Following up on Tom’s post this afternoon, we will see the Supreme Court go from 9 seats to 11 and then 13 or more by the time my preschooler is done with college.
The scenario is simple.
Let us imagine that there is a Republican trifecta, House, Senate and White House. Given the way the House is gerrymandered, the House leans Republican through at least 2022 and more likely through 2032. The Senate is a flip a coin proposition, and sooner or later there will be a national election with a Democratic incumbent who either was a putz or simply got caught with a moderate recession six to twelve months before voting started. This is not an unlikely scenario at some point in the next decade.
At the same time there is a liberal majority Supreme Court with nine justices. It is either 5-4 or 6-3 as President Clanders appointed tree or four new judges in 2017-2018 and dropped the average age of the Court from the late 60s to the mid-50s. The oldest justices are reliable conservative votes. This court’s configuration would be locked in for a decade or more assuming no unusual health events.
That Supreme Court slaps down several Republican priorities (it could actually define what a substantial burden is for Casey, it could say the 15th Amendment is still operative etc).
There is nothing in the Constitution which specifies how many Supreme Court seats are needed. That number has changed several times in the past two hundred years. The only reason why it has not changed is institutional norms that the Supreme Court should have nine justices and it should not be packed.
Norms don’t mean much as the slow moving constitutional crisis of the past twenty years has been that norms which previously precluded actions are not severely punished. Threaten default, no electoral consequences. Shut down the government, minimal electoral consequences. Blockade the Supreme Court in 2016 for the hell of it, few long term consequences.
There is nothing to stop an ideologically and procedurally unified party that has control of the House, the Senate and the White House from expanding the Supreme Court from nine Justices where there is a 6-3 majority against the temporary trifecta to thirteen Justices. The four new seats would be quickly filled by majority vote in the Senate and switch the Court from an anti-Trifecta majority to a pro-Trifecta majority.
The same logic applies to the circuit courts as it is a logical extension of the 2013 blockade that led to the nuclear option to flip control of the DC Court of Appeals from Republican appointed judges to Democratic appointed judges.
And once this happens once, any trifecta will have to engage in this same behavior to lock down their policy preferences under future divided government.
Apex802
But that would be unprecedented. The republicans would never do anything that was unprecedented.
Richard Mayhew
@Apex802: Its precedented in the logic :)
DCrefugee
I hope the D side’s GOTV efforts this year are as good as Obama’s were…
gene108
One thing the 2000 election showed, especially in the Bush v. Gore case, is Republicans are playing to win.
Democrats are playing to make sure everybody has a good time and is treated fairly and respects the rules.
Republicans only care about winning.
If that means packing the Supreme Court, in the next 10 years, than so be it, because reinstating campaign finance reform, for example, would allow liberals a punchers chance at down ticket races.
The reason there are no electoral consequences for Republicans is they’ve set-up politics (via their media apparatchiks and enablers) as a life or death struggle between the forces of Righteousness, as embodied in the GOP, versus the screaming hordes of unwashed hippies, unAmerican American hating liberals, feminazi’s, etc., who want to destroy Christmas and persecute Christians.
I don’t see how this cycle ends, unless there’s a way to beat the snot out of Republicans at every level of election from dog catcher to President, for the next 20 years.
BillinGlendaleCA
I don’t see any problem with this, it worked so well for FDR.
Gimlet
https://www.yahoo.com/politics/with-gop-nomination-looming-trump-slated-to-take-191550876.html
In court filings last Friday, lawyers for both sides in a long-running civil lawsuit over the now defunct Trump University named Trump on their witness lists. That makes it all but certain that the reality-show star and international businessman will be forced to be grilled under oath over allegations in the lawsuit that he engaged in deceptive trade practices and scammed thousands of students who enrolled in his “university” courses in response to promises he would make them rich in the real estate market.
Although the case has been winding its way through the courts for the past five years — and Trump has denied all wrongdoing — the final pretrial conference is now slated for May 6
Wrb
Perhaps, but FDR tried it and it didn’t work out for him.
D58826
@gene108: (sigh). What a depressing future my 30-something nieces have to look forward to. The 1% wants all of the political power and most of the money. The Republican party and it’s deluded ill-informed base is simply the tool to get there.
Benw
How is the number of SC justices actually changed?
Smarty Pants
This sounds like one of those dystopian what-if-the-Nazis-won scenarios (which come to think of it is what most potential republican futures sound like.) So, while the infrastructure is still partially not crumbled, I am going to go find a water tower to jump off.
