I actually recall there was some unease with what McConnell was doing on the Republican side, but Republicans have always been far more fascinated by what they can get away with than doing what is necessary to preserve our democratic norms.
We can never count on them to do the right thing. I’m surprised you think we can. But the reason they keep getting away with it is because the American people don’t understand what is being done to them until it is too late. I was frankly shocked at how little fuss there was over what McConnell did.
You’re missing the point, though, which is the “not good enough” solution you’re dismissing has exactly the same threshold as your proposal to fix things.
And, indeed, nothing you’ve proposed here would have fixed, prevented, delayed, or in any way modified a single one of the decisions that’s come out of the current court. Two-thirds of Congress would not have voted to block the decision that overturned Roe. Two-thirds of Congress would not have voted to block the decision that threw out Chevron. Two-thirds of Congress would not have voted to reverse the presidential immunity decision.
So, what’s the point of making these changes?
I’m trying to figure out a way to parse this so it makes any sense at all. What do you mean the review board “would not be issuing decisions itself”? The Supreme Court says, “The Constitution requires everyone to wear green on Wednesdays.” The Supreme Court Review Board either says, “Nope, can’t do that,” which is a decision, or it lets the ruling go into effect, which is also a decision. What exactly is this review board meant to do?
Okay, except that right now, the only body your recognize as “democratic” is under Republican control, and Republicans are generally in favor of what the court’s been doing lately. I’m not seeing how giving a veto power over the court, to the people who put this court in power, is going to limit the power of the court.
That is a fair point! And my proposed solution was just one idea. Perhaps there is a better one. My point still stands that we have no way out, currently, when the court goes nuts, and that’s not acceptable.
The review board (perhaps the House) would not be working as a court. It would not, therefore, hear cases and make decisions. But it would be empowered to review the work of the SC.
But the House is barely under Republican control and is at least answerable to the people in proportion to their numbers, so there would be hope for change in the future. Under our current system, there is no hope whatsoever.
I genuinely don’t know what you mean by this. I’m not sure what you mean by “working as a court,” or how this review board would function if it doesn’t hear facts or make decisions.
Doesn’t that mean that any decision of the supreme court has a shelf life of about two years, until the next election changes control of the house? Does same sex marriage just constantly phase in and out of legality depending on the outcome of the most recent election?
Anyway, you’re going to need to go through the current system to enact your new system, so your solutions are just as impossible as the solutions that already exist. Unless you’re advocating a revolution, in which case we don’t need to argue about the minutiae of how the supreme court functions, since we can just shoot people who don’t support our politics.
If it were the House of Representatives, it would let all of the boring cases of the SC fly by and only review those that seemed to be a problem. The HoR would not itself become a court, working as a court on a daily basis.
If it’s reviewing legal decisions, then it is a court. You can stipulate that it’s a court that doesn’t take depositions, review evidence, consult experts, or listen to testimony, but that doesn’t make it “not a court,” it just makes it an exceptionally shitty court.
You’re the one arguing that change through the current system is impossible, not me. Everything you’ve suggested here would require a constitutional amendment to actually put into practice, but you’ve dismissed amending the constitution as insufficient to deal with the current political problem.
You guys are making wonderful points, and since we answered (with cites!) the OP’s question, in that NO, it’s NOT hyperbole, perhaps we should spin off a new thread about how and why we might want to update the SCOTUS to the rest of the board?
Because the current title may be scaring away some people.
In furtherance of establishing ‘not hyperbole,’ we shouldn’t overlook the SCOTUS Snyder decision made in the last session.
You know, the one that says that kickbacks made to state and local officials are fine, so long as they are made after the fact of a favor being done and they are characterized as “gratuities.”
While I’m not advocating one, in practice something’s going to give. To paraphrase an old line “How many divisions does the Court have?”. In the end the SC is dependent on being respected by larger society in order to impose its will; the more it’s seen as a corrupt and partisan institution, the more it will be ignored. The Dredd Scott decision was supposed to grant a permanent victory for the pro-slavery side; it didn’t exactly work out that way. Even before the Civil War Lincoln campaigned on limiting slavery in ways that contradicted Dredd Scott and they couldn’t stop him.
In the same way the more the Court acts as a tool for the Republican extremists, the more people who disagree in and out of government will sidestep, undercut or outright ignore its decisions. Whether it’s underground networks for abortions or states passing laws that go against the SC’s rulings then essentially saying “come at me”. Or just a President riding into power on a wave of opposition to an out-of-control SC and forcibly reforming them to the acclaim of the public.
Whether it culminates in peaceful reform or violence is up in the air, but the bottom line is that they are ignoring just how limited their “hard power” actually is and are throwing away their soft power. If they push people hard enough that larger society pushes back, they don’t have an army.
Of course that depends on how many people think that they are throwing away their soft power. The recent Supreme Court decisions have been immensely popular not just with the MAGAns but conservatives in general. Those who think that the present court is doing just fine as “constitutionalists” who are restoring a government of limited powers, and would be thrilled if rulings going back to 1960 were overturned- if not 1930.
