Then in 2024 if the GOP wins again they add 100 judges to the SC? What is the limiting principle here.

You generally want an odd number of judges on important cases so you can break ties.

Future presidents won't care what signals Roberts sends, because their base will just focus on the short-term wins they can get by making sure the court is in their favor. Essentially, you are just arguing for getting rid of judicial review.

Pretty amazing that you think packing the court in a partisan fashion makes it less political.
Lol.

Roosevelt didn't force the New Deal through Congress by threatening to pack the Court. To the contrary, Roosevelt's attempt to pack the Court failed because it lacked sufficient support among both Republicans and Democrats.

In short, Roosevelt's attempt at court packing is widely viewed by historians as a failure and a setback, not a tool that he used successfully to further his agenda. Roosevelt ultimately had a great impact on the Court. But that was because he and the Democrats kept winning elections and appointing justices.

I asked what Obama, Biden, Schumer, or voters could have done to prevent the current situation. Presidents, members of Congress, and voters have no control over when SCOTUS justices resign.

No president has the authority to unilaterally expand the SCOTUS, arbitrarily or otherwise.

I don't know whether Biden would expand the Court if it were in his power to do so. I suspect not. But it doesn't matter. He doesn't have the votes in Congress. It's as simple as that. Biden knows it. Schumer knows it. Everyone in the Western world knows it. If Biden made expansion of the Court a priority, his efforts would fail. Presidents almost never spend political capital on agenda items that are obviously futile.

As I've explained before, the Chief Justice does not have unilateral authority to decide that certain justices will not hear a case. And the Supreme Court does not have authority to reduce the statutory quorum requirement, which requires a minimum of six justices to decide a case.

Your confidence that Roberts would assign panels in a non-partisan way is misplaced imo. Your confidence that a conservative successor to Roberts would assign panels is wildly misplaced. And if a chief justice was assigning cases in a way that favored the party in control of Congress, there would be zero chance of Congressional intervention.

Good. 500 more judges would be even better.


You are missing or avoiding the point and seemingly purposely so.

It cannot be denied that the more individuals, the more divergence. You cannot count on every GOP appointed judge to support every GOP position now and that divergence in members costs them some rulings. The wider the divergence that harder it is to ensure you get a group with a similar SET view in any area. I can much more EASILY find 3 extreme progressives to populate a board who will not diverge on most controversial issues but it is much harder to find 100 and even more so 500 who will not diverge.

Right now people hover and salivate over every single individual SC jurist and their life expectancy as that one single seat can easily tip the balance.

That would NOT be the case if we had 100 Jurists and Roberts selected 3, 6 or 9 from that pool to hear each case.

There has long been arguments that the SC is just unable to hear cases fast enough due to backlog and you see how deftly Trump exploits that to all but defeat the Balance of Power between Branches. A much larger SC can empower itself to hear all those cases immediately and RESTORE the Constitutional balance of powers. Same for cases that are State V State.


There simply is zero downside to packing the Court and it FIXES so many of the issues and problems America is dealing with, the largest of which is the loss of Check and Balance powers between the Co equal branches of gov't.

And possibly just as important these new tactics GOP States are using to try and circumvent the Constitution and law such as Texas's new abortion law. They are weaponizing the time delays for things to go thru the courts and everyone can see this will be adopted by and templated by other GOP States.

Expedience matters. It matters a LOT.

Let us not pretend if you have 100 judges we need to have 100 judges sitting to hear a case and that is problematic as its an even number so who will break the tie.

I don't want to play such games in an attempt to MANUFACTURE this into an issue it is not.

If you have a Chief Justice who in any way cares about a semblance of fairness and the optics of the Court (which Roberts seems to as he speaks to the Press more often than predecessors defending the court) this is the easiest thing in the world for him to manage. He simply would need to implement a policy such as a lottery from the available judge pool. Each hearing will have (if a 3, 5 or 9 person panel) 50% chosen from the GOP nominated pool and 50% from the Dem nominated one and that 1 extra chosen from the entire pool randomly.

(for the math nerds I am removing 1 before dividing it 50/50 and then adding that one back in as completely random)


Who cares if the future POTUS does not care that Roberts is implementing plans they cannot impact.

'Oh **** the POTUS Trump says **** Roberts, I am sending in 5 more Conservatives'. Roberts says 'it will have ZERO impact on how we plan our Court hearings and will not tip the scales as you believe or hope it will.'


