The War for the Supreme Court (Ginsburg is dead)

[Isgrimnur]

Anyone want to take bets that Thomas retires after election day and Trump gets to nominate #4 during his lame duck session?

If the Dems win the Senate, Breyer would be next out the door before the midterms.

[Zaxxon]

The Ds have a shot (possibly) to make structural changes to resolve this. They need to take that shot.

I say again...

[Smoove_B]

Happening at nearly the same time the Senate was confirming Barrett:

BREAKING: Supreme Court sides with Republicans to block voting accommodations in Wisconsin. The vote is 5-3.

[Little Raven]

That’s what this has been about. Good luck with your legislative attempts to do anything.

The judiciary has not been the primary obstacle to legislative progress in the last 30 years. I do not expect that to change in the next 10, but I would honestly be thrilled if it did, because that's a much more solvable problem than what we have now.

[malchior]

It shouldn't be lost on anyone that Wisconsin is one of the most if not most gerrymandered states in the Union. This same majority essentially said there was nothing to be done about that either. Too bad. Fix it at the State level. Yeah the one that is so gerrymandered that the Democrats have to win something like 65% of the vote to get a majority. Good luck. They've gone whole hog on "State's rights" as long as the state is run by Republicans. There are storm clouds on the horizon but yeah adding another extremist Republican is nothing to worry about.

Happening at nearly the same time the Senate was confirming Barrett:

BREAKING: Supreme Court sides with Republicans to block voting accommodations in Wisconsin. The vote is 5-3.

This isn't a surprise really. They've basically said over and over that an emergency has nothing to do with elections. If you want to vote, you have to be willing to potentially die. Too bad said the people who've been working from home the entire time.

[malchior]

Is it normal for the confirmation vote to be followed barely minutes later by a swearing in ceremony? Maybe I remember differently from the past but this seems like really nutty stuff.

Edit: It was for show. The actual oath is tomorrow. Roberts still isn't out of his mind. However, Thomas participated in a political stunt on the eve of an election. Someone tell me again why we shouldn't worry as they just smash glass left and right?

[Little Raven]

Someone tell me again why we shouldn't worry as they just smash glass left and right?

We are worried. Quite terribly worried. I don't think there's a single person on this entire board that will suggest voting for the GOP in it's current form.

But we can't stop Republican smashing with Democratic smashing. That doesn't even the board - it destroys it.

[RunningMn9]

To quote Mal: “Maybe that’s why we lost?”

[Zaxxon]

Someone tell me again why we shouldn't worry as they just smash glass left and right?

We are worried. Quite terribly worried. I don't think there's a single person on this entire board that will suggest voting for the GOP in it's current form.

But we can't stop Republican smashing with Democratic smashing. That doesn't even the board - it destroys it.

See the article I posted above. Even if you want to characterize the D response (in whatever form it comes) as smashing, the both sides-ing isn't helpful. They're not equivalent. One side is working to steadily entrench minority rule. The other is working to restore democratic order.

Yes, please smash away to restore us to a point where we don't have three justices that were nominated by a President who lost the popular vote being confirmed by a Senate representing 8 figures fewer Americans than those who voted against confirming.

[malchior]

To quote Mal: “Maybe that’s why we lost?”

Big yup. I can't take people seriously when they say that some effort to rebalance the Courts is equivalent to the GOP's actions transforming the judiciary in the most cynical, non-democratic way possible. It is facile and ignorant false equivalency. It is not a serious response to the very serious problems we are facing.

See the article I posted above. Even if you want to characterize the D response (in whatever form it comes) as smashing, the both sides-ing isn't helpful. They're not equivalent. One side is working to steadily entrench minority rule. The other is working to restore democratic order.

Yes, please smash away to restore us to a point where we don't have three justices that were nominated by a President who lost the popular vote being confirmed by a Senate representing 8 figures fewer Americans than those who voted against confirming.

