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Many life forms that would benefit from greater intelligence, sadly, do not have it.

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You are here: Home / Politics / Activist Judges! / Sunday Morning Open Thread: The [SC(R)OTUS] Court Can’t Heal Itself

Sunday Morning Open Thread: The [SC(R)OTUS] Court Can’t Heal Itself

by Anne Laurie|  July 9, 20236:31 am| 123 Comments

This post is in: Activist Judges!, Excellent Links

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Tune in on Sunday at 12pm ET for @jrpsaki's interview with Democratic National Committee Chair @harrisonjaime. pic.twitter.com/us3YJbt9Jn

— Inside with Jen Psaki (@InsideWithPsaki) July 7, 2023

Here’s an excellent article I’ve been waiting for the space / time to post. James Fallows, at his Substack — “The branch of government that depends most on trust cares least about preserving it. Now it’s up to Congress”:

… I have an absolutist “no surprises” approach when it comes to disclosing anything the audience might possibly find significant later on. The test is not whether you, personally, think your judgment might be affected. It is whether someone else might have wanted to consider the info.

And remember that this is for my own, non-consequential writing—which at most might affect how someone thinks about an issue, but which has zero legal or direct economic impact on anyone else. Perhaps I make these disclosures out of vanity: I’m afraid that if I hide some conflict and a reader later finds out, I’d look worse in the long run. But it’s a rule that I and many other writers observe.

How different this is from the Supreme Court.

The most powerful, least accountable figures in public life.

Here’s a summary of the paragraphs that follow:

– The nine lifetime-appointees on the US Supreme Court have more individual power than anyone else in US public life.

– Yet those nine members are under fewer formal controls on their ethics and possible conflicts than any (and I stress any) other federal official or employees, including those with purely clerical or administrative duties.

– The legitimacy of the Court therefore depends on the rest of us believing that those we trust with power are trustworthy.

– The current Court has shown that it is not.

– Therefore it is time for outside intervention, and supervision…

The nine members of the Supreme Court wield more individual power, less accountably, for a longer period, than anyone else in our public life…

A serving president of course out-powers any other individual. But presidents are subject to re-election or impeachment. They are dissected in the press every day. Even for the most dominant, their time in command is limited.

The Supreme Court, by contrast? If even one of the five lifetime appointees who decided to stop the Florida recount in 2000, and thus award the presidential election to George W. Bush, had voted differently, tens of millions of lives would have changed.

The disastrous Iraq War would probably never have happened. The Supreme Court itself would presumably have had a lastingly different makeup. George W. Bush ultimately appointed John Roberts and Samuel Alito. Without the Bush v. Gore ruling, who knows who might have held those seats? The most recent Democratic president to appoint a Chief Justice was Harry Truman, in 1946. The most recent time the Court had a Democratic-appointed majority was at the end of Lyndon Johnson’s administration, before 2/3rds of today’s Americans were born. Since then, Republican presidents have appointed 13 justices; Democrats, five, although the national vote has gone strongly for Democrats in that time. This chanciness—of longevity, of circumstance—is something only a very lucky country could endure…

The Supreme Court relies on trust, and has incinerated its trust.

Its Chief may lack the will, and certainly lacks the power, to do anything to save the Court.

There is no remedy but the Congress. Thus I pay attention to Senator Sheldon Whitehouse and others. The “crisis of the courts” is that this court has failed. It needs outside help, from the rest of us.

Lots more fine argument at the link!

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Reader Interactions

123Comments

  1. 1.

    Baud

    July 9, 2023 at 6:37 am

    Excellent.  This is the type of thing I like to see.

    Thanks, AL.

  2. 2.

    JPL

    July 9, 2023 at 6:44 am

    This is the court that will be involved in decisions pertaining to elections.   One has to wonder how they would rule if faced with close senate races.

  3. 3.

    satby

    July 9, 2023 at 6:58 am

    @Baud: Agree! And I appreciate that AL often brings this kind of interesting source to us via her obviously copious reading.

    Now if Fallows had gone into specifics of what measures might be used, I would have found it even more interesting. Maybe that’s in part 1, or a part 3 yet to come.

  4. 4.

    Baud

    July 9, 2023 at 7:01 am

    @satby:

    I don’t mind not having proposals since this piece seems to be about raising awareness for the need for action.  It works for me since it’s not written as a Do Something! piece that’s attacking people for not taking immediate action. I see court reform as a long term project.

  5. 5.

    Ken

    July 9, 2023 at 7:03 am

    fewer formal controls on their ethics and possible conflicts than any (and I stress any) other federal official or employees

    This. Put them under the same requirements as the rest of the government, so they can’t even let anyone else pay for their dinner, much less a free flight to a fishing vacation.

    While I’m making my wish list, write into the regulations that failure to observe them will be automatically considered not “good Behaviour” under their Article III requirement for holding office.

  6. 6.

    New Deal democrat

    July 9, 2023 at 7:07 am

    James Kuo also has an excellent article on the same subject:

    https://statuskuo.substack.com/p/unrestrained?r=1zr8b&utm_campaign=post&utm_medium=web

    Almost any reform would be good, but the fact that in the past 200+ years, exactly *zero* countries writing Constitutions have given their courts this much power ought to be very instructive. The basic rule of republics is, the greater the power, the less it ought to be concentrated, or if it must be concentrated, the shorter the term.

    Yes to term limits. Yes to expansion (and the more, the better, on the order of 24 associates + one chief in staggered terms). And yes to the ability of Congress, or a combination of Congress and the President, sitting as a Council of Rebision, to adopt a minority opinion of more than 1/3rd of the Court, at least until the next election confirms or rebukes that Revision.

