This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
Supreme Court Term Limits
In a thread recently a bunch of you considered the Biden Supreme Court term limits proposal not that bad. Steven Calabresi just wrote a piece on just how radical and worrying it is. I'd realized things were bad, but not how bad.
Let's set aside the minor things I was talking about before, like how the proposal would lead to two new justices each term in a way that would increase how politicized the court is. Those are dwarfed by Calabresi's concerns.
One thing I hadn't sufficiently thought about is the effects of this being a statutory and not constitutional proposal. The chief one, of course, is that they only need to get a trifecta, not a supermajority, to pass the bill. Well, how likely is that? Manifold puts it at a 21% chance of a democrat trifecta. And if that happens, there's a 65% chance they end lifetime appointments. If I can multiply, that's about a 14% chance of this happening. I assume themotte is numerate enough to realize that for sufficiently important events, that's really high.
Okay, so what would happen? Unfortunately, we don't actually have a draft bill on hand. What we know is that this proposal would add a justice to the court every two years, with 18 year terms. There are two problems with this, as stated: first, it's blatantly unconstitutional, and second, how do you get this to combine with the current system?
It would be unconstitutional because the Constitution provides for "in good behavior." Calabresi clarifies that under British law this would mean "life, unless you commit felonies," and in the context of the American Constitution would be likely to require impeachment. In order to evade that (recall, they do not plan for an amendment), they are likely to have them graduate to some nominal title like "senior justice" with basically no power (maybe still let them play a role in the "which state gets the water rights" disputes, but not anything else), because the Constitution gives Congress power to shape appellate jurisdiction.
The second issue is how to start this up. The way that has only minor harms is that they could make the limits start only for future justices. Maybe each seat switches to 18 year terms after the current inhabitant resigns or dies, with the term already partway through to align with the biennial appointments. But let's face it, there's no way they choose this. Their concerns lie entirely with the current court; the term limit proposal is merely a nice-looking vehicle to attack them through. It would make no sense for them to ignore the reason that they're passing this. What they'd actually do is immediately phase out people as soon as they reach 18 years. That would mean Thomas, Alito, and Roberts would be immediately gone. They would then promptly replace them with three new rubber-stamp progressives.
I imagine the court may well, when it would first have the opportunity, strike down the stripping of jurisdiction as unconstitutional. I'm not sure. But that wouldn't get rid of the three new justices just installed. The court would then sit at 6-6 (with, I imagine, the conservatives being significantly more willing to break ranks than the liberals). The first expansion of the court since the 9-justice court was established in 1869. This is the first serious threat at court packing in nearly a century, when FDR pushed for it. (I wish some amendment to stop court packing had been passed during the good while when it was uncontroversial.)
Of course, Republicans would, upon gaining their own trifecta however many years later, promptly then adjust the rules to their liking. The net result of this will in the long term be the end of the independence of the federal judiciary, seriously harming things like equality before the law. So much for caring about democracy and so forth.
Will this happen? Probably, if they get the chance. Sinema and Manchin will both be gone, so there's not much risk of filibusters surviving. Posing it as being about term limits, instead of court-packing, dramatically lowers how radical it seems, making them more likely to do it. And 36 senators have already signaled that they are already willing to substantially mess with the court by proposing the No Kings Act, so it's well within the Overton window. No chance Kamala is more moderate on all this than Biden is.
Okay, well, what can stop this disaster? The main things are: hold onto the Senate, hold onto the presidency, or get moderate democratic Senate candidates to say they won't go along with it. The last is tricky to do rhetorically ("term limits" sound good, as seen by the positive reception it got here). So it's not the easiest to convey that the democrats are now the party threatening our system of government. The easiest way currently is to win in the Senate. The Democrats have to basically hold onto every seat, including those in red states. Unfortunately, they have a moderately high chance of doing so, but Montana's Jon Tester, at least, has a greater than 50% chance of losing his seat. Should these fail, I hope one of the liberal justices can be convinced to break the usual custom against political advocacy to speak about how bad an idea this is. I'd also try convincing Obama to come out against it, if there's any way to do so, as he holds influence without (I imagine) being quite as scrutinized and purity-tested and generally pressured by whatever the current left-wing discourse is pushing.
