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Can you imagine a US Constitutional amendment that, if proposed, would actually get passed these days?
The relevant part of the US Constitution is:
So, either 2/3 of both the House and the Senate, or 2/3 of the states must propose it, and then 3/4 of the state legislatures or conventions in those states must support it, for it to become part of the Constitution... as I understand it at least.
What sort of possible amendments could you imagine would actually pass and become part of the US Constitution in today's political climate, if they were proposed?
I find this to be an interesting question because it is a barometer of what the various factions of US politics actually agree on, despite their various differences, and also a barometer of how much polarization there is in today's US political situation.
The size of the Supreme Court shall be permanently fixed at 9 members. All Presidents are guaranteed one appointment per term. If there is no vacancy during the term, then the President may vacate any single judge to create a vacancy at the conclusion of the Presidential term. If there is more than one vacancy, the President may appoint additional interim justices who will automatically be vacated at the start of the next Presidential term. [EDIT] The Senate may veto permanent appointments by a two-thirds majority. Interim appointments may not be vetoed.
The House of Representatives shall be expanded to 1,000 members, with additional districts being added proportionally. The House of Representatives must conduct its business in a way that allows members to participate without being present in the chamber. Members shall be required to maintain residency in their district, spending no less then 50% of the calendar days per year there.
Birthright citizenship shall be granted only to children where at least one biological parent is a citizen or resident having legally remained in the country continuously for a period of at least 3 years. Children may have no greater than two biological parents.
The non-state district of Washington, D.C. shall be formally dissolved and the land de-annexed to the original states from which it was obtained. Congress may designate property within the current district to remain federal enclaves immune to state jurisdiction.
This would be a huge centralization of judicial power in the Executive, and would be an immediate red-flag legal reform for a court-packing scheme in democratic backsliding countries. Any sort of coherent party or dynasty state would easily be able to exploit this to establish executive control over the judiciary.
Just on the veto side, the legislative break is a joke of a check or balance. Any president to win the American system has such a broad geographic coalition that they'd have more than a 1/3rd presence in the Senate, and thus basic party discipline would bar all but the most outrageous picks. This leaves nearly all the power in the President's hands.
Just on the presidential appointment side, just two concurrent Presidents of the same party/dynasty would be able to create almost overwhelming shifts in court composition. An incredibly hostile 7-2 court would easily become a 5-4 near-even split in just two elections, and would completely flip if, say, the President 'resigned' right before the 'transition,' thus elevating their vice-president to president, and letting said president get their own appointment for a 3-judge shift in 2 elections. Because there's no obligation to wait until the end of a term to replace a judge, any Presidential office worth it's salt would immediately reshape the court as their first act in office, while exploiting any absences for more.
The interim appointment without veto is also incredibly prone to abuse, as it directly encourages the ruling party to run intimidation- or elimination- campaigns against the judiciary. Just from the start, since any judge can be replaced, and because the natural incentive for the President is to replace the most hostile/opposing party judges, the incentive for any judge to not lose their seat for -insert personal reason here- is to comply with Presidential pressure and not stick out. If they do stick out and are removed- on pretext, for actual reason, resign 'under pressure', whatever- the President can immediately appoint a party loyalty. It wouldn't matter that the next president can appoint their own judge from the 'vacated' judges- that just means they can re-appoint loyalists, who can easily be counted on to make letter-if-not-spirit of the rule considerations. (Like, say, not counting an interim-replacement against the once-a-term appointment, letting pro-forma Vice President ascents appoint further judges, letting the same President make an additional replacement per time they assume the presidency, and so on.)
This would easily enable a system of court packing political loyalists and removing independent judiciary elements from the top court.
I agree with your first issue that SCOTUS justices should still require a majority for senate confirmation. Otherwise it centralizes too much power in the hands of the Executive.
I disagree with your issues on the "one justice per term" side. Most of what you brought up can already happen in the status quo, but it does so extremely unevenly. Trump got three picks in one term by sheer luck. It was fortunate since he (or really McConnell) appointed principled conservatives, but one should always be wary of what could happen on the flip side. At least having some consistency in the timings would make it feel like less of a lottery to both sides.
