hanna Arendt demonstrates in "Eichmann in Jerusalem," the killing of "undesirables" was no longer a crime because their murders were now the law of the land.
That is the slope the conservative majority of the Supreme Court would shove us down. The Muslim ban was the first push. The caging of fugitive foreign children was the second. More are coming.
307
Just eliminate the simple majority vote (5-4) on the Supreme Court and replace it with a 6-3 or better.
1
As a Democrat it really worries me to see so many commenters choosing from a menu as if it’s a game. Politics is the art of the possible. Aside from the fact that I don’t agree with abolishing the Electoral College or term limits for anyone in federal positions, these things will never happen and attempts to do that make us look unready to govern. Legislation is possible to change many things. First a new voting rights act that spells out how to determine whether a state is post racist would help. Second increasing the HOR steadily over 30 years to double can be legislated, would dilute the Electoral College effect and if criteria were used to see if representation by party matches state averages, all new seats could be at- large. In other states it would dilute incumbency influence. One can offer a constitutional Amendment to give states a third Senste senate once we reach double, add one for PR, Guam, DC and send that third one back to the states do Demi rats get back involved in state government so the ideas don’t come out so I’ll considered. We have to change our approach.
I’m hoping Pete is just making g those statements that he dies to not be too outflanked on left to sustain interest. He’s well thought out and courageous and young. He’s careful not to take a too bold a stand and he realizes that Electoral College reform is incremental.
2
I could not agree more Mr. Bouie.
Many people dream of a great progressive wave which will turn the US back toward a fairer future for everyone, not just for wealthy whites. But the fix is already in and the courts are being packed daily by regressive old white men. Even if more enlightened and caring presidents and legislators are elected in the future they will not be able to undo this evil that Republicans have done to the people of the US.
4
Mayor Pete's plan would make the court less overtly partisan, but at the cost of making it a political eunuch. Constrain the range within which a pendulum may swing, and it will soon stop all together. Without the leftward arc from the 1950s through the 1980s, wither the rights we now enjoy, e.g., free speech, free press (NY Times v. Sullivan placing a high bar to recovery of damages in libel cases involving a public figure perhaps the most important), access to contraception, abortion, and the right to counsel for indigent criminal defendants? Neuter the court and you can forget about the meaningful expansion of rights and responsibilities necessary to preserve our freedoms in the digital age. Soon, the structural advantage the GOP has in the Senate will almost certainly flip for a generation to the Democrats as Arizona, Texas, Nevada, Georgia, North Carolina, Colorado, and Florida routinely send two Democrats to the US Senate. Thereafter, we are a couple of well-timed Democratic Presidents away from replacing Justices Thomas (age 70), Alito (69) and Roberts (64) with liberals. And we must maintain control as long as we can because the Federalist Society will insure the GOP does not pick another Warren, Brennan, Blackmun, Stevens, or Souter, or as I like to call them, the GOP's contribution to keeping SCOTUS liberal.
2
@Nicholas Rush
Right wing court-stacking is only a means to an end. Voter suppression, redistricting and dark-money are targeting the Constitution itself. Republicans hold 30 state legislatures, once they reach 38 they can pass any amendment they wish and there's nothing a president or judiciary can do about it.
We're talking abortion nowhere, open gun carry everywhere, public money to private schools, prayer in all schools, reapportionment of electoral votes and codified vote quashing to perpetuate the beast ... on and on.
Mr. Rush, no matter how bad you think it's going to get, it'll be many times worse.
The only way to avoid this, as I see it, is to get statehood for Washington, DC and Puerto Rico or carve out a few states from this Union and let these people all live together in their co-misery ... with FOX "News" as their state run propaganda machine.
This is orchestrated, this is planned ... and Watergate and Iran-Contra are nothing compared to this. What we're experiencing is coming right out of Republican think-tanks and they're coming for a freedom near you!
4
Our country needs the Senate to do its job and restore the older standards practices for judicial confirmation. First, bring back respect for the review of bar associations ... the candidates passing Senate muster these days are often rated as unqualified by the American Bar Association, deservedly so, and are frankly legal loons. Second, bring back the "no litmus test" standard ... that permits looking at legal qualifications and reasoning, rather than focusing on ideology exclusively and judicial ability be damned.
Right now, we have a shameful crop of new federal judges. The Senate is shamefully ducking any pretense of giving our country a respectable judiciary.
2
I can't take credit for this idea nor remember where I read it. Limit terms on the Supreme to 18 years starting with the next Justice. Justices will retire every two years preventing the party in charge from packing the court.
1
Sure, let’s even further codify the two-party system, which isn’t serving us.
My preferred solution is still term limits for judges, including justices. Give them a 15 year term, non-renewable. That is consistent with the Founders who didn't expect judges appointed at 45 to last 40 more years. It's two odd, prime numbers, so it doesn't line up with other elections too often. And it's long enough that it provides the stabilization effect that I think the Constitution intends. Choose them however you want, just don't keep them forever.
3
Given that the President of the United States is given the sole and exclusive right to nominate candidates to the courts in the federal judiciary system, why shouldn't he be appointing judges and justices that reflect his views?
Come now...anyone that thinks that the courts have NOT been a political institution fails to understand the precepts of our Constitution.
4
The schism of left and right comes down to the definition of rights. Originalists believe rights stem from limits on government control of a persons life. Progressives want to expand the definition to mean guaranteed rights to specific needs; a right to affordable housing,a right to clean water and air, schooling and other free stuff...things a free people were intended do for themselves on local and state levels.
3
But how can an individual of the middle class and the poor provide themselves and their families with clean water and air, good schools, parks, affordable health care, safe bridges, roads, etc. We have a government for a reason which is to provide for the common good of all.
1
Can someone tell me what Jamelle Bouie means by arguing that others can interpret the Constitution in a way that bears on the actual conduct of the government and the country? And how his view differs from that of the various movements which assert their rights to interpret the Constitution as they wish?
2
Maybe as insidious as the structure and proclivities of the current Supreme Court is the current momentum in altering the makeup of District and Circuit courts, which are the reservoir for future Supreme Court justices, and the Senate procedures for confirming federal judges at all levels. Those procedures are essentially the legacy of now-retired Senator Harry Reid, and adapted by Senator Mitch McConnell --- with the assent of the entire Senate in both instances.
1
Under Trump and the Republican Senate majority, not to mention Republican legislative majorities in many states, laws are being passed and executive orders issued that have the overriding goal of cementing (or returning) power to the white male minority in this country over the rights of women, religious, ethnic and racial minorities, workers and the poor. A recent online survey by the Public Religion Research Institute and The Atlantic indicates that a majority of Americans feel positive about the increasingly diverse U.S. population, but also that a majority of Republicans do not. This is the underlying issue of the 2020 elections, both national and statewide, and Democrats and Independents, joined by moderate Republicans, need to make it the central one.
2
But the Supreme Court has been a political institution since the 1930s, under FDR and the legal realists. This was a liberal trend, to make the courts responsive to liberal political agendas. Conservatives began doing the same once they came into political power. Nothing new here, moving along.
2
Jamelle seems a bit overzealous in his desire to take down Pete, one of our new shining lights.
The subtitle of his piece would seem to replicate the gross partisanship of the Supreme Court he derides. Would a “progressive agenda” a priori lead to a more enlightened Supreme Court, or would it merely exacerbate political partisanship, but from the other side? The objective would be to construct a Supreme Court that embodies what it means to be a judge—to be judicious, impartial, prudent.
Many commentators suggest changes that would address the issue of partisanship and the vindictive partiality of the confirmation process more deftly than the structure that Pete has adopted.
The judiciary is the only branch of government that lacks term limits. Impose term limits. Ten years sounds about right. Enough time for Justices to gain experience and mature and contribute to the Court without becoming ossified fixtures.
The President enjoys too much power in his ability to nominate judges. Nominations should be conducted by committee, whether in the Senate or the House. Congress can hash out much of the attritive Republican/Democratic divide beforehand, possibly preempting the ugly specter of the confirmation process altogether.
Mandatory retirement to address the issue of cognitive decline. Seventy or seventy-five sounds about right.
Is this too commonsensical?
4
I've been an attorney for forty years. And I believe the dangers of this present Supreme Court haven't been spelled out as plainly as they need to be by Mr. Bouie.
No doubt this is a partisan court led by five justices whose rightwing views are nowhere near the political center of the populace. And no doubt they are poised to reverse decades long gains in civil rights and womens rights.
But the more staggering fact is that their rulings will affect literally generations of Americans. Commentators on news shows bemoan the fact that we might have to "live with this court" for the next thirty years. Would that the time be so limited.
In fact, judicial decisions by our highest court last generations. Korematsu was good law for seventy years. Plessy was good law for sixty. The fact is, every American alive today, even infants and young children, will live in an extremely rightwing America that has blurred the lines between church and state. Every American, of any age now, will live in an America where five men's views of Christianity will control their most basic rights and freedoms.
Mayor Pete's proposal to revamp the court is well-considered. However, the likelihood of its passage is nil, given the current composition of the Senate.
So understand this. As bad as living under Trump's rule is, the circumstances are even worse. Americans will be ruled by law created by five white, Christian males with far right extremist views, for at least three or four more generations.
670
@Nicholas Rush
Seems to me a large part of this could be fixed with term limits. Lifetime appointments at this level make little sense in a rapidly changing world. Thoughts?
158
@BLS,
I believe this would require a Constitutional amendment, and so while I do agree with the concept, the likelihood of its passage at present, and for some years in the future, is unlikely. Sadly, there simply is no short-term "fix" to the circumstances we find ourselves in.
41
@BLS Yes, term limits are necessary to prevent racial and incompetent justices from doing damage for decades. The fact they now have lifetime appointments has not in any way prevented them from forcing their political ideology on us.
32
Why Mayor Pete would get mixed up in something like this is beyond me. This has a zero chance of becoming law. More importantly, we don't know that McConnell's duplicity where the Supreme Court is concerned will be effective. Gorsuch and Kavanaugh are not even a sure thing on business-related decisions, as we saw recently when they both, on separate decisions, sided with the liberal side of the Court. So Roe v. Wade, in my estimation, is not at risk. And even if Roe is imperiled, think about how a repealed Roe v Wade would affect the following election. I am not convinced that the Supreme Court has been turned into a political tool for Republican's. Trump politicizes everything and that is affecting Americans, but the result, I believe, long term, will be a renewed effort to actually make America great again, by rejecting Trumpism, at all levels.
1
Mayor Pete is a technocrat, as are many of the other candidates. They are hyper-intelligent, hyper-educated and hyper-informed. But they lack the depth to really understand what is going on here: It's not only the balance of power among the branches that needs reordering, it's the entire culture and society. We need transformational leadership that will set on us a path towards a less selfish, less materialistic, less gluttonous way of living. Tinkering around the edges is a recipe for disaster in the not too distant future.
4
1. Term limits, term limits, term limits
2. 2/3 majority vote to confirm, so the majority party cannot shove blatantly partisan judges down our throats.
3. Whatever needs to happen to vastly reduce the power of senate majority leaders, and not only because of the SCOTUS
4. Term limits for House and Senate!!!!!!!!!!!!
2
I say:
When Congress goes blue we defund two SCOTUS seats and kick off Gorsuch and Kavanaugh.
Last hired, first fired.
3
Progressivism is antithetical to our constitutional representative republic. Completely incompatible.
Only strict constructionist judges should be on our federal courts. If leftists’ ideas are so great....pass them in their state legislatures. But they can’t. Because their ideas tend to be harmful. Witness what’s going in in big cities led by Democrats. Massive homelessness, crime, garbage, used needles and human waste abound.
4
Do you mean those who will ignore Constitutional Amendments especially IX and X as well as XIII-XV and consider the baseline what comes from the Roman Catholic Church.
The activist judges are the so called conservatives who blur the line between church and state and try to take away voting rights.
Is that the American way?
3
The role of the Supreme Court is exaggerated only when the Congress fails to legislate, refine laws that may be struck down by the courts. We need our elected leaders in the Senate and House to their job. It’s the Legislative branch of government that matters most.
4
There must be a constitutional ammendment passed - to eliminate the Supreme Court tenure for the justices and replace it with terms.
I would compromise for two eight year terms, but two six year terms might be better.
That would provide for the Supreme Court reflecting the state of the nation's sentiments as the reality progresses and changes.
1
The best solution is to abolish life time appointment of Supreme Court judges and limit the term to six years. This will take care of prolonged dominance of conservative or liberal judges.
1
Buttigieg would probably agree with Boule’s assessment that one court reform will not fix the problems that arise from 30 years of Republican efforts to entrench the power of a minority. That’s why he talks about the proposal for the Supreme Court as part of a long term agenda to restore democracy. That’s why he talks more about progressive values and the need for democratic reform than about the details of policies that cannot pass in the current political environment.
2
Progressives are at a point when they need to become known for their losses. They need to lose some fights because the deck is stacked. That brings out voters. Capture the senate and then conduct an impeachment and removal of Thomas or some other ultra conservative. SCOTUS gets to decide on matters UN-constitutional, but conservatives are over-playing their hand and doing things that are anti-constitutional and that gets remedied by the voters. First step, impeach Trump and dare the 22 GOP senators up for re-election to not remove him. Come on Nancy!
3
This is hilarious.
"Progressives must look, instead, to presidents and other leaders who resisted the Supreme Court’s claim to ultimate interpretive authority."
There is exactly ZERO chance that Bouie would have endorsed this view about the Supreme Court coming from conservatives from the fifties thru the eighties or so.
The Supreme Court is the final word. That is, it is the final word except when it is not under the control of people Bouie finds acceptable.
The Court is not supposed to be a majoritarian institution. But if Bouie's positions are as popular as he claims it should be a piece of cake to expand the court and/or pass new laws and amendments to gut rulings Bouie doesn't like.
But this column comes off as nothing more than whining that the other side is winning and it's just not fair. Bouie continues to evince a serious and even dangerous hostility towards the idea that people who don't share his politics get to vote. And sometimes they even win. Deal with it. The world will keep on turning.
5
The only solution for the dysfunction of Congress and a politicized Supreme Court is term limits. We understand that with the executive branch, why can’t we understand that with the other two. Life time appointments and unlimited reelections just keep the status quo of the dysfunction. Who ever talks about this deserves a space for observation not just for criticism.
2
This is really interesting. I'd love to hear more about how the other two branches of government might challenge the rulings of a judiciary that is out of step with the will of the American citizenry, without making fundamental structural changes to the Constitution... Perhaps this would be timely topic for The Argument podcast?
Suppose some other party becomes more popular than the Democrats and Republicans? Where is its role in the supreme court. Pete doesn't seem to have thought this through.
Judges should not be partisan. The problem is the process has been politicized. Judges used to be submitted for appointment by none-partisan blue ribbon committees. Now they are picked by Conservative or liberal think tanks.
Rights that have been attained through judicial review to remedy injustices should be legislated into law or through Constitutional amendment.
We are asking Courts to both rule on injustices and remedy them. The remedy is Congresses job. Congress and the Presidents have failed to act because of political reasons. Politicizing the Court is hardly a solution.
Pete's is a complex technocrat's solution. Here is a simpler one to address what is actually the problem.
Voters know what they are doing when they elect a president and understand full well that he or she will seek to appoint judges who share their views. The problem is that presidents are now appointing 45-50 year old judges to lifetime jobs With improved healthcare and the longer lifespans we enjoy, they can potentially serve as a judge for 30-35 years. Putting aside the fact that an 85-year old judge is not as sharp as he or she once was, this allows a president to impact the court long after he or she has left office.
So the solution is this: No more lifetime appointments. Limit federal judicial terms to 15 years. That's plenty of time for them to become a great judge and influence the court, but will not let a president rule the judiciary for decades after he is in office.
3
So the new "Progressive" agenda is to ignore Supreme Court rulings they disagree with and pack the court until it rules as they wish...Very Trumpian!
3
The collectivist progressives cannot reliably advance their agenda with the ballot box.
And so, we see open discussion on how to use the courts to circumvent the voters.
At least the progressives are up front about their desire to subvert the Constitution.
With a little luck, the return of balance in the federal judiciary brought about by Trump's appointments will bring about the reversal of the unconstitutional abuses of power wrought by the cunning but spineless Obama and his cohort in Congress, and relegate progressivism to the septic tank, where it belongs.
1
Er, no. Tooth and nail is too mild an expression to describe the all-out war that will erupt should the whiners and the weenies even attempt to change the Court's makeup and Constitutional setting. Period. When the Court engineered the fantasies the left could not win legislatively, all was fine and dandy. The shoe is on the other foot and we intend to stand on the necks of these hypocrites for the same thirty years they stood on ours. Live with it. Or face civil unrest you will not believe. But you will see it.
1
I don't share Jamelle Bouie's presumptuous opinion on constitutional reforms, preferring to accept Pete Buttigieg's, who graduated from Harvard College and, on a Rhodes Scholarship, from Pembroke College, Oxford, majoring in history, literature, politics, philosophy and economics (according to Wikipedia).
@James K Griffin
Are you aware of how many criminals and miscreants have come out of those august institutions? No guarantee that a smarty pants is a moral person.
I simply have no respect left for this Constitutional court that will not prevent the use of US governments to impose theocratic drivel on us all for the sake of their imaginary afterlives.
3
Jamelle Bouie, imho, is the finest columnist to arrive at the Times since the departure of Tony Lewis. It is first principles to which we must return, reductively, in order to get to the root of today's madness. Trump's daily Twitter feed is not the issue. The real and ultimate issue concerns why we let old white oligarchs like Lloyd Blankfein --- "God's work," according to Lloyd --- continually seize the reins of power and then go unpunished when they wreck the world. (Again.) First principles. We must repair the structural failures of the Constitution, starting with Amendment V governing the torturous amendment process itself. Let's shoot for 2/3 as the threshold for ratification of amendments, not 3/4, just as 2/3 is said by the Amendment to be sufficient for demanding change in the first place.
The foundation is rotten. Amend the Constitution, the Supreme Law: We do not do monarchs in America, even on paper. After Article V, amend the 2nd Amendment. (The word "individual" does not appear in the text of the Amendment.) Democracy is not a suicide pact. Those were innocent children in Newtwon, for savior's sake. I am ashamed to call myself a citizen of any Republic that refuses to protect infants inside a classroom. Wayne LaPierre is the Grim Reaper. and must be loudly proclaimed as such if we are ever to have any hope of introducing him to the ashbin of history, lunatics who destroyed everything they touched.
2
@Mark Buckley
Well the rules are the rules aren't they.
You still have to get 2/3 of both chambers of Congress and 3/4 of the states in order to change the rules.
And you don't have the muscle to do that.
1
...and why, if we're talking about ideas and long-term futures, does Mayor B want us to be limited to stuffing the court with Republicans and Democrats? Are we doomed to forever have two parties plus "the others" ...
1
Those who think the Supreme Court is about an agenda - any agenda - need to re-think what the Supreme Court is for and what it must base its decision on. Progressives just want it to rubber-stamp their "progressive agenda" at whatever the cost to our Constitution!
1
Don’t think any of this matters. According to AOC the planet is over in 12 years.
The judicial branch’s issues pale in comparison.
1
His plan can be modified before it becomes law.
And at least he had a plan to reign in judicial power.
1
Considering our supposed separation of church and state, our entire constitution is being misinterpreted along the lines of of a radical interpretation of WWJD.
As an atheist who admires the teachings of Jesus, I vacillate between foreboding horror and contempt for our judiciary.
Buttigieg's idea may be farfetched but it's on the right track.
2
The plan would effectively block all cases from being heard and render that branch of Government a moot point. The Mayor is asking the Court to pick its own members, annually.
The problem here is the Democrats made a rule, they can not live with. This often happens. The party in power seeks a power that is both permanent and absolute. The party not in power will go to any length to regain that power.
Hardly am I a Supreme Court scholar, but I see no reflection here on the moderation of the decisive vote, such as Roberts, an inclination to leave the law alone rather than to have the Court reshape it. Also, what about retiring/aging justices? If indeed the unlikely blue wave hits in 2020, would not that open the prospect of a retiring or passing of Thomas for example to be replaced by a moderate?
Lots of well-considered points schooling Mayor Pete in the most paternalistic manner possible. When I first heard of Mayor Pete I thought, "he doesn't stand a chance", but the more pushback like this, and hearing him speak, especially in front of right wing audiences, the more I think, "this guy has something". The logic may be sound of the critique, but this point by Bouie is tellingingly naive, i.e., highlighting that Mayor Pete's focus is on the "perception of dysfunction than it does with the actual distribution"...yes, well, one would almost think he is a politician. Pete's ability to bridge the divides and speak directly to the right, including the right wing majority on the Supreme court, should not be underestimated. You may think the 5 on the court are set to define right wing law for the next 70 years, but they are human and, as Trump has demonstrated vividly, are not immune to Presidential power.
@Global Citizen
Just what we need, another silver tongue like Obama, who disdains real progressive action.
How can anyone expect a fair hearing with partisan judges?
Doesn't that fly in the face of fairness and logic?
How is this democratic?
Why do we put up with this?
The author begins with a misconception about Buttigieg's rationale. His point is not to create a more progressive court, but a more democratic one. This is in keeping with his core emphasis on democratic reform, without which problems like climate change, gun control and immigration will remain essentially intractable. Buttigieg has also said repeatedly that the idea addressed in this essay is only one of several that should be considered -- it is not "his plan" as the author claims. His point, as he so often reminds us, is that our system is designed to be "self-healing," if only we will make full use of the tools -- including structural reform and constitutional amendments if necessary -- that the constitution provides us.
2
The premise of this piece, that "Technocratic reforms won't clear the way for a progressive agenda," exactly explains the problem. Trying to manipulate the rule of law to advance a political agenda is anathema to the rule of law. Mr. Bouie is correct in being skeptical of constitutional tinkering with the Supreme Court, but for the wrong reason.
4
The inability of Congress to make laws creates a vacuum that is filled by the Court. The situation will improve when (if?) Congress once again legislates.
3
That is one solid big building.
With a bit of elbow bumping, it could easily accommodate 150 justices...
2
Assuming the U.S. survives the lawlessness of the GOP -- which is by no means certain -- the day will come when Supreme Court and federal judges who twist the Constitution to the detriment of the citizenry will be impeached and removed from the bench. Mayor Pete's "technocratic" proposal strikes me as perfectly reasonable way to provide a temporary fix.
3
While I agree with a lot of the points in this article, just describing the course of Action as "a fight for power" seems to ignore the fact that the fight will involve many boring "technocratic" steps, of which one of the first certainly has to be preventing the Supreme Court from dismantling progressive legislation. Next step: fair representation (automatic voter Registration, NO gerrymandering). If These issues are taken up in front of a politicized Supreme Court all Change will be stymied.
2
Buttigieg is a Globalist which is why his expansion of SCOTUS is the beginnings of the EU court. Buttigieg, like his far-left counterparts, complain about the "political court" like this is something new. Mr. Buttigieg needs to read Marbury v Madison and learn what Adams tried to do to sabotage Jefferson...and how that case led to the Supreme Court to define their role.
I do believe in a required retirement age...perhaps 75. I worry about justices suffering from dementia and keeping it cleverly hidden, thus relying on their staff during the decision-making process. We now have a justice who has suffered from a series of serious health problems and she continues to participate. However, I'm not sure how intense and effective her participation is.
