They're definitely going to wait until after the election to make that decision. If Trump wins they'll say it's allowed; if Biden wins they'll say it's not allowed.
Court Packing has been on the table for a while. Also, state prosecution is possible, if the judges are breaking state laws.
Nobody is going to try and do anything, because American politicians are generally fine with reactionaries running the courts. But they could do something if they wanted to.
Supreme Court judge behavior has the danger of being influential, why should we expect small time judges to have ethics and objectivity then? This kinda stuff trickles down
I'll save you a click. It's paragraphs and paragraphs laying out the reasons someone should do something and then flight-of-fancy dreaming about impeachment, which will never happen.
So, effectively, the answer to their rhetorical question is: "nothing, but I really wanted you to click on this article."
Even then a Sinema or Manchin or some other asshole - my odds are on Fetterman right now - will sabotage it and we'll have to wait another decade before we have another supermajority who will probably do the same thing.
The question is not what Democrats can do, but who saw this coming and what Democrats could have done for the last two decades. All of us who are old enough and were paying attention know what the answer to that is, and we know that the situation now is one that veteran Democrat lawmakers happily embraced.
I have been receiving texts asking me to confirm that I am going to vote for Biden. They often include a link to some online form where you pinkie swear to vote for him (and have to give up your personal info so they can email you endlessly for fundraising, while sharing your info with every single politician who also pays them for access to their mailing list). These are usually conducted by volunteers - they sign up for various organizations that don’t really tell them the depth of the data collection scheme. (Why volunteers? Enough spam reports for a single number get it blocked by a carrier or deny access to services. And automated systems/new phone numbers cost money.)
I always respond with “You do not need my email to know that I have not decided if the Democratic Party has earned my vote for their candidate.” (Which is true. I think Biden has done no more wrong than any other president, and has done better than most others in recent memory, but the Democratic Party is… disappointing. I will vote for him, but I won’t feel good that my vote benefits the Democratic Party.)
Side note: I use a wireless keyboard that can switch devices. Most of my workday phone typing is done from a full sized keyboard. It’s glorious.
Yesterday one texted back, trying a second time. They received a response so long it takes three screens to scroll through.
subpoena them and grill them. Ask Thomas why he didn't recuse himself from cases involving his rich billionaire buddy. THEN implement impeachment proceedings.
And do investigations even if they don't agree to show up. Air the dirty laundry in a six week hearing with witnesses. Subpoena their finances, bring in their patrons. The Supreme Court may questionably be able to just say "no", but that doesn't mean that's the limit of a hearing.
Exactly. The R's have shown how this works plenty of times. And more importantly the public has a right to know. So yeah. And you can subpoena the judge, and if he does not want to show his tax returns, subpoena the IRS. The justice can either come and provide context, or we do it for you.
Biden: Don't you know who I am Jack? I'm the guy the elderly hired to do absolutely nothing disruptive. I'm literally status quo Joe! Enough of this change malarkey, we're after dollars, corporate dollars!
I mean, Joe isn't known for his ability to spike his income like Pelosi or to just hand the reigns to billionaires and lobbyists like Trump to get favors (like his recent bailout).
Rather I get the feeling Biden likes to schmooz around operates according to the temperature of the democratic party. Like the problem here is more that he doesn't seem to really be strategic about the court.
When the choice is between status quo and a fascist, status quo isn't so bad.
If there's ever a way to undo first-past-the-post, that should be the focus. FPTP requires you to vote strategically to keep the greater evil out, but that frequently means voting for the lesser evil. Get rid of this need to vote strategically and maybe you can have a meaningful choice.
Since they are lifetime appointments, does that mean they don't loose it if they get convicted of a crime? Could we see Trump and Thomas both in prison serving as president and SCOTUS judge?
All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power. You don’t need a constitutional amendment. You don’t need to pass a law. And you don’t need to appoint any judges. This is a completely reasonable position that also reflects the kind of power top courts have in other countries.
I think it's not that simple. In other countries, there is no written constitution or the constitution is merely aspirational, like our Declaration of Independence.
In the US, the Constitution is considered legally binding. The 13th Amendment doesn't discourage slavery, it prohibits it. And if you think the Constitution should be legally binding, then Marbury is inescapable.
You have it backwards. The government cannot enforce laws without assistance from the judiciary.
For example, Congress once passed a law outlawing flag burning. The SCOTUS decided that was unconstitutional. But suppose everyone had decided to ignore that decision.
