I've already said neither system can or would be improved if you have a Chief Justice who does not want it to.

The point is that even if ROberts or (insert any justice here ________) was in power WHO DID want to act in a way that depoliticized the Court and was for the good of the people, they DO NOT have the power in the current system.

That is exactly why the GOP put such emphasize on these nominees as they knew they could get around even someone moderate/right like Roberts, let alone any left that might get become Chief justice. They KNOW in the current system they can over ride that.

Give them 20 justices and a moderate (in this instance) like Roberts and GOP efforts to coopt the court can easily be countered. Something he cannot do now, even if he wants to.

By the time we got to the Barrett domination, either party in power would have jammed a justice through as quickly as possible.

What McConnell did with the Garland nomination was a flagrant abuse of the nomination process and a significant departure from prior practice.

The deep flaws is that the Federalist Society has coopted the process. They pre vet all the judges that will get forwarded and ensure they are committed to a few premises such as ended RvW and other 'liberal' legislation before allowing them to proceed to nomination.

That is why Trump could state as FACT it “will happen, automatically,” if he is elected president and gets to appoint justices to the high court.

He was made aware they absolutely had justices lined up who are committed to these principles but are finessed enough to lie their way thru the nominations process.


Once upon a time the Republicans used to decry judges not acting as legislators and imposing laws from the bench. Now they have built an entire platform and apparatus around specifically doing that and the judges they appoint are simply operatives. They are not picking them for their 'leanings' as that is what frustrated them prior with GOP judges who leanbed right still being somewhat neutral on the law and sometimes voting with Dem judges. They fixed that problem and now only forward judges who make a commitment.

You are trying to fix a process that isn't functioning properly by vesting an absurd amount of power in one person -- the Chief Justice. Like all the other positions on the Court, the Chief Justice is appointed by the president and confirmed by the Senate. I don't see how that is any sort of long term solution.

If there were ever a significant expansion of the SCOTUS and cases were heard by a panel, you can be certain that the panels would be assigned at random (as they are in Circuit Courts now). Giving one justice -- the Chief Justice -- the ability to assign justices to cases would be almost a perfect recipe for disaster imo.

You are mistaken if you believe that conservatives in your lifetime were ever opposed to judicial activism. For at least the last 60 years or so, conservatives and liberals have criticized decisions they don't like as judicial activism and lauded decisions they like as faithful adherence to the Constitution. That rhetoric has been around my entire life and it is completely meaningless.

If you want to fix the nomination and vetting process, which is the only flaw you just identified, there are ways to do it without changing the deliberation or output processes of the court (which no one has identified as a flawed process in my reading of the court packing articles).

I also think you completely overestimate the impact of the Federalist Society based on their level of influence over the Trump and the last Republican majority Senate. They had little to no sway other than Trump and Bush administrations. I doubt they will ever have much impact if the Senates stays Democratic.

I do see the court packing argument as a valid methodology of immediately changing the ideological makeup of the SC. Whether it is necessary to do or wise to do are completely different discussions. And in no discussions will there be a perfect solution without foreseen and unforeseen consequences. As Rococo points out above, your empowerment of CJ to choose the justices plan is clearly flawed.

The concept of a right to privacy as outlined by prior SC decisions could have been legislatively enacted at the federal level, making it "untouchable" but our federal legislature is too inept. We have Hippa laws and data privacy but no codification of a right to privacy found in the Constitution 60 years ago.

Let me try one more time as obviously I am not clear.

Todays system. THE CURRENT SYSTEM, even if Roberts (or enter CJ here _____) has a desire for a fair and balanced court approach not weighted via politics (as Roberts seemed to truly believe he had, rightly or wrongly) Roberts got out flanked by the GOP who knew they could over ride any attempts to keep the court fair if they could just steal that Obama pick and then cement that with Barrett.


So today's system IS broken in that regard.


What I am not saying is that a Panel System fixes even if a Chief Justice (or those implementing the new system) are bad, or have malintent. I am not suggesting it is a panacea to fix all ills. I AM SAYING it would give the system and CHief Justice the power back to fix if they were so inclined to do so and use that power in a good way.



So in scenario 1 we have DEFINITELY BAD, DEFINITELY CO-OPTED, and in scenario 2 a way to fix it, if the powers who be choose to.

I agree with that. I was more speaking of them targeting to take over and coopt the courts.

Despite what you say and despite the GOP forwarding some very conservative judges in the past, most were not jurists you could absolute count on to vote for certain any significant way on the issues important to the party. It was more a good faith hgpe.

That is not where things are now. The Federalist society spends enormous time both coopting and getting iron clad assurances on where a jurist stands and what their marching orders are before they will forward them.

This is entirely another form of coup the US is dealing with now.

.

Your solution also gives the CJ the power to make a bad situation even worse. And in the future, it might give the CJ the power to turn a good or neutral situation into a bad situation.

I'd like to see examples of the situations you are suggesting and why an abusive CJ cannot do same or similar damage with a biased court smaller Court with a Kavanaugh and Barrett type aligned with his nonsense??

