Professor of Law,
@vanderbiltlaw
; Director, Vanderbilt Policy Accelerator. Formerly:
@ewarren
and
@SenWarren
. My newest book "Why Flying is Miserable"
SUPREME COURT REFORM 101: As a law prof who came up w/ Scotus reforms discussed by multiple pres candidates, I often get asked what proposal is best. So for the next week, I’ll discuss one proposal a day. Today’s topic: expanding the size of the Court. A thread! 1/
Remember when people criticized
@ewarren
for saying big tech needed to be broken up (back in March 2019)?
Now DOJ is suing Google and FTC is suing Facebook.
SUPREME COURT REFORM 101: Class 3, the “balanced bench,” or the 5-5-5 plan, first outlined in
@voxdotcom
. You might know it because
@petebuttigieg
discussed it quite a bit during the Dem primary last year. 1/
Proponents of court expansion stress this point.
@aaronbelkin
to
@elainejgodfrey
“In a free and fair system, the Republican Party cannot win as often as it does. If you undo the cheating, either they lose or they de-radicalize.” 10/
If, for whatever reason, you find yourself thinking about reforming the Supreme Court today…here is my series outlining the options and their pros and cons.
A THREAD OF THREADS!
Class 1: Court expansion:
SUPREME COURT REFORM 101: As a law prof who came up w/ Scotus reforms discussed by multiple pres candidates, I often get asked what proposal is best. So for the next week, I’ll discuss one proposal a day. Today’s topic: expanding the size of the Court. A thread! 1/
How? Ensure right to vote, end gerrymandering, etc. – w/o courts striking them down. This could halt democratic backsliding & fulfill democratic ideals. Other D priorities will also be less in danger & possible to make progress: repro rights, climate change, workers’ rights. 8/
Important new article from
@qjurecic
&
@Susan_Hennessey
. Key line: "We have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court."
Option 2: Expand the size, and there’s a % chance D’s get the Court for a few years then lose it if R’s retaliate, and then get it back etc. – BUT ALSO a % chance R’s won’t do that, AND a D president, Congress, and Court could save American democracy in the meantime. 7/
Some argue court expansion will hurt D’s policy agenda & political capital, but fail to note that expansion could build political power, force R’s to change & doing nothing virtually guarantees that many D priorities, incl voting, will be struck down. 9/
R’s have suppressed voting to stay in power & broken other democratic norms. Conservative judges have ratified some of this. Doing nothing means the anti-democratic spiral continues (bad for America) and makes it harder for D’s to win (bad for D’s). 6/
SUPREME COURT REFORM 101: Class 5, supermajority voting requirements. The idea is that Congress could say that for Scotus to strike down a fed law, there needs to be 6, 7, or 8 votes out of 9, not just majority rule. 1/
A wealth tax is extremely popular - even in states that one might not normally expect. It also raises trillions in revenue and is an important policy for addressing economic inequality.
Some worry court-expansion will lead to tit-for-tat retaliation. Perhaps, but game out the scenarios if an appointment happens. Option 1: Do nothing, and there’s a 100% chance of a 6-3 conservative court. Not great for D’s or democracy.
@aaronbelkin
5/
Some argue that the longevity of 9 and FDR’s failed attempt create a constitutional norm against changing the size. But others note that changing it is a fair response to norm-breaking on the Republican side on core democracy issues. 4/
I am honored and excited to start the new Vanderbilt Policy Accelerator for Political Economy and Regulation. We plan to cultivate, grow, and spread research, education, and policy ideas—and at a pace that aligns with the urgency of today's challenges. 1/4
Today VU announced the launch of the Vanderbilt Policy Accelerator for Political Economy and Regulation, an effort led by
@VanderbiltLaw
's
@GaneshSitaraman
to advance research, education and ideas.
Learn about VPA, which is funded by Discovery Vanderbilt:
This is also a BIG exception for tit-for-tat retaliation theory. It’s possible, yes, but it’s also possible one side will win, and there will be a new equilibrium. That outcome, realignment, is a very common one in U.S. history. 13/
Still, you ask: are there other ways to reform the Court, outside of adding justices, even if it means reducing the upsides for D’s? Stay tuned for further threads. 14/end
You'll want to check this out -- not a penny of new taxes on the middle class, and at the same time, more money for families who won't be paying premiums and deductibles.
Today, I’m releasing my plan to pay for
#MedicareForAll
. Here’s the headline: My plan won't raise taxes one penny on middle-class families. In fact, we'll return about $11 TRILLION to the American people. That's bigger than the biggest tax cut in our history. Here's how:
Is it Constitutional? Almost certainly. The Constitution doesn’t fix the size of the Court. It’s changed multiple times & has been at 9 members since 1870. The most recent attempt to change it was in the 1930s when FDR tried to expand the size of the Court, but failed. 3/
Sidebar: Major political realignments in US history generally feature Court-battles. Jeffersonians v. Federalists. Civil War Era court-changes to prevent Southern power. FDR’s attempt. This could be that moment for R’s or D’s. 12/
SUPREME COURT REFORM 101: Class 2, term limits.