I don't think we should make voting for new justices difficult. The party in power has the power...period. That's the way the game is played. Stop trying to stack the deck.
2
@J. G. Smith Like the GOP is stacking the deck?
Yes, progressives should exert political leadership for progressive goals, but that is not enough. If the Democrats take the House, Senate and Presidency, then they need to take back the two seats that McConnell stole, by expanding the number of Supreme Court justices to 11 until such time as the two stolen seats are vacated by the Justices who took those stolen seats.
4
All of these problems really began to emerge in the late 1980s when Robert Bork's nomination became a highly politicized process. Bork was eminently qualified to serve as a Justice. However, Joe Biden and Ted Kennedy led Democratic opposition to ensure that he would not serve. This was not on the basis of inadequate legal qualifications but rather on how they anticipated he would vote. Thus we now have the term "Borked", the use of litmus tests to vet candidates, and an increasingly acrimonious appointment process.
2
What?
“The Supreme Court has always been political...”
What?
I went to law school in the 80s and such an admission would be unthinkable.
“Critical Legal Studies” thinkers were supposed to be ultra liberal hacks, not rational, scientific observers.
Ahhhh, the steady March of history...
Guess what, they were 90% correct.
That will be Roberts’ historical legacy.
He and his Court will go down in history as the ones that first made the Supreme Court on overtly, uncompromisingly, infamously, Political branch, worth no more deference or legitimacy than any other.
As someone we all know would say: Sad.
Really sad.
1
The problem with the stupid 15-justice proposal is, obviously, the idea of institutionalizing a Republican/Democratic split.
Students of history will note there were not always two parties, and not always these two parties. There was not always so even a a split: Democrats controlled congress for 4 decades after the Great Depression. And the parties today are very different from what they once were: during that same era, Republicans couldn’t be elected dogcatcher in the “solid Democratic south”.
Imagine proposing a “fair” 50/50 split in NYC or California. Or Alabama, for that matter.
If we ever outlaw big money from campaign finance, the Republican Party as currently constituted will wither and die, and good riddance. Let’s work on that and not pretend the two parties are somehow equally right and offsetting. Republican positions aren’t offsetting. They’re off putting.
7
Let the court they always claim to have wanted teach your far-right friends and relatives the harsh lessons they truly deserve. When conservative demagogues like Thomas inevitably declare social security unconstitutional, perhaps the shock of being old and homeless will finally snap Fox viewers out of their self-delusional bubble-world. Read up on 1930’s FDR and you’ll realize how starkly real that possibility is.
8
I agree this is a goofy proposal. Limiting terms to 18 years and having one justice added to the court every two years makes more sense to me. How to make that transition would be a question.
1
"Judges nominated by Trump will be making law, and interpreting the Constitution, for at least a generation."
These judges are fruit of the poisonous tree, which is trump and his fake, grifting "administration" put in place with Russian help. All of his nominations should be removed from office. Every ruling, all of it should be nullified. He is a servant of Putin as is his entire "administration". Nothing of it should remain except words in a history book. All of this collaborators should be in prison.
3
A question from a foreign reader: Let's assume the current President ends up impeached or imprisoned… Will there really be no mechanism to remove or impeach Justices who have been chosen by a criminal President and confirmed by that criminal President's enablers?
2
The only way to remove a sitting Supreme Court Justice is through the process of impeachment, regardless of what happens to the President who appointed him or her.
The only way to change this would be to amend the Constitution.
1
Mayor Pete's bizarre and very unrealistic Supreme Court suggestions indicate he is nowhere near ready for prime time
6
I don't think we'll get that far. You know what happened in the 1930s...
Why not start packing the Supreme Court tomorrow?
1
This is a truly disturbing opinion piece. Since when did a political agenda become more important than the very structure of government that has shaped this great nation to withstand many a storm.
I am an immigrant to this country, this is now my home, and the thought we would start shaping the highest court for political agendas is contrary to the founding principles that have allowed this country to be a safe haven for those like myself.
The continued politicization of every aspect of American life is a part of the problem and not a solution to gain the much vaunted agenda.
Justices retire (or die) during the course of any any Presidency, the ELECTED executive then has the opportunity to try to install someone qualified (albeit for a political purpose), but to simply ask the court function in that manner is dangerous and sure to be destabilizing.
demand more action from congress. Enact changes there to ensure they legislate and don't force courts to decide law in a manner that acts like legislation. Don't give your elected officials the easy out.
Go out and whip the vote. Win the election so legislators do their join and work on a particular agenda.
Ultimately, how popular is your agenda when it cannot be expected to be voted into power?
4
Political parties are private entities. They are not in the constitution and do not deserve special consideration to be on the court or any other post. The parties already have too much power.
8
Unfortunately correct. The only path to real, substantive change is in getting 3/4 of the states to turn Democrat. That would enable a constitutional rewrite. That does not seem very likely.
I.e., the minority (populatoin-wise) Republicans have taken over the country.
2
Based on today’s political climate, the utopian vision the author hopes for surely won’t happen in MY lifetime. We need some REALITY in our political choices and expectations and in that regard, at least Buttigieg’s ideas would LESSEN today’s indefensibly politicized Court. HOW, I’d like to know, does the author plan to win back the Executive and Legislative branches AND find candidates to “stand up” to the Judiciary?
3
With everything going wrong in our country, e.g.. electoral college, supreme court politicization, gerrymandering, voter suppression, etc., it's time for a constitutional convention. Short of that, Pete's idea for reforming the court is the I've heard so far.
4
The writer of this article does not know anything at all about the Law. The size of the SCOTUS is NOT mandated by the Constitution. It is encoded in a simple law. (Judiciary Act of 1869). That Law can be amended and changed. Furthermore, it is ASSUMED that these are lifetime appointments and that Judges can only be removed for "bad behavior." The same Law can be modified to specify exactly what that "bad behavior" is and can then be used to remove Judges who act like donkeys. And that law can also be used to limit their terms as well.
5
Bouie didn’t claim that the size of the court could not be changed. (He said allowing the justices to select other justices would require amending the Constitution.) He didn’t claim anything about judicial impeachment. He claimed that what Buttigieg wants to do will be insufficient to achieve Democratic goals. If you are going to disagree then disagree with what was actually claimed.
6
Buttigieg’s proposal is to complicated, not even taking into account that it will never be implemented. Also, there will be always political meddling for the appointment of judges. A much easier proposal would be the following, which was implemented by Germany (which actually took the U.S. Supreme Court as model for its constitutional court)): simply institute a term limit for the judges (12 years) and a mandatory retirement age (68 years). That guarantees that the composition of the court will reflect gradually- with some delay - the current majority view within the political landscape and prevents that one party can determine the composition of the court for decades. Secondly, errant outlier appointments like Justice Clarence Thomas would have a shorter shelf live and could do less harm, and finally, there would be some safeguards protecting against a gerontocratic calcification of the institution itself. Alas, sadly, even such a simple fix will never happen.
4
That 15-member Supreme Court not only doesn't depoliticize it, it explicitly politicizes it in an institutional way that's unprecedented in the Constitution.
What the proposal does is enshrine partisanship in the Constitution. Right now, parties aren't recognized in the Constitution in any form, having no official status as political agents in the Constitution, unlike citizens., states, public officials, and government branches and agencies.
The framers were wisely wary of factions, the problems of which were very famously and cogently articulated by Madison in the Federalist papers.
The 15-member proposal radically alters the Constitution in giving parties and partisanship a formally recognized status in the Constitution; that's an extreme form of politicizing the Constitution in a new way. Of course, it formally institutionalizes partisanship in the Supreme Court, the one branch where formal partisanship hasn't taken control, thus feeding the fire of partisanship and extending its influence in governing the US.
The proposal also unwisely creates three distinct groups of Supreme Court Justices--will that result in even more formal faction-based behavior and ruling? It also creates two classes: A lower-class of Justice who merely rule on cases, and an upper-class with additional responsibility and authority in choosing the "second-class" justices.
Ruling on Constitutionality and interpreting the Constitution is more than enough authority to vest in one person.
4
The author of this opinion is right that the President—and also Congress—should retake power over interpreting the Constitution; Madison once noted that the branches all have concurrent power to interpret the Constitution, and they all take oaths to uphold it. Judicial review is a legitimate power as noted in Federalist Paper 78 (though absent in the text of the Constitution), but the Supreme Court does not have a monopoly on the meaning of the Constitution. That was Lincoln’s view—Dred Scott being on his mind.
The branches should check each other in this manner, e.g, the President uses a veto for a law deemed unconstitutional in her opinion; Congress can override. Moreover, the Supreme Court has neither the purse nor the sword, so their decisions only have the force we as a society, Congress, and President allow it.
However, that’s not at all in conflict with Buttigieg’s view. They’re simply the same argument but with different focus. Reforms to the Supreme Court (which do not require constitutional amendment under Article III), help reduce its influence on policy and political matters, something both parties should support. Both approaches, in my opinion, are important to reclaiming a stronger role for democracy. Otherwise, one party’s Roe or Obergefell (decisions I support as a policy matter) are the next party’s Heller or Citizens United, decisions decided by nine judges rather than the people.
2
Kamala Harris has proposed two more realistic ideas in modifying SCOTUS. One, is having Congress increase the number of Justices on the court. That would need a Democratic House and Senate, and removal of the filibuster for that particular vote. Risky, but both Dems and Repubs have modified the 60 vote rule in recent years.
The second idea is to enshrine selective SCOTUS decisions in law. For example, making Roe v Wade the law of the land such that no state can pass a law that challenges it. Still might be tough to get through without a D super majority in the Senate, but Federal preemption of state laws has been around since Washington.
1
I understand, and even partially sympathize with, your point. However, the real world calls. You mention Dred Scott... It took 11 years and a constitutional amendment to overturn that loathesome decision. I don’t want to live in a country that, for 11 years, could, for example, force women either to bear unwanted children or seek dangerous abortions; strip gay couples of the rights they’ve gained through marriage; gerrymander with abandon; or legally discriminate against people based upon either religion or country of origin. All of these are possible with a court system produced by the Federalist Society. That this organization drives appointments is wrong; the only corrective is a new way of appointing federal judges and justices. Buttigieg’s specific proposal may be reasonable or not, but credit to him for articulating the need to find a new, better way. This is an issue all of us should be discussing.
6
FDR proposed the right solution at the wrong time. Pack the court with additional justices appointed by Democrats.
1
Unfortunately for the author, what we’ve seen in terms of judicial forum shopping to find a sympathetic judge to issue a nationwide injunction to block enforcement of executive or legislative action is now part of the standard “resistance” playbook.
If someone like Warren wins the Presidency, prepare for turnabout. Resistance via judicial veto.
2
Mayor Pete is a well-intentioned guy, but when he drifts off into these wacky how-I’d-redo-the-US-government things he’s fiddling while the US burns. This one would require a constitutional amendment—ain’t gonna happen. And he has more of these ideas—make DC a state, etc.
In the meantime this country is in huge trouble, with problems that won’t be fixed merely by dumping President Trump. One reason we got stuck with Trump in the first place is people hoped (mistakenly) that he could help restore family-sustaining jobs. I’d like to see Pete turn his attention to these kind of issues.
2
@Jerry Schulz Pete's proposal might not be the best solution, but I think you are 180 degrees off what constitutes fiddling and what constitutes Rome burning. The country is effectively fast becoming a theocracy because of the current system and its ability to be manipulated. There is absolutely zero reason why citizens who happen to live in Washington D.C. should continue to be disenfranchised; same for Puerto Rico--they don't need to be states, but their residents who are U.S. citizens need equal representation. Etc. The primary thing that needs fixing before we do go the way of Rome is our system of government, and we don't have much time. It may in fact already be too late since Russia has gotten such a foothold in influencing our elections and our Republican senators and house members and president are doing absolutely nothing to stop their continued interference.
2
Obama stacked the same Federal Judiciary with Progressive ideologues and left leaning Democrats. Some of the more recent rulings by single judges attempting to impose nationwide injunctions, in direct contrast from previous judicial restraint, have been contributors to the DNC and their presidential candidates. So don’t get on your high horse and act aggrieved because the Republicans are trying to right the previous wrongs by the Dems and Obama. More than half this country identify as conservative or moderate and those views are not aligned with what the Dems have attempted to impose on this country.
7
I’m sick of Trump apologists making false claims with impunity. This is just factually incorrect. Obama has many judges blocked by the Senate, while Trump’s nominees are sailing through at a record pace. Trump has already, in less than 3 years, appointed more than 2/3 the number of Appeals Court justices Obama appointed in 8 years.
Moreover, your claims about what American citizens want is equally false. Obama won the popular vote. Twice. His lowest approval rating sits near Trump’s average rating. Public opinion polling on individual issues is far more in line with the positions held by the judges appointed by Obama. By nearly every objective measure, your claims are demonstrably false.
3
GOP are not in the business of righting wrongs. They are in the business of covering them up!
@Mike love the conflation of filling vacancies as ‘stacking’ with bulldozing through procedures like we’ve seen recently.
1
The Founding Fathers wanted a democracy that was slow in change to preserve the foundation of social institutions. Older readers know that all the political branches swing back and forth between liberalism and conservatism. Take the issue of abortion the Supreme Court decided in 1973 to legalize abortion almost 50 years later the issue is still being debated. Winston Churchill one stated that democracy was the worst form of government but it’s the best one we have.
5
One of the benefits of old age is the freedom to change your mind. I've always been against term limits, preferring to believe that the electorate will address the issue responsibly and vote out the incompetents. I've changed my mind. The world is changing with a rapidity that is head-spinning. New issues and challenges along with new technology make 'current thinking' dinosaurs in years. Our country and court are run increasingly by dinosaurs who are viewing the world as it once was, not as it is. How about two 6-year terms for senators, three 4-year terms for congressmen and one 12-year term for a supreme court justice? We don't need to be held hostage to extreme partisan views - be they Democrat or Republican (Roosevelt tried to pack the court and the people were too smart to fall for it). Unfortunately, the current 'packing' has been done gradually and it's only after the fact that we are waking up to the future consequences. I wonder if this is what soldiers who died on D-Day were giving up their lives to protect.
8
@teachergirl: Not so much packing, as recognizing that there are good reasons to have a larger court. The increase should be incremental, so it wouldn't just be an crude attempt by us, for instance, to put in half a dozen of our justices all at once. (Even though, realistically, that would make the world a much better place for everybody. But, the rules...)
You can make a case for term limits, although the primary effect is to shift the balance of power towards corporations and their lobbyists. Lets work on term limits for the Koch brothers first! No, seriously, I'd say,they might be OK, but maybe twice what you suggest? But, frankly, I don't see the advanced thinking among the young people... "Doing things I used to do, they think are new..."
1
@John Bergstrom: the devil is always in the details. Not sure the number of years is as critical as is the understanding that the world has changed and will continue to do so at a rapid rate. The issues we face today seem to be exponentially more significant because we are very close to reaching the 'tipping point' with respect to irrevocable harm to the environment and the inevitable consequences that will disproportionately affect those least likely to be able to survive them. I'm not smart enough to devise the plan, but scared enough to know we need one.
4
@teachergirl We'll never be able to trust the electorate again unless we make critical thinking a mandatory high school course nationwide. Too many people are shockingly incapable of evaluating information or discerning fact from fiction.
Too complicated! And, it fixes in stone the role of the two parties, ignoring all the independents and third parties and so on. And, just no, it's too gimmicky.
You can make a good case for increasing the size of the court, maybe to 15, maybe incrementally over some years.
Term limits might be an improvement, if the terms were generously long. Twenty five or thirty years. You wouldn't have the suspense of wondering if Justice X was going to try for one more year after all.
4
America is already not a functional democracy. The minority of voters already control two and a half of the three branches of the Fed government and don't need to the support of most voters to win back the House. It's estimated that by 2040 30% of the population will have 70 Senators. McConnell knows that the Senate is the key to controlling the Judicial branch and can block progressive movement from the House and the Presidency. He also knows that he only needs an ever smaller minority of voters to maintain that control. These realities and the shifting population and electoral college will likely also hand the White House to the GOP on a regular basis. They are already using this power to further suppress voters and gerrymander away their power.
In short, Republicans have given up on democracy and are instead consciously exploiting the weaknesses of our system to maintain minority/kleptocrat control. Democracy has already lost. The only questions are if, when and how will the majority take back control and restore democracy to America?
2
@JT The trouble is, there was never that golden age of "functional democracy" when things were a whole lot better than they are now. Remember, when the Republicans suppress minority voting, they are just trying to maintain a trace of the much more brutally effective suppression that was in effect not all that long ago. We have come through oligarchies and kleptocracies and repressive regimes, and a democracy struggling to be born has always been part of it. But it's always been a struggle, more of an ideal than an accomplishment... just like now.
2
@JT
Instead of people sitting on their duff complaining about sparsely populated states who vote the "wrong" way they could move.
Just a few million people moving from California to various interior Western states could conceivably change the voting patterns of those states.
Or maybe not. Maybe upon arrival, the former Californians would change their voting patterns. I don't know.
I do know however that equal suffrage in the Senate for all states is part of the Constitution and can not be altered, even by amendment, unless every single state agrees. The chances of that occurring are 0%.
So it makes more sense for people to move.
1
As if we need a court constructed with ten justices with political labels moderated by one year term "non partisan" appointees appointed by the politically affiliated ones. Buttigieg is apparently fond of ripe cheese and guests that stay longer than 3 days.
There is nothing efficient about a democracy and it's the price we pay for deliberate governance. But what we have...right now....is the product of democracy in action, whether we like it or not, Clarence Thomas, Sam Alito and the rest included. They will pass as kidney stones while we who would insinuate our progressive preferences stew in our soured juices until their certain and painful passing.
Our time will come when our selections will be as despised as we now despised theirs....and we begin the intended process written in by our Enlightened Founders who were writing for the ages and not for our immediate, expedient pleasures.
2
@murfie: Except, the writers of the constitution never said anything about the size of the Supreme Court, that was just a product of political history and can be changed by politics. We could easily decide to have a Supreme Court with a number of justices in some proportion to the population, which would make a lot of sense.
But you're right about the weirdness of the political labels and the non-partisan appointees. I don't quite get the cheese metaphor, but it sounds like a strange kettle of fish indeed. Suppose one of the Republican justices sees the light and crosses the aisle, would that mean that they would get to put in another "real" Republican? Much better to keep up a formal pretense that they are all open minded citizens.
Why does Mr. Bouie choose to label Mr. Buttigieg as a technocrat and excoriate the only Democratic candidate who has actually suggested a well-thought approach to improving our broken SCOTUS? And why criticize the effort to ensure a more democratic (small d) and fair SCOTUS? Did Mr. Bouie research any alternative approaches to improving a broken court? Or it possible that Mr. Bouie simply does not want Mayor Buttigieg to be a presidential candidate?
12
@Patty: I think he called it technocratic because it involves such a complicated procedure. Like a lot of technocratic plans, it's definitely thought out... but well thought out? Well...
Mr. Bouie has a pretty clear plan for dealing with the Republicanized judicial branch: to recognize it and plan on working around it. Sometimes that's a better approach than trying to come up with a procedural fix.
The main thing at this point is to get more Democrats in office at local, state and federal levels. The more we do that, the more solutions will appear to our worst problems.
I think we can debate about the pros and cons of Mayor Pete’s plan, but at least he has a plan. Something must be done to prevent the Supreme Court from representing only a small religious minority of the American population for generations to come. At the very least, the next Democratic President needs to reclaim the pick that was stolen from Obama. That was an undemocratic and unconstitutional move by McConnell that should not be allowed to stand. With Citizens United, gerrymandering, Roe v Wade and census questions all up to the Supreme Court, our Democracy depends on it.
9
One important thing is being forgotten in this discussion. Just as important as getting back the Senate in 2020 is getting back the states, which are still overwhelmingly Republican.
If the Dems get a majority off the state governments, that opens up the possibility of a constitutional convention to address these and other problems.
85
@Al Luongo
No, absolutely no, to a constitutional convention. It is a dream of the right wing and libertarians. It is way for them to take control and eliminate the Bill of Rights. Are you willing to risk that? I'm not.
20
@nora m: I kind of agree, it would be a mess. But remember, the ultra right and the libertarians are a pretty small minority. But on the other hand they have a lot of money behind them. Basically I agree. If we need an amendment for anything, let's just do it the way people have done amendments before.
But if we are going to adjust the Supreme Court, let's just increase its size, not get into this business of having Justices officially associated with one or another political party. That would just be endless trouble.
6
Adding more Supreme Court Justices is a good idea. But only if Trump wins again and the Republicans retake the House!..I suppose Republicans could have added Supreme Court Judges prior to 2018, but they just weren't "Progressive" enough....We'll end up with hundreds of Supreme Court Justices as the parties switch control over the years and repack the Court to their own political advantage...Very messy. But it would be interesting!
5
The Court has always been political, but not overtly political like today. We do not need to change the structure of the Court. We need to elect politicians that are willing to keep the Court as independent as humanly possible. It is impossible for the Court to not have some political sway because the men and women on the bench are human. But, it should not act like it does today.
The Democrats have an excellent chance for a "smashing victory" next year. 22 of the 34 Senate seats up for grab are red so the Dems have a good chance to take the Senate. The house will stay blue. On the presidential side, since the George Bush Sr. election in 1988 the republicans have only won the popular vote one time. You read that right ONCE over the last 30 years. Now, they have to get additional votes in some key states but that seems doable. We shall see.
4
The solution is simple. We add another liberal, and another centrist to the court. The inevitable howls of the Conservatives are moot by their own hand.
Hear, hear.
If the rules are being abused, remove the abusers. Don't rewrite the rules.
1
Perhaps he doesn’t WANT to clear the way for a progressive agenda.
@stevevelo contrary to everything he has done and said in his life and this campaign, I suppose theoretically anything is possible
2
John Adams, James Madison and Thomas Jefferson didnt get it right the first time, so Mayor Pete is here to make things right. Wow, no really WOW!!
4
@D It is not who got it right, it is who has since gone to great lengths to make it wrong
3
In another abuse of the English language, how is it that right-wing ideologues on the Supreme Court are called “conservatives” when they are notably not Interested in conserving the foundational institutions in our (supposed) democracy? These justices don’t conserve; they destroy. Not in recent memory have so many justices made clear their contempt for the rights of ordinary people and their virtual deification of the rich and powerful whom they have served all their lives. Let’s not pretend. The Republicans knew they had to win the last presidential election if they were to take over fully and permanently the United States government. They’ve now reached their goal, and we’re beyond the point of no return. How they won that election is another question altogether — meaning, the Russians aside, they did everything else they could short of illegal and well past it. An entire generation of journalists and Democratic politicians are in a form of denial, pretending we still have a functioning democracy. Many of us know otherwise. The silent coup predicted by so many historians, prominently Timothy Snyder of Yale, is over. They won.
3
@ADN You may be correct, but what are you proposing? That we just accept it? If we can't get a functioning democracy within the current system, then perhaps we need another revolution. Or perhaps blue or red states need to secede. In fairness to the citizenry, we would just need to ensure that everyone stuck in the wrong color state could re-settle in a state of their preferred color.
