Thread by @dilanesper

I missed the debate because my tech betrayed me last night. But I will link to it below.

I should share my thoughts on court packing, for what they are worth. Court packing will make things worse, not better.

https://twitter.com/WhickTv/status/2056646685237928411

Here's the link to the WhickTV debate.

The basic problem with court packing is the way it will actually play out will not only not restore the status quo that people imagine we had, but will make things worse than they are now.

Here's what will actually happen with court packing. President AOC gets elected with a Democratic Congress in 2028 and she makes abolishing the filibuster and packing the Court a priority. She adds and appoints 4 more Justices.

In the short term, a bunch of precedents liberals don't like get overturned. These include Dobbs, Loper Bright, Citizens United, Callais, Rucho v. Common Cause, SFFA v. Harvard, and Kennedy v. Bremerton. And importantly, all of AOC's initiatives also get upheld by the Court.

I think that's the one move on the chessboard that court packers have thought about. But what's the next move going to be.

Well, conservatives are going to be as pissed at this as liberals are at the Merrick Garland thing. They will run on re-packing the Court.

And when conservatives retake a trifecta in 2036 or 2040, they will then appoint 8 more justices to the Court, so there will now be 21. And Dobbs, Loper Bright, Citizens United, SFFA v. Harvard, Callais, Rucho v. Common Cause, etc., will all be restored.

And all of President Boebert's executive initiatives will be upheld by the new court.

And then 8 or 12 years later the Dems will add 12 justices, up to 33. And then the GOP adds 16, up to 49. Lather, rinse, repeat.

So that's the first problem. What court packers WANT is a liberal Supreme Court that makes binding precedents, like the Warren Court did. What court packers will GET is liberal control of the Court after liberal trifectas, but conservative control after conservative trifectas.

And if you think about it, is that really much better than eliminating the filibuster to pass a bunch of new legislation, like a statute federally protecting abortion rights? Indeed, a statute creating a floor on abortion rights might actually be MORE durable.

The reason is Republicans voting to repeal an abortion rights statute would be voting explicitly against popular legislation. Whereas Republicans voting to repack the Court would be voting on a suite of issues, including affirmative action where their views are popular.

But it gets worse. You see, the actual Supreme Court we have sometimes strikes down Trump Administration initiatives. Like tariffs. Like everyone expects with birthright citizenship. Like the Alien Enemies Act.

Now to be clear, they let a lot of stuff slide.

Here's the thing-- the reason that despite being a conservative court, they sometimes vote against Trump is because right now, our judicial selection norms place a high priority on smart minds, and then they sit on the Court for decades.

Yes, the justices do have ideologies, but because they sit on the Court a long time, they don't have to be completely involved in the politics of the day and aren't as tied to the party that appointed them.

Now to be clear, that only goes so far-- SCOTUS makes a lot of political rulings, especially on the shadow docket!

But the reason you can get last week's mifepristone ruling is precisely because the justices have enough disconnection from Republican politics that they can make independent rulings sometimes.

A packed court will not do this.

Since the purpose of court packing, for a President, is to win all the cases, parties will pick court nominees who they think are guaranteed to be loyal, rather than learned. It's the difference between getting one pick at a time, rather than 4 or 8 or 12.

There will be a caucus of servants of the President on the Court, who will just vote for whatever their party wants.

And that means if Judge Kacsmaryk and the conservative movement want to ban mifepristone, it probably gets banned.

Hell, even legal interpretations currently unthinkable, such as the 14th Amendment banning abortion, the end of birthright citizenship, and an end to any separation of church and state and religious exemptions from everything for Christian conservatives, would become viable.

Heck, a Republican partisan Supreme Court might even resurrect the old 19th Century theories and declare the welfare state and labor protections unconstitutional. Obamacare? Gone. Social Security? Gone. Minimum wage? Gone.

And what happens when an opposing President wins but without a trifecta (and thus can't pack the Court). Well, SCOTUS is going to strike down all of that President's initiatives. They won't be able to govern, at all. Because, again, the Court will be full of partisan hacks.

Again, it's not that the Court acquitted itself wonderfully in the Biden years. But Biden still, for better or worse, had control of a lot of things like immigration and foreign policy. But with a court full of total hacks? They might take those away from POTUS too.

In the debate, a couple of people pushed back against this. The Court was packed a couple of times in the 19th Century, they note. But here's the difference. Both of those packings occurred during extended periods of one party rule.

In the 1830's, the Democrats were winning almost every election. In the 1860's, the Republicans were starting their run of dominant power. In other words, yes, you can theoretically pack if you know you are going to win a bunch of elections and the other party can't take revenge.

But of course, as FDR proved, you don't need to, and shouldn't, pack, even in that situation, because you will eventually gain control of the Court anyway. If the Democrats win the next 5 Presidential elections, they will control the Supreme Court. They won't need to pack.

But it gets worse for court packing. Because court packers don't understand all the OTHER stuff that SCOTUS does, other than decide the 5 or 6 merits and 10 or 12 shadow docket politically salient decisions they care about. What happens to the REST of the law?

Well what happens is because nobody in politics will care what these judicial nominees think about any issues other than the politically salient ones, you'll be throwing any number of people who might have completely random views of copyright, bankruptcy, arbitration, etc.

And since they will come on the Court all at once, the vast body of the Court's precedents will become up for grabs. Litigants will flood the Court with petitions to overrule anything that was decided 5-4 or 6-3 before. Why not? Large portions of federal law will be up for grabs.

Indeed, by definition, the justices appointed in court packing will be selected in part by their willingness to overturn precedent. No Democrat is going to pick someone who won't overturn Dobbs and those other cases; no Republican will pick a believer in stare decisis either.

So you'll have a court full of people who hold Justice Thomas' view of stare decisis, who think that whatever they think the law is should be the law and who cares about overturning precedent.

And this is personal to me because I rely on SCOTUS decisions to tell clients the law.

Let's say you are in-house counsel for a movie studio, and you are asked a question about whether the new film infringes a copyright. With SCOTUS in flux, it becomes much harder to tell the client "this is the law". This will repeat over and over again.

When only 1 appointment happens at a time, you don't have to worry about this. The law changes slowly. Indeed, you can research the new justice's positions on some issue you care about (e.g., Gorsuch on Indian law) and predict whether precedents are in trouble.

But when you throw a mass of appointments onto the Court at once, you won't be able to do that. A lot of lawyers are going to end up telling their clients "I don't know" on questions where, right now, there's a definitive answer. People won't know what the law is.

So at bottom, court packing is a reform that will make the Court much worse. It won't solve the problem packers really want to solve, it will lead to a much MORE partisan court that rubber stamps its own party and prevents governance by the other. And it will cause legal chaos.

And for those reasons, we should find some different way to address the real problems with the Supreme Court.