You beat me to this point but this is another good way of looking at it. This was anti-Democratic. It was hypocrisy of the highest order. And the Democrats are supposed to 'wait it out'? Don't we have any fight in us anymore?

[Little Raven]

See the article I posted above. Even if you want to characterize the D response (in whatever form it comes) as smashing, the both sides-ing isn't helpful.

Hey, I'm on record as supporting Biden's current plan for the Court. I'm all for a bi-partisan commission. Let's see what they say.

They're not equivalent. One side is working to steadily entrench minority rule. The other is working to restore democratic order.

I agree that the sides are not the same. Biden is working to restore order, Trump is very much not.

But only one of them is smashing. That should be telling.

[Zaxxon]

But only one of them is smashing. That should be telling.

I mean, true. One side would be using their lawful power to alter the size of the court, as has been done in the past. The other just hypocritically used incompatible assertions to halt the other side's guy while getting theirs in so as to give themselves a shot at a continued undemocratic run at power.

[Jeff V]

I do have to say I find the idea of arguments in front of a panel of 13 supreme court justices (then 15 during the next president then 17 during the next, and before you know it we've got ourselves basically a House of Lords) mildly amusing.

You are assuming they don't have the foresight to also pass legislation requiring any further increases to have, say, 90% of the senate vote. It used to be 60%, until the Elephant turds changed it to simple majority.

[malchior]

But only one of them is smashing. That should be telling.

I mean, true. One side would be using their lawful power to alter the size of the court, as has been done in the past. The other just hypocritically used incompatible assertions to halt the other side's guy while getting theirs in so as to give themselves a shot at a continued undemocratic run at power.

Personally I find this smash/no smash stuff overly reductive and next to useless for discussing this in an action-oriented or strategic way. The GOP has been conducting what essentially has been insurgent asymmetric political warfare for years now within the system. Complete with mass indoctrination and propaganda efforts. We are well beyond the capacity of the 'normal system' to respond to this.

That doesn't mean get in the trenches and fight their war on their terms but 'do not smash' is meaningless when the system is as distorted as it is now. What's normal? Roll back to the obstruction of the first Obama Presidency complete with fiscal hostage taking? How about the Starr commission years? Was that normal? The answer is that there is likely that there is no normal to return to. What is "normal" is some fantasy that lives only in people's minds now. We need to figure out how to return to a functioning system that enables governance. And figure it out quick because this system is failing fast.

[malchior]

See the article I posted above. Even if you want to characterize the D response (in whatever form it comes) as smashing, the both sides-ing isn't helpful.

Hey, I'm on record as supporting Biden's current plan for the Court. I'm all for a bi-partisan commission. Let's see what they say.

In my experience, politicians appoint a commission when they want to give lip service to an idea but have no real interest in touching it....so I'm taking this as a good sign.

[RunningMn9]

But only one of them is smashing. That should be telling.

Only one of them will get what he wanted. He being McConnell. Biden will not restore order. Because while he’s trying to restore order by playing by the rules, he’ll be continually thwarted by a minority that plays dirty pool all of the time. But you’ll be able to sleep at night because you played by the rules and got more votes!

[Jeff V]

And figure it out quick because this system is failing fast.

Abolish organized political parties, and the PACs that support them. Require every candidate for every elected office to campaign on their own views and not lean on any platform. Restrict campaign funding to exclude all special-interest money. I'd go as far as allowing for public money to be used for fixed-campaign financing, so voters are not unfairly deluged with partisan funding.

[malchior]

And figure it out quick because this system is failing fast.

Abolish organized political parties, and the PACs that support them. Require every candidate for every elected office to campaign on their own views and not lean on any platform. Restrict campaign funding to exclude all special-interest money. I'd go as far as allowing for public money to be used for fixed-campaign financing, so voters are not unfairly deluged with partisan funding.

No modern democracy runs this way. Not that it means this is all wrong but more that the idea of banishing political parties flies in the face of the 1st amendment here and modern political science theory (here or anywhere else). Also I can't quite figure out how you'd go from current state to anything approximating the target state without chaos.

