The Nation is witnessing the determined delegitimization of both its Federal and State judiciaries and the systematic dismantling of its system of justice and Rule of Law by a single man – the former President of the United States.
— @judgeluttig (@judgeluttig) March 29, 2024
.
Ultimately, however, it is the responsibility of the entire nation to protect its courts and judges, its Constitution, its Rule of Law, and America’s Democracy from vicious attack, threat, undermine, and deliberate delegitimization at the hands of anyone so determined.
— @judgeluttig (@judgeluttig) March 29, 2024
This article is written by a conservative, and I vehemently disagree with a bit of it, but I think it’s an important article.
The Conservative Legal Movement Got Everything It Wanted. It Could Lose It All.
The conservative legal movement took shape in the wreckage of the Nixon administration. As America faces the prospect of a second Trump administration, it faces an existential test.
Richard Nixon—neither a conservative nor a constitutionalist—had the opportunity to reshape the judiciary, with four Supreme Court vacancies occurring during his term. Yet a shambolic process and limited judicial vision yielded multiple failed nominations. And one of the justices he did appoint—Harry Blackmun—wrote the opinion in Roe v. Wade, which established a national abortion policy with little legal justification.
The case demonstrated, conservatives argued, that the court had begun to act like a legislature, subverting the careful constitutional design of separation of powers. The drift of the judiciary into policymaking threatened the rule of law and frustrated America’s promise of self-government.
Against the backdrop of Roe v. Wade and the Watergate scandal, which drove Nixon from office and Republicans to a historic minority in Congress—allowing Jimmy Carter to push the courts even further left—the conservative legal movement began to take shape. Students at leading law schools founded the Federalist Society in 1982. It would become the flagship of legal conservatism, standing for the proposition that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” A constellation of other libertarian and conservative legal organizations, centers, and advocacy groups followed. And Reagan-era Attorney General Edwin Meese helped popularize the understanding of “originalism” and the related idea of “textualism,” doctrines holding that laws, including the Constitution, have knowable meaning and should be interpreted according to the ordinary public understanding at the time of enactment.
By 2016, the conservative legal movement could congratulate itself on remarkable success. Its ideas now influenced the law, the academy, and even popular discourse. Republican candidates increasingly self-identified as “constitutional conservatives.” Constitutionalism animated Tea Party rhetoric and the priorities of the Republican majority during the Obama administration.
Then Justice Antonin Scalia, the intellectual champion of the conservative legal movement for decades, died unexpectedly in February of that year. He left a divided Supreme Court with a historic vacancy in an election year and decades of advances for the legal conservatives in jeopardy of washing away.
Into this moment descended Donald Trump—neither a conservative nor a constitutionalist. A former Democrat and Bill Clinton supporter, with a curious history of praising authoritarians and an unsteady relationship with both truth and the law, seemed ill-fit to the moment. Pressed on his conservative bona fides, Trump replied acidly: “Don’t forget, this is called the Republican Party, it’s not called the Conservative Party.” His rallies featured increasingly illiberal rhetoric and signature chants calling for the imprisonment of Hillary Clinton.
Another excerpt:
Contrary to the fears of liberals and the misplaced hopes of Trump, conservative judicial appointees upheld the principle of judicial independence. They refused to serve as reliable partisans and handed Trump and his administration important legal defeats. Crucially, Trump’s nominees rejected his baseless claims of a stolen election.
But these advances in jurisprudence came at a deep civic cost. The president with whom legal conservatives allied themselves used his office to denigrate the rule of law, mock the integrity of the justice system, attack American institutions, and undermine public faith in democracy. Beyond the rhetoric, he abused emergency powers, manipulated appropriated funds for personal political ends, and played fast and loose with the appointments clause, all at the cost of core congressional powers.
Republicans in Congress barely resisted these actions and increasingly behaved more like courtiers than members of a co-equal branch of government. They failed to treat either of his impeachments with appropriate constitutional gravity. House Republicans dismissed his first impeachment process. Leading senators not only ignored centuries of precedent by refusing to conduct a meaningful trial, but they debased themselves by traipsing to the White House to guffaw and applaud while the president celebrated his acquittal.
Perhaps encouraged by legislative acquiescence, Trump’s behavior grew more brazen. His term drew to an end with a physical assault on Congress as part of a soft coup. Republican enablers scrambled to dismiss his second impeachment. Later they would oppose both an independent commission and congressional investigations to hold the former president accountable. Ultimately, en masse, they would endorse him for reelection, even as he promises pardons for January 6 rioters and “retribution” on his political opponents.