Fair Economist
FDR didn’t have the party discipline the Republicans have today. Did Senators of the time put out whopper lies like Murkowski’s “the Senate Tradition is not to vote on nominees in a President’s final term” when in fact it’s never happened?
David Fud
When this crop of reactionary Silent and Boomer generation voters go, there is some hope that the forces of racism will be reduced. That in turn will force a reconfiguration of the GOP. I don’t think the Southern strategy as a viable strategy will live on past the next decade or two, voiding your underlying assumptions of politics in the upcoming decades.
Of course, they will find another enemy, but it won’t be as easy to vilify the “enemy within” at that point, I hope.
Could also be that I am sniffing unicorn poo and don’t have a clue.
Chris
Conventional wisdom, as I recall it from the history books, holds that FDR’s “court packing scheme” from the thirties was a blatant overreach of executive power and that the fact that he was slapped down was a shining example of our system working to stop the danger of a leader giving himself dictatorial powers.
Meh. Personally, I’m happy FDR tried, given what was at stake at the time. But it’s interesting how it’s become accepted consensus that There Shall Be Only Nine, despite there being no hard rule on the subject – at least partly to uphold that narrative of “bad FDR checked by constitution,” I imagine.
WarMunchkin
Eh, why wait until then? They could just do it next January if we lose. IOKIYAR
Richard Mayhew
@Benw: just by law 218-51-1
Chris
@David Fud:
Will it be by enough? Those Silent and Boomer reactionary bigots raised plenty of bigot kids. Some of them turned out all right, but not all by a long shot. I’ve met more than a few my age whose politics belong in different centuries.
Richard Mayhew
@WarMunchkin: assuming Senate can hold a blockade and a GOP Trifecta no need to break the new norm. They could replace Scalia with a clone
CONGRATULATIONS!
@gene108: And Dems still have no fucking clue that unless they want to be “the loyal opposition” for the rest of history, relegated to sitting on the sidelines and bitching about how unfair everything is, they are going to HAVE to start playing to win, morally despicable as they may find the prospect.
Brachiator
@Fair Economist:
Which Republicans are these? The ones who can’t keep Trump from winning primaries and who saw the absolute rejection of their Super PAC blessed mainstream approved Jeb?
BGinCHI
Mayhew +9
? Martin
Yeah, I don’t get this angle. The GOP have almost zero wins in the structural victory column. Gerrymandering the last round of elections is about it. If Democrats would fucking bother to vote, the US would be about as red as California. Every other GOP victory has been due to obstruction, and you can’t obstruct your way to any positive outcome, including a larger court.
Wrb
@Fair Economist: fair point
Cacti
@Chris:
I think we had a front page post on this a while back.
Polling shows white millennials not significantly less racist than white Boomers or X’ers.
The difference with the millennial cohort is that it’s less white overall than the preceding cohorts.
John Revolta
Great post. I had just been wishing I had some more shit to worry about.
Wrb
@Brachiator: ooh… Another fair point
NR
@CONGRATULATIONS!: If they don’t, will you at least look at the option of supporting a third party?
Schlemazel (parmesan rancor)
I’m not sure I agree. I am still betting my guess from 20 years ago is the future. Trump is reinforcing my belief. We are going to get a populist fascist government. The morons who keep voting Republican and expecting things to get better because the Dems are liberal socialist commie so they could never vote for one are already at a boiling point. All it took was for the right asshole to come along & Trump is that asshole. If the Dem wins in November the GOP will continue to prevent real progress thereby increasing the odds of worse than Trump in 2020.
D58826
@? Martin:
Your assuming that the GOP wants a positive outcome. As far as the 1% is concerned the past 25 years have been quite positive. Sure they will leave a few golden eggs laying about to keep the masses quiet but they have a lock most of them and that is a positive outcome. George Romney made something like 60x what his line workers made and today’s CEO it is 300x. That’s sound pretty positive to me.
Wrb
@Schlemazel (parmesan rancor): well that is cheery. Although quite possibly accurate.
CONGRATULATIONS!
@? Martin: If Dems would bother to vote, this really would be a cat pics and recipe blog, because there really wouldn’t be any politics to be discussed save for intra-party Dem squabbles (which we’re really good at).
Which does make me wonder – who, exactly are these people who registered to vote as Dems and then…aren’t voting?
