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Tuesday, September 22, 2020

The Segall Court and a stopping point to Court-packing

As I was completing my prior post on the time passing for Eric Segall's eight-person partisan-divide Court, I thought of a way to save that plan and to put a check on infinite tit-for-tat Court expansion through mutual disarmament: Expand the Court to twelve with three Democratic appointees, then run the Segall plan with a 6-6 partisan divide.

Posted by Howard Wasserman on September 22, 2020 at 11:28 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink

Comments

6-6 is a bad deal for Republicans. The Democrats will continue to vote as a bloc while the Republicans, who have much more diverse approaches to legal analysis, will be always subject to have one or two picked off, creating Democratic majorities on most of the contentious high-profile cases.

Posted by: MorrisonHotel | Sep 24, 2020 2:23:02 PM

Maybe we should be like the French or German supreme courts and have 100 justices resolving 20,000 cases per year? Just kidding.

Posted by: comment | Sep 22, 2020 10:13:04 PM

To follow up on my last post (and sorry to triple post),

If you have 12 justices, of which 9 decide any given case, there are 220 possible combinations--which means there are 220 different courts.

And with decisions banking on what combination you get...yeah...I don't see how this regime maintains any legitimacy for very long.

Posted by: thegreatdisappointment | Sep 22, 2020 5:38:23 PM

How about the supreme court can't review decisions that have been decided en banc?

The supreme court can only review decisions that have been reviewed by a three-judge court (or other less-than nine judge court), but not by an en banc panel (or a state supreme court).

Posted by: No more reversing en banc panels | Sep 22, 2020 5:36:26 PM

I don't foresee how you'll be able to rotate 9 of 12 justices to make decisions and have those decisions maintain legitimacy.

Posted by: thegreatdisappointment | Sep 22, 2020 5:31:44 PM

Get ready for 6-6 ties on all cases for at least a generation.

Posted by: thegreatdisappointment | Sep 22, 2020 5:29:58 PM

I think we have that reified system, if only because of first-past-the-post and winner-take-all in the Electoral College. That could change with certain structural and voting changes, but those changes are unlikely. Segall's article, which is linked in my review, is nuanced about this point--he argues it would have a moderating effect on appointments.

Posted by: Howard Wasserman | Sep 22, 2020 2:49:51 PM

... which, unfortunately, assumes that the respective establishments of the two parties (or even factions within those parties coherent enough to force the occasional outlier) represent:

* The entire range of appropriate justices

* The entire range of jurisprudence

* The entire range of sufficiently-popular-to-merit-attention political opinions/allegiances of the electorate

In short, it reifies the two-party system as a near-constitutional matter. Having lived/been stationed in Oklahoma, DC, and Chicago: Not so much.

Posted by: C.E. Petit | Sep 22, 2020 12:19:22 PM

I am open to this idea. After all, we started with an even number, six.

Posted by: Dan Cotter | Sep 22, 2020 11:35:13 AM

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