Through the chaos and lawlessness, too many in the conservative legal movement remained silent—or worse. Now, as the former president faces long-delayed legal consequences for a variety of misdeeds, they stand by his self-serving slanders of our independent judiciary and obscene self-description as a “dissident.” Corners of the right even echo the former president’s strange affinity for foreign strongmen, favorably contrasting the illusion of order provided by the jackboot to the sometimes messy ordered liberty of our civic tradition.
And another.
Ominously, there are signs that the illiberalism of the Trump era has begun to infect how some legal conservatives think about their core commitments to the role of the courts. Partisans promise that Trump in a second term would nominate judges more loyal to the president while Trump-friendly, post-liberal thinkers develop theories like “common-good constitutionalism” in which conservative judges would abandon originalism in favor of promoting certain ends. Adrian Vermeule, the leading academic proponent of the latter view, has argued that “originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” It would be deeply ironic, and the ultimate failure of the movement, if the “but judges” bargain were to end with purportedly “conservative” judges legislating from the bench.
The Founders knew that the best judges could not guarantee American liberty and preserve self-government. They considered the judiciary the least powerful, and least dangerous, branch. They put their faith, instead, in the checks and balances of the structural Constitution; they believed a self-respecting Congress would resist an overreaching executive and ambition would “counteract ambition.” Ultimately, they rested their hopes in the American people to demand this of their leaders. Washington, in his farewell address, wrote: “It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.”
The experience of the Trump years has badly damaged these bulwarks of American liberty. Congress stands disarmed, by choice, before an ever-overreaching executive. The American people, poorly grounded in civics and frustrated by politics, do not expect a commitment to constitutionalism from their leaders. Many demand the opposite. Voters now have less faith in their government institutions and neutral proceedings, more animosity toward the opposing party, and a deepening desire that elected representatives “fight,” not legislate.
I believe that some of the opinions in this article are dead wrong, but it’s still work reading for important issues outlined here.
To be sure, many alarming trends predate Trump, and culpability for them lies across the ideological spectrum. Congress has long enabled abuses by presidents of both parties. Democrats responded to Trump with norm-breaking of their own. They now recklessly delegitimize the Supreme Court and paint all Republicans, even Trump skeptics, as existential threats. Some of the legal proceedings against Trump are flawed.
But saying “he didn’t start it” and “Democrats do it too” can only accelerate the civic rot that threatens the ongoing viability of the American experiment. Many otherwise sound-thinking conservative lawyers have comforted themselves with faith in the resiliency of American institutions and values. But conservatives should know that traditions and institutions can degrade over time, that liberty under law is not the natural state of man, and that defending our patrimony requires a new commitment from each generation.
One more.
The next generation of legal conservatives must put as much emphasis on the political branches performing their proper constitutional roles as the previous generations did on the judiciary. A new emphasis on a limited federal government, a properly constrained executive, and narrowed agency powers could lower the stakes of presidential elections. Promoting federalism and local control would allow for diverse policy choices properly suited to a diverse country. A renewed commitment to the First Amendment and a broader culture of free speech affirm the ongoing process of democracy and the indispensability of mutual toleration. These values can move us away from a quadrennial battle for lasting supremacy which justifies alliance with the worst actors on our political scene, in favor of the sustainable self-government vision of our Founders.
Conservatives should also study and confront the roots of congressional dysfunction and take seriously public frustration with the electoral system. Congressional capacity and incentives, a functional budgeting process, carefully calibrated filibuster reform, overhauls to the primary system, and experiments with innovations such as ranked choice voting deserve more attention from the political right.
Above all, legal conservatives must be willing to oppose constitutional malfeasance or abdication, regardless of which political party perpetrates it. We can no longer stay silent, or “but judges” ourselves into complacency through moments of profound assaults on our common values that make self-government possible. We must engage with non-lawyers to make the case for the Constitution, the rule of law, and democracy itself. We can and must find common ground with our fellow citizens in the center and on the left.
Open thread.
CaseyL
The Betrayed Conservative; the “I didn’t mean it like that!” conservative.
It’s kind of cute, seeing people like Luttig still groping around for arguments about upholding the constructs of society and thinking the modern GOP cares a tittle about those. He can’t see that destroying the constructs of society is precisely what the global oligarchic complex intends; he can’t see that the GOP is all in on it.
He’s yelling into a void.
Trollhattan
Editor schmeditor, my typo-of-the-day nominee.
Now let’s work on that core–splish, splash, aaaaand hold.
Baud
@CaseyL:
Aren’t we all?!