So someone is arrested for flag burning... and the case is immediately dismissed by a judge.
So the government decides to tax flag-burners instead. Someone refuses to pay that tax, the government sues ... and the case is immediately dismissed by a judge.
Pretty much everything the government does to "enforce" their will can be challenged, and challenges always end up before a judge. If the judge decides a law is unconstitutional, then the government will lose every case.
So someone is arrested for flag burning… and the case is immediately dismissed by a judge.
Ok, and? What makes you think they then get released from prison? Cause they just have to?
Pretty much everything the government does to “enforce” their will can be challenged
If the executive doesn't empower the judiciary, then no, everything cannot be challenged. You can assert your right to challenge an arrest before a judge however much you want, if your jailer says "nah", you don't get out of jail. The court is the veneer of slow and steady legitimacy validating the force of the executive, but rulings are just words, the thing that actually makes you have to listen to them is force.
This is, to be sure, a constitutional crisis likely to end with chaos. The real result would likely entail some sort of attempt to stand up a new "Supremer" court or decide that certain types of cases cannot be appealed or governors relying on their state courts and refusing to bend to a Supreme Court ruling they and their constituents don't agree with.
In part, yes. But it's also a question of priority.
If Congress passed a law today that contradicted a law passed a hundred years ago, then the law passed today would replace the older law.
But what about the Constitution? Suppose Congress passed a law that said "Henceforth, Congress can make a law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"
Can a new law replace the Constitution, just as it replaces other older laws?
If the answer is "no" then Marbury is inescapable. Because if a law cannot replace the Constitution, then courts cannot enforce laws that they believe would violate the Constitution.
If a law contradicts the Constitution, should a judge follow the law or the Constitution?
If it helps, you may assume the law explicitly states that the judge should definitely follow the law, and ignore the Constitution. Let's take the previous example of a new law by Congress:
Henceforth Congress can abridge the freedom of speech, or of the press; or the right of the people peaceably to assemble, and this law must be obeyed by judges regardless of what the First Amendment says
Ok, should a judge follow that or the First Amendment?
The judge will make a judgment that reflects their ideology. Whether that overrides the judgment of the people, congress, or another leader, is a political tug of war. One that the US constitution says nothing about.
Ok, yeah, judges abuse their power like everyone else.
The question is, what is a judge supposed to do if a law contradicts the Constitution?
If your answer is that the judge is supposed to follow the Constitution, even if it requires ignoring a new law, then you have just re-invented judicial review.
It's interesting to see these kinds of ideas. Can't help but feel it's reactionary and superficially "anti-government" without looking at other deeper issues.
What is "law" without judicial enforcement? If you don't have constitutional law, then a big pile of power balancing is thrown out, so you have to make sure you want that. That the Court is by far the least democratic institution is pretty obvious (but to be fair, in a two-party system, I'm not sure how much "democracy" there really is to start off with). But it's also the least worrisome if you care about individual's rights/freedoms, which is part of the reason why it's special status makes sense: it relies entirely on cooperation from everyone else.
So, why abolish its power to enforce the constitution? Because it's unreliably politicised? Then I think that might be the underlying issue.
It's the least worrisome because it can be abolished (selectively). If cooperation is not at least partially optional, then it's not the weakest branch and they can be a council of judge-kings dictating how society runs with no recourse. The recourse is refusing cooperation.
It’s the least worrisome because it can be abolished (selectively)
I'd say it's because they don't command the police or military and are completely subject, without input, to the democratic levers of government including, not least, amending the constitution itself.
They sit completely under the constitution, and it itself is a democratic entity. If the amendment process doesn't feel democratic enough, well then we get the elephant in the room about how much democracy do you want and whether that's maybe your main problem.
If cooperation is not at least partially optional, then it’s not the weakest branch
What other branch is partially optional?
In the case of a court, they're role is passive. They only act when prompted by a party who brings a case. Legislators and the Executive do what they want when they want. So surely they're by the most optional. Honestly have no idea what you're trying to say here ... the point of governmental power and law is arguably not to be optional.
Honestly have no idea what you’re trying to say here … the point of governmental power and law is arguably not to be optional.
If the Supreme Court has the final and unreviewable power to decides what the law means, and their proclamations are simply followed without question by the Executive, then they're not optional in any way and they have ultimate power under our system of rules. Congress can make new rules that the Supreme Court can declare unconstitutional or twist to their viewpoints, the executive can take action that is then declared unconstitutional.