Why do you and why should I and why should the Chief Justice care that the POTUS does not care? It is an absurd argument.



It does. It is not even disputable.

YOu are absol8utely a status quo, protect the system as it is poster and arguably the most so on this forum so I expect the same type of specious arguments you will hear to defend the status quo from you. But there is simply no denying that your own example of adding 100 more justices as opposed to the opposite of shrinking the court to 3 justices opens makes it less open to hand picked justices who will do exactly what the GOP wants than if they only have to seek out 2.

To deny that is just gas lighting nonsense.

If we had 100 more judges today no one, NO ONE would have been hanging over RBG impending death salivating as Mitch was. And the angst over Breyer now.

I watched a panel of historians debating this very thing about 3 months back on a Ted talks like panel.

It was widely viewed that FDR's THREAT of packing the court was seen as a big threat by a Court that was pretty obstinate and clearly using its power to protect GOP principles and block Dem POTUS and HOuse and Senate ability to shift the country when they got elected.

As soon as FDR threatened to pack the court several key plank pieces of his new deal agenda and left agenda started to get passed by the SC, in what was believed to be a strategy to take the legs from under FDR's argument and understood need for why the Packing needed to be done. Thus the packing became unnecessary and it did not need nor get the support to happen.

There was no belief that without those threats the courts would have suddenly lurched left on those key issues.

So what you are saying is 'it worked' as he got the 1st thing he wanted, but it failed as he did not pack the court which was less his intent then was getting his legislation passed.

The court packing would be a called a Means to an Ends that no longer became required once the Ends were achieved anyway.

I don't agree with that.

I mean if you are saying no literal control, fine but they have a TON of influence and suasion they can apply and you saw the Dem do the opposite.

I think if the Dem elite all put pressure on RBG to take one for the team to step down she would have. Instead they made sure she knew she had their support to stay and it made her more comfortable in her choice. Breyer is now doing the same when you would think he would see the folly and selfishness of his actions. IF the GOP takes the Senate in 2022 (likely) they have already made it clear that Biden will get zero picks. That will put Breyers seat at massive predictable risk of going to the GOP eventually.

It is almost as if these Dems POTUS are full of **** when it comes to them saying they actually care about the legacy of their actions and instead value way more the prestige and interactions of being on the court in real time.

I would make this bet, if not so far off. If the GOP grabs the Senate in 2022, maintains thru the GE in 2024 and wins the POTUS they will convince Clarence (who will then be 76) to step down so they can fill his seat with a much younger and even more right version of himself.

They will never announce that is why he is stepping down and the status quo Dem supports will ring their hands at HOW LUCKY the GOP is that all of their people seem to step down at just the right time. What a streak of luck. While acting confounded they cannot get the same result while saying 'we have no control over that'.

You can explain what you want but you are not the only voice or opinion on this and I can cite many who do not position it as the impossibility you do.

I know in the past when I quote lawyers such as renowned legal professors you say 'I don't really find his views compelling' and that is fine, you don't have to. But I also do not have to dismiss it because he is just a renowned professor and you are here as a real time in practice lawyer saying you think his views are not relevant.

And I am not suggesting you are wrong, I am saying there are differing views on this and as such I won't not offer my view because you keep explaining to me your view.

I will respect your view as part of the discourse but if you are saying 'you've explained this and thus it is ended and I need to move past offering this point', I won't.

And to hopefully get ahead of this before it is set out as 'oh there is QP not willing to concede to the lawyers in matter of law and legislation' as tends unfortunately to happen all too often I invite people to read this and click thru many of the links in the article that lead to further debate.

My point is not to say Rococo is wrong or I am right, and just that this is not some closed issue I should not even be arguing as the lawyers have explained their view and that should be all that matters.

This issue is one of significant debate between lawyers and legal theorists and thus should be fine fodder for discussion here.

I disagree. It was obvious to RBG that most Democratic politicians wanted her to retire. Ginsberg acknowledged that she was facing pressure to retire. It is even more obvious to Breyer that most Democratic politicians want him to retire. I see no evidence that Breyer cares whether Democrats think he should retire. And it's obvious that RBG didn't care either.