[LawBeefaroni]

You don't just change the way a government functions because you don't like the outcome.

Isn't that exactly what the GOP did to get us here?

"But they did it first" is how children argue.

Just want to point out that it's also how adults start wars. It may not be reason to restructure the court, or it may be, but it's not limited to children.

[Kraken]

What does Beau think?

[Paingod]

You don't just change the way a government functions because you don't like the outcome.

Isn't that exactly what the GOP did to get us here?

"But they did it first" is how children argue.

I prefer the Ender's Game approach, where the asshole hits you once so you beat him so hard he never -ever- wants to hit you again.

[malchior]

The NY Times Editorial Board tonight wrote a searing op ed echoing much of what we've discussed here. I don't think there will be much room for Biden to play this down. It will be seen as too important. Even the usually staid Editorial Board explicitly pointed out the ties to the Federalist Society and how this Conservative majority has been increasingly activist. They specifically pointed out how they have transitioned from counter-majoritarian shield to anti-democratic gutting of voting rights. Maybe this will be seen as a strategic blunder in the long-term by the GOP who overreached. Time will tell.

It was never about fighting “judicial activism.” For decades, Republicans accused some judges of being legislators in robes. Yet today’s conservative majority is among the most activist in the court’s history, striking down long-established precedents and concocting new judicial theories on the fly, virtually all of which align with Republican policy preferences.

It was never about the supposed mistreatment that Robert Bork, a Reagan nominee, suffered at the hands of Senate Democrats in 1987. That nomination played out exactly as it should have. Senate Democrats gave Judge Bork a full hearing, during which millions of Americans got to experience firsthand his extremist views on the Constitution and federal law. He received an up-or-down vote on the Senate floor, where his nomination was defeated by Democrats and Republicans together. President Ronald Reagan came back with a more mainstream choice, Anthony Kennedy, and Democrats voted to confirm him nine months before the election. Compare that with Republicans’ 2016 blockade of Judge Merrick Garland, whom they refused even to consider, much less to vote on: One was an exercise in a divided but functioning government, the other an exercise in partisan brute force.

How will a Justice Barrett rule? The mad dash of her confirmation process tells you all you need to know. Republicans pretended that she was not the anti-abortion hard-liner they have all been pining for, but they betrayed themselves with the sheer aggressiveness of their drive to get her seated on the nation’s highest court. Even before Monday’s vote, Republican presidents had appointed 14 of the previous 18 justices. The court has had a majority of Republican-appointed justices for half a century. But it is now as conservative as it has been since the 1930s.

Of all the threats posed by the Roberts Court, its open scorn for voting rights may be the biggest. In 2013, Chief Justice John Roberts wrote the lead opinion in the most destructive anti-voter case in decades, Shelby County v. Holder, which gutted the central provision of the Voting Rights Act and opened the door to rampant voter suppression, most of it targeted at Democratic voters. Yet this month, Chief Justice Roberts sided with the court’s remaining three liberals to allow a fuller count of absentee ballots in Pennsylvania. The four other conservatives voted against that count. In other words, with Justice Barrett’s confirmation the court now has five justices who are more conservative on voting rights than the man who nearly obliterated the Voting Rights Act less than a decade ago.

[malchior]

Meanwhile she is already in a political ad. This is another Trump-led disaster and shows why she'll always have an asterisk next to her name. Like Kavanaugh we have strong suspicion to question her judicial temperament now. This looks horrible.

[Tao]

Just read several articles discussing the concurrence that Kavanaugh wrote for the accommodations decision and the consensus seems to be Kavanaugh took liberty with the facts, misrepresented past concurrence as precedent and most importantly and disturbing may have just revealed himself to be Trumps hole card for November 3rd. Kavanaugh believes no ballots should be counted beyond November 3rd, even ballots which were post-marked accordingly and that the Supreme Court should now be the ultimate arbiter even in regard to State Law if it does not conform to the Courts view of legislative intent. So basically if Trump cries foul Kavanaugh is in his corner.