@RoKhanna
@RepJoeKennedy
@DonBayer
have introduced a bill on 18-year terms, supported by
@fixthecourt
. This idea has pros, but it also has underappreciated drawbacks. 1/
Many D’s are making the case for expanding the size of the Supreme Court in response to McConnell’s 1st blocking Garland and now pushing forward on ACB. A good overview from
@danpfeiffer
2/
Others make the point that court expansion in conjunction with other reforms would be transformative and couple well together. This would likely mean a political realignment if D’s did it.
@davidplouffe
11/ ttps://twitter.com/AaronBelkin/status/1309368853076606977?s=20
Are you irritated by airline point changes?
I explain how it all works
@TheAtlantic
If you want to know more, my new book Why Flying Is Miserable is now available for pre-order!
Whether you like this plan or not,
@petebuttigieg
brought important attention to court reform last year (& I say that not just because he picked up my and
@danepps
idea). If you like this series, please follow & r/t. Tomorrow: we tackle the lottery or panel approach. 14/end
Hi Senator! This isn't quite right on how that proposal would work. (It's really about taking panels of judges from the court of appeals). I'd be happy to brief you & your staff on it.
@danepps
and I discuss it in detail in this paper:
On the left and right, there is rising interest in industrial policy. My new
@TheProspect
piece argues that industrial policy has been with us since the Founding – and there have been four traditions in American industrial policy. 1/9
The idea: expand size of the Court to 15. Require there be 5 from D-list & 5 from R-list. Those 10 pick the other 5 from the courts of appeals to serve for one year. No agreement and the Court can’t sit that year. Me &
@danepps
explain
@yaleljournal
: 2/
Over
@ForeignAff
, I argue that the United States needs an economy, a society, a democracy, and a foreign policy that can prevent these challenges when possible and endure, bounce back, and adapt when necessary. We need a Grand Strategy of Resilience. 2/2
The good: It reduces the power & import of any individual nomination, so there aren’t death-matches over and over again. It could turn down the temperature. (Also good b/c Congress can focus on other things).
@voxdotcom
3/
My new book, with Anne Alstott, is now out! Public options are all around us - from public swimming pools to public libraries to public schools. Check it out!
If you're interested in becoming a law professor and focusing on Networks, Platforms, and Utilities, we're hiring an academic fellow at Vanderbilt!
Application open now--
The Vanderbilt Policy Accelerator (VPA) is excited to release
@MorganRicks1
@LevMenand
's new paper and policy brief. They show how to rebuild banking law & offer an actionable 10-pt plan to make banking more like a public utility. A must read!
Tomorrow is the 15th anniversary of the collapse of Lehman Brothers.
Today, in a
@washingtonpost
op-ed and a new academic paper and related policy brief,
@LevMenand
and I argue that our financial system still depends on government rescues to avoid catastrophic meltdowns. 1/
It recognizes partisanship is relevant, but seeks to force justices to find compromises on personnel and indirectly on outcomes. Won’t partisanship mean the Court will deadlock? Some might argue that’s a virtue. Court with less power serves democracy-values. 5/
It reduces power of individual justices, so advocates aren’t always pitching arguments to the idiosyncratic views of a Justice Kennedy, for example. See
@ishapiro
on the “Kennedy Brief” 4/
SUPREME COURT REFORM 101: Class 4, Should Scotus feel the Bern?? The lottery or panel approach, mentioned by
@berniesanders
during the campaign last year.
@Robillard
1/
"The Senate Armed Services Committee on Wednesday voted to require the Pentagon to rename military bases and other assets named after Confederate generals....Sen. Elizabeth Warren offered the provision"
Very excited
@YaleJREG
is hosting a symposium on our new book, Networks, Platforms, and Utilities. We're grateful to all the amazing scholars who are contributing. The introduction, w/
@MorganRicks1
@LevMenand
@shelley_welton
, is available now!
SUPREME COURT REFORM 101: Class 8, The BIG reveal – I said at the start that the goal of this series was to help answer the question, what is the best Supreme Court reform? And we’ve now discussed a bunch of proposals. 1/
I'm honored to be joining the Biden-Harris Administration as Deputy Director of the National Economic Council. We have much to do to get through this crisis and create a stronger and fairer economy -- and I'm excited to get to work alongside this great team.
The coming era is likely to be one of health crises, climate shocks, cyberattacks, and geoeconomic competition. What unites these seemingly disparate threats is that each is not so much a battle to be won as a challenge to be weathered. 1/2
"A reader of Seila Law LLC v. Consumer Financial Protection Bureau [] would have little sense of the bruising, bare-knuckle, decade-long fight over the agency."
Important oped this morning from the brilliant, tough, and serious
@BharatRamamurti
, the only congressional overseer (at present) for the CARES act. The public needs explanations on how its money is being spent - and why.
The Fed is set to lend out trillions of dollars to big business. Will that money help support workers or mostly flow to executives and investors? That’s the key question for the Oversight Commission.