At least Buttigieg has a plan, you have a dream.
And there is nothing that precludes your goal after Buttigieg's plan would be implemented. In fact, it would be far easier.
6
"It's all about power.” This is progressive?
4
@Michael Livingston most would settle for an even-handed court that takes cases on an impartial reason and balance.
But some people have gone great lengths to pervert that,
Mayor Pete's plan is an easy nope because it assumes, like too many Democrats in power, that the vile GOP remains (if it ever was) a good-faith party with good ideas. It is currently not, we learn every day that its few measures believed good or in good-faith were in fact not, and nothing suggests that it wants to atone for either—not least that they've already foisted at least TWO rapists on the Court (thanks Biden!) and that "bipartisan" deals with the vile GOP include [un-Fit to Print] Pie and his murder of net neutrality.
Just vote out the vile GOP, widen the Court with Sane well-considered Justices, and stop pretending that party-cult will come around...or if we must keep enshrining two parties against the wise counsel of George Washington and all Constitutional precedent, then make them the Democrats and Greens. At least then we'd have a left-wing to keep the "center"-right Pelosi and Schumer at work and on their toes.
Buttigieg's idea may not be close to a solution but the author's conclusion of how to right the wrong that has been done by the totally corrupt Senate Majority Leader is disingenuous at best.
What is worse is that its reeks of the cowardly "measured" political calculations of Nancy Pelosi in not doing her Constitutional duty and starting impeachment inquiries.
These supposedly reasonable choices are just about enough to suggest a wild conspiracy theory that the Democrat leadership, both in and out of Congress, are colluding with the fascist corporatists in the GOP to not just maintain the status quo of wealth inequality but to continue its expansion.
2
If we don't get rid of the anti-democratic Electoral College, NOTHING else matters. NOTHING!
California, with a pop. of 40 Million, gets just 2 US Senators. Wyoming with about 0.5 Million people also gets 2 US Senators.
A Wyoming voter has 80 times the clout in the US Senate, as the California. To wit: It takes 80 California voters to get the same influence in the US Senate as a single voter in Wyoming!
This is EXACTLY why we have Cadet Bone Spurs and a corrupt Republican Party in the US Senate that won't EVER remove Cadet Bone Spurs from office.
We do NOT have a democracy, it's absolutely outrageous, it MUST be fixed, and it's what's allowed the illegitimate, incompetent, corrupt, self-serving, treasonous Cadet Bone Spurs into the White House.
I agree with Mayor Pete Buttigieg about everything so far! He wants to eliminate the EC. And he's the first candidate to articulate an excellent proposal concerning necessary changes to the SCOTUS. But it's a proposal -- not carved in stone.
Sadly, I don't think Mayor Pete is electable... and it's not just because he's gay. It's because Black voters don't like him, and no Democrat can win the presidency any more without the full support of the Black Community. It's America's loss, because there's no candidate with a better intellect than Mayor Pete.
Blacks also did not turn out for Hillary. If Black voters do not turn out again, they will be electing Capt. Bone Spurs twice.
7
@NY Times Fan It's early days yet. Mayor Pete has an uncanny ability to win people over, and he really has given thought to a lot of the major issues that affect black voters' lives, such as the severe racial inequalities in our justice system, so I think that when more black voters get to know him, more will support him.
2
Well, you did convince me that Buttigieg's candidacy is preposterous, so thanks for that.
6
Funny, I hear none of this "It isn't fair/Change the rules" complaining when liberals win.
6
@M Well I am liberal, and you're hearing it from me: I don't care WHO is in power, our system is far too vulnerable to abuse, and it needs to be fixed.
It's okay to be conservative judge- as long as you aren't bought and paid for by the Koch brothers and others... I trust true conservatives more than liberal the judges who want nothing more than to turn our entire nation into a welfare state- rife with illegal aliens driving free electric cars, free education and healthcare ... while the American born taxpayer citizen is stuck with their tab.
3
@Aaron
Just as a point of interest, Americans don’t have free education and healthcare, immigrants aside. So I don’t know how anybody could be giving them to immigrants. In the the rest of the western post-industrial world, it’s worth pointing out, most people do have both free ealthcare and free educations. So whomever you’re not supporting, forget about what they’re giving immigrants. If the government’s job is to take care of the best interests of its citizens, why don’t you ask questions about what they’re not giving you?
3
@ADN
California public education classrooms (e.g., Central Valley, L.A., San Diego) are filled with the children of illegal immigrants--$6,000 per child, state cost. (That's not counting other tax-supported public resources they will unquestionably use.) That's not free, especially given most parents of these children will be lucky to get minimum wage or, better, cash-economy jobs? Nice fantasy, though.
3
This is what happens when liberals engage in infighting over their sacred cows and identity politics. Won't be surprised to see it happen in 2020. Biden already under attack for respecting legitimate concerns about personally funding abortions, and Medicare for all is the new litmus test. AOC, time for you to sashay away.
1
@Keith I’m really not sure what you think the Trump clique engage in if not identity politics.
Its only platitudes on the right anymore. And increasingly flimsy ones at that.
Yang and O'Rouke have also suggested plans...Why does the author say only Mayor Pete has a plan
@Dr. J Good to know, I'd love to see an article comparing and contrasting all plans that have been proposed.
JB, Booty-G and every Democrat that has a pulse is in a panic about the court. The greater number of conservative judges appointed, gives Republican presidents a greater choice, in the future.
Right now, the new blood gives Trump a bigger pool to draw from, without losing any effect in the lower courts. You know, in case "she" has an event. Or, "she" decides to retire.
1
“Judges nominated by Trump will be making law, and interpreting the Constitution, for a generation.”
Not if we impeach them. Dems must win the White House, take the senate and hold the house. Then we must remove every single federal judge, including Gorsuch and Kavanaugh, that was appointed by this illegitimate president. Don’t say it can’t be done. It can. It must.
2
First step for Buttigieg is to clear out all the Cultural Marxist clerics sitting on Lenin's Bay Area bench, the Ninth Circuit. That would truly be "progressive"--progressing toward a fair and just unbiased court of appeals on the West Coast. After that, who cares?
4
I love Pete & he's the most intelligent candidate. Get McConnell
out!
7
Is it possible to impeach Neil Gorsuch on the grounds that his appointment was the result of the senate's failure to fulfill its constitutional obligation to consider Obama's supreme court nomination?
1
@Bart
No. No it is not.
This whole column is inane. The Court has worked just fine for 200 plus years and is continuing to do so today. Rushing to tinker with the one institution still working is shortsighted, Constitutional suicide. The Court should no more be packed today as it tilts right than it should have been under Warren or any other time. Ideological pendulums swing - accept it. Don’t be so myopic.
3
@Ed Fontleroy the number of judges on the Supreme Court has changed several times in 200 years. And the process of doing so has been altered several times in the last few years alone.
3
Oh boy, that's just what the Democrats need . . . a leader advocating another "court-packing" plan! How'd the last one work out Mayor Pete?
1
@Hipshooter I suppose we should just take the coup d’etat lying down? Let these unelected figures neuter the will of the people and dismantle everything they please?
@Thomas Wright
This sounds like the complaints of conservatives about the Supreme Court from the fifties thru the seventies.
The country will survive.
Term limits.
1
Pete, the water is a bit deeper than you thought.
At times, I fear Mayor Pete has all of the aspects of a tyrant.
4
@jackinnj you have heard of the current occupant I suppose?
The biggest problem with this plan is that 15 is not the largest number. There is no largest number. So let's stop playing games!
3
@James Ricciardi the games have already begun long before this. It is simply dreary for people to draw specious lines in the sand now simply because it suits them.
1
@Thomas Wright It does not suit me. I have never voted for a Republican in my life, beginning in 1972. But changing the number of Supreme Court justcies is a "specious" game. The constitutional means for picking Supreme Court justices has never changed. Despite that we have gotten the horrible Dred Scott and Plessy v Ferguson decisions and the great Brown v Board and Roe v Wade decisions. Try and explain that history by technocratic or numerical means.
2
@James Ricciardi, but hasn’t the process changed? When Obama’s nomination wasn’t even considered?
No need to change the court now. The Constitution requirements of due process, with its call for fundamental fairness, and for equal protection will overrule partisan positions. It's up to the bar to advance arguments that insist upon both overriding Constitutional requirements,
1
The idea that the Supreme Court majority's view is not the only view of the Constitution that counts is correct. However, I think the real problem is the astonishing degree of constitutional apathy in this country. There has been no serious effort to amend the Constitution since the voting age was lowered to 18, way back in the 1960s, and the effort to enact the ERA in the 1970s.
But the time has come to change that.
The Supreme Court is too small, given the population of this country, and the idea of life tenure for judges that might make it to their 80s or even 90s is way out of line with what the Framers contemplated. Those who wrote the Constitution did not expect judges to serve the Supreme Court for 30 or 40 years, or even 20 years.
That means we should be talking about a term limit for federal judges. All federal judges, lower court and Supreme Court jurists alike, should not be permitted to serve for more than about 15 years at most. That time span is consonant with what the duration of service could likely have been, in most cases, at the time the Constitution was ratified and for most of American history.
We also need to get serious about ending our collective reliance on the Supreme Court to "protect" our rights. If, for example, Americans desire a right to personal privacy that includes access to birth control and abortion, and I don't doubt that most of the public desires that, then we should write that right into the Constitution in plain language.
2
It’s interesting that the author lionises the actions of Roosevelt and Jackson, presidents whose actions against American citizens would today be considered criminal violations of human rights, one of which was vindicated by the court in Korematsu. That case, incidentally, was recently repudiated by the court. Too recently, in my opinion, but here we are. When presidents are given too much power by popular opinion, minorities suffer. Leave the court alone. Mayor Pete’s plan is interesting, but federal judges serve for life, and I don’t see anyone agreeing on that change.
2
So, basically Trump should immediately begin to ignore any judicial decision with which he disagrees?
He would be Lincolnesqe in resisting the judiciaries claim to interpretive authority?
I can't believe that I'm even reading this.
8
Jamelle would seem to have no problem with Trump ignoring Supreme Court Rulings and packing the Court if there was an indication that the majority of people wanted that...His columns always favor majority rule...He has no fear of the majority oppression...That is his political goal...But when the majority is against his interests, he'll likely change his tune..That's his nature.
2
The prospect of entrenched judicial opposition to Republican policymaking and a conservative governing majority is one of the essential political problems Republicans have faced for decades. Now that turnabout is fair play, the Dems want to change the rules to keep the deck stacked in their favor in perpetuity. That's ridiculous. Maybe instead of forcing the country to live by their rules only, the Democrats could decide to grow up, and compromise.
4
Um. How about applying what the framers suggested - present candidates that can get 60 votes. Add non-filibuster language.
2
Our 'Supreme Court problem' is really our US Senate problem as the author himself pointed out some few weeks ago. If the demands of 'federalism' require a co-equal legislative body in which some guy in Casper, Wyoming has 60+ times the voting influence of someone in Los Angeles (or Alturas - look at a map) thenit's very high time to re-examine our devotion to the principle of federalism. When we make the Senate a more truly representative body, our issues with the Supreme Court will dissolve of themselves. Of course, it's very likely that we won't. I.n that case, people along the West Coast should be thinking of a new federation - the Republic of Pacifica (California, Oregon and Washington - and the two BC's if they want in).
@richard
You can not make the Senate a "more truly representative body" in the manner which you mean. The Constitution requires equal suffrage in the Senate for every state. This can not be changed, even via amendment, without that state's consent.
Effectively this would mean an amendment changing it would have to be unanimous. Even if Wyoming for some strange reason agreed that California should have 6 Senators, as long as Alaska disagreed nothing could be done.
The House, not the Senate, controls the purse strings, an awesome power. And it's the House which is apportioned by population. The House could shut this country (and Trump) down tomorrow if it so chose. The House has become hesitant to use its power.
And come on, the question of secession was already decided. The West Coast States aren't going anywhere. That's leaving aside the fact that it's difficult to forcibly secede when the people in the Army that would prevent you from doing so are disproportionately from the South and Midwest.
1
Progressive logic is difficult to logically understand, unless one believes that the ends justify the means.
When the Supreme Court was more "progressive" than Congress and public opinion, well, no problem whatsoever. The Supreme Court interprets the Constitution as it is charged to do. Judicial activism? No such thing!
Now, when our progressive friends believe that the Supreme Court is less "progressive" than Congress and public opinion, well, everything is totally different. The Supreme Court should not be allowed to thwart the supposed will of the people. Something must be done to expand (pack) it or diminish its influence. Judicial activism? A huge problem!
I wonder if progressive opinion writers ever consider their own hypocrisy, no matter how patently obvious?
4
@Stew R it had an ideological balance prior to Trump. It is only due to the underhand machinations of conservatives that we even have a court as lopsided as it is now. And at the prospect that the favor is returned your side calls foul.
I am sorry, but a language of a kind - “to clear the way for whatever agenda” is not a democracy and inclusiveness.
4
The American system is so fragile that a dishonest and partisan hack like Mitch McConnel an subvert it. Therein lies the gist of it. Subversive tactics like those used by a toady like McConnel requires an equally forceful response by the next Democratic president: unseat Neil Gorisch, the most prominent illegal of the country and nominate another one in his place.
1
I wish the NYT would spend more time talking about all the candidates, including Marianne Williamson. As a motivational speaker, she just might be qualified to start speaking to the heart of Americans. We need to bridge the divide.
"A president supported by a minority of voters may shackle future majorities for decades to come." The legacy of an illegitimate president will profoundly affect future generations. At the very least he must be denied a second term when he could do yet more long-lasting damage. It's far from clear that the USA could withstand another term. Putin must be beside himself with joy.
1
I have one question for all those of you who want to "reform" the Supreme Court. If it were your side in the the majority, you'd be perfectly happy with the way it is now, wouldn't you?...
That's what I thought.
2
@Kathleen880 I want the Supreme Court to reflect the will of the people. Currently the fact that there are no term limits, and the fact that whichever party is in the majority can confirm a completely partisan candidate because there is no need to nominate someone who the minority would also support, and the fact that the Senate Majority leader has an ungodly amount of power that his position absolutely should not have, are all serious impediments to a representative Supreme Court.
This so called "plan" is is as worthless as the candidacy of the man himself. Our system works just fine. As Liberal the last thing I want is Politically Correct political correction of something that is not broken.
2
Why should we "establish" the Dems and the Repubs? What if a party fades away, like the Whigs did?
6
This is the problem of the “stupid” democratic party. Instead of addressing true needs of the people, all of the wannabe candidates are competing against each other on the issues which will not help to gain back the White House. Placement of incompetent judges at federal level is extremely dangerous- unfortunately, the wannabe candidates live in utopia land and the game is to come up with more outlandish claim. Wish they had love for the country and intelligence to understand the issues and angers of the people. The morally bankrupt incompetent federal judges will kill everything the democrats pass in Congress even they win White House, Congress and Senate. Unfortunately, the party is led by incompetent leaders who only care about power. It is a shame that the party cannot take advantage of the criminal acts of the con man and his cronies. Con man, the devil genius controls the news cycle which should be completely opposite. It is a shame and travesty that the democratic leaders are going to give the Presidency to the con man for another four years on a silver platter. And, that will be the end of our great nation.
1
If you don't get elected, you can't appoint judges. The real problem for Democrats is that they too stubborn with their agenda to do the things that will win them an election. First, they despise the white working class and think they can win without any votes from that group. Second, they let their agenda be dictated by their LGBTQ wing. That agenda spends lots of political capital on "burning" issues like promoting transgender bathroom access but almost nothing to issues less important to them like foreign trade. Trump stole the foreign trade issue right out from under their noses. Democrats have no right to snivel about what's happened to the judiciary. They have let the wrong people run the Democratic Party for too long. They are reaping what they have sown. They will complain about the unfairness of the Electoral College, the unfairness of Mitch McConnell. None of that matters. Democrats, try winning an election instead. Want to know how pathetic you've been? You couldn't even beat Donald Trump.
5
@Norm Weaver You have some pretty bizarre ideas about Democrats. Particularly random is your claim that we hate white working class people.
@Diane I'll concede that I'm using overly-strong language, but it is a commonly-held belief among political pundits that the Democratic Party has serious problems with the white working class. Many in the party believe that those in this class are troglodytes who should be avoided. Much of this is about cultural values. President Obama said it best:
"They get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.". Add to this the "binary gender" views prevalent in the white working class. Many in the white working class believe that the Democratic Party no longer represent them and that its leadership is contemptuous of them. So they voted Republican in the last election. That's how we got President Trump.
1. The Democrats will not win the Senate, regardless of the outcome for POTUS.
2. It is very clear who are Democrats and Republicans, but less clear as to what constitutes a liberal or conservative.
3. Would Bouie like the proposal better if the Justices were to be selected on the basic or skin colour and gender?
4. BTW, what to do with selections based on the following: "2SLGBTQQIA" (two-spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex, asexual) people.
Regardless of the size of the Court, Justices will impose their political and ideological views on rulings. The "law" isn't a math subject with correct and incorrect answers.
2
Congress needs to pass a law requiring the Supreme Court to abide by the same Federal judicial ethics rules as every other Federal judge. Until Scalia and Thomas, it was a given that the Supremes would, but since that norm has been tossed out let's make it the law.
Yes it would challenge the independence of the judiciary branch--but can you imagine any justice demanding the right to be openly unethical?
I hate to say this but I would like to point out that the answer to this issue is pretty simply. 1) Democratic Senate 2) The Constitution does not dictate the number of judges on a court
I don't believe our problems with the stacking of the courts can be solved by a set of rules. Improved maybe, but there is a basic systemic corruption in our congress that comes from allowing career professional politicians to run our country. Some of them likely started out wanting to represent the people and in time a corrupt system corrupted them. I believe we will never solve this problem with our current system of career politicians and that the solution lies with not allowing politicians like Mitch to stay in the system so long that they can work it and become incredibly powerful. WE NEED TERM LIMITS!
1
In his critique of Buttigieg's "technocratic" approach to reform the Supreme Court, Mr Bouie ends his article with a shallow slogan that we must ensure "the people of the US are their own rulers". He tops it with the usual scream for "reclaiming the Constitution". Perhaps he watched too many Trump's rallies where similar slogans are used in an unlimited manner though in a different context. Unfortunately, unless Bouie promotes anarchy, all domains of society's structure - including the judiciary - are based on representation. The technocratic approach proposed by Buttigieg is an attempt to reform the Supreme Court and improve it within existing legal boundaries. Bouie's slogans are not even meant to be productive and they are not grounded in any solution-driven thinking, but instead they introduce yet another brick in the growing wall between the left and the right in this country.
10
@Paul this writer lives in a NY bubble; anyone in office with an opposing view point is anti-democratic. And *still* reeling over 2016.
4
I've never voted Republican in my life, nor do I think I will any time soon, but it's clear that the Republican party has managed to out-maneuver and out-wit the Democratic party of late. A big part of that has been getting conservatives to vote during mid-term elections, by having the political discipline to stay focused and by fostering inner-party loyalty. The solution to democratic political woes is to learn those lessons, not weird, new cheats to a system that has worked for centuries.
3
The myth the court was a neutral fair open legal body has been proven wrong right from the beginning, The SC has always been a political tool for 200 years. My idea would be to have only well qualified people with years of experience and chosen by a impartial board of experts. No politicians included. Also, only 6 years of service.
Absolutely correct that this cynical packing of the Supreme Court with right-wing ideologues is the greatest threat to democracy in America for at least a generation. There is only one way to undo it, and it has to be done in virtually one motion. To do this, Democrats need to control both houses of Congress and the Presidency, and must first eliminate the filibuster in the Senate. Expand the number of justices to 11 (this is Constitutional), appoint 2 liberal justices, then reform our electoral systems to eliminate big campaign contributions, partisan gerrymandering and voter suppression. Things have to be done in this order. With the filibuster gone, Democrats can make changes. With the Presidency and the Senate they can appoint liberal justices (no compromise middle-of-the-road nominees). With control of both houses they can ensure that with 55% support among voters and a fairer vote we will never again have both Congress and the White House in right-wing hands. Not a perfect democracy, but not a government that tilts toward Fascism and oligarchy. There has to be a commitment to changing the structure of Federal power as a first priority, programs and other reforms can come later and, as we learned with the very modest reform represented by the ACA, no reform can succeed without a government that actually represents the people.
3
As the 60 generation throws all of us under the bus and attacks liberalism we will have to fight and die agains against their tyranny yet again.
This time though we have to revolt politically with less about free love and wood stock like rallies. We need to amend the constitution. We have no choice at this point. No more halfway houses. Hit the amendments directly and amend them. That’s what we are supposed to do. Defang the justices by amending the constitution.
To do this we must interact and inform the voters.
We must also directly end the imperial presidency. And we must be able to bring a public voting referendum against a president of the congress ends up in a situation on holding executives or justices accountable. We should be able to veto them and or force an impeachment.
We need to have our votes matter and voices heard. The minority should not be able to dictate to the majority any more than they majority over ride the individual rights of the minority. In no way does blocking a leader or having the American people veto or call an inquiry of impeachment hurt us.
Give Americans more voting rights and direct authority. We are in the modern age. The republic is failing and we as voters deserve and need direct representation through the vote.
It may require a majority of 60% but it would act as a check against executive, judicial or congressional over reach. And we should be the ones to also vote on and agree on the amendment. We the people!
1
Agreed. For all the other stuff I've heard coming from Mayor Pete I say "right you are sir", but not this one - it must've been the end of a long day. By increasing the number of justices then providing a means for the justices to select some tweener justices they can agree on...it seems like more politics is likely to be injected to a system that's supposed to be blind to such noise. I do wish there was reform of the court, but I believe the primary change agent must first and foremost be taking the power out of the executive branch. I mean really, how the heck is the selection not political when it's tied to a president with a base to placate???
Surely an easier fix would be a mandatory retirement age. The United States Supreme Court is one of the few supreme courts in the developed world that does not enforce a mandatory retirement age. In Australia it is 70, in the UK it is 75, in Germany it is 68, In Japan it is 70. The list goes on. Even if the US adopted the highest of these - 75 - Clarence Thomas would be forced to resign in the next Presidential term, Ruth Bader Ginsburg would have been forced to resign during the first Obama presidency, Stephen Breyer would have been forced to resign during the second Obama presidency, Samuel A. Alito, Jr. would be forced to resign in the next Presidential term, and even the new young judges appointed by President Trump would be serving 21 and 23 year terms (still not great, but a lot better than the 35 or even 40 year terms that they are currently facing).
If the Democrats control the House, Senate, and White HOuse, they must immediately add four justices to the Supreme Court ---one to make up for Merrick Garland and one to make up for Republican justices being appointed by presidents who lost the popular vote. In addition, D.C. and Puerto Rico should become states ( with two senators each) , which will make the Senate a little less antediluvian. They should also pass a real voting rights act, eliminate the cap on earnings subject to Social Security tax, reverse most of the Trump tax cuts for the rich, and enact a meaningful minimum wage, immigration reform, an infrastructure plan that favors clean energy, and a public option that would allow people to buy into Medicare. And then propose a constitutional amendment reversing Citizens United (though the newly constituted Supreme Court might do that itself.) Any of those will probably require the elimination of the filibuster in the Senate ( though it could be replaced with a requirement that senators representing 60% of the population have to approve a bill before it goes to a final vote.) If Democrats are given power, they must be as willing to use it as Republicans have been. And if they won't, then I'll never vote for a Democrat again.