[LordMortis]

I am shamed to say I'm glad he sounds like total shit.

[noxiousdog]

You don't just change the way a government functions because you don't like the outcome.

Isn't that exactly what the GOP did to get us here?

"But they did it first" is how children argue.

Just want to point out that it's also how adults start wars. It may not be reason to restructure the court, or it may be, but it's not limited to children.

Indeed.

[Carpet_pissr]

You don't just change the way a government functions because you don't like the outcome.

Isn't that exactly what the GOP did to get us here?

"But they did it first" is how children argue.

I prefer the Ender's Game approach, where the asshole hits you once so you beat him so hard he never -ever- wants to hit you again.

That’s also the Trump approach, FWIW.

[Smoove_B]

The first thing Justice Barrett did was to participate in a campaign event at the White House for the president, eight days before an election that he has explicitly said he expects will turn on her vote.

[Jeff V]

And figure it out quick because this system is failing fast.

Abolish organized political parties, and the PACs that support them. Require every candidate for every elected office to campaign on their own views and not lean on any platform. Restrict campaign funding to exclude all special-interest money. I'd go as far as allowing for public money to be used for fixed-campaign financing, so voters are not unfairly deluged with partisan funding.

No modern democracy runs this way. Not that it means this is all wrong but more that the idea of banishing political parties flies in the face of the 1st amendment here and modern political science theory (here or anywhere else). Also I can't quite figure out how you'd go from current state to anything approximating the target state without chaos.

A "modern democracy" is whatever it currently is. It's a shit-show now that needs radical change. It does not serve the people as a democracy idealistically should.

Not sure what sort of chaos you are expecting. I would expect there to be more run off elections, since more people would be empowered to run. But by and large, you have a primary to limit the choice to 2 or 3, then the general election to select one of them. Each of the candidates would need to run on their own platform, which would mean they would need to be better informed, and as a side effect, probably smarter humans. The result would reflect the actual will of the people since the people would need to be more aware of the issues and not blindly follow tribal fealty. The two-party system as it stands exists only to serve one thing: the needs of the party.

[Ralph-Wiggum]

We have no way to know for sure, but I strongly believe the current rush to have Amy Covid Barrett seated ASAP is because they know they're (GOP) in big trouble and are at significant risk of losing the Presidency and possibly critical seats in Congress. Guessing that 2021 looks bad, McConnell is putting everything into seating *another* justice (and as many lower court judges as possible) as a final firewall against what he imagines will be severe (D) reprisal in 2021 and beyond. If they can't control the budget and policies the can certainly potentially influence the decisions made when challenges are made.

A bit late in the response here, but the reason for the rush was because Trump and GOP fully expect to bring election/vote count cases to the SC. Having ACB confirmed gives them at least four judges (ACB, Kavanaugh, Alito, Thomas) who will rule in whatever way helps Trump maintain power. They only need to convince one other (likely Gorsuch) to join them to be able to throw out ballots and potentially swing the election.

[ImLawBoy]

And figure it out quick because this system is failing fast.

Abolish organized political parties, and the PACs that support them. Require every candidate for every elected office to campaign on their own views and not lean on any platform. Restrict campaign funding to exclude all special-interest money. I'd go as far as allowing for public money to be used for fixed-campaign financing, so voters are not unfairly deluged with partisan funding.

No modern democracy runs this way. Not that it means this is all wrong but more that the idea of banishing political parties flies in the face of the 1st amendment here and modern political science theory (here or anywhere else). Also I can't quite figure out how you'd go from current state to anything approximating the target state without chaos.

A "modern democracy" is whatever it currently is. It's a shit-show now that needs radical change. It does not serve the people as a democracy idealistically should.

