Given the long weekend and my travel schedule, in lieu of my normal look to the week ahead, I want to take some time to reflect on the Supreme Court and its recent rulings and to place them in context of a larger, disturbing pattern.
Yes! And it reminded me of my Law 101 class from about 40 years ago. When choosing between two close arguments about what is right, it seemed to me at the time (and still today) that a judge can choose any outcome they liked and write a legal argument to justify it.
Our "justice" system is much too dependent on the whims and weaknesses of the human behind the bench and badge. Our legal system and government should be based upon the best of what we are on our best days, and eliminate the weaknesses that humans can and do bring to the bench.
Where this thankfully has proven not to be the case is in the area of our election law, where many a Trump appointee sent 45’s lawyers packing. Let’s hope that holds.
It seems to me that the whole point of the judicial system is to involve human judgement when law on its own can't take nuances of the real world into account.
I'm afraid that I am more of a victim of the "justice" system than an expert in it. Instead of merely "involving" human judgement, it seems it is being operated by those only interested in keeping and exercising their extraordinary powers over the rest of us and is geared in protecting only the topmost in our society who can afford "justice". The weak links: police, judges, and prosecutors who have extra legal protection for egregious "errors" they may cause to people.
As with everything in life, there are two sides to everything. That's why we have the balance of powers between executive, legislature and judiciary. Our real problem is that we have allowed hollowing out two, and sometimes, all three, of these over the last decades. That doesn't mean that there is anything wrong with the institutional setup, but with the specific implementation.
As the saying goes "Nice democracy you got here, if you can keep it".
But our 2-party system seems to make a joke of the balance of powers. Perhaps we need more parties that can group together like Parliamentary systems seem to do. I don't know the answer (it might be the institutional setup, but I think we can fix it with the Constitution we have). We have a long way still to go for justice for all. Thanks for the sensible discussion, Kevin.
A parliamentary system has its own set of problems, and IMO those are a lot worse. For one, it provides a mechanism to actually enforce party-line votes. For another, you are replacing somebody who represents your area with an anonymous body from a list. And experience shows that in a parliamentary system, the smallest parties, representing a few percent of the voters, end up the most powerful. Just look at Europe. If you think the Freedom Caucus is powerful here, the AfD, Five Stars, Le Pens etc. are a lot worse.
My own proposal to solve our partisanship goes the opposite direction: abolish primaries (why does the government even get involved with running an election in a private club that has no role in the Constitution?), and let all comers run in the general election.
But there was no presence of reasoning in the twisted thought process to get to the conclusions they wanted. So call it “Tortured legal rationalizing".
It's going to take more than sunlight to right the wrongs inflicted upon US society by this court (I can't bring myself to call it "Supreme"). It will take the addition of four progressive judges. Which will require a blue tsunami in 2024. Time to start working for it is now.
Your concern is valid. The Democrats habitually miss opportunities for substantive progress when they are in the majority. The GOP are succeeding in dragging us backwards to the detriment of freedom and benefit of the oligarchs. It took them decades of planning, two minority presidents appointing right wing Christian nationalist idealogues to the Federal Judiciary, Senate dirty tricks, and a lot of election subversion in the states to achieve their goals. The struggle to recover will be difficult, but we must prevail or yield to fascist authoritarian minority rule.
The House Dems are finally striking back at the GQP baloney being thrown around with official committee hearings. The fear of fascism might finally be taking hold.
Biden is a realist, I think. And he has begun to realize that he must act decisively if he is to preserve democracy in the US. His immediate action after student loan decision to take another path toward student loan debt relief, one that appears to be more resistant to legal challenges, shows that he is thinking ahead and understands the threat posed by the current court. IMHO, in any case....
Yes, smart pivot, but confusion continues to reign and instead of resolution, have Republicans created more backlash against Biden from younger voters who Democrats desperately need to have a chance at retaking the House? The current “fix” was always available yet he chose the more risky option.
I understand the desire to expand the court, but what happens when the Republicans take over the White House again? They could then just expand the court further, whipping it back to the right. I'm not seeing how this is a long-term solution.
If the Freedom to Vote Act and the John Lewis Voting Advancement Rights Act are resurrected and passed, the Republicans as they currently exist as a party will never again control the House, the Senate or the White House. That's why they are hell-bent on destroying our democracy, and why we must do everything we can to win the Presidency, the House and the Senate (with Manchin/Sinema proof majorities) in 2024.
