How to Fix the Supreme Court

[Fantine]

I really appreciate the NY Times' dedication to scholarship. This series of six opinion articles contain several by professors who clerked for Scalia and Ginsburg. They do have that pesky firewall (my library gives us free subscriptions--five days at a time!)

One of the most interesting ideas involves the Constitutional Court. This could be created by Congress and would basically bypass the Supreme Court on constitutional issues. What a great idea!

See here:

The United States should join scores of other nations, including Germany and France, and create a specialized court to decide constitutional questions. The most contentious and important legal issues — whether states can ban abortion, or whether the president can refuse subpoenas or mandate travel bans — should be shifted from the Supreme Court to a new court created to decide such issues.
Creating a United States Constitutional Court is the big idea that has evaded Democrats looking for possible cures to the court’s politicization.
This court would be made up of judges from other federal courts, selected by the president from a slate generated by a bipartisan commission to create legitimacy and balance. The judges would serve limited terms, then return to their previous courts. Staggered terms would guarantee each president several appointments.
In contrast, a special constitutional court can be achieved by statute, adopted by Congress and signed into law by a new president. And it is unquestionably constitutional.
Congress is squarely within its authority to create a constitutional court, just as it has created the federal courts of appeals, the district courts and the United States Court of International Trade.
Congress also has control, as Article III of the Constitution makes clear, over the Supreme Court’s jurisdiction to review decisions of lower courts. Its appellate authority is subject to “such exceptions, and under such regulations as the Congress shall make.” Congress has taken advantage of this power a number of times in history, making major adjustments to the scope of the court’s appellate review as recently as 1988.
How would With few exceptions, the Supreme Court now hears only those cases it chooses. Most of those — about two out of three — turn on interpretations of federal statutes or regulations. Those sorts of cases would remain at the court. If the court gets them Congress can respond with new laws or regulations.
But the court’s constitutional mistakes cannot so easily be rectified. Nor can the taint of partisanship that now accompanies them. Congress can require the Supreme Court to refer cases it accepts that turn on constitutional questions to the constitutional court. This would mimic the main structural benefit of Supreme Court supremacy — establishing a national uniformity in matters of constitutional rights and authority.
The new court should have an even number of judges (eight is good), ensuring it would never rule with a bare majority. The court would be powerless to strike down a statute on constitutional grounds with a tie vote. When the constitutional court did reach a decision, Congress could limit the Supreme Court’s ability to hear an appeal unless a supermajority of justices, seven of nine, voted to hear it. (Now it takes only four votes to hear a case.)

Opinion | The Supreme Court Is Picking a Fight It Is Destined to Lose

The whole series is fascinating, and it's good to know about all the options a bipartisan commission on fixing the courts can study. See if your library might offer what mine does (after all, I live in a red-red state where the main newspaper once ignored MLK Day in favor of a huge tribute to Robert E. Lee and also called Tom Cotton, the most radical--and mean--Senator out there, a "moderate.")

 

[SeventyOne]

The Dems creating a new court to try to get their way is not a 'fix'. Besides, the confirmation yesterday goes a long way towards fixing it already.

 

[hislegacy]

The Supreme Court has not needed 'fixing' for more than 150 years. It is only when the left has lost their majority (out of balance to the left) that there is call for packing the courts.

However the term 'packing the courts' did not poll well with the general population, so in typical fashion, the term was changed to 'fixing'.

The Supreme Court is not broken - it doesn't need fixing.

 

[Fantine]

Read the article excerpt. The word "bipartisan" is written all over it...

What is needed for unity is for the Republicans to acknowledge their wrongdoing, ask our country forgiveness, and sit down at a table to make the court one that EVERY American can respect again.

A commission will be formed in January should Biden be elected (despite all of the dirty dealings from the Trump administration--mail in most major cities has been delayed five days due to DeJoy's obstruction and election interference.)

A court that doesn't have the respect of more than 50% of Americans isn't viable. Republicans will be invited to participate. If they choose not to that's their problem.

 

[Joyous Song]

Actual creating a Constitutional non partisan court does sound like an excellent idea. Fact is, the best courts are non-partisan who study the Law based on the Law alone! Sadly when politics get in we often risk unbalancing the court as now. Staking it too far to the right or left is not good. The best courts have equal of both parties and a moderate in the middle.

 

[HTacianas]

I really appreciate the NY Times' dedication to scholarship. This series of six opinion articles contain several by professors who clerked for Scalia and Ginsburg. They do have that pesky firewall (my library gives us free subscriptions--five days at a time!)

One of the most interesting ideas involves the Constitutional Court. This could be created by Congress and would basically bypass the Supreme Court on constitutional issues. What a great idea!

See here:


The whole series is fascinating, and it's good to know about all the options a bipartisan commission on fixing the courts can study. See if your library might offer what mine does (after all, I live in a red-red state where the main newspaper once ignored MLK Day in favor of a huge tribute to Robert E. Lee and also called Tom Cotton, the most radical--and mean--Senator out there, a "moderate.")