Is this a trick question? On most issues, you would think that a decision issued by a panel of Thomas, Gorsuch, and Alito was worse than a decision issued by the full Court.

And if the Court were more balanced in the future (which it certainly would be if the Court were expanded while Democrats controlled the WH and Congress), then a decision by a panel of Thomas, Gorsuch, and Alito likely would be dramatically worse.

No, not a trick at all, as I was wondering if you were pointing at something systemic that was problematic in a Panel court versus you just saying 'WHAT IF, Roberts or whoever loaded the panel'.


I have said before (a few times actually) and will say again, EITHER SYSTEM with the justices present (especially the Chief Justice) set on being mischievous or tilting the courts influence can and would be exploitable. That is true now and it would be true for a panel court.

THAT IS NOT my point here. My point here is that even if you were to have someone like Roberts or even someone as left as RBG was as Chief Justice and members of the Court all striving for a somewhat neutral and unbiased court, the Federalist Society and republicans have found a way to overwhelm the court and its ability to manage itself towards a more fair and balances outcome.

So what I am talking about it removing that out side influence that turns a single replacement justice event into a must watch rock concert like event with people cheering or devastated over the outcome.


I am NOT saying you cannot make up a bunch of 'what it' the panel court was to do this .... and I could not counter with 'what if' the current did this type scenarios. It is the outside influence I am trying to address and empower the Court to handle better. That does not mean they will choose to do good or right, but I am saying they will be given more tools to.

Imagine that the SCOTUS has 13 justices, seven Democratic appointees and six GOP appointees. The Court grants cert on an abortion case. Would you rather the case be decided by the full court or by a panel of three justices selected by Alito?

You want to vest the Chief Justice with enormous power, and you are acting as if that structural change could never make the situation worse. That is clearly not true.

I cannot repeat enough, that YOU CAN and i CAN TOO, craft specific scenarios where either would worse.

Would you prefer a full court where Republicans/Federalist society get the next 3 replacements and an abortion case presents or a panel one where the Chief justice CAN, if he so chooses OPT to empower a panel that is more balanced.

I get you will keep countering BUT... BUT... BUT what if the CJ only panels the GOP.

Again, please just cut and paste this to your next reply... if the CJ or those in the Court are intent to bias it that can happen in EITHER system. If the GOP keeps getting judges whether thru design or luck the CJ is INCREASINGLY LOSING any ability to counter what they are doing by loading up his court with activist judges.


So I am for the system that at least, given some good will by the justices to remain fair gives them SOME POWER to do so as opposed to the one today that increasingly ensuring they have no such power.

You are missing the point. You are acting as if your solution couldn't make things worse. It seems that way to you now only because the Court has a solid conservative majority. Would you be in favor of this proposal if Alito was the Chief Justice and the Court had a solid liberal majority? What do you think the result would have been in Casey v. Planned Parenthood if Rehnquist had been able to select a panel? (Four justices, including Rehnquist, dissented in Casey and argued that Roe v. Wade was wrongly decided.)

I have NEVER said nor SUGGESTED any such thing so I cannot fathom why you would say this.





One last time before I have to assume you are just not trying to comprehend what i am saying.


My position, MINE, is about outside influence to the Court limiting what the Justices can control. That is WHAT I am focused on.


I will grant that in your hypotheticals justices (CJ) within the the Court already could potentially cause far more damage in a Panel court if they are selecting for bias purposely. that may or may not be worse that what could be done in the current court system (and only game theorizing out many scenarios would establish that) but since it is IRRELEVANT to my point let me grant it to you for this. It is worse.

So stop saying I am pretending things could not be worse.,


Now on to my actual point.


Roberts likes to wax on about how his justices are not slaves to their biases or political affiliations. I think he genuinely believes that. I think, while not perfect he strives for that and expects them to. Thus I feel there is SOME good faith effort towards that.

As long as we have judges with some good faith effort towards that I feel then, AND ONLY THEN, that the panel system empowers them to do things to protect the system that the current system does not.

That the GOP/Federalist society have CURERENTLY found a way to coopt the system and HAVE removed Roberts power to manage a moderate court by pushing activist justices into the mix and the ONLY way to give Roberts back the power he lost is by packing the court and allowing him to create panels.




If you want to assume justices with intent to be bias and to try deliberately to load the current or any panel style court with GOP bias then of course you can (and I am NOT denying any bad outcomes from that so stop pretending I am) and it would and could be bad in either way.

I am trying my best Laggy, ... I am.

Look if Rococo wants to visit certain hypothetical situations and game play them out, I am fine with that. And I am not saying things could not get worse in those.

What i have presented is my view of reality. I am not even saying anyone has to agree with my view. I am just saying based on my view where we are today.


In my view, the GOP/Federalist society has found a way around Roberts and any Chief Justices attempts to keep or manage a court that prioritizes a somewhat, if not perfect approach to the law, where jurists were we know bias absolutely does creep in but should not be the first or even second factor in decision making. I take no issue if someone wants to split that hair and pull up stats on how often or not jurists end up voting along party lines, as it is not really my point.