TBone
After Judge Luttig freaked me out with the Supremacist Court’s ruling look on his face when he read it (that’ll teach me to get too close to the big screen and be mesmerized like he’s a king cobra and I’m a small furry rodent) I’m taking everything with a grain of salt and a huge dose of “we’ll see.”
lowtechcyclist
While I applaud what Luttig is saying, he should have been saying it when Trump was nominating judges and Justices. Where was he then?
Baud
@Trollhattan:
It is beautiful there. Apparently, it has gotten less clear over the last 50 years.
scav
@CaseyL: Imagine waking up and realizing your lifelong dreams, utopian ideals and focus of work are actually hellscapes.
B1naryS3rf
Am I the only one who thinks it’s probable that sooner or later one or more solidly blue states, or perhaps even a red, will refuse to enforce a SCOTUS decision? Birth control, taxes, any number of live or die issues which would be intolerable. I’m not a Civil War fantasist, but I can see a very ugly day when the deligitimization of the system becomes total.
lowtechcyclist
@CaseyL:
That is exactly it. Like the old toast goes, “confusion to our enemies.”
Knowing they can’t beat us straight up, Putin & Co. are out to weaken our institutions and undercut our willingness to support Ukraine today and NATO members tomorrow as they seek to rebuild their post-WWII empire.
Putin, Trump, and the vast majority of GOP officeholders don’t give a damn about our institutions; they only care about getting their way. So the latter want a judiciary that will rule in the GOPolitically correct manner as long as they can come up with the tiniest legal fig leaf for justifying it. Few on their side will listen to Luttig.
John S.
@B1naryS3rf: Texas already ignores court rulings and does whatever the fuck it wants.
Hilbertsubspace
Cultist who opened gateway to Chaos realm unhappy with demons wild behavior and poor planning skills.
RobertS
This article is dripping with bad faith and outright dishonesty. “Originalism” has been shown to be an empty fraud that will bend to serve any Republican Jurist’s goals.
I’m sort of amazed anybody wrote this with a straight face. The Roberts court was a reliable partner for Trump, providing legal cover for his taxes, and signing off on the plainly illegal Muslim immigration ban, while waving away Trump’s public statements of intent.
jimmiraybob
I wrote this to a friend and it seems apropo (sorry for using such elitist woke words).
“Given the reactionary regressive zealot’s logic on display today (stop calling them conservatives), the Constitution itself was wrongly decided and is therefore null and void. Up until 1789, the year that the Constitution was adopted, there was no “Nation’s deeply-rooted history and tradition” (AKA ALito logic) of constitutional government or liberal democracy on the continent unless you count the Iroquois Confederacy preceding the American Revolution.
“In fact, there was and never had been a United States of America up to that point. Especially one embracing such stunningly liberal ideals such as rule of the people, and equality, and NO Kings, and separation of church and state, that black slaves were humans worthy of dignity and freedom [as opposed to the colonial “deeply-rooted history and tradition” of rendering them sub-human property (chattel) in perpetuity].
“If anything, prior to the adoption of the Constitution “we” were a collection of disparate and divided colonies and people’s of the British Empire.”
To sum up, stop calling the Trump/MAGA/GOP reactionary regressive culture war crazy caucus zealots “conservative.”
B1naryS3rf
@John S.: true enough. So that defiance is just Pandora’s box opening some more. https://www.latimes.com/opinion/story/2024-01-29/opinion-heres-whats-at-stake-in-texas-dispute-with-the-federal-government-over-the-border
jimmiraybob
@RobertS: Doesn’t the constitutional amendment provision as well as Amendment IX* argue against originalism?
*”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
B1naryS3rf
@jimmiraybob: the whole fraud is inferred in the very language. Rethugs are masters at sowing semantic confusion. “Originalism” means effectively that you not only can perform a perfectly broadband séance with the Founders, but that they would support you never changing the law with the times. Conveniently ignoring the parts where they told you TO DO THAT VERY FUCKING THING.
Hoodie
That article is mostly True Scotsman drivel. He never gets to why authoritarianism is a big problem for American conservatives and one they need to own. One thing I rarely see anti-Trump conservatives do is explain why they think their party was vulnerable to being co-opted by someone like Trump. After all, Trump hovered around Dem pols for years but never got anywhere as a possible candidate, but he succeeds on the first try as a Republican. Until I see some true consciousness-raising about that, why would anyone trust these assholes to reform the (other) political branches when they’ve done such a spectacular job delegitamizing the courts? Democrats continually adopt progressive reforms to elections; Republicans yak about inclusion, then fall in line behind someone like Trump because, ultimately, they only care about power. Fuck them.