The only Constitutional restriction on them is impeachment and removal, but they're the people who decide how the Constitution works. And impeachment is basically an irrelevant fantasy. The actual check is what's not given to them. All they can do is publish words, which are supposed to be followed but which they don't have any actual power or money to force into being without cooperation. But if your not willing to consider that an executive might at some time be right in saying "no", then they are effectively all powerful.
That's the "optional" part. Requiring some dupe to bring a case is trivial, it doesn't make them optional, it's that their power can be vetoed by simply being ignored. And it's a power that needs to be held over them the further they stray into being an entirely political body.
The only Constitutional restriction on them is impeachment and removal,
... and constitutional amendment ... a democratic process
But if your not willing to consider that an executive might at some time be right in saying “no”, then they are effectively all powerful.
That’s the “optional” part.
Then would the country have any option to being subject to the Executive's power to override the court? You sidestepped my most important question ... what kind of governmental power is ever "optional"? And I suspect that's because you haven't thought through what happens when you override one branch's power with another's.
Moreover, in highlighting how easy it is to ignore the court, you're strangely acknowledging my "least worrisome" point but then folding that into an argument that they should therefore be ignored by the executive ... because "they can" or "they might be right". Which only highlights the danger of this line of thought ... if one reads between the lines, it'd be fair to conclude that you favour the more powerful parts of government flexing their muscles. The danger being that there's no outline here of what happens next and whether there are then more or fewer "options" for the country. If the executive can just say "nah" ... what law is there? What constrains the government from its natural vice of abusing power, compared to a court that can only say somethings are not permitted?
Otherwise, if a politicised court is a concern (which I generally agree with and probably like you feel should be taken more seriously to the point that formally I actually endorse your arguments, just not substantively) ... I think there are various other things that can be done without throwing the baby out with the bath water. Unfortunately, I'd fear that the politicisation of the court, to the point that controlling it's makeup seems like half of the point in a presidential election, and the constitution (or its "hot topics") has gone too far for any side to be willing to "let go of the rope".
In other countries, there is no written constitution or the constitution is merely aspirational, like our Declaration of Independence.
That's false for several if not most republics and constitutional monarchies (democracy but with national nepo babies on top).
The 13th Amendment doesn't discourage slavery, it prohibits it.
Except for penal slavery. It explicitly allows the prison slavery that's common practice to this day. There's almost half as many legally enslaved people in the US today as there were in 1860.
You’re missing the nuance of the cited case (Marbury v. Madison), in which the USSC effectively gave themselves the power of judicial review.
Judicial review isn’t explicitly in the constitution.
I agree that judicial review is nominally a good idea, but not under these circumstances, and not when the top of the judicial system is shamelessly and obviously biased to this degree.
…but by what authority did the SC declare in Marbury that the constitution takes precedence over acts of Congress?
I’m not just trying to be contrarian. I’m pointing out that the decision the court reached in Marbury provides the authority with which the court made their decision in Marbury. It’s a circular argument: “we have the authority to rule on this decision because we are ruling that the constitution gives us that authority”.
When two laws are in the books that happen to contradict each other - which they often do - judges need a method to determine which law to apply and which to ignore. They can't apply contradictory laws simultaneously. It's not some special authority. It's simple logic.
Nothing in the Constitution says "When a new law directly contradicts an older one, apply the newer one and ignore the older one." Judges could ignore the newer law, but they have wisely decided that in those circumstances they will ignore the older law.
Nothing in the Constitution says "When a law directly contradicts the Constitution, apply the Constitution and ignore the law." Nor does the Constitution say "When a law directly contradicts the Constitution, apply the law and ignore the Constitution." But judges must choose one or the other.
In other words, at times judges either must ignore the law or must ignore the Constitution. Again, this is not some special authority, it's simple logic. In those circumstances judges consistently choose to ignore the law.
"Judicial review" is nothing more than a judge ignoring a law. Because if they can't ignore that law, then they must ignore the Constitution. So what you're really asking is "Why are judges always required to obey the Constitution?" But that's the same as asking "Can anything give judges the power to ignore the Constitution?"
Yea absolutely, but also off-year elections are important too! We elect the House every 2year, the senate every 6, and there’s tons of local issues on the ballot every year.
Absolutely this. This is why Dems have had control of all 3 houses (house of reps, Senate, presidency) for only 4 years of the last 24 years. Voters don't show up and then GOP gets one of them. We've all seen what happens when it's president and not Senate - the GOP Senate blocked Obama's supreme Court Justice.
