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I think I agree with a lot of what you've said about institutionalism, etc.
How do you fit this framework with all the Democrat-led attacks on the Supreme Court? They seem intent to add new justices who will be servile towards their interests (court packing, terms limits bills), or to let Congress strip them of whatever power they feel like, whenever they feel like it (the No Kings Act). Either of these, but especially the latter would be extremely destructive towards our Constitutional order.
To be fair, I'm strongly against changing the Supreme Court. The difference there is that the Democrats are still working within the framework of government that exists. The constitution gives the president the right to appoint justices, and there is no cap to the number. Would it be a break with tradition to pack the court? Yes. Would i support an amendment capping the number of justices? Also yes. But the fact remains that everything being done is following a precedent that has existed for quite some time. Partisan justices are nothing new. Even threats of court packing are nothing new (FDR).
When you start acting outside of the institutional framework, you get into really dangerous territory, especially with respect to elections. The threat of escalation is high. If one side does something, the other side will do it too. I really don't want to see every election being questioned by the loosing side. If that happens, it's only a matter of time before we get real political violence.
Hmm. Two points. First, I don't know that I'm seeing that big of a line between what you're using as a deciding factor (Trump using dubious legal theories and severe norm-breaking to try to remain in power) and what I'm pointing to (democrats using dubious legal theories and severe norm-breaking to try to seize power). Both of these look really bad to me, perhaps assuaged very slightly in each case by there being some people in each camp thinking that they're fixing genuine wrongs. Both are sort of operating within the institutional framework, sort of not. (In the case of the SCOTUS schemes, they have components that are probably unconstitutional.)
Anyway, court packing has been widely held to be a terrible and destructive idea for years—people are not at all in favor of FDR's actions, across the political aisle. And I'm not aware of any precedent for doing things like the No Kings Act. I don't think you're realizing just how destructive the latter would be. Letting Congress move court jurisdiction to whatever justices they prefer, and instructing them to rule whatever way Congress prefers is very bad.
The continuing independence of the federal judiciary matters, and Republicans are the only ones treating that institution as worth anything.
I agree. I think an independent judiciary is one of the better aspects of the US government system, and I'd really hate to see it done away with. That being said, in my mind, it comes down to probabilities. I think simply allowing Trump to win after having attempted to circumvent the election results the first time would signal that doing so is now fair game. I think we would see far fewer uncontested elections. And I think ultimately it could lead to electoral violence in the fairly near future.
On the other hand, I think the probability of a Democratic sweep is relatively low. Even in the case of a Democratic trifecta, I think the likelihood that all senate Democrats would be onboard with something like this is very low. And finally, if that law did somehow pass, I suspect that it would then be held up in courts for a very long time before being implemented, if not struck down entirely. In other words, the risk of the worst case scenario occurring there is extremely low.
So by that measure, the safer path is to go with Harris (and all republicans down ballot). It's certainly not a pleasant vote. But I'd like to think the reasoning behind it is sound.
Hooray, now we're talking about the likelihood of a small-ish set of events, instead of a nebulous variety of considerations: how likely are these?
First, considering schemas like those Trump's attorneys were pushing, what do you think of the Electoral Count Reform and Presidential Transition Improvement Act of 2022? Do you think that would decrease the ability to do so? Something like that was clearly the intent of its passing.
Secondly, how and why do you expect that to vary depending on whether Trump wins? I'm not seeing anything to suggest that, should Trump disappear, the opposing sides would stop seeing the other side as entirely unable to be trusted, and worth pulling out all the stops against, and I don't see a loss here as likely to help with that in any way. Could you explain your model here a little more fully?
On the other hand, I think it is fairly likely that we get a trifecta. I'm not sure how accurate it is, but Manifold has it trading at a 24% chance. This might be a little of an overestimate (summing individual elections don't match other markets), but it doesn't seem crazy, once you consider that the three should correlate with each other.
I trust this market much less, as there's less activity, but they estimate a 33% chance of a democrat trifecta trying to remove lifetime appointments for the Supreme Court. Senator Whitehouse has said that it would be virtually certain to happen, as it would be bundled with a lot of other desirable things. (Yes, I recognize that those two do not agree.) If we go with the smaller number here, for the sake of the argument, and multiply, that gives an 8% chance. That's high! (And only considering one sort of attack on the Supreme Court, not things like packing or the No Kings Act.) Do you think that that is a significant overestimate?
To me, which party is in office seems to have little long-term effect on how willing people are to break every norm and turn more and more to just what gives power (if anything, things like the R-backed bill to require proof of citizenship should help). This may be wrong! I'd love to hear why. On the other hand, which party is in office seems to have a pretty big effect on whether the judiciary is turned to the will of activists or stripped of power.
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