Simple solution
Step 1 - increase size to 19 members
Step 2 - introduce term limits
step 3 - trim back to 9 as term limits kick in
2
This current sitiuation has resulted from the Dems being asleep at the wheel for the past decade, while the GOP has recognized that grass-roots domination of State politics tranlates to superior Senatorial candidates, resulting in a GOP Senate, and ultimately conservative Supreme Court nominees. Where is the progressive equivalent of the Federalist Society? -There is none - leading to the current court. Mitch McConnell plays power politics - whose goal of domination of the Supreme Court - the Dems still are playing "nice guy" and do not realize nice guys finish last.
Looks like many citizens in our country don't necessarily want a "progressive agenda." There are many regressive consequences of a progressive agenda.
And while "progressive" implies progress, not all things that are legal today are necessarily beneficial.
5
The problem is not the structure of the Supreme Court. Despite some terrible decisions, it has served us pretty well over the years. The problem instead is the extreme partisan nature that has developed over the past few decades in the Republican Party, which has impacted both nominations and the nomination process. Since you can't change the Party, a way must be found to at least ameliorate the problem.
The idea of having 5 non-partisan judges serving one-year terms is terrible. A judge needs time to grow into the office. And what qualifies a judge as "non-partisan?" You can have a non-partisan committee by having it evenly split between the two parties so that they have to agree, but a non-partisan judge is almost unimaginable.
A lengthy term limit is probably the best idea. It doesn't do away with the partisan problem, but it does ameliorate its impact.
1
Evidently the Founding Fathers appointed the first Supreme Court Justices for life. One person who replied to a comment, "R from UK" repeated Section 1 from Article III of the Constitution regarding the Supreme Court, and I think it's worth repeating:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
Nowhere in that Section does it say that a Supreme Court Judge has a lifetime appointment. Given the parlous times we live in, even an 18 year appointment, as suggested by Mayor Pete seems too long.
The Supreme Court now is weighted by Republican members, and they have already demonstrated their hostility to Democratic proposals. This is really a serious issue, and deserves much more discussion.
4
There is nothing sacred about having 9 justices on the Supreme Court. Should the Democrats have a control of the House, Senate and Presidency after 2020, one of their first acts should be a bill to expand the Court to 15 justices. Do you think their are six 35 year old marathon running progressive judges and lawyers available for nominations?
2
The nine justices are fine. We simply need to remove the justices, who are obstructing justice, by refusing to enforce the 14th Amendment, such as The Voting Rights Act of 1965, for whom many Americans, black and white died. For SCOTUS, to defang it, with gutting Section 5, is unconscionable. Either, the law is constitutional, or not. It is judicial tyranny, for SCOTUS, to perform surgery, on laws, passed by the Congress, and signed by a president. Any federal judge, who will not enforce the law, as written, commits the crime of obstruction of justice, per se, and should be promptly removed, with the loss of pension, no matter how long he/she, has been on the bench. Amend away the lifetime appointment. Nobody, should have a lifetime job, without facing the voters.
1
Oh yes, it’s simply a matter of “power”...I wonder what that entitles the imagined super majority to do in the eyes of this writer?
Never mind that the Supreme Court was envisioned as a depoliticized weight against both Congress and the Executive Branch. Pete’s proposal may not lead to instant adoption of policy goals. But it stands the best chance of the court operating as it is intended. This means neither fueling progressive victories the country is not ready for and then incurring the backlash we’ve experienced the last 40 years, nor does it mean allowing an activist conservative majority to literally ignore the will of the public on issue after issue.
When will we stop this bleeding? The writer seems to think we should let the war go on so long as it suits us. I’ll stand with Pete and say let’s all put down our weapons.
5
Pete Buttigieg's plan seems to me to make some sense. The 5 Republican and 5 Democrat judges would be selected by their caucus, having the 5 Independents elected by the 10 partisans is another good idea. I would question though how we know they are Independent and not leaning towards one party .
I recall my father who was even more of a political animal than I once saying 'scratch an Independent and you will find a Conservative' . I have generally found this to ring true.
5
People who spend time complaining about the Supreme Court invariably only do so only when the Court issues rulings they disagree with. When the rulings favor their own precious views on whatever matter the Court is the greatest institution ever and a treasured bulwark against those barbarians with contrary opinions who are seeking either to drag us to the Stone Age or ahead into some dark future of Socialism and libertinism. Calls for reform always subside when you're winning.
11
Apparently you are unaware that judges of all stripes can be impeached.
And to be honest, I'll go one better: Get rid of them. They no longer serve a purpose and they cause endless problems.
The Supreme Court no longer reigns supreme. When a president and DOJ brazenly ignore subpoenas, the rule of law has truly ended.
2
Justices can be impeached and removed by Congress. If Democrats take the Senate, that will be another option.
2
You're big time wrong Jamelle. You say there is no depoliticizing an institution that deals with politics. That premise is at the heart of your mistake in logic. The law is supposed to be blind. We are supposed to only have justices that are answerable to the law, not politicians. Once you concede that concept as being unattainable then and only then you actually do condemn the system to politics.
11
@Tom See “judicial realism.”
If it were the case that the law is objectively readable, all nine justices would agree. Or you’d at least see some rulings where, say, Ginsburg, Alito, and Roberts dissent from the majority opinion. But we know how every justice will vote.
@Mercury S
No we don't know how every justice will vote.
In this decision Ginsburg and Thomas were on one side while Gorsuch and Kagan were on the other.
https://news.bloomberglaw.com/us-law-week/rbg-joins-conservatives-in-government-win-on-supervised-release
The Buttigieg proposal is repugnant. The Constitution assigns political parties no role in government and not all Americans has consented to rule by political party.
The Constitution is mute on most issues because the delegates to the constitution decided to leave most matter to the states. But the nomination of Supreme Court justices is filled with fear and loathing because we permit justices to pretend they can perceive hidden meanings in the text of the Constitution.
Justice Willam O. Douglas famously explained that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” (I am not making his up.) So, it doesn’t much matter what the Constitution says or doesn’t say; what matters is emanations and penumbras.
We can reign on runaway judicial opinions by periodically by periodically convening new constitutional convention as the founder intended to align the constitution with changing circumstances and to resolve any controversies about what the Constitution says and doesn’t say. We don’t have to put up with emanations and penumbras.
6
The legislation enacted after 9/11 illustrates the real peril to a liberal democracy of having a Constitutional Convention to make changes rather than allowing reinterpretations. The restrictions upon government trying to prevent anymore terrorist attacks would have disappeared. The Constitution was written in a quiet time in which people could consider how to provide a well working central government which had limited authority. A few years later, it might have been different. In any case they were trying to find an ideal solution that worked. They had no idea for how long it would before it did not. They left it up to future people to work it out.
Frankly, conservatives have become obsessed with opposing change even when those changes improve everyone’s lives. Segregation was bad for all. Holding people down subverts everyone’s liberties. Impoverished old people prevent families from prospering. Having all new wealth going into the hands of a few impoverishes the entire nation. Reality does not work the way people would like and much of the time what we think must happen due to the logic of it does not because we just cannot anticipate everything. No plan is complete without contingency plans.
@Casual Observer The Founding Fathers had a remarkably good understanding of flawed human nature. They designed a system which took that into account with a series of checks and balances. This system provides measured flexibility to respond to societal changes but it is intentionally slow moving so as to avoid rewarding an unruly mob or an emerging monarch. Emanations and penumbras make for poor law and weaken the rulings which follow. While, I don't think our Founding Fathers could have possibly imagined all the changes this country has experienced, the government they structured continues to be resilient and relatively stable, even with our current President. It is a testament to their understanding. As for a contingency plan, the best is to have a well read, patient, informed, and vigilant populace.
"Progressives must look to presidents and other leaders who resisted the Supreme Court’s claim to ultimate interpretive authority. And they must insist, as Lincoln did, that the people of the United States are their “own rulers.”
Strip SCOTUS of constitutional interpretation under Marbury v. Madison and give it to the president instead? Have you thought that through?
6
I don’t understand why this column doesn’t include a proposed solution.
3
I rarely agree with you but you are absolutely right. Supreme Court Justices—whether appointed by a President, a panel of so called bi or non-partisans or elected by voters will always reflect a particular political view. Trying to change that is as fruitless as trying to take money out of politics. Impossible.
"If Democrats win a smashing victory in the 2020 elections — an unlikely but not totally far-fetched scenario — they’ll start the next year with the House, the Senate and the presidency. They’ll have a popular mandate."
If that happens, it will automatically make the Supreme Court less important. Much of the Court's current power derives from political gridlock -- policy questions that should be resolved between Congress and the president are now, in desperation, kicked over to the judicial branch.
Without a need to obfuscate and compromise, new legislation could be enacted to fix the voting rights mess and circumvent Citizens United. Federally funded women's health clinics could be set up in every state outside of local control. Much of the Court's present power is exercised because the legislative and executive branches have defaulted.
I like he 15 judge proposition, but I also think impeachment of Gorsuch and Kavanaugh should be considered, since the rules were not exactly followed, and there are still so many questions about crimes possibly committed in the past,which should be thoroughly investigated, plus the obvious lying to congress, in the present.
6
@ChesBay Impeachment of a Justice is the same standard as the President. We’d never have the Senate votes.
1
@Mercury S--With luck, we will have the numbers in 2021. That's what I'M working for.
The first thing that needs to be addressed regarding the US Constituent is a an amendment that is now 19 states strong and growing, to overturn the 2010 SCOTUS ruling misleadingly named "Citizens United" - corporate personhood and its' unlimited money in politics. This is where mayor Pete and all the others needs to start. Unless you shut down the lobbyists, unless you erect financial borders around our elections, and unless you return elections to the public, they will be influenced by multinational corporate entities as well as foreign nations (as Russia just exhibited for us all in 2016). This is the center of dysfunction that is preventing all reforms to restore democracy. Please follow up on this issue. I am not hearing much about it from any candidate.
3
Donald Trump himself is proof of exactly why Democrats must embrace not dismantle the right of the courts to a broad role of Constitutional interpretation.
Now certainly the courts haven’t checked his policy agenda, but does anyone think Trump wouldn’t say suspend elections due to “security” concerns without a Supreme Court? Or that he’d simply issue an executive order eliminating Congressional confirmation of his nominees in the first place?
In other words, everything you do your enemies can do too. Current demographic trends may make it appear certain that Democrats are the party to the future but that’s based on the highly tenuous concept that highly illiberal groups will continue to caucus with those whose values they don’t share. E.g. Muslims caucusing with the party of gay rights and Hispanics (who come from highly patriarchal societies) supporting the party of feminism and Me Too. That almost certainly won’t last.
What Bouie is proposing would further water the seed of authoritarianism Trump has planted. What we need is more oversight of the executive (and legislative) branch not less. We need a rule that every elected official MUST release the last three years of tax returns. We need an enhanced emoluments clause. We need to make the Justice Department independent of the President. Let us strengthen oversight and accountability not gut it in some misguided rush to push through policy.
3
Whether or not you like Mayor Pete’s plan on structural changes to the Supreme Court I do appreciate you writing this column and highlighting what I think should be a front and center topic in the 2020 election.
Please write more and emphasize the value of voting to make necessary changes for the protection of our liberties.
6
There are zero "inalienable economic rights" enshrined in the Constitution or the Bill of Rights as the author seems to suggest. What is being suggested is progressive legislation from the bench rather than in Congress because the left is unable to pass their wish list. If you want "inalienable economic rights" for Americans, pass an Amendment to the Constitution.
9
Buttigeig's idea adds to the strong and growing tendency further to institutionalize the Democratic and Republican parties. We've seen many examples in the appointments to federal commissions, in federal money for party conventions, in automatic appointment of cronies by state governors filling vacant Senate seats, and so forth. One doesn't need to be a Whig or Federalist to object. What's needed is revival of the idea that Justices should be generally objective interpreters of the Constitution. Instead of trying to find the best Democrat or Republican, how about looking for good faith?
2
All good reasons to be concerned about a politicized court opposing needed changes or even being reactionary. The one saving grace of an independent judiciary is the rule of law. Regardless of one’s political agenda, the rule of law assures that it follows precedent not popularity. All cases about the same issues and merits are to be decided the same. It lessens the problem of judges deciding cases according to their own set of values. It’s not perfect but it’s better than the alternatives.
Interesting and well written as usual. In my opinion the author makes two incorrect statements: First, that the Supreme Court selection process has always been political. Until the Bork nomination the Senate approved justices based on their jurisprudence rather than ideology. The second incorrect assertion is that the Court should somehow try to “make law”. The only job of the Supreme Court is to interpret the law and to decide whether, ultimately, a law is supported by the Constitution. If it is not, the. The Constitution must be amended.
3
There is a very serious problem with today's supreme Court: Justices appointed (and confirmed) purely on the basis of their ideology. When you can predict with absolute certainty a Justice's position on any given issue, without knowing a thing about the Constitution or constitutional law, what does that tell you about the quality of the "constitutional" analysis behind those decisions?
4
I live in a country where Judicial appointments are not political. Judges are appointed by the Chief Justice based on experience and skill. Knowledge, experience and even handed application of the law determines suitability; overtly political Judges would never even be considered. Attaching membership of the highest and most important Court in the Land to politics and life-time appointments, appears to be an invitation to corruption and partisanship which is what the GOP are currently doing.
8
How about 16 year term limits with 2 judges appointed each presidential term. This would create some churn to reflect the will of the voters, while providing for some stability.
6
Make it an odd number to increase odds it’s a different party each time.
4
“not merely to defeat Trump and Trumpism, but to reclaim the Constitution and advance a more expansive vision of democratic freedom, in which Americans have inalienable economic rights as well as inalienable political and civil ones.”
Here is your key argument. You do not want to reclaim the Constitution. You want to rewrite it without going through the arduous process of amending it. You want the Court to write in inalienable economic rights when none clearly exist in the Constitution. You might as well come out and say you do not want a Constitution, as the only realistic way for it to say what you want it to say is to ignore what it actually says.
9
I agree with the diagnosis here, and the opposition to Buttigieg’s ideas, but I strongly disagree with the proposed solution. The solution outlined here, as best I can understand it, seems to be that future legislatures and presidents simply ignore the courts. I cannot sign onto that. My solution is to fix our electoral system – reduce gerrymandering, reduce voter suppression, institute the multi-state compact on presidential elections so the highest popular vote-getter wins, institute ranked voting, reduce the power of money, ensure counting accuracy with backup paper ballots and fully transparent software systems, implement automatic and same day registration, etc. We can then keep electing liberal legislators and executives who will nominate and approve liberal judges. That is the democratic solution.
3
Pete Buttigieg spoke about challenging structural issues to bolster our democracy. He stated that his proposal for addressing the increasing political nature of the Supreme Court was intended to foster debate toward some kind of reform of the court. His proposal was only a starting point for a debate about the subject which this article, as an example, is now considering. I applaud his effort to challenge the status quo.
7
The likelihood that Democrats will gain control of both chambers of Congress and the presidency in 2020 is possible only if someone finds Aladdin’s lamp and uses all three wishes on this outcome. The Senate will remain Republican for the foreseeable future. The House may well flip to the Republicans if the progressive left has its way and succeeds in calling for Mr. Trump’s impeachment (which will likely fail in the House, so the Senate won’t even have to vote on the issue). And the current gaggle of unsupervised Democratic presidential candidates couldn’t beat Mr. Trump in a contest for County Dogcatcher.
Calls for court packing resonate only in the echo chamber occupied by far left ideologues. Please add it to the list of outlandish policy positions that the presidential candidates are being forced into (reparations! seriously?).
Republican strategists are probably pinching themselves constantly to see if they’re awake or whether this is just a dream where their best hopes are being realized.
4
Sadly, you are correct. No, not sadly, disastrously. Unless there is some sort of electoral Waterloo for the GOP in 2020, followed by an additional political mopping up by the Democrats in 2022, there is almost no chance of avoiding a civil war of one kind or another in the following ten years. It's in the cards.
1
@James F Traynor
War? What do the leftists plan to fight with?
2
@cannoneer2
Who said it was leftists that would start the violence to begin with? i suspect it would come from the right. It usually does.
The bottom line is this: forget about comprise solutions w/ Republicans. They've made it their mission to institutionalize minority rule. Dems must fight first to regain balance. Then and only then can we begin to think of compromise and collaboration.
Warren 2020.
4
Please consult the Constitution. Nowhere will you read that the purpose of the Supreme Court is to "clear the way for a progressive agenda." If the Democrats think the Supreme Court needs more progressives, then they should be voting in the same numbers as Republicans do.
12
The funny thing is, more Democrats vote than Republicans, but Republicans control two branches of govt. whatta democracy!
The Court doesn't exist to carry out anyone's agenda. It exists to resolve certain kinds of disputes. Some of them have to do with the meaning of the Constitution.
2
A number of proposals to reconfigure the Supreme Court are starting to surface. I happen to think the Epps-Sitaraman idea is pretty wrong-headed, since actually applying party labels to two-thirds of the bench would simply institutionalize the current insufferable situation.
But term limits are coming, one way or another. Offering the ridiculous reward of generations of control of the country's jurisprudence to the winner of some particular election has just got to come to an end.
As the Roberts Court comes out of the shadows as the instrument of right-wing activism, it will no longer be able to count on the tradition of respect which has protected this institution since the nineteenth century. The further back it goes in throwing out precedents which have been part of American life for generations, the more it makes itself a fair target for reform and reconfiguration.
Roberts may be comforting himself with the notion that not even FDR could pack the Court, but he needs to recall that the Court of that time actually saved itself by eventually exercising self-restraint.
There is a threshold, and right wing activists on the bench are crossing it.
4
SCOTUS has been seen as a nakedly political institution since at least FDR, who thought to pack SCOTUS in order to prevent it from removing his economic obscenities that were extending and prolonging the Great Depression. Mayor Pete has an uphill battle, but mostly he's looking to pull the teeth from the one branch of government that could defeat his own dictatorial plans.
3
I share the columnist's disdain for McKinseyian "technocratic solutions,"of which we should expect many from that firm's first exemplar to confess his provenance. But I don't care for his resistance to judicial supremacy. Rather, I would argue for a sustained engagement of the States against the visibly deformed Justices shaped by a lifetime of indenture to interest groups as revolting as Alito's ultra-right wing "Concerned Alumni of Princeton, and Kavanaugh's obeisances to Heritage. Let the ancient recourse of "Conservatives," to the experimental laboratories of the States, play out to the obvious ingenuity of their embrace of humane policy against the sordid residue of the most corrupt Party visited upon this continent since Lord North.
The President is elected every 4 years and max two terms. The house and senate representative every 2 and 6 years. the court for life. Here is where the problem is. For life, and since they are politically appointed and motivated (usually a political carrier in the judicial system precedes the nomination) this must be changed. Like every other branch of the government justices should have a limited mandate, may be ten years or a similar lenght that best fits the turning of power in the three branches of government.
Life expectancy is now not 40 but 80 years and this should be taken into consideration too.
3
Pete is right about the Supreme Court as well as many other things.
As we slouch toward the Democratic nomination you will realize that Biden, Sanders and the other geriatric crowd will lose their assumed mantle. Sanders in losing supporters as I write. Biden has no where to go but down. His minders are terrified that he may actually converse with voters and make a fool of himself.
This will come back to haunt him along with his excess of skeletons.
There are currently 24 people running for the nomination. Pete is the only one with decency, intelligence, experience in governing a city of 100,000+ ( dealing with the realities of daily life in a community that was condemned as lost), a veteran and other qualities that will make him our next President.
Most Americans don't know who he is.
That is rapidly changing and as it does his poll numbers only climb.
12
@simon sex
There are a lot of qualified Democratic candidates, most of them with more maturity and experience than 'Mayor Pete'. What about state governors ? A few of them are in the mix and arguably have more challenging jobs running a state than being mayor of a middling-small city. At the moment, my choice is Washington State's Jay Inslee, who is the most versed on climate change and actually understands the clear and present danger we are already in.
We are rightly shocked and horrified when a small child is left in a car in the sun and it overheats. Why can't we even begin to understand that this could happen to the entire planet?
This sounds like panacea wrapped in an enigma. So....the solution is...what exactly? The problem with Mayor Pete’s (adopted) solution is that it is similar to “merit selection” proposals at the state level: he who controls the executive branch inevitably decides who is able to be considered for “merit” appointments. All that does is eliminate “big money” from judicial elections and allow the party in power to save that money to accomplish the exact same ends.
“... the court would have 15 members: five affiliated with the Republican Party, five with the Democratic Party and five “nonpolitical justices” selected by that group of 10”.
That’s a terrible idea for a host of reasons.
Why not depoliticize senior judicial appointments in the way that other countries do, by establishing a diverse committee of senior members of the legal profession who nominate candidates based on their experience and expertise, and whose appointment is then largely a formality?
3
We need to adapt the Swiss model, Nonpartisan with 38 justices. There must be gender and geographical representation. Any Current member should be able to confidentially veto unqualified nominees. Given their political relevance, house of reps should also have a vote for all nominees.
"There’s no depoliticizing an institution that deals with political questions and operates in the context of political struggles and conflicts. The Supreme Court has always been political, and no reform short of ending the power of judicial review will disentangle it from ordinary, partisan politics."
===============
Its refreshing to see an article acknowledging the reality that the Supreme Court is a political institution.
However the Epps-Sitaraman proposal is is akin to a Rube Goldberg device. Particularly chuckle worthy is the suggestion that if the political members couldn't agree on the five "nonpolitical" members, the court would be closed down.
Perhaps its time for academics to come to ground and deal the political reality that we're all political animals, and the best and perhaps only way to control the court is to win elections.
3
If you please, Mr Bouie, I am as liberal as anyone [so liberal I call myself a liberal and not a progressive, which is just a term to use so you can hide from being called a liberal] but I don't want to get into trying to strip the Court of its interpretive role in our government. I would venture that you were happy with that role in Brown v. Board, and other cases of the kind that led conservatives to gnash their teeth and accuse activist liberal courts of making up law where there was none, of interpreting the Constitution by finding ideas inside, where the Founders never would have thought they hid them, just because they liked those ideas and wanted to find them there.
5
When FDR was trying to implement the New Deal in response to a horrific worldwide depression, didn't the Supreme Court populated by conservatives block his attempts? Wasn't there an attempt to "pack" the Court and didn't that attempt fail?
Many of us grew up during the era of the Warren Court and tend to expect the Court to protect our civil rights. There has always been a conflict between those rights and property rights and it's difficult to resolve that conflict. It doesn't bode well that this Court's philosophy challenges public opinion on so many issues.
1
The best thing I've read in terms of fixing SCOTUS is 18-year terms on a staggered schedule, so that each president gets 2 picks and the SCOTUS itself then evolves with the times. There was an article about it in The Washington Post. Buttigieg is right that we need to take out the "life and death" aspect of these confirmation hearings. And no more slowing down the pace of these confirmations, as McConnell did towards the end of President Obama's last term.
