Apr 12, 2021

Expanding the Supreme Court.

Expanding the Supreme Court.

Plus, does Amazon pay taxes?

Today’s read: 10 minutes.

The Supreme Court commission. Plus, a question about whether Amazon pays taxes or not.

The Supreme Court. Photo: Joe Ravi

New podcast.

On Friday, I sat down with The National Review’s David Harsanyi to discuss his views of the Biden administration, gun control, and the future of the Republican party. Harsanyi’s writing has been repeatedly referenced in Tangle and his conservative arguments are nationally syndicated in The New York Post and The Washington Post. You can listen to the podcast, and find other Tangle podcasts, by clicking here.

Quick hits.

  1. Police in a suburb north of Minneapolis, Minnesota, shot and killed Daunte Wright during a traffic stop on Sunday. Wright, a 20-year-old Black man, drove away from the scene after being shot, crashed his vehicle and died from his injuries. His death comes in the midst of the trial of Derek Chauvin, the Minneapolis police officer facing murder charges after kneeling on the neck of George Floyd, who died during the interaction. Protests and rioting occurred throughout the evening. This is a developing story. (The Star Tribune)
  2. President Biden laid out his plans for a $1.52 trillion, or 16%, spending increase that would invest heavily in education, health research and the fight against climate change. The proposal is on top of his $2.3 trillion infrastructure plan. (The New York Times, subscription)
  3. Amazon workers voted more than two to one against a push to unionize inside an Alabama warehouse, despite garnering support from President Joe Biden and a slew of celebrities and politicians. (CNN)
  4. Republican politicians, aiming to match their “working-class party” label, are beginning to unveil government expansion policies the party has traditionally opposed. (The Wall Street Journal, subscription)
  5. Domestic terrorism is increasing in America, led chiefly by white-supremacist, anti-Muslim and anti-government extremists, according to a Washington Post analysis of data compiled by the Center for Strategic and International Studies. (The Washington Post, subscription)

The big story.

The Supreme Court. On Friday, President Biden ordered a bipartisan commission to look into the merits and legality of Supreme Court reforms, including “the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

The 36-member commission is made up of some of the most well-known legal scholars in the country, former federal judges and members of advocacy groups. While the membership leans liberal, it includes several prominent conservatives. The commission is aiming to present its findings within 180 days of its first meeting, which could set off one of the most contentious issues of the Biden presidency.

Biden announced the commission just days after Justice Stephen Breyer, the oldest justice on the court, said proposals to restructure the Supreme Court would damage its reputation. Breyer, one of the more liberal justices on the court, has been encouraged by progressive activists to retire this year so Biden can appoint his replacement.

Currently, the Supreme Court has nine justices, six of whom are considered “conservative.” Former President Donald Trump appointed three justices in his four years in office, a massive swing to the right, which intensified calls from the left to expand the court. The court has remained at nine justices since 1869, but Congress has the authority to add or remove justices and has done so several times prior to 1869. Adding term limits to the lifetime appointments would likely require a constitutional amendment, though there is a legal debate about other possibilities.

Below, we’ll take a look at some of the responses to Biden’s announcement about the commission.

What the left is saying.

The left is supportive of reforms, but divided about what exactly would be the best route forward.

The Washington Post editorial board backed term limits but threw cold water on the idea of expansion, saying the “political likelihood of growing the court, not high to begin with, has shrunk considerably” with Sen. Joe Manchin (D-WV) refusing to reform the filibuster. It also said the expansion would “respond to Republican politicization of the court with Democratic counter-politicization,” leaving open the possibility “the court itself could be collateral damage.”

“Encouragingly, the broad mandate Mr. Biden has assigned the commission allows it to examine what is a valid area for potential Supreme Court reform: replacing life tenure, instituted in 1788, at a time of much shorter life expectancy, with an 18-year term,” they wrote. “That would drain some of the intensity from Supreme Court politics by providing both parties with foreseeable, regular opportunities to nominate justices — thus lowering the stakes of each vacancy. It would allow presidents to nominate the most qualified justices, rather than looking for the youngest plausible nominees. Term limits should be high on Mr. Biden’s commission’s agenda.”

In March, Aaron Belkin wrote about the “urgent need for court expansion” on SCOTUSblog.

“In 2016, when Sen. Mitch McConnell and the Republican Senate refused to consider the nomination of Judge Merrick Garland to the high court, they didn’t just steal a seat — they robbed the court itself of some of its remaining legitimacy,” Belkin said. “Last year, when they broke their own cynically contrived rule against confirming justices in an election year to confirm Justice Amy Coney Barrett, they obliterated any facade that the court is above the partisan fray.

“But the assault on the court’s independence is not only coming from outside the building,” he added. “As many readers of SCOTUSblog likely know, Sen. Sheldon Whitehouse examined all 73 split-decision civil cases between 2005 and 2018 in which Republican Party donors had a clear interest. The conservative majority sided with conservative donors all 73 times. In approximately half of those cases, the majority ignored, overturned, or sidestepped conservative judicial doctrine to reach a decision favored by their co-partisans. That’s not calling balls and strikes, and it’s not just conservative jurisprudence. It’s a court functioning, for all intents and purposes, as an extension of the Republican Party.”

