It’s time to accept that the US supreme court is illegitimate and must be replaced | Ryan Doerfler and Samuel Moyn
We need to remake the US high court so Americans don’t suffer future decades of oligarchy-facilitating rule
The real problem is the lifetime tenure of the justices. The Founders did that for good reason, to insulate the Court from the immediate politics of the time. But people are simply living longer now, and Republicans figured out how to ratfuck the Court to stack it in their favor. (Helped in no small part by RBG, who could not be convinced to retire at the right time). Openings on the Court are so rare that it is worth expending significant political effort to get them to go your way.
If Democrats ever get control of the Presidency and Congress again, they should immediately move to blow up the Court to 13 members. They can do it by immediately turning it up to 11, and then making it 13 two years later, in order to stagger the changes. But this is important enough that they should blow up the filibuster to do it.
(13 is a magic number because it matches the number of Federal district courts.)
And then, after the bill is passed, they should work with Republicans on a framework to add term limits to the Constitution. Each of the 13 justices gets a 13 year term, each justice could serve up to two terms, consecutive or not, and would have to be re-appointed and re-confirmed for their second term. They can even tie the number of justices directly to the number of Federal circuits, so that it is harder to ratfuck on the future. 26 years is long enough to insulate a justice from politics. And out of our 116 justices to date, only 28 have served more than 26 years.
But by giving every President the right to nominate one justice per year, it makes the process more regular, and the political payoff for engineering a single appointment becomes less attractive. Supreme Court turnover becomes a predictable thing.
At this point, Republicans may be willing to support that amendment, because the alternative would be for President Newsom to appoint 4 Liberals to the court for Life in quick succession, and wait for their own full control to ratfuck it again. That might take a while.
It’s so adorable that you think Democrats might ever actually do anything if they got power. Enjoy your cookie.
A boy can dream, can't he?
We have two pro capitalist parties in the US.
What's interesting is that during the great depression they knew that economic collapse would lead to a socialist revolution, and so put in the work to "inoculate" the US against it. They would give us a little socialism, so that we wouldn't go all in. Medicare, social security, minimum wage, all these things came out of that philosophy. And it fucking worked. The US had the single most robust economy in human history from the 40s all the way through to the 1970s. When, in response to the civil rights movement, white southerners actively voted against their own self interest KNOWINGLY, so that black people wouldn't get a fair share of the pie. Nixon began the week to work to dismantle the New Deal, and we're basically living with the shattered broken corpse of the best social program we were ever going to get with votes.
they should work with Republicans
Have....have you not been paying attention?
Republicans want power. They don't care how they get it. They will negotiate in bad faith to get it.
That's why you need to add 4 young, Liberal justices in thir 40s (who would serve for 40+ years with a lifetime appointment) before starting to work with Republicans. Make it so that the alternative to not working together is much worse for them.
You must have missed it, but Harris spent her valuable time mostly courting Republicans for a reason. Not Ds (millions sat this one out), not independents, but Rs.
Why would she does this, when we all know she had to court independents to win? It's a mathematical necessity.
Do you know why? I wonder if there's any connection to the billion dollars she raised (at least)? Hmmmm, it's a mystery.
You do not need a constitutional amendment. Until 1911; part of a Supreme Court Justice's job was "riding circuit", to serve on more local circuit courts. This practice was established and abolished by Congress. Congress has the existing constitutional authority to assign Justices to circuit courts.
There is also a recently proposed TERM act, which would promote Justices to senior Justices after 18 years. A senior Justice is still a Justice, but would not actively decide cases unless there was a shortage of active Justices.
Congress could also impeach some of the current Justices. Either for partisan political reasons; perjury at their confirmation; or blatant corruption.
Each of the 13 justices gets a 13 year term, each justice could serve up to two terms, consecutive or not,
Absolutely not. You NEED it to be one term, because judges should never have to rely on approval of others for their jobs. The only reason they should be able to be removed after appointment is a severe ethics violation.
The real problem is Democrats giving rubber-stamp confirmations to conservative Supreme Court justices.