Not sure what sort of chaos you are expecting. I would expect there to be more run off elections, since more people would be empowered to run. But by and large, you have a primary to limit the choice to 2 or 3, then the general election to select one of them. Each of the candidates would need to run on their own platform, which would mean they would need to be better informed, and as a side effect, probably smarter humans. The result would reflect the actual will of the people since the people would need to be more aware of the issues and not blindly follow tribal fealty. The two-party system as it stands exists only to serve one thing: the needs of the party.

It's a moot point, as your proposals run clearly counter to the First Amendment.

[Smoove_B]

Just read several articles discussing the concurrence that Kavanaugh wrote for the accommodations decision and the consensus seems to be Kavanaugh took liberty with the facts, misrepresented past concurrence as precedent and most importantly and disturbing may have just revealed himself to be Trumps hole card for November 3rd. Kavanaugh believes no ballots should be counted beyond November 3rd, even ballots which were post-marked accordingly and that the Supreme Court should now be the ultimate arbiter even in regard to State Law if it does not conform to the Courts view of legislative intent. So basically if Trump cries foul Kavanaugh is in his corner.

Details

Holy shit—Brett Kavanaugh just endorsed Rehnquist's concurrence in Bush v. Gore, which was too extreme for Kennedy or O'Connor.

This is a red alert. I can't believe he put it in a footnote. This is terrifying.

[malchior]

A "modern democracy" is whatever it currently is. It's a shit-show now that needs radical change. It does not serve the people as a democracy idealistically should.

Not sure what sort of chaos you are expecting. I would expect there to be more run off elections, since more people would be empowered to run. But by and large, you have a primary to limit the choice to 2 or 3, then the general election to select one of them. Each of the candidates would need to run on their own platform, which would mean they would need to be better informed, and as a side effect, probably smarter humans. The result would reflect the actual will of the people since the people would need to be more aware of the issues and not blindly follow tribal fealty. The two-party system as it stands exists only to serve one thing: the needs of the party.

The problem is this argument was lost nearly 2 centuries ago. You're talking about something completely orthogonal to the current system that would require the parties to basically abolish themselves by amending the Constitution. I doubt that'd be orderly. You're jumping to the end without any of the middle stuff that frankly is impossible but if it happened would be messy as hell. That is how things go when you do something completely new. People wouldn't understand the paradigm. And then there'd be arguing and legal cases and etc. Democracy is messy but this would be like throwing it into a fan and seeing what came out the other side.

[malchior]

We have no way to know for sure, but I strongly believe the current rush to have Amy Covid Barrett seated ASAP is because they know they're (GOP) in big trouble and are at significant risk of losing the Presidency and possibly critical seats in Congress. Guessing that 2021 looks bad, McConnell is putting everything into seating *another* justice (and as many lower court judges as possible) as a final firewall against what he imagines will be severe (D) reprisal in 2021 and beyond. If they can't control the budget and policies the can certainly potentially influence the decisions made when challenges are made.

A bit late in the response here, but the reason for the rush was because Trump and GOP fully expect to bring election/vote count cases to the SC. Having ACB confirmed gives them at least four judges (ACB, Kavanaugh, Alito, Thomas) who will rule in whatever way helps Trump maintain power. They only need to convince one other (likely Gorsuch) to join them to be able to throw out ballots and potentially swing the election.

The reason I don't think this happens is it'd likely be the end of the United States as we know it. This is well beyond a take the streets moment.

[Jeff V]

It's a moot point, as your proposals run clearly counter to the First Amendment.

The first amendment legislates the existence of political parties? It's a moot point under the current system, if we want to restore an actual Democracy, it would likely involve a constitutional convention, thus, no obstacle.

[stessier]

It's a moot point, as your proposals run clearly counter to the First Amendment.

The first amendment legislates the existence of political parties? It's a moot point under the current system, if we want to restore an actual Democracy, it would likely involve a constitutional convention, thus, no obstacle.

It guarantees the right of free association. You can't keep people from forming a political party.

[Little Raven]

The first amendment legislates the existence of political parties?

