How many on the Supreme Court can be validly impeached at this point?
So most of my focus is on environmental stuff, right? And you might think that I've been going crazy over all of it. But I haven't. The very next day after the Trump election, I figured that it was all going to be the very worst of the very worst, and there was no finessing the very worst from the most terrible, and jesus fuck, I'm still worn out from caring during the Cheney Era. So I've been totally serene about Pruitt, Zinke, all of it. They were always going to be everything they are now; I feel no surprise nor incremental outrage over any particular thing. The old-fashioned corruption has been amusing, at least.
But that attitude hasn't carried over to anything else. The stolen seat is infuriating. My boyfriend maybe found it troubling that I said that I daydream about a new administration (in our favor) and a simultaneous assassination of the five conservative justices (and McConnell).
Sigh. Justice Kennedy announces his impending retirement.
3 FUCK!!!
This is his legacy. Giving a SC seat to Trump.
BURN SHIT DOWN
Next time democrats have the house, senate, and presidency they absolutely need to pack the fucking court and then impose something like term limits on them.
Speaking of the environment, I got no uptake on my federal court climate change suit link in the midterms thread, so I'm going to copy/paste it here and then give up. I am definitely aware of carrying a giant dark cognitive-emotional load this week, on top of everything in normal life.
Because the use of fossil fuel energy has obviously produced benefits as well as harm, Alsup felt this necessitated a weighing of pros and cons--a tricky calculus. "Having reaped the benefit of that historic progress," the decision reads, "would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?"
Alsup doesn't answer those questions but explains that they're a better fit for Congress than a courtroom. And that's ultimately the thrust of the decision. Alsup cites precedent for courts steering clear of opening new legal pathways, deferring to the other branches of government. In this case, ruling against the oil companies would clearly expose them (and perhaps any other company involved in fuel sales) to a flood of liability. The fact that this would have international implications gave Alsup further pause.
Thoughts from the lawyers? I'm not happy. (We have a friend who worked on this suit who is presumably not happy either.)
I don't know about term limits, but yes, it's time to pack the court.
I felt sad about the case dismissal, but I didn't have any thoughts about it.
Can Trump get in a new justice by November?
Charles Stross's Merchant Princes sequel series has an alternate US where Roe v. Wade was dismantled in the early 2000s, and a lot of the states are known as "no choice states". I guess that's where we're headed. (Granted it's effectively like that for people in many locations, but it can always get worse.)
Stross may have been optimistic in assuming no federal criminalization of abortion of course.
10: Depends on stuff I don't understand in detail. That is, there's stuff that even a minority party can do to slow things down, but four months is a long time, and this being Chuck Schumer, who's to say he's even going to try hard.
Almost certainly they can do it, but there is a bare possibility that Schumer (a) isn't a worthless sack of shit for once and (b) finds a really implausible amount of sand to throw in the gears.
You know, I was actually given some interesting work very recently, and working on it would be good for me, and I keep thinking I should do that, and then I get overwhelmed by the news again and none of the work happens.
This is not real hope -- my only real hope is that we pack the court in 2020. But Republican senators Collins and Murkowski are pro-choice women. They might do something unexpected.
There is no formal Senate rule that the majority couldn't change that would prevent a vote before Republican control turns over. And the Republicans will absolutely vote for such a rule change (if one even is necessary now that the filibuster has been abandoned) in order to hold the decisive swing seat on the Supreme Court. Options are (a) seat gets filled before November; (b) seat gets filled by lame-duck Republican congress because they realize that running on the open seat boosts their turnout. Other than somehow (good luck, even for the Susan Collins of the world this is their signature issue) peeling off two Republican senators from a nominee, there's nothing whatsoever Democrats can do. The Court is over for many years as a locus of anything other than mostly disaster, better try and control the legislature and the states and the presidency.
17 is more right than 14 -- I just get surprised by Senate procedure often enough that I'm not dead sure there's nothing at all Schumer could do. But that's not knowledge-based doubt, it's just that I've been surprised before.
I can only assume that Kennedy has some kind of health issue such that he can't wait to retire until after the November midterms.
Why the fucking fuck does making the Supreme Court a salient issue boost their turnout and not ours? It does, I get that it does, but what the fuck is wrong with our voters?
19: Counterpoint: Possibly he's just a rightwing asshole.
I think we were already set to have a turnout boost, so the delta is less.
What exactly is wrong with court-packing at some point, as FDR wanted to do when he was President?