My expectations for passage of either of tgese voting rights bills are sadly low. You have the Freedom Caucus on one side willing to burn it all down and Democrats on the other trying to project civility and reason. Democrats need a few flamethrowers and a president who is willing to follow their lead since he is reluctant to do so. Biden is a good man but too entrenched in tradition to break things.
Apparently all that screaming about “legislating from the bench” circa 2000-2016 was projection and a preview of things to come…I can’t be the only one that remembers all that Sturm und Drang from the right wing!? Looking forward to your upcoming writings and expert take, Jay! Safe travels!
Jay, to give me some hope, would you kindly speak into: When the court shifts -- not just liberally but to one of jurisprudence -- how can all the bull**** of this court be undone.
That is a million dollar question. The Court can only begin to fix things by taking cases that call into question the law being decided by the current conservative majority. So no matter how you slice it, it can take time. Congress could help speed up some of this, but we’d need at least 50 Democratic senators willing to get rid of the filibuster or at least limit its use.
I feel that the federal supreme court's recent disregard for the rule of law has emboldened some state courts that it is ok to do the same. Case in point, North Carolina's state supreme court reopening a case that had already been ruled upon, with no real reason to do so, and then reruling the way the new make up (conservative majority) wanted regarding gerrymandering. I know I'm a broken record on this one but I'm outraged and deeply concerned. At this point there have been absolutely zero consequences or legal recriminations over this brazenly unlawful act. If this is just okey dokey now...my goodness where on earth are we? Anything could now happen! Will the supreme court overturn the 14th amendment now? Or the right for a woman to vote? Or a black man to vote? Will our state courts begin to do similar things on a statewide scale like gutting environmental laws so Duke Energy can dump even more coal ash into our waterways? Or destroy our intercoastal waterways for companies to make a quick buck? It's honestly more frightening than a zombie apocalypse novel. And since in NC the power of our vote has been crippled by gerrymandering what are we to do? Protest? They don't care! Call and voice our complaints and concerns? They. Don't. Care. They have the power now and they will refuse to give it up no matter.
Every bit as horrific here in Ohio. SC just threw back a case re: gerrymandering to the Ohio SC. It has been decided MULTIPLE TIMES!! already here, and just blatantly ignored by the encased Republicans. Now, the Ohio SC is a conservative majority, which makes the whole thing a Steven King - type joke. As (I'll age myself here!) the rock band Steppenwolf sang, "There's a monster on the loose"
I can definitely sympathize. It's insane how far out of control things have gotten. And you're faced with the same problem we in NC are. What can you do? Coting when you're so gerrymandered that your vote barely counts won't fix this problem.
Get involved!! Join a local Dem group. Start your own. Start bombarding your local Reps with calls and emails. I know it doesn't sound like much, but WE have to start somewhere! And the more help you can get, the more they'll listen; they'll have to. And if you can, RUN FOR SOMETHING!!
Personally, I am so appalled by these latest rulings. Yesterday I finally watched the movie "Till" and I kept thinking to myself, this is what this SCOTUS wants the United States to go back to. Even (or should I say, especially) Clarence Thomas, a black man! But I guess he's black in skin only, because he certainly appears to be a bigot. Can't these "Justices" see what they're unleashing?
Thomas has in the past acknowledged the fact that he himself would not be what he is today without AfAct. The intellectual dishonesty shown by these so-called "jurists" is utterly breathtaking. Their souls (assuming they ever had any) have been sold to, and are wholly owned by the very people who have been trying for the last 60 years to take us back to the age of robber barons.
They're unleashing exactly what Harland Crow and Leonard Leo and their other handlers want. These aren't good people, and they don't care about us in the least.
Suffice it to say I'm VERY pessimistic about this issue. The court is taking us backwards, and there's no obvious way to stop them.
As far as I know, there is no requirement that SCOTUS justices ever have set foot in a law school (although in practical terms, most do have a law degree). The President can nominate anybody they like. I'm not even sure if it's restricted to US citizens, for that matter.
Disbarring would only be a symbolic blow to their reputation, but not disqualify a justice from sitting on SCOTUS.