Schlemazel (parmesan rancor)
@Wrb:
Not any more depressing than the original. But I am a little black ray of dark shine anywhere I go
Benw
@Richard Mayhew: so Congress passes a law, President signs, nominates 4 new justices, and senate confirms? Still seems like lots of failure points even with an ideologically unified party, which the current Republicans are not doing a very good job at.
But I guess it’s possible. In that case they sure won’t nominate any squishes like Kennedy or Roberts who muck things up with their “legacy” or “consciences”. I look forward to Chief Justice Yoo and justices Ammon Bundy, Rush Limbaugh, and George Zimmerman.
Wrb
@Schlemazel (parmesan rancor):
For you, I have been contemplating this today, darkness containing light https://m.youtube.com/watch?feature=youtu.be&v=4r-VwSRzXbk
CONGRATULATIONS!
@NR: I might as well not vote. No. I’d start voting Republican. Better to have a track record of supporting their side when they win it all, if Dems decide not to change.
BillinGlendaleCA
@Cacti: I don’t find that result surprising. Most Boomers came of age during the Civil Rights era. It also shows the Silents are alot more racist(46% to 35% for the Boomers).
BillinGlendaleCA
@NR: Here’s the problem with a third party, they always try to go “top-down”. Running as a third party candidate hasn’t worked since Abe Lincoln ran as a Republican. If a third party wants to have a place at the table, they need to run for state legislator and Congress.
Smedley Darlington Prunebanks (formerly Mumphrey, et al.)
This is depressing, and I can only pray we wipe the Republicans out before this happens.
Elizabelle
That Scalia, he daid.
I am going to continue my celebration the man is off the Court, however it happened (thank you, FSM).
Not in the mood to look for another way to see defeat overtake victory.
Tra la la la la.
RaflW
I say we all vote Trump, go on a months-long bender, and watch the nation (possibly the planet!) rendered into into cinders in the days after the inauguration.
#funtimes
NR
@CONGRATULATIONS!: Well then we’re fucked, because the only thing that will make the Democrats change is the credible threat of a real progressive party rising in this country.
Otherwise, we’re in for many, many years of Republicans doing whatever they want when they hold power, with Democrats claiming they can’t possibly stop them. And when Democrats win some power, the offices that were absolutely unstoppable when the Republicans held them just a year earlier will magically lose all their power and become unable to do anything because the Constitution requires compromise or we don’t have sixty votes or some other such nonsense.
They’ve been showing this movie for decades now. It’s frankly amazing that more people haven’t caught on.
Wrb
@Elizabelle: https://m.youtube.com/watch?v=EfGDvDGE7zk
Roger Moore
@WarMunchkin:
I think they’d prefer not to do anything transparently radical until their hands are forced. If they succeed in blocking the nomination until November and then win the election, they’ll be able to appoint Scalia’s successor and get most of what they want from the court without having to violate any more norms than they already have by refusing to do anything with Obama’s nominee. They’ll probably also get to appoint Ginsburg’s replacement, which would give them a solid majority for a long time. There’s no percentage in doing something as nakedly political as packing the Court under those circumstances; it could hurt them politically and give the Democrats an excuse to do the same thing the next time they’re in the same position without any substantial benefit.
Matt McIrvin
@Chris:
Yes, but he was a Democrat.
Why stop at 13? Why wouldn’t they appoint 137 justices?
jeffreyw
Obama: “Sue Me?”
Wrb
@RaflW: well, if we are given pointy sticks, good meat and veg, and great barbecue sauce I think you will be leading many to the river
Rommie
An alternative route is a D President wildly unpopular by some bad luck or good ratfvcking, and an off-year election resulting in 2/3 majorities in the House and Senate. SURPRISE! Speaker Ryan becomes President Ryan, Winter Arrives, Co-Habitation arrangements materialize between Cats and Dogs, and so on.
I will no longer bet against this happening, if the opportunity arises. The GOP has moved from Playing to Win to Win At Any Cost. The last time that happened in US History, it ended in a “fair-sized dispute.”
So, yeah, giving them 218-51-1-SCMajority ever again is inherently dangerous.
Benw
@Matt McIrvin: they can’t count that high.
RaflW
In much less depressing news:
different-church-lady
What’s going to stop it is, they’ll lose the Senate if they stay on this path.
Every time they pull something like this, the electorate punishes them. (See Gingrich, Newt.)