24 Nothing. Nothing at all.
Apparently, his own family wanted him to stay on the court.
Nothing is wrong with packing the court. I want people to start talking about it as obviously necessary, now. I want Democratic presidential candidates to run on that basis.
How much harder is impeaching justices, compared to packing the court? Are bigger supermajorities needed? I think a universe where impeachment is wielded back and forth is better than one where court-packing is wielded back and forth.
25: Okay, so twitter confuses me: where exactly is that claim coming from, that his own family, etc.?
I mean, I see that it's coming from one "southpaw", but who is s/he, and how does that person know that?
The text of his resignation letter says that his family would have been fine with his staying on, but he wanted to spend more time with them.
No, I'm wrong. But something I saw that he wrote did.
This, his retirement statement: https://twitter.com/MajorCBS/status/1012034294888398848
Agree with 26. More immediately, the threat of future court-packing under a potential unified Democratic government, which can be made explicitly or implicitly, publicly or privately (I dunno that immediate public grand-standing is the way to go, maybe it is but maybe it isn't) is about the only leverage that the Senate Democrats have now. That's not much leverage! But maybe it might encourage some Senators to push the White House for an only "moderately" hard-right guy in the Roberts mold as opposed to an extremely hard-right guy in the Gorsuch mold. I'm not optimistic about the possibility of doing that and have no illusions about how good that would even be (not very). But it's about all you have right now.
28 - impeachment takes 2/3 of the Senate to vote to convict, plus you have to identify an impeachable offense. Court-packing takes a majority vote and requires nothing more than total disregard of a longstanding norm and willingness to risk potential tit-for-tat escalation.
I figured that it was all going to be the very worst of the very worst
I feel like this about everything. The world is ending. May as well enjoy whatever options we have, while we have them!
I haven't stopped, like, volunteering and donating and protesting. I just stopped being upset when more and more worse and worse things happen. It's alarmingly relaxing (and irritating to other people but oh well).
Meanwhile, Axios (I know, I know) says that liberals have been assembling a "war chest" -- opposition research on potential replacement nominees --- for some time in order to basically turn a couple of Senate Republicans from voting to confirm a replacement. So possibly there's hope.
28
How much harder is impeaching justices, compared to packing the court?
IANAExpert, but only one justice has ever been impeached, and that, unsuccessfully. The size of the court has varied over the years but deliberately packing it to get favorable outcomes never actually happened, as far as I can tell. So, based on what's actually been done, they're both impossible.
Less facetiously, in theory court packing seems easier, requiring a simple act of Congress, whereas to impeach someone and get them convicted, they need two-thirds of the Senate. But then, these days a simple act of Congress requires 60 percent of the Senate, so the difference is tiny.
Okay, 2/3 vs. majority+chucking rules overboard is indeed harder. "Identifying an impeachable offense" barely seems like a speedbump, though.
Well, in the current context, I for one pay pretty close attention to the Court and am not aware of anything that any of the four conservative justices have done that's even close to what any Congress has ever considered an impeachable offense, unless you want to define an impeachable offense purely as "reaching decisions with which I strongly disagree." But also frankly who gives a shit about pointless sniping over these kinds of dumb hypotheticals, it's just a way of making us feel better when there's not much to feel better about. Help elect Democrats, it won't solve this problem but will keep things from getting even worse.
I'm on board with this:
https://twitter.com/adamcbest/status/1012046406004236288
39 What about Thomas lying in his confirmation hearings?
willingness to risk potential tit-for-tat escalation
This really isn't a concern. If it happens it would just mean a far right Court that's larger than the one we'll have. And the one we'll have will cripple the federal government.
The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five -- hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.
In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln's death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.
After Ulysses S. Grant was elected in 1868, Congress restored the court to nine. That gave Grant two new appointments. The court had just declared unconstitutional the government's authority to issue paper currency (greenbacks). Grant took the opportunity to appoint two justices sympathetic to the administration. When the reconstituted court convened, it reheard the legal tender cases and reversed its decision (5-4).
Meanwhile, Axios (I know, I know) says that liberals have been assembling a "war chest"
Things like this? Sure. That'll help.
The US is likely unrecoverable. Worries about returning to normalcy should take a back seat to damage mitigation.
Democratic lawmakers wont ever pack the court because then Republicans would say mean things about them on Fox News.
