Supreme Court

Our SCOTUS Wars Were a Long Time Coming

The fight to replace Ruth Bader Ginsburg reveals a long-degraded political culture.

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"We have the Senate," President Donald Trump said Monday morning, with we meaning the GOP. And that means, in contrast with Barack Obama's stymied 2016 attempt to fill a Supreme Court vacancy during a presidential election year, Republicans ready to replace the late Ruth Bader Ginsburg "can sort of do what you want."

As a description of crude power politics, that's mostly true. (We shall see if more Republican senators pre-announce their intention not to vote on a SCOTUS nomination before Election Day.) But as power politics becomes more crude, is that good for the country on balance?

So begins the debate on this week's Reason Roundtable podcast, starring Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward. The gang discusses political hypocrisy, congressional irresponsibility, and the mutual degradation of norms (and Norms), as well as the latest in federal corona spending, Trump's ridiculously interventionist TikTok exertions, and prohibition baseball in quarantined California.

Audio production by Ian Keyser and Regan Taylor.

Music: "Casual Desire" by Ugonna Onyekwe.

Relevant links from the show:

"Half of Republicans Say New Justice Should Be Picked by Whoever Wins the Election," by Elizabeth Nolan Brown

"A Possible Deal on Ginsburg's Replacement That Could Prevent Court-Packing," by Ilya Somin

"The Death of Ruth Bader Ginsburg and the Future of the Supreme Court," by Damon Root

"After the Stimulus Binge, Brace for a Crash," by J.D. Tuccille

"A Second Round of Airline Bailouts Would be Bad for the Industry and Consumers," by Christian Britschgi

"Trump Wants More Stimulus Spending. Biden Wants a National Mask Mandate. Both Are Wrong," by Eric Boehm

"Trump Administration Formally Bans TikTok, WeChat Apps from Online Stores in U.S.," by Scott Shackford

"Trump's 1776 Commission to 'Promote Patriotic Education' Is Executive Overreach," by Elizabeth Nolan Brown

"Trump May Tank TikTok Deal With Oracle Because Government Doesn't Get a Cut," by Elizabeth Nolan Brown

"NYC Mayor Bill De Blasio Delays School Reopening at the Last Minute, Infuriating Parents," by Robby Soave


NEXT: Could All Parents Have ‘Pandemic Pods’ If There Were More School Choice? A Soho Forum Debate

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Glenn Reynolds makes a good case for +50 Scotus justices.

    “When your political system can be thrown into hysteria by something as predictable as the death of an octogenarian with advanced cancer, there’s something wrong with your political system.
    And when your judicial system can be redirected by such an event, there’s something wrong with your judicial system, too.”

    https://www.usatoday.com/story/opinion/2020/09/21/ruth-bader-ginsburg-passing-brings-political-chaos-column/5846844002/

    1. Let the court packing begin! Early next year when democracy has been renewed. An additional feature that should be modified should be who approves the President’s nomination. I believe that democratic principles demand that the House, not the Senate, approve nominations to the Supreme Court.

      1. one of the primary purposes of the framers’ structure of our government was to PREVENT mob rule.

        1. Four new justices will not constitute a mob. They will constitute a majority, and arrange substantial American progress, however.

          1. “I believe that democratic principles demand that the House, not the Senate, approve nominations to the Supreme Court.”

            He was responding to this, dumbfuck.

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          2. substantial American progress

            Yes, progressing us right into a progressive toilet.

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          3. Gorsuch, Kavanaugh, Comey-Barrett, and who?

          4. Now who wants to destroy democratic principles?
            The Left is painting business as usual (replacing a deceased Justice) as an assault on the democratic process. Even as they debate how best to assault the democratic process. Impeachment? Nationwide strike? Stack the Court? Reign of Terror?

          5. Yes! Substantial American progress! The new Democrat-selected judges will ensure the rights of people to their ancestral territories, ensure a decent livelihood and job for every citizen, high taxation of unearned income, nationalization and/or profit sharing in large corporations, the maintenance of a middle class, truth in the news, government retirement and health plans, and free higher education! You know, pretty much the same political program as their illustrious predecessors in the NSDAP.

            1. That’s the Rev all over.

      2. The more the Democrats count their chickens before they hatch, the more likely they are to loose in November.

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        2. In a way the liberal media actually works against the Democrats. Most conservatives are exposed to a variety of viewpoints because the liberal viewpoints are expressed so often by the media they’re impossible to avoid. But Democrats, especially in coastal elite or academic elite circles, are in an echo chamber and don’t hear any opposing viewpoints – so it’s easy for them to believe that a majority of Americans think the way they do. The 2020 POTUS election should be a layup for the Democrats given Trump’s unfavorable ratings but the far left Democrats are going to encourage a lot of voters to still vote for Trump.

    2. There’s something terribly wrong with every political system. It’s called politics.

      1. And yet we have examples of other systems that work way better and yet? We do nothing.

        1. And yet we have examples of other systems that work way better and yet?

          We do?

          1. His guild in world of War craft. 5 years strong.

            1. Lol. It’s funny because it’s true.

          2. Right of conquest. King Arthur turned out okay. Most of the rest were either power mad, just plain mad, or, if your country was lucky, just interested in living high on the hog.

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    4. Or maybe not invest so much power in unelected unaccountable eggheads

    5. Okay, but there are easier fixes than letting each major party alternate in adding 10, 20, or 40 justices to the court to get the upper hand.

