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    First thing we do, let's pack the court

    By jollyroger on Fri, 03/30/2012 - 1:40am |

    As we shuffle along the slough of despond, occasionally raising our tired eyes to the cryptic countenance of Anthony Kennedy, who has been rendered by the vagaries of retirement and  poor health into the emperor of the universe, may we not look, once more, to the imagination of FDR for a remedy.

    Once before an embattled president sought to rally the people to their own salvation, once before "nine old men" placed their flabby bodies athwart the road to progress, once before the salutary interventions of the democratic branches of our government were rendered useless and impotent by hidebound ideologues and partisan shills.

    Then FDR took the court to the edge of the abyss, and showed them what lay at the bottom, if they persisted in their most pernicious error

    The number of judges, nine, is written not in stone but in statute.

    And statute, as you know, is no more difficult to change than yesterday's decor.

    When it became clear that each curmudgeon who would rather see his country fail than to see his president succeed (sound familiar, Rush?) would soon have a companion judge to shove the future up his scrawny ass, the court came around

    A good idea, whose time has come again.

    After the next election, when the people rise up like a wounded beast to savage the repugnants until their flesh is tattered, their blood soaks the ground, and their doctrine is scattered to the winds, lets neutralize these bozos by adding eight more.

    And this time, can we have the modern version of Bill Douglas-young and full of fight, not an ex prosecutor like Sotomayor, or a conciliator like Kagan?

    Comments

    NO, first Depose the Obamanable DESPOTUS.


    by Anonymous (not verified) on Fri, 03/30/2012 - 11:33am

    This sorta scares me, jr., mainly because I don't expect the next person who attempts to pack the court to be a Democrat, but also because FDR's effort was not exactly his proudest moment. It was a power grab, and just because I agree with the guy's policies doesn't mean that I want the president to have that much power.

    It was also a failure. One sobering assessment for you: It dealt FDR the biggest setback of his political life, split the Democratic party, and set the stage for a future era of Republican dominance.


    by Michael Wolraich on Fri, 03/30/2012 - 1:01pm

    Indeed, NO 'Ranklin' DeMan0 Rusevelt redux required!


    by Anonymous (not verified) on Fri, 03/30/2012 - 1:48pm

    Shortly after the radio address, on March 29, the Supreme Court published its opinion upholding a Washington state minimum wage law in West Coast Hotel Co. v. Parrish[7] by a 5–4 ruling, after Associate Justice Owen Roberts had joined with the wing of the bench more sympathetic to the New Deal. Since Roberts had previously ruled against most New Deal legislation, his perceived about-face was widely interpreted by contemporaries as an effort to maintain the Court's judicial independence by alleviating the political pressure to create a court more friendly to the New Deal. His move came to be known as "the switch in time that saved nine." However, since Roberts's decision and vote in the Parrish case predated the introduction of the 1937 bill,[8] this interpretation has been called into question.[9]

     

    I am skeptical that Roberts, and others on the anti new deal bloc, were without any inkling of the shitstorm brewing.

    Without a bit more research, which I yet might be moved to invest, I am coming down on the side that deems the conservatives to have been, if not brought to heel, at least chastened.

    Re:Judicial independence, it's a wonderful thing, but they only have as much as the constitution gives them.  I'm more worried about jurisdictional tinkering, than simple body snatching.


    by jollyroger on Fri, 03/30/2012 - 4:40pm

    My understanding, which I haven't spent much time researching, is that FDR's efforts did buy him some leverage but came at a heavy cost, ultimately splitting his coalition.

    To the main point... Contrary to the cartoon dreams of the right, the American government was not solely produced by a bunch of dead guys in 1793. It's a living institution that owes its character to the traditions and precedents that have grown up around it. There may well be ways within the limits of the Constitution to pack the court. And under the right president and Congress, packing the court would almost certainly lead to rulings favorable to my way of thinking and yours. But packing the court would absolutely not produce a better American government.

