Self-government is worth defending from an illegitimate Supreme Court

[homersapien 11,428]

(Emphasis mine)

 

By Jennifer Rubin

July 3, 2023

 

On this Independence Day, we should reaffirm the twin pillars of democracy: Voters (not the mob) pick their leaders, and elected leaders (not unelected judges) make policy decisions for which they are held accountable. Just as we need to preserve the sanctity of elections (by prosecuting coup instigators), democracy defenders need to address judicial radicals’ gross distortion of our system, resulting in the current Supreme Court’s subversion of democracy.

Unhinged from judicial standards, the court now roves through the policy landscape, overturning decades of law and reordering Americans’ lives and institutions. It upends women’s health, revamps college admissions, snatches student aid from millions and redefines public accommodations (allowing egregious discrimination). In aggrandizing power, the court illegitimately dominates policymaking, undermining democracy to an extent we have not seen in nearly 100 years. (Ronald Brownstein pointed out that similar constitutional collisions in the 1850s and 1930s took a civil war or threat of court-packing to resolve.)

Something must change if we want to preserve rule by the people’s elected leaders responsible to voters.

As a preliminary matter, it is essential to identify the problem. As morally and politically offensive as Supreme Court decisions on affirmative action, LGBTQ+ discrimination and student debt forgiveness might be to millions of Americans, merely criticizing the court’s result is misguided and unproductive. The task is to expose the court’s disintegration as a legitimate judicial body and note its emergence as a supreme right-wing policymaker. When the court operates on an ends-justify-the-means basis, shreds legal doctrine and dishonestly presents the facts, critics should not play whack-a-mole, decrying each individual rejection of widespread American values. In doing so, the court negates self-government.

One telltale sign that the justices have become partisan politicians: their refusal to adopt mandatory ethics rules, which destroys the essence of judicial impartiality that is the root of their legitimacy. When judges cease to eliminate conflicts of interest or the appearance thereof, they appear indistinguishable from politicians wined and dined in rarefied settings by lobbyists. The stench of financial corruption, coupled with justices’ intemperate rants in partisan settings and in op-eds, convinces Americans that the justices are partisan players out to score points for their own side.

Moreover, the court strays out of its constitutional lane when it refuses to follow consistent rules of construction and honestly address cases’ facts. When, for example, the majority casts aside stare decisis (as in the affirmative action case) without admitting it or refuses to apply the test for departing from precedent (as in Dobbs v. Jackson Women’s Health Organization), it is simply muscling its way to desired outcomes because it has the votes.

Worse, cases are now manufactured to create policy. The majority has made complete hash out of standing and concepts such as “case and controversy” to reach decisions it had no business deciding.

In the student loan debt relief case, the court created standing out of whole cloth. As Justice Elena Kagan wrote in her dissent, “The requirement that the proper party — the party actually affected — challenge an action ensures that courts do not overstep their proper bounds. … Without that requirement, courts become ‘forums for the ventilation of public grievances’ — for settlement of ideological and political disputes.” Here the court deliberately ignored that the aggrieved party was not a litigant. Likewise, in the case of a web designer worried about selling her services to a gay couple (who appear to be fabricated), the court defied every principle of standing. When the court goes beyond actual cases and controversies to answer hypotheticals, it goes beyond its constitutional mandate.

And, worst of all, the newfangled “major questions doctrine” allows the court to subjectively decide when the issue is of “major political salience” (whatever the court says it is); if so, the court demands the application at issue be specifically authorized by statute (a standard lawmakers somehow never meet in this court’s eyes). It has become a crutch whenever the court seeks to invalidate a program it doesn’t like. In the student debt relief case, the court reached the desired result by ignoring the word “waive” in the statute authorizing loan forgiveness to reach the finding that Congress hadn’t delegated power to, well, waive student debt. “The Court once again substitutes itself for Congress and the Executive Branch — and the hundreds of millions of people they represent — in making this Nation’s most important, as well as most contested, policy decisions,” Kagan wrote.