My point is that up until Mitch's recent moves we felt the system of nominations and the type of jurists NEEDED to pass the confirmation process gave some level of protections most were ok with.


Mitch/GOP/Federalist Society have changes all of that in my view. They are spending an inordinate amount of time shepherding thru certain justices from the ground up, and only forwarding the ones THEY (whether you are or not) are certain will vote party line on the big issues.

So much so that Trump said with not a single doubt, nor any bravado nor sarcasm, that if he got his picks Roe V Wade WOULD fall. He already had his assurances the fix was absolutely in.

If you proceed from that position (as I do), then the current court is broken and will only get more broken with more GOP/Federalist picks, if they continue to dominate the process.

The only fix I see available to that is to Pack the Court, such that thru panel selections a CJ, if so inclined could steer around that. He has no option to do so CURRENTLY and would gain that option in a packed court utilizing panels.


No amount of 'but what if the Cj wants to bias the panels' even belongs in my hypothetical. Simply answer to that is yes that would be bad.

My position is that today the CJ has no method, NONE, to balance things and empowering him with options (even if that means he may use them for bad) does not change at least it opens up an avenue to do good that does not exist, as I see it today.

I am confused, Cuepee. Are you proposing a change in the way the Court works or are you simply noting that, right now, we would be better off with decisions from panels selected by John Roberts?

The latter point is trivial, but i agree with it, and i agree that my hypotheticals do not refute the latter point.

The former point is far from trivial and demands consideration of the sorts of hypotheticals i am posing.

I am saying the current system has been broken or better yet gamed by McConnell/Federalist society in such a way they are ensuring none of the prior norms would balance, even if not in a perfect way, the courts.

I am saying by Packing the Court that would open up options for CJ Roberts or future CJ's to manage around the gaming they have been presented. I am not saying they would use them for good/more balance, but saying they 'could'.

I actually believe most, if not all of the prior jurists who made it thru the nomination process, as ideological as some where did come to the court with a higher sense of obligation that could see them only consider their biases and leanings as one factor amongst many on most issues. It was not the sole nor preeminent factor over riding all else.

I believe that is no longer the case. And just as Trump brought to the role of POTUS a very set ideology and purpose that over rode any norm, any sense of fairness or balance, all in favour of 'winning' a certain outcome, so too are these new justices being groomed and picked for same.

The GOP is setting this up to rule from the bench for decades to come by choosing younger and younger hard core ideologues and they will likely get the next pick too.

Packing the court will be the only remedy for that imo.

I am arguing that your proposal would be an utter disaster in the hands of the wrong Chief Justice. You apparently believe that no amount of power in the hands of the Chief Justice could make the system worse than it is likely to be in the foreseeable future under the status quo, so we might as well give it a whirl.

I think that means this discussion has run its course.

As an aside, I am extremely confident that all nine sitting justices would oppose what you are proposing. But I am guessing that you don't care what they think about your proposed reform.

I get that.

I'ts just never been part of anything I have been arguing and I have not denied it.

The current court can be and is a disaster under the hands of the wrong regular justices. We don't even need for the CJ to be coopted.

But yes, in these complex hierarchical structures (like the POTUS) you are relying on certain norms and desires of the people in charge to be somewhat fair.

. I don't believe that at all so not sure why you keep making up my position when i keep saying and will say so ONCE AGAIN...


- What I believe is that the current system has been coopted by the GOP/Federalist system in a way that they have seized power in the Court away from the other jurists and the CJ. As a result they will be able to direct the Court as a defacto legislative body in a way that tilts the country hard right on certain key issues and denies liberals any real power to change things even when elected.

I KNOW you will read my position above and instead of dealing with that say 'see you think there is no danger in the system you propose', I am not sure why you keep doing that. So far I have avoided my usual tendency to engage differently but honestly if you come back with any moere strawmen I will stop caring about that.



I hope so. Or at least a good faith effort to not strawman me would be nice.
Of course not.

It is just my opinion and I fully recognize others can hold differing ones so what a weird thing to say. I like vanilla but more people like chocolate, do yo u care that you still hold to liking vanilla?

I am not trying to assert nor impose my opinion, just offer it in to the discourse. And i am not alone, not even close, many who study and are respected in this area this also hold the same or similar view. I am sure they don't care others would disagree.

Such a strange view and kind of what i referred to some time back about the lawyers on this site being particularly fussed as if on matters of law no one on this site should hold or stick to differing views from them. As if they believe their views should be considered sacrosanct. So weird this obvious annoyance to differing opinions.

Whether I disagree with you may well be vanilla v. chocolate.

Imposing a process on an institution when everyone in the institution objects to the process is a more serious question. Imposing the process might still be the right move, but there are risks (manipulation of the process, further erosion of public confidence in the institution, etc.).

There is no clearer indication than today's ruling that we MUST expand the supreme court. The question is, how many more judges should President Biden add?