This isn't much of a bet. For several years, Thomas has been perceived as the next most likely justice to leave the court next (after Breyer). I would not be at all surprised if Thomas retires in 2025 or whatever, especially if the GOP wins the presidency in 2024. But it won't be because GOP politicians convinced him. It will be a combination of Thomas retiring for personal reasons, and Thomas retiring because HE wants a conservative to replace him on the Court. I doubt Thomas gives a **** what Donald Trump, Chuck Grassley, Lindsey Graham, etc., think of him. He is an arch conservative, but he comes by it honestly. He isn't a conservative because it pleases GOP politicians.

To be honest, I'm not sure how much Thomas cares about who his successor is. I assume that he cares somewhat, but he doesn't seem to think about the Court in institutional terms nearly as much as some of them do.

Are you suggesting that you have legal authority for the proposition that (i) the Supreme Court is not bound by the statutory quorum requirement; or (ii) under existing SCOTUS rules, the Chief Justice has the authority to exclude specific justices from voting on a particular case before the Court.

If so, I would be curious to see the authority.

My recollection is that you cited something that Larry Tribe said about how a trial court would rule on a discovery matter. I pointed out that Tribe is an appellate specialist (really a SCOTUS specialist), to the extent he is a practicing lawyer at all, and not especially expert in predicting how trial judges would rule on discovery matters. I would be much more likely to defer to Tribe's expertise on a question of constitutional law.

Rococo apologies but I edited in a couple more articles with multiple links to the post above yours as I did not want to just dominate this thread with too many posts.

The last article is specifically relevant to the difference in our view of the FRD Court Packing issue and its strategic value especially when you compare it to Biden getting out in front and saying to key Donors 'don't worry nothing will really change' which is a message that would be heard lout and clear by the GOP with regards to how much fight Biden was going to offer or how much a threat any of his bluster would mean.

Biden and Establishment Dems ALWAYS signal up front (or use a proxy such as Manchin or Sinema) 'don't worry, we got this. No change is coming despite any rhetoric you may hear' and that is done absolutely deliberately.

Ahh just another coincidence if a GOP POTUS and Senate are in and Thomas retires younger than either RBG or Breyer.

Wow what luck the GOP always has.

Lets not forget both RBG and Breyer retirement talk was ample before Obama and not Biden, but damn the bad luck the Dems have if they hold out until the GOP has control.

Just so many coin flips going against the Dems and the Dems so powerless to tip those scales because ...'reasons'.

Not at all. I am saying there is debate even in amongst legal spheres on this and as such any attempt on this forum to say 'the lawyers have taken a position... case closed' is not proper. And for the record that is not as much directed at you as the other lawyer (sorry name escapes me) who likes to pop in with a guffaw laughing as if it is absurd I don't abandon my arguments when the lawyers have spoken. He has made many such passing dismissive comments along those lines.

I am saying there is a belief this can be done and the obstacles ARE surmountable. If you read the articles I posted and follow some of the links you should get some of that countering info.

Again, I am fine if you say 'ya he isn't a trial lawyer and is a professor of constitutional law so I, Rococo, do not weight his opinion high here'.

But when I cite and quote him to show the arguments I am offering are not without support, I too am fine accepting his view, even if you do not, and i am fine putting weight to it. I don't have to abandon because Rococo does not put much weight on it.

Again that was more in defense of the 'why do you continue to argue this point when we the lawyers, are telling you we disagree'.

My answer is 'because you are not the only lawyers I consider in any discussion when I consume so much legal debate and theory online'.

I am happy to accept your formulation. Have you ever heard a lawyer express the belief that (i) the Supreme Court is not bound by the statutory quorum requirement; or (ii) under existing SCOTUS rules, the Chief Justice has the authority to exclude specific justices from voting on a particular case before the Court?

I never said that anything was a coincidence. You are correct that there was a lot of retirement talk about RBG and Breyer. That's why I said that RBG knew full well what Democrat politicians wanted. And that why I know Breyer understands what Democrat politicians want.

You're always so fast with the claim that I'm being dishonest.

To be clear, I support expanding the federal judiciary in general, including the Supreme Court. I also think we should move to a system of regularly timed appointments to the SC instead of the current system of waiting until a Justice dies or retires.

What I oppose is packing the court, understood as the current president arbitrarily expanding the size of the court with ideologically/jurisprudentially aligned judges so the president can bypass the normal process of judicial review in passing legislation. That seems to be what you are proposing and what I am claiming would be a further politicization of the court in a bad way.