The last time a single party held the presidency for more than 12 years was when FDR won 4 times. Prior to that it was civil war reconstruction.
Keeping the white house from 2020-2040 would be the longest single party streak without one president occupying the office more than 8 years. 3 consecutive Democrats would need to win. Ignoring the Democratic Republican steak at the beginning of the 19th century, because at one point everyone ran as a democratic Republican regardless.
My fear is Biden wins in '24, dies in office, we get President Harris, who is the party pick in '28 and she loses terribly because nobody likes her.
If Thomas and Alito make it to '28, they step down to assure a Republican replaces their seats.
So we get Republicans in 28 and 32, maintaining the 6-3 split, then Roberts and Sotomayor are out, eliminating the reliable swing vote (Roberts) and leaving the court with a 7-2 majority.
100% agree. We need to stop autopicking the next candidate just because they were VP. I don't hate her, but she hasn't done anything to stake a claim for the next seat.
we get President Harris, who is the party pick in '28 and she loses terribly because nobody likes her
Why wouldn't people "like her"? If "nobody likes her" she would get 0% of the primary vote. She will likely be the Dem front runner in 2028, but we will have to see who runs.
This is why just electing Biden and conservative Democrats like him isn't enough.
He's had the power to expand the court or at the very least encourage Congress to do so (which the Democratic majorities absolutely would if he leaned on it hard enough) since day one and aware of the problem since before he even started his campaign, but he's so far refused to and, like that other stance of his that the majority of the country disagrees with him on (his unconditional support of the genocidal apartheid regime), it's extremely unlikely that he'll ever change his mind.
Same goes for the rest of the out of touch Dem leadership: they're supposed to represent everyone to the left of literal fascists, but in reality they mostly represent their rich owner donors and the increasingly tiny portion of the population that think the American Fascist Party has some good ideas but haven't yet drunk the kool-aid.
Just to add, if Trump wins, they will certainly step down and Trump will appoint 40-year olds to the SC. Possibly the crazy lady from Florida. Voting Blue is the only thing that will stop this distopia.
I could see him nominating Cannon and Giuliani - sure Rudy would only be on the court until he died but Trump would still appoint the replacement five months later.
They wouldn't put Rudy up there, it's too much of a gamble when they could literally just put Ben Shapiro on there because there's no such thing as an unqualified judge anymore and be safe forever.
Voting blue isn't enough, though. It's the bare minimum to keep the lights on while trying to repair the broken status quo that the Dem leadership and their owner donors love so much rather than let the fascists create something much worse.
It's so fucking ridiculous that this needs to happen for America to not become a dictator/fascist country. Why the hell do we have to fight so hard to protect our nation's well-being. How come these assholes can attack our country from within constantly for decades without anything happening to them. Ridiculous.
Because the founders assumed that our rulers would be rational actors. They didn't have a plan for an entire party going bad. "Oh, sure, we'll just add an impeachment clause so nobody has to get assassinated..." (paraphrasing Ben Franklin):
"The Founding Fathers wrote impeachment—originally a Roman political institution—into the constitution for the purpose of removing an official who had “rendered himself obnoxious,” in the words of Benjamin Franklin. Without impeachment, Franklin argued, citizens’ only recourse was assassination, which would leave the political official “not only deprived of his life but of the opportunity of vindicating his character.”
But they didn't take the extra step to realize "What happens if that party refuses to impeach? Or indict? Or convict?" Suddenly there is no alternative.
Ideally, there needs to be a process to nullify the entire party, but I have no idea how you'd go about it.
The founders were entirely aware that not only an entire party, but the entire government could become irrational and work against our best interests: that's why we have the second amendment as a backstop and last line of defense against authoritarian rule
The nature of democracy not being a system that relies purely on violence for legitimacy (unlike authoritarian forms of government) means that it is a constant forever war against the lapping waves of fascism attempting to slowly erode away our democratic institutions (because we, thankfully, don't just use violence to immediately silence dissidents)
I think an entire generation of people raised in the peace dividend have forgotten this fact, figured that democracy is the natural course of things, ignored its badly needed maintenance, and are swiftly being reminded of it now that the damage is so readily apparent
money spent on elections to convince idiot sheep to vote for the wolf. money spent (invested) on the elected to get more money.
if PACs were shut down, and companies not people, and private donations capped, and the IRS watched money transfers like a hawk - it would slow some of the work of the billionaires.