In Slate, Mark Joseph Stern wrote that Biden’s commission shows he doesn’t actually want court reform.

“Whatever of the merits of this strategy as an intellectual or political exercise, it is not a recipe for real Supreme Court reform,” Stern wrote. “In forming this commission, the main thing Biden has done is kick the can down the road when Democrats do not have the luxury of time: If they lose either house of Congress in 2022, they may not regain unified control of the government for years. Yet the president has given the commission six months to tell us what we already know: Adding seats to the Supreme Court by legislation is perfectly legal, which means it is a political question rather than a constitutional one. The commission already gives us some indication where Biden falls on the political question of court reform—specifically, that he’s not willing to do it.”

What the right is saying.

The right opposes reforms, saying that Democrats are politicizing the court in order to regain power that they lost.

The Wall Street Journal editorial board said “The White House is trying to make this seem like routine political business, but don’t be fooled.” The commission, “who tilt markedly to the political left,” is about appeasing the progressive left.

“The commission includes a few legal conservatives… The danger is that these conservatives will lend a bipartisan patina to a commission that by its very existence is meant to pressure the Supreme Court. The threat of court-packing is intended to make the Justices think twice about rulings that progressives dislike. Many of our legal friends think the threat has already had a notable impact on Chief Justice John Roberts on gun rights and abortion cases.

“The irony of this commission is that the Democratic Party is already in a position to shape the federal courts through normal channels,” it added. “Judges appointed by Democrats have begun to retire, and most of Mr. Biden’s nominees will sweep through the Democratic-controlled Senate.”

In March, Ilya Shapiro wrote a response to Aaron Belkin in SCOTUSblog, saying that attempts at court-packing have blown up politically and hopefully this one will too.

“Underlying both the standard and creative court-packing proposals is a problem with the proponents’ premise: that the court needs reforming in the first place,” Shapiro wrote. “The court isn’t in crisis, but progressives — and especially legal elites — are very unhappy with its nascent conservative majority. And yet the Supreme Court is more respected than any federal institution save the military, and more popular than it’s been in over a decade. Toning down judicial confirmations and having justices seen less through partisan lenses are laudable goals, but they’ll only be reached when the court itself is less important. Don’t rebalance the court, rebalance our constitutional order so Washington — and, within Washington, the executive branch — isn’t making so many big decisions for such a large, diverse, pluralistic country.

In The Washington Examiner, Kaylee McGhee White said Biden would be “defying the late Justice Ruth Bader Ginsburg’s wishes,” who warned against packing the courts.

“Biden was also once an opponent of court-packing, calling former President Franklin D. Roosevelt’s attempt to add seats to the bench a ‘bonehead idea’ and a ‘terrible, terrible mistake,’” she noted. “He accused Roosevelt [who attempted to pack the courts] of being ‘corrupted by power’ and praised congressional Democrats for standing up to his attempted ‘executive overreach…’ Perhaps Biden forgot about his 1983 speech — he seems to be doing a lot of that lately — or maybe he just changed his mind. (He’s been doing a lot of that, too.) Regardless, Biden ought to listen to the legal experts who understand the court better than anyone, and much better than the leftist activists who would turn the Supreme Court into a political hammer if he lets them.”

Isaac’s take.

There are a few fundamental concerns I have with the current state of the Supreme Court: 1) Its justices are increasingly holding onto their seats for as long as possible, often until death, and usually in an effort to prevent their seat from being filled by the “opposition” party. 2) Because of a largely dysfunctional Congress, the Court has become critical to the implementation of our laws, often settling legislative disputes that spring from a sharply divided Congress. 3) Its composition today is far more about luck and partisan maneuvering than it is about representing the wishes of the American people.

Can Democrats expand the court? Legally, yes. Politically, they don’t have a prayer. Even if they abolished the 60-vote filibuster threshold, which they appear unable to do, they’d need two Democratic senators they don’t currently have on board: Manchin and Sen. Kyrsten Sinema (D-AZ). Are Republicans now posturing around norms and being hypocritical on appointment precedent? Yup. In 2016, many of them gleefully supported the idea of not confirming Hillary Clinton’s Supreme Court nominees if she won, even for all eight years of her presidency, and even if it meant keeping the court at eight justices. Court shrinking? Fair game. Court packing? The end of democracy!

There is strong historical precedent for expanding the number of federal judges needed across the country, and the general outlines of that expansion seem like a good thing for democracy. When it comes to the Supreme Court, though, any expansion would have to be done in such a way as to prevent it from being an overt power grab by Democrats. There are proposals around a slow expansion, by adding pairs of justices over a fixed period of time to give opportunities for the changing Senate and White House to approve new justices. There’s also Pete Buttigieg’s proposal (remember him?), which called for each party picking five justices and then both parties agreeing unanimously on another five justices.

