And this has been answered several times. The answer is that the level of support in the Senate will depends entirely on what the Republicans do or try to do, violating precedent and principle and using the court as an anti-democratic partisan political weapon, and what level of consequent response is therefore justified.
I agree. The Democrats cannot be constrained from acting by not knowing with certainty what the “endgame” is, not being able to find an ideal permanent solution immediately. The most important thing is that we need to finally understand that the current manifestation of Republicanism is not simply not something we can work with or cooperate with, and we should not think in those terms. We need to bury them. We can talk about bipartisanship only if some more civilized opposition party rises from the ashes after we’ve permanently defeated this reality-denying democracy-destroying manifestation of Republicanism.
Perhaps statehood for D.C. and Puerto Rico should be just as high a priority as immediate action on the SC, since it would go a long way to balancing the undemocratic aspect of Senate representation, and could permanently prevent Republican abuse of the Senate’s control over the SC.
I concur, the Court is not broken- yet. Roberts and Gorsuch have shown they are not trumps bum-boys.
I know Roberts saved the ACA (at least for a bit), but where has Gorsuch stood up to Trump? I don’t pay a lot of attention to all the released rulings, so the only one I recall where Gorsuch surprised people was on the OK is still an Indian reservation for purposes of trials, and that one didn’t have any particular right-wing excitement around it (other than the general low-level racism of the GOP).
Yup. And that suggests to me that if (say) the ACA is disastrously struck down in November and action becomes necessary, there’s a path that’s strong enough to show the Republicans that they will not be allowed to fuck around like this, yet does not set up an equally partisan left-wing Court.
Something like expanding to 13, adding two that are simply designed to cancel out the effect of Kavanaugh+Barrett; and proposing that two more are chosen with bipartisan input solely on the basis of their legal qualifiications and their belief in the non-partisan role of the Court as a principally judicial entity. With a view that these last two appointments set an example for all future appointments.
But I think the Dems can only “set an example” like this if they take decisive action in other areas to preserve democracy, such as statehood for DC and PR, to ensure that the Republicans cannot simply revert to fuckery next time they get control of the Senate. Open the door to the principle of a less partisan SC for the future, but carry a big stick.
“… such as statehood for DC and PR…” I want to see a un-ambiguous vote that shows that the people of PR want Statehood by a solid majority first. I think they do, but so far the 2012 vote just shows a solid plurality, iirc.
Good points otherwise, tho and yes on DC fersure.
My point was that the law (just like software) is pretty complicated, and does rely on interpretation.
And, due to that complication, a justice can start with whatever conclusion that they want, and work backward to justify it.
If things were simple, if it was the equivalent to software that simply displayed, “Hello World!” , then there would be no room for interpretation, and all justices would agree.
Many of the cases that come before SCOTUS are actually pretty straightforward and result in unanimity easily. They only end up there because of a untested margin of the law, or a new law that is clearly unconstitutional. It is not the superior knowledge and wisdom of SCOTUS that is being sought, but rather, precedent to make it clear how to move forward.
Brown v Board of Education was a bit different, and while unanimous, didn’t really have unanimity, but the court still felt that it was important enough to put forth a unified front that even those who disagreed with the ruling still went along with it. I don’t think that is typically how unanimity is achieved, but only in such important and landmark cases, where a dissenting opinion could be used to undermine the legitimacy of the ruling.
The more outrageous SCOTUS is, the likelier the Dems are to go along with court balancing. ACB claims to be an originalist ruling only on what is explicit in the constitution. She has indicated that she has no interest in the effect of the rulings. When asked about Medicare, she refused to answer.
If she is such an originalist, how does she feel about Marbury v. Madison? Just askin.
Nah, that’s not the case. The state and federal trial Courts and Courts of Appeals, and state supreme courts are perfectly capable of handling anything that’s obvious and uncontroversial, and they do for more than 99.9999% of court cases in the US. (As well as for the no obvious, and seriously controversial.) The incredibly tiny percentage taken by the US Supreme Court are ones in which there is a circuit split, or other indication that a decision by the Supreme Court is truly necessary. Unanimity happens in around a third of cases, but that doesn’t mean those cases had obvious answers, or were “straightforward.”
What the Supreme Court provides is 1) big shifts in policy that would not be possible in lower courts; 2) relative finality.