I think reasonable people could disagree on whether getting to remove a justice is net-beneficial or not. If the SCOTUS had a solid reputation for nothing but principled legal analysis, then it would be bad. But in many ways the SCOTUS has effectively become "the other legislative branch" in that it flagrantly ignores the spirit or even the letter of the constitution. If that's the reality, then it probably should be more responsive to public opinion.
Why so? What's so good about "public opinion," anyway, that "the other legislative branch" — or any other branch of government — should be responsive to it?
This goes to the founding principle of democracy. Democracy, and a (regulated) free market are the two pillars of national success in the modern age. Any country that lacks one or both of them ends up nearly always being a pretty bad place to live in.
But then, doesn't this depend on how one defines "democracy," and which element of it is essential to "national success in the modern age"?
For example, the Global State of democracy Initiative comes to mind, particularly their diagram of their conceptual framework. I note that "responsiveness to public opinion" would mostly fall under portions of one branch of four — "Representation" — and maybe the "electoral participation" subheading of the "Participation" branch; together, this is only a small portion of the framework. Further, there's "Judicial Independence" under the "Rule of Law" branch pushing in the opposite direction.
Or look at the well-used "democracy scores" criticized here, here, and here. The sort of definitions of "democracy" wherein Fidesz winning straight majorities of the electorate is a lack of democracy. Wherein the voters getting what they want is "populism," which is bad and a grave threat to Our Democracy — after all, "populism" lead to Hitler. (As a podcaster I listen to put it, the core question so much of our modern society and "leadership" perpetually asks about any issue or choice is "What Would Hitler Do?" — so as to automatically select the opposite choice. "Reversed stupidity is not intelligence," sure, but is "reversed evil" good?)
People talk about democracy being about "consent of the governed," but, as people since at least Lysander Spooner have been pointing out, this ends up relying on very strained and atypical definitions of consent. I once pointed out somewhere online (I don't remember where or when) what happens when you compare "consent" in the "consent of the governed" meaning with "consent" in modern "affirmative consent" ethics; what happens when you transpose the definition from one context to the other, in either direction.
Or, one can talk about "representative government." But what does it mean to "represent" someone — particularly to "represent" and "empower" someone who cannot act themselves, but require you to exercise power on their behalf. What makes a parent or legal guardian a good representative of a child, a mental patient, a senile elder? One who stuffs their Alzheimer-afflicted mother into a cheap nursing home and drains her accounts to spend on oneself is not "a good representative." But, the overly-permissive parent who lets their kids have chocolate cake for breakfast is also not "a good representative" — in not doing the hard, uncomfortable work of saying "no" and setting boundaries, they are, in their own way, putting their own interests ahead of their children's best interests as well.
Hence, that Rousseau-citing essay I keep coming back to, wherein, since the Iron Law of Oligarchy ensures an elite ruling class, the only question is whether that ruling class acts in their own interest — whether via direct exploitation of the masses, or by populist pandering to the whims of the mob — or they act for the best interests of society as a whole — the "general will" — whether the electorate vote for it or not; and that "democracy" is best defined as the latter, as distinct from the "non-democratic" former.
Linguistic descriptivism vs. prescriptivism. One can complain about the use of "literally" as an intensifier, and yet the linguistic shift continues (as it did long, long ago for the word "very," with a remnant of the original meaning lingering in the adjectival usage). It seems to me that more and more people — particularly influential ones — define "democracy" as something more along the lines of the above — or even just 'democracy is when the correct people are in charge' — wherein "responsiveness to public opinion" is a relatively minor component at best.
I should really write a longer effortpost on this, since I've heard you and several others use the term "oligarchy" this way. This line of thinking is common enough on this forum that it deserves a dedicated response. Until I get around to that, I'll type out something briefer.
I think you're warping the term "oligarchy" in a similar way that leftists have warped the term "racism". I feel it's not motivated out of a desire to be maximally descriptive to people unfamiliar with the ideas, but rather it's being used to smuggle in political arguments through wordplay. In short, it's the noncentral fallacy, i.e. the thing Scott once described in this article.