  7. 7.

    satby

    July 9, 2023 at 7:08 am

    @Baud: Well, Fallows points to Sen. Whitehouse as the person to watch for ethics reform on SCOTUS, so I went looking. Found this from the Boston NPR affiliate of an interview Whitehouse did on it.  Which was helpful, because I hadn’t heard the Senator before on it*

    * referring to the audio recording, not the intro blurb at the link.

  8. 8.

    Baud

    July 9, 2023 at 7:09 am

    @satby:

    Whitehouse has been on this for years.  I’m glad he’s finally getting noticed.

  9. 9.

    New Deal democrat

    July 9, 2023 at 7:10 am

    @Ken: Yes. Automatic impeachment proceedings start in the House Judiciary Committee for any such violation.

    Note, by the way, the House could write this in its internal rules, which the Court could not overturn even today.

  10. 10.

    Ken

    July 9, 2023 at 7:11 am

    Open thread, so I’ll share the latest report from “Normal Island News” taking a swipe at “The world’s two worst billionaires are at war“.  My favorite line:

    Threads operates exactly like Twitter, but with a much lower swastika-to-user ratio, and no hashtags for some reason.

  11. 11.

    satby

    July 9, 2023 at 7:16 am

    @Ken: I’m not going on Threads. I have both FB and Instagram, and over the last year both have just become ad streams with snippets of postings from your friend follows in between. Nope.

  12. 12.

    dmsilev

    July 9, 2023 at 7:26 am

    @New Deal democrat: Running the Supreme Court the way Appeals Courts work, with a big group of judges and a random drawing to establish a panel for each case, makes sense to me. Also, same ethical requirements as all the other Federal judges, but you then have the ‘who watches the watchers’ problem. Congress, I guess, is the answer to that, but you’d need some disciplinary path that’s both less severe and easier to apply than impeachment.

  13. 13.

    Baud

    July 9, 2023 at 7:27 am

    @Ken:

    and no hashtags for some reason.

     
    I get that impression they rushed it out because of the most recent Twitter meltdown.

  14. 14.

    Chris Johnson

    July 9, 2023 at 7:32 am

    By the way, by now Tucker Carlson is literally making full-on Russian propaganda videos on Twitter (I’m watching Dylan Burns criticize one) and is joining forces with Russell Brand. That guy must be so pissed off Putin won’t make him President instead of Trump.

    Russian disinformation is clearly not disabled by the troubles Russia is having. I wonder how much of it is still run through Prigozhin.

  15. 15.

    OzarkHillbilly

    July 9, 2023 at 7:33 am

    Sometimes one just feels it: Sunday Mornin’ Comin’ Down

    On the Sunday morning sidewalk
    Wishing, Lord, that I was stoned
    ‘Cause there’s something in a Sunday
    Makes a body feel alone

    There ain’t nothin’ short of dyin’
    Half as lonesome as the sound
    On the sleepin’ city sidewalks
    Sunday mornin’ comin’ down

  16. 16.

    NotMax

    July 9, 2023 at 7:39 am

    Thing I learned about this week: the Wallace Line.

    A major study led by biologists at The Australian National University (ANU) and ETH Zurich in Switzerland provides a new explanation for why you won’t find kangaroos, koalas and other Aussie marsupials in Indonesia, but you will find many groups of animals that originated in Asia, such as goannas, rodents and kookaburras in Australia.

    Biologists have long described this asymmetrical distribution of Australian and Asian species by using an imaginary line that separates Australia, New Guinea and parts of Indonesia from continental Southeast Asia. This invisible boundary is known as Wallace’s Line. Source

  17. 17.

    Betty Cracker

    July 9, 2023 at 7:41 am

    Fallows gets to the nub of it here:

    The test is not whether you, personally, think your judgment might be affected. It is whether someone else might have wanted to consider the info.

    When exposed for accepting largesse from conservative activist oligarchs, both Thomas and Alito shrieked like scalded ferrets about how gifts from their sugar daddies would never affect their judgment, blah blah blah. Even if we take them at their word on that, it doesn’t matter.

    Senator Whitehouse has been on this issue for years and knows what’s needed. I’d love to see him chair the judiciary committee the next time we get a majority in a future congress. He’d know how to clean house and has a passion for the work.

    Also, reading dissents from Kagan, Sotomayor and especially KBJ in the recent cases makes me want to live in a country where they are writing majority opinions. I’m not a lawyer, but I know an inferior work product when I see it, and the majority six are pumping out low-quality crap.

  18. 18.

    Baud

    July 9, 2023 at 7:42 am

    @NotMax:

    https://youtu.be/QTK_bC00ilg

  19. 19.

    OzarkHillbilly

    July 9, 2023 at 7:42 am

    @NotMax: Wallace was an amazing individual. Very influential and hardly known of these days.​
      eta: from his wikipage:

    Alfred Russel Wallace OM FRS (8 January 1823 – 7 November 1913) was an English[1] naturalist, explorer, geographer, anthropologist, biologist and illustrator.[2] He independently conceived the theory of evolution through natural selection; his 1858 paper on the subject was published that year alongside extracts from Charles Darwin’s earlier writings on the topic.[3][4] It spurred Darwin to set aside the “big species book” he was drafting and quickly write an abstract of it, which was published in 1859 as On the Origin of Species.

  20. 20.

    Baud

    July 9, 2023 at 7:44 am

    @Betty Cracker:

    This term was especially bad in terms of results oriented judging, particularly in cases that don’t make headlines.

  21. 21.

    Kay

    July 9, 2023 at 7:54 am

    @Ken:

    I’m lurking there a little and it’s interesting what the commentators are trying – they don’t engage, at all, with the Right wing celebrity grift comments.

    They believe the Nazis, etc will stop posting if they get no engagement from liberals/normals

    an experiment!

  22. 22.

