Justice Breyer recently spoke out against the idea of packing the Supreme
Court by saying it would erode the public's trust in the court and in the
rule of law. Breyer said: "Structural alteration motivated by the
perception of political influence can only feed that perception, further eroding that trust."

Breyer's remarks got me to wondering what would happen if Congress somehow
did manage to pass a bill authorizing additional seats on the court. Such a bill would almost certainly be challenged in the courts and would probably
end up before the very Supreme Court that would be subject of the
legislation. This raises a couple of interesting questions.

1) Is there anything in the law or in Supreme Court guidelines that would prevent the court from ruling on a case involving its own structure?
Judges normally have to recuse themselves from cases where they would have a conflict of interest or perception of bias, and many individual Supreme
Court justices have recused themselves from various cases over the years.
But in this case, it could be argued that all justices on the court would
have a conflict since they would all be impacted if the size of the court changed. So would the court even accept the case? For that matter, has the Court ever accepted a case that revolved around the very structure of the court?

2) Assuming the court accepted the case, how would they likely decide? A literal reading of the Constitution would show that Congress has apparent absolute authority to set limits on the size of the Court, and nothing in
the Constitution either spells out or rules out any criteria for such
changes. So packing the Court, even for purely political reasons, seems perfectly legal and legitimate. But given Breyer's concerns, I wonder if an activist Court having concern over the effect on public perception of a
court being politicized would rule against the law, perhaps on the grounds
that it would compromise the independence of the court. It would be ironic (and probably unlikely) if the conservatives on the court upheld the law and the liberals favored reversal.

As a thought experiment, it's probably all moot since I can't envision any scenario where court-packing would actually pass. But stranger things have happened.

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On 4/10/2021 1:42 PM, Rick wrote:

Justice Breyer recently spoke out against the idea of packing the
Supreme Court by saying it would erode the public's trust in the court
and in the rule of law.  Breyer said: "Structural alteration motivated
by the perception of political influence can only feed that perception, further eroding that trust."

Breyer's remarks got me to wondering what would happen if Congress
somehow did manage to pass a bill authorizing additional seats on the court.  Such a bill would almost certainly be challenged in the courts
and would probably end up before the very Supreme Court that would be
subject of the legislation.   This raises a couple of interesting questions.

1)  Is there anything in the law or in Supreme Court guidelines that
would prevent the court from ruling on a case involving its own
structure? Judges normally have to recuse themselves from cases where
they would have a conflict of interest or perception of bias, and many individual Supreme Court justices have recused themselves from various
cases over the years. But in this case, it could be argued that all
justices on the court would have a conflict since they would all be
impacted if the size of the court changed.  So would the court even
accept the case?  For that matter, has the Court ever accepted a case
that revolved around the very structure of the court?

2)  Assuming the court accepted the case, how would they likely decide?
A literal reading of the Constitution would show that Congress has
apparent absolute authority to set limits on the size of the Court, and nothing in the Constitution either spells out or rules out any criteria
for such changes.  So packing the Court, even for purely political
reasons, seems perfectly legal and legitimate.  But given Breyer's
concerns, I wonder if an activist Court having concern over the effect
on public perception of a court being politicized would rule against the
law, perhaps on the grounds that it would compromise the independence of
the court.  It would be ironic (and probably unlikely) if the
conservatives on the court upheld the law and the liberals favored
reversal.

As a thought experiment, it's probably all moot since I can't envision
any scenario where court-packing would actually pass.   But stranger
things have happened.

Nothing prevents Congress from changing the size of the Court. The last
change was in 1869.

Justice Ginsburg even said "Nine seems to be a good number. It's been
that way for a long time. I think it was a bad idea when President
Franklin Roosevelt tried to pack the court."

--- SoupGate-Win32 v1.05
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According to Rick <rick@nospam.com>:

Breyer's remarks got me to wondering what would happen if Congress somehow >did manage to pass a bill authorizing additional seats on the court. Such a >bill would almost certainly be challenged in the courts and would probably >end up before the very Supreme Court that would be subject of the >legislation.