I agree there are issues with scoring democracy. But the response shouldn't be to turn around and declare that nothing short of 1:1 representation of popular-request:elite-policymaking is a "democracy", and that anything which falls short is an "oligarchy". That's setting up an impossible standard for democracy, and furthermore is not how average people would use or understand the term. There's a big difference in how much popular will impacts policy in democracies like the US or Germany, vs how much it does in Russia or China. Meaningful voting for which politicians get in power is one of the best ways to ensure popular will remains important.
On some of your specific points:
Fidesz winning fair elections is democracy working correctly, but Fidesz can do things that then hurt democracy. Heck, this can even happen without enacting specific policies simply by breaking norms. I'm not an expert on Hungarian politics so I won't use examples from there. Instead I'll point to something like J6, which absolutely tore at the fabric of American democracy. It didn't do that because of any direct outcomes (Trump was not kept in power), but the fact that many on the right excused Trump's behavior or even celebrated it means other more competent right-wing politicians could are more incentivized to contemplate an actual coup in the future.
Modern definitions of "consent" in sexual contexts are completely screwed up, and I criticize them as much as I criticize anything else. They shouldn't be the basis of broader definitions of democracy... or anything really.
The people who do this are hacks who abuse words to try and gain leverage over the instruments of power. Pushing for the "correct" people or "correct" policies inevitably degenerates into pushing for "things that help the leaders themselves the most". The correct response is to call out the people who hold this opinion for their shortsightedness, not argue that the only thing that can stop a dictatorship of the left is a dictatorship by the right as many people on this site do.
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You make some good points, though I think the status quo is even more vulnerable in some ways. What would be a better way to try to equalize presidential influence over the court, do you think? Currently it seems a bit too based on luck, whether people die on the job while your party controls the Senate.
Not trying to, and not trusting anyone who pushes for it with any degree of power.
'Equalizing' presidential influence is not a good goal for the same reason equity-driven politics are bad for treating people equally, as it's a non-standard extremely open to abuse and manipulation as any President whose coalition is not politically dominant on the court can claim that they are not yet equal, and thus entitled to further reshape the court to their influence. It's a license for un-equal influence in the name of establishing an outcome, not a consistent process, with the state of said outcome being defined by the people in power with all the opportunities for bias and self-interest it implies in self-justifying why they should get away with more.
By and large* I am not a fan of having executive- or party-controlled replace their predecessors, and while I am also not a fan of the executive having no influence whatsoever, the modern movement to equalize presidential influence of the court is part of a more banal effort to establish partisan control of the courts by a political party that for decades has viewed itself in historically determinist terms as the inevitable majoritarian ruling party, and more recently the only legitimate party of governance. Said party's think-piece networks and partisans openly muses other efforts to gain partisan dominance of the courts, ranging from explicit court packing to pressure campaigns to create new vacancies, with enough variations that I have no faith of any broad sincere desire to equalize presidential influence over the courts, only to equalize their influence on the courts on the way to re-establishing partisan dominance and deference previously enjoyed.
*One of the few exceptions I tend to have is for court systems established by external/illegitimate powers (such as occupation authorities, colonial authorities, or coups) and/or which self-select their own successors without executive and/or legislative input (which creates insular captured-interest blocks of whoever dominates the internal replacement process). Even then, I'd far prefer that a new administration allocate a share of new appointments with the opposition, and not grant themselves direct majorities. Yes, I am aware this basically never happens.
Not to put too fine a point on it, but this is your reminder that Joe Biden was one of the specific leaders who introduced 'Borking' to the American lexicon, and that Democratic federal and Supreme Court politics have only escalated since then.
Adversarial court politics was not always the way, and it did not have to be the way, but it was the result of choices, specifically of the Democratic Senate leadership generation deliberately deciding to employ and normalize character assassination, appointment allocation, and other techniques to try and shape court composition. From Borking and other slander campaigns to the Bush-era Federal appointment stonewalling to arranging protests outside of judges houses or inside the Senate working areas, if there is a lack of goodwill to appointing Democratic judges, I'd wager it has some slight thing to do with Democratic conduct toward their peers on the topic.
None of your proposal address this very contemporary and living history, nor is there a reason why- in the face of very real and very earned distrust- a 'reform' that hyper-concentrates the ability to abuse judicial appointments in the hands of a party with a contemporary history of defecting on judicial norms that expects to be the primary beneficiary of the reform would be a beneficial thing at a constitutional level.
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