    Matt McIrvin

    July 9, 2023 at 7:59 am

    It seems to me as if the abdication of Congress, caused by the willingness of Senate Republicans to leverage their house’s rules to obstruct everything in an extremely partisan way and the unwillingness of a few centrists to take away that lever, is the real underlying problem here–both for the increased autocracy of the Court and for the expansion of executive power, which is a big problem during the times when the executive is an ass. They’re filling the power vacuum created by the most democratic mechanism in the Constitution declining to exert it. Fix Congress, make it willing and able to assert power, and the Supreme Court becomes much less of a problem.

  23. 23.

    Baud

    July 9, 2023 at 7:59 am

    @Kay:

    IIRC, on Twitter, the fascists would spam conversation threads.  Does Threads prevent that somehow?

  24. 24.

    Ken

    July 9, 2023 at 8:00 am

    @Kay: Interesting. We usually do that around here (though some still engage with the obvious trolls), and it seems to work.

    @Baud: Maybe Threads could adopt WaterGirl’s fine pie filter to help reduce unwanted spam.

  25. 25.

    Baud

    July 9, 2023 at 8:00 am

    @Matt McIrvin:

    Agreed.

  26. 26.

    Kay

    July 9, 2023 at 8:00 am

    @Ken:

    I’m interested if millions of people can actually do this “group project” where they all agree to limit interaction with Nazis, Right wing grifters, etc

  27. 27.

    rikyrah

    July 9, 2023 at 8:00 am

    Good Morning, Everyone😊😊😊

  28. 28.

    Deputinize Eurasia from the Kuriles to St Petersburg

    July 9, 2023 at 8:00 am

    Might be fun for a lawyer with no fucks left to give to stand there during oral argument and respond to a snide Alito query with “what billionaire paid you to ask that question, Sam?”

    It could have the same overall effect of the Welch retort to Joe McCarthy.

    Much of the arrogance of the Supreme Court is rooted in the enhanced level of favor-coddling deference they enjoy.

  29. 29.

    NotMax

    July 9, 2023 at 8:01 am

    Media mention.

    Suspense incrementally doled out, Grey Zone, available on MHz Choice. Props to the diminutive actor playing the little boy. He gets a a lot of screen time and his character never rings false or forced.

  30. 30.

    Baud

    July 9, 2023 at 8:01 am

    @rikyrah:

    Good morning.

  31. 31.

    NotMax

    July 9, 2023 at 8:05 am

    @Deputinize Eurasia from the Kuriles to St Petersburg

    “Sam, you made the rants too long.” (ref.)
    //

  32. 32.

    Deputinize Eurasia from the Kuriles to St Petersburg

    July 9, 2023 at 8:08 am

    @NotMax:

    Very cool article on something I never really considered.

    I also just realized that without large animals that could be used as beasts of burden (and you sure in shit can’t train a 25 foot long saltwater croc to haul a wagon), there was no real impetus for the aboriginal residents to develop the wheel or engage in the likely followons like metallurgy.

  33. 33.

    Deputinize Eurasia from the Kuriles to St Petersburg

    July 9, 2023 at 8:13 am

    @NotMax:

    lol

    As I listen to that song, I’m damned if I can figure out what the composer was trying to say. I’m guessing “I’m drunk and need money, so let me jot out a ditty”.

  34. 34.

    New Deal democrat

    July 9, 2023 at 8:14 am

    Since this issue is something of a hobby horse for me, into which I’ve put a lot of study, let me just point out a couple of other things:

    The Supreme Court we got is not the one Hamilton promised in Federalist #78. In that essay his argument is that the Court will be a panel of old men at the end of their careers, who because of their age will serve relatively short terms, will be increasingly hemmed in by binding precedent, and will have no enforcement power.

    Instead, the Court took unto itself the power to overrule prior decisions, so good-bye binding precedent. And the Court also took unto itself the power to issue injunctions to the Executive Branch, something that isn’t mentioned anywhere in the Constitution (injunctions were a historical equity power of common law courts, which the Constitution continued. But in interpreting the Constitution, the Supreme Court is not a common law court).

  35. 35.

    Betty Cracker

    July 9, 2023 at 8:15 am

    @Kay: Is this experiment taking place on Threads? I think non-engagement would drive off the Nazis, right-wing grifters, etc. Wingnut grifters have sunk untold millions into social media platforms designed expressly to allow Nazis, racists, etc., to spew antisemitic nonsense and say the n-word until the cows come home. But their version of “free speech” is no fun for them unless there’s a liberal bystander to offend, which is why all the right-wing social media platforms are tumbleweed-choked wastelands.

  36. 36.

    New Deal democrat

    July 9, 2023 at 8:18 am

    @Matt McIrvin: Also agreed.

    Over time, Congress has ceded more and more of its powers. Just for another example, until 1848 the Congress was not shy about excercizing its contempt power and imprisoning witnesses for non-compliance. But then it decided to outsource compliance to the courts, with the current results that Congressional subpoenas are treated like toilet paper by hostile witnesses.

  37. 37.

    p.a.

    July 9, 2023 at 8:27 am

    @NotMax: Here’s a PBS eons 10 min video on the Wallace Line

     

    https://youtu.be/QTK_bC00ilg

     

    ETA: behind the curve again!  Link already posted.

  38. 38.

    p.a.

    July 9, 2023 at 8:29 am

    Public ridicule really stings the USSCJs (UsualSuspectSupremeCourtJustices), so I hope it continues.  Delegitimizing it sadly seems to be step 1 to rebuilding a democratic (small AND large D) court.

  39. 39.

    Bethanyanne

    July 9, 2023 at 8:29 am

    Looks to be an open thread, so: Mom passed away yesterday evening. I am alternating between ZombieBeth and Just Fine. Right now I’m just fine. Slept, talked to friends, going over to my sister’s place later today. There’s more to say, but later. For now, thank you everyone for letting me share and for your kindness.

  40. 40.