I don't see why. The Congress changed the size of the Supreme Court
many times during the country's first century, as few as 5 in the
Adams adminstration to a hign of 10 under Lincoln. It also changed the
way the court worked -- early on each justice was assigned to a
circuit and sat as part of the circuit court which was pretty
unpleasant given how hard travel was in the early 1800s. They have
also changed the rules for how cases get to the court. Until 1925 the
Supreme Court had to take appeals from circuit courts via writ of
error, which caused very large dockets and long delays to decide cases
that were often trivial. Until 1988 they also had to take appeals from
state supreme courts. Now nearly all cases are discretionary via writ
of certiorari.

1) Is there anything in the law or in Supreme Court guidelines that would >prevent the court from ruling on a case involving its own structure?

There is no question that the Congress can set the size of the court, so
it's not a very interesting question.

There have also been proposals to set term limits, each justice is
appointed for 18 years so every two years a seat opens up. While
judges are appointed for life, nothing says they have to be appointed
to the same court for life, so ex-justices would presumably be rotated
into one of the circuit courts. I suppose someone might challenge that
but again I don't see on what basis.

Nine justices is fairly low by international standards. The UK supreme
court has 12, the Japanese court has 15, the Indian court 29 with slots
for up to 34, the French Court of Cassation has 85 judges that sit in
panels in six divisions that hear various kinds of cases.

--
Regards,
John Levine, johnl@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

--- SoupGate-Win32 v1.05
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On 4/10/2021 1:42 PM, Rick wrote:

Justice Breyer recently spoke out against the idea of packing the
Supreme Court by saying it would erode the public's trust in the court
and in the rule of law.  Breyer said: "Structural alteration motivated
by the perception of political influence can only feed that perception, further eroding that trust."

Breyer's remarks got me to wondering what would happen if Congress
somehow did manage to pass a bill authorizing additional seats on the court.  Such a bill would almost certainly be challenged in the courts
and would probably end up before the very Supreme Court that would be
subject of the legislation.   This raises a couple of interesting questions.

1)  Is there anything in the law or in Supreme Court guidelines that
would prevent the court from ruling on a case involving its own
structure? Judges normally have to recuse themselves from cases where
they would have a conflict of interest or perception of bias, and many individual Supreme Court justices have recused themselves from various
cases over the years. But in this case, it could be argued that all
justices on the court would have a conflict since they would all be
impacted if the size of the court changed.  So would the court even
accept the case?  For that matter, has the Court ever accepted a case
that revolved around the very structure of the court?

Would the court accept the case? Probably not. But not because of a
conflict of interest. First because "conflict of interest" usually means
that the judge in question has a monetary interest in the case -- he
will gain or lose money or other property based on the outcome.

That isn't the case here. The most the justices have to lose is some
dilution of their power if they share it with 2 or 4 more justices.

Second because there's a general rule: if all the judges have a conflict
of interest and there's no adequate substitute, the current judge stays
on the case because SOMEBODY has to decide.

But I don't think they would accept the case for the reason in question
#2: The Constitution allows COngress to increase the size of the court.
(They can decrease it, too, but only by attrition -- when a Justice dies
or retires, he/she isn't replaced until the number of Justices is <= the
new number chosen by Congress.)

2)  Assuming the court accepted the case, how would they likely decide?

They would decide that the law is COnstitutional, because it obviously is.

A literal reading of the Constitution would show that Congress has
apparent absolute authority to set limits on the size of the Court, and nothing in the Constitution either spells out or rules out any criteria
for such changes.  So packing the Court, even for purely political
reasons, seems perfectly legal and legitimate.  But given Breyer's
concerns, I wonder if an activist Court having concern over the effect
on public perception of a court being politicized would rule against the
law, perhaps on the grounds that it would compromise the independence of
the court.  It would be ironic (and probably unlikely) if the
conservatives on the court upheld the law and the liberals favored
reversal.

As a thought experiment, it's probably all moot since I can't envision
any scenario where court-packing would actually pass.   But stranger
things have happened.

--
I do so have a memory. It's backed up on DVD... somewhere...

--- SoupGate-Win32 v1.05
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On Sat, 10 Apr 2021 13:42:48 -0700, Rick wrote:

Justice Breyer recently spoke out against the idea of packing the
Supreme Court by saying it would erode the public's trust in the court
and in the rule of law. Breyer said: "Structural alteration motivated
by the perception of political influence can only feed that perception, further eroding that trust."

