Category: Supreme Court

Packing the Court vs. Ending the Filibuster?

The U.S. Capital Building and The U.S. Supreme Court

In response to the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, there have been proposals to eliminate the filibuster rule and also to enlarge the number of justices on the Supreme Court. The Centrist Independent Voter opposes expanding the size of the Supreme Court and getting rid of the filibuster rule in the Senate. Our feeling is that packing the Court would result in an endless cycle of Court expansion as party control shifts over time. Similarly, the end of the filibuster would mean that every time the planets aligned with one party in control of the House, Senate, and the Presidency, major legislation would be enacted or repealed, reversing course on a limitless number of issues.

But what if we had to choose?

Suppose we could either hold onto a stable size for the Court or hold onto the filibuster rule, but not both. What should we choose? In that case, my preference would be to keep the Court stable and move toward simple majority rule in the Senate.

The Role of the Court as a Safety Valve, Securing the Consent of the Governed

The current conservative Court is taking the position that the Court’s previous decision in Roe was constitutionally unjustified. They argue that the decision made by the previous Court was a legislative prerogative, and not up to the Court to decide based on a constitutional right to abortion.

The current Court is not taking a position on the policy issue; it is just saying that it is not up to the Court to decide this issue. I would have preferred that they let the precedent stand, but their argument is not unreasonable. But what if the federal legislature is institutionally unable to reflect popular sentiment? For roughly three quarters of a century, the Court has acted as a safety valve. In Brown v. the Board of Education, Roe v. Wade, Griswold v. Connecticut, Lawrence v. Texas, and in Obergefell v. Hodges, the Court has stepped in to resolve issues on which majority opinion, in most if not all of these cases, would have been frustrated by the filibuster rule. Whatever one thinks about the constitutional reasoning in these cases (and I am not disputing that reasoning), the Court served a useful purpose in securing the consent of the governed by reflecting the popular will. This may not be the proper role for the Supreme Court, but it can be argued that it was a useful one.

The Case Against Expanding the Court

There is nothing in the Constitution that dictates the size of the court. It has varied over time from as few as 6 to as many as 10. Re-establishing a liberal court would require increasing the Court to 13. If this were done we could expect that every time the House, Senate and Presidency were all controlled by the same party the Court would be enlarged again without limit. The notion of a massive Supreme Court, flipping every few years in its interpretation of the Constitution is enough to persuade most people that this would be a bad idea.

The Case for Abandoning the Filibuster Rule

If we reject enlarging the Court and the Court refuses to take on the role of providing a backstop when the legislature seems institutionally incapable of representing the will of the governed, what can be done? The obvious answer seems to be reforming the legislature to make it more responsive to the popular will. The simplest solution appears to be going to strict majority rule in the Senate.

The Case Against Abandoning the Filibuster Rule

The case against abandoning the filibuster rule is similar to the case against enlarging the Court. When the House, the Senate, and the Presidency are all controlled by the same party we could expect to see 180 degree turns in public policy, with old legislation being repealed and new legislation being added, reversing the course of public policy. Given the need for stability in public policy, particularly in areas that require long range planning, this seems like a recipe for disaster. To understand the reluctance of some Democrats for eliminating the filibuster one only has to contemplate a national prohibition on abortion.

How Often Does One Party have Total Control of the Federal Government?

Just how dangerous would it be to end the filibuster rule? Partly this depends on the frequency of single party control over the federal government. Unfortunately, single party control, for brief periods of time, is extremely common. Because so many people just vote the party ticket of the President they are choosing, we often have single party control upon the election of a new President. Split ticket voting in Presidential election years is relatively rare and stable at about 4%. The danger of frequent legislative flip-flops is, therefore, all too real.

So Why is Abandoning the Filibuster Superior to Packing the Court?

Abandoning the filibuster rule is better because it can be beneficial if it is done as a half measure. Packing the Court only changes the outcome if it establishes a new majority. Reducing the required vote for cloture (closing off debate and voting) to 55 Senators rather than the current requirement of 60 could yield benefits without losing the benefits of the filibuster rule altogether. Nothing is sacred about the 60 vote limit. In the past, the rule was reduced from 67 Senators to the current 60. Setting the threshold at 55 could allow some legislation, on which there is a measure of bi-partisan support, to get through the Senate. I am thinking that, with a little electoral luck, narrowly crafted legislative protection for the rights embodied under Roe could meet this test. I also think that stronger legislation on universal background checks, age restrictions on the purchase of assault weapons, and better enforcement of red flag laws might also meet this test. It is also the case that 55 Senators, from one party, might be achieved occasionally but not so often as a simple majority. This all makes for a more responsive legislature, but hedges, at least a little, against frequent policy reversals.

