Wednesday, February 1, 2017

Follow-up on the possibility of court-packing

This morning's post speculated on the possibility of Democrats responding to McConnell's successful blockade of Scalia's seat by engaging in "court-packing" the next time they get a chance, by which I mean expanding the size of the Supreme Court from 9 to, say, 11 members so that a future Democratic president can appoint enough justices to outvote Gorsuch and nullify the effects of McConnell's gambit.  Remember, the Constitution doesn't specify the size of the Supreme Court.

Of course, there is another real possibility of court-packing that we need to consider.  What if the Court starts striking down Trump's executive orders?  Ginsberg, Breyer, Kagan and Sotomayor probably won't be predisposed towards Trump, and predicting Kennedy can be tricky.  Even predicting Roberts isn't always easy, lest we forget NFIB v. Sebelius, when Roberts saved Obamacare.

FDR responded to the Supreme Court by threatening court-packing when they started striking down parts of the New Deal, but FDR backed down from the plan.

Do you really think Trump would?  Do you think congressional Republicans would restrain him?

Don't rule anything out.

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