New York Personal Injury Law Blog » The Golden Rule of Laws, U.S. Supreme Court


September 18th, 2019

The Golden Rule of Laws

The issue popped up again yesterday. This time, in a New York Times op-ed by Jamelle Bouie.

Bouie suggests that if the Democrats hit the trifecta in the next election — meaning majorities in the House and Senate and winning the White House — that the Dems should pack the Supreme Court with extra judges that they see as favorable.

This is to make up for, he says, the stolen seat that Neil Gorsuch holds because Senate Majority Leader Mitch McConnell refused to do his constitutional duty of holding a hearing and vote on Obama’s pick, Merrick Garland, and the circus behind the confirmation hearing of Brett Kavanaugh when the FBI wasn’t permitted by the Senate to do its full investigation of the candidate and the allegations against him.

Sounds great, huh? Just pack the court to even things out? What could possibly go wrong?

This is as good a time as any to discuss the Golden Rule of Laws. This rule states that when you want to use some legal maneuver to attack “the other side” ask yourself how “the other side” could likewise use it.

While the name might be my creation the concept is not exactly new: What goes around comes around. What’s good for the goose is good for the gander. Karma. You get it.

But Bouie doesn’t get it. He says that in response to the Republican hardball that resulted in these two seats the Democrats should play hardball back. By packing the Court.

He comes to this conclusion by citing a litany of problems, including:

In the past, courts have walled entire areas of American life off from federal action. They’ve put limits on American democracy and blocked the people, through their representatives, from tackling fundamental issues of public concern. During Reconstruction, courts handcuffed the government as it tried to address violence and state-sanctioned racism; during the Progressive Era, they kept Congress from putting the economy under some measure of democratic control.

We’re living through a version of this right now. Under Chief Justice John Roberts, the Court has denied Medicaid coverage to millions of poor people, neutered the Voting Rights Act, authorized new waves of voter suppression, unleashed the power of money for entrenched interests and would-be oligarchs, and opened the door to extreme partisan gerrymandering.

But there’s a significant difference between identifying problems and coming up with good solutions.

And court packing doesn’t really solve any of the problems, does it? When the political tides flip back, and they surely will, the Republicans can do the same thing. And add yet more judges. Just as the Democrats will one day hold up a Supreme Court seat under the “McConnell Rule” in response to the Garland nomination.

When it comes to the potential dangers of the new tactic, he is dismissive:

Yes, there’s the risk of escalation, the chance that Republicans respond in turn when they have the opportunity. There’s also the risk to legitimacy, to the idea of the courts as a neutral arbiter. But Trump and McConnell have already done that damage. Democrats might mitigate it, if they play hardball in return.

Bouie is not alone in walking this dangerous path. Former governor and presidential candidate Howard Dean suggests that, instead of packing the Court, that certain unfavorable Supremes be rotated out to the trial level District courts. In a tweet he wrote:

Actually the Supreme Court is NOT for life. The Constitution says the federal bench is for life. Which means Supreme Court Justices can be rotated off onto district courts. Since two of them were put on illegitimately, that is important to know.

Same problem, of course. The Republicans can do the same thing when the time comes.

As David Boaz of the libertarian Cato Institute wrote when I twitted about Dean’s proposal: In my experience, neither side ever asks, What if my opponents had this power?

Now there are solutions floating around for de-politicizing the Court. Term limits of 18 years are one example. With a regular rotation of judges each seat and each appointment becomes less of a concern as folks no longer worry about an ideologue on the court for 30+ years. De-politicizing the Court should be a goal of both parties. But, alas, those in power don’t seem to agree.

This concept of fashioning new laws and rule without regard to how others might (ab)use them also came up two weeks ago when the San Francisco Board of Supervisors dubbed the NRA a “domestic terrorist organization.” As Walter Olson, also of the Cato Institute noted, this concept has repercussions. What organization is next, but this time from a red state/city? Maybe a pro-immigrant group? A group protesting police violence?

Think some Bible Belt city might want to take a shot at Planned Parenthood by calling it a terrorist organization?

In the race to play hardball one must always, always, always, always ask: How can this come back to bite me in the ass? Because one day it will.

15 thoughts on “The Golden Rule of Laws

  1. I believe I understand both sides of this issue, and in the long term, there is no doubt that Eric is right. However, in the short term, he is wrong. Being honorable in the way he advocates is, for now, bringing a pen knife to a machine gun fight. The rejection of Gorsuch and installation of Kavanaugh was an unforgivable theft. My life expectancy is not long enough to wait for the niceities to play out in 30 or 50 years. I would like to see some balance (and payback) in the time I have left. The concern that the Repubs. will retaliate by trying to pack the court themselves in the future, is foolish, since that has been in full swing for a year already (and with hideous success.) The G.O.P. is entirely into immediate gratification (see climate change) with no thought to long-term implications or even medium-term consequences beyond tomorrow morning. The resistance ought not lose sight of what may happen in two or twenty election cycles, but the need for relief is RIGHT NOW, and while I would like to concern myself with how things may be when my baby grandchild is middle-aged, that long view is clouded by a world where technology and societal change is at blinding speed so that nothing can be foreseen with any certainty. And so, I come down in favor of immediate action, knowing that with hindsight in decades to come, that may prove a mistake in retrospect.

