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      President Biden: Texas shows we can’t wait any longer. It’s time to pack the courts | Lawrence Douglas

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      OpinionUS politicsPresident Biden: Texas shows we can’t wait any longer. It’s time to pack the courtLawrence DouglasRemember when Mitch McConnell twice invoked entirely made-up rules to politically shape the court’s membership? Expanding the court will make it more legitimate, not less Mon 6 Sep 2021 06.16 EDTLast modified on Mon 6 Sep 2021 14.47 EDTWilliam Brennan, the great US supreme court justice, liked to greet his incoming law clerks with a bracingly simple definition of constitutional doctrine: five votes. “You can’t do anything around here,” Brennan would say, wiggling the fingers of his hand, “without five votes.”Underscoring the truth of Brennan’s hardboiled definition was the court’s 5-4 ruling this week (with Chief Justice John Roberts in dissent alongside his three liberal colleagues) to let stand a Texas law that turns ordinary citizens into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion on a woman past her sixth week of pregnancy. True, the single-paragraph unsigned majority opinion emphasized that in letting the Texas law take effect the court was not ruling on the statute’s ultimate constitutionality.Texas now has abortion ‘bounty hunters’: Sonia Sotomayor’s scathing legal dissentRead moreAnd yet. As Justice Sonia Sotomayor wrote in a passionate dissent, “Presented with an application to enjoin a flagrantly unconstitutional law … a majority of justices have opted to bury their heads in the sand.” President Biden powerfully joined those critical of the court’s decision. Declaring that the ruling promises to “unleash [..] unconstitutional chaos”, Biden promised to work to protect the constitutional right to abortion first recognized in Roe v Wade.How might the president do so? Back in April, Biden empaneled a bipartisan commission of scholars, lawyers and jurists tasked with exploring the issue of “court packing”. The commission is scheduled to submit its report later this fall, which returns us to Justice Brennan’s five wiggling fingers.There is nothing magical about the number nine, the present size of the supreme court. The constitution provides that there shall be “one supreme Court”, but says nothing about the court’s size or composition; these are matters left to Congress. In the early decades of the nation, Congress changed the number of justices six different times, from as few as five to as many as 10, before settling on nine in 1869. In 1937, Franklin Roosevelt, frustrated by a reactionary supreme court that resisted his New Deal initiatives, proposed expanding the supreme court’s bench to 15. Congress correctly rejected that court-packing plan as an attempt to manipulate the court to generate specific outcomes.Biden, however, could now fairly and legitimately propose expanding the number of justices from nine to 11. Such an expansion would counterbalance the abuse of constitutional rules that enabled the confirmation of Neil Gorsuch and Amy Coney Barrett and the installation of the hardcore conservative bloc responsible for the Texas decision.This is not to say the effort would be successful. Assuming Biden could find support in the House, expanding the number of justices would require Democratic senators to first eliminate the filibuster, something that Senators Joe Manchin and Kyrsten Sinema staunchly oppose. And we know that Republican lawmakers, led by Mitch McConnell, would accuse Biden of dangerously politicizing the court.To which we may respond: pah-leeze. After all, it was McConnell who, in the wake of Antonin Scalia’s death nine months before the 2016 election, announced: “The American people should have a voice in the selection of their next supreme court justice. Therefore, this vacancy should not be filled until we have a new president.”Armed with a rule of his own creation and a Republican Senate majority, McConnell flagrantly refused to grant a hearing to Merrick Garland, Barack Obama’s nominee to fill the supreme court vacancy ultimately filled by Trump’s choice, Neil Gorsuch.But when Ruth Bader Ginsburg died, six weeks before the 2020 election, McConnell suddenly pronounced a new rule. It turns out the American people should not have a voice in the selection of supreme court justice in an election year when the incumbent president is a Republican.The confirmation of Amy Coney Barrett did more than install a supermajority of conservatives in the court. The locus of power on the court shifted from the more mainstream conservatism of Justice Roberts to the more ideological and rigid extremes of Clarence Thomas and Samuel Alito.As the Texas ruling underscored, this is a court far more conservative than the nation whose constitutional meanings it is meant to protect. And it is a court that owes its composition to the triumph of anti-democratic processes, in which a majority of its members were nominated by a president who lost the popular vote and/or were confirmed by a bloc of senators elected by a minority of voters.In proposing the addition of two additional justices, Biden could hardly be charged with tit-for-tat politics or with further politicizing the court. Conservatives would continue to enjoy a 6-5 majority, but with Justice Roberts, a stalwart institutionalist, serving as the swing vote. Were Biden to succeed, such an expansion would make the court more legitimate, not less.
      Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020 and is also a contributing opinion writer for the Guardian US. He teaches at Amherst College
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      Republicans in crosshairs of 6 January panel begin campaign of intimidation

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      US Capitol attackRepublicans in crosshairs of 6 January panel begin campaign of intimidationHouse leader Kevin McCarthy threatened retaliation against tech companies that share records with the committee Hugo Lowellin WashingtonMon 6 Sep 2021 02.00 EDTTop Republicans under scrutiny for their role in the events of 6 January have embarked on a campaign of threats and intimidation to thwart a Democratic-controlled congressional panel that is scrutinizing the Capitol attack and opening an expanded investigation into Donald Trump.The chairman of the House select committee into the violent assault on the Capitol, Bennie Thompson, in recent days demanded an array of Trump executive branch records related to the insurrection, as members and counsel prepared to examine what Trump knew of efforts to stop the certification of Joe Biden’s election win.House select committee investigators then asked a slew of technology companies to preserve the social media records of hundreds of people connected to the Capitol attack, including far-right House Republicans who sought to overturn the results of the 2020 election.The select committee said that its investigators were merely “gathering facts, not alleging wrongdoing by any individual” as they pursued the records in what amounted to the most aggressive moves taken by the panel since it launched proceedings in July.But the twin actions, which threatened to open a full accounting of Trump’s moves in the days and weeks before the joint session of Congress on 6 January, has unnerved top House Republicans, according to a source familiar with the matter.The House minority leader, Kevin McCarthy, decried the select committee’s investigation as a partisan exercise and threatened to retaliate against any telecommunications company that complied with the records requests.“A Republican majority will not forget,” he warned, in remarks that seemed to imply some future threat against the sector.The warning from the top Republican in the House amounted to a serious escalation as he seeks to undermine a forensic examination of the attack perpetrated by Trump supporters and domestic violent extremists that left five dead and nearly 140 injured.But his remarks – which members on the select committee privately consider to be at best, harassment, and at worst, obstruction of justice – reflects McCarthy’s realization that he could himself be in the crosshairs of the committee, the source said.Most of McCarthy’s efforts to undercut the inquiry to date, such as sinking the prospects of a 9/11-style commission to scrutinize the Capitol attack, have been aimed at shielding Trump and his party from what the select committee might uncover.But deeply alarmed at the efforts by House select committee investigators to secure his personal communications records for the fraught moments leading up to and during the Capitol attack, McCarthy went on the offensive to pre-emptively protect himself, the source said.McCarthy was among several House Republicans who desperately begged Trump to call off the rioters as they stormed the Capitol in his name, only to be rebuffed by Trump, who questioned why McCarthy wasn’t doing more to overturn the election.Thompson previously told the Guardian in an interview that such conversations with Trump would be investigated by the select committee, raising the prospect that McCarthy could be forced to testify about what Trump appeared to be thinking and doing on 6 January.The statement from McCarthy asserted, without citing any law, that it would be illegal for the technology companies to comply with the records requests – even though congressional investigators have obtained phone and communications records in the past.The threat is unlikely to be viewed as a violation of federal witness tampering law, which, as part of a broader obstruction of justice statute, makes it a felony under some circumstances to try to dissuade or hinder cooperation with an official proceeding.Congressman Jamie Raskin, a member of the select committee and the former lead impeachment manager in Trump’s second trial, said that he was appalled by McCarthy’s remarks, which he described as tantamount to obstruction of justice.“He is leveling threats against people cooperating with a congressional investigation,” Raskin said. “Why would the minority leader of the House of Representatives not be interested in our ability to get all of the facts in relation to the January 6th attack?”Meanwhile, other members on the select committee have also seized on McCarthy’s threat as a reminder that Republicans could not be trusted to engage in the inquiry in good faith, according to a source connected to the 6 January investigation.It also underscored to them, the source said, the nervousness among top Republicans as the select committee ramps up its work, even though the inquiry is still in its early days and has yet to sift through thousands of pages of expected evidence.Emboldened by McCarthy’s combative stance, Trump denounced the select committee as a “partisan sham”, while Republicans under scrutiny by the panel such as Marjorie Taylor Greene threatened any companies that complied with the records requests would be “shut down”.The chairman of the House Freedom Caucus, Andy Biggs, is now also asking McCarthy to remove from the Republican conference Liz Cheney and Adam Kinzinger – the two vocal critics of Trump appointed to the select committee – whom he called “spies” for Democrats.Biggs on Thursday suggested in a letter, first reported by CNN, that Cheney and Kinzinger should be ejected because they are involved in investigating Republicans over 6 January and the party should be able to strategize without having the pair present at conference meetings.Still, McCarthy remains unable to shape an investigation likely to prove politically damaging to Trump and to Republicans at the ballot box at the midterms next year, a reality that has come largely as a result of his own strategic miscalculations.The proposed 9/11-style commission into the Capitol attack had envisioned a panel with equal power between Democrats and Republicans, and McCarthy’s decision to boycott the select committee in a flash of anger inadvertently left Trump without any defenders.TopicsUS Capitol attackUS elections 2020US politicsRepublicansHouse of RepresentativesnewsReuse this content More