Jeffro
why, it’s almost like supporting unprincipled people and giving them vast power is a bad thing.
whoever could have seen that coming?
Jeffro
It’s quite possible.
Ksmiami
@Jeffro: blue states should stop paying taxes to a Republican government.
Chris
There’s really not much point in continuing to read, is there?
Chief Oshkosh
Luttig is like a lot of prominent, “respected,” jurists. Mentally he just plods along. This is not necessarily a bad thing in a judge. Lack of original thinking and insight might help such people to make rulings based solely on the law. However, being generous, it means he’s never curious about how things came into being.
He may eventually plod forehead first right into the wall called “reality,” but maybe not. He’s no spring chicken.
prostratedragon
@Jeffro: I think the dare is deliberately out there because of continuing resentment over Brown and such.
Chris
Oh my. There really wasn’t much point in continuing to read, was there?
zhena gogolia
All I give a fuck about is not having Trump as president again.
I don’t care about anything else. So sue me.
Smiling Happy Guy (aka boatboy_srq)
Nunziata’s observations and exhortations might be a place for finding common ground – in a world where the conservatives” he is trying to advise weren’t convinced that anyone not exactly lime them was some godless Socialist pedophilic cannibal. He seems intelligent but he clearly hasn’t any acquaintance with the people he wants to persuade.
Smiling Happy Guy (aka boatboy_srq)
@B1naryS3rf: hasn’t Texas already done that?
K-Mo
@lowtechcyclist: I also think he’s been late to the scene. But by a good 20-30 years. He should be more fully throated about the mea culpa that’s lurking beneath the surface of this stuff.
Brachiator
The Republican Party and its leadership are complicit. They enable and support Trump.
To this extent, the Republicans are de-legitimizing and destabilizing democracy.
gvg
@Hoodie: The reason they vulnerable is that they are at a point where they are going to start losing elections often for demographic reasons unless they share power and respect with other Americans that they don’t like. There was no message or slogan that could cure that.
They waited too long also. It will take time for those they have betrayed multiple times by saying we will be nicer, and then not live up to that. That means they would have to do nice things for minorities for several election cycles before getting any significant votes, AND they would immediately lose more racist voters.
So they embraced lies and vote fraud to prevent that from happening, pretty much what they claim we do
They do not know how to face that their ideas are not popular and don’t win elections.
Jeffro
I’m down with that. Here’s hoping it never comes to that…by never having a Republican government. =)
Anonymous At Work
TFG is everything that Nixon-onward have claimed to be “conservative” and “Republican”. Just goes to show the power of Ancient Curse #2: May you get what you ask for.
HumboldtBlue
@CaseyL:
The whole fucking whiny-ass piece reads like that. Oh, and those poor, poor put-upon conservative law students in 1982 who just wanted to clarify what the law is and not what it should be is one of the stupidest fucking things ever written.
jimmiraybob
@Ksmiami: “blue states should stop paying taxes to a Republican government.”
I hear more and more from the crazy caucus about a national divorce. Maybe the Dems should recommend a temporary separation first and cut off federal funds. See how it works out.
HumboldtBlue
@Chris:
Nope.
Josie
Thanks for an interesting read, WaterGirl. I just can’t go along with conservative thought processes, even if the writer is highly intelligent.
In the sentence below, shouldn’t “work reading” be “worth reading?”
“I believe that some of the opinions in this article are dead wrong, but it’s still work reading for important issues outlined here.”
narya
I call bullshit on this:
“Limited agency powers” has been a fever dream of the right forfuckingever–see the cases that SCROTUS keeps hearing. Frankly, the mifepristone case has a whiff of “limited agency powers” hanging over all of it. Where was the call for a “properly constrained executive” while TIFG was in office? And I call bullshit on ALL of it until gerrymandered maps are removed in every single last fucking state. And, while we’re at it, get rid of the electoral college. Even though the Senate awards votes to land rather than people, I’ll let that stay as-is if you ungerrymander the maps and get rid of the EC.
waspuppet
Signs? BEGUN?!
Seriously, I wouldn’t know what to say to Luttig other than to ask him to ponder the fact that literally no conservatives will do what he advises, and tell me what I should conclude from that.
West of the Rockies
Just saw a pic of Don Jr.’s wife/partner. I don’t mean to looks shame, but I might refer to her as Kimberley Gargoyle. She just looks so damn ragey now.
VFX Lurker
I saw a free screening of Civil War (2024) last night. Director Alex Garland wrote this story in 2020.
