Take Back The Court is terrific but should perhaps change its name.

We don’t want to take back the court, we want to dep0liticize it!

“Nevva gonna happen,” I hear you say — and I grant that it’s long-shot.

But don’t virtually all Americans believe the Court should be above politics?

Right now, it’s packed with Republican appointees — six Justices out of nine — even though Democrats won the popular vote in seven of the last eight presidential elections.

So how do we fix this?

One way would be to shrink the Court:

Thank three Republican-appointed Justices for their service and give each $25 million to retire . . . leaving the Court at three and three . . . six, in all, as under Washington, Adams, and Jefferson . . . who would then propose three centrists for the President to nominate and the Senate to confirm.  Instantly a balanced, nonpartisan Court.

The more likely fix would be give Democrats three more seats . . . bringing the balance up to six and six . . . and then have those 12 agree on three centrists, for a total of 15.  (This idea is not, of course, original with me.)

Final thoughts:

[1.]  One of TakeBack’s advisors is Evan Wolfson, who conceived the notion that “gay marriage” should be legal, then fought for decades until it was.  He knows something about impossible causes.  Two guys on a wedding cake?  Probably 80% of the country, if asked when he first proposed this, would have said no.  Maybe 95%.  The difference here is that on the question of whether the Supreme Court should be “above politics,” 80% would say yes.  Maybe 95%.

[2.]  Reform really is needed if we want the Court above politics.  From R. Hubbell’s daily newsletter:

. . . Pretending that the Court does not reflect the political philosophy of the president making the appointment is fantasy. Why does Justice Breyer believe that Justice Kennedy resigned during Trump’s presidency? Breyer should follow Kennedy’s lead and retire now, allowing President Biden to make at least one appointment to the Supreme Court.

Finally, I should note that the Court rejected arguments by California that the challenge to its regulation was moot because it had been rescinded. Despite the absence of a “case or controversy,” the Court nonetheless issued an injunction against a rule that is set to expire on April 15th (six days after the Court’s ruling on April 10th). Compare the treatment that the conservative majority gave to this controversy to several lawsuits against Trump. There, the Court allowed those lawsuits to languish until Trump was no longer in office, then declared them to be “moot” and ordered dismissal. See, e.g., Yahoo News, “Supreme Court dismisses as moot case questioning Donald Trump’s blocking of critics on Twitter.”

Got that? The Court moves with lightning speed to issue an injunction that will be relevant for only six days in California but sat on a claim against Trump until he was out of office so it could dismiss the claim as moot (after the lower courts had ruled against Trump). It is difficult to see those two outcomes as anything other than a mobilized conservative majority distorting procedure to achieve political outcomes. As Justice Breyer said, “If the public sees judges as politicians in robes, its confidence in the courts . . . can only diminish.” That’s how I see the Court from where I sit. I believe we should accept that reality and move quickly to dilute the power of the conservative majority. . . .

[3.]  “Take Back the Court” suggests “us versus them.”  How about “Balance The Court”?   Is BalanceTheCourt.org taken?  Oh, wait!  It is now! I just grabbed it for $9.99.

[4.]  There’s some reason to think that just trying to get Congress to depoliticize the Court can be of value — as argued here. (“Court reform doesn’t come exclusively from changing the size and structure of the bench. It can also come informally, from the people exerting pressure on the current justices—and there’s good evidence that’s already happening.”)

Have a great weekend.  To help depoliticize the Court, click here.  (Here, if you need the tax deduction.)



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