Pack This

The only thing fixed in stone — or the Constitution — about the Supreme Court is that it exists. Nothing about its size, and, famously, nothing about its authority.

Judicial review of laws? Marbury v. Madison, 1803. But you knew that.

Unanimous decision, as it happens. 4-0.

The original court — as created by Congress and approved by the President — consisted of six justices, five associates and a chief. (Nothing Constitutionally mandated about the hierarchy, either, although the “Chief Justice” presides over impeachment.) That number was reduced to five in 1801 — lame-duck move by Adams — then back to six — fuck-you from Jefferson — a year later.

Why only four votes on Marbury? Two justices were out sick for what would be — and accepted as — the most consequential decision in American history.

The judiciary wasn’t granted this authority. They claimed it. Which is why, centuries later, we’re sweating an untimely death in the ranks, and debating what to do about it.

Because we can.

This isn’t like other problems with the structural tyranny of representation in the United States government — the Senate and the Electoral College — where redressing flaws would require the acquiescence of folks who benefit from them. This one’s straight-up Schoolhouse Rock: Pass a bill on Capitol Hill, send it up Penn Ave for signing. Dun & Dun.

This was attempted within living memory, one of the other bullet points in your civics textbook: FDR’s “court-packing” scheme of 1937, which would have offset justices unfriendly to the New Deal with six new members.

Didn’t fly, but procedurally, it had an interesting twist: Not six new members as such, but one new member for every justice who didn’t retire after age 70 and six months.

Today that would be Thomas, Breyer, and (in ten days) Alito.

But nine is what we have now, expanded to seven in 1807, and reached in 1837.

Oh, wait: Lincoln, the first Republican President, got himself a tenth. Congress moved to shrink the court to seven by attrition under Andrew Johnson, then restored it to nine under Grant.

In 1869. In a 37-state America, population 38 million. Not saying there should be a relationship there, just noting that one justice now represents almost ten times as many citizens.

What we are saying is that there’s nothing constitutionally sacred about the Supreme Court except its mere existence, and nothing sacred about its membership except that justices serve for “good Behavior”. Beyond that, a willing Congress and President are free to do whatever the fuck they want. As they have. Repeatedly.

Back and forth, even, all the way back to the Adams-Jefferson pissing match.

We only fear an untimely vacancy because we feel there’s nothing that can be done, that we may be stuck with another rapist deciding our laws for decades. And should we do something that’s entirely within our power to do, we fear an endless tit-for-tat in consequence.

But, y’know, tit-for-tat is part of how shit works around here, why, as they like to say, elections have consequences, why — for example — Obamacare repeal was a very real fear, and came within a vote of succeeding.

The size of the Supreme Court is a legislative issue, just as its membership is. And if we’re going to let the court have the authority over our lives that it has claimed for itself, we should exercise our full power to determine its composition.

Some tyranny we’re stuck with, short of a revolution. But not this one.

15 comments:

11:21 am • Sunday • September 20, 2020

While he’s at it, Biden needs to pack the district courts and courts of appeal. There’s nothing magical limiting the number of judges, and frankly their caseloads are so high that there’s nothing even approaching speedy justice in federal civil or criminal cases.

12:01 pm • Sunday • September 20, 2020

@SanFranLefty: Yup. Of course he just said he’ll do no such thing — at least regarding SCOTUS — so if we get a Double-D Congress, we’ll just have to lean on our congresscritters to pass a damn bill, and dare him to veto it.

12:16 pm • Sunday • September 20, 2020

Congress should impeach both $hitler and Barrf if they try to fill this fucking seat. FSM knows there’s plenty of high crimes to hang on them.

5:57 pm • Sunday • September 20, 2020

Here’s some fun for any lawyers listening: Under an originalist interpretation of the Constitution, what’s to prevent a tyrant from declaring judicial review an unfounded usurpation of power residing in the executive and legislature? Sure, we’ve let Marbury slide for a couple hundred years, but times are dire!

In other words, given voter suppression in its myriad forms, an inherently unrepresentative Senate and Electoral College — and the will — how close have we come to the modern Republican party just going for it?