The mumbo-jumbo “major questions doctrine” is not the stuff of judging. No wonder the chief justice got touchy when Kagan pointed out that the court “is supposed to stick to its business — to decide only cases and controversies and to stay away from making this Nation’s policy about subjects like student-loan relief.” What the Slaughter-House Cases and substantive due process were to the New Deal-era right-wing court, the “major questions doctrine" is to the current court: a smokescreen for enforcing a right-wing agenda (or vetoing a progressive one).

In departing from the authentic judicial review, the right-wing majority unsurprisingly produces results perfectly aligned with the right’s agenda on hot-button topics. (By the law of averages, its “analysis” should occasionally favor the other side.) When foretelling a case’s outcome or following the majority’s “reasoning” requires a crib sheet on GOP political aims, something is wrong.

And voters have figured out what’s going on. According to an ABC News-Ipsos poll, 53 percent “believe that the nation’s highest court rules mainly on the basis of their partisan political view rather than on the basis of the law (33%), while 14% say they don’t know.” Before the Dobbs opinion, a separate January 2022 poll showed that “38% of Americans believed that the justices rule mainly on the basis of law, versus 43% who believed that the court rules on the basis of their political views.”

The transformation of the court into a partisan player contradicts the central premise of democracy. We should reject the obtuse and naive argument that this court isn’t so bad because it didn’t entirely obliterate Section 2 of the Voting Rights Act and declined to impose the outrageous independent state legislature doctrine. Now is no time for self-delusion. Ending the right-wing majority’s intolerable war on self-government will require that the other two branches and the voters cut the court down to size. A single election or a single reform might not suffice. Cogent law review articles, informed public debate and exquisite dissents revealing that the right-wing judicial emperors have no clothes can assist reformers. Term limits, jurisdiction stripping, court expansion and ethics reform should be on the table. Simply put, if we want democracy to survive, each election must be a referendum on the court’s legitimacy.

On this Independence Day, which celebrates rebellion against a monarch lacking consent of the governed, it behooves us to dedicate ourselves to robust and authentic democracy: government of the people, by the people, for the people — not by arrogant right-wing justices.

---------------------------------------

Comment from jmartindale:

 

We haven't had a Democrat in the position of Chief justice since 1969. That is 54 years. We haven't had a liberal court since '86. That is 37 years. And yet the liberals have won the popular vote in the last 7 of 8 elections. The system is rigged to permit the conservative judges to wait to pack the court with timely retirements. Don't get me started on court ordained gerrymandering and a senate where one state's senator Wyoming represents a hundredth the number of citizens that are living in California.

 

I am unable to celebrate the 4th. Ms. Rubin is right. Change should be made. But the changes haven't happened for a reason. The system is corrupt.

 

 

Edited July 6, 2023 by homersapien

[KansasTiger 3,254]

It is possible for previous precedent to have been decided erroneously. Because the court came to the wrong conclusion before doesn't mean the court is required to uphold it. Liberals can't continue to harp on rule of law and complain about trump and insurrection and then encourage people to revolt against a legitimate Supreme Court and election system because you don't like it.

These are simply the next steps to eroding what little is even left of our republic. Court expansion and term limits will turn the Supreme Court into an extension of a policy enforcement arm of the executive branch or ruling party permanently.

[auburnatl1 5,010]

21 minutes ago, KansasTiger said:

It is possible for previous precedent to have been decided erroneously. Because the court came to the wrong conclusion before doesn't mean the court is required to uphold it. Liberals can't continue to harp on rule of law and complain about trump and insurrection and then encourage people to revolt against a legitimate Supreme Court and election system because you don't like it.

These are simply the next steps to eroding what little is even left of our republic. Court expansion and term limits will turn the Supreme Court into an extension of a policy enforcement arm of the executive branch or ruling party permanently.

Fair points. I think what has differentiated this court are  the significant reversals in such a short period.  The optics aren’t great.

[KansasTiger 3,254]

55 minutes ago, auburnatl1 said:

Fair points. I think what has differentiated this court are  the significant reversals in such a short period.  The optics aren’t great.

