Rebalancing the Courts

Today I'm going to do an early round-up of some tweets about the Supreme Court, because there's all this talk about "court packing," which has been ridiculous from the get-go. First, from Bill Murphy Jr.:

Ever wonder why the Supreme Court was set at 9 justices in 1869? What was magic about 9? Why not 11? Why not 7? It's because in 1869 there were 9 federal appellate circuits.  Today there are 13 circuits (12 regional + the court of federal claims).

Next from Jesse Lee, a former Obama and Pelosi advisor:

This idea that Supreme Court nominees can only be confirmed when the same party controls the Senate and White House is the most radical upheaval of the Constitution on the Judiciary in history, and it’s the official GOP position now.

Then this from Sam Berger, another former Obama advisor, reminding us that Republicans have been packing all of the courts for more than the past five years by denying Obama appointments:

Conservative court packing in one chart:

@OverUnderClover put that into words:

Stealing 130 judges and one Supreme Court seat from the first black president to elect nearly universally white judges. That's court packing: Not expanding the court to restore balance.

And attorney Adam Parkhomenko put it this way:

It must crack Mitch McConnell up that he can try to eliminate three seats from the DC circuit, steal one SCOTUS seat and ram through another and still get the press to make court packing an issue for Biden. Good job, everybody!

Then we get into a couple of multiple tweets and threads in response to National Review writer Varad Mehta, who had tweeted that "Republicans lived with the Warren Court without pushing court-packing." First, a quick one from Alyssa Leader who wrote,

Truly, when you say Republicans “put up with the Warren court” you’re just outright admitting that you felt/feel like interracial marriage, school integration, right to counsel, public defense, etc. are things one has to suffer. That doesn’t reflect well on you!

Second, a thread from @democracydiva, who wrote:

LOL. Every single thing Republicans have done in the last fifty years has been in response to the Warren court recognizing that white men aren't the only ones with rights. They created an entire cottage industry of dark money organizations to fund their decades-long judicial takeover.

And they were extremely successful. Because they shattered every rule and norm along the way, and taught their constituents that nothing matters except conservative judges. There is no other Republican policy priority. They have a plan for literally nothing. Only courts.

Small government? Less spending? Strong military? Trump has given them nothing on these traditional Republican issues. But they cling to him. Because only judges matter. And on judges, he and McConnell have succeeded. Because there is no rule or norm they're not willing to blow up.

Mitch McConnell refused to let Obama do his constitutional duty to nominate judges. He blocked more than 100 judgeships from being filled, so that a future Republican president could fill them instead. Not to mention leaving a SCOTUS vacancy open for an entire year.

Judge Barrett already sits in one of these stolen seats. She sits on a federal circuit court in a seat that Obama nominated a Black woman for. Mitch blocked that nomination, and then under Trump, handed that seat to Barrett instead.

If you haven't read the 1971 Powell memo which outlines the exact plan for corporate takeover of the courts that Republicans have followed for fifty years, miss me with your "Republicans have never packed the courts!" bullshit. There's more than one way to take over courts. And if you need a recent example, how about the 2017 Calabresi memo proposing a massive court-packing plan specifically for "undoing the judicial legacy of President Barack Obama"?

This is who controls our judiciary. And they have the gall to tell us we are reactionary and extremist and breaking the rules, when they have openly, publicly broken our democracy because our Supreme Court dared to recognize that civil rights exist for more than just white men.

So instead of letting the political media demand an answer from Biden and Harris on a hypothetical that is fully dependent on what Senate Republicans do over the next two weeks, let's demand answers from the people who have spent 50 years ensuring that we are a democracy in name only.

And demanding answers means taking this conversation off Twitter and into the streets and the halls of Congress. It means calling your senators every day and demanding that they stop this sham SCOTUS confirmation process.

This unprecedented rush to confirm a justice in the middle of an election that millions of people have already voted in is in service of one thing: ensuring there are 5 votes to kill the ACA and our access to healthcare amidst a pandemic. The Court hears that case on November 10.

So it's time to act. There are digital rallies, call-in days, socially-distanced-and-masked protests, and more activities every day. The hearings start Monday. We have no time to lose. Act now. Act today.

And finally from fiction writer Courtney Milan, who was also a law clerk to Sandra Day O'Connor. She had this to say:

I wish more people would talk about the fact the Warren court realized that US racism was the starting point for Nazis and decided to do something about it, and that Scalia’s “originalism” was in response to this.

Scalia’s originalism argument asserts things about the role of the Courts that really do not seem to pass historical muster. “When this country was founded, nobody thought of doing impact litigation! That’s not what courts were for!”

This seems wildly ahistorical, given that English abolitionists specifically sought out court cases to establish abolitionist principals, a thing that the founders were DEFINITELY aware of, since abolitionists in the US attempted to use the case for the same principle. (“The case” was Somerset v. Stewart, and did it freak out the South to imagine that perhaps their slaves might be taken away by courts? ABSOLUTELY.)

One of the things I’ve learned writing historical romance and reading, you know, historical texts, is that a lot of stuff the originalists say are just plain full of shit. They just made up this version of old-timey England that the founders envisioned.

Time to get a spine and some words of your own about this, Democrats. Don't let Republicans frame it as "packing" or let media use their words. Correct them. Republicans have been packing the courts full of completely incompetent ideologues for years. It's time for the courts to be rebalanced, for the courts to reflect what this country looks like. (And I'm in favor of impeaching as many of those appointees as possible, too.)

Oh, and I never would have thought I'd share a video of Pete Buttigieg, but this clip of him ad-libbing an explanation of why constitutional originalism has no validity is pretty great.