7:20 pm • Sunday • September 20, 2020

“Get Mitch or Die Trying”

11:31 pm • Sunday • September 20, 2020

Trump has to go not to a nice Federal prison but to Attica or Greenpoint where he will spend years being torture and abused in exotic, twisted ways that only soulless ultra-violent psychopaths can imagine.

We need to see him on TV shrieking for a bullet, any bullet to end his suffering.

2:03 pm • Thursday • September 24, 2020

Elizabeth Warren brings it:

“Ruth Ginsburg was a woman who never let any man silence her,” said the Massachusetts senator. “The most fitting tribute to her is to refuse to be silenced, and to name exactly what Donald Trump and Senate Republicans are trying to do—steal another Supreme Court seat.

This kind of sleazy double-dealing is the last gasp of a desperate party that is undemocratically over-represented in Congress and in the halls of power across our country.”

https://www.rawstory.com/2020/09/last-rasp-of-a-right-wing-billionaire-fueled-party-dem-senator-rips-trumps-rush-to-fill-rbgs-seat/

10:06 pm • Friday • September 25, 2020

IF YOU’RE NOT BAYONETTING A REPUBLICAN AND SHITTING IN THE OPEN WOUND, YOU’RE SURRENDERING, AMERICA!

10:57 pm • Friday • September 25, 2020

Serena Joy Barrett is a member of an extremist Handmaid’s Tale-style cult called People of Praise that literally has handmaids, though apparently they function more as patriarchal enforcers against other women, like the Aunts.

It’s sickening that the Republinazis are going to obliterate RBG and her entire life’s work by installing this sadistic lunatic to relentlessly attack women, minorities, and the poor for decades from the bench.

This cruel, malevolent court is totally illegitimate.

1:58 pm • Saturday • September 26, 2020

What’s really amazing about living through this national collapse is that it’s following all of the same predictable milestones, we have all of the history at our fingertips, and yet it’s still happening here nonetheless:

1. The fascist takeover of government through anti-democratic means, like the Supreme Court’s 2000 coup installation of the disastrous CaliguBush, and the (s)Electoral College’s 2016 installation of Prezinazi AntiChrist after he lost the “election” by nearly 3 million votes;
2. The insanely stupid right-wing lies, racist hatred, conspiracy theories, and gaslighting;
3. State security services, secret police, and right-wing militias beating, gassing, and murdering protestors, while violating the nation’s self-proclaimed values on a daily basis;
4. The feckless, corrupt, and incompetent opposition endlessly dickering over rules and procedures that only they follow until they’re rounded up and either gassed or shot;
5. The cowardly government functionaries and collaborators that go along with all of it;
6. The average citizen’s willful blindness and denial of reality due to their own white supremacist socialization that white people couldn’t possibly be so cruel, brutal, and destructive.
This includes “journalists” like the New York Times’ dog shit political reporters, who’ll be screaming “BOTH SIDES” right til the moment that one of $hitler’s 17 year-old Proud Boys puts a bullet in the back of their heads and kicks their bodies into a mass grave;
7. The insatiably greedy, self-serving oligarchs enabling the calamity due to their own anti-humane lust for money and power.

If you’ve ever wondered what it’s like to live in 1930s Germany, 1990s Yugoslavia, or contemporary Belarus, Pakistan, or Russia, this is it.

2:25 pm • Saturday • September 26, 2020

@¡Andrew!: But it’s never exactly like [insert example here], so we also have to deal with people saying we’re hyperbolic because a detail is missing.

2:58 pm • Saturday • September 26, 2020

@nojo: We’re also hysterical and the Constitution will stop him even though it hasn’t stopped him so far, even after impeachment.

We don’t Constitution good.

3:11 pm • Saturday • September 26, 2020

@¡Andrew!: That requires a Democratic Society, something we’ve shown ourselves to lack.

4:52 pm • Saturday • September 26, 2020

I just threw more munnie at Senate campaigns for:

Jaime Harrison, SC – Senate
Theresa Greenfield, IA – Senate
Al Gross, AK – Senate
Raphael Warnock, GA – Senate
Barbara Bollier, KS – Senate
Jon Ossoff, GA – Senate
Amy McGrath, KY – Senate

5:50 pm • Saturday • September 26, 2020

Serena Joy Barrett also has Michele Bachmann’s Ku Klux Krazy eyes.

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