6
I’d like to echo this author and several commenters by suggesting reform is in order but the problem has been underestimated. There’s a sense that McConnell’s handling of judicial appointments has delegitimized the court. Add to that deeply controversial decisions like Bush v. Gore and Citizens United (among others), and the problem is larger than politics. The court’s structure is unconstitutional.
Our courts have been hijacked by corrupt politicians. How can money be protected speech? How can we accept a court that denies the hard work of the legislative branch because they disagree with a Medicare expansion or fail to see racism in southern electoral changes? Why do employers’ religious beliefs about sex get to decide employee’s rights to healthcare, despite policies protecting employees’ equal rights, agreed upon by the political branches? How can a court charged with enforcing the bill of rights impose minority Christian norms on an entire nation for decades?
I understand the view that, elected representatives should do what they can to empower their supporters. I can even understand the McConnell approach: do what you can get away with. But this is rule by procedural tricks. It’s not rule of law.
I hope our Article 1 Congress can make law again, that our Article 2 executive can enforce it, and our Article 3 courts can keep them honest. We’re a long way from that principle. Perhaps reforms can help. Perhaps some removals are also in order.
2
Folks, if you want to defeat Trump, you should pay attention to this.
I've been following the "neuroscience," "psychology" and "political science" views of political orientation for decades. I've read Haidt, Lakoff and the rest.
This is quite simply the wisest overview of the complexities of political orientation I've ever read:
http://nymag.com/intelligencer/2019/06/tucker-carlson-elizabeth-warren-monologue-trump-economic-patriotism.html
2
Buttigieg's plan would require enshrining the Democratic and Republican parties into the constitution. Besides being a more foolhardy idea even than continuing on our present course of dysfunction, that seems to be the antithesis of depoliticization.
7
I agree that we will be confounded by the SCOTUS mess for some time to come. But, I also believe that the stupid should pay and pay dearly. The American public has been very stupid in thinking they could vote for phony patriots and think that their economic and political interests would be served. So, they deserve the pain that the Court will give them.
I think that the people will be able to do better than some expect. But the electorate needs to learn its lessons the hard way. Who knows, maybe they will pay better attention the next time the Club for Growth starts trying to convince people that Republicans actually care about anybody other than the top 0.5%.
1
I love the alternating understanding of how judges are either completely objective, or notoriously biased, depending on which scenario helps Democrats. In the case of Trump, if he calls a judge 'biased' then the left (and the media) are appalled at how anyone can ever think of a judge as anything other than fair-minded and interestted in justice. If it applies to Alito, then the guy is hopelessly biased. RBG? A champion of justice and all that is right in the world. if editorials like this were written in 2013, it would be refreshing and would actually appear to be intended to make things better. But, just like the nuclear option with Harry Reid, everything in NYT gets rationalized via the lens of which side does it help NOW.
8
Bouie starts his letter with a fundamental misunderstanding of the role of the Judiciary - it does not make law. He also clearly misrepresents what Trump has accomplished - tax cut, job creation, reduced burdensome regulations, etc.
2
Don’t forget his accomplishments of increasing hate crimes, growing the national debt, and legitimizing strongmen worldwide.
Mandatory retirement of judges at age seventy. This needs to be the first step and would resolve many of the issues Bouie engages.
But how can this come to pass if jurists can sit in judgment of legislative amendments?
Constructing a larger Supreme Court according to a sports model will not work. Besides, a one-year term for non-partisan Justices seems impracticable to say the least.
Pete had better be careful. If he pushes this too far it will cost him votes.
There's no need to enlarge the Supreme Court. What we should do is abolish two seats and go by the union rule of "last hired, first fired."
1
The long-term answer to the politicization of the Supreme Court is a constitutional amendment requiring that Supreme Court justices (and preferably all federal judges) be approved by a supermajority of the Senate, including a specified percentage of members of the minority party. Perhaps it should also set a retirement age. The same requirement regarding the approval process should be applied to the Attorney General. The justice system is too important to the nation as a whole to be subservient to short-term political winds or the ideology of one political party.
It used to be that way, but the Democrats changed the rules to get their preferred jurists on the court.
4
Supreme Court justices along with all federal judges should be restricted to a ten year term. No federal judge should be appointed to anything for life.
3
Impeach Kavanaugh, Gorsuch, and Thomas all of whom have a credible basis for impeachment:
Gorsuch because of the Garland mess; Kavanaugh for sexual conduct; Thomas for the fundamental conflict of interest with his political wife's activities; and all of them for lying during their confirmation hearings by saying they follow the principle of Stare decisis.
4
Just days ago, a young Trump appointee, decided that Congress has NO standing to sue when Trump usurped a critical Constitutional power reserved to the House: The power of the purse. He had no legal or Constitutional justification for his decision and any honest jurist should overturn it. But he is emblematic of how Democracy dies--when judges BLATANTLY lie about what the Law is, and what it says, especially the Constitution. He didn't "interpret", he simply ruled for the man he owes his job to.
And it's not a new phenomenon. The late Scalia went shooting with VP Cheney while he was ruling on Cheney's case before the SCOTUS. Even Jeff Sessions recused himself, but Cheney didn't. And in Bush v. Gore, Clarence Thomas's wife, Virginia, was employed vetting appointment candidates for Bush, yet Thomas didn't recuse himself when a decision for Gore would have meant Ginny lost her job!
Malcolm X warned us of this:
"We want freedom by any means necessary. We want justice by any means necessary. We want equality by any means necessary."
Donald Trump and Mitch McConnell see to do way with Freedom, Justice and Equality...BY ANY MEANS NECESSARY!
3
Please review all the decisions by the Democrat controlled Ninth Circuit that have ultimately been overturned by SCOTUS because they were bad rulings politically motivated.
1
For every action there is an equal and opposite reaction. All the power actually rests with the people under the Constitution. If the SCOTUS keeps striking down popular rights and programs because it is packed with conservative hacks, it will make it easier for progressives to win congressional and presidential elections-assuming the progressives are smart in their messaging so the voters know where the problem is.
Mayor Pete would enshrine the power of the two parties to divide up political power through the court system. Bad idea.
What is needed is a reform that would eliminate the president’s sole power to nominate justices. A slate of qualified nominees would be proposed by multiple power centers within the society, and the one who gets the most Senate votes would be seated. That would guard against extreme partisans getting on the court.
That would require a Constitutional amendment, so in the short run I favor expanding the court to correct for the damage McConnell did by denying Garland s hearing. It’s not pretty, but he pushed the envelope and a correcting response is necessary to keep the court from becoming illegitimate. Continuing to stack the court by extreme partisan means will destroy the credibility of their rulings. It’s just that simple.
2
Take away their clerks. The Justices spend a majority of their time dealing with ceremonial parts of their role, and their judicial role amounts to them showing up to vote at conference. Most of them have very little involvement in the opinions they write, and Justice Thomas has probably never written one, leaving that task to his team of young reactionary clerks. Threaten the Justices with having to do actual work, and you may see a shift in their attitudes.
2
The Dems need to retake the Senate and then make a naked effort to reverse what happened under McConnell and Trump.
Gorsuch and Kavanaugh need to be neutered, either by reducing the court to 7 justices with a 'last in - first out' policy, or expanded to 11 justices with liberals duly appointed by the next Democratic president.
McConnell shamelessly threw decorum and tradition into the dumpster beginning with the non-action on Merrick Garland. So now it will be the Democrats turn to reverse the injustices wrought by the GOP.
3
There is a very simple short-term solution that is both fair and more realistic than constitutional amendments (assuming the Democrats hold the House and win the Senate): impeach Justice Gorsuch. He holds his seat contrary to the constitution, and it was a "high crime or misdemeanor" (an 18th century legal term that simply means abuse of power) of him to take the seat knowing this.
1
@Pancho
Gorsuch accepting the appointment is NOT contrary to the Constitution. There have been previous election-year nominees, such as Edward Bradford and Reuben Walworth, on whom the Senate similarly refused to take any action in hopes of having the vacancy filled by the next President, for strictly partisan reasons.
https://quiznox.com/2017/01/31/election-year-supreme-court-nominations/
The Democrats will not have the votes to impeach Gorsuch,
For decades I have railed about the Supreme Court. In recent history there were far too many cases decided by a 5-4 vote with 8 of the votes predictable in advance. It had, in effect ,become a one judge court. Buttigieg's proposal is absurd for many of the reasons mentioned in the article. It seems to me a simpler solution is to require a 7-4 or 8-3 vote to set an outcome. Somehow 5-4 votes simply do not convey to me the force of law.
I have rejoiced when a vote occurs where Justice Thomas and Justice Ginsburg vote the same way. It doesn't happen often but it does happen. And I don't care which way they voted. That they agree is enough for me and the country
3
Interesting, insightful perspective, but to be fair, that’s not an idea Mayor Pete is wedded to. Quoting from his own Pete for America website on Judicial Reform: “We need to reform the Supreme Court in a way that will strengthen its independence and restore the American people’s trust in it as a check to the Presidency and the Congress. One promising idea is to restructure the Court so that ten members are confirmed in the normal political fashion, with the other five promoted from the lower courts by unanimous agreement of the other ten. Others have proposed implementing term limits. As president, Pete will create a bipartisan reform commission for the purpose of recommending structural improvements to protect the Supreme Court from further politicization.” Perhaps Mr. Bouie would be a good candidate for President Buttigieg’s reform commission.
6
It has been Mitch McConnell's grand plan to completely reshape our judiciary for generations. He means to affect our s lives from beyond the grave. That is his fondest dream.
I am a partisan Democrat. Even so, I consider any system that assigns seats on the Supreme Court based on party identification abhorrent.
Currently, Europe is going through massive political turmoil which having a profound negative impact on established parties the the CDU and the Tories. Why would the US ever want to consider a set of political reforms that lock a two party system where one of them is named the Democrats and the other the Republicans?
Yes, reform is needed but we need something much more flexible than this.
7
I generally agree with Mr. Bouie, but not this time. He is calling for the president to ignore the court’s decisions!
Does he really favor letting Donny Boy do that?
He's right that Wonder Boy's solution is convoluted and deeply flawed, but the solution is not to ignore the court — that would lead to unbridled executive fiats and destroy the checks-and-balances at the heart of our democracy.
We need to expand the number of justices the old-fashioned way — by increasing their number.
The legislation should stipulate that the court contain 15 members nominated and appointed immediately and that any *future* change would require a 2/3 vote of both Houses, could only happen once in a president's tenure as president, and would apply to subsequent presidents, not the current one.
1
Bouie wrote, "If there is a fatal flaw, however, it has less to do with mechanics and more with the concept." Perhaps. What is certain is that the fatal flaw here is thinking that the legislative-judicial system can make any additional positive contribution toward socioeconomically engineering an objectively better society. The reason for that is fundamental: the government cannot coerce equitable outcomes without inflicting a greater cost than any potential gain. What the government can do is ensure a legally fair chance for everyone, and that is largely a finished work. The greatest adversity that any child will face is neglectful, inept, and careless parents, so unless we are to invite the government into parenting, we are beyond the point of diminishing returns.
As an irrelevancy, the new Supreme Court plan embodies needless mathematical complexity. If the court is to be 5-5-5, it could much more easily be 1-1-1. I'm a little surprised that a Rhodes scholar wouldn't notice that.
1
FDR and court packing comes back again. Don't fool around with the Constitution. Just get each branch to do its job. Start with impeachment proceedings, for example.
Expanding the court isn't fooling around with the Constitution! The document does NOT specify the number of justices. It has been changed several times in our country's history.
Plus, McConnell, Trump, and the Republicans have already undermined the Constitution, so this is putting things right again.
The first judge to be appointed in an expanded court should be Merrick Garland.
@Marsha Pembroke True enough, but the number has been 9 since 1869.
Best reforms I have read about:
1) 18 year term limit. Allows every administration to appoint justices. Allows faster rotation to represent the country, not some extreme politicians choices. Ensures we aren't stuck with radical or incompetent justices for decades.
2) 60 day limit on Senate hearings and vote. After 60 days, if Senate does not vote, the confirmation is automatic.
3) Must have 60 vote or 2/3 of Senate for confirmation. Prevents a situation like we have now where extremist politicians can pack the court with their extremist cronies.
All reasonable and necessary to create balance and prevent corrupt politicians from blocking appointments.
419
@Joe Rock bottom I think maybe add a reform "no specious accusations of sexual misconduct from over 3 decades ago. I mean, as long as we are strictly addressing particular past scenarios and fitting in 'fixes' that address that one, let's do it for other shameful scenarios with corrupt politicians. Maybe add in "if you have information in July, need to reveal it within 10 days or it can't be used- like in September during the confirmation hearing."
7
@Joe Rock bottom
This items 2 and 3 could be done with a change in the Senate rules without needing a constitutional change
Codify the senate rules and most problems disappear
9
@Matthew Carr though the next Senate could dismiss the rules at any time, as we have seen.
I am a fan of term limits. And of a requirement of a vote within 60 days or automatic advancement, (60ndays barring a national crisis, perhaps).
6
This plan would require a constitutional amendment and has essentially zero chance of adoption. But if Trump is defeated and there is a democratic senate, how about expanding the Supreme Court to eleven members for a period of thirty years? By the way, I would suggest Merrick Garland and Barack Obama for the new seats.
369
@Cassandra If we start expanding the Court to allow a new President to make more appointments, before you know it we'll have 100 Justices on the Supreme Court. No thanks!
20
@Cassandra
Or Merrick Garland and MICHELLE Obama!
21
Cassie, it doesn't require an Amendment. Congress has the power to change the number of justices and has done so many times in the past!
32
Buttigieg's idea is the best I've heard to prevent ideological hijacking of the Supreme Court, by the left or right. Calling it technocratic doesn't make it bad. Jumping up and down saying it won't advance our agenda doesn't make it bad either. I'm sure that Mayor Buttigieg is well aware of the daunting task of amending our Constitution, but if we don't shoot for the ideal, we'll never approach it.
167
@Mort It would make justices into partisans. It's more ideological than the current court. Right now we have fake nonpartisans. This would create open partisans who wouldn't even try to be fair. They would be chosen based on party affiliation and not judicial ability.
11
@Mort
I applaud Mayor Pete for making judiciary reform his core agenda. It will be a difficult task, but a democratic President and Democratic congress (if elected) could force the GOP to accept the proposal.
His proposal is far from Ideal. But I like the idea of having non-partisan judges in the our court systems. If we try to be too ideological, as the author seem to suggest, we also risk bring ideologically outnumbered.
16
@Mort
It hardly seems fair to lock the Court into a Red / Blue
political binary (to use the 'woke' term) when the majority of voters identify as Independents. Just because the Court represents a Republican / Democratic split now doesn't mean our political parties won't evolve or that we won't end up with different ones with different ideologies. This suggestion seems very shortsighted to me, and demonstrates a serious inability to think beyond the near term, politically or otherwise. Seems overthought but underconsidered.
18
Not sure I understand. The role of the court system is NOT to "clear the way for a progressive agenda" any more than it's intended to clear the way for a conservative agenda. It's been a while, but I always thought the courts were there to interpret laws and ensure that our constitution is upheld.
Just because the "progressive agenda" isn't served as desired, there's now a call to overhaul the courts? Sheesh...that sounds dangerous.
There was a period in the mid 20th century where EVERY member of SCOTUS was put there by FDR. I don't recall reading in any history books where the opposition party took action to completely alter our system of government.
When did it become a mainstream practice to change the rules of the game just because you don't like the way things are going...or after you've been dealt a setback? These calls for structurally altering the structure of government (abolish the electoral college, change the way the number of senators are assigned, pack SCOTUS, etc.) are dangerous, reactionary and juvenile.
For the record, I'm an independent. Agree with the left on some issues...the right on others. Don't much care for Trump...but my 2020 vote is firmly in the "undecided" column right now. However, efforts such as this really make me afraid of what a "truly progressive" president will do if elected. Unless you're on the extreme left side of the political spectrum, you're a bad person.
If the left wants things to change, win elections!!
105
@Tom
Re: “when did it become a mainstream practice to the change the rules of the game...”. The rules changed when McConnell held up the Garland nomination. Gorsuch shouldn’t be there.
100
@Tom: McConnell changed 'the rules of the game' when he blocked a legitimate president's legitimate choice and now chuckles and says, "We'll fill it" when asked about a 2020 vacancy. The evil in that chuckle makes my blood boil.
103
@ Tom There was a period in the mid 20th century where EVERY member of SCOTUS was put there by FDR. I don't recall reading in any history books where the opposition party took action to completely alter our system of government."
It's doubtful that you're old enough to have spoken with those from that era in the working class & how egregiously rotten were living conditions for the average family. Talk to the guy standing outside the factory gate waiting to replace someone summarily fired because a boss didn't like his looks or, worse yet, to be denied a job in the first place for that reason. We won't even mention wages, hours & working conditions.
We now have a political party wanting to turn back the clock to re-establish the same plutocratic dominance & put the "disputatious" back in their place.
I suggest you read some Jack London or Upton Sinclair to see what you've missed.
36
Nothing like changing the rules when you don’t like the game. Would this even be up for discussion if the court has a liberal majority? I say not.
3
It wouldn’t have come up without the successful Republican effort to pack the courts with partisans. Abuses bring ideas for reforms. But Republicans, as usual, claim victimhood when their attacks on institutions are noted.
2
@JimH No, but that's precisely the point. Democrats are statistical majority in this country. Twice in the last 20 years they've won the popular presidential election, only to lose the electoral college. The weight of the progressive majority will only swell as time marches on, but the right wing stranglehold on the judiciary will remain.
At its core, SCOTUS is an undemocratic institution. That's the conflict. If there was a liberal majority on the Supreme Court, there would be no conflict. The entire point of this piece is on the coming conflict, which wouldn't exist if there were a liberal majority.
I happen to like the undemocratic nature of SCOTUS. I think it's a good thing. But I recognize that there are problems when the ruling philosophy in the country is so contrary to the weight of public opinion, particularly when that philosophy is so extreme. If it's not addressed, it could mean the end of more than just SCOTUS as we know it, and that should worry everyone.
The fact is our Constitution is outdated and frankly needs to be rewritten. At the very least the way our elections function and our formnof government needs to be changed, maybe a parlimentary system or similar? As it stands now a bunch of empty rural states have far too much say vs states with actual people. This country simply will not survive unless changes occur. Eventually things could break down and lead to a second civil war.
1
Like so many progressives, Jamelle sees absolution and governing through the courts. This is exactly the wrong answer. The courts may lean conservative and I happen to agree with Roe but they don't make law, they interpret law and the constitution. It is the failure of our legislature that is the problem. The attempt to hail mary and outsource the legislative agenda to the courts or further give Presidents authority of the executive action are wrong. The legislative branch passes the laws. Congress should do its job.
130
@Chris The problem is that the courts are stymieing legislative efforts. It's not just a failure to legislate when what you do legislate is blocked by the courts. It's shaping up to be the Lochner era all over again.
8
@NSG Exactly. The Medicaid expansion was passed through Congress. It didn’t matter.
10
@Chris
"The legislative branch passes the laws. Congress should do its job."
What is its job if most of its members - House and Senate - on both sides of the aisle, take campaign funds from corporate and wealthy donors take campaign money from corporate and wealthy donors, then do their bidding instead of ours? There's a reason why the poll numbers of Congress are in the single digits. Unless we are able to elect an "unbought" president, who will - by grit and inspiration - lead us, a la FDR, to our highest calling as a nation, it's hard to see a way out of the maze.
6
Who decides a candidate’s political view? Why not just use their own declared registration? It can be changed at will, but change leaves a history which tells a story along with other events in their lives. This distinction is not perfect, but what is? I am intrigued by this idea, and applaud its creativity. As a Democrat, I do not feel very represented in today’ s government, and under the trending behavior of politicians it looks like one or another group will always be left out. That is not a good future for democracy.
“Inalienable economic rights”?
What on earth are those?
Have you ever actually read the Constitution?
7
Jamelle Bouie Is Wrong About the Supreme Court. He hardly his disdain for Mayor Pete when on TV shows as a pundit. And, again, just dismisses Mayor Pete's argument from the basis, which doesn't provide much debate. It just seems like another attack on Mayor Pete which Mr. Bouie seems to like to do for no good reason but made up after the fact.
1
Yes, he's wrong about this. BUT he's right about a lot of stuff.
1
I agree. The problem is not with the constitutional framework but with the current political chaos in the nation. Justices have always been and will always be political. Think of some of the outrageous decisions the Court rendered with regard to slavery, race, integrated schools, homosexual rights, intermarriage, etc. It is also impossible to predict a Justice's voting record, i.e. Souter. The problem is our current political chaos and polarization in the country. Justices can no longer render their politically biased decisions without looking like clowns and fools because the policies they need to allow are so racist, sexist, religiously influenced or nakedly based on lies and false information. They can't bend the law when the factual underpinning for an argument is so blatantly false. Correct the mess at the polls, not by rewriting the constitution.
Pete's plan would never work. It has no chance of being implemented. But, even if it could somehow be made to happen, Republicans are not interested in bipartisan cooperation, or in the creation of nonpartisan institutions. Their various single issue voters refuse to compromise on gun control, or abortion, or reasonable market regulation.
The way our government works, is if one party has one branch of government, that party can essentially freeze any progress the other party hopes to make. If Democrats manage to gain control of the Presidency and the Senate in 2020, then they need to stack the Supreme Court early on if they are going to make any headway. Otherwise, the conservative activists on the court will block everything that comes their way, with the flimsiest justification.
If Democrats win the presidency, their goal should not be to make things fair, it should be to advance the interests of the people who elected them, while the window is open. Fight fire with fire, or get burned.
1
Mr. Bouie,
I agree with your analysis.
But the court will be conservative for many years.
What is your solution?
2
To me, the problem is human longevity. In 1789, when the constitution was adopted, the average life expectancy for the average male was slightly less than 40 years, now it is closer to 80 years. This alone argues for review of the lifetime appointment for federal judges. Add to that, the fact that the fantasy that judges are apolitical has been exposed as a fantasy and that the judicial branch is just as political as the other two branches of government also argues for appointment for a term of years, just as the other two branches of government get elected for a term of years.
5
I propose first an idea promulgated by others: the end of lifetime appointments to the Supreme Court with each justice being appointed for 18 years and the appointments staggered so that every other year there is an appointment - each presidential term gets 2 (with provisions made in the event of the death of a justice)
Having more than 9 is unweldly and justices should not be identified with a political party - the Whigs and Federalists are gone; the Democrats of today are unlike those of the 19th Century and the Republicans who can be elected to office consist only of those who willing to dance to the tune of the Trump base
What I propose, which I haven't seen elsewhere, is a constitutional amendment requiring at least a two thirds vote in the Senate to confirm a justice. This will ensure that ALL justices are well within the political mainstream and probably eliminate those who can only be approved on a straight line party vote
13
@sbmirow The bigger problem is probably the Merritt Garland problem where the party that holds the Senate simply refuses to take up the nominations of a president from a different party. And what happens if we never get to 2/3 because a racalcatrant minority in the Senate refuses to confirm anyone?