No, it's a real concern. A constantly expanding court that expands and adds new voting members based on pure partisan politics is banana-republic third world shit and utterly damaging to the rule of law. It also, given what Mitch McConnell did, is probably necessary right now. There will have to be politicization and counter-politicization until some kind of new norm settles (like maybe agreed-upon effective term limits, or a selection process involving both parties, or something).
banana-republic third world shit and utterly damaging to the rule of law
I've got some bad news for you...
Look, asshole, read the next fucking sentence.
45: One hopes the war chest is not quite like that. Think about the sorts of things that have caused a few Senate Republicans to go against party. How many of them are likely to support a nominee who might overturn Roe v. Wade? Best hope is a "moderate" conservative nominee.
How many of them are likely to support a nominee who might overturn Roe v. Wade?
All of them, I'm pretty sure.
Re the fake abortion clinic case, the holding is more or less that a business can't be forced to put specific information ("we don't do abortions") on its walls, and by extension in its advertising and labeling. Evil corporations have been pushing for this for decades.
Effects go far beyond abortion clinic fraud. In the medical area, someone offering cancer cures, or for that matter cancer surgery, won't have to disclose whether or not they are are a doctor. No more mandated risk disclosures for drugs or surgery.
Those posters in workplaces that inform workers of their rights to minimum wage and workers comp, and providing the phone number of the relevant government agency, come down.
Wait, there's more! No mandated disclosures for poisonous products like Roundup either. Trucks won't have to disclose that they're carrying toxic waste. Realtors won't have to disclose lead contamination, food manufacturers won't have to disclose calorie counts or ingredients, car salesmen won't have to disclose that an odometer is broken, no one has to admit their products were manufactured in China. Stock promoters can leave out those annoying audited financial statements, and substitute the unaudited kind. . .
Re the fake abortion clinic case, the holding is more or less that a business can't be forced to put specific information ("we don't do abortions") on its walls, and by extension in its advertising and labeling. Evil corporations have been pushing for this for decades.
Effects go far beyond abortion clinic fraud. In the medical area, someone offering cancer cures, or for that matter cancer surgery, won't have to disclose whether or not they are are a doctor. No more mandated risk disclosures for drugs or surgery.
Those posters in workplaces that inform workers of their rights to minimum wage and workers comp, and providing the phone number of the relevant government agency, come down.
Wait, there's more! No mandated disclosures for poisonous products like Roundup either. Trucks won't have to disclose that they're carrying toxic waste. Realtors won't have to disclose lead contamination, food manufacturers won't have to disclose calorie counts or ingredients, car salesmen won't have to disclose that an odometer is broken, no one has to admit their products were manufactured in China. Stock promoters can leave out those annoying audited financial statements, and substitute the unaudited kind. . .
Kamala Harris put out a statement co-opting McConnell's self-serving 2016 justification to say no vote until 2019. It's a clever idea, but still just a baby step in the direction we need.
(It would be pretty funny if as a result of consistency-lawyering and political jockeying we somehow ended up with a new rule to confirm justices only in odd-numbered years, though.)
I'm all for pointing out McConnell is a self-serving liar, but without 51 Democratic votes in the Senate, it's pointless except as it affects the midterms.
54/55 is pretty shocking. I had no idea.
58: I don't think that's a holding yet, just a possible direction.
How it affects the midterms, I don't know. Maybe, thinking Roe v Wade will die and immigration be permanently ended because of who Trump appoints, the real racists will stay home?
I don't see slow-walking this until after the election, and I also don't see it mattering much at all. Trump is going to get to fill the seat, and the Senate is less likely to change hands if there's a Supreme Court seat immediately at stake. And if it did, they'd confirm Trump's nominee in the lame duck session. We're basically fucked: the election that decided this was in 2016, which was, like every single fucking one of them, all-hands-on-deck, with no room for equivocation or wishful thinking about candidates not on the ballot.
It's usual for justices to announce retirement at the end of the term.
Re the fake abortion clinic case, the holding is more or less that a business can't be forced to put specific information ("we don't do abortions") on its walls, and by extension in its advertising and labeling. Evil corporations have been pushing for this for decades.
But doctors can be forced to read an nonfactual 'pro-life' script that clearly violates both their professional obligations and their first amendment rights. Everything is so fucked.
[W]hat the fuck is wrong with our voters?
Maybe liberalism isn't so naturally attractive that it can succeed without a television network and ready money.
55: The decision is pretty clear in saying that it doesn't apply to doctors (otherwise it would overturn rules requiring doctors to say bad things about abortion). I'm pretty sure it also says it doesn't apply to the things in your last paragraph. The court's reasoning is weird, but I don't think your point is actually true.
