If the Democrats win the Presidency and the Senate, and if they are not inclined to betray the country to plutocratic interests (who would be glad to compensate them for the electoral cost of doing so), they will reform the Federal judiciary in some manner next year.

The most widely discussed reform is to “pack the court” by increasing the number of Supreme Court Justices, creating vacancies a President Biden could fill, to counter or correct Republicans’ “constitutional hardball” with respect to replacements for Antonin Scalia and Ruth Bader Ginsburg. Packing the court is a “tit” that conjures an obvious “tat” — Republicans almost assuredly would expand the size of the court next time they held the Presidency and the Senate, in an escalatory game without obvious end. Unfortunately, I think simple court-expansion is the most likely reform, because it retains and enhances the role of the Supreme Court as an existential polarizing issue during election campaigns, which is great for fundraising and preserving incumbency. These escalations are terrible for the country, but good for a politics industry that includes both parties.

However, if a Biden administration wants to do the right thing for the country, rather than for their industry, here is my proposal.

I. Merge the Federal Appeals Court into Supreme Court

The Federal judiciary is currently a three-level hierarchy, with district courts, appeals (or “circuit”) courts, and the Supreme Court. It should be collapsed into a two-level hierarchy. All of the members of the current appeals court would become Supreme Court justices. That would leave the Supreme Court with a Republican skew, but much more balanced than the current Court’s expected 2 to 1 skew. Presuming Amy Coney Barrett is confirmed (and no further turnover), there would be 104 Republican appointees and 84 Democratic appointees.

Cases would still be heard by nine-member panels, but each panel would be randomly selected from the full body of the Court. “Certiorari” petitions would be voted up or down by a majority vote of the full body.

Ordinary appeals would be heard as they are now, within still extant circuits of the now merged Court. These could then be appealed to the plenary Supreme Court.

II. Require a supermajority to strike down laws as unconstitutional

Marbury v. Madison is a live issue again in American politics. Matt Bruenig and Ryan Cooper argue we should simply cease to respect the prerogative claimed by the judicial branch to strike down laws judges deem inconsistent with the Constitution.

I oppose that approach. I do think we want to preserve the supremacy, in practical terms, of a rights-protecting core of law that can only be overridden by a difficult amendment process. However, there should be a lot more deference to a presumption that the legislative branch would have considered and respected the constitutionality of laws when they act. The judicial branch should only be able to strike down laws as unconstitutional when a strong consensus prevails within this now very broad Supreme Court.

I propose the following procedure: Whenever a panel of nine of the reformed Supreme Court hears a case, it’s first duty is to determine whether there is a constitutional question implicated that might render some or all of the law it is asked to apply unconsititional. If at least three of the panel believe there is such an issue, the justices on both sides (if they are not unanimous) would write opinions unrelated to the specific facts of the case before them, solely on the controversy over constitutionality. The full body of the Court would then vote on the question, and the legislature would only be overridden if three fourths of the justices concur that the law was unconstitutional. Once the constitutionality question has been settled, the case would return to the nine-member panel for adjudication consistent with that determination.

This supermajority deference would not apply to executive orders and actions. When the executive and the judiciary conflict, the legislature must decide the issue. Reforming our dysfunctional legislature is a whole ‘nother ball of wax, but we should start now to counter our drift towards an atrophied Congress and imperial Presidency.

III. Eliminate fixed sizes and any notion of “vacancy”

There should be no fixed size for the new Supreme Court. Justices should continue to serve within “circuits”, and new appointments should be allocated to circuits according to which circuit is most understaffed relative to the population served. If, at a given time, the Third Circuit serves an area with 7% of the population, but only 4% of Supreme Court justices are assigned to that circuit, and no other circuit is even more underrepresented, then the next appointment would go to that circuit.

The only position that could ever become “vacant” would be the Chief Justice of the Supreme Court, who would be nominated and confirmed according to the current process, usually from within the existing court (though it might not be constitutional to require that). The Chief Justice would perform her constitutionally prescribed roles, and would remain the administrative and ceremonial head of the Court, but in the business of deciding cases she would just be primus inter pares, perhaps an unusually respected voice but one accorded no special formal privileges.

IV. Limit the number of appointments per Presidential term to enforce near parity of influence

Congress should fix a limit to the number of Supreme Court appointments that can be made in any four-year Presidential term. This would be a number close to ten, if we wish to preserve approximately the current size of the newly merged judiciary. Each President would be free to make appointments until that limit had been exhausted. The Senate might block an administration’s appointments, of course, preventing the full complement of nominees from being seated. In that case, the next administration would be limited to appointing the number of justices seated by the prior administration, plus one. In other words, the number of appointments a President may make per four year term would be the minimum of the fixed limit of ten and the number seated by the prior administration plus one. This would limit any hope of partisan profit in Senate obstructionism. Blocking low-quality appointments would remain fine and wise, but stalling one President’s appointments would give little advantage to the next President’s party.

None of these ideas are, I think, original. I was delighted, for example, to see that Jamelle Bouie favors a randomized Supreme Court. According to Ryan Doerfler and Samuel Moyn, the idea of a supermajority requirement for declaring a law unconstitutional dates back to the 1920s. I don’t know antecedents to the fixed-appointment-schedule, variably-sized court idea, but I am sure they exist.