Those people are a minority, however. I go back to the example of the Dredd Scott example; sure, it made the South happy. It still didn’t get them what they wanted. The SC is only powerful so long as most people willingly go along with its decisions; it lacks to tools to deal with widespread resistance.
In order to get what they want the Right need to install a dictatorship, in order to crush the majority of the population into submission. Which they are quite willing to do of course, but if they actually got it the Court would also become irrelevant, if for different reasons. For their goals they need armies and secret police, not courts.
Unfortunately certain factions in the US have been busy, like the fireman of The Best Friend of Charleston, tying down that safety valve. Part of me dreads that the analogous ‘he’ will meet the same fate as the original, part of me anticipates it.
As a side note, I wanted to do my usual venting when I have reached my limits on disgust and send an email to the justices involved. The beginning would have been something about how the “Honorable” in the salutation made me throw up in my mouth a little and gone on from there.
I have been unable to find their email addresses. Snail-mail, yes, but the closest I could get was the court’s PIO office.
You are completely ignoring where Trump explicitly said he would appoint Pro-Life justices to overthrow Roe. You are completely ignoring when Trump said that if abortion were illegal, then women seeking an abortion would need to be punished by the law. You are completely ignoring the part where Trump is campaigning taking credit for overthrowing Roe. Where he is declaring that “everybody wanted it given back to the states”.
You are factually wrong.
Just to be clear, you give Neil Gorsuch, Brett Cavanaugh, and Amy Coney-Barrett credit for more professionalism than personally pledging to Trump they would overturn Roe before he selected them for appointment. Ok. But he didn’t need to get their pledge directly in a private meeting. He was given a list of pro-life judges from the Federalist Society. He just had to pick from the list to know he was getting judges who had pledged to overturn Roe.
I agree with you that attitude is corrosive. But I don’t think it’s an unjustified attitude. I mean, was McConnell not putting Merrick Garland up for review something that only looked on purpose with an ulterior motive? Do you buy his claim that because it was an election year, the President shouldn’t get to nominate his choice? Because that’s ridiculous on its face, and only has the tiniest of a veneer of justification. And was of course rebutted by McConnell in Trump’s Presidency.
In a lot of cases, it’s not just “if the result is exactly the same as if…” but also “and the people making the decisions have shown they have ulterior motives and will act on them”.
It’s one thing if one result or two results fit that description. But when all outcomes are the same as if intentionally rigged, that defies the odds of coincidence.
Of course, the remedy is the ballot box, but too many voters are making excuses, numb to the ongoing corrosion, or stuck in the “but I have to vote for my party because the other side will enact policies I hate”, rather than taking a hit for democracy and choosing to vote for integrity over party.
Like Nikki Haley. She had could have chosen to stand on principles and continued to say that Trump was unqualified and did not merit the office, even if the alternative was Biden and the Dems winning. She could have just remained silent or told her supporters to vote their conscience. Instead, she gave him her endorsement. That’s naked politics over principle, party over integrity. That’s just one clear example.
I grant you that it’s not a clear liberty the US has championed since its founding - bodily integrity. And I grant that there’s room to see a good faith judgment reading of the law counter to Roe.
But I have become convinced that abortion IS a right that should be protected, and with it, other issues determined on the same principle - bodily autonomy.
Note that with drug use, for instance, there’s room to make crimes regarding drug use even if technically it is legal to possess and use any recreational drugs. Impacts of one’s actions while on drugs can be punished as reckless endangerment type enhancements to harm to others. Endangering children can be illegal even if being on drugs itself is not illegal.
Suicide is also something where I might come down on the side of bodily autonomy, and even some limited assisted suicide, but we would need some clear rules on what makes assisted suicide versus leaning into murder.
But the flipside is also true - some people seem to think it self-evident that of course abortion is murder and should be illegal at all times for all reasons, and that no reasonable judgment could see it another way. I had to de-friend a guy from facebook because any time the subject came up, his automatic reply was “so kill the baby?”
You seem to see the system as if moderates still have a say. The only way we get that is to take it back collectively as a nation, and that’s nearly impossible when a third of the population is happy that’s not the case.
I don’t know if those justices are personally against abortion; I do believe that their judicial philosophies were known to be “Roe was bad law”. Which would be enough for the pro-Life advocates. Again, if nothing counts but outcome then everything is political and there’s no such thing as neutral process, which more or less means the death of moderation.
Oh no question it was playing dirty pool for political advantage. But afaik it was a case of gaming the rules, not breaking them. That doesn’t come up to the standard of being part of a master plan to gradually institute fascism.
If we replace moderates with a war of extremists, we all lose regardless of outcome.
Your post was great overall, but I wanted to comment on this in particular.
One reason Dobbs was so bad was that, even if one were to believe that abortion is a very bad thing, since the time of Roe, 50 years’ worth of societal infrastructure and expectations had been built on it. Erasing that in one fell swoop was irresponsible, especially since the Republicans clearly didn’t give a rat’s ass about adjusting abortion law to avoid harm once they had the power to do so. Predictably, the current chaos ensued.
So much for stare decisis. So much for genuine “conservatism.” The motto of the SC’s RWNJs seems to be, “Let 'er RIP!”