Rather than require 2/3rds I would propose that all nominees be deemed to be confirmed by the Senate within 60 or 90 days unless they are actually voted down. In other words, if the Senate refuses to do its job we just move on. The same rule should actually apply to all confirmations from the Cabinet to ambassadors.
As for justices who die or retire in office before their 18 year term expires, allow the current president to nominate a justice to serve out their term, whether there is 1 year left or 17 years and make the interim justice eligible for reappointment for a subsequent 18 year term. This would be similar to how we currently handle Senate vacancies.
2
Playing games with the make-up of the Supreme Court will do nothing unless and until the U.S. Senate is re-apportioned to make it fairly represent the make-up of the U.S. population. The Trump presidency has glaringly exposed this problem and the related problem of the Electoral College. These are fundamental structural problems in our political system which desperately need reformed.
4
If the President is granted the power to interpret the Constitution in any way he sees fit, we would end the incessant Constitutional crisis of Trump’s presidency... by unilaterally surrendering judicial review.
Holding off until Trump is out of office before venturing out into this brave new world wouldn’t help much: there will be other non-progressive presidents in the future.
Undermining the courts just makes bad administrations worse. It is doing Trump’s work for him.
3
Mr. Bouie, in essence, is advocating the elimination of judicial review. That proposal certainly proves more revolutionary than Mayor Pete's 'technocratic' panacea. Good luck overturning Marbury versus Madison.
47
@MimJohnson
Correct.
2
@MimJohnson
This is a case of the cure being worse than the disease.
7
@MimJohnson It is worse than that. He is advocating ignoring any and all judicial decisions if you don't like them. Not just Supreme Court decisions, but all decisions by any court, federal, state, local. I won't go on and on. But that is the simple result of his analysis in the last two paragraphs of the column. Yep, progressives can ignore court decision because they "know" what the right decision should have been. So can criminals. So can prosecutors. So can anyone.
5
This is a scary article. If Trump pushed the ideas articulated in the final paragraph of this article (e.g. challenging/ignoring the surpreme court, defying the rule of law, etc) we would all be howling from the rooftops.
I'll take technocratic plans over specious reasoning any day.
11
There is actually a simpler answer to this issue. Bring back the 60 vote necessity for approval in the senate. By doing this you are forced to choose someone that the other side has to approve. If the minority refuses all choices, a limited number of refusals could be used (like in a court where the lawyers get limited numbers of jury member exclusions).
79
@Lance PInkham. The current Court came about because the Democrats followed the 60 vote rule and the Republicans did not. It is the wrong time to go back to the 60 vote rule, at least until the Democrats appoint two more justices by raising the number of justices to 11. Then the Democrats still have to figure out how to keep the Republicans from changing the rules again.
15
All judges, including those of the Supreme Court, should have term limits, 15 year maximum in my opinion. Congress should also have term limits.
3
Her in Canada it is the Bar that suggests judges and justices. The Bar looks for judges who listen to the argument. When Scalia was put on the bench I suggest nobody believed Scalia ever listened, wore a blindfold, or didn't put his thumb on the scale. Reagan destroyed America he nominated Bork and Scalia and the search for truth and justice was no longer the American way.
13
The inherent SCOTUS flaw with which we must live is simple: There are no thinking apolitical judges and we're left with trusting a highly dysfunctional partisan Senate to confirm or reject the POTUS nomination. We're a never ending experiment which depends upon an informed citizenry. We've come close to failure with this international laughingstock of a criminal POTUS.
5
Pete Buttigieg's idea directly addresses issue of the politicization of the Supreme Court and is probably the best idea put forward to date.
The rational behind it is that every time there is an opening, it becomes a major political battle. And we get ideological judges whose opinions and rulings are so very often, totally predictable.
We need independent thinkers.
Buttigieg also correctly points out that changing the number or composition does not require a constitutional amendment; it can be done statutorily.
The Republicans recently did that without passing any law whatsoever. Mitch McConnell decided to change the number of justices to 8 and then, 11 months later, when it suited him, he changed it back to 9.
20
10yr terms, nuff said
3
Yours is a lofty goal. Buttigieg's is a strategy.
16
The problem is partisan Mitch McConnell refusing to do his constitutional duty, not the Constitution. Justices are supposed to be non-partisan. Changing the court to be a specifically partisan institution in response to today's problem of a Republican majority on the court is a terrible idea.
A better idea would to be to elect presidents and Senators that represent Americans values by actually voting. We do not need the courts to become partisan. Partisanship has undermined almost every other institution in the time of Trump.
4
Another great analysis from Bouie. Mayor Pete’s idea would be an improvement over the current court, where a soulless ideologue like Mitch McConnell can exercise a veto over Supreme Court selections and determine the court’s balance of power. But at least in the short run, McConnell, even in the minority, would find a way to block change. The only way to beat him is to win enough of a majority in the Senate to make as close to irrelevant as possible. For that, no change in the constitution is needed.
4
WHAT WOULD IT LOOK LIKE And how would it function? A government that kept the balance of power among the three branches. The Supreme Court has become the arbiter of last resort in numerous matters of legislative import, overturning the majority votes of Members of Congress, who serve the people. The Court has a bunch of unjust "justices" who distort the language of cases and of the law, depending on their political bias--on the right for the most part. Their specious arguments are based on arcane theories of the "original intent" of the framers. That's magical thinking if ever I saw it. It's impossible to read the minds of the living leave alone those long dead. We need justices who would be like Harry Truman, who insisted on paying with his own stamps, for personal correspondences. They must leave their personal biases at the door. But the right wing activist extremist judges legislating from the bench are high on their illicit power and pleasures, inflicting damage to our democracy by acting out their personal proclivities rather than administering justice. I'd like to see the details of Mayor Pete's plan. So far I'm not convinced of its validity. It's sincerity--yes I'm convinced of that. But it's the functionality and chances of success are crucial.
4
I think it is incorrect to just write off this plan. Pete, himself, doesn't think it is the be all, end all. He is right in raising the discussion. We need to be bold. I do think he is correct in addressing we need structural democratic reforms. Right now the court has devolved into a partisan quagmire. If you read Article III, the framers gave so few parameters for the Supreme Court. In essence, the framers gave the structure of the court over to Congress. No Constitutional amendment required.
12
I think the title of Mr. Bouie's op-ed is misleading, because he never really makes the case that Mayor Pete is "Wrong About the Supreme Court." Instead, the case Bouie ends up making is that Bouie makes a case that Mayor Pete's 'technocratic reform' can not be the entire solution to a problem that Mr. Bouie and Mr. Butigieg both agree exists. Clearly it would need to be part of any comprehensive approach to restructuring and politically realigning SCOTUS. To lead with the idea that Buttigieg is simply wrong, is simply wrong and, I think, disingenuous.
20
After reading about several different interpretations of how to reorganize the Supreme Court, I had the following thought: nice to see the Democrats with plans because all the Republicans seem to have are tricks.
4
The Republic survived the fight between FDR and the Supreme Court (not to mention, his "court packing" idea). It will survive this somewhat overhyped standoff as well. I've been reading this newspaper long enough to remember when William Rehnquist was a lonely voice on the right in some losing, 1 to 8 decisions. Then the Court swung right and it was CJ Rehnquist. The Court will swing back.
In fact, I think a conservative Court being a check on a steamrolling progressive agenda, and slowly neutered by new Court appointments, is a darn good idea. Sometimes slow change is better.
What do you do if three parties evolve into prominence? Nothing in the constitution stipulates parties. The ultimate correction if the court acts egregiously is through political action. A majority in the Senate can add seats to the court. In addition the court decisions as Lincoln and Jackson indicated are only enforceable by common acceptance of the body politic and enforcement mechanisms. To influence, they must maintain relevance to the public or work arounds will prevail, weakening their influence and power.
1
Reasonable term limits is so logical. Why an amendment proposing this has not been offered previously is a mystery, except that our Congress never acts without an overwhelming public mandate already in place.
And it makes so much sense to expand the Court to a number reasonably appropriate for a nation of 50 states rather than13, and a population greater than 320 million rather than 4 million. This has nothing to do with court “packing”. A greatly expanded court would simply be better equipped to deal with the myriad of complex issues facing a large, complex society. And many brilliant members of such a Court could add insights and moderation to the examination of issues.
But of course, the most important reason for both of these reforms would be the cessation of the blood struggle which presently occurs at each Supreme Court nomination.
Mayor Pete’s proposal is not the correct one, but the Court is definitely an issue which should be addressed, and not only because of Roe v Wade.
9
Thank-you for such a clear opinion. Precise legislation along with executive leadership will also be required. I was and still am surprised that Obama and the Dems did so little during McConnell’s failure to even consider voting on Garland. Can you imagine Trump faced with such a situation?
2
@Daniel Salazar, They assumed Hillary would win, just like Pelosi is assuming the Dems will unseat Trump in 2020.
6
@Rich I completely agree with you. You know what happens when you assume. AssUMe.
Why make this complicated and still allow the politicians to nominate Supreme Court Judges, and in fact all the Federal Court Judges.
How about the judges from the nine circuit court of appeals select them, along with a review by selected and rotated set of Constitutional law professors and a sign off by the ABA? We then limit them to one eight year term and if they still want to be a federal judge, work in the system without loss of self esteem.
3
Stop the Supreme Court from sliding toward being viewed as a nakedly political institution
Sliding ? Really ?
Bush VS Gore
Voting rights act
Citizens United
Justice Kavenaugh
We already done slid.
25
The Supreme Court simply needs to have term limits (and Congress too). "For life" had a much shorter expectancy back in the day.
Regards
Huffbuffer
15
The constitution doesn't seem to be holding up all that well these days. The Republicans have found every loophole in the system and are exploiting them to maximum effect. They have used better data and better data analysis tools to gerrymander the congressional districts to the point where the results of any election is nearly predetermined. They have enacted a new Jim Crow that while not as blatant or violent as the old Jim Crow has been able to keep voters of color from the polls. They are in the process of attacking the census and therefore reducing the representation of Hispanic Americans even more than it already is. And then there is the courts, they have denied one president the right to appoint judges from the Supreme Court down to the most inconsequential federal court, and then they have gifted those appointments to their own President. The most appalling fact is that the people that have done this have not won the most votes in any part of the elected federal government. They are the minority party, the party without any mandate from the voters. Democracy? They clearly do not believe in democracy and they are proving it everyday.
8
I’m sure I’m not the first to point out to Mr. Bouie that his implied advice that future Democratic Presidents should ignore Supreme Court rulings with which they disagree, if it had been applied during the 1950s might well have resulted in President Eisenhower ignoring the Brown ruling and its subsequent enabling rulings and left the decision on equal rights up to the will of the majority of the people, with all the problematic results that might have derived from it. Perhaps the time may come again when a President may have to embark on a plan to address Court rulings which run counter to the best interests of our country but such action should be taken only in an extreme, existential situation and would, of course, be subject to political repercussions.
2
I will vote for the Democratic candidate who insists on expanding the court to 11 individuals. All other legislation can fall by the wayside while this imperative is achieved.
5
Long shot at best and difficult to determine if it would really change anything. Pete is stretching with this one.
I don't know. I think we just need to let the country split in two. I wouldn't be surprised if, in the near future, the blue states, or even large cities, just start negotiating directly with each other. How about the LA, NYC, Chicago anti-gun agreement? The sanctuary city pact? We already see this with the The National Popular Vote Interstate Compact. We're starting to see states divide up along pro and anti-choice lines. This feels like the future of the US. How long are the majority of citizens going to sit around and let the trump minority dictate the rules to us?
11
@Tim m,
I agree 100%. Very well said. Thank you for speaking out. It's time that the majority of us live in a nation where we make the laws that we are to follow. It's time for partition.
6
@Tim m
I feel the South won the civil war. They have had Senators and congresspeople in charge of most of the departments that run the country for decades. The Tom Delay's, McConnell's, Gingrich's, Dick Army's, the list goes on and on. You want to know why we haven't progressed as a society? Blame these Southerners who have held us back. I'm tired of them. The blue states need to find a way to secede so they stop dragging us down to their level. I'm sure the red states would agree to secede as well.
2
There's no question that the USA was great in the 1950s. The question is, would the USA that was great in the 1950s be great today? The Republicans seem to think so. My guess is that this impulse of the conservative half of the USA to crawl back into the womb, so to speak, will condemn us to second status in a world that will need to change, possibly very quickly, to make it through the 21st century at least somewhat intact.
2
@Andrew
Except for some yes, the 50s were great.
Blacks, other minorities, poor folks, women, gay people...not so much. Most people remember from the movies and TV. "Father Knows Best". A few might have but certainly, not all Dads knew best. But we know better now. And we can do better now. A woman that was raped was ruined — remember?
They didn't have to worry about the climate in the 50s and they didn't know that they should worry about pesticides and other problems yet. We have much more to address and worry about now.
1
@Andrew And what was the tax rate for top wage earners in the 1950s when America was great? Let’s bring those tax rates back.
3
And what were the deductions and tax shelters available to top wage earners in the 1950s when America was great? Let’s bring those back too!
1
"It would be naive to depend on the Supreme Court to defend the rights of poor people, women, people of color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice...the courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people. Those words engraved in the marble of the Supreme Court, 'Equal Justice Before the Law,' have always been a sham."
Howard Zinn
4
The political incompetence of the Democrats has empowered the Republicans. Democrats need not shutter about courts packed with reliable Republicans. They might instead seek to legislate productively and lead decisively. The courts rule by default. Default arises when other branches' Democrats fumble. Democrat ineptitude has been a large part of the nation's failings and voter disinterest in supporting Democrats.
5
@stewart bolinger
I agree that Democratic ineptitude has made some voters discouraged in voting for them. However, not voting at all or voting for third parties just makes it worse!
The ONLY way to make it better is to increase the voter turnout till we can get these Republicans out of power! Giving up is what the Republicans want people to do. Don't people see it's playing into their hand?
I guess it's easy for me to see because I'm from New York, where I learned early to watch out for con games like this....
1
“What we need to do is stop the Supreme Court from sliding toward being viewed as a nakedly political institution,”
Really? Does the stolen Gore election mean anything to you Mr Buttigieg? That was a NAKED Judaical coup!
It IS a NAKED political institution.
7
@Rob Brown
Let's see. I think 'Mayor Pete' is age 37 now. That election was in 2000, in other words 19 years ago.
That would have made him 18 at the time (incidentally about the same age he penned an essay expressing his desire to be President). What seems fairly recent for us Seniors was literally half a lifetime ago for him, have to wonder how much attention he was paying ?
(Maybe a lot, but still through a teenage brain filter....)
I am pretty Damn Blue, but:
Pete's idea is bad and Unconstitutional.
Jamie's is worse and points directly to unchecked majority rule.
It is a pain to have to deal with the Right Wing Minority and, frankly, I am not sure that the country can hold together the way we are going. However, there are millions of them and they control broad swathes of the nation, including most of the agricultural areas, and they will never in a million years accept being ordered around by a "...Progressive..." majority.
And they are heavily armed.
And, by the way, there is no Progressive Majority. Roughly speaking the country is divided into thirds from Left to Right.
All these problems stem from 2010 when the Dems were ludicrously complacent.
5
This is a problem we will have to deal with as time requires. Mitch McConnell and Henry Reid have ruined the Senate.
After reinstating a 60 vote rule for lifetime appointments of all federal judges (requires added restrictions to force acceptable presidential appointments). Maybe need to limit the number of appointments Congress can block. And then pass a bill requiring Congress (House and Senate) to pass a complete budget bill for coming year prior to summer recess should be passed. If they fail to submit a budget for presidential signature, all members of that Congress (House and Senate), as well as president would be ineligible for re-election or to ever run for public office again.
At that point a bill to declare Ried and McConnell senate failures should be passed.
2
The fundamental problem is that the Democratic Party has lost its grip on political power. The deck is stacked in favor of the right wing by the Constitution, which cedes extraordinary power to rural states. The right wing has spent the last 40 years working to seize power at all levels, while the left wing has too often depended on the Supreme Court to get the job done. Rejiggering the Supreme Court cannot be accomplished without political power, so these ideas about adding justices and terms limits are moot in the short-term. The solution is to get out the vote in historic numbers, and call out the Supreme Court as the right wing, anti-democratic institution that it now is. Progressives need to think longer term than 2020. Getting rid of Trump is only about 10% of the solution.
26
While I consider myself a moderate Democrat (at the moment) the reality is that the Supreme Court often stands in the "way" of Progressives by reasserting the prerogatives of individual citizens, property owners, and municipalities to shape their own lives and communities.
While I would hate to see Roe fall, I frankly fear the overturning of Milliken just as much. And I would love to see the travesty that is Kelo reversed.
Is it too much to want the freedom to make my own reproductive choices AND the freedom to insist that those planned and wanted children attend their neighborhood school and grow up in a family home unthreatened by predatory eminent domain practices?
The religious right scares me. But so does the "woke left." Both think it is the job of the federal government to impose their ideological will on citizens and to use force to remake society and communities in their image, and neither care who is harmed in the process. I have no doubt that, given the chance, progressives would be every bit as aggressive at pushing an unpopular agenda and manipulating our system for power as the reactionaries have been.
Both sides believe the "righteousness" of their cause gives them free reign to impose on the freedom of citizens.
I WANT a Supreme Court that limits what Congress and a President can do.
That a single ideology cannot just take over our government and easily make fast, radical changes to our lives is a FEATURE of American governance, not a bug.
18
@A F The Democrats had power like the Republicans have now in the 1930's and 1940's and they used it to improve the lives of the majority of Americans. They built the foundation that became the middle class and they pushed back the most radical elements of both the left and right. So no, you shouldn't be afraid of what the Democrats would do with a weaker judiciary or a judiciary of progressives, they would do what they did in the middle of the last century, they would work to make a more fair and inclusive society.
4
It appears that Mayor Pete's proposal is rooted in mistaking characteristics of our current environment as fundamentals of American politics, which seems both naive and dangerous (though perhaps there are more nuanced details not included in the op ed). If the Framers had decided to build a similar structure into the Constitution from the outset, then they would have accorded five justices each to...the Democratic-Republicans and the Federalists, two parties that long ago ceased to exist. Moreover, the suggestion seems driven by the idea that, because the nation and court have recently seemed closely divided between Democrats and Republicans, we should begin each term structurally with an equal number of "Democratic justices" and "Republican justices." This permanently enshrines not only our current parties, but our current state of relative parity, as perpetual conditions, when they are both (in the long view) quite temporary. On this subject, at least, it seems to me that Mayor Pete needs to go back to the drawing board.
10
I agree that the plan being endorsed by Buttigieg is ill-conceived and impracticable, for many reasons. But I also have serious reservations about the alternatives being proposed.
Many of the comments posted call for term limits for the justices. The Constitution grants life tenure to all federal judges, not just those on the Supreme Court The only way to change that is by constitutional amendment. It takes a two-thirds vote in each house of Congress to propose the amendment, and then ratification by three-quarters of the states. It is hard to believe that such widespread agreement could be achieved in this political climate.
I do not understand what Mr. Bouie means when he says that progressives need to reclaim the Constitution, a power that "right now" is held by the Supreme Court. That power, called judicial review, was claimed by the Supreme Court in 1803. Who should hold that power instead, and how would that change come about?
It is vital to remember that the Bill of Rights was intended to protect against the tyranny of the majority. It took the Court to enforce the enfranchisement of black men guaranteed in the Fifteenth Amendment and to dismantle Jim Crow. George Wallace represented the popular will when he stood in the schoolhouse door. Historical embarrassments like Dred Scott, Korematsu, and Plessy v. Ferguson were the result of the Court's failure to stand up to the will of the majority.
5
What about reform of how the Court is covered by the press? Some of our greatest Justices have written opinions and reached decisions no one - least of all, the press - ever would have imagined. Does anyone think Thomas is going to join Ginsberg on Casey anytime soon? No. But, did anyone ever imagine O'Connor, Kennedy and Souter would save Roe in Casey in the first place? Let Justices be Justices. Somehow, it works out better than our worst instincts imagine.
1
@LongTimeFirstTime Casey didn't "save" Roe, it was the first step in chipping away at Roe. And it was not much of a surprise to any court observer that O'Connor, Kennedy, and Souter would hesitate to overrule Roe outright.
1
@Randy Roe is a science-based decision doomed to irrelevance as science changes. Casey is the law of the land. Planned Parenthood and the Times opposed Kennedy as committed to overturning Roe. Funny how things turn out . . .
1
So this is exactly what happens in the 1930s when a conservative Supreme Court ruled against New Deal laws need to pull the country out of the depression. It was actually a more dire situation because if nothing could be done to ease the depression with progressive legislation it is quite likely that our democracy would not have survived. Roosevelt pushed to “pack” the Supreme Court to turn the tide. While he could not do that, the threat of court packing caused the conservative justices to back down and allow New Deal legislation to stand. I think the same will happened in the post Trump era. A conservative supreme court will make very unpopular rulings that roll back a lot of legal protections and progressive legislation. They will do it in the face of a rising tide of Millennial voters who will be enraged by it. In the end a Supreme Court, no matter how packed with right wing justices, will not be able to stand agains the massive progressive tide that David Brooks described in his recent column. Either the Supreme Court, will be enlarged with enough justices to push it into the political mainstream or the current justices will realize they will lose all control in a court packing and back off from their positions. I think Chief Justice Roberts understands this better than his conservative colleagues which is why he has become a political target of the right as pointed out in Linda Greenhouse’s column.
9
The views of Mr Bouie are exactly the sort of reasons why the left isn't and won't be in leadership. Any reconstruction of the court they can think of can also be thought of (AND CURRENTLY ENACTED) by the right. In fact, next week trump and McConnell could say in order eliminate the overcrowding of cases in the Supreme Court, we are increasing the # of sticks to 100.
3
Justices, not sticks.
2
Mr Bouie -- the reality is that any major societal changes require new laws or constitutional amendments that are voted on by the citizens they affect. We've long ago ceased to be able to pass meaningful legislation (usually because society is simply not in agreement that that is the best way forward -- otherwise, for example, there would have been a constitutional amendment or new federal law about same-sex marriage similar to the civil rights act; the reality is, society or voters are not agreed on that issue yet, even if its trending in a certain direction). This has resulted in legislative questions being inappropriately brought to the courts. The courts are fine. The world simply doesn't yet agree sufficiently with the progressive (or conservative) agenda on many issues and you are struggling to accept that.
1
@Dan Actually, polling consistently shows that strong majorities are in favor of progressive legislation. The Democratic party is considerably more conservative than the electorate.
3
@Randy
Thanks for the comment. That's definitely true, though it's much less clear that the same people for each issue are in favor of all of them (Ross Douthat, I believe, has written about this recently). i.e. Progressives see all these issues polling high individually and so they assume they can bring all of them as one basket, which then doesn't do well.
Regardless though, if these issues are so popular, why isn't this reflected in legislative majorities that will pass laws and constitutional amendments accordingly. It can't all be explained by Republican gerrymandering, I'm afraid. Part of it is just that polling often doesn't predict voting.
2
@Dan It is not reflected in legislative majorities because the Democratic party is not a progressive party and does a poor job of communicating policy positions.
The people are the rule makers. The methodology is elections. The problem for Progressives is that people don’t vote the way they poll. Not as many people are as progressive as Democrats would have people believe. That also goes for Republicans. Most people are not hard core partisans and their opinions are more nuanced than the simple polls that continually misjudge what Americans want.