As a final note, the No Kings Act is also pretty radical—stripping jurisdiction in immunity cases from the Supreme Court (leaving it at the circuit courts), and instructing Federal courts to ignore any presidential immunity. No way is that last part constitutional, and would even more quickly lead to the destruction of the federal judiciary and end of separation of powers, as (if allowed, which, they're also trying to make it logistically difficult to challenge), with the floodgates opened, acts of this form would be increasingly used to force the courts to do whatever the current congress feels like.
A terrible dereliction of their oaths to support the constitution, on the part of the democrats who support all this, and revelatory that all their claims about the importance of protecting our system of government and its norms has the enormous asterisk that they'll destroy it all, if they're inconvenient.
There's a bill from Whitehouse here; while it's unlikely to pass (albeit more because of the House than the Senate) , or even be attempted to pass before the election, it's got some interesting specifics.
If passed in the lame duck session before a Harris administration came in, Harris would have one nominee in 2025 (booting Thomas) and a second in 2027 (booting Roberts). Slower packing, but a Dem-appointed majority in three years. There's some efforts to counter the obvious counteractions -- a Republican Senate can't wait out a nominee -- but it's almost hilariously under-Black-Hatted in ways. A lot of those, there's a lot I'm not going to discuss publicly, but the trivial question of what happens with gaming recusal is the obvious and low-end side of the problem.
Thanks, this is helpful.
More options
Context Copy link
More options
Context Copy link
I realized I didn't list the additional and maybe most likely possibility that they just start appointing justices two years, with the longest-serving justices phased out then. This would still try to remove two conservatives right away and replace them, but it would be slower.
More options
Context Copy link
If 2 Term Obama had gotten his third pick, rather than 1 Term Trump getting 3 picks, I doubt this would be a discussion.
Edit: Or One man's dereliction of Oath, is another man's constitutional hardball.
More options
Context Copy link
Excellent comment outlining the threat, but what is the response? Where is our Switch in Time That Saves Nine?
For those not versed in SCOTUS lore, FDR at the height of his New Deal power was repeatedly thwarted by the SCOTUS, which was conservative in the sense of operating under constitutional understandings that existed before FDR. FDR planned to pack the court, nominating enough new justices to dilute the conservative majority, and introduced a bill to do so. At the last moment, SCOTUS changed course in West Coast Hotel Co. v. Parrish, allowing the federal government vastly more of the powers that FDR wanted. The court packing plan died, and we have stuck with nine judges ever since.*
So this is the opening salvo by the Dems, as of yet merely a warning shot. Besides, as @ulyssesword put it "win[ing] every election forever" how can Republicans prevent this? What is the potential compromise, or amendment to the structural changes to the court, that can deflate the desire of the Democrats to do this? How can our present Justice Roberts imitate his illustrious predecessor Justice Owen Roberts and make a switch to maintain the peace?
We can talk all we want about sacred institutions, about precedent, about the constitutional order, but if the majority of Americans don't believe in those institutions enough to accept their authority, they are already moribund and just waiting for amputation. How can Republicans in Congress and on SCOTUS currently act to reach a new compromise, or to otherwise restructure the Court in a way that will make the plan either less deadly or less necessary? A compromise, a surrender, a poison pill?
If you believe that, as Vladimir Ilych Liberal wrote, Nothing is to be Done; that the Democratic party is so hell bent on complete tyranny that no compromise is possible, then there's no point bemoaning it, the court is dead. The Republicans will not win every election forever. Swallow the black pill.
But politics is about persuasion, and there aren't going to be a lot of people that need to be persuaded. Leaving aside a solution like "make the institutionalist case more effectively" which seems unlikely. What actions can be taken? I'm not sure I can think of any.
*Additional discussion of the Switch in Time: Arguably at the time, the nine member court was only sixty years old, more recent to them than FDR is to us. That precedent has grown significantly more ancient as a result of FDR's success in changing the direction of the court without packing it. So it was a bit less norm breaking. There is significant dispute as to whether the Switch was motivated by a desire to avoid the court packing plan, whether the Switch lead to the failure of the court packing plan or if it would have failed anyway, and a lot of other aspects of the history around this. I'm providing a thumbnail sketch of the classic story, we can argue about it more if anyone is interested.