It's not necessarily true yet, but it's a very important salvo in a war that will be taking place along the lines that UPETGI describes, probably for the next 20 years or so.
sorry, mixed up my "U" commenters. Along the lines that unimaginative describes.
My fear is that McConnell decides to pack the court between now and November.
Through timed retirements like today the Republicans will always be able to maintain control of the court(as they have for 60 years) absent a once in a lifetime accident, which the Democrats dropped the ball on, we were always going to have to pack the court to take control of it. This just makes it obvious.
39: Help elect Democrats, it won't solve this problem but will keep things from getting even worse.
I will be voting DFL, of course, tho' I have but little faith that anything will change. We can elect more Democrats, but a chunk of them are going to be quasi-Dixiecrats, and plenty more will be corporate stooges. I think today is the last nail in the coffin for procedural liberalism.
I don't want to be forced to burn shit down. I like my shit.
Mitch McConnell is such a nasty fucking horrible excuse for a human being.
RE: court packing, it seems like there are some bona-fide non-partisan justifications for having more than 9 justices.
I mean, once the partisan court packing dust settles, wouldn't having 15 or 79 or whatever justices have some things going for it? Roosevelt's "more efficient" argument doesn't sound altogether laughable to me, by my count there'd be:
- Lower stakes appointments. (Less gamesmanship + higher turnover => more representative body, fingers crossed. Genuinely non-partisan decisions on the merits might even slip through once in a while.)
- No 85-yea- olds pressured into waiting extra years and years to retire. (Great power = great responsibility, sure, but this system isn't good for any of us.)
- Easier removal of lying/incompetent/partisan assholes. (Impeachment *should* be normalized.)
- Capacity to hear more cases and/or decide them faster and/or specialize more. (Country is a lot bigger these days, and maybe the highest court doesn't need to expand proportionally -- as Congress should -- but not at all?)
Obviously the internal norms and procedures of the court would need to be adjusted for a much larger body -- dividing into specialized committees in which different justices might hear different cases, for example -- but that seems not unpossible.
(I'm actually quite taken by the idea of more specialized justices. Partisanship and armies of clerks aside, it seems implausible to me that any nine people actually possess all the specialized technical or legal knowledge necessary, even collectively, to decide the variety of cases they do.
And specialization might help shift norms away from partisanship -- less "a conservative is resigning, we need to pull out all the stops to replace them with a conservative" and more "oh a civil rights/patents/environment/economics committee guy is resigning, we need to dig up a judge with similar technical competence".)
Most of the federal judicial deciding is done at the circuit level, and meets, roughly, those objections. It's when circuits (or state courts) come to different results that you have the SC act as a tiebreaker. They don't need to decide more cases, really: the number has been trending down, I think, because it doesn't need to be higher.
The other case today was the exception -- a Water Rights case! Because it was under the Court's original jurisdiction, the SC appointed a special masters to conduct a hearing and make recommendations. I was hoping for a Deliverance tie in, but that river goes the other way.
The next time Democrats have the power to do so, they should pass both a court-packing plan and a constitutional amendment establishing fixed SCt terms (18 yrs?), rotating the most senior sitting Justice off the bench every odd-numbered year until the new system is fully phased in. Republicans will go apeshit, but combining payback for McConnell's shenanigans with an equitable new system (albeit one that would work quite nicely for Ds for the next 20 years or so, assuming some electoral wins) should defuse that a bit.
I haven't thought about the question of court-packing until today, but I'm slightly confused about what makes people think that Democrats are more likely than Republicans to pack the court (if that's in play as a possibility)?
Republican don't need to because they already have.
They are likely to do it preemptively if they think it a real threat.
Agree with Dave completely. The stick is: you pack the court, the carrot is an amendment to article 3 that fixes the problem. Personally I open to lots of possibilities there, ideally if we are going to keep constitutional review of statutes (I'm skeptical) we somehow make them not purely partisan appointments.
76 - Sounds good to me. I like the idea of a genuinely large expansion combined with some subject-matter requirements, maybe things could stabilize there instead of naked partisan expansions. But who the hell knows what will happen. It's clear that the current system can't go on. And if the country survives with a rule of law, at some point the Court will stabilize into something less visibly partisan. But how long it takes to get there and what it looks like, who knows.
The little exposure I have had to media and pols responding to this has profoundly deepened my already very deep funk.
Speaking of media, if you define a daily paper as one that publishes all seven days of the week, Pittsburgh will be down to one.