1
My SOLUTION: assuming Dems take the Senate as well as the presidency ... add one Democratic appointed Justice (making 10) to make up for the one McConnell stole. So what if there's not a "tie-breaking" vote ... better to have a stymied court than one which continually rules against Dem policies (e.g., Roe V Wade). Or, it may force the Justices to find consensus on certain issues ... I know, but it couldn't be worse than it is now.
Note for Buttigieg:
Nothing in the Constitution says any portion of Supreme Court Justices have to be Democratic or Republican, or be empowered to appoint additional Supreme Court Justices.
Our country is diverse in many ways, including political beliefs. No one ceded this right to the Democratic and Republican Parties. These two Parties dominate American politics. And most Americans identify as one or the other. But there are plenty who don't. And even those who do, likely shrink from a Supreme Court constituted on the basis of political party or the presumption that simply supporting one Party or the other, produces consensus on the "right" Supreme Court pick.
12
"Progressives must look, instead, to presidents and other leaders who resisted the Supreme Court’s claim to ultimate interpretive authority."
See bipartisanship IS still possible.
Donald Trump and Jamelle Bouie are in full agreement:
Presidents should feel empowered to ignore any court decision that stops them from implementing any policies, or taking any actions, THEY believe are lawful and constitutional.
What could possibly go wrong?
After all, recent history has shown that ALL President's can be trusted to act in the best interests of the American people with a reasonable interpretation of the constitution and respect for the norms of our democracy and the rule of law, right?
The problem of Trump and McConnell placing partisan hacks in the judiciary is as real as the problem of the 100 million plus people who didn't bother to vote in 2016 or voted 3rd party, including committed but angry progressives, even though this conservative court packing was a campaign promise.
The problem is serious, but Mr. Bouie's "Judges? who needs Judges? Trust the President" approach is as dangerous as it is short-sighted.
26
@LT
I get why you interpreted Bouie this way, and I empathize with your point of view.
But the only way we are going to be able to make the kind of drastic progressive changes that are needed in this country is by challenging the legitimacy of bad Supreme Court rulings. The Republican Party realized this a long time ago. Hopefully Democrats can remember it soon, lest the Reds ever tighten their grasp on the Court.
1
The problem with the Supreme Court is not that it should be bigger but that a single man was able to refuse the nomination of President Obama's choice, Judge Merrick Garland. Obstructing the legal process to fill the court of a vacancy should be illegal and could be acted upon with a limit of time from the date of nomination to say three months. This would be done in the senate with amendment to the rules, leaving the constitution out of it. This blatant act of obstruction by the Senate majority leader gives him power never intended by the founding fathers.
102
@Phyllis Melone, thank you for this comment. The blatant and excessive grab of power by one man - the current Senate majority leader - is unjustified by our tradition, let alone the Constitution. When did the majority of Americans decide that the Senate's rules give that one man the right to choose who gets to be a judge and who does not? When did the majority of Americans decide that Mitch McConnell alone gets to decide which bills passed by the House of Representatives are given a committee hearing or a vote in the Senate?
The Senate has become a radically anti-democratic (small d, not the party) institution, one that serves only to arrogate power to the tiniest of minorities: the wealthiest Americans.
If the Senate won't change its reflexive habit of allowing one person - the majority leader - to set policy and decide judges for all Americans, then we must change the Senate.
5
Packing the court, or trying to determine how many angels can dance on the head of a pin is not the answer. The court is truly nothing without unconstitutional legislation before it. Progressives need to be creative to ensure democracy survives and that the welfare of the American people are "insured" (see the preamble). What this article says is that Pete is too young and too ignorant to be President of the United States.
1
Like a lot of Democrats, instead of countering a republican coup with a democratic agenda, instead of fighting back, he says, "He, why can't we all get along?" No. We can't. You have to fight back. You have to be progressive. Otherwise, it's just Neville Chamberlain at Munich promising peace in our time.
4
Indeed, it is the act of exercising power. Democrats must first understand that while they hide behind concepts of policies and procedure, the republicans have beaten them and little d democracy to a bloody pulp. Well past time to lift that carcass off the ground and fight back with all the power that is left. What would this look like. The more elite, academically inclined and technocratic would serve best by determining what restorative justice process similar to the Truth and Reconciliation Commissions of South Africa we need to put in place. The more action oriented (legislators, executives), must impeach and/or simply dismiss or fire all vestiges of the current illegitimate death cult of trumpublicans in the federal government. That's right Gorsuch, gone, Kavanaugh, gone. All lower court appointees, gone. The disqualifying factor for them all is the fact that they took a position with this illegitimate government, demonstrating that they are not qualified to sit as impartial jurists. The fact that they were "confirmed" by an undemocratic, unrepresentative legislature that has spent decades gerrymandering and suppressing democracy simply reinforces the illegitimacy of republican fascism.
The only way to get there is to vote out all republicans, everywhere.
No reconciliation without truth.
6
As said recently one NYT columnist: when you lose - change the rules.
4
Can't we do both? "We must look instead" is why liberals never get anything done.
1
Buttigieg doesn't get it.
1
I guess I'm just in a wet blanket mode today.
I mean, I'm all about thinking out of the box and bouncing around new ideas, but at the end of the day, for me it all boils down to the human condition.
Remember the notorious Scalia-Cheney bromance, the hunting trips and other activities that comprise the dangerous act of male bonding? That was scary enough.
When the Constitution was written, it took weeks, sometimes months, to engage in the endeavors of arm-twisting and surreptitious communications to curry favor with a SCOTUS judge. Now you can do it with the flick of the finger in an encrypted email.
I'd like to know what we're going to do about that.
3
Pete Buttigieg was correct about the Supreme Court. The system of appointment is corrupt and needs to changed.
9
I have a hard time telling the difference between Biden, Beto, and Buttigeg. They all seem so Republican. They have immense disdain for minorities/POC. And their policies and votes are clear that they are trying to win WHITES rather than the Democratic base that is majority POC.
2
The underlying problem is that the US government does not represent the people. The fundamental principle upon which the US was built - that ultimate power stems from the people - has been trampled by the GOP. They have filled the Senate with corporate lackeys from tiny states, packed the courts with more lackeys picked by the billionaires and put in the white house a lackey who lost the election. Buttig's proposal will be gamed by never agreeing to the 5 apolitical apointees thus ending the constitutional protections enforced by the Supreme Court.
2
@Tibby Elgato
Yes, it is amazing how the plebs think the best interests of the state, the politician, the corporation, and the citizen are all aligned.
REMEMBER when George II was making a big fuss about those legislating judges from the atheistic left? The GOP plays Christians like cheap fiddles. All for the benefit of the 0.1%.
4
You are correct.
The Supreme Court is manifestly our most purely political institution--Not because the justices are malevolent;they are simply unable to call the cases before them without "pre judging" them. They do not call balls or strikes; they create a new strike zone every time.
They do this because the cases which reach them are beyond the scope of an 18th century document in which the words "abortion, "assault rifles" and "privacy" never occur.
So I can tell you how Thomas/Alito/Kavanaugh/Gorsuch will vote with a simple one paragraph description of any case which has social content.
If we were honest enough to admit this, we could correct it, by appointing two new justices every 4 years.
Then the Court would reflect the drift of the nation's opinions.
Nothing wrong with that.
Some countries have dozens of supreme court justices.
We could do that.
4
A basic reminder to all decent American citizens that you must register yourself and help register your family, your friends, strangers and the poor to vote.
Donate to voter registration groups.
https://www.voterparticipation.org/support-our-work/donate-to-vpc/
The courts and public policy are decided by voting.....and decided by NOT voting.
When you don't vote, you abandon your country.
Republicans have abandoned their country by systematically suppressing the vote, by purging voter files, by gerrymandering, by black-box-vote-counting, by rigging the courts and rigging elections for breakfast, lunch and dinner.
There's nothing American about the Republican Party that thoroughly rejects democracy, representative government and the will of the people.
Republicans are the oligarch party, much more comfortable with Kremlin ethics than American values.
The greatest enemy of the American people is radical Republican authoritarianism that has stolen the Presidency, the Senate, the House and the Courts from 330 million Americans in very broad daylight.
Stop the conversion of Washington DC into Moscow on the Potomac.
Register and vote...and help everyone else to register and vote and reject radical Republicanism that has nothing to offer America except fear, loathing and 0.1% welfare queens run amok.
125
Buttigieg is a bit to smooth for me, he has the ability to move from one thought to another without taking a breath in a continuous flow that makes you forget what the subject was to begin with.
Too polished that gives a shine that seems fake.
The SCOTUS really just needs to remember where they are, (of the United States), and rule accordingly.
1
We're all worried about Roe, and you want to overturn Marbury v. Madison???
3
Mr. Buttigieg is the mayor of a city with a population of 318k - smaller than the Dallas suburb of Arlington. We have justices of the peace here in Dallas that actually have more constituents than Mr. Buttigieg. The very idea that he is a credible candidate for the Democratic presidential nomination is absurd. His opinion on the proper structure of the nation's supreme court is equally absurd, even if he pilfered it from a couple of lawyers.
The idea of rewarding our tottering political parties with supreme court spoils should offend every American. Why not include the Greens? The Libertarians? The Commies? Why should we reinforce a two-party system that works for no one?
I'm sorry, but all I heard during the Gorsuch and Kavanaugh, notwithstanding the latter's #metoo issues, was abortion - abortion - abortion. Nary a Democrat inquired as to either's view on the role of government intervention in the private market. Maybe a little on health care financing, but otherwise it was all about the fetus. With any luck, Roe v. Wade will be struck down and the issue can finally be debated in Congress and the nation's legislatures like it should be. This is supposed to be a democracy after all.
5
Mr. Bouie writes, "What lies over the horizon..."
And that's the problem. Republicans have been thinking about the Supreme Court since Roe. And now, as you wrote, they will shape American jurisprudence for the next generation.
Democrats were worried about transgendered bathrooms when Trump was screaming about Supreme Court Justices.
The horizon is here. And unfortunately, we Democrats are left to watch it.
4
pete buttigieg exemplifies perfectly the current american situation. this country is at war with an unscrupulous power-mad driven party dedicated to evil, and all the opposition can do is call for rules of the marquess of queensberry to be established in our politics. the democrats need to choose a fire breathing dragon that will scorch the republicans, salt the earth and destroy that organization for generations to come. show me a democrat who pledges to stack the court with as many progressive judges as possible, twist, turn and if necessary reinterpret the usa constitution to enforce equal voting rights to all americans, abolish gerrymandered districts that will pull the rug from under the republicans and that is a candidate i could love. buttigieg, no doubt a nice man, would never be the president this country sorely needs to fight a bloody war with republicans.
2
@Paulus Peter: I just read that the Democrats refused to take Trump's NY State tax returns because they didn't want to be seen as overbearing or something. That they aren't 'playing by the rules'.
What? What? What? I think I'm going to go crazy here! What is happening? Don't they understand we're fighting for our freedom here? On the 75th anniversary of D-Day, what did these men die for? For some mamby pamby Democrat to say, "No, thanks"?
It's almost too much to bear.
1
I rarely agree with Mr. Bouie, but he is spot on. Over time, our Supreme Court works well. Court packing as Mr. Buttigieg advocates will not fix anything. To fix the trumpian fascist debacle means getting out the vote in every federal and local election.
This is way too complicated, and dependent upon too may variables, for the average person to grasp. Here’s something simple : Never, ever VOTE for any GOP candidate. Even the more stupid will eventually get a clue.
Seriously.
3
Buttigieg misses a lot of things. He's just a hack politician like the rest of them. He's nothing special.
So Bouie thinks of the Court exactly the same way Mitch McConnell does: the place to go to advance his political agenda and block the agenda of his political enemies. Needless to say, that view of the role of the Court is a threat to our Republic whether it comes from the vile McConnell or the hypocritical Bouie.
1
@Horace
Then dig your head into a hole and sing kumbaya while Mitch causes serious damage.
Definitely a fan of that plan.
Marbury v Madison 5 US 137 (1803).
Jamelle, your arguments sound exactly like those of a reactionary conservative 2 generations ago.
4
Trump suggested that 2nd amendment people should do something about the judges. Just sayin’...
1
McConnell's long game strategy of sandbagging Obama's nominees for 8 years culminating in his evil masterpiece of slamming the door in Garland's face is nothing short of a judicial coup d'état. The American Revolution was fought over less tyranny.
5
The constitution is a joke. The supreme court doesn't follow it, and neither does the government.
We would be better off if we just admitted the constitution isn't worth the paper it is written on at this point.
1
"If Democrats win a smashing victory in the 2020 elections — an unlikely but not totally far-fetched scenario — they’ll start the next year with the House, the Senate and the presidency. They’ll have a popular mandate. But in large part because of Mitch McConnell’s machinations — including the blockade of the Supreme Court nominee Merrick Garland on patently specious grounds — they’ll face a court even more conservative than the one that neutered the Medicaid expansion (one of the most important features of the Affordable Care Act) and gutted the Voting Rights Act during President Barack Obama’s eight years in office.
Their collective hostility to liberal governance (and in Thomas’s case, the entire New Deal order) virtually guarantees that there will be a series of constitutional confrontations if and when Democrats have a chance to shape and revitalize the social safety net..."
Which Bernie Sanders and his supporters should have thought of before electing Trump in 2016. Because precisely this outcome - a conservative Supreme Court kicking the living daylights out of everything liberals care about for the next 40 years - was as predictable prior to the election in 2016 as the sun coming up tomorrow. Jellyjaw McConnell was blocking Garland for 8-9 months leading up to that election. Anyone with half a brain knew exactly what was at stake: it was a Supreme Court election, and just like in 2000, the left gifted two Supreme Court seats to conservatives.
1
Bouie convinces me that Buttigieg's solution is ineffective. But I'm not sure he has a better solution to offer. How do President's and other leaders resist the Court's claim to interpretive authority? This seems a a recipe for simple defiance of the Courts—something that will undermine rule of law.
I think the core problem we face is that our Constitution creates a government that, on one hand, does not fairly represent the people and, on the other hand, divides power among too many competing bodies, creating ambiguity over who is in control and what is allowed, and therefore creating disputes that require the Courts to act as referees too often. Just as bad, the fragmentation of power leaves power voids that are most easily filled by the executive (especially when the executive power is considered unitary—vested absolutely in just one man). Fragmentation also creates inefficiency and gridlock actually necessitating the President to act on his own. And lastly it makes each government body less accountable because when power is divided blame is for failure is easily shunted off to another party that shares power.
I could go on at length, but to save our democracy we need to rewrite our Constitution and radically restructure our government, starting by converting to a parliamentary system—but going well beyond that. Our Constitution is 18th century technology. It is not adequate to the demands of a 21st century democracy.
In a democracy the populace at large are the deciders. Logistical constraints delegate that authority to elected representatives. When it comes to judging on contentious matters, an impartial arbitrator can do a better job.
Since the president also is elected by the entire population, for a specified period, for efficiency, he/she is given wide authority.
When it comes to Supreme Court, president nominates the prospective justices who're confirmed by the Senate, but for life. Unlike the balance of power between legislature & president, the powers of justices are unfortunately messed up, leading to all the political grandstanding, etc.
What Mayor Pete suggested is one way to mitigate the problem & what Epps & Sitaraman suggested is similar.
Since all justices have equal powers. Each justice's opinion theoretically has about as much value as that of the entire court. But in a 5-4 decision, the opinion of the 4 justices has zero value, which is illogical - in a criminal jury trial only a unanimous verdict has value.
However, for over 200 years majority verdicts have been respected as unanimous verdict. Why not amend as follows: A 5-4 verdict could be overridden by either Camber, House or Senate, with a simple majority. A 6-3 verdict could be overridden only by 60% majority in the Senate plus a simple majority in the House. A 7-2 verdict can be overridden only if the president also concurs. An 8-1 or unanimous verdict needs two-thirds majority of both chambers to override.
3
@A.G.
My suggestion has the advantage of close to nullifying the partisan struggles and apprehension about the U.S. Supreme court.
A justice like Brett Kavanaugh would not be confirmed. Before a vote his name would be withdrawn. Merrick Garland would have been brought for a vote, as there would be no advantage of "packing" the Supreme Court. And it would not happen, because as the majority of both chambers of Congress would have a perennial say on the US Supreme court verdicts. The so-called "swing" justice may not exist.
Bush vs. Gore was decided by one justice, Sandra Day O'Connor who began to regret it ever since.
As in jury verdicts, the justices would try their level best to come up with a unanimous verdict - Justice Roberts struggles to have that. Justices like Scalia would not become famous/notorious.
The US Supreme Court would then be seen as model, impartial dignified institution. Now the public can easily predict how each justice would rule on a given case based on their political philosophy, which is just abhorrent.
1
I am grateful to The Times for hiring Bouie, whose articles have been a godsend to everyone who thinks. And now I get to disagree with him! Bouie is right about Buttigieg's plan and wrong about the Supreme Court on a couple of levels. One is historical. He quotes Lincoln attacking the Dred Scott decision; he does not mention that Lincoln and his party worried about how the court would rule on several issues, almost lost a crucial case, and defied the chief justice when he issued a decision on circuit. One is operational: he should make his own proposal. It's actually quite simple: expand the court, but not by "party," and significantly increase the number of federal judges. There's a backlog at the lower level, and ample historical precedent at the highest level.
4
The Supreme Court has swung left and right over time. It is now center right after being center left for a long time. Progressives don't like it because it interferes with their vision of how the nation should be. I would point out that tyranny from the left is still tyranny. I would also point out that one thing a lifetime appointment does is give justices the freedom of choice. Chief Justice Roberts is a case in point. Nominated Bush the Younger, to be a reliable conservative Chief Justice, he has confounded his sponsors on several occasions. The justices are people not just political positions. The progressives may not like the overall direction of the court, but the system is working, leave it alone.
4
Pretty scary that Roberts, an ultra right winger and religious extremist to the bone, is now considered "moderate" because there are four FANATICAL ultra right wing religious extremists on the court with him. Roberts spent his time in the Reagan administration trying to find ways to gut the Voting Rights Act. He absolutely HATES the idea of the Federal Government preventing the States from repressing the votes of minorities. When he got on the SC he led the effort to find cases to get the VRA in the pipeline so he could finally finish the gut job. He succeeded. Not a "moderate" in any sense of the word.
5
@Joe Rock bottom - It's all relative. Compared to the rest of the hard core conservatives, Roberts does write as the most moderate voice among them. Sad situation in any regard.
The Founding Fathers were young men, for the most part. They
must not have been able to imagine the Americans they envisioned could ever be so (what's the term?) un-American.
3
Actually, Pete is spot on. The issue with the Court lies well upstream, where Congress has abdicated its responsibility to pass clear laws that are the outcomes from vigorous and principled debate. Instead, we have squishy legislation that delegates the difficult or fine details to the Executive, which naturally creates policy that's inherently partisan. Then when the partisans from the other side want to change those policies, instead of taking them back and making the laws more specific, which is as the Constitution intended, Congress doubles down in abdication by trying to steer partisanship into the Judiciary.
Net/net, the most effective way to depoliticize the Court (and the lower courts) is for Congress to step up and do a more effective job of governing, according to their Constitutional mandate. That starts with us, as the electorate, stepping up and expecting more from our elected leaders in Congress.
3
Court packing is always wrong, no matter which party or person is doing it, no matter what their motivations.
However, only the Senate has the power to stop court packing, short of impeaching justices and there the Senate still has control.
1
Impeach Thomas and Kavanaugh. They both committed perjury during their confirmation hearings. And, Kavanaugh can still be prosecuted for perjury ( I don't believe there is a statute of limitations problem with him).
9
The Supreme Court has always been political to a certain extent, but in its history the judges have tried to respect precedent and also were mindful of the will of the public, where the country was. Earl Warren was not considered a liberal, nor were some of the other judges on that court, but they listened to the arguments about segregation and realized that legal segregation was harmful. When the Supreme Court kept blocking FDR's New Deal, because of old conservative judges of the Hoover mode of things, they were going against a public that was quite angry, and likely would have backed court packing (BTW, packing the court is not unconstitutional, the constitution does not set the number of judges, 9 is by tradition). The real issue in the 1930's, and today, is very similar, it is where because of political factors judges are trying to turn back the clock to please a minority of the people (and of course, big business). Declaring corporations people with rights is beyond retrograde, and in terms of civil rights, in terms of voting, in terms of the obsession with "religious freedom", that seems to *shockingly* be aimed only at conservative Christians who make up maybe 25% of the population, it isn't about political ideology, it is about basically creating a GOP version of apartheid, where a tiny minority holds power over a majority.
6
Two things:
1) Term limits for the justices. Give them a 12 year term. Yes, it would require a constitutional amendment but I'm sure there would be tons of public support. Secondly, taking the "lifetime" out of the appointment to the bench the process make become less existential and it would also in long run provide a better balance to the decisions. Ultimately, you're going to get more of a middle ground judiciary.
2) If Mitch McConnell decides to pull another Garland, just ignore the Senate and seat the judge on the bench anyway. The senate, by not exercising its advise and consent role is still making a statement. That statement is: "We are waiving our advise and consent role in the selection process." If they don't want to exercise it, they forfeit it.
7
How far does Mr. Bouie want to take his program of "inalienable economic rights?"
Might it not require the abolition of the 5th and 14th Amendments' prohibition on the taking of private property without just compensation?
Pretty hard to equalize wealth without making somebody worse off.
And of course you can trust the government to be fair. Ask any Venezuelan.
9
The problem with ignoring Supreme Court decisions--I think that is what you are saying--is that an argument for ignoring Supreme Court decisions is also, logically, an argument for ignoring all court decisions, and even an argument for ignoring executive branch applications of the law. And not just applications by the federal executive branch, but also by state and local governments. Basically you are advocating for ignoring the millions of laws that we have in this country and doing whatever your side--the progressives--want to do. That is not going to work. The law and our government are used to peacefully make collective decisions for our society. Peacefully. No violence. Advocating ignoring the law will lead to not anarchy but something beyond that in terms of chaos. Call it hyper-individualism. Where everyone goes their own way and ignores working with the rest of society to make collective decisions. Mr. Buttigieg's idea is not so good. But yours is way worse. People can't just ignore the law. This is one of President Trump's major faults, by the way.
7
Two thoughts:
(1) You are so right when you point out: yes. Of course. The court has always been a political institution. That suggests some points.
Lincoln (was it his first inaugural address?) struck an interesting phrase. Speaking of the infamous Fugitive Slave Law (was that 1850?), he spoke of it as a law "imperfectly supported by the moral sense of the people."
YAH THINK?
It was detested. "I will not obey it," declared Emerson.
Ditto the even more infamous Dred Scott decision. Who doubts that Chief Justice Roger Taney THOUGHT he was settling the anti-slavery agitation once and for all?
BOY, WAS HE WRONG!
Here again--the "moral sense" of the people simply rose up, sweeping away Congressional acts and Supreme Court decisions.
Seems to me,Mr. Bouie, we may be approaching such times again. Times when the "moral sense" of the American people may rise up "like a mighty flood" and overflow whatever little dry channels this or that conservative judge may have dug out.
