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PaperclipPerfector  3mo ago (text post)   32892 thread views

Culture War Roundup for the week of August 5, 2024

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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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