There are merits to these proposals that I support: reducing the importance of each appointee, and thus the unbridled, protracted partisan fights over each one of them, would be great. So would adding more minds to the court and diversifying the scholarship of the bench. But it’d rely on these exact kinds of proposals to get through and not a proposal that clearly favors the Democratic party.

On the whole, I think The Washington Post’s proposal from October for term limits fits most neatly into my hopes for reform. Republicans and Democrats will pack the court if they can for as long as they can. A never-ending expansion won’t solve that problem. A term limit plan could reduce the temperature on any given justice along with giving voters clear insight into what they’d be voting for in elections (i.e. we’d have a better idea going into an election if a seat was going to open on the court).

Some basic math on staggering the term limits could also mean every president gets an equal number of Court appointments, save unexpected deaths or retirements, which seems to me an obviously more fair way to balance what is otherwise little more than dumb luck. Not just that, but it’d probably give us better justices. Instead of presidents picking the youngest qualified person for the Supreme Court, someone they are confident could sit on the bench for 40 years, they might actually pick the best justice — even if it meant they were 60 years old. Our Supreme Court could use a new paint job, but it doesn’t need to be remodeled. Just as I wrote in October, term limits still strike me as the kind of balanced reform that would change things in a positive way.

You can read our previous coverage on “court-packing” from October here.

Your questions, answered.

Q: There has been a lot of conjecture and subsequent online chatter about Amazon and their next-to-nothing corporate tax filings, i.e. they pay little to no federal income taxes. In the 4/7 issue of Tangle, it was stated that Jeff Bezos supported a corporate tax rate hike. So, which is the truth here? Does Amazon pay their fair share on billions of profit or not?

— T. Wilson, Falls Village, Connecticut

Tangle: The answer is not simple and nobody really knows.

Amazon has paid income taxes, though we’re not entirely sure where, and it has paid those taxes at a very low rate by leveraging loopholes to earn deductions for things like investment, research, employee compensation, and so forth. Amazon’s tax returns are private and it obscures its taxes (as many companies do) by sharing financial statements that “disclose costs in terms designed for shareholders, not policy makers,” as The Wall Street Journal put it.

There are all sorts of other complicating factors. For instance, Amazon’s accumulated losses or tax credits in past years will get weighed against new research deductions in the current year to produce a tax bill for the current year. Accountings like that happen annually and they are great big messes that can obscure what is really going on. In 2018, for instance, Amazon paid $1.2 billion on income-tax payments while also being accused of paying zero federal income tax.

According to The Wall Street Journal, “From 2012 through 2018, Amazon reported $25.4 billion in pretax U.S. income and current federal tax provisions totaling $1.9 billion. That is an 8% tax — low, but not zero or negative.”

As for Bezos supporting a corporate tax hike, it’s unlikely it’s out of a love or admiration for dinging super successful corporations with higher taxes to cover government costs.

The long and short of it, though, is that a higher corporate tax rate is probably good for Amazon: it would mean better infrastructure, which Amazon is uniquely positioned to take advantage of. Because Amazon reinvests so much of its earnings, it is also not going to be hit as hard by a corporate tax rate hike on profits as other competitors. It also could be political. Amazon just got done beating a union drive in Alabama and is increasingly the target of political attacks, and this could be a way to rebuff them. I thought Geekwire did a good job explaining all this here.

A story that matters.

I typically don’t use this section to promote my own work, but today is an exception: on Friday, Tangle subscribers got a special edition about whether the national debt actually matters. In order to suss out an answer, I reached out to Brian Riedl, a deficit hawk from the Manhattan Institute, and Noah Smith, a liberal opinion columnist from Bloomberg. I asked each of them a series of similar questions and then lined up their answers in a sort of call and response issue where you can see views from both sides — and also where they align.

Subscribers really seemed to love this edition, and I thought Smith and Riedl did a great job explaining why the debt does matter. So I decided to unlock the issue for everyone.

You can read it by clicking here.


  • 53%. The percentage of Americans who approve of the way the Supreme Court is handling its job, according to a Gallup poll.
  • 43%. The percentage of Americans who disapprove of the way the Supreme Court is handling its job, according to a Gallup poll.
  • 77%. The percentage of Americans who would support restrictions on the length of service for U.S. Supreme Court justices, according to Fix The Court.
  • $28,161,822,856,142. The total U.S. national debt ($28.1 trillion) as of 11:30 a.m. EDT.
  • $13.7 million. The median pay for CEOs of over 300 of the largest U.S. public companies last year.
  • $12.8 million.The median pay for CEOs of over 300 of the largest U.S. public companies in 2019, according to the same report.

From a Tangle reader…

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Have a nice day.

Bipartisanship is hard to come by these days. Even tougher is productive, worthwhile action on issues related to mental health. But it appears Colorado may have just achieved both: the state legislature is allocating $9 million to offer every teenager in the state access to a free mental health check-up and three free visits with a professional. The program is in response to reports of rising anxiety, stress and depression among teens during the pandemic; and the bill looks to be “on the fast-track” to legislative approval thanks to widespread support across party lines. (The Colorado Sun)

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