Yeah, but so what? The sentence you quoted involved a court that issued nothing but unanimous decisions. That is impossible and should be impossible under any theory of having courts with multiple people on them. Talking about a segment of decisions is dodging the question and ignoring what my entire answer was based around.
This seems like a good place to ask for opinions on this:
To summarize - the remaining liberals should vote to bring various hot-button conservative cases to SCOTUS. They might/probably would lose (6-3 or 5-4), but it would force Americans to deal with what the GOP is actually doing to the country (and the majority of Americans don’t want the changes the conservatives are pushing). At which point, maybe there will be support for reform/expansion/whatever.
I do not deny that the law is complicated. However, when all 9 justices agree, then it ends up being fairly straightforward to them.
I looked at some of the unanimous decisions over the last few years, and most of them are upholding lower court rulings, that were appealed to the court, and most of the rest seem to be vacating a ruling and sending it back with specific instructions on how to review the case.
Though not all of the cases are easily accessible, nor are they easily grokable by a non-legal trained mind. The ones that I was able to review pretty much were, “Yeah, the lower court had it right, and we are upholding that in order to set the precedent.”(Finality), or they were “The lower court needs to go back and review these parts of their decision.”
New laws are written all the time by the US Congress, by states and by municipalities, and not all of those are constitutional. These sometimes make their way up to SCOTUS not because they are unclear, but because a precedent needs to be set to make sure that all the lower courts are on the same page as to the constitutionality of a proposed law.
Most of the big shifts in policy decisions, in recent times at least, tend to not be unanimous. Citizen’s United and Heller were both 5-4 decisions. These were rather controversial issues that rely on one’s interpretation of the law, and the ones that I say are worked backwards from the desired outcome.
Agreed, a court that returns nothing but unanimous opinions is either working on an extremely simplistic legal system, or is in some sort of collusion that would most likely come about due to corruption. But, I addressed the rest of that in the part of my post that you did not quote.
Right, but I did not dodge, or ignore what your answer was based around. That was in the part of my post that you did not quote. Our legal system is more than complex enough that some level of interpretation is required in all but the most straightforward cases.
That complexity and that need for interpretation is what allows a justice to start with their desired outcome, and then come up with a justification for it. A better jurist doesn’t make rulings that are more “correct” or in touch with the intent of the founders or the legislatures who wrote the law, they just come up with better justifications to reach the decision they want to reach.
I don’t know that we are really disagreeing here, but it does seem as though we are somehow talking past eachother a bit.
From my pov your answer was ‘I’m going to ignore your objection and reiterate the rest of my statement, the parts you didn’t object to.’ I find that’s a tactic you consistently fall back on in our back and forths. You may not be aware of this tendency and I may be reading more into it than it warrants. But since this continues to occur I don’t believe that’s true.
I obviously do agree with much of what you say and find your posts valuable. You simply appear to have this defense mechanism against any accusation that even a small fragment might be wrong. Maybe we all do. I don’t want to blow this up into a pit battle. I am hopefully politely pointing out something you may wish to watch out for in the future.
I don’t think the votes are there. Suppose ACA is struck down. Solution- pass ACA without the mandate. It’s a bit thornier if Roe is overturned. In that case, there might be enough outrage to increase the court. But I think cooler heads will prevail and enough Democrats in vulnerable seats would get cold feet.
I think if you know you don’t understand the law, it might be best to let this go instead of arguing from ignorance. If not, then pick a case you think is a good example of one that was straightforward so it can be discussed.
Some cases are very complicated and perhaps would not garner even a majority opinion, so the court avoids the controversy in some technical way, and winds up with a unanimous decision that avoids the central issue. And as I said, unconstitutional laws generally don’t require US Supreme Court decisions to be overturned, unless there is some controversy, like a circuit split.
I suppose this is a hijack, so I can just drop it in this thread.
Thank you for the feedback. I will think upon what you have said. I do not mean to come across that way, and will try to adjust my posting accordingly.
Fair enough. My experience with the law is entirely through my lawyer. I tell him what I want to do, and then he write a bunch of words that lets me do it. (Then sends me a bill.)
When I try to read it, my head swims a bit, and I may as well be reading Swahili.
The only point that I want to stand by is that if it were not open to interpretation, then they would be unanimous in their decisions.
On that we fully agree.