Schlemazel (parmesan rancor)
@Wrb:
Never heard that one – thanks!
Kass
I agree with Schlemazel’s view of the future being populist-fascist, but with one caveat : we already are living in it.
Steve in the ATL
@Benw:
Looks like I picked the wrong day to quit drinking.
Matt McIrvin
@Chris: I recall a recent study on that. Claimed White Millennial kids are only a tiny bit less racist than white GenXers, who are only a tiny bit less racist than white Boomers.
The big difference was between white Boomers and white Silents, who were on the whole really fucking racist, and some of whom are still alive in the form of Fox News Geezers.
However, the kids are less white. That makes a difference. What I don’t know is whether, long-term, the demographic changes will be undone by people just being reclassified as white and recruited into the ranks of white-resentment-driven voters. One thing that might mitigate that is increasing acceptance of interracial marriage.
Mike J
Barack Obama @BarackObama 4h4 hours ago
With more than 300 days left in President Obama’s term, the Senate has no excuse to delay. #DoYourJob
https://pbs.twimg.com/tweet_video/Cb6zRmsUsAACf7Q.mp4
different-church-lady
@NR:
Giving up on Bernie that easily, are we?
RaflW
@Wrb: Given pointy sticks? What is this, a garden party? Make yer own!
Elizabelle
@Wrb: Love it. Thanks.
That song inexplicably ended up in the final race scenes of the Disney movie “Secretariat.” I wondered, who knew the horse was an evangelist?
Made me wonder who put up the money for the movie. Strange, strange choice.
boatboy_srq
A couple thoughts for the “when the bigoted Silents and Boomers are gone” chorus:
The idiot who offed a guy in Greenwich Village a year or so ago just for being Blah and queer is 24.
The idiot who thought going out and beating up f#gs in Philly was a fun evening, and who was convinced she’d skate cuz Daddy is a police chief, is 25.
These people are the ones sending their kids to alternative schools and to Liberty and Regent undergrad. There is an entire industry to move these new grads into the RWNM and the GOtea. There is a liter interest, and a lot of money, in supplying that pipeline.
The wingnutsery isn’t going away just because the olds are shuffling off. Palin, for example, has decades left to spew her bile. The quantity of voters who subscribe to the wingnutsery may shrink, but there are fewer of them now than their noise would suggest – and look how messy things are today. There were more who would have been Reichwing voters in the 60s and 70s but were’t propagandised into voting that way. If we are going to win this, wended not only better turnout immediately, but full-on propaganda detoxification and a return of the Fairness Doctrine or something like it.
BillinGlendaleCA
@Matt McIrvin:
I think you saw a great deal more acceptance and engagement in interracial marriage among Boomers as opposed to Silents.
debbie
@Mike J:
I hope this bites the GOP so hard in the ass that they bleed interminably.
NR
@different-church-lady: Talk about missing the point.
Wrb
@Elizabelle: Elizebelle: I missed Thant mivie, but the song has been running in a loop through my cruel and incorrect head since the revered justice left our orb.
boatboy_srq
@debbie: They haven’t done their job for the last seven years. I doubt a tweetstorm will change that.
D58826
@RaflW: Even if the D’s run the board in the Senate, I don’t think they have the votes to reach magic number of 60 to stop a filibuster. They would have to have the backbone to change the rules on day 1. The GOP wasn’t humbled after the 2008 election when the D’s did have the 60 so I don’t see any problem for Turtle to get 41 votes.
debbie
@boatboy_srq:
Maybe not, but overwhelming defeat certainly will.
CONGRATULATIONS!
@different-church-lady: “NR” is as politically naive as it is possible to get, but can count, as can we all.
Not even a majority of liberals want what Sanders is selling and that’s a hard realization for a lot of folks. Where do you go from rejection? Well, this idea that you could split off the Sanders cohort of folks and somehow threaten the Democratic party into a “more progressive” (whatever the fuck that means) platform is going to be attractive to some people. That won’t work. How did the GOP do it? The Tea Partei made sure that they had all their bases covered, local parties taken over, state leges filled with their people, before they “came out of nowhere” and took over the GOP. By being the majority, not a minority.
The only ones who didn’t see that coming were those at the top. This “sudden takeover” was forty years in the making.
The Dems haven’t taken over jack shit, and “progressives” absolutely nothing at all, so it’s gonna be a few decades at best before they can mount a “Tea Party” kind of assault to take over the Dem party and lead us to a brave new liberal future.