Breyer's remarks got me to wondering what would happen if Congress
somehow did manage to pass a bill authorizing additional seats on the
court. Such a bill would almost certainly be challenged in the courts
and would probably end up before the very Supreme Court that would be
subject of the legislation. This raises a couple of interesting
questions.

1) Is there anything in the law or in Supreme Court guidelines that
would prevent the court from ruling on a case involving its own
structure?
Judges normally have to recuse themselves from cases where they would
have a conflict of interest or perception of bias, and many individual Supreme Court justices have recused themselves from various cases over
the years. But in this case, it could be argued that all justices on the court would have a conflict since they would all be impacted if the size
of the court changed. So would the court even accept the case? For
that matter, has the Court ever accepted a case that revolved around the
very structure of the court?

2) Assuming the court accepted the case, how would they likely decide?
A literal reading of the Constitution would show that Congress has
apparent absolute authority to set limits on the size of the Court, and nothing in the Constitution either spells out or rules out any criteria
for such changes. So packing the Court, even for purely political
reasons, seems perfectly legal and legitimate. But given Breyer's
concerns, I wonder if an activist Court having concern over the effect
on public perception of a court being politicized would rule against the
law, perhaps on the grounds that it would compromise the independence of
the court. It would be ironic (and probably unlikely) if the
conservatives on the court upheld the law and the liberals favored
reversal.

As a thought experiment, it's probably all moot since I can't envision
any scenario where court-packing would actually pass. But stranger
things have happened.

Of course the fairest way is a pool of judges drawn by lot for every
case. But "justice" isn't spelled f-a-i-r is it ?

--- SoupGate-Win32 v1.05
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"John Levine" wrote in message news:s4tlcg$2ceo$1@gal.iecc.com...

According to Rick <rick@nospam.com>:

Breyer's remarks got me to wondering what would happen if Congress somehow >>did manage to pass a bill authorizing additional seats on the court. Such >>a
bill would almost certainly be challenged in the courts and would probably >>end up before the very Supreme Court that would be subject of the >>legislation.

I don't see why. The Congress changed the size of the Supreme Court
many times during the country's first century, as few as 5 in the
Adams adminstration to a hign of 10 under Lincoln. It also changed the
way the court worked -- early on each justice was assigned to a
circuit and sat as part of the circuit court which was pretty
unpleasant given how hard travel was in the early 1800s. They have
also changed the rules for how cases get to the court. Until 1925 the
Supreme Court had to take appeals from circuit courts via writ of
error, which caused very large dockets and long delays to decide cases
that were often trivial. Until 1988 they also had to take appeals from
state supreme courts. Now nearly all cases are discretionary via writ
of certiorari.

1) Is there anything in the law or in Supreme Court guidelines that would >>prevent the court from ruling on a case involving its own structure?

There is no question that the Congress can set the size of the court, so
it's not a very interesting question.

There have also been proposals to set term limits, each justice is
appointed for 18 years so every two years a seat opens up. While
judges are appointed for life, nothing says they have to be appointed
to the same court for life, so ex-justices would presumably be rotated
into one of the circuit courts. I suppose someone might challenge that
but again I don't see on what basis.

Nine justices is fairly low by international standards. The UK supreme
court has 12, the Japanese court has 15, the Indian court 29 with slots
for up to 34, the French Court of Cassation has 85 judges that sit in
panels in six divisions that hear various kinds of cases.

It will be challenged in the courts because that is the litigious world we
live in today. Yes, the size of the court changed a few times during the
first century of our nation, but it has remained fixed at nine justices for longer than the period in which it was changing. There is no question that most of the efforts to increase the court's size are politically motivated,
and the response will be also. We live in a time where people often turn to the courts when they can't resolves issues through political or legislative processes. You may think it is an uninteresting question, but just wait and see what happens if Congress actually manages to pass such a bill.

--

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Jethro_uk <jethro_uk@hotmailbin.com> wrote:

Of course the fairest way is a pool of judges drawn by lot for every
case. But "justice" isn't spelled f-a-i-r is it ?

When it comes to the US Supreme Court (as opposed to all other US
courts), what is fair, even what is a conflict of interest, is up to
the justices of the court to decide individually for themselves. To
paraphrase Abraham Lincoln, the worst way to deal with these issues,
except for all the other ways.