(2) Almost everyone agrees: FDR--buoyant after the big win in 1936--proceeded to overplay his hand. With his alleged "packing" of the Supreme Court.
And who doubts it? Lots of conservatives looked with an eye of hatred upon FDR and his New Deal.
But isn't it likewise the case--those conservative justices pulled in their horns a little after 1936? As Mr. Dooley observed a century ago:
"Even th' Supreme Court justices read th' papers."
They still do.
Even nowadays.
"This prospect of entrenched judicial opposition to Democratic policymaking and a progressive governing majority is one of the essential political problems Democrats will face in the years ahead."
One solution: investigations yield the result that Trump was improperly elected due to Russian interference. Therefore his appointments were illegal. A Democratic majority in both houses impeaches and removes his judges.
Unprecedented? Sure. But we've been marching through unprecedented territory for two and a half years now. All bets are off.
2
This article dismantles Buttigieg's proposal without reviewing other proposals which might curb the Senate's ability to mangle the nomination process and stack the courts with highly partisan judges. What about term limits? What about requiring judges somehow to answer the questions posed to them during committee hearings? What about re-introducing review by the ABA of the nominees for the Supreme Court? I am left with no solution after reading this article.
6
Buttigieg advocates for a policy which could, in theory, reduce the ability of a handful of federalist society judges to block legislation and regulation not consistent with their ideology, and Bouie labels it as technocratic. Bouie's recommended action is expressed in the last sentence of his column - that we must look to past presidents and leaders and insist that we are out own rulers. If it's as easy as "looking to" and insisting, this should be easy peasy.
10
Ironic how the left bemoans Merrick Garland's treatment (which was not unconstitutional, because the Constitution does not require the Senate to give a candidate a hearing), but then trumpets its court-packing plans.
4
@R.P.
No one said that Garland's treatment was unconstitutional (it wasn't), but rather than the GOP came up with a contrived reason not to give him a hearing...and now are saying that if an opening happens next year that they will vote on Trump's nominee, even though he would be in exactly the same position as Obama was with Garland ie it was unknown who the next president would be, it is the typical GOP hypocrisy. They talk about "judicial activism", yet conservative judges are doing just that, they are tearing apart hundreds of years of precedent (corporations are people? Really?), to try and remake America in the image they want, one dominated by white, conservative, rural voters and big business, one that is basically a Christian theocracy, and one where it isn't one man one vote, but one many many votes if you are white and from the south or midwest.
2
@R.P. - What bothers me is that one man, who only received the votes of the residents of Kentucky, was allowed to stop a duly elected president (voted by a majority of Americans) from performing his constitutional duty to fill judicial vacancies. It wasn't as if the Senate had rejected his nominees during hearings; McConnell usurped that duty by refusing to even let them have hearings.
2
@R.P. As a Liberal Democrat who despises Trump and the current Republican agenda, I have to agree with R.P.. Bouie and Buttigieg, are promoting the same fascism that they claim to oppose. Its fascism on the Left instead of on the Right, but is still fascism.
3
My problem is less the conservative leanings of the court than the bad faith that they employ to preference Republican priorities. and causes. If they truly believed in judicial modesty, strong stare decisis, deference to the democratic branches, and a slow, considered approach to the exercise of judicial power, then ok, I disagree with their Constitutional interpretation, but I would honor their decisions.
However, what we are really seeing is not conservative, jurisprudence, but partisan jurisprudence - wide interpretation of judicial review for Democrat priorities with narrow review for Republican ones; the assumption of validity of the state motives of Republican official and deep skepticism of the motives of Democrat officials; deep deference to prior decisions for the precedents Republicans like, but a willingness to steamroll and minimize Democrat precedents; willful blindness to Republican attacks on voting processes (gerrymandering, registration standards, polling issues) with exacting compliance for Democrat efforts (registration drive rules).
Given this dynamic, anything the Democrats can do to destroy this Republican occupation of the judiciary is warranted.
4
The disastrous ability of red states to essentially eviscerate Roe v. Wade has a silver lining. We now have a playbook for outmaneuvering Supreme Court decisions at the state level.
Let's study how they did it, and use what we learn.
1
This is a terrible plan. We need to have a system where about 2/3 of the Senate must approve a nomination of a Supreme Court justice. This will prevent any president from appointing a partisan extremist. The nuclear option used by McConnell guarantees that only highly partisan candidates are selected when one party holds the presidency and Senate and that the party holding the Senate can refuse to even consider a candidate made by a president from the other party.
@LAM - Harry Reid was the one who invoked the nuclear option first; McConnell is just continuing the trend. Reid did it because the Tea Party GOP members were stopping appointments and the Senate couldn't get to the required 60 votes. I agree that the nuclear option must be gotten rid of. Perhaps if 60 is too difficult to reach, perhaps 55 is a level where you reduce the partisanship, but still have the chance of getting a nominee through.
1
Democrats should have never used the court to make gains, instead, they should have done the harder work and got votes!
I’m pro-gay marriage but wouldn’t gay marriage be more secure if it was won by changing the hearts and minds of individuals across the entire country instead of five justices? Same for abortion.
Win on your ideas and you won’t have to worry as much about a court overruling your hard fought gains.
4
@Social "More secure"? Maybe. But hearts and minds were already changing in support of gay marriage. And would you have said the same about, for instance, Brown vs. Board of Education, and said to work on those hearts and minds in the south while black children continue to be segregated? Sometimes justice can only be served by the courts.
1
@Social
You are correct, that Supreme Court decisions can be a nebulous way to go, but the answer to your question is that court decisions often lead to changes in hearts and minds and turns a minority into a majority. It is all great and good to talk about 'changing people's minds", but do you really believe that if it wasn't for the courts, that the civil rights legislation never would have passed? Before Brown, for example, they couldn't even pass anti lynching legislation, in part because politicians were afraid of losing their coalition with the southern racists (who today are the GOP base), it was with Brown that attitudes changed, that the protests happened and people's minds changed. With interracial marriage (before Loving), 90% of the people were against it, afterwords 90% agreed with it. With same sex marriage, once a court in a state (Mass) made it legal, and people saw the world didn't end, abd attitudes rapidly changed. If we had left it to the ballot box, it wouldn't have happened, because politicians like Hillary Clinton and Barrack Obama were too chicken to support it, it was only after courts had made it happen that they changed their minds (and for you Hillary Types, in 2008 Hillary said she was proud of DOMA, would have signed it herself). Johnson and the Democrats would never have attempted civil rights legislation without Brown.
1
The problem with cheering on the power of a President to ignore the supreme court when that President happens to be one you agree with is that you inevitably find yourself living under Presidents you don’t agree with. Is Jamelle Bouie going to write a column in praise of Trump’s profound understanding of proper institutional balance if/when he declares that his administration is not bound by a supreme court ruling that Bouie supports?
6
...inalienable economic rights.....
Yep, its called private property which Progressives want to eliminate, or rather greatly reduce through taxation.
4
The parties already have a huge role in picking justices. While the "parties" are the defacto groups that end up influencing governing, they are not actual government entities. They have no legal role in picking justices. Indeed, they are nothing but private clubs who fund people to run for office. The fact they have captured the political space is actually a defect in our winner-take-all system as it leave no room for minority parties. This is where the Parliamentary system is superior. It gives proportional representation to all parties that meet a low threshold of voting representation, then the other parties have to work together to form an actual government. That is why the "major" parties of other countries are not extremist in the way the Republican party is now (clearly ultra right wing). Even the Dems are moving further from the center simply to counter act the ultra right wing fringe extremism of the Repubs.
And the "parties" "leaders" are essentially the elites of their group and in most ways do not represent the people voting for their candidates. Does anyone seriously believe that Republican Party represents the average working person? Why would they pick a justice that satisfied the working class? No, they are going to pick someone who satisfies the people who give him money. Period.
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There is no mention here that the current route to power requires a Constitutional lane through the states. Conservative states with fewer people hold the power, not just because of the Electoral College but because of the requirements to have states approve Constitutional amendments. Mayor Pete has his eye on this lack of democracy in our system. It is getting more out of whack with population changes across states.
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I agree with much of this, but do not find it convincing Mr Buttigieg’s position is ‘wrong’ – maybe just not sufficient. As stated, he is one of few candidates taking judicial reform seriously (a 'good' thing), and underlying this piece and Mr Buttigieg's proposal are a recognition that reducing politicization of the judiciary would improve government. It might be simpler to introduce term limits or use some form of ranked choice confirmation from a slate of candidates. But regardless of the mechanism, I agree judicial reform can improve government.
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@Don Currently the justices are nonpartisan. How are partisan justices going to improve the court. It's not "insufficient" to make justices partisans. it's a bad idea and moving in the wrong direction. I would like to see fairer justices and less partisanship, not more.
@MC, we can certainly agree fairer justices and less partisanship in them is a good idea. But the concept of fairer also begs the question of fairer for whom? An achievement of the US system has been it's responsiveness (however gradual and uneven) to change for broader fairness to every American. But currently a partisan minority persistently games the system to ensure fair treatment of their concerns, refusing compromise with the concerns of the (also partisan) majority. This is an unstable social condition, and I favor judicial and other reform to create responsiveness before the system breaks, as it did once before over slavery.
I have heard much that is good and interesting about Buttigieg. But this is a very poorly thought out plan. I hope he realizes its problems, and reconsiders.
What is the solution? Well, first the Republicans in White House and in the Senate need to be replaced by honorable men and women, regardless of party. That may not happen. Congress has previously increased the number of justices to more than nine - should we do so again? I do not think so. Impeachment will not be successful, even if each justice murders somebody on fifth avenue, unless over a dozen Republicans get ejected from the Senate and Pence is no longer President of that body.
When our Constitution was written, a lifetime appointment to a
judgeship was usually not very long, due to death or debility. Perhaps just make federal judgeship appointments last only twelve years, or sixteen? It would require a Constitutional Amendment, but it would help.
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A better plan, and one embraced by many legal scholars, is to have the Supreme Court on 18-year terms, with one term expiring every 2 years. Every president gets to choose 2. If a justice wants to serve multiple terms, they must be renominated and reconfirmed. The Senate may then question the justice about their actual decisions and writings, instead of the hypotheticals they avoid answering today. As a corollary, the Senate rules should be changed so that every presidential appointment must be voted on within 120 days. Vacancies would be filled only for the remaining period of that seat's term.
This model reduces the incentive to pack the court, as the seats are not lifetime gigs. It also reduces the impact of any given president's choices, limited by time.
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@Ken L agree with this approach, though still would need to address how to fill vacancies which occur prematurely
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Yes. An 18 year term would be wonderful. I would say limit to 1 term. This keeps some level of independence, but also allows a more scheduled renewal of the courts to match public opinion. Also the requirement to vote on the nominee is a good proposal, since it’ll prevent the recent episodes in the senate. Sadly there is no way to force politicians to act civilized, and compromise in the name of democracy institutions and systems of governance. They will find a way to mess this up in the next era of partisanship.
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@Ken L If I remember correctly the constitution says judges serve for life or good behavior.
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Agree completely. Expanding the Supreme Court is not different from FDR's attempt to pack the Supreme Court.
Better the country should endorse the idea that they are there to preserve the Constitution, and must be forever wary of alliances between their viewpoint and a political coalition that endorses it.
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Simple solution: If the democrats retake Congress and the presidency, pack the Court. There's nothing in the Constitution that limits the number of judges to nine. Find the youngest, most progressive candidates you can find and put in place a solid liberal majority
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@rhall,
Absolutely! And the sooner the better. Maybe even start right now.
@rhall FDR tried this and didn't succeed.
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@Letitia Jeavons Many decades on, let's reform the Federal judiciary. Our appellate courts are extremely lopsided with the 9th district adjudicating cases in a region of 60 million people while the 1st district does so for 11 million. Add appellate courts, add a corresponding number of Supreme Court Justices.
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I guess “technocratic” is the new pejorative. Meanwhile, we are supposed to “resist the Supreme Court’s claim to ultimate interpretive authority.” How do we do that exactly?@
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Your points are interesting, and you point out some real challenges. Solving these challenges and building a system where a vote for president is not the same as a vote on the constitutionality of abortion is a major improvement to our democracy. When we pick a president, we should be picking an executive and a leader, top bureaucrat and commander in chief. When we mix this up with a referendum on hot-button social issues, the country suffers. I've heard too many people cast their vote for who should be the most powerful leader in the world based on the morality of 3rd trimester abortions, which represent <1% of abortion cases.
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Republicans have been playing the long game in strategy for consolidation of power. Whether judiciary, or controlling of public opinion using media - they have been extremely good strategist. Hence they can get away with power in a democracy despite such toxic policies for most people and hugely benefitting a very few.
It is time for democrats (really 'we the people' at this point) to start doing some long term strategizing and not just focus on the next election. If we don't, America as a democracy will be over and we will be replaced by effectively an oligarchy. This is not an exaggeration, in fact we are already on this path.
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Term Limits should be the order of the day. No one should be appointed for life in any Government position, The worker bees in our agencies have to reviewed every year and evaluated on job performance . The same should be true of the Supreme Court.
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As I see it, Republicans have mastered the art of controlling the mechanisms of government without agreeing with the consensus of the people. On all the main issues from gun control, to abortion to gay rights and taxation, the public consensus is contrary to their positions. Only by undemocratic means like extreme jerrymandering, voter suppression and court stacking, not to mention outright lying, are they forcing minority positions on the majority.
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They don’t need the majority of people to support them, just the majority of STATES. Therein lies the problem. Time for a rewrite of the constitution...Senate and Electoral College need to go if this country is to persist.
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It's best not to enshrine political parties in the Court. As our history shows political parties come and go, they change and new ones emerge. Let's at least keep the pretense of the court as a non partisan institution.
Term limits are a much better solution to the problem we face now. Life spans are much longer than in the time of the framers of the constitutions and no one envisioned that people could serve 40 or 50 years. We think 8 years is a good length for a President, why not 16 for a SC justice? This would allow for more turnover which should quell the fears of all parties. The knowledge that an individual could not serve for decades would counteract the turn to partisanship.
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"It’s a problem of power, which means it’s impossible to fight this conflict with Buttigieg-style technocratic reforms."
Buttigieg and Bouie clearly have different assumptions about American history and American political institutions. Among certain corners of the Left it's become fashionable to see every social challenge representing a larger power struggle. The only way to win is to fight and fight hard. It took fighting a Civil War to overturn the Dred Scot case after all.
Buttigieg mostly avoids these power analyses in his political outlook which explains why there's a lot of skepticism toward him from the Left. He believes that the Court, and other American political institutions, are salvageable with what Bouie writes off as "technocratic reform".
I would personally rather live in a world where smart people come together and calmly debate ways to increase the fairness of institutions than one in which competing factions are constantly gearing up for battle, but I understand why the urgency of this moment compels others to do so.
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I thought that judges interpret and rule on the law. They don't make them. Elected representatives do. So as our representatives enact laws that better reflect the will of the people, how will judges, supreme or otherwise subvert that?
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Obama's responsibility to appoint wasn't emphasized enough. That is a problem when Democrats want to work across party lines, the Republicans have the last word. Over 100 judges have been appointed by Trump.
Remember this in 2020.
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@s.whether
Very little about Obama was "emphasized enough". No more neoliberals in the WH. They are little better than the GOP.
I agree with the critique of Mayor Pete's position.
Perhaps the most dangerous notion to which we are invited to stipulate is that "Republican" or "Democrat" inherently includes positions on constitutional issues. Part of the government paralysis that has crippled us for decades is the idea of purity test. Partisanship trumps reason or moral conviction. It is possible, or perhaps was possible, for women and men of principle to be loyal members of a political party and to hold reasoned convictions independently. I would suggest that we should not define Supreme Court Justices as Republican or Democrat - we should insist that they be neither.
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Hindsight is 20/20, but for me, the Dems big problem is our failure to see our errors, especially in 2016. A group of progressives back then talked about how there was no difference between Hillary and Trump, how the center is controlled by corporate interests and how there is no real difference between the establishment wings of both parties. These ideas put Trump in office.
Bernie, after helping Trump in 2016 is back at it again and the same false ideas are being spread. Elections have consequences. The far left is not where most of America is at and liars on the left who demand we all holler socialism are in the process of giving away the next election to the same incompetents who will continue to stack the courts with the same far-out ideas.
We are in the process of giving it away again, led by people who talk big but produce almost no votes. That is the liberal's real court problem.
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@GregAbdul
Bernie had nothing to do with Trump's victory or Hillary's defeat. It was the Electoral College that elected Trump. We need to get rid of it.
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@Jean you defending bernie is what put Trump in. the Electoral college merely counted the votes.
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@GregAbdul
Thank you for the Center for American Progress's talking point from 2016. We certainly wouldn't want to forget.
Forget that Hillary failed to visit the upper Midwest because it was in the bag for her. Forget her stirring "eat your Brussel's sprouts" campaign. Forget that she appealed only to women obsessed about the glass ceiling. Forget her absolutely boring choice for a running mate. I guess she thought his ability to speak Spanish would assure the Latino vote. Forget that she was one of the two most disliked politicians in the country. The other one is in the White House. Forget that she is a lousy campaigner.
Have I forgotten anything? Oh, yes, the way she rigged the DNC - with help from her former campaign chairwoman Wasserman-Schluz - to lie about Bernie and indulge in dirty tricks while also keeping the money raised - and promised for the state campaigns - from being used on other candidates.
Give her her due. She lost and she shot herself in the foot to do it.
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Supreme Court judges need term limits--20 years sounds good to me--and, within every four-year term, whoever is President gets to pick one and only one unless someone dies or resigns before 20 years. In this way, the judiciary can be somewhat current with where American voters are at any particular time and still have a certain amount of institutional longevity. (The judges would retire after 20 years, but it would take 36 years to have a completely new court.)
I don't think we can put the genii of politicized judges back in the bottle (if it was ever in the bottle), but this would even the playing field and keep presidential races from being about judges--how many Republicans would have backed our manifestly unfit President if they didn't see judges as the prize? According to Linda Greenhouse, the U.S. is one of few (are there any others?) democratic nations whose judges have lifetime appointments. This and the Electoral College are two aspects of our Constitution crying to be amended.
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@Kathe Geist I would prefer 15-18 year term limits but 20 years would be a great improvement from the 30+ year terms which are typical now.
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There is no doubt that the conservatives on the Supreme Court are a big problem, but most Americans are totally unaware that federal judges are impeachable. Impeach conservative federal judges unless they rule in favor of human rights.
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The Constitution does not grant the right to govern to the Democratic and Republican parties. Changing our system of government to enshrine the two parties is a mistake.
The citizens of this country deserve the right to not elect either party.
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@willt26 lol, we're already way past the point of regretting making our elections first past the post. The powers that be in both parties will never support another system unless faced with extinction.
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@willt26
Yes, the two party system has made this country very vulnerable to the rise of autocrat and dictatorship. Trump has proven how easy it is to manipulate the constitution and rapidly take the country away from its core principle of Check and Balance in governance.
But with the partisan politics in the current state, alternative is almost impossible.
There is a significantly higher potential for corruption and less stable government in multi-party system. But it usually assures democracy.
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@Sam How about we open debates to third-party candidates? It's not enough, but it's a step. The Johnsons and Steins can Allepo and anti-vax themselves out of the debates early, and any good ones out there can get a fair shot.
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There is no Constitutional requirement that the Supreme Court be limited to 9 justices. The simple solution is to increase the number of justices and cram the court with liberal judges. It's the legacy Mitch the Trout deserves.
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The more justices on the Court, the poorer the quality of the opinions. Besides, FDR took a hit politically when he tried to pack the Court and the next President would too.
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@Michigan Girl
All that would mean is that the Republicans would increase the number of justices themselves the next time they came into power, leading to court-packing arms race and an increasingly weakened and irrelevant Supreme Court.
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@Rocking Hammer
But, you know, FDR did just fine.
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“...despite equally valid alternatives.” This is, I humbly argue, the crux of the matter.
This current configuration of the Court is very much aware of the other options that are available to them. But it is politicized to a point of no returning. The John Roberts Court is compromised by Mitch McConnell and the four Justices to their Chief’s right are arguably in agreement with McConnell’s usurpation of executive prerogative because it was a bold, reactionary move in which, ultimately, the will of “We, the People,” was dismissed as being of little or no consequence.
Pete Buttigieg’s romantic conception of a Court grounded upon “fairness” would subject the Court to a capriciousness that would undermine its authority. That the current Court’s authority has been “McConnellized” to the point of predictability is beside the point. Also factoring into this unequal equation is the dignity of the office of the president. We have now—and may have into the foreseeable future—Donald Trump, whose legitimacy will forever be questioned, as will that of Neil Gorsuch and Brett Kavanaugh. Not many citizens have anything like respect or confidence in this Court or in the current president. It is all but certain to rule in favor of special interests, particularly those inimical to the well-being of citizen protections against environmental and health-related predation.
What we need is an honorable Court, not an ideological Court. It may be scores of years before that dream comes true.
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@Red Sox, ‘04, ‘07, ‘13, ‘18
"What we need is an honorable Court, not an ideological Court. It may be scores of years before that dream comes true." That is the crux.
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There are few judges who will assert that they are "Democratic" or "Republican" judges. It would go against their nonpartisan training and tradition.
I doubt this would be a solution. If judges were to start affiliating with either party, it would upend the judicial system everywhere. Will judges in all courts start affiliating? Where does this end?
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@sfdphd "It would go against their nonpartisan training and tradition. " yet they have no problem spending their spare time at the Federalist Society instructing them on how to bring cases for them to rule on in order to get their ultra right wing agenda in place. They are clearly partisan and their objections to stating that fact is simply a smoke screen. Everyone knows these justices are politicians thru and thru.
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@sfdphd
Roberts may give lip service to the idea that there are "no Democratic judges or Republican judges", but that doesn't make it true. We can predict exactly how each of them will rule, especially the white, male, Catholics.
1
Interesting that when the American people insist, as Lincoln did, that the Court should not subvert democratic process by faux Constitutiional "rights" derived from whole cloth -- most evident in Roe v. Wade -- nobody on the Left was cheering those opponents on. No, they all huddled around the Casey decision, where the Court petulantly told the American people to listen to them, as if the Constitution starts "We the Justices of the Supreme Court." Bouie is right in recognizing the Court is political; what he wants is HIS politics canonized and his opponents' demonized. Go ahead and try -- when you have a SCOTUS vacancy to fill.
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Any attempt to temper the political ambitions of the court system should be given a fair hearing. Just the appearance of a sympathetic Supreme Court has given rise to regional activism by several state legislatures to try to overturn Roe v Wade. That would not happen if the Supreme Court weren't so willing to over rule established law for the sake of partisan gain. Don't like 15 judges, how about eleven to rectify an unconstitutional power grab, or seven for the same reason, with Kavanaugh and Gorsuch getting their full salaries but losing their seats in a fruit of the poisoned tree argument? It is another reason for impeachment. It would give legitimacy to the maneuverings that must occur to make things whole again.
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@Rick Gage The problem with Buttigieg's proposal is that it grants the Republican party 5 seats on the Supreme Court forever by making justices into partisans. Court packing is a separate issue. The biggest change that he is pushing for is partisan justices. That would be a first for the US.
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