I have previously stated ITF that I consider myself a kind of conservative, and much more of one since Trump's rise in American politics. So I don't object to be called a protect the system poster. Previous to Trump, I was more concerned with various policy arguments about how to improve American life, etc. While I still care about those issues, I'm now more concerned with preserving the status quo system of American liberal democracy, and so care much more than previously about issues like partisan polarization, perceptions of government legitimacy, the security and fairness of elections, and so on.

The point being the Republicans are far more deliberate and strategic and pressuring on achieving their goals.

They are systematically taking over the Courts and voting infrastructure at the city and State levels with surgical precision. They know what they want to achieve and are doing so and it is not luck. if another Dem Potus is I will bet Clarence Thomas stays in if in good health. If a GOP POTUS gets in and they control the Senate I bet he steps down as the GO wants a slate of YOUNG SC justices who will be in place for decades to come.

The Dems, simply do not really care. They care in as much as it gets them votes, but they could truly give a **** about any of the impact on POC or women rights, etc as they are wealthy and elite it won't impact them.

And I don't mean that to be callous as they do 'care' like a California Dem cares about the homeless, but like them they will always find ways to defeat any positive change as they don't want the bother and cost. They would be happy to see it solved as long as OTHERS bare the cost.


The Dems are making it crystal clear that certain things are important and worth fighting for. The 'Filibuster' an august body tradition that MUST be protected. And the Senate Parliamentarian. A respected role that requires Dems put aside the fact the citizens have voted for these changes, the Dem POTUS made them election planks, and the Dems have the House and Senate. But god forbid the Parliamentarian say 'all that aside I disagree and think the status quo must be maintained'. 'Drat, foiled again' the Dem's say. 'If only there was something that we could do but we are stymied'.

As Mitch gives a silent laugh standing over the corpse of the last Senate Parliamentarian who dared to try and block a key GOP plank.

But then maybe the GOP just got lucky and had the fireable type and the Dems don't?

There are clear right talking points circulating that are so specious as to be laughable.

One is this idea that MORE Justices polarize the courts than less do. That 100 judges are easier coral tightly to vote left or right than 2 would be.

The idea is ridiculous on its face but as is the case it will be repeated as if meaningful and thus make it meaningful to some searching for a partisan position to cling to.

There just happens to be no logic defense of same. You will ALWAYS get more diversity with more justices. Some may be tougher on GOP Finance position but not as tough on Abortion issues, etc. The smaller the number the easier it to find a number that are in line on all or most issues.

That is not just a SC but an EVERYTHING issue. I can find 2 or 5 Progressives that agree on most everything but as that number gets bigger you will have divergence. FACT.



I am not going to spend a lot of time on this as nothing here represents my view. I am not looking in any way, nor have i suggested any skirting of judicial review. Simply Biden should correct the sins of past GOP by expanding the court by X members picked by him.

No marching orders or any other changes required by Roberts. He can decide how to integrate and deal with them.

And I don't think pointing out someone as close ideologically to a Manchin or Pelosi or even Mitch type an insult. Some may feel comfortable in that. I think many who are not in the margins, needing change to cope and survive identify that way. "Not my problems man. the current system is serving me well'.

For those being left behind though, those like you are the biggest challenge IMO. Everyone know and can fight against the far right pushing back against change but is the so called moderates who truly prevent change. Again I use the example of the California liberal. Vocal in support of homeless initiative but putting a bullet in each and every one as they come up.

Those people too I am sure would feel very comfortable describing themselves as moderates just trying to protect the systems as they stand.

You recommend:

But also claim that you are in no way suggesting any skirting of judicial review by packing the court. Okay.

As usual, you are full of ****. "I don't think it is an insult to point out someone is close ideologically to Manchin, Pelosi, or Mitch." But also, moderates only care that they are themselves doing well and are the biggest challenge to a better life for those worse off than themselves.

In fact, a Democratic party that cared more about the views of low-income Americans would be less pro-choice than it is currently as that is more popular among the wealthy than the poor. So your description of moderate is not even factually accurate on your own grounds.

Anyway, I don't really describe myself as a moderate. Nor does your description have anything to do with my views. For instance, I've long worked with YIMBY groups in part because of my view that the best solution for homelessness is for us to build more housing. I've also volunteered for years at my church's homeless shelter. I've also argued in this forum for a UBI as a way to help the worst off. You just can't handle honest disagreement on policy or politics without looking for some character deficit as an explanation.

Maybe we understand Judicial review differently.