Six justices, full of $1,000 vino, sat down to an infommercial binge, bulk ordered vintage Ginsu knives and began the task of slicing and dicing our laws and their reputation.
But wait, there's more!
They even had the temerity to protest the pushback.
As to whether they've been bought for a low, low, price, well, to the billionaire set, keeping a pet justice is probably de rigueur and pennies on the dollar.
Shine the light Jay - it needs to be done in a way that makes things clear to the people who would otherwise find this all seemingly normal. People will cloud the meanings of things with bits of sophistry to make them seem less problematic than they are - shine the light.
The standing part really scares me. If it really gets abandoned, here's a scenario at the local level---
You have a lovely tree that is impinging on the view of the neighbor 4 houses away. View-blocking is not a cause of action where you live--you can't be sued to remove a tree that does it, only for a dead or dangerous tree.
So that distant neighbor sues YOU on the grounds that the tree MIGHT someday fall down and damage his own neighbor's fence (three doors down from you). Without standing rules, he could do it. The neighbor with the fence refuses to become involved.
This illustrates three of the rules for standing. 1. It can't be speculative (ANY tree might fall down someday)--the idea of what MIGHT happen should you "say" something you haven't said yet, a la the web designer-- and
2 it has to involve damage to you, not someone else (the problem with Missouri's standing) and
3. the damage has to be real (another problem with Missouri--that somehow they won't get fees for doing work that they no longer need to do)
It’s truly frightening that this tiny number of people are able to take rights away from so many. It’s important to think of the overhaul of the system, along with the specific cases. Thank you for doing this.
"Tortured legal reasoning" is an apt phrase for what the happened this past week. Thank you.
Yes! And it reminded me of my Law 101 class from about 40 years ago. When choosing between two close arguments about what is right, it seemed to me at the time (and still today) that a judge can choose any outcome they liked and write a legal argument to justify it.
Our "justice" system is much too dependent on the whims and weaknesses of the human behind the bench and badge. Our legal system and government should be based upon the best of what we are on our best days, and eliminate the weaknesses that humans can and do bring to the bench.
Where this thankfully has proven not to be the case is in the area of our election law, where many a Trump appointee sent 45’s lawyers packing. Let’s hope that holds.
I agree. If only...
How could be done better?
It seems to me that the whole point of the judicial system is to involve human judgement when law on its own can't take nuances of the real world into account.
I'm afraid that I am more of a victim of the "justice" system than an expert in it. Instead of merely "involving" human judgement, it seems it is being operated by those only interested in keeping and exercising their extraordinary powers over the rest of us and is geared in protecting only the topmost in our society who can afford "justice". The weak links: police, judges, and prosecutors who have extra legal protection for egregious "errors" they may cause to people.
As with everything in life, there are two sides to everything. That's why we have the balance of powers between executive, legislature and judiciary. Our real problem is that we have allowed hollowing out two, and sometimes, all three, of these over the last decades. That doesn't mean that there is anything wrong with the institutional setup, but with the specific implementation.
As the saying goes "Nice democracy you got here, if you can keep it".
But our 2-party system seems to make a joke of the balance of powers. Perhaps we need more parties that can group together like Parliamentary systems seem to do. I don't know the answer (it might be the institutional setup, but I think we can fix it with the Constitution we have). We have a long way still to go for justice for all. Thanks for the sensible discussion, Kevin.
A parliamentary system has its own set of problems, and IMO those are a lot worse. For one, it provides a mechanism to actually enforce party-line votes. For another, you are replacing somebody who represents your area with an anonymous body from a list. And experience shows that in a parliamentary system, the smallest parties, representing a few percent of the voters, end up the most powerful. Just look at Europe. If you think the Freedom Caucus is powerful here, the AfD, Five Stars, Le Pens etc. are a lot worse.
My own proposal to solve our partisanship goes the opposite direction: abolish primaries (why does the government even get involved with running an election in a private club that has no role in the Constitution?), and let all comers run in the general election.
“Tortured legal reasoning"
But there was no presence of reasoning in the twisted thought process to get to the conclusions they wanted. So call it “Tortured legal rationalizing".
Torturing us with their mangled legal reasoning!