--
Stu
http://DownToEarthLawyer.com

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On 4/10/2021 11:54 PM, John Levine wrote:

(question about changing the number of judges in SCOTUS)

Nine justices is fairly low by international standards. The UK supreme
court has 12, the Japanese court has 15, the Indian court 29 with slots
for up to 34, the French Court of Cassation has 85 judges that sit in
panels in six divisions that hear various kinds of cases.

If ya ask me, setting an even number (no matter how high or low) is just
asking for issues. An odd number doesn't guarantee no split decisions (a
judge could recuse him/herself for some reason or another) but it does
help to avoid them in most cases.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

I think the Right justifiably sees proposals to pack the Supreme Court as Democrats' sour grapes. Democratic administrations and Democratic-appointed Justices over the decades have been unsophisticated in their strategizing. Even calling it "strategizing"
is exceedingly generous. See for example discussion at https://www.nytimes.com/2020/09/21/briefing/ruth-bader-ginsburg-coronavirus-emmy-awards-your-monday-briefing.html .

Conservatives by contrast groom whom they hope will be nominated and have strategized intensely, by my reading, over the years.

As much as I want to celebrate Justice Ginsburg, when I try to do an accounting to justify her (call it what it is) stupendous blunder of not retiring (in that part of the Obama years where the Dems held the Senate), I end up with my head in my hands.
Is it callous to observe: Pride went ahead of the late Justice's fall? I know the stories about how Ginsburg expected Hillary Clinton to win and wanted to retire then and have the first female President appoint Justice Ginsburg's replacement. As the line
goes, closeness only counts in horseshoes. The Justice's age was in fact showing, in my opinion. She wasn't strategizing like she did in the 1970s, with the unmatched-in-brilliance legal maneuver of winning sex discrimination cases on behalf of men's
rights, so Courts would recognize that discrimination on the basis of sex is unlawful in the first place. Amazing. (But for Ruth Bader Ginsburg, where would we be today when it comes to equality in so many important venues, for women and men alike? Her
conservative, rural detractors perhaps need to be reminded that Ginsburg successfully fought for the beer-purchasing rights of boys over age 18 and under 21 in Oklahoma circa 1976. See https://en.wikipedia.org/wiki/Craig_v._Boren. Before this court
decision, girls over age 18 could buy beer, but boys had to be at least age 21. I do not know how this got left out of the second Ginsburg movie.)

What McConnell and friends did with Merrick Garland and Amy Coney Barrett was legal. What happened is sad. I find the whining about it tiresome.

Somewhere in the last year I believe I saw a more mathematical analysis of how the Court in theory, if both parties fought equally hard to hold SCOTUS seats, should not at this point have ended up being dominated by a conservative-appointed majority 6-3.
If I recall correctly, the analysis looked at the Party that held the Oval Office and control of the Senate and retirement decisions made strategically by GOP-appointed Justices vs. those made (or not made) by Democrat-appointed Justices, over the last
several decades.

I saw Breyer's Op-Ed piece. He makes some good points of course. Then again of course the only thing that was important to me was hearing his announcement of his retirement, while the Dems still hold a razor thin Senate majority. Justice Breyer has made
no such announcement.

From where I am sitting, with regard to Court packing: Congress will do what it is going to do. I regret I am issuing such a harsh order (from the peanut seats) to the wonderful Justice Breyer. Mostly I want Democrats to wise up.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

"Elle N" wrote in message news:ecfe843f-680e-43dd-a7c5-264d470a0348n@googlegroups.com...

I think the Right justifiably sees proposals to pack the Supreme Court as >Democrats' sour grapes. Democratic administrations and Democratic-appointed >Justices over the decades have been unsophisticated in their strategizing. >Even calling it "strategizing" is exceedingly generous. See for example >discussion at >https://www.nytimes.com/2020/09/21/briefing/ruth-bader-ginsburg-coronavirus-emmy-awards-your-monday-briefing.html
.

Conservatives by contrast groom whom they hope will be nominated and have >strategized intensely, by my reading, over the years.