Our "constitutional court" is the Congress and the States. If the Supreme Court issues a ruling so egregious that it needs to be corrected, it can be corrected by amending the Constitution. The Dred Scott decision was the reason for passage of the 14th amendment. Dred Scott was decided properly, but the people saw it as an injustice and responded accordingly. But even the 14th amendment led to the problems of birth tourism and anchor babies so it needs to be re-visited.

But wishing for yet another chance when things don't go your way is not a reason to upend the judiciary.

 

[GreatLakes4Ever]

Our "constitutional court" is the Congress and the States. If the Supreme Court issues a ruling so egregious that it needs to be corrected, it can be corrected by amending the Constitution. The Dred Scott decision was the reason for passage of the 14th amendment. Dred Scott was decided properly, but the people saw it as an injustice and responded accordingly. But even the 14th amendment led to the problems of birth tourism and anchor babies so it needs to be re-visited.

But wishing for yet another chance when things don't go your way is not a reason to upend the judiciary.

Way more work than is necessary. Just introduce a bill in Congress to expand the Supreme Court. Pass both houses, signed by the President, and then fill those new empty seats with new justices. No need to get the Constitution involved at all since the Constitution has no word on how many Supreme Court Justices there should be.

 

[Sistrin]

Read the article excerpt. The word "bipartisan" is written all over it...

Totalitarians always shroud themselves in claims for the common good.

From the extract you cited, quote:

"Creating a United States Constitutional Court is the big idea that has evaded Democrats looking for possible cures to the court’s politicization."

As propaganda goes, this is pretty good. However it was the Democrats who politicized the courts to begin with and creating a USCC is simply another attempt by the liberal left to seize power and institute one-party rule.

 

[SeventyOne]

Read the article excerpt. The word "bipartisan" is written all over it...

What is needed for unity is for the Republicans to acknowledge their wrongdoing, ask our country forgiveness, and sit down at a table to make the court one that EVERY American can respect again.

A commission will be formed in January should Biden be elected (despite all of the dirty dealings from the Trump administration--mail in most major cities has been delayed five days due to DeJoy's obstruction and election interference.)

A court that doesn't have the respect of more than 50% of Americans isn't viable. Republicans will be invited to participate. If they choose not to that's their problem.

What wrongdoing? Putting someone on the court that won't automatically side with what the libs want?

 

[Kentonio]

Totalitarians always shroud themselves in claims for the common good.

From the extract you cited, quote:

"Creating a United States Constitutional Court is the big idea that has evaded Democrats looking for possible cures to the court’s politicization."

As propaganda goes, this is pretty good. However it was the Democrats who politicized the courts to begin with and creating a USCC is simply another attempt by the liberal left to seize power and institute one-party rule.

Your response is typical of the extremist bent of the Republicans these days. No discussion, no compromise, no willingness to even discuss bipartisanship, just a middle finger raised to the ‘liberal left’ and an insistence on getting things all your own way.

I hope the Dems retaliate in kind, stack the court, add the new states and show you EXACTLY what your partisan attitudes lead to.

 

[SeventyOne]

Your response is typical of the extremist bent of the Republicans these days. No discussion, no compromise, no willingness to even discuss bipartisanship, just a middle finger raised to the ‘liberal left’ and an insistence on getting things all your own way.

I hope the Dems retaliate in kind, stack the court, add the new states and show you EXACTLY what your partisan attitudes lead to.

Someone has to be the adult. The Dems behavior over these last 4 years has been atrocious. Between the riots, threats, fake impeachments and scandals, and the 24-7 whining and finger-pointing, I will never consider another Dem for any office for the rest of my natural life. That ship has sailed. There is no credibility to be found within that group. Nothing they ever say can be taken at face value.

Dems now want a bipartisan discussion? What a joke. They should have started with that in 2016 instead of their riots and threats of impeachment within 24 hours of the election results. You reap what you sow.

 

[RDKirk]

Way more work than is necessary. Just introduce a bill in Congress to expand the Supreme Court. Pass both houses, signed by the President, and then fill those new empty seats with new justices. No need to get the Constitution involved at all since the Constitution has no word on how many Supreme Court Justices there should be.

As much as I'd prefer a more progressive SCOTUS, I don't think adding more justices is a practical long-term solution. Eventually, the other party gets to pack it their way, regardless of the number of members.

I think the Senate Republicans have behaved egregiously with regard to their hypocrisy in rushing the appointment of Bennett and, ideally, they should pay a penalty at the ballot box.

 

[RDKirk]

Someone has to be the adult. The Dems behavior over these last 4 years has been atrocious. Between the riots, threats, fake impeachments and scandals, and the 24-7 whining and finger-pointing, I will never consider another Dem for any office for the rest of my natural life. That ship has sailed. There is no credibility to be found within that group. Nothing they ever say can be taken at face value.

