Leap frog is, for kids, a fun game. It wouldn't work when it comes to the Supreme Court, though.
Much has already been suggested about what the Supreme Court is likely to say in the near future: That Roe v. Wade should be reversed. Well, it might. And it might not. I would think that the vicious, new Texas statute that conjures vigilantes among the public to enforce against performing abortions would not be the one that the Court would base reversal on. Way too harsh and punitive.
The scary center of the Court is not now John Roberts, but Brett Kavanaugh. He has shown some guts to avoid going along with the rest of the more hard-lined conservatives. This may be different, though. We'll have to see.
At any rate, any movement to expand the number of Supreme Court positions, say to two more, to strike a needed balance (or so say progressives) would first of all, take months, during which opinions passed down by the current Court get made, anyhow; and second, get blocked by obvious Republican Senate filibuster. Not going to happen.
If I had a magic wand, would I do so, though? No. Fooling with the machinery can work both ways. If by some miracle, Democrats would get their way and two more positions would be opened up to be filled by the current Democratic president, the next Republican president might see it fit to do so, too, if a Congress tilted in his/her favor (and the vote to put a Republican back into the White House might partly depend upon such circumstances).
Then a new Court of eleven becomes a newer Court of thirteen. Then meetings and hearings of the Court become far more unwieldy, what with each Court member allowed to ask whatever questions occur to them during presentations and discussions. It gets to be leap frog without end.
To end the filibuster, which would pave the way for such expansion, holds within it even more danger. There's no question that, regardless of how absurd it now sounds, Republicans will regain control of Congress; the present numbers, cut incredibly close, all but guarantee that. Democrats felt helpless enough with ex- at the helm and Republicans in control of the House and Senate before; how will it feel with their vindictiveness on display now? Why wouldn't they xerox Texas' awful abortion law to make it a national mandate?
They wouldn't, only because the Democrats held the filibuster rule in their hands this time. Yes, racism played an enormous role in establishing it in the first place; yes, Republican representation in the states in which they hold Senate control constitutes an unfair distribution of the country's population, such that a decided minority of the population seems to hold sway. But that goes back to the foundations of the republic and history and even culture, and there was no accounting for that that could have rearranged some kind of ongoing equity beyond the two-per-state requirement.
Indeed, the establishment of two houses, one with a check upon the other, slows down legislation, making people think a little longer (never a bad idea) and probably saved the Constitutional Convention from dissolving. Short of going to a unicameral legislature instead of a bicameral one by Constitutional amendment--which would be a disaster beyond measure--we are stuck with the structure we have.
Of course the wish list of many of the people reading this does not include having Joe Manchin being the traffic cop of most, if not all, significant legislative advancements. It's all too tempting to think that this somehow got pre-arranged. It didn't. That's where the chips fell for two years as a combined total of the collective indecisiveness of the public. All he's doing is wielding the power that nothing else than fate arranged for him. Come on now, wouldn't you?
Now, if I got a phone call from him, I'd tell him that his efforts to try to play both ends against the middle in his state, West Virginia, to somehow stay in the graces of the Democratic Party but win re-election in a decidedly Republican one are about as futile as moving Mount Everest three feet to the left. He would be left with two options, both of which would rip the firmament apart: either cave to Biden's wishes and give him exactly what he wants, or flat-out join the other party (which has been done, if you remember Jim Jeffords of Vermont about 2001 or so). His political future would be confirmed as finished if he did the former, and his very soul might be compromised if he did the latter, though I wonder about that.
But I think he's done anyhow, if the cultish, slavish effects of ex- are continued into the foreseeable future, which they appear to be. I think Manchin sees a way through this mess, perhaps quixotically. But what's going on in his head has to be transferrable to the heads of his West Virginia constituents, and that has to cut through the fog of propaganda that various crazies have established, especially after 1/6.
Besides, ex-, the National Menace, would dispose of him with a wave of his hand should be get back into power. It will only take that. Only sycophants will run the country then, and we would be at their mercy. With filibuster power being the only power the Democrats might have left, it could stop some of the most damaging actions of a slavishly, dangerous subservient House. If you doubt this, try reading Robert Kagan's essay written last week in The Washington Post: It will take you a few minutes, but you'll get the grasp of the crisis we're already in--https://www.washingtonpost.com/opinions/2021/09/23/robert-kagan
Yes, there are smart people in West Virginia. Yes, some think very clearly. I wonder how big the center is there, though. Manchin's trying to find it. Or maybe he is the center now. Maybe he thinks people will follow him because of it. I have news: No way. Centrism, and 50 cents, get you a phone call in a booth that's been obsolete for two decades.
At any rate, if all this could be solved by expanding the Supreme Court, it could have been already solved far more easily by conventional means. And it can. Because once some people get into the Supreme Court, something very interesting starts to happen to them: They get perspective and start changing their minds. They start doing unexpected things.
That doesn't mean that that will happen to the present set of people, of course, but it has happened in the past. It's why, for instance, some of the most important laws that comprised the New Deal got approved and have remained to this day, more than 80 years later. Nobody expected Earl Warren to lead the way through to Brown v. Board and Miranda v. Arizona, to name just two.
Abortion decisions look automatic to, maybe, five or six justices representing both sides of the present spectrum. Together, that group does not comprise majority decision. The closer this gets, the more nervous three or four of them will be.
And the mind-changes that have happened have rarely been more conservative; they've almost always been more liberal. Blackmun used to be a staunch advocate of the death penalty when he came onto the Court; by the time he retired, he had done a 180.
So you never know. Life terms bring clarity in ways we cannot predict. Yes, ex- still wants to undermine the whole system and bring it to its knees, serving only him and his selfish interests. All the more reason to keep the system as it is for as long as we can so it can work its own magic. Yes, this may be clinging to a pipe dream. But history is still on the side of stabilized structure.
Term limits? That might be a workable compromise. It's already been suggested that term limits begin with the next appointee, and eventually, the entire Court will be subject to them. They could be made at staggered times, too, so as to variate with upcoming presidential terms so that no one president can control so many appointments. That's worth looking into.
Let's wait and see what the Court says and how it says it before we go tinkering with the machinery. There are surprises coming no matter what; Citizens United still stuns. But we have absorbed them before. Playing leap-frog would be a last resort, at best. And it would never work permanently, anyhow.
Be well. Be careful. Wear a mask indoors. With some luck, I'll see you down the road.
Mister Mark
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