Expanding or Shrinking the Court: An Old Story

Interesting. Thanks for posting this.

1. On Democrats taking control of the Senate: Doubtful? Only by massive voter fraud.

Definitely, the Republicans pick by Jones' seat in Alabama, but likely don't get Peters' set in Michigan. Republicans 54-46.

Dead meat Republican incumbents by high quality polls: Collins, Tillis, Ernst, McSally, Gardner: Democrats 51-49.

Still undecided, Bollier in Kansas (likely win for Democrats), Warnock in Georgia (likely win for Republicans), Ossoff in Georgia (likely win for Republicans), Bullock in Montana (likely win for Democrats), and Harrison in South Carolina (likely win for Republicans).

So, I put it at 53-47 Democrats, but a 50-50 tie gets broken by Harris if Biden beats Trump.

2. On mechanism for choosing Supreme Court Justices, Congress can choose how that's done by simple majority vote. The laws declaring how many judges there are is usually called a Judiciary Act (there have been several and that latest one can be amended by majority vote of both houses). It's unlikely, however, that this power can be given to a third party, on the same basis that the US Supreme Court will most likely strike down independent election commissions.

Here's an interesting thought: Justices serve for life, but only "on good behavior." This is universally accepted by legal scholars (but has never been an issue before a court) that this means that a Supreme Court Justice must be impeached and removed from office just like a President. But while the Constitution clearly says the President can only be removed after being impeached by a majority of the House and then 2/3 of the Senate, no such language exists in Article 3.

A 'textualist" should read this as meaning that a simple majority vote in both houses of Congress can remove a Supreme Court Justice if they behave badly. What is a lack of good behavior? Abe Fortis resigned before he could be impeached because he accepted $20,000 for life from a convicted felon, though he'd accepted the money before the guy went to jail and there was no connection between the payments and the crime (a violation of state law, not federal, so it's unclear how the former client of Fortis could benefit from the payment, which was made to pay off the former client's enormous legal fees).

I wonder if the Democratic Congress or DOJ can or will look into Kavanaugh's past more closely, or into Thomas's, or into anyone else's? That's their job, actually, to remove Supreme Court Justices who fail to live up to the good behavior standard. Can the SCOTUS rule the Constitution unconstitutional? Maybe, if it abandons textualism and heads in another direction...

Of course, Scalia proclaimed himself a textualist and literally rewrote the Second Amendment, crossing out the words "for the purpose of maintaining a well-regulated state militia" so now it reads that the Government shall not abridge the right of the people to bear arms... and that's it, though Roberts, Gorsuch and Kavanaugh all recently joined the 4 "liberals" (now down to 3) in denying cert in 6 cases involving new state restrictions on guns (including bans on assault rifles and extended magazines for semi-automatic pistols). Maybe they'll rewrite some of that text back into the Constitution right where it's written...

Textualist Scalia, my a**. His decision overturned over 70 years of Supreme Court precedent applied to the states and over 100 years of precedent applied to the feds (the 14th Amendment is deemed to have incorporated all of the other amendments before and since to apply to the states as well as the federal government).

Thomas Jefferson, who wrote the initial Amendments, made clear in one of those anonymous letters to the press (what was up with these Founding Fathers?) that he was especially concerned with making sure that Americans didn't have access to "pistoles," as they were the weapons most often used to kill people in duels or drunken brawls, and had no material military value at all, as far as he could see, but then "pistoles" have evolved quite a lot since 1787...

Term limits would require an amendment to the Constitution.