I'm not a fan of how they do their sessions and release these decisions all at once

[PUB78 1,362]

Another good decision by this conservative court.

https://wng.org/opinions/a-clear-ruling-on-religious-accommodation-1688056368?mkt_tok=NzEwLVFSUi0yMDkAAAGMq54TouTq7iQn53lIu1WT9vuSRGRVVYRlTjabgHmKiTTituvgEeuvcO2uxWDNtS2sOn-oTr4rjE427TOc4d_POMmUhIB8V27kwAnR7dHGUjyU

[KansasTiger 3,254]

I have a legitimate question that isn't meant to be argumentative. It seems to me both sides of this constant political fight would be happier apart from each other. Why is secession not an option? Not civil war. Organized secession. 

[arein0 977]

1 minute ago, KansasTiger said:

I have a legitimate question that isn't meant to be argumentative. It seems to me both sides of this constant political fight would be happier apart from each other. Why is secession not an option? Not civil war. Organized secession. 

If you look at the political map, it is mostly urban cities as liberal and rural areas as conservative. Would you split major cities from predominantly red states? Or are those cities SOL? 

[KansasTiger 3,254]

9 minutes ago, arein0 said:

If you look at the political map, it is mostly urban cities as liberal and rural areas as conservative. Would you split major cities from predominantly red states? Or are those cities SOL? 

I'd let each state decide and then the people in the state that don't agree would have to act accordingly.

[TexasTiger 13,000]

1 hour ago, KansasTiger said:

I'd let each state decide and then the people in the state that don't agree would have to act accordingly.

Could blue cities secede from red states? Local government is best, right?

[KansasTiger 3,254]

Just now, TexasTiger said:

Could blue cities secede from red states? Local government is best, right?

I'm still toying around with the idea. I think you draw the line at the state level for this hypothetical, personally. Gets to be rather hard to sustain a bunch of city states on their own. I'm no expert, and not for violence, obviously. But often times feels like we already live in two separate countries.

[AUDub 11,176]

1 hour ago, KansasTiger said:

I have a legitimate question that isn't meant to be argumentative. It seems to me both sides of this constant political fight would be happier apart from each other. Why is secession not an option? Not civil war. Organized secession. 

There’s no realistic way to do it. Like, at all. 

[TexasTiger 13,000]

9 minutes ago, KansasTiger said:

I'm still toying around with the idea. I think you draw the line at the state level for this hypothetical, personally. Gets to be rather hard to sustain a bunch of city states on their own. I'm no expert, and not for violence, obviously. But often times feels like we already live in two separate countries.

But they are mostly urban & rural and not driven by state loyalties. What would be interesting for me is the internecine struggles that would happen in red states if they seceded. My concern is that red states would still see blue states as enemies and ally with authoritarian regimes against them. I think war would become more likely. Many right wingers see Democrats as worse than Putin, especially before Ukraine.

[KansasTiger 3,254]

4 minutes ago, TexasTiger said:

But they are mostly urban & rural and not driven by state loyalties. What would be interesting for me is the internecine struggles that would happen in red states if they seceded. My concern is that red states would still see blue states as enemies and ally with authoritarian regimes against them. I think war would become more likely. Many right wingers see Democrats as worse than Putin, especially before Ukraine.

But would blue states demand secession is illegal and take military action to stem it?

[TexasTiger 13,000]

7 minutes ago, KansasTiger said:

But would blue states demand secession is illegal and take military action to stem it?

I doubt it. Made that mistake the first time. The red states then played the long game to take the USA down. Texas will go it alone, though.😉

But many states are essentially purple.

[KansasTiger 3,254]

2 minutes ago, TexasTiger said:

I doubt it. Made that mistake the first time. The red states then played the long game to take the USA down. Texas will go it alone, though. 😉

I'd expect nothing less...

[icanthearyou 4,463]

The court cannot be legitimate as long as a cabal, the Federalist Society, is choosing those on the court.   The court cannot be legitimate when it is intentionally being manipulated in order to serve capital.

It is amazing to me that so many Americans are willing to hand over the government to the wealthiest Americans.

[icanthearyou 4,463]

5 hours ago, KansasTiger said:

I'm still toying around with the idea. I think you draw the line at the state level for this hypothetical, personally. Gets to be rather hard to sustain a bunch of city states on their own. I'm no expert, and not for violence, obviously. But often times feels like we already live in two separate countries.