I wonder if Pittsburgh Current will take off?
77 - I mean, I'm by no means an expert, but that seems to be kind of begging the question.
Is the number of cases the court grants each years steady because there just happen to only ever be about 100 interesting cases each year, or is it more because 9 justices can literally only *handle* about 100 cases each year?
Because the number of cases filed has increased. By an order of magnitude or two over the last 150ish years. Even allowing for structural changes in how much workload lower courts take on, it seems awfully convenient that there still only happen to be about 100 cases worth the high court's attention each year.
Alternatively, if most of the important decisions are *supposed* to happen at the circuit level, and high court's job is really just to referee disconformities, maybe some other approach altogether -- say a rotating jury of circuit court judges -- would be a better system than ultra-high-stakes lifetime appointments.
Isn't this whole process truly bizarre? Is there anywhere on earth where a high court judge leaving the court is seen as a tragedy for one political party and a triumph for another political party?
Or I should say, is there anywhere else on earth where that happens, that simultaneously still has the rule of law?
Any other comparatively sophisticated country would have changed the system by now.
Is there anywhere on earth where a high court judge leaving the court is seen as a tragedy for one political party and a triumph for another political party?
Right? Well, nowhere else in the so-called Anglo-American world that I can think of. Judicial supremacy over parliamentary supremacy is a form of American exceptionalism that has led to some very bad outcomes, some very pernicious effects.
It might help to think of it this way: the US does not have a supreme court in the sense that, say, Germany does. It has a House of Lords.
Members serve for life? Yes.
Members appointed by the government of the day for explicitly political reasons? Yes.
Acts as highest court of appeal? Yes (the House of Lords used to).
Effectively reviews legislation but can't originate it, and defers to the government in certain defined areas? Yes.
Members generally very old, opinionated and eccentric? Yes.
Religious criteria for membership? Yes (effectively).
Given all that, of course the answer is to pack it, or at least threaten to do so. That's what Lloyd George, Winston Churchill and George V would have done. https://en.wikipedia.org/wiki/Parliament_Act_1911
And packing wouldn't be an endlessly escalating process. The bigger the Court, the faster the turnover, and there would come a natural limit where there simply would not be enough time for the Senate to do anything else. If you had, say, a thousand justices, you would need to confirm about forty new ones every single year.
91: Israel, I guess? Not to the same extent.
Not that Israel is great when it comes to rule of law.
95: also Pakistan. This guy for example: https://en.wikipedia.org/wiki/Iftikhar_Muhammad_Chaudhry
And I am sure there are others; Malaysia maybe?
94 is a really good point. The Supreme Court is a very odd institution - nothing at all like the French cour de cassation or our Supreme Court, for example.
Indeed. If one thinks of the US constitution not as a forward-looking design (which is its reputation) but as a backward-looking one, it makes more sense: not a rationalized constitution but a rationalized medieval constitution; designed not for governance but for protection of inherited privileges, and therefore the inhibition of governance by the sovereign.
(I speak here in total ignorance, but just thinking about it a whole lot of stuff suddenly clicked into place.)
99: thanks. And if you just worked with it on that basis you would have a way to get rid of all your inconveniently aged and superfluous politicians; just kick them upstairs on to the Supreme Court bench.
(And indeed non-politicians. Our own equivalent of Donald Trump, Alan Sugar, has been in the Upper House for some years now.)
Actually a closer UK equivalent is probably Nicholas van Hoogstraten, but he never made it on TV.
He should have tried to change his name. Something like Nick Hog?
I enjoyed this account of the Supreme Court's first session.
According to historian Fergus Bordewich, in its first session: "[T]he Supreme Court convened for the first time at the Royal Exchange Building on Broad Street, a few steps from Federal Hall. Symbolically, the moment was pregnant with promise for the republic, this birth of a new national institution whose future power, admittedly, still existed only in the eyes and minds of just a few visionary Americans. Impressively bewigged and swathed in their robes of office, Chief Justice John Jay and three associate justices -- William Cushing of Massachusetts, James Wilson of Pennsylvania, and John Blair of Virginia -- sat augustly before a throng of spectators and waited for something to happen. Nothing did. They had no cases to consider. After a week of inactivity, they adjourned until September, and everyone went home."[6]
https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States
If only we could return to those halcyon days.
I'm pretty sure that's what they're trying to do in terms of the franchise and civil rights.
