As long as the Dems have less than 60 votes in the Senate, and aren’t willing to ditch the fucking filibuster, there’s literally nothing they can do.
You can’t reform the court without a Constitutional Amendment since the operation and formation of the court is defined by the Constitution.
So, 2/3rds vote in the House, 2/3rds vote in the Senate, ratification by the States.
and aren’t willing to ditch the fucking filibuster, there’s literally nothing they can do.
That’s the rub.
We have things we can do, but party leadership don’t want to do it.
So when they say they can’t do anything, things like “get rid of the filibuster” come up. And they party has to acknowledge that would work…
They’re just not willing to do it.
Which when that comes back to voters, makes them less likely to vote. Because they feel like even when we have the numbers, it won’t change anything because party leadership wants to have the fight against fascism with at least one hand tied behind their back out of an outdated sense of honor.
We’re fucking fighting fascism bro.
What matters is winning.
If the Republicans take the Senate and White House, they will ditch the filibuster the first day the next Senate leader takes the gavel. Count on it.
The Judiciary Act of 1869 should be amended today, and 4+ justices should be confirmed before January. It’s a hell of a lot easier to confirm them now than it will be for Republicans to remove them from the bench next year. Not easy, mind you, but easier.
There are a few ways to reform the court without a Constitutional amendment:
- Increase the number of justices on the bench. The Constitution sets no limit or requirement for the number of seats, only the process by which they are filled. Nomination comes from POTUS and will need to be “consented” to by the Senate. The number of seats has changed in the past and will change again, just a matter of when and who stuffs the court.
- Establish bounds of “good Behavior” and define means of removal. The Constitution isn’t very cut and dry on the removal process of Justices (with impeachment being reserved for the “President, Vice President, and all civil Officers” the latter group being left undefined), but it does say that the Judges shall “hold their Offices during good Behavior.” Historically impeachment has been the process chosen for removal of Judges, but discussion about Congress’ role in defining “good Behavior” and the means for removal have persisted even into the late 1900s. It is entirely feasible that Congress imposes a code of conduct and simple majority review to remove those found in violation. That code of conduct doesn’t just have to be about taking free vacations, either. It could assess the quality of judgement and find that if you clearly ignored the facts of a case to push your own narrative (such as with KENNEDY v. BREMERTON) you’re in violation.
- Establish a term limit for the Supreme Court and rotate Justices into lower courts when that limit is reached. This one is probably the longest shot as it would depend on whether or not a Justice’s “Office” is literally the Supreme Court or the federal Judicial system as a whole and that interpretation would almost definitely be seized by SCOTUS if Congress even attempted this. But, so long as Congress and the Executive are in agreement on the specific interpretation, SCOTUS’ opinion here can be suppressed. Worth noting, however, that that is very rarely how the US operates.
- Remove Judicial Review. The idea that the courts have the sole authority to determine the constitutionality of legislation passed by Congress is not found in the Constitution itself, but was manifested by the same court that benefits from granting itself that power. It’s the executive branch’s job to enforce the law and both Congress and POTUS are elected to represent the people. SCOTUS’s job is to resolve conflicts involving the States and those who work with them, they are not accountable to anyone and are not elected. A new law ceding the ability to review constitutionality to some other branch would reset SCOTUS’ job to the original intent (a move which I’m sure the 6 textual literalists will gladly embrace).
- Tailor bills to undo recent catastrophic rulings. Congress makes laws. They can make laws that close “loopholes” or perceived ambiguities that SCOTUS uses to derive their rulings. Congress can (and should) undo presidential immunity, Dobbs, judicial review of government agencies’ actions, etc.
These will all take work to achieve, and are very unlikely to even be tried, but because they all address shortcomings manifest outside of the Constitution they can all be implemented without amendment to the Constitution.
As long as the Dems have less than 60 votes in the Senate, and aren’t willing to ditch the fucking filibuster, there’s literally nothing they can do.
*and even the number of democrats minus 50 don’t want to. So even one (plus Harris helping) in the first two years of the term or even two (if Harris helps again) in the second two years of the past term. It’s not like all democrats are unified about the filibuster, most voted to bypass it. You need either more than 60 dems total, or more than 50 dems that support bypassing the filibuster.
Or you know, even a single republican that doesn’t want to be a facist helping to transition the country to authoritarian rule. But that seems less likely unfortunately.
