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PaperclipPerfector  1mo ago (text post)   32638 thread views

Culture War Roundup for the week of August 5, 2024

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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.

(I'll always think there was more to Scalia's death)

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.

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.

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.

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.

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.

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

Note that it recently more-or-less happened in Poland.

It's not clear that the Robed Nine would win in a direct contest of wills with the federal government.

Nor is it clear they wouldn't.

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.

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.

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.

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