Warming to my theme, I'm reminded of this on the decline of Habsburg Spain, which opens with a description of the constitution of the Crown of Aragon. This was a thing of wonder, being a sort-of federation of three kingdoms, each with its own estates and cortes, cities, communes, guilds, religious orders, etc. etc., all of them with highly articulated sets of rights and privileges. This being the introduction to Elliot's overall thesis, that Spain was essentially doomed by the failure of its monarchs to centralize government and wrest all those privileges away from the other special interests.
I think maybe Marxist analyses of late capitalism are doing to be better to explain the decline of the United States. It's not special interests, but one big interest.
That one big interest is everywhere. What makes America special* is the interaction between that interest and the weird antiquated constitution.
*Among so many other things.
And (I dimly recall) Marxist analysis does much to explain the constitution, so we can have both.
Some slight balm: a properly nasty obituary for Kennedy's career.
Kennedy could have been a perfectly adequate lower court judge, but he was in over his head at the Supreme Court. And, for that reason, his most celebrated opinions will be very easy to dismantle.
I thought that Gordon Wood's Creation of the American Republic was really good on explaining how the US got from the idea of unwritten constitutions to a written one, from the idea of mixed government to the idea of separation of powers, and so on. It's probably his driest book but it's the only one I've managed to get through.
It lacks social history context but I wouldn't really pick reading Wood for that anyway.
The link in 111 is very good, meaning of course that I agree with it.
Yeah, I think his extraordinarily lame concurring opinion in Hawaii v. Trump, not long after his posturing in the cake case, is the man's enduring legacy.
I like our constitution, including our Supreme Court. The problem we are having is that a whole bunch of people didn't vote in 2010, 2014, and 2016. Some were prevented, and that has to be remedied (although there's a cart and horse problem with that.) But a great many more couldn't be bothered. Add in the people who voted based on entertainment value, or based on personal vanity, and you end up with the better organized but distinctly in the minority fascist movement gaining power.
115: I'm onboard in general with the critiques of the Constitution, except when I ponder what would be produced out of a hypothetical constitutional convention.
I think our constitution has absolutely glaring and obvious problems compared to, eg, the German one (which, incidentally, is basically what American new-dealers would have wanted as their ideal constitution, so). Since the 1930s the worst problems have been partially mollified, and a federal government that is both (a) modern and more-or-less functional (b) relatively attuned to human rights has been allowed to develop, but that's largely due to some quite specific constitutional law choices that are surprisingly vulnerable to both an ideological Supreme Court and partisan polarization, so here we are.
No new constitution, or tweaks to our old one, can cure the problem of people most highly impacted by the public policies at issue not bothering to vote.
Or stampeding in a ridiculous direction based on half-truths. I respect the critiques of our Constitution from our British friends, but wonder just how that Brexit thing is working out for them.
119: Of course. Your constitution is rather exceptionally old though; and I'm inclined to think that isn't because of the drafters' exceptional ability so much as your exceptionally lucky history.
120- but not just luck, also a common-law-esque ability to dramatically reinterpret the Constitution to discard nonfunctional doctrine. The post-1937 US Constitution, in practical terms, is radically different than the 1868-1932 Constitution. The 1868-1932 Constitution was radically different than the pre-civil-war one (in part because of amendments, but also in part because of decisions, eg the Legal Tender cases). The problem with such a system is that these changes can be changed back, and the potential for judicial supremacy to do ill is always there. And there are particular anti-Democratic features that can't be interpreted away and increase the risks. All of this is made way way worse with extreme partisan polarization. And so here we are.
Again, speaking from ignorance, but it seems to me that most countries after crises the scale of the Civil War or Great Depression substantially reform institutions rather than fudging the rules. That's a curious thing, and over time there seems to have developed this quasi-religious regard for the constitution which I don't know of elsewhere.
119: Thank god for Brexit. Yes, the US is the stupidest fucking country in the West, but Brexit shows that we're not the stupidest by a whole lot.
And Charley is, of course, right. In a very real sense, we are where we are because the US has many of the attributes of a democracy, and a significant portion of the electorate chose this outcome.
121, 122: Yeah, my favorite pointlessly cranky political opinion is that the country needed a constitutional convention in 1870, recognizing, inter alia, that the states are not sovereign entities in any sense at all any more and shouldn't be treated as such.
124: Of course true; but the choices and constitution aren't independent, they interact with each other. I don't know enough US history to cash that out forcefully, but just for one, having FPTP baked in promotes a two-party system, and with it presumably increased odds for bad tribalism.