I agree almost entirely with what youre saying but let's not pretend like RGB not stopping down would have mattered. Republicans had already shown that they were willing to just leave the seat vacant for a year unless it was their guy nominating.
RGB should have stepped down early in Obama's second term, when Democrats still held a majority in the Senate....
Well said, and great idea.
I think we should have age limits on any political position, including that of judges. 70 is about the limit where physical and mental acuity is pretty likely to be slipping away, but having the energies to struggle through confrontations is the basis of being a judge. Character is important, but that means nothing if the judge in question becomes a Merrick Garland.
So both term and age limits, to help prevent the stratification of power and politics.
A democracy shouldn't have a single person in power who wasn't elected.
The United States needs to discard the "republic" part of our democratic republic.
And in order for these changes to happen, rich men in positions of power will need to die.
I feel like if a corrupt executive and legislative branch can get elected, having an elected judicial branch doesn't exactly fix anything.
I kind of agree with that
Really we should have a direct democracy
Aren't judges appointed in almost all countries outside of the US, Mexico and Switzerland.
But appointments can work if the system is respected by all. Elections just mean pure unadulterated politics.
My country (Australia) our Supreme Court is called the High Court. The national judicial body shortlists a selection of suitably qualified and respected candidates when there is a vacancy. The candidates owe no political affiliation to any party. The government selects a candidate, usually the recommended judge. There is rarely any controversy in the selection as the politicians, the judges, and the people respect the system.
Australia sometimes gets an upset challenge to a government decision, but everyone tends to blame a government for overreach rather than corruption on the part of the High Court.
This is all appointment with no elections involved. In the US you have elections for positions that we never have, and you introduce politics and dirty money where it's not needed. If the system is fucked no amount of empty democracy is going to save it. We even have a appointed commission to draw independent electoral boundaries in this country. Gerrymandering isn't a thing anymore, anywhere in the country. Politicians and parties get to make a submission on what the boundaries might look like, but anything dodgy gets thrown out. The people have confidence in the commission and no controversy.
too many people to vote for means no one knows anything about who they're voting for.
I think some appointments are fine, but they should never be soley appoint able by 1 branch/person. I3, congress should be able to put forth their own cabinet options type of thing
...of natural causes so that their entrenched power can be passed on to future generations.
One author is in the federalist society (the reason SC is corrupt)...
And the other seems to believe international laws shouldn't exist and Israel is totally cool...
They want us to "accept" it's corrupt and somehow do away with the entire notion of a SC and replace it with some "populist rule".
Similarly, progressives are increasingly converging on the idea of both expanding and “disempowering” federal courts. Attentive to the reality that the supreme court especially is not and rarely has been their friend, left-leaning advocates are finding ways to empower ordinary people, trading the hollow hope of judicial power for the promise of popular rule.
To label as “nihilists” those sketching an alternate, more democratic future is, in other words, not only mistaken but outright bizarre. Rather than adhere to the same institutionalist strategies that helped our current crisis, reformers must insist on remaking institutions like the US supreme court so that Americans don’t have to suffer future decades of oligarchy-facilitating rule that makes a parody of the democracy they were promised.
In Trump’s second term, the Republican-appointed majority on the supreme court has brought their institution to the brink of illegitimacy. Far from pulling it back from the edge, our goal has to be to push it off.
They're right wingers trying to hijack progressivism to destroy the SC after it changes all the laws to how they want, and before the left can use it as a weapon to change the laws back.
I'd love to say people won't be naive enough to fall for this, but I don't want to lie
I think this is a misread of the article. They don't seem to be suggesting any actual solution, and only mention "populist rule" in passing with no specifics.
But they do seem to be blaming the left for not doing anything about the problem. And I thought it was funny how at the top they were like "even liberals like Roberts"
Only six of them deserve to be replaced, but they should also spend the rest of their lives in prison.
Clean it all out and start over again.
All of them ruled against an ethics framework. All can go. The Republicans need to be in prison, the democrats need disbarred.
Did you even read the article?
The time was a decade ago.