The reform proposed here would not be “packing the Court” in any partisan sense. It would in fact preserve a narrow Republican appointment majority all the way through a Biden term. Supermajority judicial review would be a strike for judicial modesty that publics of both parties, rendered fearful by negative partisanship, should support. Random draws mean that some cases would be decided by heavily skewed panels, but the scope of each panel’s discretion would be modest (due to the plenary supermajority required for judicial review), and the temptation to very partisan decision-making would be tempered by the fact that other cases will be decided by panels tilted the other way. Judges of neither party could imagine that an exercise of plain partisan overreach could escape reversal or retaliatory escalation by the other side. With “running the ball down the field” for ones own party a prescription for certain stalemate, hopefully justices’ shared interest in coherent and consistent application of the law would prevail and guide the operation of the merged, reformed Court.

In August, interfluidity (hi!) hosted a seminar over Zoom, which I enjoyed very much. The main problem was that I talked too %$@&*-ing much. So, this time, I propose a bit of a different experiment.

I propose we try a “random seminar”. I’ve written a little app to draw names from a metaphorical hat, and then show a timer. Rather any kind of presentation, or the jungle hierarchy of who chimes in, or discretionary moderation, I thought it’d be fun to choose a topic, and let who-speaks-when be random. You can decline, if you don’t know what to say or prefer just to listen. (We’d love to hear from you though!) In parallel, there will be the more ordinary, discretionary conversation that Zoom encourages in the comments.

I’ll rig the game by framing a topic, see the overlong diatribe below. But the written piece is it. I won’t present in any fashion. I’ll just run the clock and be a participant.

If you’re interested, we’ll try on Friday, October 16, 2020 at 4 pm Eastern / 1 pm Pacific / 8 pm UTC.

If you participated last time around, or indicated an interest to participate in the comments there, I’ll spam you with an e-mail with the zoom link later this week. Otherwise, please leave a comment to this post and supply your real e-mail (which won’t be published) and I will add you to the list. Thank you!

Ryan Cooper had a great piece on a “paraparty cooperative” in Rhode Island that sat both on the inside and the outside of the Rhode Island Democratic Party, and worked to reform and substantially replace it.

In the context of our current electoral system, which favors two major parties and makes third-party factionalism largely self-defeating, intra-party and para-party politics are the primary means of effecting change. I am one of those people who detests both American political parties, one for being outright terrible, the other for (in my view, rightly or wrongly) often betraying my values and interests while pretending to represent them, both together for constituting an industry of a piece with American corruption. So for me, this fact that under status quo political institutions, the path to change lies through these abysmal organizations rather than around them is a very bitter pill. Altering our electoral system to encourage the formation of more, better parties is one of my core priorities. But in the meantime, we have to operate through these corpses. Solidaristic paraparty organizations are, I think, the way.

“Solidaristic” is a word. Cooper quotes Cynthia Mendes, one of the primary candidates successfully supported by the Rhode Island cooperative: “They do what the political parties used to do for their candidates…show up with volunteers, a shared platform, training.” Unions famously used to look after the material well-interests of their workers, both in their formal role (collective bargaining, advocating for workers in disputes), but also informally, organizing support for members who met with some mischance, and bringing “locals” together socially in ways that reinforced a tangible political identity. Churches, much more within the Republican than the Democratic coalition, also serve this kind of role. Fraternal organization were once important sources of material security, social identity, and political activism. The “Tea Party” movement — whatever you think of them, and yes, fertilized by plutocratic subsidy — blurred the social and the political and effected massive change within Republican politics. Its successor, QAnon, steals a page from the fraternals and then scrawls Zodiac symbols all over it. As the fraternals used wacky rituals, QAnon uses adherence to beliefs mocked and disdained by the broader culture as a mark and measure of belonging. Those beliefs are mistaken and malignant, but QAnon has become a political force within the Republican coalition in part because its practices engender solidarity. (One hopes solidarity is achievable without insularity. Or at least without batshit lunacy.)

I now donate hundreds of dollars I can’t really afford each election cycle via Act Blue. Sometimes I donate to 501(c)(3) organizations that solicit my funds for various causes. Again, no criticism, no apologies, we do what we can in the world as it is. But increasingly I think of both of these paths as neoliberal activism, in a pejorative sense. Distant campaigns and organizations present themselves to me in a competitive marketplace of professionally-organized virtue, “effective altruism” if you will. My role is analogous to that of a consumer, to spend my dollars wisely, get the most virtue done for the buck. The relationship is fundamentally transactional. We are isolated, atomized, coordinating only through the offerings providers choose to make available. I worry that these donations are somewhat analogous to masturbation in the Proud Boys’ ontology, that they represent a kind of leakage of energy that could be put to more fruitful use. Act Blue has raised more than three billion dollars this election cycle, to be mostly spent within the politics industry. What if some of those billions had gone to solidaristic, activist organizations to move the Democratic coalition? 501(c)(3) nonprofits collect hundreds of billions of dollars in donations annually, many of which do go to politically active solidaristic organizations, those churches that profoundly influence politics within the Republican coalition. The existence of GoFundMe is a sad, grifty, paean to a desperate need for solidaristic mutual aid, which might be levered towards political change that renders such improvisations less necessary.

So, I think that, politically, the way forward is solidaristic paraparty organizations that are overtly political within the two party coalitions. Their role would be to force representation of interests and values currently eclipsed by the cadres who dominate both parties, professionals for whom constituents are purses to shake, attached to voting habits that impose constraints they have become adept at loosening. These “paraparty cooperatives” would adopt both “outside” strategies (primarying incumbents who don’t represent them, sometimes challenging bad general election candidates despite the risk of spoiling) and “inside” strategies (securing roles within party committees, think-tanks, etc while maintaining solidaristic connections to discourage them from entirely “going native”).

If this is of interest to you, please participate in the seminar on Friday!