**Post Script: I'm not inherently opposed to term limits. They would have multiple salutary effects. I don't think it's good for "death" to be a positive political outcome for anyone, and we should build institutions to avoid it. ((I'll always think there was more to Scalia's death)) It would reduce randomness: it's silly that HW, who won one election before I was born, still has a dead hand on the Court while Clinton, who won the next two, has none. It's a strange system that gives a voice to 1988, but not to 1996. Or that Obama and Biden's combined twelve years in office produced as many justices as Trump's four. It would also halt the race to the bottom on young justices, and allow the appointment of a brilliant jurist with health issues. Currently, the best qualifications aren't brilliant legal theory and talent, they are ideological reliability and a 50 resting heart rate. Increasingly, most justices are chosen with the bare minimum qualifications to pass muster in the Senate (which are themselves declining!) and the youngest age possible. Forget affirmative action, a president is a fool to nominate anyone other than an Asian American Woman, when you nominate a man you're leaving years on the table! The biggest problem with term limits is that introducing them randomly produces a particular set of elections as determinative, the RRRDDRRRD structure means that we know when majorities would turn, and we're stuck with that forever.
And, if we're doing SCOTUS reforms, what I want to see isn't term limits, it is PAGE LIMITS. Old decisions were just a few pages, now we get novels, and the longer they are the worse they are, near universally. The deeper the cuts they need to resort to, the more likely they're pulling a fast one. If you can't justify it in fifteen pages, you can't justify it. If you can't explain it in fifteen pages, you're probably legislating from the bench. Fifteen pages for the majority opinion, five for dissents, three for concurrences.
uhhh you can't just say that and not elaborate haha
I have no credible anything. I've heard vague insinuations that the ranch was actually a brothel. But mostly, it was his death absent any apparent weakening or illness, out of nowhere, and his importance to the court.
More options
Context Copy link
More options
Context Copy link
While I agree here -- if the court does not simply capitulate, the Democrats will keep trying to screw with it -- there is another option, which is that the Robed 9 declare their supremacy openly and strike down the legislation.
But I'm not sure that Gorsuch and Thomas believe in their supremacy.
More options
Context Copy link
Ah, the Marbury v Madison option.
That's a misconception! See The Irrepressible Myth of Marbury, by Michal Stokes Paulsen.
Marbury merely implied that justices could interpret whether statutes were constitutionally legitimate in the cases before them. This is obviously correct—they swear an oath to it, and the Constitution is law, supremacy clause, etc. That does not say that it binds the Executive or something in all other similar cases, they are bound by their own, independent, oath to support the Constitution, which implies that they themselves are also to interpret the constitution within their own sphere.
Subsequently, the Court has asserted Judicial supremacy, but that's not what Marbury said.
More options
Context Copy link
More options
Context Copy link
It's not clear that the Robed Nine would win in a direct contest of wills with the federal government. If Harris says, we aren't going to listen to any decisions made by an improperly constituted Court, and will ignore them, then what happens? What seems most likely to me there is that Judicial Review is removed from American government going forward, the death of the SCOTUS, with original jurisdiction cases remaining a marginal lacuna to be dealt with in time. Is the alternative a gamble on violent outcomes, or governmental breakdown? I have trouble picturing John Roberts and Brett Kavanaugh signing up for that, though governments have broken over less.
The fun possibility: we might get a SCOTUS Avignon papacy, with two SCOTUSes sitting separately ruling each other illegal, with neither side being determined enough to take violent kinetic action, but simply ignoring each other for decades, with the result being legal chaos until we get a reunification of the belts (presumably) when Republicans win enough elections to claim a majority on the 18-year court or Democrats win enough and Republican justices die enough to get a majority on the lifetime court, at which point the conflict will conclude.
ETA: Thinking about it more, it seems like the decisive vote would shift over time in the current nine. It requires six to sit. Assuming simplistically that the Ds are pro-term limits and the Rs are against, the third term limit appointee would give the term limit court a quorum once the OG Ds show up as well. You could have a situation where first the OG SCOTUS excludes the term limit appointees, and then once the majority shifts the term limit SCOTUS convenes and the remaining OG justices can choose to caucus with them or not.
This is all starting to remind me of the periods in Ottoman history when independent rulers in North Africa paid nominal allegiance but were not under any concrete control.
Note that it recently more-or-less happened in Poland.
More options
Context Copy link
Nor is it clear they wouldn't.
Roberts and Kavanaugh wouldn't. Thomas might, he's getting cranky in his old age. But I was more thinking that if the Republicans managed to put it off a few terms and got a few more firebrand justices on the court. And/or provoked the Democrats into being more openly anti-Court. A slim Democratic majority trying to strip the court of independence could get pushback under those circumstances.
