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Federal Bench and Court Packing

Posted on Thursday, July 7, 2022
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by AMAC, Robert B. Charles
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We hear a lot about the Supreme Court, justices, and judges lately. Rather than “pack the court,” infecting it with political poison and destroying its independence, Americans should understand a few things. Here are five facts few see, and all should appreciate.

First, judges and justices – no matter who appointed them, where they come from, what principles guide them, how activist or not – tend to be serious people. They can be wrong, of course. They can be bullheaded, overzealous, misinformed, harbor false assumptions, and use unsubstantiated facts. The key is their intent. Most judges and justices intend to act properly. 

While deep divisions occur on how to read, understand, and apply laws – at times triggering acrimony – judges and justices know most of their peers aim to do right. That is why Justices Scalia and Ginsberg got along and respected each other despite deep disagreements. They knew each other believed. That is why neither supported court-packing or street violence.

Second, confusion abounds over what is meant by “conservative” and “liberal” as applied to judges and justices. Yes, nominees are selected by political leaning, but judges and justices are expected to think independently, and leave politics behind. Some do, some do not.

Key: A “judicial conservative” is different than a “political conservative.” The first is a student of written text, plain meaning, and the original intent behind laws being applied to facts. They do not substitute their judgment for Congress or the Founders and do not legislate. This may result in decisions “politically conservative” or not.

Similarly, a “judicial liberal” is definitionally activist, assuming wider room for interpretation, filling in statutory or constitutional silences, or saying what they imagine should or might have been said by Congress or our Founders.

So, “judicial conservatives” and “judicial liberals” are not the same as their political counterparts. That said, even serious thinkers sometimes imagine they are applying a judicial philosophy but seem to be acting on political preferences or fears. We are all human.   

Two recent cases make the point. In both, “judicially liberal” justices summoned non-facts in a dissent, revealing political preferences. This happens and has always happened, it’s not new. Justice Sotomayor claimed COVID effects on children that were so absurd that even CNN had to correct her.

Likewise, Kagan recently unleashed fears that East Coast cities will be “swallowed” if the politics of “climate change” cannot win. Not her job, but exaggeration is forgivable and hardly unprecedented.  Justice William O. Douglas, one of the longest-serving justices, was notorious for overstatement. Even Sotomayor notes that “mistakes” are made and corrected over time.

So, justices and judges get political, are wrong, and are affected by fear, as they are human. Usually, they follow a judicial philosophy. Whatever your politics, “court-packing” is not the solution.

Third, a lot happens that the public – usually – does not see until a final decision. The leak of Dobbs was illegal and unethical. Typically, judges and justices work collegially and with respect. They exchange views, think hard, and may be persuaded – if only at the margins. But margins may later become law. Behind the curtain, things would surprise you. They can change their own minds, ask tough questions, and shift views, as thoughtful, respectful, independent thinkers should.

For example, having clerked for a conservative US Court of Appeals judge, his judicial philosophy was clear. Yet just when things seemed clear, he surprised me one day. He asked hard questions about contested rights for someone ending maximum security for life.

The prisoner had committed heinous acts. But he underwent grave indignities daily, including a digital search. He would, it seemed, forever. My conservative judge was concerned about where rights ended. He challenged me to assess whether this prisoner had any rights. Had he lost them all? Was he not still a human, entitled to basic dignity, or had he lost that right too?

My judge was entirely serious, focused entirely on the law, not politics or the offense. He stopped me cold. Is a prisoner ever reduced to the point they are not entitled to human dignity?

In countless ways, behind closed doors, debates like this occur. Discussions guide a decision, making it narrow or broad, split or unanimous, procedural or substantive. All this is hidden from public view but is part of judicial independence.

Fourth, the brilliance of our Founders on the judiciary is the bench is cloistered, separate from politics. It is meant to be independent, not subject to any intimidation – let alone personal threats.

As an aside, that is why the Attorney General of the United States should right now be prosecuting all those who protest at the homes of judges or Supreme Court Justices. The statute is 18 USC 1507.

Politicians – including Attorneys General – are “political.” But they are sworn to uphold laws protecting judges and justices, thus the independent judiciary, those who sit on the federal bench.

Fifth, all this vectors to the recent acts by President Biden and the Democrats. To advocate crass political domination of the High Court, to try softening resistance to “packing the court” with a clutch of Democrat justices, betrays a total lack of understanding. If the move is meant to pervert our “independent judiciary,” it betrays a lack of integrity; it has no place in modern discussion.