The United States needs a completely new constitutional process, to stop idolizing as political gurus people who lived 300 years ago and did a great job for their time, but that's over. In Europe, some countries, during that same period, had dozens of constitutions and nothing bad happened about it.
Oh no, our Conservatives have been prepping for a new Constitutional Convention, and already have a playbook planned to ratfuck that.
The process for that is that 2/3 of states need to call for a constitutional convention to start it. When in session, everything is fair game to be amended. The rules for that are not codified in advance and created by the members themselves. And whatever comes out of that must be approved by 3/4 of the states (currently 38) in order to be binding on everyone.
But , by my calculations, 182 million people live in the 12 most populous states. Since the US population in all states is 339 million, that means that a new constitution can be ratified by states with only 43% of the population, then bind everyone to it.
There is no doubt in my mind that this will result in those states who did not vote for the new constitution seceding.
Either I haven't explained myself well, or you haven't understood me. I'm not talking about following any set path; I'm talking about throwing everything out the window and starting from scratch.
It is clear that establishing rules that apply in California and Texas requires consensus and compromise, but even federalism needs to be rethought, if you start from where you are today, you'll never get very far.
At the first continental congress, or whatever it was called, there were no rules to go on. You'd have to go back there.
term limits is a start
The US needs to resume amending the constitution. That's been the historical recourse when the Supreme Court makes shitty decisions.
I think the absolute failure of the ERA has proven unequivocally that ratifying amendments to the Constitution are no longer possible in an age where mass media has broad and instant reach.
There will always be someone powerful who opposes any amendment to the Constitution. And they will always make themselves heard loudly around the world, thereby making a consensus completely impossible.
I think the absolute failure of the ERA has proven unequivocally that ratifying amendments to the Constitution are no longer possible in an age where mass media has broad and instant reach.
I don't see why not. Older amendments have gone unratified before. The longest spell between ratifications so far has been 61 years, and our last ratification was on 1992, so resuming now wouldn't break any records.
While ERA would have been a good one, we also have an older unratified amendment for regulating child labor. The only reason ERA can't be ratified is that congress started setting ratification deadlines, but that's never been necessary, and older proposals that don't have them can still be ratified.
I think part of the reluctance is that people unaware that constitutional originalism is a fairly new legal theory (first proposed in the 1970s) don't regard the constitution as a living document when it has been for most of history. They've come to see the US constitution as entirely up to the Supreme Court & forgotten that the ultimate control is the people & their power to amend it.
The US political system is antidemocratic (Madison) and should be replaced.
People don't want to hear this. They want to blame the marginal voter for not supporting their compromise candidate.
Oh yeah the only way to fix the broken two party system is to vote for the great team Btm and not that terrible team Atm. Gotta make sure there is never any other options then team Atm or Btm after all.
Oh and when it all goes wrong (now) make sure to blame voters without choice and also state how nothing can be done as the usa is somehow special and what works everywhere else could never work there.
SCOTUS is flawed because it IS beholden to the other branches.
What I mean is, the President picks the nominee and Congress approves them. Every other branch is selected by the people.
It gives the other branches too much power over the judicial branch. It harms checks and balances.
It's far worse than that. The judiciary is able to be fired by the executive branch and that simply should not be possible.
I feel the checks on the supreme court is close. I think with 18 year ish terms to replace 1 every every 2 years consistently would work
18 is probably correct number. Its the shortest even-numbered term that doesn't allow a normal 2-term president to replace half the court. If you want to count the extreme case of a 10-year president due to a VeeP taking over then getting elected twice, it should be 20 years with terms starting on like January 10.
Unfortunately, there's no process for that. Single judges can be removed via impeachment, but being a partisan hack is not a high crime.
Similarly, nothing can happen with Conservatives controlling the House and Senate.
Oh, they know...
https://fedsoc.org/bio/ryan-doerfler
They want to trick people into dissolving the SC before the left gains control and can replace the problematic ones while taking steps to prevent this from happening again.
It's like a kid that walks up and slaps a peer, then immediately says "no tag backs" and says the game is over..