Here’s my op-ed in NYT this morning on that question:
Across the board, our polling shows that likely voters strongly support public options, and prefer them even when confronted with counter-arguments or with tax credits as an alternative.
Democrats should take notice. Full report from
@EthanBWinter
:
In THE GREAT DEMOCRACY, acclaimed legal scholar and policy expert
@GaneshSitaraman
offers a bold, transformative agenda for achieving real democracy at a decisive moment in history.
Coming this December |
@astradisastra
Gov. Cuomo announced today that New York State is producing hand sanitizer. The governor says it is cheaper to make ourselves than purchase it. He says they will give it to schools, jails, government agencies, etc. If price gouging continues, Cuomo says they will start selling it
Great profile of
@BharatRamamurti
, a dedicated public servant and indeed “one of the smartest economic aides on Capitol Hill" (though I would expand that to economic policy anywhere!)
"What people need to recognize is that a massively scaled-up testing, tracing and supported isolation system is the alternative to national quarantine" -
@dsallentess
on the new Roadmap to Pandemic Resilience:
Schumer says he's tapping Bharat Ramamurti, a former aide to Elizabeth Warren, as his pick to the five-member congressional oversight commission of the $2 trillion coronavirus package
.
@jbouie
notes this doesn’t solve D’s desire for Court that'll uphold D policies. True. 5-5-5 court might uphold D policies or not. But maybe R’s could eventually live with it – less likely to have retaliation if R’s win Congress & Presidency. 8/
Choose to fight only righteous fights, because then when things get tough—and they will—you will know that there is only one option ahead of you: Nevertheless, you must persist.
SUPREME COURT REFORM 101: Class 7, Congress Strikes Back. Let’s talk about legislative overrides. “How can the legislature override the Court,” you ask? After all, we think the job of a Supreme Court is to “say what the law is!” 1/
"For the first time in the past hundred years, the working class — the 50 percent of Americans with the lowest incomes — today pays higher tax rates than billionaires." -
@gabriel_zucman
& Emmanuel Saez
"The notion that America, even if it may not collect as much in taxes as European countries, at least does so in a progressive way, is a myth," say Emmanuel Saez and
@gabriel_zucman
Isn’t it naïve to say they’ll agree on 5 picks? No moderates exist! Note: they don’t have to pick 5, they could just agree to one compromise pick. Might be idiosyncratic judge: left on some topics, right on others. Maybe judges will also moderate to get picked. Hard to know. 7/
But R’s already have 6 justices (assuming confirmation of ACB), so 5-5-5 makes no sense. Sure. Proposal was developed before all this, so it would have to be reformed to be 6-6-5, or maybe 6-5-6 has a better ring to it. Not as elegant, but it still works. 9/
I talked with
@zackbeauchamp
@voxdotcom
about our current moment of flux in foreign policy, and the emergence of a progressive foreign policy. Check it out.
We need more testing. A LOT more. In this new paper,
@LisaSHansmann
and I offer a blueprint for a Pandemic Testing Board, built through an interstate compact. Funded by the Fed Govt & endowed with Fed powers, it would be administered by the states.
(2) J's might also become *more* political b/c of post-Court options. Become a lobbyist or talking head. Or run for Sen/Gov/Pres. We’ve had justices who ran for office (or resigned to run). Will opinions be designed for campaigns?
@constitutionctr
6/
This is also why I am unsure if the 18-yr plan will stop the push for younger justices. Why not appoint 40-year olds who can retire at 58 with nat’l profile and run for Sen./Gov./Pres. or be appointed Attorney General? Gives new meaning to building the bench! 7/
Perfect, right!? Not so fast. Everything has tradeoffs. (1) This proposal would likely mean the Court becomes an issue in presidential & midterm elections. A new justice every 2 years means campaigns will likely feature the Court. That seems…not ideal. 5/
Two big new antitrust reform proposals - mine, Taking Antitrust Away from the Courts, and
@Econ_Marshall
and
@mauricestuke
, on the Effective Competition Standard.
We build infrastructure like roads and bridges so that people can work. That infrastructure helps us all because it keeps our economy going. It’s time to recognize that child care is part of the basic infrastructure of this nation—it’s infrastructure for families.
#DemConvention
If you're following the Supreme Court argument today and are interested in the broader, decade-plus battle over the Consumer Financial Protection Bureau (CFPB), check out my article in the
@HarvLRev
.
Isn’t this too complicated? More than expansion, sure. But not more than details of term limits (see yesterday’s thread). Also: our political system often yields complex policies b/c of need for compromise, rather than simple (even if better). So…maybe that’s a feature? 13/
Advocates say this would mean predictable vacancies. Appointments wouldn’t turn on deaths/gaming when to quit. Prevents multi-decade justices & gerontocracy. Hatls the trend of ever-younger nominees. And it’s not an explicitly partisan reform! 3/
SUPREME COURT REFORM 101: Class 2, term limits.
@RoKhanna
@RepJoeKennedy
@DonBayer
have introduced a bill on 18-year terms, supported by
@fixthecourt
. This idea has pros, but it also has underappreciated drawbacks. 1/