    • There is no question that the tactics that have already been used — such as destruction of the filibuster — will be used by Dems, as they should. The issue is creating new tactics. There is no doubt they would one day come back to haunt, just as the destruction of the filibuster will come back to haunt the Reps.

  2. The big question is, if the other side doesn’t care about the Golden Rules Of Law, if they don’t care about simple right and wrong, if they don’t care about anything except grabbing as much power and getting their way by any means necessary, how long do you put up with it before you stop being a patsy and start punching back?

    You can call it the George McFly rule. You can only take Biff’s abuse for so long before you have to haul off and belt him.

  3. While Planned Parenthood is not a “domestic terrorist group”, I would surely consider it and the Southern Poverty Law Center to be “hate groups”. This from my libertarian perspective

    • While Planned Parenthood is not a “domestic terrorist group”, I would surely consider it and the Southern Poverty Law Center to be “hate groups”. This from my libertarian perspective

      And therein lies the essence of the Golden Rule of Laws.

  4. Court packing is a strategy vulnerable to spiraling escalation. That is a given.

    But in order for escalation to be undesirable, the outcome of the escalation has to be undesirable.

    Escalating use of court-packing by the side which happens to control the Senate at any given point in time would simply result in the court being subordinate to the Senate. I have not seen any particularly compelling argument for why this is a worse outcome than the present state of affairs. Different, yes, but different is not necessarily worse, and those who want to argue that it is need to present that case.

    And then there is the wider question of whether precedent even matters in the present political conjuncture. It is not clear to me that the different factions of the American polity trust each other to feel bound by concerns of legality and precedent. If you believe that the other side does not feel constrained by law or precedent, then the correct move is to create favorable facts on the ground, as widely as possible and as fast as possible, such that it becomes more difficult for the enemy to prosecute politics against you, and easier for you to prosecute politics against your enemies. The question of what the other side would do with the power you call upon becomes irrelevant, because that power is being called upon precisely in order to ensure that it never has to be ceded to the other side.

  5. Asking Republicans to imagine awesome and unaccountable power in the hands of Janet Reno didn’t stop the USA Patriot act. I doubt that most of the people calling for weaponized laws and court packing have considered that the other side can do it too.

  6. Pingback: “The Golden Rule of Laws” | Overlawyered

  7. What I find most galling about this topic is not the people calling for court-packing by one side or the other. It is the people who are being so openly hostile to the idea that the Golden Rule of Law should be taken into consideration. Even in the comment section here, there are people naysaying the idea because “why should we play nice if the other side doesn’t?” Just look at the comments calling for payback. I can’t imagine a more immature reaction to a political disagreement than that.

    This is the problem. This is the reason why the American political system is so fundamentally broken right now. It has nothing to do with whether the Republicans or Democrats are in charge. It has nothing to do with the people who are currently filling any judicial, legislative, or executive branch seat. It has all to do with the fact that, as a society, we have turned being a Republican or Democrat into something akin to religious identification. No longer, does it seem, can people open up to the idea that maybe, just maybe, their side is not perfect and the other side is not evil. We have become a nation of “us vs. them.”

    How can we expect there to be any change if we keep going the way we have? So long as “compromise” and “conversation” are considered four-letter words, we will never get anywhere.

    If there is any danger to the republic, it lies not with either party or any one branch. It lies in the vicious, no-holds-barred, rhetoric which seeks to do nothing but demonize anyone who supports the “wrong” candidate, policy, or party.

  8. They seem to forget the oath taken by service members, to defend and protect the constitution against all enemies, foreign and domestic. I have not seen any decisions by either Gorsuch nor Kavanaugh that was constitutionally incorrect, however the democrats stating they will pack the court to get the outcome they want is a direct attack on the constitution and in my opinion the military would have no option but to step in and remedy the situation

    • however the democrats stating they will pack the court to get the outcome they want is a direct attack on the constitution and in my opinion the military would have no option but to step in and remedy the situation

      This is part of the stupid. Propose an utterly moronic idea, in this case a military takeover of the U.S., without any regard to how such a tactic would look in the hands of those one disagrees with.

      Thanks for playing.

      • I hope Stevo is a lawyer and is sufficiently versed in Kavanaugh’s and Gorsuch’s SCOTUS opinions that he can name one or two offhand where they were the lead authors. If not, then his blanket approval of their opinions is empty puffing. It is hard to understand how Democrats packing the court is “a direct attack on the constitution,” while refusing to hold a vote on Garland and substituting Kavanaugh was not. It’s only a sin when someone you dislike does it?