Explain to me explicitly what is the mechanism that a threat of packing the court does or triggers that denies the SC to then apply judicial review to pending matters set for hearing?

I am not following your leap here that one (a commitment to add more judges) then means two, judicial review can no longer be done.

But I await the explanation. I think you are full of **** but with hold that opinion until you clearly demonstrate the precluding mechanism.




Yes they are. It is almost always the moderate, centrist, comfortable status quo voter that is the impediment to any real change. They are typically the swing vote and know it thus why Manchin and Sinema arguably have MORE POWER to decide where lines are drawn on acceptable legislation than Biden.

And just like with Manchin and Sinema driven by blinding self interest at the expense of the Party, their POTUS and the very voters who gave them that power, they almost always are not motivated to act in any way that will impact their already comfy circumstances and life. You are one who is in the necessary ranks of gas lighting for the Manchin and SInema types making th very blatantly false and specious arguments that they are acting for their constituency who has different concerns and needs.

That is such blatant Trump like 'Stolen Election' BS it should not be engaged but just as Trump knows so too does Manchin and Sinema know that if they can get enough people in the Press to keep repeating it (and the donors and corporations are happy to pay them to do just that) then average citizens will be duped into believing it has merit, at best, or others will be happy to also be a disinformation instrument and spread it.

Just as you do not historically see things like big election reform or rights for POC happen until those in the comfy middle, not effected, feel the heat of protests and the disruption and then, and only then, are moved to real action.

It is a sad truth of society as a whole that simply because you sympathize with a situation (Cali left and homelessness) does NOT mean you will support any change that impacts YOU. And in fact most will sabotage it, while pretending they did not (again Cali NIMBY).




I find this t be a bad faith leap as you seem to be trying to conflate religious resistance or shedding, which comes with wealth wrongly here. But feel free to explain this point more if you want me to reply more fully.


I am glad that is the case.

I also see you as the very first person to jump in and provide the type of Fox news type Trump cover for the actions and decisions of Manchin and Sinema so I am not judging you in a vacuum. I also see you as one of the first to take almost a trolling position against anything posted by more progressive leaning posters with almost zero desire to give on any of their points. I see it as a game to you that if you were on Chris Cuomo show you would be pleased to make all the 'anti' points that are good talking points, not because they are accurate or true but just because you 'can'. It cannot be 100% proven to be wrong so just consider it an 'alternative fact' until you prove otherwise type point.

But I certainly can believe you think that way and do those things. Many in Cali volunteer in homeless kitchens and then go home and vote against a low income housing shelter and they NEVER reconcile those things. They believe it DOES need to be addressed and it is WRONG, but also think if they push it down the road (NIMBY) they will find another way to address and fix it that does not compromise them and the benefits in their life they now enjoy. Someone else will pay... somehow.

How can you say things like this and still pretend like you are an honest, rational poster?

Because this is purely a theoretical discussion. No one is dealing with facts here. And that is my opinion. I absolutely believe there is zero downside and only upside in packing the court the way things have evolved today. I believe it gives all the tools to fix all that ails the court and why people have continued to lose confidence in the court.

Here is a definition of judicial review:

If the majority of judges on the Supreme Court views some legislation as unconstitutional, and so is going to overturn it, and then the president arbitrarily adds new people to the court so that now the majority on the court now view it as constitutional, the process of judicial review is effectively neutered since the prior judges can't really overturn legislation without losing the majority necessary to do so.

Here are some recent examples of court packing according to Vox.com:

As noted in that article: "The pattern is clear: Court-packing is what autocrats do as they begin to consolidate their power."

Fine, whatever, you can think moderates are scum. The BS part is where you say you're not insulting me by calling me a moderate and then immediately describe moderates as selfish people blocking the worse off from a better life.

My point here is that you assume without any evidence except your feelings that moderates are upper middle+ white people. This is not clearly the case, especially on the kind of culture war issues like abortion that you are responding to here. As demonstrated in the survey I linked, lower income people are more likely to support restrictions on abortion than high-income people.

Yes, I'm well aware of this attempted soul read of me you been shopping for a while. As you say, it is an unfalsifiable claim, and you bring it up whenever I post here. You think I'm some kind of bad faith contrarian poster, and the only evidence you've ever given for this is that I disagree with your progressive takes. But I've been very clear, I'm not a progressive. I think the Bernie-style progressive view of politics is wrong at its core. Grow up and realize that people can have disagreements about politics and policy without lying about their views.