I'm thinking about it more, Republicans should compliance jurisdiction. Give the senior justices more options to hear cases, say cases about constitutional rights, or to vote on cases when it's 5-4. That would at the very least preserve the R majority until 2030, and might turn the whole project into an argument.
More options
Context Copy link
More options
Context Copy link
I’m rooting for an Avignon court, but a true Avignon court. One where the people gather to demand a solution, but just break into the court’s wine cellar instead and we wind up with the states choosing one of 3 courts to follow.
I mean if you at that level of escalation a car bomb seems a bit more elegant doesn't it?
I want history to rhyme better, the third compromise option nobody wanted needs to be imposed by an angry mob drunk on the court’s own wine.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Wouldn't it still be the case that justices need to retire before their replacements take their places? And that Alito/Roberts/Thomas would not retire before the courts determined whether or not the law was constitutional?
Constitutionally, there's nothing specifying 9 seats. That's only by statute and convention. In the senior justice model, they don't actually lose their seat, just the ability to do anything useful with it. There wouldn't be anything stopping Congress from appointing more justices except norms.
I imagine there would be a constitutional challenge—no idea how Alito, Roberts, Thomas would be treated in the mean time. I'll assume the court rules it's unconstitutional, though I'm not sure whether they would. It would still be the case that any new justices appointed would remain. The main advantage that any swift challenge would bring would be to make it obvious to everyone that they'd be court-packing, making it politically harder to appoint more justices.
I think there is a solid separation of powers argument due to long standing practice. With that said, who has standing?
I guess anyone who loses before the new court? But if that’s the case, why would the new court rule for the loser?
The fifth circuit will invent standing.
That being said, democrats’ past tinkering with the rules of American democracy has not tended to work in their favor. Pretty good chance this backfires and democrats skeet shot the functioning of the constitutional government over abortion for nothing.
More options
Context Copy link
More options
Context Copy link
Sure, I get that. But you guys have the whole thing where new statutes get stayed when they are challenged in court. So in this scenario where the Democrats pass a bill allowing them to appoint new justices, that new law gets challenged and reviewed before it goes into operation, right? So there wouldn't be any new appointments prior to the bill being found unconstitutional, unless I've misunderstood something.
Besides which, the law as it stands says it's 9 justices. So even if appointments get made, if the new law is overturned then you go back to that. So in a scenario where Alito/Roberts/Thomas were given "senior status" and new appointments were made, then the law gets found unconstitutional... then you have 12 justices and the law says there can only be 9. So the first most obvious thing is not to allow that circumstance to occur in the first place, and the second most obvious thing is to invalidate the new appointments made under an unconstitutional law.
True, these are relevant details. My gut is that since appointments are a constitutionally provided thing, and the statute is merely federal law, they couldn't be stopped from appointing people, nor would their appointments be dependent on the validity of the statute. But I really don't know; good point about a stay.
More options
Context Copy link
Generally, when striking down laws, SCOTUS only strikes down the part that's unconstitutional. The hypothesized law would look something like this:
The point Felagund is making is that #2 would be struck down but #1 is not unconstitutional and would thus stay.
I guess that's possible, but it would depend on the technical language of the bill, which we don't have. It could also end up being written in a way where that potential outcome doesn't occur. And by the time it made its way through the judicial process it could end up being the President after next who first gets to use it. Seems a bit early to be declaring it an end-run around court-packing norms just yet.
More options
Context Copy link
More options
Context Copy link
Standing would be an issue
Surely Thomas, Alito, and Roberts would have standing.
Though of course they would need to recuse themselves from the case if it got to SCOTUS which creates its own complications.
The ones who would inherit the power vacuum caused by recusal would, by the same logic, need to recuse themselves, leaving nobody.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Catastrophizing over a long-ass shot like this is unwarranted. This SCOTUS reform bullshit is less likely to happen than Trump being elected for a second term. Additionally, this catastrophozing has the exact same crunch as the people who cried over Jan 6th, calling the participants traitors.
Therefore, until we have a text that actually states how it would work, there is really no point in debating exactly what would happen.
Additionally, if I was so concerned about this, the solution would simply be to make sure to win and get justices in that will give rulings I want on a consistent basis. That would necessarily require making sure my party continues to get elected.