The First Amendment protects the ability to form political parties. (Freedom of Association) Voting mandates their existence.

Various people have accused the SPs of cheating, which is almost certainly not the case. On the SP side, people have been crowing that this shows they’re really in the majority, which is also almost certainly not the case. Given the way the Hugo nomination process is structured, organized slate voting is a dominant strategy, and a minority being able to completely dominate the ballot should be an expected result.

If the other guy has a party and you don't, you're going to lose every single time. So you need to make a party too.

[Ralph-Wiggum]

We have no way to know for sure, but I strongly believe the current rush to have Amy Covid Barrett seated ASAP is because they know they're (GOP) in big trouble and are at significant risk of losing the Presidency and possibly critical seats in Congress. Guessing that 2021 looks bad, McConnell is putting everything into seating *another* justice (and as many lower court judges as possible) as a final firewall against what he imagines will be severe (D) reprisal in 2021 and beyond. If they can't control the budget and policies the can certainly potentially influence the decisions made when challenges are made.

A bit late in the response here, but the reason for the rush was because Trump and GOP fully expect to bring election/vote count cases to the SC. Having ACB confirmed gives them at least four judges (ACB, Kavanaugh, Alito, Thomas) who will rule in whatever way helps Trump maintain power. They only need to convince one other (likely Gorsuch) to join them to be able to throw out ballots and potentially swing the election.

The reason I don't think this happens is it'd likely be the end of the United States as we know it. This is well beyond a take the streets moment.

There have been many things that should have been a take to the streets moment in this presidency that weren't, so why not try another? In a hypothetical situation where the SC does rule in Trump's favor and swings the election his way, what do you think taking to the streets will do? I don't see any way that scenario plays out with Trump standing down and we've already seen that Trump/GOP have no problem calling in troops and teargassing citizens protesting. With how much everything has already been corrupted, I don't see any way such a decision gets reversed.

[ImLawBoy]

It's a moot point, as your proposals run clearly counter to the First Amendment.

The first amendment legislates the existence of political parties? It's a moot point under the current system, if we want to restore an actual Democracy, it would likely involve a constitutional convention, thus, no obstacle.

It guarantees the right of free association. You can't keep people from forming a political party.

For starters, yes. To look at Jeff's other proposals:

Abolish organized political parties, and the PACs that support them. Require every candidate for every elected office to campaign on their own views and not lean on any platform. Restrict campaign funding to exclude all special-interest money. I'd go as far as allowing for public money to be used for fixed-campaign financing, so voters are not unfairly deluged with partisan funding.

Abolishing PACs would also be both an unconstitutional restriction on association and speech. Not permitting candidates to campaign on a platform is a huge restriction on speech. Under current SCOTUS precedent, excluding special interest money is a restriction on speech. I don't think it would run afoul of the Constitution to allow public money for campaign financing, provided that the money is distributed without discrimination for speech viewpoints, but limiting the amount people can spend on campaigns is clearly unconstitutional at this point.

It's a moot point under the current system, if we want to restore an actual Democracy, it would likely involve a constitutional convention, thus, no obstacle.

And since a Constitutional convention isn't happening, it's moot not just under our current system, but in our current reality.

[Jeff V]

The first amendment legislates the existence of political parties?

The First Amendment protects the ability to form political parties. (Freedom of Association) Voting mandates their existence.

Various people have accused the SPs of cheating, which is almost certainly not the case. On the SP side, people have been crowing that this shows they’re really in the majority, which is also almost certainly not the case. Given the way the Hugo nomination process is structured, organized slate voting is a dominant strategy, and a minority being able to completely dominate the ballot should be an expected result.

If the other guy has a party and you don't, you're going to lose every single time. So you need to make a party too.

Again, a constitutional convention could specifically exclude the existence of political parties.

Oddly enough, my town seems to run just fine without political parties. They all run on issues, not dogma. It could work.

Perhaps political parties could be designated hate groups.