    OzarkHillbilly

    July 9, 2023 at 8:31 am

    @Bethanyanne: Losing a parent is always hard, stay strong and remember the good times.

  41. 41.

    Deputinize Eurasia from the Kuriles to St Petersburg

    July 9, 2023 at 8:31 am

    @New Deal democrat:

    For most of its history, SCOTUS has been hot garbage, rooted in magnifying the economic and ethnoreligious/societal status quo by protecting powerful non-government financial and religious interests from being held responsible for deprecations, as well as insulating localized oppressors from civil and criminal liability. It had always been a tool of conservatism. It only had a single 20 year period of being slightly less awful from 1954-1974, and the right wing completely lost its shit over it.

  42. 42.

    Deputinize Eurasia from the Kuriles to St Petersburg

    July 9, 2023 at 8:32 am

    @Bethanyanne: I am so sorry for you! Losing a parent is always difficult.

  43. 43.

    Matt McIrvin

    July 9, 2023 at 8:34 am

    @Kay: The answer is no.

  44. 44.

    NotMax

    July 9, 2023 at 8:34 am

    @Deputinize Eurasia from the Kuriles to St Petersburg

    It’s a parody co-penned by (of all people) Milton Berle of the 1930s song Lawd, You Made the Night Too Long.

  45. 45.

    Eyeroller

    July 9, 2023 at 8:34 am

    @New Deal democrat: It was completely predictable that this would happen and the anti-federalist who wrote under the pseudonym of “Brutus” did predict it.  He wrote “the supreme court under this constitution would be exalted above all other power in the government, and subject to no control.”

    1) “There is no power above them that can correct their errors or control their decisions,” 2) “they cannot be removed from office or suffer a diminution of their salaries, for any error in judgment or want of capacity,” and 3) “the power of this court is in many cases superior to that of the legislature.” And “the supreme court . . . have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away.”

    And  “Men placed in this situation will generally soon feel themselves independent of heaven itself.”

    Brutus seems to have believed this was intentional and nefarious (he was an anti-Federalist, after all) as opposed to just stupidity and blind faith in the honor of white males.  But the point remains that he was right.

    (Reference: https://teachingamericanhistory.org/document/brutus-xv/)

  46. 46.

    p.a.

    July 9, 2023 at 8:35 am

    @Bethanyanne: Sending good thoughts.  Hoping you have a strong support structure.

  47. 47.

    Betty Cracker

    July 9, 2023 at 8:36 am

    @Bethanyanne: I’m so sorry. Remember to be kind to yourself. The death of a parent is a profound loss that can shake a person up in unexpected ways.

  48. 48.

    hells littlest angel

    July 9, 2023 at 8:37 am

    The Supreme Court is one more proof that our constitution was written for the purpose of divvying up this country for the benefit of its wealthy.

  49. 49.

    Matt McIrvin

    July 9, 2023 at 8:38 am

    @New Deal democrat: So maybe we need to go the opposite direction from the people worrying about gerontocracy, and raise the minimum age for Supreme Court nominees to, say, 75.

  50. 50.

    JPL

    July 9, 2023 at 8:38 am

    @Bethanyanne: I’m so sorry for your loss and please take care of yourself.

  51. 51.

    azlib

    July 9, 2023 at 8:41 am

    Remember the Supreme Court has no enforcement powers. We are already seeing defiance of the Dobbs decision and other aspects are rearing their head as well.  Here in Arizona our Dem Governor has taken away enforcement power from County AGs.  I see more of this happening as the legitimacy of the Court continues to decline. Same thing is happeing with the Web design decision. Our AG declared she will enforce the non-discrimination law here in AZ which is similar to the one in CO regardless of the Court’s decision. And finally there will be a workaround for the denial of student debt relief at the Federal level.

  52. 52.

    O. Felix Culpa

    July 9, 2023 at 8:43 am

    @satby:

    Same. I check my FB feed only sporadically these days, and the ratio of ads and promoted material to friends’ posts seems to be 2:1, or perhaps even higher. I don’t have an Instagram account and will wait to see if there’s a credible replacement for Twitter before signing up for yet another platform.

    ETA: With respect to Bluesky, the argument that Dorsey is “only” a board member (one of three) and minority shareholder and therefore with minimal influence doesn’t take into account how much power boards can have. So I’m not heading off into that territory either.

  53. 53.

    Layer8Problem

    July 9, 2023 at 8:44 am

    @Ken:  WaterGirl works hard on the site and might have enhanced our beloved pie filter, but wasn’t that originally a cleek production?

  54. 54.

    Dorothy A. Winsor

    July 9, 2023 at 8:44 am

    @Bethanyanne: Even when you expect a death, grief seems to be inevitable. Peace and strength to all.

  55. 55.

    Bethanyanne

    July 9, 2023 at 8:44 am

    I have my sister here, and I will be active in her family now. And good friends to chat and talk with. This is gonna suck, but I’m not alone.

  56. 56.

    Layer8Problem

    July 9, 2023 at 8:46 am

    @Deputinize Eurasia from the Kuriles to St Petersburg:

    “. . . you sure in shit can’t train a 25 foot long saltwater croc to haul a wagon . . .”

    Not with that attitude.

  57. 57.

    Matt McIrvin

    July 9, 2023 at 8:47 am

    @New Deal democrat: Of course, if Congressional power increases there are going to be weird transient effects associated with the transition (the insanely right-wing composition of SCOTUS is actually already one of those: Congress became somewhat more willing and able to vet Justices just in time for Donald Trump to appoint a bunch of far-right ones).

  58. 58.

    NotMax

    July 9, 2023 at 8:53 am

    @Layer8Problem

    Hitch me kangaroo up, sport
    Hitch me kangaroo up
    //

  59. 59.

    Layer8Problem

    July 9, 2023 at 8:54 am

    @Bethanyanne:  People around you to support when you need it will be a great help.  Expect that you’ll experience it in waves.  And we’ll be here too.

