Self-government is worth defending from an illegitimate Supreme Court

[auburnatl1 5,010]

2 hours 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

Austin is becoming the next massive tech hub, plus for the 20 something’s it’s the new trendy town to move to. Inevitably it is/will become progressive (plus being a college town) - but in this case I’m not sure you can fault any liberal policy. Just real estate supply and demand - I’ve got several friends spec buying there. When prices gets too high one day (plus when people realize how friggin hot Austin gets), there will be the next hot town. That’s how it works.

Edited July 6, 2023 by auburnatl1

[PUB78 1,362]

On 7/4/2023 at 3:43 PM, homersapien said:

(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.

 

 

Just more liberal whining because they aren’t getting their way in having total control of people’s thoughts and actions.

[PUB78 1,362]

On 7/5/2023 at 1:09 PM, AUDub said:

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

Look what happened when Pakistan separated from India. A lot of blood shed.

[GoAU 1,600]

On 7/5/2023 at 10:55 AM, 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’ve thought about this from time to time.  Mostly, trying to think of ways to avert a second civil war.  I think the polarization of our society is expanding, almost exponentially, and the chances to reconcile are shrinking fast.  Each side sees the other as authoritarian and oppressive and the ability to disagree civilly is decreasing.  
 

Wouldn’t be easy, but the best answer might be to have the large left leaning urban centers (just look at any electoral college map) become more independent “city states” and let them basically stand alone.  Keep the county unified from a common defense and free passage standpoint, but let domestic policy be decided within those regions.  
 

Unfortunately, failure to do this will result in one side essentially “taking over” the other.  There won’t be common ground.   Once this happens, the discord will only get worse.  

On 7/5/2023 at 1:26 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.

Funny you mention this, because conservatives feel this way about the liberals.  To a conservative, the liberals are the ones assaulting individual rights and being oppressive.  
 

 

As for the article in general - not sure how this is anything beyond partisan bellyaching.   There hasn’t been anything I’ve seen this court do that isn’t Constitutionally correct.  Even RBG agreed that Roe was based on poor / shaky legal standing.  All the libs had to do was pass legislation.  The Supreme Court did exactly what it should have in this case which, in absence of Constitutional law, remands it to the states.  As for the debt forgiveness - that is clearly NOT a responsibility given to the Exec branch.  For affirmative action- fighting racism with more racism is just garbage and fixes nothing.  Who decides which race is the preferred race?   If you want to create racial strife - keep playing racial favorites.   
 

[AU9377 5,024]

On 7/6/2023 at 10:44 PM, PUB78 said:

Look what happened when Pakistan separated from India. A lot of blood shed.

Everyone needs to act like adults and realize that we have much more in common that we do in what separates us.

[NolaAuTiger 3,295]

On 7/4/2023 at 3:43 PM, homersapien said:

Voters (not the mob) pick their leaders, and elected leaders (not unelected judges) make policy decisions for which they are held accountable.

Yet, she criticizes Dobbs. Lol.

[autigeremt 6,666]

Separation is coming. How it plays out is hard to predict but I suspect it will be a rough situation. 

[AU9377 5,024]

1 hour ago, autigeremt said:

Separation is coming. How it plays out is hard to predict but I suspect it will be a rough situation. 

People are too spoiled to do without their internet service and cell phone, much less sacrifice in order to form a new government.  Fighting some sort of civil war would be to gain what exactly?  The only thing that would accomplish is making certain that your children have a quality of life worse than the one you have now.

[homersapien 11,428]

13 hours ago, NolaAuTiger said:

Yet, she criticizes Dobbs. Lol.

Maybe she viewed Roe as establishing a constitutional right for privacy and autonomy.   (I did.)

As Jim Crow laws taught us -  or should have taught us - some rights are better protected by the constitution instead of by popular vote.

Edited July 14, 2023 by homersapien

[NolaAuTiger 3,295]

41 minutes ago, homersapien said:

Maybe she viewed Roe as establishing a constitutional right for privacy and autonomy. 

No. She is accusing the Supreme Court of making policy decisions. That's the entire premise of her article. If abortion is a policy decision, it should be left to the states. The lady doesn't know what she is talking about. 

[homersapien 11,428]

9 minutes ago, NolaAuTiger said:

No. She is accusing the Supreme Court of making policy decisions. That's the entire premise of her article. If abortion is a policy decision, it should be left to the states. The lady doesn't know what she is talking about. 