In short, the federal bench stands alone and should, even if imperfect, pendulumlike, human, and cloaked in secrecy. It aims to be independent of politics, no matter how short it falls. It works with delays. To upend the federal bench for politics would, simply put, be a disgrace.

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Dan W.
Dan W.
1 year ago

In a recent editorial, Lee Hamilton, a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar at the IU Hamilton Lugar School of Global and International Studies; and a Professor of Practice at the IU O’Neill School of Public and Environmental Affairs said the following:

“In the wake of the leaked draft opinion by Supreme Court Justice Samuel Alito overturning Roe v. Wade and holding that there is no constitutional right to an abortion, there’s been a tidal wave of commentary on the Court’s politicization. Much of it recently has come from the left or from abortion-rights advocates, arguing that the Court has fallen prey to the same partisanship and polarization that have marked American politics in recent decades.”

“I’ve never bought into the idea that the Court is above and beyond politics. Justices can’t help but have their political biases. I think that, at least in the past, they worked hard to put them aside, but doing so completely is an impossible task. They do not check their politics at the front door, although most justices do try to be impartial and to decide a case as the law requires—at least, as they see it.”
 
“In this day, can the Court regain some of the respect it’s lost among Americans at large? A lot, I believe, will depend on the justices’ behavior. They have to be good listeners. They have to be prepared to learn from one another and to possess enough humility to recognize that they don’t have the answer to every question. They need to pay attention to experts in the field they’re considering. Obviously, they should have a deep respect, if not reverence, for the law and for precedence. They should pay attention to what the Congress says in its legislation and its legislative history. And, I would suggest, they need to balance the framers’ points of view with the experiences of the ordinary Americans whose lives will inevitably be affected by every decision they make.”

PaulE
PaulE
1 year ago

RBC,

The desire of the left in this country goes all the way back to FDR, when he found his so-called progressive vision for the country partially stymied by the Court based the limitations imposed on the Executive Branch by the Constitution. So this has been a long sought avenue by the left in this country whenever a Court decision doesn’t go their way. So much for the left’s so-called tolerance of any perspective other than their own, as we’ve seen dozens of times over the years.

I have asked a number of people over the years that have advocated for Supreme Court packing why this is viewed as a correct solution. Their responses have all been remarkedly similar over the years. From the left’s perspective, what they really want from a Supreme Court is not so much rulings based on the Constitution as written (they view the Constitution itself as antiquated and in need of a complete re-write to remove the restrictions and limitations that currently exist on what the government can do to its own people without their consent) or even existing written law, but rather an ultimate rubber stamp of approval to stop any challenges from individuals or states to the progressive vision for America. Thus every time the Surpreme Court issues a ruling that runs counter to the left’s agenda, what you see is talk of court packing popping up as the go to solution.

The sole purpose of the Court is to rule based on the constitutionality of the cases presented to them. It is NOT to legislate from the bench as much as some might desire it to do so. In the two most recent cases that have sent Democrat action groups into a tizzy, one simply ruled Roe was flawed and unconstitutional and the decision of abortion simply reverts to the individual states to settle. In the case of Democrat states, most will see no absolutely difference as those states have either already enshrined abortion in the state’s constitution or will do so within a very short time. Some are even talking about expanding abortion rights right up to the moment of birth. Of most of the Republican states, they will continue to allow abortion for the first 15 or 16 weeks of pregnancy. If a small handful of Republican states actually outlaw abortion completely, there is nothing preventing women from traveling to other states for an abortion. Many woke companies have already come forward and will pay for all travel expenses associated with getting an abortion across state lines. Both cost and acccess factors related to abortion have already been addressed. So all the carefully crafted furor being ginned up by the left is largely to just provide the media with video footage to be aired non-stop leading up to the midterms and beyond.

On the second matter of cc gun permits in NY, the state legislature and the Governor have already enacted a new law that pretty much nullifies the Surpreme Court ruling. Amazing how fast Democrats can move to protect their obstruction of citizen rights when they want to. Anyway, the new NY law lays out a complex and expensive process designed to accomplish pretty much the same thing as the old law (almost no one in the state ever gets a cc gun permit), but removes the vagueness and subjectivity of the old law that caused the Court to strike it down. I expect every Democrat state will quickly copy NY’s new law as a means to prevent having to issue cc gun permits. Again, all the carefully crafted furor over the Court’s decision has already been addressed and solved by the Democrats to accomplish their goal of preventing law abidding citizens from exercising their second amendment rights.