And I’ll be dead of old age by then either way.
Matt McIrvin
@BillinGlendaleCA: It still amazes me that when Gallup polled the question, the point at which approval of black-white interracial marriage topped 50% was sometime in the mid-1990s. (By 2013, it was at 87%.) Some of that was probably generational turnover.
Calouste
Looking at the most recent GOP national primary polls, there’s no breakthrough for either Rubio or Cruz. Even worse, they can’t seem to really break the 20% barrier, which is problematic as more than half the delegates assigned on Super Tuesday will have a 20% threshold. Especially for Rubio, as for Cruz at least half of that half will come from Texas, where he is doing well, or at least well enough to take delegates from Trump.
It is well possible that Rubio will be more than 400 delegates behind Trump after Super Tuesday, needing to win about 2/3 of the 1700 delegates remaining after that date for the nomination.
Wrb
@RaflW: touche’
But my pointy stick will be be pointier than yours, so surrender heathen.
BillinGlendaleCA
@Matt McIrvin: Yup, it was the Greatest Gen dying out.
ETA: My parents were Greatest Gen(though mom was at the dividing line with the Silents).
Fair Economist
@D58826:
After this current stunt the filibuster is dead the next time it’s an issue. The D’s changed the judicial rules mid-term in the last Congress; they could easily do it for the Supreme Court in the future. If there’s a D majority in the next Senate and an open seat on the SC filibusters for SC nominees will indeed be gone day 1 anyway.
scav
Seriously, I somehow expect the next great move of the Senate GOP will be an appeal for snacks.
Bobby Thomson
They won’t need to pack the court in the future if they just refuse to confirm appointments by Obama and Clanders.
Bobby Thomson
@Wrb: FDR was constrained by a Democratic congress. A republican president with a republican congress would have no such constraints.
WaterGirl
@Mike J: There’s something I would like to ask you, wondering if you are you still here?
NR
@CONGRATULATIONS!: Please. The Republican establishment was on board with the shift to the right. The only thing they disagreed about was how far to the right to move, and even then, the disagreement was small. Meanwhile, the Democratic establishment is actively hostile to any idea of a move to the left. The two situations aren’t similar at all.
It’s been this way for some time, as well. In 1993, after Clinton’s victory, the Republicans in Congress were worried about him picking off votes and getting bipartisan support for his proposals. So they told their members that anyone who voted with Clinton on a major issue would get a well-funded primary challenger in their next election, even if the challenge ended up costing the Republicans the seat in the general election. They enforced discipline, and the move to the right came from the leadership on down.
If the Democratic leadership had been as unified on the left at the beginning of Obama’s presidency as the Republicans were on the right, they would still control both houses of Congress and we wouldn’t be in the mess we’re in today. But it was more important to them to please their corporate donors, and so here we are.
Bobby Thomson
@different-church-lady: were you asleep during 2014?
Chris
@boatboy_srq:
Not for the first time, I find myself thinking that what this country really needs is a full-on, post-1945-de-Nazification style multigenerational deprogramming enforced at gunpoint. Alas, that’s basically just as much a fantasy as imagining that all the bigots will roll out of bed one morning and decide that it feels good not to be a complete asshole.
boatboy_srq
@debbie: One can hope.
Calouste
@Chris: The USA missed their chance in 1865-1870. They shouldn’t have let the confederate states back in the Union, they should have created new states with different names and different borders. It’s somewhat harder to hark back to something historical that no longer has a direct connection to today. Same reason one of the first things the Allies did in reorganizing Germany after the war was to get rid of Prussia as an entity.
chris m
@Benw: by statute.
J R in WV
@David Fud:
Last New Year’s Eve we went to a party at a young friends farm. He started a construction company, and has a really big shop/office. I’m thinking 48×120 with a rec room over the office space. A basketball hoop in the first bay of the garage.
So at the party were children of hippies, old hippies like me and Mrs J, and young guys who worked for friend’s construction company. There were little kids there too, shooting pool in the rec room.
So I was a little surprised when one of the younger worker guys started ranting to a co-worker about “I really hate ni**ers, I just hate them!” Our rural county probably has a population of 23K, of which ab out 12 are black folks.
So this youngster has probably never worked with black people on his crew/team. How did he learn to hate them?
It has been a puzzlement ever since that night. But the youngs sometimes have that racist hatred. It isn’t going away just because the current haters are all gonna die.