It's going to take more than sunlight to right the wrongs inflicted upon US society by this court (I can't bring myself to call it "Supreme"). It will take the addition of four progressive judges. Which will require a blue tsunami in 2024. Time to start working for it is now.
Your concern is valid. The Democrats habitually miss opportunities for substantive progress when they are in the majority. The GOP are succeeding in dragging us backwards to the detriment of freedom and benefit of the oligarchs. It took them decades of planning, two minority presidents appointing right wing Christian nationalist idealogues to the Federal Judiciary, Senate dirty tricks, and a lot of election subversion in the states to achieve their goals. The struggle to recover will be difficult, but we must prevail or yield to fascist authoritarian minority rule.
The House Dems are finally striking back at the GQP baloney being thrown around with official committee hearings. The fear of fascism might finally be taking hold.
Biden is a realist, I think. And he has begun to realize that he must act decisively if he is to preserve democracy in the US. His immediate action after student loan decision to take another path toward student loan debt relief, one that appears to be more resistant to legal challenges, shows that he is thinking ahead and understands the threat posed by the current court. IMHO, in any case....
Yes, smart pivot, but confusion continues to reign and instead of resolution, have Republicans created more backlash against Biden from younger voters who Democrats desperately need to have a chance at retaking the House? The current “fix” was always available yet he chose the more risky option.
I understand the desire to expand the court, but what happens when the Republicans take over the White House again? They could then just expand the court further, whipping it back to the right. I'm not seeing how this is a long-term solution.
If the Freedom to Vote Act and the John Lewis Voting Advancement Rights Act are resurrected and passed, the Republicans as they currently exist as a party will never again control the House, the Senate or the White House. That's why they are hell-bent on destroying our democracy, and why we must do everything we can to win the Presidency, the House and the Senate (with Manchin/Sinema proof majorities) in 2024.
My expectations for passage of either of tgese voting rights bills are sadly low. You have the Freedom Caucus on one side willing to burn it all down and Democrats on the other trying to project civility and reason. Democrats need a few flamethrowers and a president who is willing to follow their lead since he is reluctant to do so. Biden is a good man but too entrenched in tradition to break things.
Agreed!
Apparently all that screaming about “legislating from the bench” circa 2000-2016 was projection and a preview of things to come…I can’t be the only one that remembers all that Sturm und Drang from the right wing!? Looking forward to your upcoming writings and expert take, Jay! Safe travels!
There are few people more widely reviled that the six corrupt and political members of the SC!
Jay, to give me some hope, would you kindly speak into: When the court shifts -- not just liberally but to one of jurisprudence -- how can all the bull**** of this court be undone.
That is a million dollar question. The Court can only begin to fix things by taking cases that call into question the law being decided by the current conservative majority. So no matter how you slice it, it can take time. Congress could help speed up some of this, but we’d need at least 50 Democratic senators willing to get rid of the filibuster or at least limit its use.
And, the current court took an entirely made up case. Typical fascist move. I want to honor the law, courts, etc, but they are making up shit.
I feel that the federal supreme court's recent disregard for the rule of law has emboldened some state courts that it is ok to do the same. Case in point, North Carolina's state supreme court reopening a case that had already been ruled upon, with no real reason to do so, and then reruling the way the new make up (conservative majority) wanted regarding gerrymandering. I know I'm a broken record on this one but I'm outraged and deeply concerned. At this point there have been absolutely zero consequences or legal recriminations over this brazenly unlawful act. If this is just okey dokey now...my goodness where on earth are we? Anything could now happen! Will the supreme court overturn the 14th amendment now? Or the right for a woman to vote? Or a black man to vote? Will our state courts begin to do similar things on a statewide scale like gutting environmental laws so Duke Energy can dump even more coal ash into our waterways? Or destroy our intercoastal waterways for companies to make a quick buck? It's honestly more frightening than a zombie apocalypse novel. And since in NC the power of our vote has been crippled by gerrymandering what are we to do? Protest? They don't care! Call and voice our complaints and concerns? They. Don't. Care. They have the power now and they will refuse to give it up no matter.
The SCOTUS has indeed set a poor example for state supreme courts.