  60. 60.

    tobie

    July 9, 2023 at 8:56 am

    @Bethanyanne: I’m so sorry to hear this. May you find peace in being with family and friends and solace in remembering the life your mother lived.

  61. 61.

    Bethanyanne

    July 9, 2023 at 8:58 am

    Hey, has Feinstein being back gotten the judge approval pipeline moving again? It had been one of those “Biden quietly gets his friends in Congress to hustle” victories until she had to leave for a while. I know she came back, but I don’t know if the progress resumed. As an aside, I’ve been so damn happy with Biden. Boring competence and knowledge and just tons of good judgement. Happy.

  62. 62.

    O. Felix Culpa

    July 9, 2023 at 8:59 am

    @Bethanyanne:

    So sorry. Take good care of yourself.

  63. 63.

    Kay

    July 9, 2023 at 9:00 am

    @Betty Cracker:

    yes. They’re saying it’s a chance to “start fresh” and essentially deplatform accounts like Libs if TicTok by just not engaging in any way w/them

    the Right wing grift industry needs liberals more than liberals need the Right wing grift industry

    starve the beast :)

  64. 64.

    SiubhanDuinne

    July 9, 2023 at 9:00 am

    @Bethanyanne:

    You have my deepest sympathy. This most profound of losses will strike you in unexpected ways and at unexpected times, so please be good to yourself. Hugs to you.

  65. 65.

    Mai Naem mobileI

    July 9, 2023 at 9:02 am

    @Bethanyanne: I’m sorry to hear about your mom passing. It’s good that you were there so you at least have no regrets of not being there when your mom passed.

  66. 66.

    WaterGirl

    July 9, 2023 at 9:04 am

    Anne Laurie, I have been saving that, too, for just the right time and when I had time.  Good to see his excellent article get out there in the sunshine!

  67. 67.

    Mai Naem mobileI

    July 9, 2023 at 9:07 am

    I don’t mean to sound like a debbie downer but you can talk about reform but how do you do it when your senate is essentially 50-50 and everything is fillibustered. This SCOTUS is basically Mitch McConnell’s doing and he wants to keep it that way.

  68. 68.

    Chief Oshkosh

    July 9, 2023 at 9:20 am

    @Bethanyanne: I am sorry for your loss.

  69. 69.

    JPL

    July 9, 2023 at 9:25 am

    @Mai Naem mobileI: yup  You’re being realistic.

    My biggest concern is that if Montana or another state is close, the Supreme court  could decide whether or not to count votes.  They could be deciding their own future.

  70. 70.

    BethanyAnne

    July 9, 2023 at 9:25 am

    @Mai Naem mobileI: We do it the way the Right got what they wanted. Slowly, and by insisting that what we want is the bare minimum for freedom and America. By keeping talking until we build up enough people agreeing with us that the change happens. Pushing the fucking Overton window back towards sanity. There wasn’t a practical path to repealing Roe when they started trying. Took the fuckers 50 years. We just keep goddamn insisting and finding people we can convince to vote with us.

  71. 71.

    Salty Sam

    July 9, 2023 at 9:27 am

    @OzarkHillbilly: Sometimes one just feels it: Sunday Mornin’ Comin’ Down

    Seems like almost every day I’m digging around trying to find “my cleanest dirty shirt”.

    I love that line…

  72. 72.

    jonas

    July 9, 2023 at 9:27 am

    As long as we’re here talking about hacks who never seem to get their comeuppance, I came here just to vent about the front-page tongue bath for Uri Geller in yesterday’s FTFNYT. I forget who wrote it, but the tl;dr was basically “yeah, sure, he’s probably a giant, grifting fraud whose spoon-bending schtick was debunked as a cheap parlor trick decades ago, but c’mon! He’s so charming! Whadda showman, eh?”

    This really grated, because it was basically the same script the media went by when they were covering Trump (and still do, by and large): sure, he’s a massive fraud who told thousands of lies, stole classified documents, and tried to launch a coup against Congress that got people killed… but c’mon! Look at that impish grin when he gives a thumbs-up for those photo ops! And yeah, he lies virtually every time he opens his mouth, but you can’t say he isn’t a real salesman!”

    Fuck that shit. Grifters and fraudsters should be held up for ridicule and scorn (and prosecuted as fact and fashion dictate), not given puff pieces in “the paper of record”. But it’s America, so I supposed I’m just pissing in the wind here…

  73. 73.

    Glidwrith

    July 9, 2023 at 9:30 am

    @dmsilev: I think Congress has to be the answer for oversight. Something else I would like to see: the Court has overturned laws governing bribery, clean air/water, voting, free speech, freedom from religion, all the while claiming Congress must act to fix their objections to said laws, knowing the thugs have a chokehold so the laws can’t be fixed. I would like to see riders put into laws that if the current law is overturned, it doesn’t change UNTIL Congress actually does fix the Court’s objection.

  74. 74.

    Matt McIrvin

    July 9, 2023 at 9:32 am

    @Mai Naem mobileI: The filibuster has been eroding under the pushback against Republican obstructionism–it’s already completely gone for judicial appointments. I’m actually kind of surprised they didn’t eliminate it entirely during the couple of years that Trump had an executive-legislative trifecta, but McConnell never seemed to be all that interested in legislating, just in obstructing.

    I would expect the filibuster to go away the next time the Republicans have that, maybe after McConnell is dead. And there will be a flood of horrifying nightmare legislation at that point, which may end the republic if they dare to go far enough. But if we can hang on for a couple of years and have an actual election after that, maybe we end up better in the long run. Laws that are passed by legislative action can be reversed by legislative action, as long as the opposition hasn’t been outlawed and arrested.