125: I believe that is the McManus position. I seem to recall him arguing that we should embrace the idea that the Civil War was fought for the purpose of destroying states' rights.
One of his more maddening traits was that he wasn't reliably wrong about everything. Just reliably crazy and mean.
Thomas Edsall, by the way, doesn't represent everything wrong with lukewarm US liberalism, but he captures a heck of a lot of it. We must not criticize Trump for racism, Edsall tells us, because that offends racists.
Edsall is right that such accusations result in a backlash that Trump manipulates, but he doesn't follow through with the obvious corollary: When people back off, Trump escalates to obtain the reaction he wants. The guy's entree into respectable political society came with his insistence that Obama is a Kenyan Muslim. When that stopped getting a rise out of people, he had to characterize immigrants as rapists.
Further, Edsall can't come to grips with the fact that he is demanding absolute solidarity in ignoring racism. If one person speaks up, then that's still the lead story on Fox, Trump can still bitch about it from the stump, and Edsall can tut-tut about how Trump voters wouldn't be so racist if people stopped noticing how fucking racist they are.
I do not have access to the paper but I have like other things that Kim Lane Scheppele has written on "post-horror" constitutions*. From the abstract:
In this paper, I explore the ways in which new constitutions encode national collective memory at the point of political transformation and the strategies through which constitutional courts make use of this collective memory to expand their powers. There has been a world-wide turn to constitutionalism as a form of politics and a rapid emergence of an aggressive constitutional judiciary in many new democracies emerging from "regimes of horror." I argue in this paper that the aggressiveness of constitutional courts in new democracies stems from the ability of these courts to participate in shaping the collective memory about the previous regimes of horror. Courts can then position themselves as the border guard of the boundary between past and future.Her specialty seems to be Hungary, so I guess 'post-horror" and most likely "pre-horror."
*First came across her via Lemieux post at LGM mentioning her article on Bush v. Gore. (Which led to me rereading his post mentioning it and experiencing new ragegasms.)
Link to the paper: "Constitutional Interpretation after Regimes of Horror."
130 certainly sounds like the SA experience.
The Constitution doesn't mandate FPTP! I'm not even sure it mandates single-member House districts. The system just has an extraordinary amount of inertial power and is assumed as the default. For US Congressional races, at least four states use something different (basically top-two), and Maine is gearing up to add to their number.
Ok! Now think of something that proves me right!
133 - correct.
most countries after crises the scale of the Civil War or Great Depression substantially reform institutions rather than fudging the rules
We did, in both cases! After the Civil War we even did so by formal constitutional amendment. But the current system isn't invulnerable.
135.3: We've changed, but still maintained the same reverence for the original documents and the OGs, and prize the partial illusion that we're still guided by our founding documents, and scoundrel and fools can win arguments by claiming to be the ones that are adhering most closely to the intent of our sacred texts.
scoundrel and fools can win arguments by claiming to be the ones that are adhering most closely to the intent of our sacred texts
this stings me but I guess it's true.
137: That was directed at Zombie Scalia.
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NMM to Harlan Ellison, per Twitter only.
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Right, FPTP and single-member aren't encoded in the Constitution. The most relevant clause is this:
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
That last bit, whatever it meant, probably overridden by the 17th Amendment. I assume that some statutory federal laws have been passed so that the States don't have entirely free rein (and reign)?
While looking this up, I noticed that the Constitution hardcodes the initial number of representatives each State gets, giving Massachusetts more than New York. Hard to imagine.
Some laws, like the Voting Rights Act, Motor Voter Act, etc., and judicial implementation of the Equal Protection Clause, one-person-one-vote, etc., but I'm not aware of any federal laws on vote-counting mechanisms per se.
There's Article IV Section 4, "The United States shall guarantee to every State in this Union a Republican Form of Government," but that's never been used to any effect. (I believe all attempts to use it to rule out of bounds certain constitutional structures have failed.)
Here, everyone will enjoy learning about Luther v. Borden, the case in which the Supreme Court held that the "Republican Form of Government" (aka the Guarantee Clause) is nonjusticiable, meaning that you can't bring a lawsuit under it.
https://en.wikipedia.org/wiki/Luther_v._Borden
It arose from a literal, although not very bloody, civil war in Rhode Island, with two competing state governments. Just in case you thought democracy in the USA was easy.
143: My first thought was -- surely there are other (better) alternatives, but then I got the joke. Very nice.