Every bit as horrific here in Ohio. SC just threw back a case re: gerrymandering to the Ohio SC. It has been decided MULTIPLE TIMES!! already here, and just blatantly ignored by the encased Republicans. Now, the Ohio SC is a conservative majority, which makes the whole thing a Steven King - type joke. As (I'll age myself here!) the rock band Steppenwolf sang, "There's a monster on the loose"
I can definitely sympathize. It's insane how far out of control things have gotten. And you're faced with the same problem we in NC are. What can you do? Coting when you're so gerrymandered that your vote barely counts won't fix this problem.
Get involved!! Join a local Dem group. Start your own. Start bombarding your local Reps with calls and emails. I know it doesn't sound like much, but WE have to start somewhere! And the more help you can get, the more they'll listen; they'll have to. And if you can, RUN FOR SOMETHING!!
Personally, I am so appalled by these latest rulings. Yesterday I finally watched the movie "Till" and I kept thinking to myself, this is what this SCOTUS wants the United States to go back to. Even (or should I say, especially) Clarence Thomas, a black man! But I guess he's black in skin only, because he certainly appears to be a bigot. Can't these "Justices" see what they're unleashing?
As the old saying goes: skinfolk ain’t always kinfolk…truer words were never spoken about CT.
Thomas has in the past acknowledged the fact that he himself would not be what he is today without AfAct. The intellectual dishonesty shown by these so-called "jurists" is utterly breathtaking. Their souls (assuming they ever had any) have been sold to, and are wholly owned by the very people who have been trying for the last 60 years to take us back to the age of robber barons.
They're unleashing exactly what Harland Crow and Leonard Leo and their other handlers want. These aren't good people, and they don't care about us in the least.
Suffice it to say I'm VERY pessimistic about this issue. The court is taking us backwards, and there's no obvious way to stop them.
Jay…. SCOTUS justices are lawyers first and justices second. They are violating the rules of ethics. Can they be disbarred or sanctioned? Or??
As far as I know, there is no requirement that SCOTUS justices ever have set foot in a law school (although in practical terms, most do have a law degree). The President can nominate anybody they like. I'm not even sure if it's restricted to US citizens, for that matter.
Disbarring would only be a symbolic blow to their reputation, but not disqualify a justice from sitting on SCOTUS.
Six justices, full of $1,000 vino, sat down to an infommercial binge, bulk ordered vintage Ginsu knives and began the task of slicing and dicing our laws and their reputation.
But wait, there's more!
They even had the temerity to protest the pushback.
As to whether they've been bought for a low, low, price, well, to the billionaire set, keeping a pet justice is probably de rigueur and pennies on the dollar.
Safe travels!!!
Shine the light Jay - it needs to be done in a way that makes things clear to the people who would otherwise find this all seemingly normal. People will cloud the meanings of things with bits of sophistry to make them seem less problematic than they are - shine the light.
I'll start my deep breathing now to calm myself while the rays of sunshine get ready to expose these atrocious SCOTUS decisions.
Thank you for what you do Jay. I greatly appreciate your insight and willingness to share your expertise.
I wish you both safe travels and I look forward to your analyses!
I confess I use a lot of your insight in discussions with friends and foes, so keep it coming.
The standing part really scares me. If it really gets abandoned, here's a scenario at the local level---
You have a lovely tree that is impinging on the view of the neighbor 4 houses away. View-blocking is not a cause of action where you live--you can't be sued to remove a tree that does it, only for a dead or dangerous tree.
So that distant neighbor sues YOU on the grounds that the tree MIGHT someday fall down and damage his own neighbor's fence (three doors down from you). Without standing rules, he could do it. The neighbor with the fence refuses to become involved.
This illustrates three of the rules for standing. 1. It can't be speculative (ANY tree might fall down someday)--the idea of what MIGHT happen should you "say" something you haven't said yet, a la the web designer-- and
2 it has to involve damage to you, not someone else (the problem with Missouri's standing) and
3. the damage has to be real (another problem with Missouri--that somehow they won't get fees for doing work that they no longer need to do)
Thanks to you and Heather we all feel more educated!
If you mean Heather Cox Richardson, yes! And add Joyce Vance and Robert Hubbell to this illustrious list.
“sunlight is a powerful disinfectant”
INDEED! Keep the light on them, shine bright.
It’s truly frightening that this tiny number of people are able to take rights away from so many. It’s important to think of the overhaul of the system, along with the specific cases. Thank you for doing this.