    To see that, one need only think back to the years 2000 to 2006 and imagine what the power to pack a court would have produced.

    Or look at Pakistan.


    by Michael Wolraich on Fri, 03/30/2012 - 7:01pm

    Hmm, Pakistan...Wasn't that the venue of this little  bit of intergovernmental branch jostling?:

    :In a popular quotation, President Andrew Jackson is supposed to have said: "John Marshall has made his decision; now let him enforce it!". This derives from Jackson's consideration on the case in a letter to John Coffee, "...the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate," (that is, the Court's opinion was moot because it had no power to enforce its edict).[1]

     

    Full disclosure, the article points out that the court's order was not acrtually directed at Jackson...

    More globally, the court has plunged, full tilt boogie, into politics.  Welcome, Justice Roberts, to the Thunderdome...Nine men enter, seventeen men leave.


    by jollyroger on Sat, 03/31/2012 - 1:33pm

    I was not really sure what Genghis intended by his Pakistan comment when first I saw it. But if is taken as an argument about its Supreme Court, and not just the country's general condition, Chaudry's reinstatement is a pretty strong argument in favor of not taking lightly the idea of another government branch easily being able to meddle with the constitutional makeup of a judiciary.


    by artappraiser on Sat, 03/31/2012 - 1:49pm

    Yes, I imaging Musharraf would have loved to be able to triple the membership overnight..(.I was, of course, riffing on the oft-misunderstood Shakespeare quotation...)

    That said, I believe it would suffice, (as with some horses) merely to display the whip to bring the current craven crop of so-called jurists to brook.


    by jollyroger on Sat, 03/31/2012 - 2:03pm

    Yep, that's what I meant.


    by Michael Wolraich on Sun, 04/01/2012 - 3:57pm

    Of course, there will always be instutional tugging and jostling within a universe of discourse widely defined by constitutional overview.

    I can't speak with authority re:Pakistan, but I'll bet that a removal campaign (bear in mind that removal of a justice is different from pairing him or her with an ideological opposite) of the same sort would have failed here for a variety of reasons.


    by jollyroger on Sun, 04/01/2012 - 5:54pm

     

    Scalia has already lost it, and needs more than just a driver carry his dementia addled self around.

    He spent time deconstructing the Cornhusker Kickback, which is not in the fuckin act before him!


    by jollyroger on Fri, 03/30/2012 - 4:44pm

    The court is already packed. Did you see Tom Toles rant at WaPo:

    ....Over the years the conservative movement has generated a whirlwind of wacky, but it has had its ruthless sober side as well. That ruthless sober side has had a plan.....

    The plan: get the right justices in place and it doesn’t even matter what Congress legislates or the president signs. Any law parts that the court “finds” to be objectionable can be voided in their tracks. And then whole laws. And then whole programs. It doesn’t even take a lot of powerful reasoning. Minority dissents don’t count! It doesn’t take very many people, either. Five will do it! Samuel Alito, a man nobody predicted would change the nation, tipped the balance. Conservatives used to decry judicial overreach, when the gavel was in the other hand. That was then, this is now. And, apparently, here we go.

    It was not enough for the Court to enshrine the Orwellian concepts that Corporations are People and Money is Speech. Those are small potatoes intended to facilitate bending the legislative body to the corporate agenda. No, now we will go for the Full Monty Hall. Behind Branch Number 3 are five justices ready and itching to invalidate the legislature and executive wholesale. The hollowed shell of what’s left will reduce government to it’s “proper role”: lickspittle butler to the rich and powerful....


    by NCD on Fri, 03/30/2012 - 6:14pm

    whirlwind of wacky

    Love the phrase, hate the fact.

    When, as you say, the court is already packed, the remedy is to pack in some sane justices.

    David Cole, your phone is ringing. (Full disclosure, his dad gave me the book award in Con Law.  I am biased.)


    by jollyroger on Sat, 03/31/2012 - 1:39pm

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