No, while the article focused on creating policy it was much broader. For example, she also mentioned the resistance of the SCOTUS to establishing ethical standards:

"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."

She also criticizes them for disregarding stare decisis:

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.

(The above was her basis for criticizing Dobbs.)

But she was right concerning the SCOTUS delving into policy, such as the "major questions" doctrine:

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.”

And she actually does know what she's talking about.  She finished first in her class in Law School.

https://en.wikipedia.org/wiki/Jennifer_Rubin_(columnist)

[NolaAuTiger 3,295]

11 minutes ago, homersapien said:

No, while the article focused on creating policy it was much broader. For example, she also mentioned the resistance of the SCOTUS to establishing ethical standards:

"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."

She also criticizes them for disregarding stare decisis:

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.

(The above was her basis for criticizing Dobbs.)

But she was right concerning the SCOTUS delving into policy, such as the "major questions" doctrine:

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.”

And she actually does know what she's talking about.  She finished first in her class in Law School.

https://en.wikipedia.org/wiki/Jennifer_Rubin_(columnist)

"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. . . . 

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, . . .  In aggrandizing power, the court illegitimately dominates policymaking, undermining democracy to an extent we have not seen in nearly 100 years."

You're telling me she isn't lumping abortion into the premise of her argument? Puh-leaseee. This is another fly-by criticism long on adjectives and short on substance. 

That she finished first in her law school class is not a rubber stamp of credibility. 

[homersapien 11,428]

15 minutes ago, NolaAuTiger said:

"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. . . . 

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, . . .  In aggrandizing power, the court illegitimately dominates policymaking, undermining democracy to an extent we have not seen in nearly 100 years."

You're telling me she isn't lumping abortion into the premise of her argument? Puh-leaseee. This is another fly-by criticism long on adjectives and short on substance. 

That she finished first in her law school class is not a rubber stamp of credibility. 

OK, fine.

[NolaAuTiger 3,295]

7 minutes ago, homersapien said:

OK, fine.

For what it's worth, I actually think you would find some of the "major questions doctrine" cases interesting to read, especially with your science background. You would at least understand the cases better than most lawyers from a factual standpoint. 

[autigeremt 6,666]

On 7/14/2023 at 1:25 AM, AU9377 said:

People are too spoiled to do without their internet service and cell phone, much less sacrifice in order to form a new government.  Fighting some sort of civil war would be to gain what exactly?  The only thing that would accomplish is making certain that your children have a quality of life worse than the one you have now.

Not everyone is too spoiled. I'm just giving the opinion......at some point the dam is going to bust. 

[AU9377 5,024]

1 hour ago, autigeremt said:

Not everyone is too spoiled. I'm just giving the opinion......at some point the dam is going to bust. 

At no time in the history of the human race has there been a country with more resources and the capability needed to ensure the best quality of life for its citizens.  Even so, there is a segment of the population that would rather throw that out the window and fight over petty differences.  At the end of the day, everyone wants to be healthy, to love who they want and to see a future that includes opportunity for themselves and their families. 

To throw away all the good that this country has done and the progress it has made over the outrageously trivial arguments that thrive in today's world of partisan politics just seems monumentally misguided.

That isn't to say that we won't need to change.  Compromise is what any diverse country is built upon.  We just need to prioritize what is important and what is not.

[autigeremt 6,666]

17 hours ago, AU9377 said:

At no time in the history of the human race has there been a country with more resources and the capability needed to ensure the best quality of life for its citizens.  Even so, there is a segment of the population that would rather throw that out the window and fight over petty differences.  At the end of the day, everyone wants to be healthy, to love who they want and to see a future that includes opportunity for themselves and their families. 

To throw away all the good that this country has done and the progress it has made over the outrageously trivial arguments that thrive in today's world of partisan politics just seems monumentally misguided.

That isn't to say that we won't need to change.  Compromise is what any diverse country is built upon.  We just need to prioritize what is important and what is not.

The problem is a big part of each side doesn’t agree on what’s important. 

[AU9377 5,024]

1 hour ago, autigeremt said:

The problem is a big part of each side doesn’t agree on what’s important. 

The way I see it is that you protect civil liberties and then compromise where necessary.  We shouldn't cut off our noses to spite our face.

[GoAU 1,600]

3 minutes ago, AU9377 said:

The way I see it is that you protect civil liberties and then compromise where necessary.  We shouldn't cut off our noses to spite our face.

I agree, and that makes it sound simple, but what level of “compromise” and where it happens is what is up for debate, and where the differences lay.