  75. 75.

    dave319

    July 9, 2023 at 9:32 am

    @Betty Cracker: Yeah, Dick Durbin is totally not the right man for this job. Marinated in “collegiality” and Tip N’ Ronny too long to be any good for the here and now.

  76. 76.

    OzarkHillbilly

    July 9, 2023 at 9:37 am

    @Salty Sam: It is perfection itself.

  77. 77.

    Matt McIrvin

    July 9, 2023 at 9:40 am

    @Glidwrith: That attempt to overturn the entire ACA on the grounds that some particular phrase in it was worded so as to be unconstitutional, but the whole thing was non-severable so it all had to go, was the most egregious case of that–the particular glitch could be fixed instantly if Congress really wanted to do it, but the people behind the case knew that there was a sufficient obstructionist minority in the Senate who wanted the ACA to die that that would never happen. So they could kill a vast law affecting the healthcare of millions by exploiting something on the level of George Costanza announcing that the card says “Moops”.

    Fortunately, that time, it didn’t work.

  78. 78.

    Thor Heyerdahl

    July 9, 2023 at 9:44 am

    I’ve wondered at times what the US justice system would look like if they had established an independent constitutional court to deal with cases related to the constitution and compliance of government institutions with the constitution. The Supreme Court would have handled all non-constitutional cases.

    I also wonder if it had been located in a city that wasn’t DC (e.g. Boston) how it would behave as an entity.

  79. 79.

    Raoul Paste

    July 9, 2023 at 9:44 am

    @jonas:   I think what upset me the most about that FTFNYT article was that Uri Geller had a swanky home in London a few houses down from Jimmy Page and George Clooney

  80. 80.

    Odie Hugh Manatee

    July 9, 2023 at 9:46 am

    @Bethanyanne: My condolences on your loss. Please take care of yourself while you work your way through this time. We lost my wife’s Mom in 2000 and my Mom in 2009, with both quickly passing.

    It’s rough either way but I think it’s far better than lingering. Best wishes to you.

  81. 81.

    Mai Naem mobileI

    July 9, 2023 at 9:49 am

    @BethanyAnne: i get that but it’s depressing and scary. How much of the administrative state are they going to destroy before we even have a 5-4 conservative majority, forget a 6-3 liberal majority. On top of that you have to wait for the cases to make it through the system again to overturn the rulings from this court.

  82. 82.

    Frankensteinbeck

    July 9, 2023 at 9:51 am

    @Matt McIrvin:

    McConnell never seemed to be all that interested in legislating, just in obstructing.

    McConnell only put his back into passing two things, and he had rescission for both of them:  His giant tax cut to the wealthy, and repealing Obamacare.  The latter failed by one theatrical vote, and McConnell looked like he’d swallowed a hedgehog when it failed.  I might add, these were by far the two easiest sells to his caucus, things they all desperately wanted to pass.

    I think it discouraged him, and let’s face it, what else does he want?  He doesn’t need to legislate to get judges, or to grind government to a halt to make the US pay for electing a black man as his boss.

  83. 83.

    Jackie

    July 9, 2023 at 9:52 am

    @Bethanyanne: Yes, judges were getting through the Judicial Committee after DiFi returned. But, now JD Vance is threatening to hold up confirmations in protest of TIFG’s indictments. Sigh…

    https://www.commoncause.org/democracy-wire/senator-j-d-vance-is-holding-the-doj-hostage/

     

    I’m sorry about the loss of your mom. I hope you and your sister can give each other strength and comfort in the days ahead.

  84. 84.

    OzarkHillbilly

    July 9, 2023 at 9:53 am

    Land of the free, home of the dead

    A Virginia man who previously served as an interpreter for the US military in Afghanistan was fatally shot this week working as a rideshare driver in Washington DC.

    Nasratullah Ahmadyar, 31, was shot and killed on Monday while driving for Lyft, WUSA 9 reported. He had worked as an interpreter with the army special forces, but left Afghanistan on the last flight out of the country during the US withdrawal in 2021.

    Ahmadyar had immigrated to Pennsylvania with his wife and their four children, aged between 15 months and 13. But after experiencing violence in Philadelphia, the family moved to Alexandria, Virginia, a few months ago “in pursuit of a better life”, according to a Facebook page raising funds for Ahmadyar’s funeral expenses. He was the sole provider for his family.

    Ahmadyar was discovered in his vehicle after midnight on Monday with a single gunshot wound, according to police. He was taken to hospital, but pronounced dead “after all life-saving efforts failed”, said police, NBC News reported.
    …………………
    “I can’t emphasize enough how he was always helping,” said his friend Jeramie Malone said. “Leaving the house was very dangerous for him, but he was always eager to help somebody else who is a good guy. His children were the most important thing to him, and he brought them here so he could be safe.”

  85. 85.

    UncleEbeneezer

    July 9, 2023 at 9:59 am

    @Bethanyanne: So sorry for your loss.  Lost my Mom in 2012 and my wife just lost hers a couple months ago :(

    Hang in there, be good to yourself, etc.

  86. 86.

    Jackie

    July 9, 2023 at 9:59 am

    @OzarkHillbilly: That news gutted me.

  87. 87.

    Chief Oshkosh

    July 9, 2023 at 10:01 am

    The Fallows piece is good, but his mention of O’Connor reminded me of when I attended one of those bullshit dinners where a bunch of rich assholes pay a lot of money to hear a recently-retired conservative hack extol their own virtues and the virtues of conservatism. I was visiting family and they “graciously” invited me to dine with them. O’Connor was the guest speaker. This was about the time that Shrub’s absolutely disastrous Iraq adventure was burning up the ME, and she was lamenting how lamentable it all was. I was gobsmacked when she then said that she made the decision she did in Gore v Bush so that she could retire as soon as possible but be assured of being replaced by a Republican president. Why? Because her husband was sick and she wanted to focus on him. 