The story begins at the end of the war, and only hints at the cause. At no point does the film state “Electoral College”, but it’s the simplest explanation for an unpopular authoritarian president in his third term.
It’s an earnest tribute to war photography, but I’m not sure if I’ll watch it again.
...now I try to be amused
@RobertS:
Vermeule saying “originalism has now outlived its utility” was a tell.
Originalism is a political equivalent to religious fundamentalism; they’re both reactions to modernity.
HumboldtBlue
@narya:
PREACH!
(And I like to think there are puffs of flour powder wafting throughout the room as you pound out your righteous screed!)
TBone
Local news fixated on President Biden’s landing at Wilkes Barre airport. ☺️ Gov. Shapiro and Mayor Paige Cognetti are en route with him, Ridin’ with Biden.
Brachiator
An interesting article, but ultimately just the same old tired and false assertion of the supremacy of conservative “values.”
lowtechcyclist
@Chris:
Richard Nixon wasn’t a conservative.
@Chris:
Neither was Trump, until acting like one gave him a path into power. I’m sure he’d have been just as happy to be a left-wing authoritarian if there’d been a window for that on the Dem side.
TBone
@VFX Lurker: I was interested in seeing that after I saw a promo for it on a popular Sunday morning show. I understood that it was meant to show the masses that you really don’t want another civil war. Am I mistaken about that impression?
SomeRandomGuy
The idea that RvW was some kind of special affront to “conservatives” is a lie. Small government conservatives would find RvW to be proper.
1) until viability, *EVERY OTHER MEDICAL PROCEDURE* treats a pregnant woman as one person, with an additional risk. Thus, medical ethics are clear: the living, breathing, woman is the primary medical concern.
2) After viability, the woman’s health retains primary importance when the doctor certifies abortion as therapeutic – i.e., medically necessary. You might not like this, but, only a doctor is *there* and able to judge all the circumstances. That a random asshole on the street has an uninformed, different opinion, isn’t really a matter before the court – believe it or not, religious beliefs do not give you standing. No, really, they don’t!
3) Outside of this, we have no real rights to regulate abortion more than we would any other medical procedure.
Now, that’s a decision, not about *policy*, but about *freedom*. It’s like, “cops can’t beat down Black people for no reason,” is about freedom. Sure, the policy was, police can beat down Black people for no reason, and just claim the Black people were guilty of horrible crimes, plus resisting arrest, but, the courts are saying that Black people have the right not to be harmed by cops, unless said Black people are doing something wrong, *and* force is demanded by the situation – not merely “readily apparent as an option,” but *demanded*.
So, you see, courts finding Black people can’t be beat down by the cops, for no reason, that’s not a policy decision. Neither is RvW. Both said that people have freedoms that can’t be taken away. Remember: RvW is based in one right, and one right only: the right to bodily autonomy, expressed as “privacy” – a private decision, the government has no business interfering in.
“He is no lawyer who cannot argue both sides,” we are told, and hence, judgeluttig isn’t much of a lawyer, to proclaim RvW was policy.
Note: the moron is now arguing that policy *is* the point of the courts. Talk about amoral – advances for his side might wash away, so he elides the theft.
TBone
@jimmiraybob:
Nice touch. Original Homeland Security system.
B1naryS3rf
@Smiling Happy Guy (aka boatboy_srq): see reply #14. Yes. I needed reminding. But that will look minor compared to what could come down the pike.
TBone
@jimmiraybob: 14th Amendment pertinent section is in plain, unambitious language also too. I guess it’s too simple.
HumboldtBlue
@TBone:
Here’s a look at the preparation taken ahead of Biden landing in New York and the logistics involved. Rather extraordinary turnout of men and equipment.
cain
Can’t believe he started off with ‘Activist Judges!’ JFC.
TBone
@zhena gogolia: this gets me over the rough patches
🎶
https://m.youtube.com/watch?v=Q-Q3gd6S1as
Kay
Trump is saying the judge is “running roughshod” over his lawyers which is what criminal defendants say when they are preparing to blame their lawyers for crimes of the defendants. It’s the “wah, wah, why won’t you fight for me” part of the proceedings.
Oh, goody. He’s spiraling fast now.
Jay
https://www.msn.com/en-us/news/us/the-supreme-court-effectively-abolishes-the-right-to-mass-protest-in-three-us-states/ar-BB1lEPev
StringOnAStick
@jimmiraybob: I will subscribe to your newsletter!
TBone
@HumboldtBlue: 👍 every stop they make will be on my local news, we’re PA proud today 💙
Chris
@lowtechcyclist:
People who become conservative because that’s what offers them a path to power are called “conservatives.” What they would’ve been in the mirror universe doesn’t have much to do with what they are in this one.
