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SUPREME COURT REFORM 101: Class 3, the “balanced bench,” or the 5-5-5 plan, first outlined in @voxdotcom. You might know it because @petebuttigieg discussed it quite a bit during the Dem primary last year. 1/ https://www.nbcnews.com/politics/2020-election/inside-pete-buttigieg-s-plan-overhaul-supreme-court-n1012491">https://www.nbcnews.com/politics/...
The idea: expand size of the Court to 15. Require there be 5 from D-list & 5 from R-list. Those 10 pick the other 5 from the courts of appeals to serve for one year. No agreement and the Court can’t sit that year. Me & @danepps explain @yaleljournal: 2/ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3288958">https://papers.ssrn.com/sol3/pape...
The good: It reduces the power & import of any individual nomination, so there aren’t death-matches over and over again. It could turn down the temperature. (Also good b/c Congress can focus on other things). @voxdotcom 3/ https://www.vox.com/the-big-idea/2018/9/6/17827786/kavanaugh-vote-supreme-court-packing">https://www.vox.com/the-big-i...
It reduces power of individual justices, so advocates aren’t always pitching arguments to the idiosyncratic views of a Justice Kennedy, for example. See @ishapiro on the “Kennedy Brief” 4/ https://www.cato.org/publications/commentary/justice-kennedy-once-future-swing-vote">https://www.cato.org/publicati...
It recognizes partisanship is relevant, but seeks to force justices to find compromises on personnel and indirectly on outcomes. Won’t partisanship mean the Court will deadlock? Some might argue that’s a virtue. Court with less power serves democracy-values. 5/
Okay, but can they really agree? Note that the 4-4 court in OT 2016 had more consensus than in 70 years! h/t @adamliptak 6/ https://www.nytimes.com/2017/06/27/us/politics/supreme-court-term-consensus.html">https://www.nytimes.com/2017/06/2...
Isn’t it naïve to say they’ll agree on 5 picks? No moderates exist! Note: they don’t have to pick 5, they could just agree to one compromise pick. Might be idiosyncratic judge: left on some topics, right on others. Maybe judges will also moderate to get picked. Hard to know. 7/
. @jbouie notes this doesn’t solve D’s desire for Court that& #39;ll uphold D policies. True. 5-5-5 court might uphold D policies or not. But maybe R’s could eventually live with it – less likely to have retaliation if R’s win Congress & Presidency. 8/ https://www.nytimes.com/2019/06/06/opinion/buttigieg-warren-supreme-court.html">https://www.nytimes.com/2019/06/0...
But R’s already have 6 justices (assuming confirmation of ACB), so 5-5-5 makes no sense. Sure. Proposal was developed before all this, so it would have to be reformed to be 6-6-5, or maybe 6-5-6 has a better ring to it. Not as elegant, but it still works. 9/
Constitutionality: Can justices appoint judges as temporary justices? Judges often sit by designation on other courts, and this would be similar. But if you’re worried, easy fix: appoint all court of appeals judges as associate justices. 10/ https://takecareblog.com/blog/the-constitutionality-of-the-5-5-5-supreme-court-plan">https://takecareblog.com/blog/the-...
Are partisan balance requirements constitutional? Many federal agencies & commissions have them. Most don’t specify party, but instead limit the number from one party. This could mean shenanigans, like switching affiliation, so isn’t likely workable for Scotus. 11/
One solve is Pres. picking from a list prepared by Sen. maj/min leaders (which would also allow for third party/no party judges). A commission, for example, recommends names for judges for DC. Constitutional? Nothing is bulletproof, but there’s a case 12/
Isn’t this too complicated? More than expansion, sure. But not more than details of term limits (see yesterday’s thread). Also: our political system often yields complex policies b/c of need for compromise, rather than simple (even if better). So…maybe that’s a feature? 13/
Whether you like this plan or not, @petebuttigieg brought important attention to court reform last year (& I say that not just because he picked up my and @danepps idea). If you like this series, please follow & r/t. Tomorrow: we tackle the lottery or panel approach. 14/end
