my steelman reply is that the realistic best case scenario for American democracy involves a constitutional crisis in the next 8 years where SCOTUS issues an unconstitutional ruling and a Dem Pres+Congress say "no", and Dems need to make sure that the public is on their side when this happens
Aren't Alito & Thomas the two oldest justices? Hasn't Thomas been in & out of the hospital the past few years? I could have sworn I read Alito had a documented heart problem.
Crucial that Biden wins this year and that the next Dem wins in 2028. Both these guys will be in their 80s and then we would be oh so close to a 5-4 Dem court
FYI of the 15 justices appointed since Kennedy, not including the current court, only one (Fortas) died before the age of 80; Scalia, at 80, was the second-youngest to die, followed by Rehnquist (81) and Goldberg (82). The remaining 11/15 lived to the age of 85, and at least four made it to 90
(Also the added stress of their positions. not the job itself, but being constantly and righteously criticized. Stuff like that gives old assholes heart attacks)
Thomas is 76, Alito is 74, their life expectancy per SS actuarial tables is 10 and 11 years, respectively. You can argue about heart problems etc but OTOH they are both rich and have excellent health and I think neither of them is a smoker, so it would be higher.
and then - Dems would need *both* to die and they would have to control Pres+Senate when *both* died and also Rs can't control Pres+Senate between now and then because they can strategically retire!
Thomas's mother AND father are both still living, and parental lifespan is the #1 predictor for one's own. I am not saying he's fit as a fiddle, but he's very likely to stick around for an intolerable number of years.
big win plus thomas or alito dying moderates the court imo. roberts is too much of an institutionalist and would recognize decades of his life’s work to immiserate people would be at risk of being undone over a decade if they get too radical in that scenario
McConnell's gone next year, and the Senate R caucus looks more and more like the House version every year. I would bet $100 to your $50 that an R Senate does not confirm a D justice nominated by Biden
"The wheels fall off Clarence Thomas' motorhome, and Sam Alito chokes on a tastykake" might produce the least perilous deus ex machina out of the republic's predicament, but it doesn't address any of the manifest structural problems that give rise to, well, them
I mean, maybe it's true we can't fix our problems without creating even bigger problems
"the realistic best case for the future of the republic as that two or more specific publish officials should die" might be objectively correct but is still an insane place for a democracy to find itself
It's not just SCOTUS though, the entire federal bench has ossified itself resistant to democratic accountability. The only realistic ways to flip the 5th Cir would be to hold the presidency and senate for the next 40 years, or for [redacted] to do [redacted] to a courthouse during an en banc hearing
And yeah, some of isn't structure it is just personnel (any public office in any gov't is gonna look bad with Aileen Cannon and Matt Kacsmaryk running things), but that doesn't mean there aren't big structural problems that need addressing
(Personally, I think we should abolish the regional circuits and make every 3-judge panel drawn randomly from the full pool of 179 judgeships. Can't stack the 5th Cir if there's no 5th Cir. Also, Congress changing the courts of appeals will bore voters and the media compared to changing SCOTUS)
Still have to get past the filibuster problem like every other reform, but otherwise the 5th seems pretty amenable to packing. Gotta expand to deal with all the pop growth in Texas, after all.
To the extent that voters even care about "packing", it is solely SCOTUS that'll land on their radar.
There's an asymmetry where Republicans can get the media to care about any old nonsense like Uranium One and Burisma, so I'm not confident court reform efforts would be so off the radar, but certainly it would be better than the media reaction to reforming SCOTUS