TBone
@Jay: JFC
New Deal democrat
A discussion of this argument could take a book. In fact, it has already spawned several.
As I have repeatedly posted, the Supreme Court was the most revilotionary concept in the US Constitution. The House and Senate were modeled after the British House of Commons and Lords, and the Presidency after the post-Glorious Revolution monarchy, except for terms of office. But unlike the post-Glorious Revolution British judiciary, which also serves on “good behavior,” the US Courts can declare acts of the legislature to be null and void as Unconstitutional. Further, there is no effective check on this power. As we saw in Shelby County, even passing a Constitutional Amendment (the 15th) can be effectively interpreted away by the Court. And unlike in the UK, where a legislative majority can remove a judge from the bench, here we require 2/3’s of the Senate.
The feature of “judicial legislation” goes all the way back to Chief Justice Marshall. It just depends on whose legislative agenda is being declared null and void.
A good rule for republics and “the rule of law” is, the more power in the office, the more diffused among officeholders and the shorter their terms. The US Supreme Court turns that maxim on its head. Any real reform must reverse this.
Secondly, over the long term the Congress has frittered away many of its powers, including but not limited to judicial oversight. The War power, the Contempt power, and now the subpoena power have been allowed by Congressional timidity (letting others take responsibility and along with it the risk of losing office) to wither away. Congress can and has added seats on the Court, required the Court to hear all cases in front of it, the Justices to actually ride circuit, and even cancelled a Supreme Court term.
The timidity of career politicians in Congress, together with the ever increased awareness that a majority of the Supreme Court can do literally anything it wants are the root causes of these problems.
TBone
Tiedrich today 😍
https://www.jefftiedrich.com/p/dozy-dipshit-don-snorelone-falls
StringOnAStick
@Jay: This gives me the same feeling of dread that the Citizens United decision did.
HumboldtBlue
As a distraction and for a hearty chuckle, Jimmy Kimmel breaks down Trump’s understanding of the battle of Gettysburg.
TBone
@TBone: foiled by autocorrect AGAIN.
Unambiguous !
And…NOT duck! 😂
What Have the Romans Ever Done for Us?
@RobertS: The biggest transgression wrt legal cover they gave him was not fast tracking the emoluments clause case straight to their desks like they did Bush v Gore and now Trump’s immunity claim.
You’d think a bunch of “textualist-originalists” would have a serious bee in their bonnet about a President violating an actual clause of the original Constitution that our Founding Fathers put in there for national security reasons. Yet they let that slow roll through the lower courts and it didn’t reach their desks until the guy was out of office and they were like well now the point is moot so we don’t have to render a decision.
Melancholy Jaques
@RobertS:
Leaving aside the fact that its advocates never applied originalism consistently, it is really nothing more than “we want to repeal the 20th century.”
zhena gogolia
@TBone: Great scene. Thanks, Judy!
Subcommandante Yakbreath
They’re still waiting for Biden to speak, but if anybody’s interested it’s being streamed here. (I think this link should work…)
New Deal democrat
@What Have the Romans Ever Done for Us?: A comment on “originalism.” It can mean a wide variety of things. For example, I have no problem interpreting an Amendment according to the intent of the Congress that passed it, as reflected in its debates. But that means the Amendment can and should be interpreted to further that intent in light of new technologies and circumstances.
By contrast, “textualism” is a virtual straitjacket. Which I predict will be totally set aside when it comes to laws regulating “ammunition,” which is nowhere mentioned in the 2nd Amendment, always had a separate meaning, and was typically made at home in 1789, and therefore should receive *no* Constitutional protection by a textualist.
japa21
@New Deal democrat: Where in the Constitution does it say the Supreme Court can rule a law unconstitutional? That is a power that the court assumed for itself. And now they have also taken the power to determine the actual facts of a case even when they are not hearing facts.
I do agree with you that there need to be some limitations on length of service, etc. The Constitution mentions lifetime appointments for the judiciary. Is there anything there that says the lifetime appointment can’t be served at several levels, with time limits at each level beginning at the time of appointment to a level and restarting at appointment to a different level. Say 10 ears. A person can serve on the SC for 10 years, and at the end be reassigned to a lower court.