Similar to how the "fix" to project 2025 for Democrats, should it succeed, is to make sure you win the follow-up elections.
Your solution to turnkey tyranny is to...win every election forever? That doesn't sound stable to say the least.
That is, in fact, the premise of both democracy and republicanism. Until some other form of governance appears, it is what the USA operates under.
No, the premise of republicanism is restrain power to make insufficiently popular tyranny hard to enact.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Here is one proposal’s specific text.
It describes this as an exercise of the rulemaking power of the senate. What does that imply, exactly? I assume the house would still be needed.
I'm not sure. Confirmation of justices is solely a Senatorial power, so it could just be motioning around that part of things, both to say that the bill's appointment scheduling stuff is not dependent on House votes, and imply that the Senate can change it again at any time they want.
The rest of it needs to get passed as a full law, including House and Presidential approval. There's some serious questions about how well jurisdiction-stripping could work out as a pragmatic question -- AEDPA is pretty illustrative -- but to the extent it does anything it has to be part of a federal law. Limiting when the President can submit a SCOTUS nominee might or might not be constitutional in any case, but it definitely wouldn't mean anything as solely a senatorial rule except to say that the Senate would auto-refuse (or auto-not-vote).
More options
Context Copy link
More options
Context Copy link
The severability section at the end amuses me greatly.
More options
Context Copy link
If I'm reading that language right, the effect would be that the president makes his two nominations each term, and if that pushes the number of justices above 9, the older ones don't vote on appellate cases (i.e. most cases).
If this version were enacted President Harris would almost certainly miss the date for the first nomination, and so only get at most one nomination. Doesn't seem like the scenario @Felagund is worried about would occur.
Is there any reason they wouldn't amend that provision?
I mean, I could postulate some, but it's honestly way too early for that. Never mind amending, they could just vote on a differently-drafted proposal.
I've seen plenty of badly-drafted bills and I'm not going to tell you not to be alert and concerned about the potential for negative consequences. But until we see legislation to the contrary I think it's sensible to at least consider the possibility that the intent of this effort is exactly what it's being sold as rather than a stealth attempt to pack the court immediately.
More options
Context Copy link
More options
Context Copy link
That depends very heavily on the law not getting passed before January 20th, 2025:
Or, if passed in the new session, not being modified.
True, but there's a Republican house right now, and if the Democrats win the house my understanding is that the new congress doesn't sit until Jan 13th, and it would be pretty remarkable to pass a bill like this a week into a new congress.
It'd be a remarkable bill to pass in any circumstance. I don't see a rule against it, even for the light value of rules that could be nuked a la filibuster.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
We don't have any proposed text. It would all be up to how they design it exactly.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
It's not that long of a shot. Manifold puts it at a 65% chance of happening, should they get a trifecta, which is not too unlikely either. It's entirely possible that I've been overstating things, but it's at least likely enough that it should be on our radar as a danger.
Yes, it is of course less likely than Trump being reelected.
I don't follow your reasoning here.
Do I read you correctly as saying that if this happens, and you win later, you can just install a slate of new justices, and there's no real harm?
If so, I disagree. The role of the federal judiciary shouldn't be a political tool, but should be to faithfully interpret the law and decide cases brought before it. I don't want yes-men on the court, I want men who will faithfully execute their constitutional office. Repeatedly expanding the court or modifying what it could do would, I imagine, tend to increase how much those present are motivated by partisanship. The Supreme Court is in the present moment the only branch that's making any real effort to hold the government to what the Constitution says. Seriously weakening that would be bad.
Sounds like you're strung up on is/ought.
The Supreme Court is an inherently political institution, therefore it is good to ensure that we cycle through members of our highest tiers of government on a regular basis to prevent too much power creep.
I don't see how I'm doing anything of the sort. Could you elaborate?
Yes and no. Yes, people's political views influence their legal opinions, and vice versa. Yes, the political process is how people get onto the court. But the court does not make decisions just based off whatever is politically expedient. Its members often consider themselves to be trying to perform a conscientiously non-political task, which influences how they decide things.
You provide no explanation.
I don't see why this would result in that, in the abstract. That isn't at all obvious to me. It's not like presidents decide to prevent their own power creep, and they're gone in at most eight years.
In the concrete case, Justice Thomas is the most limited view of what the judiciary can do, wanting to reduce its power, so removing him from the court first is not conducive to preventing power creep.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link