    THAT was the impetus for all that followed? So that she could resign for the most personal (and laudable) of reasons but in the most partisan way imaginable? And her further comments indicated that she knew at the time that 1) it was a shitty judgment, and 2) Shrub was a complete idiot and really wasn’t presidential material.

  88. 88.

    gVOR08

    July 9, 2023 at 10:04 am

    – The nine lifetime-appointees on the US Supreme Court have more individual power than anyone else in US public life.

    The Koch Bros, or someone working for them, figured this out decades ago and they established the Federalist Society to select, groom, and support their Stepford justices.

  89. 89.

    New Deal democrat

    July 9, 2023 at 10:07 am

    @Eyeroller: Allow me to introduce you to a post I wrote several years ago:

     

    https://bonddad.blogspot.com/2021/11/brutus-anti-federalist-to-presciently.html

    Brutus was also the driving force behind what ultimately became the 4th and 5th Amendments.

  90. 90.

    Suzanne

    July 9, 2023 at 10:09 am

    @Betty Cracker:

    Also, reading dissents from Kagan, Sotomayor and especially KBJ in the recent cases makes me want to live in a country where they are writing majority opinions. I’m not a lawyer, but I know an inferior work product when I see it, and the majority six are pumping out low-quality crap. 

    They’re so transparently coasting, it’s just fan service for the white patriarchal Christian nationalists.

    If you have not, make sure to read this utter dreck: “National Conservatism: A Statement of Principles“. They are making the subtext text.

  91. 91.

    New Deal democrat

    July 9, 2023 at 10:10 am

    @Glidwrith: “I think Congress has to be the answer for oversight.”

    Absolutely. The (best or least worst) solution to “who will watch the watchers” is a group that is watched over by voters.

  92. 92.

    Deputinize Eurasia from the Kuriles to St Petersburg

    July 9, 2023 at 10:11 am

    @dave319:

    Tip and Ronnie, at Tanagra.

    When the walls fell.

    I really despised Tweety. I can’t imagine that anybody misses him.

  93. 93.

    New Deal democrat

    July 9, 2023 at 10:18 am

    So long as I’m on a roll venting here, let me also point out that Congress has several other decisive powers that it could (and early on, did) exercise over the Supreme and lesser courts:

    It can eliminate single-judge vicinages (e.g., Palm Beach FL and Amarillo Tx) and merge them fully back into their districts.

    It can abolish entire lower courts, e.g., the 5th Circuit) and give their jurisdiction to other courts.

    It can dictate to the Supreme Court what discretionary cases it will or will not hear. For example, it could require a 2/3’s majority for the granting of certiorari, or it could only allow the court to hear cases whose petitions for hearing have been approved by Congress.

  94. 94.

    topclimber

    July 9, 2023 at 10:27 am

    @Bethanyanne: Sorry for you and yours.

  95. 95.

    evodevo

    July 9, 2023 at 10:30 am

    @Deputinize Eurasia from the Kuriles to St Petersburg: ​
      Well, the same could be said of Native American civilizations, except they DID engage in some metal processing, especially in the Andean cultures where full metallurgy was practiced and Central America. Never did have the wheel

  96. 96.

    Jackie

    July 9, 2023 at 10:30 am

    If someone has a NYTimes subscription, I can’t link to this article for some reason, but this is the lede in today’s edition:

    “Where Clarence Thomas Entered an Elite Circle and Opened a Door to the Court”

    “The exclusive Horatio Alger Association brought the justice access to wealthy members and unreported V.I.P. treatment. He, in turn, offered another kind of access.”

  97. 97.

    Glidwrith

    July 9, 2023 at 10:33 am

    @New Deal democrat: To the best of my knowledge, these powers have not been exercised in our lifetime and the institutional knowledge of these powers has probably eroded. What resources are you using so we can contact our Congresscritters and remind them?

  98. 98.

    sab

    July 9, 2023 at 10:36 am

    @Jackie: Ohio usually keeps its senators forever, but we did change our minds and dump DeWine. Maybe we will remember what an ass JD Vance has been when he is up for reelecrion.

  99. 99.

    Nukular Biskits

    July 9, 2023 at 10:36 am

    Mornin, y’all!

    Thanks, AL, for that James Fallows piece.  EXCELLENT READ!  I’m going to recommend it on my Twit account.

  100. 100.

    sab

    July 9, 2023 at 10:38 am

    @Glidwrith: I think they have reorganized or added to the circuit courts in my adult lifetime.

  101. 101.

    Josie

    July 9, 2023 at 10:38 am

    @Jackie: ​
     Is there nothing that can be done about these stupid holds? The fact that one asshole senator can hold up the DOJ (Vance) or the military appointments (Tuberville) is just ludicrous.

  102. 102.

    topclimber

    July 9, 2023 at 10:39 am

    Interesting stuff.

  103. 103.

    oldgold

    July 9, 2023 at 10:42 am

    The Major Questions Doctrine that these crooked bastards have been concocting is really problematical. This doctrine allows the third branch of government, initially and properly relegated to a cubbyhole in the basement of the US Capitol Building, to reign over the more democratic branches of our Republic.

    This doctrine holds that when the executive branch ( read: Democratic Presidents ) take significant/ major action, the Supremes can exercise strict scrutiny in determining if Congress expressly authorized  the action in the underlying legislation. This malignant doctrine comes from the so called constitutional textualists! This is well beyond irony.

    The recent student loan case was decided using this pernicious doctrine, despite the underlying legislation stating the Secretary of Education could “waive and/ or modify” the repayment of the loans.

    This excremental doctrine has no constitutional basis, has no real standards and going forward will allow these robed political hacks to thwart progressive  programs instituted by Democratic Presidents.

  104. 104.

    Jackie

    July 9, 2023 at 10:45 am

    @Josie:Not until a new rule is passed.