142: Was just looking at that. (Seems like there's relatively few internet ratholes to go down on this.) I guess the good news is that if a state legislature was going to try anything interesting there, there'd probably already be a more amenable Congress in place.
143: Probably shouldn't have read this while drinking coffee.
I was thinking that while now we couldn't M, at least, we could feel a lot safer sharing his stories on the internet.
How soon is too soon to jump to conclusions about whether a shooting at a newspaper is related to various denunciations of the media?
About 20 minutes ago? You're good now though.
I'd say it's better than even odds that it's not related (former employee, ex-boyfriend of someone who worked there). This is a pretty obscure newspaper, not CNN or NYT that gets specifically denounced.
148: Questlove did that on Instagram already, so I think you're good.
Milo did it yesterday so you're definitely good.
What's the deal with Ellison personally in his treatment of other people? He was a wonderful person but also a loud vituperative asshole? And somehow all his loud offensiveness was in public and absolutely none of it carried over to objectionable private behavior? The encomiums now circulating are interesting; I know his personality was storied but I never knew details, and really still don't.
He was a legendary colossal asshole and I wouldn't be surprise to hear about sexual harassment issues in his past (maybe I already have and forgotten).
Notes in the paper at 131 lead me to:
Karen Orren challenges that account by arguing that a remnant of ancient feudalism was, in fact, embedded in the American governmental system, in the form of the law of master and servant, and persisted until well into the twentieth century. The law of master and servant was, she reveals, incorporated in the US Constitution and administered from democratic politics. The fully legislative polity that defines the modern liberal state was achieved in America, Orren argues, only through the initiatives of the labor movement in the late nineteenth and early twentieth centuries, and was finally ushered in as part of the processes of collective bargaining instituted by the New Deal.Which apparently the court is now busy reversing?
I assume at some point in the past we have adequately excoriated the white nationalist sub-cunts of the Federalist Society? Because what a bunch of fucking white nationalist sub-cunts they truly are. Just what you'd expect the demon spawn of Ed Messe and Robert Bork to turn out to be. Judicial terrorists embedded in every major university in this benighted land.
These are the revoke-jus-soli types dalriata was talking about?
Probably most have seen Rebecca Traister's piece in tThe Cut, if not here's a link.
But it's not just in the numbers; it's also in the quotidian realities of living in this country. The suffocating power of our minority rule is evidenced by the fact that we're always busy worrying about the humanity -- the comfort and the dignity -- of white men, at the same time discouraging disruptive challenge to their authority.
160: Some probably are, but in general The Federalist guys are a much more respectable breed of sub-cunt. "Mainstream" conservatives wrapping their bigotry in respect for the motherfucking Constitution.
From the 131 paper:
A not-that constitutional theory starts from the premise that, whatever else the new constitution may mean, it must mean at a minimum that the abuses of the past regime are not allowed to continue. The clauses of the new constitution, then, are defined by the negative example of the old regime rather than through just an aspirational sense of what the new constitutional regime should be. The precise abuses of the past fill in the content of abstract terms in the text. In other words, whenever the constitutional courts encounter something that reminds them of the specific horrors of the past, the courts reach conclusions in these specific cases on the basis of these negative models rather than on the basis of a positive theory of the meaning of the clause.Something worth thinking about, for your fantasy post-Republican Convention.
163 I'm not going to read the link, but our history with XIV is definitely not that model. Or at least, that model was dropped some decades after ratification. There's no way the drafters foresaw (or intended) Pierce and Brown, much less Griswold/Roe, Heller*, and ATP v. Bullock.
The crankiest of cranks will tell you that there's an issue with the ratification of XIV, and so the whole thing is illegitimate.
* OK, literally, McDonald, but we all use Heller as the shorthand.
the idea of a constitutional democracy, encoded in Eastern Europe as the idea of a "normal country," now has a broad substantive content that is the object of widespread agreement among the new democrats.A lot of Americans here at least seem to feeling a distinct lack of normality.
[...]
If any "normal country" must have these things, there is no point in leaving the matter for majoritarian institutions to decide. If a parliament were to vote not to respect free speech, for example, the conclusion one might draw from this is that the parliament was not democratic in the first place, not that the majoritarian judgment should be accepted.38 In other words, democratic constitutionalism does not just describe a process through which decisions are reached, but a set of substantive conclusions to be drawn. Any country that did not arrive at those same conclusions would look suspect in its process.
In 164 I should say 'specifically intended' -- they knew they were writing in very broad terms and knew from M'Culloch v. Maryland that broad terms get read broadly.