The federalist society got what it wants out of the SC, and now they want people to stop abusing it before we can undo what they just did.
I don't know why googling authors isn't the norm when billionaires own all the media companies. If you don't you'll never notice clear hypocrites like Ryan Doerfler.
Alas, the Constitution does little to protect against incompetent voters who refuse to act to protect their democracy.
It's not incompetence, that would imply people tried to prevent this. It's apathy. If "did not vote" had been a candidate:
A core problem is that impeachment votes have become a team popularity contest, with the details of charges, innocence, guilt, etc. being irrelevant except for theatrics.
Difficult to argue against but impossible to actually change.
George Conway had an interesting "fix" that gets around the constitutional obstacles where older justices are relegated to something like emeritus positions and new justices are appointed to the main bench to take their place
We accepted that a long time ago, in the before-fore.
The entire friggin government needs to be replaced.
Way past time but ok.
The time was yesterday last year last decade but I guess we can do it now of everyone is up for it.
Replaced by who? The one appointing new judges is the president. He would love to replace them all.
No shit.
It's not a nuice we need. It's a guillotine. We need their blood splatter to wash away the shit these people have put out.
It’s time to accept that the US supreme court is illegitimate and must be replaced | Ryan Doerfler and Samuel Moyn
Fixed the title for you.
Why the fuck didn’t they pack the court with 11 justices when they had the chance?
Democratic congresspersons confirmed most of the conservative Supreme Court justices. Biden was famously instrumental in getting Clarence Thomas confirmed.
Amazing that putting pubic hair in your coworkers coffee is not a career killing move.
I guess, unlike Kavanaugh, to my knowledge Thomas has never raped anyone.
Since FDR stacked it to push through the New Deal, if not earlier.
Your friendly reminder that the Democrats helped to set up the levers of power that Trump and his fascist ilk are now cheerfully pulling.
FDR didn't stack the supreme court. He threatened to do it, but ultimately didn't follow through. We've been at 9 supreme court justices since 1869.
This is a lie. FDR tried to pack the court and Congress didn't go with it.
No? FDR famously stacked the court, but he was only able to do that because the Constitution does not specify the number of justices on the court.
Something that the Bidden admin could have done (and I think even campaigned on doing) to override the court's conservative bent, but didn't.
Further, power of Judicial Review, where the court can rule laws as being Constitutional or not, and thus for justices to legislate from the bench, was not outlined in the Constitution either. That was a power that the court effectively granted to itself in Marbury v. Madison, in 1803.
The problems here are far more systemic.
So many commenters have short as fuck memories.
Biden administration never could have done it because it requires Congress to accept nominations and confirm them - the process is not controlled by the president, only initiated.
The senate was 48-50 split between Dems and Reps but with two independents generally causing & voting with Dems (Bernie and King) taking it to 50-50. However, two of those Democrats were Krysten Sinema and Joe Manchin - who both commonly voted against the Democrats legislation and acted as key swing votes for their own benefit.
There is absolutely no way Biden could have convinced them to expand the court, Joe Manchin voted to confirm Brett Kavanagh for fucks sake - voting against his own party to side with the Republicans and allow a serial rapist into the supreme court.
That was a power that the court effectively granted to itself in Marbury v. Madison, in 1803.
Jesus that does go back a while.
... reads ...
Huh. I always sort of assumed, as a non-American, that that was the one of the main purposes of the Supreme Court.
It does seem like a good idea, though, to have some court responsible for deciding the Constitutionality of laws.
Is it illegitimate because its a conservative majority?
It's illegitimate because Mitch McConnell refused to hold a vote on Obama's last SC pick, because he knew it would pass if that vote was held. So he left the SC one member short until Trump won, and they confirmed his pick instead. Basically, he (and the chairman of the Judiciary Committee) exercised a two-person veto on the pick.
He claimed it was too close to an election to act, but then when RBG passed away with even less time before an election, he pressed ahead with Trump's pick anyway.
He made up a new rule, then abandoned it when it was expedient to do so. If rules mattered, one of those picks would have been different.
