I Was Reagan’s Solicitor General. Here’s What Biden Should Do With the Court.
Joe Biden should be open to enlarging the number of justices. But first, he should see if the conservative majority overplays its hand.
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Charles Fried served as the solicitor general under President Ronald Reagan.
All these frankly reactionary decisions are incurable by legislation because they were said to be based in the Constitution. And every one of them favors, and was favored by, partisan Republican interests and was decided 5 to 4 by Republican-appointed justices.
As for the few moderate decisions of the last few years — the citizenship question on the census, the health care mandate in the Affordable Care Act said to be a tax, the ban on LGBTQ employment discrimination — they can all be undone by legislation.
So there is a lot at stake.
Fried argues that FDR's threat of expanding the court was successful because the court did begin to approve his legislation.
Following his idea, the Democrats should introduce legislation that would effectively annul Citizens United but in such a way that the count could allow the legislation without admitting its error. (I remember reading of a way to do this but I don't have the reference). Simultaneous introduce legislation that would allow expansion of the court, however on a much slower track, e.g. extensive hearings to examine the whole structure of the federal judiciary system.
The most attractive part of Scalia arguments to me has been the democracy issue, that legislatures not courts should decide issues. However once the Supreme Count on the Right or Left begins to quite frankly to invent Constitution rights, it become a very undemocratic institution, and its wings need to be clipped. Democrats need to promote rights (education, health, etc.) through legislation not by having the Supreme Court proclaim them. If Democrats or Republicans want a constitutionally protected right they need to amend the Constitution.
Fried makes a good argument, summarized by Theodore Roosevelt, approximately: walk softly but let them see your big stick.
ReplyDeleteI had been holding a faint hope that, when faced with the big jumps, Chief John Roberts would balk at being seen to preside over a branch office of the Republican National Committee.
I saw home hope for this when Roberts voted with the likes of Justice Ginsburg and opted for stare decisis in voting down Louisiana's effort to drive out abortionists with back door legislation. There it was, all teed up for five Republican appointees, the long-awaited case that could kneecap Roe v Wade and the Chief said, "Not so fast."He took such a blasting from the anti-abortion forces that he might have been tempted to reconsider the attitudes and wishes of his natural side in debate. As the swing vote, Roberts could have managed such salami-slicing of the law that hardly anyone would notice Sam Alito's wildest dreams coming true. But that prospect is lost now that there is now about to be a surplus of Federalist Society appointees.
The expansion possiblilty is always there. It's fine if others talk about it; Joe can afford to just smile and deflect when they try to pin him down. Besides, Trump may be re-elected and end his second term with a 12-3 majority on a 15-member court.
I agree that rather than rule out increasing the number of justices, Biden should hold back on it, letting it be seen as a possibility in case of egregious overreach.
ReplyDeleteI feel that judicial term limits would be a better solution to the politicizing of the court than increaing the number of justices.
I'd go along with an age limit for Supreme justicing. Even cardinals have that. But not with a number-of-years limit. If we ever get back to normal elections (sorry, Deacon Jim), the idea of life tenure is good so justices can't be bounced for unpopular decisions about currently unpopular constitutional requirements (say, the right to petition government in the 1840s).
DeleteWhen I say term limits, I mean longish ones, say 18 years. I believe the appointment process would be less political if vacancies occurred on a predictable basis.
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