I feel the same way about Republicans for the same reasons.

Alternate universes.

 

[iluvatar5150]

Someone has to be the adult. The Dems behavior over these last 4 years has been atrocious. Between the riots, threats, fake impeachments and scandals, and the 24-7 whining and finger-pointing, I will never consider another Dem for any office for the rest of my natural life. That ship has sailed. There is no credibility to be found within that group. Nothing they ever say can be taken at face value.

Dems now want a bipartisan discussion? What a joke. They should have started with that in 2016 instead of their riots and threats of impeachment within 24 hours of the election results. You reap what you sow.

Yeah, I'm sure that four years ago you would've been more open to voting for a Democrat, even though you were going around defending pizzagate at the time and calling George Soros a "Nazi collaborator".

But it was totally Dems' behavior since then that sealed the deal.

 

[hislegacy]

What is needed for unity is for the Republicans to acknowledge their wrongdoing, ask our country forgiveness, and sit down at a table to make the court one that EVERY American can respect again.

There was not one rule broken. The Democrats didn't like it, but there were no ethics or policies/rules broken. There is nothing to ask forgiveness for.

The only issue they have is that they are not in majority of the court after decades, and they do not like it. The court of 9 has NEVER been in balance, 9 cannot be in balance, the best it can be is 5/4.

This is nothing more than a power grab and a continuation of Political theater.

 

[GreatLakes4Ever]

As much as I'd prefer a more progressive SCOTUS, I don't think adding more justices is a practical long-term solution. Eventually, the other party gets to pack it their way, regardless of the number of members.

I think the Senate Republicans have behaved egregiously with regard to their hypocrisy in rushing the appointment of Bennett and, ideally, they should pay a penalty at the ballot box.

The current make up of the Supreme Court has the ability to hold the country hostage for decades by shutting down an progressive laws even if Congress and the Presidency were to be 536 Democrats to 0 Republicans. The Republicans need a deeply painful lesson that politicizing the courts will never be allowed so the court needs to be rebalanced. I’m willing to give the court enough rope to hang itself but when it starts to destroy health care, abortion, and voting rights I will want those new seats added.

There was not one rule broken. The Democrats didn't like it, but there were no ethics or policies/rules broken. There is nothing to ask forgiveness for.

The only issue they have is that they are not in majority of the court after decades, and they do not like it. The court of 9 has NEVER been in balance, 9 cannot be in balance, the best it can be is 5/4.

This is nothing more than a power grab and a continuation of Political theater.

And there will be no rules broken when a bill is passed through Congress expanding the size of the Supreme Court.

 

[HTacianas]

Way more work than is necessary. Just introduce a bill in Congress to expand the Supreme Court. Pass both houses, signed by the President, and then fill those new empty seats with new justices. No need to get the Constitution involved at all since the Constitution has no word on how many Supreme Court Justices there should be.

Aside from "I don't think the Supreme Court will vote my way" what are all the reasons why we should expand the court?

 

[hislegacy]

From your link:

The United States should join scores of other nations, including Germany and France, and create a specialized court to decide constitutional questions.
​

That is what the Supreme Court is designed to do.

About the Supreme Court

Quote: Therefore, the Court has the final say over when a right is protected by the Constitution or when a Constitutional right is violated.

The Supreme Court plays a very important role in our constitutional system of government. First, as the highest court in the land, it is the court of last resort for those looking for justice. Second, due to its power of judicial review, it plays an essential role in ensuring that each branch of government recognizes the limits of its own power. Third, it protects civil rights and liberties by striking down laws that violate the Constitution. Finally, it sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities. In essence, it serves to ensure that the changing views of a majority do not undermine the fundamental values common to all Americans, i.e., freedom of speech, freedom of religion, and due process of law.
​

The Democrats are supporting changing that when they become the majority and can impose their will. Removing the Supreme Courts ability to set limits, removes that protection.

This is just a power grab - plain and simple. The Democrats cannot get their agenda through the legislature, so they are attempting to change the rules.

 

[paul1149]

Suddenly the Court is politicized and needs fixing, whereas decades of legislating from the bench in terms that suited the Left was no problem. I don't recall any mainstream Republican calls for court packing during those many long, frustrating decades. But now forget court packing, it seems the whole thing is up for grabs by the Left. A good argument against another Constitutional Convention. We lack the virtue to convene a good one.

 

[GreatLakes4Ever]

Aside from "I don't think the Supreme Court will vote my way" what are all the reasons why we should expand the court?

They are overworked. We have the same number of justices as we did in 1869. The country is significantly larger now. The Supreme Court only hears roughly 1.5% of the cases that request to be heard from them. Even at that pace they still have to turn out two to three important decisions a week every week of the year which includes written opinions for each.