What can be done to make this happen?

The reason why the filibuster persists is that both parties recognize the danger of occasionally handing that kind of power to the other side. I don’t think that is likely to change soon, although the concern would be alleviated by the presence of a large number of moderate Republicans and Democrats in the legislature. Putting aside wishful thinking about a less polarized political environment, our best hope is that both sides will see the advantage of weakening, but not abandoning, the filibuster rule and leaving the Court alone. It allows both sides to believe that they might ultimately prevail and mitigates the outcome if they fail to do so.

Legislative Resolution of the Debate on Abortion Rights

Legislative Solution to Abortion Rights

The Centrist Independent Voter policy position on abortion rights is that if Roe/Casey is overturned, we should attempt to re-establish those same rights legislatively. The position is also that we should not take that opportunity to either expand or contract those rights.

Susan Collins(R) and Lisa Murkowski (R) have jointly introduced legislation in the Senate to accomplish exactly this objective. This link also provides their defense of this legislation.

If the Democrats in the Senate were to embrace this proposal, they might well be able to muster the votes necessary to overcome the filibuster. In addition to Collins and Murkowski, Shelley Moore Capito (R) is pro-choice. I believe seven more Republicans can be found who would settle for this legislation rather than risk having the Senate rules changed to eliminate the filibuster and seeing the Democratic version of this legislation pass and seeing the Court packed with liberal justices.

Remember some conservatives objected to the Roe decision because it represented an overreach by an activist court rather than because of the content of the decision. Reversal of Roe combined with a legislative answer to the issue constitutes victory for these judicial conservatives.

Democrats who want to use this issue to end the filibuster and pack the Court should remember that they will not always be in control.

Democrats who turn down this compromise, because they hope to gain a political advantage in the mid-terms, should remember that their refusal to even consider the compromise will hurt them. They should also remember that while support for abortion rights similar to those laid out in the Collins/Murkowski legislation is widespread, support for unlimited abortion rights is far less popular.

A final reason for Democrats to embrace the Collins/Murkowski bill is that it would make a Supreme Court decision on the issue currently before the court moot. If the Collins/Murkowski bill became law, the Mississippi law before the Court would clearly be illegal. The Court does not issue decisions if the issue is moot. That would address the concern that the Alito draft decision, if adopted, would set a precedent that would undermine other court decisions such as contraception and same sex marriage rights. If the Democrats wait until the Supreme Court delivers their final decision they will have missed this opportunity.

Draft Abortion Decision

Supreme Court Draft Decision

I just finished reading the introduction to the draft Supreme Court decision on the Mississippi abortion law. I highly recommend reading it before leaping into the debate on this issue.

The Centrist Independent Voter position on Abortion is in our policy position section.

I don’t agree with the conclusions presented in the introduction. I do think that the Court did have the choice of holding that Roe and Casey were settled law and that therefore the Mississippi law was unconstitutional. They could also have decided that, in line with Casey, the Mississippi law did not constitute an “undue burden” and was therefore acceptable.

How Broad are the Implications of this Decision, if Adopted?

I do agree with the author that this draft decision, if adopted, would not spell the end of other Supreme Court decisions on sexual relations, contraception, and marriage. All of those decisions addressed due process and individual liberty in situations that did not potentially affect an “unborn life.”

Where Do We Go From Here?

If this decision is adopted, the correct course of action is not packing the Court or eliminating the filibuster. Packing the Court will only lead to an ever larger Court, as each side gains enough power to add more Justices who favor their views. Breaking the filibuster means national legislation that will flip back and forth as each side gains a legislative majority and the Presidency.

The correct course of action is, first, to get busy at the the state level and pass legislation that secures some level of abortion rights. On this effort a willingness to compromise would be helpful. The second course of action is for Democrats to realize that they could have a solid 60+ majority in the Senate, if they became a true center left party and ignored the wishes of the progressive wing of the party. Once that is accomplished, we can have a national legislative compromise on the issue of abortion that securely establishes a reasonable degree of protection for abortion rights. This will probably resemble a legislative version of Roe.