Hoodie
@lowtechcyclist: In the US, “conservative” means white patriarchal authoritarian. Nixon was conservative in that sense, as are most modern Republicans who call themselves conservatives. He was considered conservative in comparison to even the now-extinct GOP liberals of that time, and was the standard bearer for meathead anti-hippie white working class types, much like Trump. The Burkean conservatives of David Brooks’ wet dreams have never really existed in the GOP.
eclare
@HumboldtBlue:
Saw that, hilarious and scary. Colbert covered it too.
dirge
Along with textualism and a few others, it’s a tool in the motivated reasoning toolkit used by bad faith lawyers and judges to reach their desired conclusions, while maintaining plausible deniability.
That said, it’s still just a tool, and still fit for certain purposes when employed by responsible, competent professionals. Of course, that’s a bit like saying that a gun is just a tool.
ETA I’m not sure Luttig is aware he’s been using that toolkit to gaslight himself.
Old School
@eclare:
As did The Daily Show (starting at the 6 minute mark).
Suzanne
@…now I try to be amused:
YES, thank you.
The vast majority of the right do not have any genuine principles, nothing that they would actually believe and follow if it wasn’t somehow immediately advantageous. Every time they pretend to believe something, I remember that it is all in service of their will to power.
The people who are by their nature conservative, in that they want to preserve what has worked in the past, who understand the separation of the public and private arenas of life, and are motivated by pro-social values and rituals… are Democrats.
HumboldtBlue
These fucking GOP clowns are now in the process of futilely trying to impeach Sec. Myorkas. These are not serious people, but that sure as fuck doesn’t mean they aren’t fucking dangerous.
TBone
@zhena gogolia: 💙 Did you see The Good Liars guys confront Rudy, Jr. outside the court? Andrew was yelling into his bullhorn 😆
Andrew Giuliani: “…Soros-funded district attorney in order to bring this case. there’s no underlying felony.”
Davram Stiefler: “excuse me, I’m going to give you five bucks here. it’s a hush money payment. shhh!”
Video in today’s Tiedrich above
TBone
@HumboldtBlue: 😂🔥
lowtechcyclist
@Jay:
Holy shit! So much for “the right of the people peaceably to assemble.”
New Deal democrat
@japa21:
Hence my comment about judicial legislating going all the way back to Marchall.
lowtechcyclist
@Chris:
Yeah, but the the present doesn’t go back and change the past. Just because I’m a Democrat now doesn’t mean I was always a Democrat. Same applies to Trump.
Tehanu
Scalia the “intellectual” champion of the right … well, there’s a big part of the problem right there. And, “Promoting federalism and local control would allow for diverse policy choices properly suited to a diverse country”? I’d laugh, but I’m sure the rightwing flying monkeys are already screeching about how “diversity” is a Satanic plot to force them to accept being degraded to the level of their inferiors — you know, everyone except rich white evangelical males.
SomeRandomGuy
@New Deal democrat: I’m sorry, but you will find no logician who will say that the right to carry an unloaded gun is the right to “bear arms”.
You’re splitting the wrong kind of hairs. What the founders likely intended was, they wanted a ready militia, one ready with its own weapons (so the armory couldn’t be seized).
The states now have one: the national guard units. The right wing thinks that since conscription is still a possibility, everyone subject to conscription is in the militia. However, registering for Selective Service *does not* subject you to conscription, any more than a Social Security Number guarantees you current benefits. Both are in place, in case circumstances change.
Anyway: either the Second Amendment allows everyone, including felons, to bear weapons, or, the Second Amendment has clear legislative boundaries – “shall not be infringed” can’t mean “shall not be infringed, except for good reason, as adjudicated by the courts, by laws and documents that are inferior to this Constitution.”
Well… if the Second Amendment already has clear legislative boundaries, being rightfully revoked from anyone who has too much pot, and crosses the wrong state line, then I don’t want to hear that there are no other legislative boundaries possible.
So: either we can restrict gun ownership, or, felons can own guns. Which is it?
laura
@dirge: The Court’s majority is running on vibes. Nothing but vibes. Standing, ripeness- not much of a concern these days. They want their fever dream of return to a white male land owning aristocracy makes me feel all stabby. Allowing/encouraging the 5th Circuit to run roughshod on the not white xtian shite-bags is consistent with the worst decisions of the
RobertsAlito Court gives the game away IMHO, and by not taking up McKesson v Doe, they signal an intent to allow all manner of J6 wilding to commence on the upcoming election. If the Court decides in favor or requiring a document for purposes of establishing obstruction and overturns J6 convictions I’ll be unsurprised but disgusted, as usual. I hope that somebody can prove me wrong or misguided.SomeRandomGuy
@Hoodie: Personally, I refer to soi disant “conservative” judges as “Republican judges”. If two words, in context, have the *exact* same meaning, then one must exercise extreme caution in word choice.