As much as I want to celebrate Justice Ginsburg, when I try to do an accounting to justify her (call it what it is) stupendous blunder of not retiring (in that part of the Obama years where the Dems held the Senate),
I end up with my head in my hands. Is it callous to observe: Pride went
ahead of the late Justice's fall? I know the stories about how Ginsburg expected Hillary Clinton to win and wanted to retire then and have the
first female President appoint Justice Ginsburg's replacement. As the line goes, closeness only counts in horseshoes. The Justice's age was in fact showing, in my opinion. She wasn't strategizing like she did in the 1970s, with the unmatched-in-brilliance legal maneuver of winning sex
discrimination cases on behalf of men's rights, so Courts would recognize that discrimination on the basis of sex is unlawful in the first place. Amazing. (But for Ruth Bader Ginsburg, where would we be today when it
comes to equality in so many important venues, for women and men alike?
Her conservative, rural detractors perhaps need to be reminded that
Ginsburg successfully fought for the beer-purchasing rights of boys over
age 18 and under 21 in Oklahoma circa 1976. See https://en.wikipedia.org/wiki/Craig_v._Boren. Before this court decision, girls over age 18 could buy beer, but boys had to be at least age 21. I do not know how this got left out of the second Ginsburg movie.)

What McConnell and friends did with Merrick Garland and Amy Coney Barrett
was legal. What happened is sad. I find the whining about it tiresome.

Somewhere in the last year I believe I saw a more mathematical analysis of >how the Court in theory, if both parties fought equally hard to hold SCOTUS >seats, should not at this point have ended up being dominated by a >conservative-appointed majority 6-3. If I recall correctly, the analysis >looked at the Party that held the Oval Office and control of the Senate and >retirement decisions made strategically by GOP-appointed Justices vs. those >made (or not made) by Democrat-appointed Justices, over the last several >decades.

I saw Breyer's Op-Ed piece. He makes some good points of course. Then again >of course the only thing that was important to me was hearing his >announcement of his retirement, while the Dems still hold a razor thin
Senate majority. Justice Breyer has made no such announcement.

From where I am sitting, with regard to Court packing: Congress will do >>what it is going to do. I regret I am issuing such a harsh order (from the >>peanut seats) to the wonderful Justice Breyer. Mostly I want Democrats to >>wise up.

I haven't seen the article you referenced about how the court should have
ended up closer than 6-3 if both sides had been equally strategic in holding onto seats. But there is one point I haven't seen mentioned anywhere which
is that the Democrats may have blundered by the way they went after Robert
Bork back in the 1980s. When the Bork nomination failed, Reagan nominated
the somewhat younger Anthony Kennedy who was approved easily. Bork was
already 60 when nominated but Kennedy was a good nine years younger.
Admittedly Kennedy was more of a moderate than Bork and probably ruled differently on a number of cases (though we will never know that for sure - after all, Souter, Stevens and Blackmun all became much more liberal after
they made it to the Court). But it is interesting to note that Bork died
in 2012 in the middle of Obama's two terms. Assuming his lifespan would
have been the same had he actually made it onto the Court, Obama would have been able to replace him easily. But the much younger Kennedy remained on Court until Trump's term when he decided to retire.

Nowadays, I can't imagine any president appointing a Supreme Court justice
over the age of 60. Since the Bork nomination failed, the average age of successful Supreme Court nominees is around 52 and Trump's three nominee averaged exactly 50. Ironically, the last failed nominee - Merrick
Garland - was 63, the oldest nominee since Lewis Powell, which sort of
proves your point that democrats are less strategic in their thinking about nominees than republicans.

--

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Mike Anderson <prabbit237@gmail.com.com> wrote:

John Levine wrote:

(question about changing the number of judges in SCOTUS)

Nine justices is fairly low by international standards. The UK
supreme court has 12, the Japanese court has 15, the Indian court
29 with slots for up to 34, the French Court of Cassation has 85
judges that sit in panels in six divisions that hear various
kinds of cases.

If ya ask me, setting an even number (no matter how high or low)
is just asking for issues. An odd number doesn't guarantee no
split decisions (a judge could recuse him/herself for some reason
or another) but it does help to avoid them in most cases.

I don't know if it makes a difference in this context. but psych
studies show that the optimum size of a group to be able to get work
done is between seven and nine.

--
Stu
http://DownToEarthLawyer.com

--- SoupGate-Win32 v1.05
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