Not going to happen.  You have to have the combined power in order to maintain global domination.  The only way you see that kind of division would be after a major economic calamity (nothing left to lose). 

You are reacting to common politics, not real politics.  Those in control aren't as ideological as we believe.  They are only interested in real politics.

The real question is,,, is the political divide contrived for the purpose of domination?

[homersapien 11,428]

On 7/4/2023 at 8:59 PM, KansasTiger said:

These are simply the next steps to eroding what little is even left of our republic. Court expansion and term limits will turn the Supreme Court into an extension of a policy enforcement arm of the executive branch or ruling party permanently.

But that's not a potential danger that's a fait accompli. 

The point of Rubin's piece was what should we do about it?

[homersapien 11,428]

On 7/5/2023 at 12:05 PM, KansasTiger said:

I'd let each state decide and then the people in the state that don't agree would have to act accordingly.

Now that's a recipe for relatively impoverished states to become even more impoverished.  (Not that its necessarily a bad thing, considering how blue states are subsidizing red states, generally speaking.)

Cities are essential for economic growth.  They are both social and economic incubators.

Edited July 6, 2023 by homersapien

[homersapien 11,428]

Speaking of cities being associated with centers of progressivism, culture and wealth, there was an interesting segment on PBSNH last night regarding the downside of that in  Austin TX:

https://www.pbs.org/newshour/show/skyrocketing-cost-of-living-threatens-austins-status-as-live-music-capital-of-the-world

[homersapien 11,428]

On 7/5/2023 at 2:26 PM, TexasTiger said:

I doubt it. Made that mistake the first time. The red states then played the long game to take the USA down. Texas will go it alone, though.😉

But many states are essentially purple.

What we need as a country is to make every state purple.

(And reform out electoral system, starting with gerrymandered districts, the electoral college and repeal of Citizens United.)

[KansasTiger 3,254]

27 minutes ago, homersapien said:

What we need as a country is to make every state purple.

(And reform out electoral system, starting with gerrymandered districts, the electoral college and repeal of Citizens United.)

I dont see how you convince half the states to cede the power they have to reform the electoral system. Policy would be dictated by the coasts and the heartland would become powerless. I just don't see that changing. And I dont want it to change. Not unless it maintained the balance of power between rural and urban.

Edited July 6, 2023 by KansasTiger

[KansasTiger 3,254]

36 minutes ago, homersapien said:

But that's not a potential danger that's a fait accompli. 

The point of Rubin's piece was what should we do about it?

Just because that's how you see it doesn't make it true. I think we finally have a few justices who use the constitution to help interpret decisions and the left just doesn't like it. Wish Scalia was still on it, cause I dont particularly trust anyone not named Thomas or Alito. Oh well. I dont want anything done about it. It's one of the things holding back an onslaught of illegal unconstitutional leftist agenda from flooding us to death.

[auburnatl1 5,010]

In my mind, a true conservative (Reagan was, Trump isn’t by a long shot) believes in less federal controls and more state/local decision making. And many of this courts decisions reflect that. Ie. They didn’t ban abortion, they simply moved it to the state level. Jefferson’s philosophy 101.  Nonetheless, I am uncomfortable with the number of reversals they’ve done, it’s a bad look,  and there may political consequences to come for republicans.

[icanthearyou 4,463]

1 hour ago, homersapien said:

Speaking of cities being associated with centers of progressivism, culture and wealth, there was an interesting segment on PBSNH last night regarding the downside of that in  Austin TX:

https://www.pbs.org/newshour/show/skyrocketing-cost-of-living-threatens-austins-status-as-live-music-capital-of-the-world

Those cities may be "progressive" but,,, they are still subject to the greater economy, the financialized economy.  Those cities are particularly susceptible to the other type of inflation,,, asset inflation.

It is interesting studying the historical fear of inflation being mostly about the effects of wage inflation (under the industrialized, production based economy) and, inflation of commodities and/or assets (under the financialized economy).

This is a problem we need to solve sooner than later.  As, the gap between the relative values of labor and capital will only widen with technology.