    Per the link above, at the end of the article is this:

    “Amy Klobachur’s resolution to “speed up the bulk confirmation process and allow for approval by a majority vote.”

    “This rule change would allow up to ten nominees at a time to be approved with a simple majority vote (51 of 100 senators). This would not apply to Supreme Court Justices, circuit court judges, and cabinet secretaries.”

    “This commonsense reform will help improve efficiency and make sure we’re able to fill positions that are vital to our national security, economic success, and more,” said Senator Amy Klobachur.”

  105. 105.

    Eunicecycle

    July 9, 2023 at 10:55 am

    @Josie: Aren’t the holds just used against Unanimous Consent? It means you can still get the people through but you have to use a much longer, more cumbersome process. I assume those procedures are in process but will just take much longer because of these assholes

    ETA I see Jackie has highlighted a possible way around this by Sen. Klobachur and that would be great!

  106. 106.

    New Deal democrat

    July 9, 2023 at 10:58 am

    @Glidwrith: Let me split my answer in two so it doesn’t get caught in the spam filter.

    Here is a link to Steve Vladeck:

    https://stevevladeck.substack.com/p/1-the-rule-of-four

    He has also written the book “The Shadow Docket.” He has a lot to say about certiorari and the abolition of lower courts.

  107. 107.

    New Deal democrat

    July 9, 2023 at 11:03 am

    @Glidwrith: Second part:

    Josh Cafetz, “Congress’s Constitution.”  This is a great history about how the Constitution gave the Congress all of the immense powers of the British Parliament, which over time Congress has ceded to the other two branches of government. He has an entire chapter on the subpoena power and contempt of Congress, and also one on Jefferson’s abolition of Adams’s “midnight judges” courts, which abolition was upheld by no less than Chief Justice John Marshall.

  108. 108.

    Another Scott

    July 9, 2023 at 11:31 am

    @Matt McIrvin: Oooh.  :-/

    Probably then there would be even more intense competition to be a SCOTUS clerk.  And the system and pipeline judges would have even more power to shape decisions.

    “Justice Abe, you really should pick this nice young fellow from Regent University in Virginia.  Such a nice young man.  Good Christian family, I know them from way back.  We play golf together and he’s such a fan of you and Justices Scalia and Thomas and would work hard to protect your legacy …”

    :-/

    Cheers,
    Scott.

  109. 109.

    Another Scott

    July 9, 2023 at 11:33 am

    @Bethanyanne: I’m sorry.  It’s never easy.

    Peace and comfort to you and all who loved her.

    Best wishes,
    Scott.

  110. 110.

    laura

    July 9, 2023 at 11:40 am

    @Bethanyanne: no matter how advanced in years we may be, we are never prepared to be a motherless child. Sending condolences to you- and dont forget to eat and drink, and rest when you can in the coming days.

  111. 111.

    Kayla Rudbek

    July 9, 2023 at 11:50 am

    @Bethanyanne: so sorry for your loss.

  112. 112.

    Formerly disgruntled in Oregon

    July 9, 2023 at 12:10 pm

    @JPL: Yikes – for reference, Sen Tester won by only 6,000 votes last time.

  113. 113.

    Eyeroller

    July 9, 2023 at 12:16 pm

    @New Deal democrat: ​
     In reality, a lot of what we perceive as failings of the Constitution were recognized at the time. Most of us have been fed stories about how this or that structure was “necessary” to get all the states on board (e.g. the Senate) but a lot of it seems to have just been based on the personal philosophies of some of the authors. And, of course, the complete confidence in the wisdom of rich older white land-owning men such as themselves. But people certainly weren’t ignorant of human nature back then and knew what would happen.

  114. 114.

    Citizen Alan

    July 9, 2023 at 12:20 pm

    @gVOR08:

    This. The federalist society exists for one purpose only: To ensure that we never have another David Souter, let alone a William Brennan or an Earl Warren. That is to say, a republican appointee who turns out to be far more liberal than the republican party expected.

  115. 115.

    satby

    July 9, 2023 at 12:57 pm

    @Bethanyanne: Deepest condolences, it’s hard.

  116. 116.

    satby

    July 9, 2023 at 12:59 pm

    @Layer8Problem: Yes.

  117. 117.

    Glidwrith

    July 9, 2023 at 1:07 pm

    @New Deal democrat: Thanks!

  118. 118.

    stinger

    July 9, 2023 at 1:12 pm

    @Bethanyanne: My deepest condolences.

  119. 119.

    Nukular Biskits

    July 9, 2023 at 1:23 pm

    @Bethanyanne:

    Late with this, but condolences.

    My momma will be gone two years come another couple of weeks.

    She died peacefully at home with me, my brother & sister and niece watching over her.  My dad had passed away in 2004, so with her passing, I felt somewhat disconnected for a while.

    Hoping for the pain to pass soon.

  120. 120.

    Soprano2

    July 9, 2023 at 5:00 pm

    @Chief Oshkosh: There was a story about this at the time of the 2000 election, that she was horrified the night of the 2000 election when they were projecting Gore as the winner. Good to know she admitted her vote in Bush v. Gore was nothing more than a corrupt wish to be replaced by another Republican, rather than a principled belief about election sanctity.

  121. 121.

    Torrey

    July 9, 2023 at 8:33 pm

    @Bethanyanne: ​
     

    I’m so very sorry. I’m glad you have support in your sister and your friends. I lost my mother a few months back, so it’s from a place of recognition and understanding that I send my good thoughts. It sounds like you and your sister have a good relationship, and that is very much to your mother’s credit.

  122. 122.

    BethanyAnne

    July 10, 2023 at 12:10 am

    Thanks everyone for the kind words. I really appreciate y’all.

  123. 123.

    Manyakitty

    July 10, 2023 at 12:21 am

    @BethanyAnne: so sorry for your loss. May her memory be a blessing. Sending love to you and yours. 💔

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