The current U.S. Supreme Court composition has killed the power of liberals to use this institution to impose their unpopular policies on the entire United States. Frustrated by that, some of them have called for expanding the number of Justices to have a majority.
Such court-packing would in the medium-term — if not in the short-term — discredit the very existence of judicial review and cause its practical or official abolition.
That’s why court-packing will never be a good move for Democrats. From their point of view, better having originalist judicial review than no judicial review at all.
But from the Republican point of view, better having a sovereign Congress than a socialist/woke Supreme Court.
Indeed, originalism is already a middle ground between judicial review and legislative sovereignty.
So, the odds to have a non-originalist majority in the court are less than 1% for the coming decades, and thus 99% are the odds that the death penalty will remain an option for the same future.
But if this originalist majority were lost, that would pave the way for conservative court-packing and overruling of Marbury v. Madison. That would be consistent with the views of Thomas Jefferson that judicial review is an oligarchic usurpation, and with the current law of the United Kingdom, Switzerland, New Zealand and the Netherlands that have chosen to have none. And Australia, that has chosen to have no bill of rights.
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