You’ll notice that when Democrats have full control of both Congress and the White House, they never bring a national arbortion rights bill forward or the type of gun confiscation they really want. Instead they always focus on things like Obamacare or Dodd-Frank, that allow them to regulate, manipulate and make tons of money off of the economic sectors they interfere with. The Democrats already have all the campaign donation money from abortions already locked up, so there is no financial upside to them to do anything further from a legislative perspective at the federal level. If anything, should they enact a federal abortion law, they would actually be hurting their campaign donations for future elections, as “the problem” would have been definitely addressed and thus no longer something that would yield new campaign donations.

Morbious
Morbious
1 year ago

No dem judge or politician has integrity because they start their careers with a big lie when they swear to uphold the constitution with hand on Bible. Biden is just more completely amoral than most. They all believe its their right to sidestep the constitution any way they can.

Mario Capparuccini
Mario Capparuccini
1 year ago

Biden and his ilk have no shame and will, like Lenin, do anything to further their power. The constitution is a joke to them so I fully expect them to try to pack the court. We must stand united against them. Vote them out.

John D. Beach
John D. Beach
1 year ago

Political expediency seems to be the only criterion of importance motivating the desire to use majority rule vis-a-vis a determination of simple, tie-breaking constitution (say, a total of 3 to prevent a tie). Democrats defy the concept “In a multitude of counsellors, there is wisdom.” After all, how many, educationally, qualified individuals does an institution need or require in order to validate the power of opinion to establish the validity of law? A court versus an army, for example. The history of humanity, according to Hebrew Scripture, indicates that the concept of personal choice, from the beginning has been liable to the consequences of it, which may be pre-determined, naturally, as a result of human action. IN ORDER TO avoid the consequences or cost of a personal choice, isn’t the substance of the personal choice what must be the consideration of the person making it? The simplicity of there being two different consequences for the alternatives of choice, one having a consequence and the other having none.
Whatever the purpose or moral or ethical qualification of sexual intercourse, the consequence is the issue for those who are “pro-choice” or “pro-life.” There is no legal qualification for sexual intercourse, as a matter of right choice, but there is a legal qualification for sexual intercourse as a matter of wrong choice. So, “choice,” per se, can not be the determinant of the legality of choice.
The law is established and choice must comply with, or obey, the law.
It is a known fact that, if one engages in unprotected, sexual intercourse, one may effectuate conception, or be infected with a disease. The former consequence is that which relates to the subject of a pregnancy, which may be “wanted” or “unwanted.” If the pregnancy is “unwanted,” a consequence which is, (evident from the protests of a majority of women who are “pro choice,”) preventable by the exercise of a personal choice, it would seem that the economy of choice is most, economically, practically and least problematically, realized by the choice to prevent conception, in the first place.
Given the alternative of abortion to terminate an unwanted pregnancy, one is not considering any moral or ethical criteria or implication relative to behavior, anyway, so the simple matter of the economy of personal choice becomes the primary issue and that is the crux of the consideration of the justices in a court, the fundamental economy of choice, not the power of the majority to thwart that economy. 13 justices might represent a greater number of choices, representing “pro-choice.” The effect of those choices would be no more or less representative of the validity of choice, as law, than the tie-breaking constitution of 3 members on a court, the simple majority effectuating the legal consequence of choice.
So, for economy’s sake, perhaps, the congress should abort the Democrat attempt to pack the court in order to prove the waste of liberal practice with respect to the consequences of violation of moral and ethical law.
What is, technologically, discoverable is the consequence of conception, the development of a normal or abnormal fetus, which, apparently, is the factor influencing the qualification of “wanted” or “unwanted pregnancy.” A choice of practicality is made relative to the purposeful benefit or the quality of natural consequence over which one has no control. This condition, not being a matter of choice, rather a consequence presenting a choice, to accept or reject it.
People of faith submit to natural consequence and the determination of an abnormal fetus is not a punitive “judgment of God.”

johnh
johnh
1 year ago

Write your representatives & urge them to leave SCOTUS number of justices at nine and to pass bill to that effect. If Court Packing ever starts , each new WH administration will keep adding justices until we might possibly have hundreds. It is my understanding, that Constitution of US did not specify the number of justices at the start.

johnh
johnh
1 year ago

Protesters are breaking Federal Law by protesting at homes of justices. And AG Garland & Joe Biden must start arresting these people instead of turning their head. And what is definition of soft on crime. An attempt on Kavenaugh’s home was only averted by a few armed guards by his home. Should have never allowed these people to protest at private homes.

Michael J
Michael J
1 year ago

Isn’t this just another form of stuffing the ballot box?
Democrats cheat and sometimes they get caught, but not enough.

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