To say “conservative” suggests there’s something a bit old-fashioned, and careful, about the person or their judgement. Someone who, given a choice between making a huge change, and making an insufficient, yet incremental, change, will likely pick the latter.
To say “Republican” suggests they are an active partisan, choosing their decisions more on what the Republican Party wants – in my very humble opinion, of course. Don’t want to defame anyone for being such a turd-brain they don’t see how actively partisan they are. Oh, I know, they could be all prejudiced and stupid, too, but, face it: prejudices are the difference between a “conservative” who can be convinced, and a partisan, who can’t (because he won’t – oops, I don’t mean he, I mean ‘he, or Amy Bunny Barrette,’ or whatever they call her, behind her back, won’t.)
lowtechcyclist
@Hoodie:
Lordy.
First of all, our society was white patriarchal when Nixon became President. So you’re rendering ‘conservative’ meaningless in the context of his era. And no, I’m not going to call a President who gave Bill Ruckelshaus a free hand at EPA, or initiated our rapprochement with China, just to name a coupla things, as a conservative by the standards of that time.
New Deal democrat
@SomeRandomGuy: I was pointing out that, even if one conceded all of the arguments by “textualists,” the second amendment does not cover what they say it does.
ETA: and yes, the 18th century meaning of “bear arms” meant, using firearms in the military.
Geminid
@New Deal democrat: I just look at these judicial theories as brands of convenience for reactionary, result-oriented adjudication. The reactionaries used to say they were “Strict Constructionists,” but that brand got a bad name during the fight against segregation. So, the reactionaries adopted new brands like Originalism and Textualism. They could just as well call the philosophy Federalist Society-ism.
Trollhattan
@lowtechcyclist:
Yeah, Nixon in the lens of today’s Republicans would be a non-fit. Except for the enemies list and Imperial Presidency; boy howdy did he ever set the bars there.
Made his bones as a rabid anti-commie guy.
Got elected as a rabid lawndorder guy. Plus bonus “secret plan for winning Vietnam.”
Not especially small gummint, didn’t openly wish to turn back the Voting Rights Act and Civil Rights Act; perhaps uninterested in enforcing them, though.
Old School
@lowtechcyclist:
The Nixon Foundation describes Nixon as a “good-government conservative.”
Anonymous At Work
Just noticed something that the document doesn’t mention: either BUSH. As in, 12 years of Republican Presidencies with half of the SCOTUS members that overturned Roe v. Wade and who routinely uphold TFG’s actions.
JustRuss
Oh fuck right off with that. The SC has done a great job of delegitimizing itself. I’m not sure what Trump skeptics he’s referring to. Cheney and Romney? We criticize them, but I haven’t heard any Democrat call them existential threats.
WaterGirl
@JustRuss:
Yeah, I’d say the Republicans on the Supreme Court did that all on their own.
Lacuna Synecdoche
@jimmiraybob:
I’ll consider it when Conservatives stop calling liberals “Communists”. And even then, I probably still won’t change my mind.
First, I believe words are defined by how they are used, and for my entire life, going back to my birth in the mid-60’s, Conservative has meant: reactionary regressive culture war crazy zealots.
Just as Conservatives tried to turn liberal into a slur, the right-wing successfully did the same to conservative by their own behavior, and by the consistent application of that word to describe the views of people who behave the way they do.
Liberals didn’t turn conservative into a word meaning reactionary regressive culture war crazy caucus zealots. Conservatives did.
And I’m not going to get in the way of letting them do that.
You shouldn’t either. All it does is let wingnuts and the press pretend there’s some imaginary noble form of conservatism that, as Rick Perlstein said, can never fail, but only be failed; some form of conservatism that hasn’t always conformed to John Stuart Mill’s observation, all the way back in the 1860’s, during a parliamentary debate, that:
… the Conservative party was, by the law of its constitution, necessarily the stupidest party. Now, I do not retract this assertion; but I did not mean that Conservatives are generally stupid; I meant, that stupid persons are generally Conservative. I believe that to be so obvious and undeniable a fact that I hardly think any hon. Gentleman will question it.
K-Mo
@Brachiator: Maddeningly true.
Matt
LOL American conservatism has been a criminal conspiracy for at least half a fucking century. They don’t deserve consideration, only contempt.
1000% the author of this piece will be voting for Trump.
Origuy
Italy’s far-right government just allowed abortion opponents to enter clinics. These are “consultation” clinics, which provide women with a certificate indicating their desire to get an abortion. Then apparently they have to find a provider to actually treat them. Only about a third of gynecologists will do that.