      Fix the number of justices at 9 by Constitutional amendment.
      Set a mandatory retirement age of 75.
      Require nominees to have served at least 5 years on a US District Court.
      Require deceased or retiring justices to be replaced within 30 days.
      If the nominee is not confirmed within 30 days, the open seat goes to the US District Court judge with the most seniority.

      1. Reynolds idea was to let each state have a scotus, and the state’s governor makes a nomination when there’s a vacancy.

        1. Oh sure, that would immediately be decried as giving more representation to less populated States than they deserve; as with senators and the electoral college.

          1. Yes, damned those States and their semi-autonomous legal status! Why should they have any separate powers?

    6. Since, as Reynolds notes, death is predictable, and it’s also predictable that politics is a ruthless endeavor, it seems to me that even a smidge of planning can quite easily avert “redirection.” You know. Like how we got Kavanaugh. Planning. It was no accident that Kennedy retired during a Republican administration with a Republican Senate.

      She had every opportunity to retire. Yet she chose to throw bad money after good, and lost bigly. Once she chose to bet on H and try a marathon against time while in her late 80s and with cancer, she demonstrated that either A) she welcomed potentially causing political and social chaos, or else didn’t care to do whatever necessary to avoid it. I don’t know whether it was hubris or selfishness or faith that just maybe things would work out somehow, but whatever her motivations for refusing to make sure that her seat would be filled by someone who, in her estimation (and all those wailing about the “redirection” of our judicial system), would be a more amicable choice is what put us where we are. Not the system itself.

      Her death has thrown a match in our barn of a republic, and it’s filled with dry hay just waiting.

      1. Yep, if she retires in 2014/2015 “her seat” is filled with a lefty. She waited until it was too late and now the Ds are mad at the Rs. They would have replaced Scalia with a lefty if they could have, and the Rs should put in the most righty they can.

      2. A robust system is one where a single person cannot cause too many problems, no matter how lazy/stupid/malicious/etc.. they are.

        A person failing to accurately predict the time of their death can cause problems, as it did here, which proves that the judicial system is not robust at all.

    7. The judicial system is not being “redirected”. Absolutely no laws or even rules whatsoever are being broken. Are guys like McConnell and Graham being hypocritical and going back on earlier public statements? Absolutely, but so what. Being hypocritical isn’t illegal.

      Remember back when McConnell told the lefty democrats they would deeply regret getting rid of the judicial appointment filibuster? Maybe they should have listened to him and thought about that a little more carefully!

      “They who sow the wind shall reap the whirlwind.”

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    9. Fun with math! Let’s assume court packing becomes the norm and assume the party in control changes every 8 years and each new administration doubles the number of justices then adds 1. So we’ll have:
      2021: 19 justices
      2029: 39 justices
      2037: 79 justices
      2045: 159 justices
      2053: 319 justices
      2061: 639 justices
      2069: 1279 justices
      2077: 2559 justices
      2085: 5119 justices
      2093: 10239 justices
      2101: 20479 justices

      1. How about 435 SCOTUS justices?

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  2. “is that good for the country on balance?”

    As if anyone would ever ask you lol.

  3. “The gang discusses political hypocrisy, congressional irresponsibility, and the mutual degradation of norms”

    Do you discuss why the party of “burn it all down” is even getting a word in when they have zero say in this?

    1. Hurrr Durrrr both sides

      1. To be sure.

  4. But as power politics becomes more crude, is that good for the country on balance?

    Yes, yes it is. In the same way that a doctor telling you that gangrenous leg is going to have to come off is doing you more good than one who tells you that a nice set of knee socks will cover it up just fine. Politicians in general are truly awful people* and the more you’re exposed to just how truly awful they are the less you’re likely to trust them any further than you can throw them.

    *You might think that some politicians are decent people, that they really do care and really do want to help people – those are the very worst, the “good intentions” motherfuckers who feel that, as long as they’re doing “good things”, it’s perfectly okay to force people at gunpoint to do as they’re told. Sanctimonious pricks, pretending that they know better than you how to run your own life, perfectly willing to be generous with other people’s money. Give me a venal, corrupt, slimeball crook every time, at least he’s not pretending he’s fucking you up the ass for your own good.

  5. Yeah, and the left is none-too happy with Ginsburg right now…

    There can be virtually no doubt that a hypothetical Obama appointee, named in 2014, would be more progressive than anyone Trump is likely to nominate this year or next. O’Connor’s resignation has a lesson for the liberals on the Supreme Court, but it is not the one Lithwick attributes to Ginsburg. SCOTUS seats are transitory by nature; no individual justice is indispensable; and your successor is your legacy.

    If a Republican dominated Supreme Court overrules Roe v. Wade in 2021, no one is going to applaud Ginsburg’s extended tenure as affirmation of feminism.

    1. Side note: I like how everything comes down to abortion. The nation could burn under a new odious doctrine of racialist politics, but as long as we can terminate our pregnancy, all is well.

      1. It’s only about abortion now because the conversation revolves around RBG, and abortion was RBG’s raison d’etre (modern feminism apparently boils down to abortion). Sort of like how a short clip of a man allegedly being murdered by police became a narrative about racism because the man was black and the only reason for black people to exist is as victims of racism.

        1. Scratch that. Thinking a little more, in this case I think it has more to do with Roe v. Wade being representative of all leftist politics (I know there’s a word for this, but it’s not coming to mind). Similar to how Republicans would be talking about gun control and nothing else if the parties were reversed.

      2. So many suburban women who have never had one, and are extremely unlikely to ever even face the decision, are totally emotionally committed to the idea.
        It’s quite amazing.

        1. Because although you’re right in that most of these women have never had an abortion, everyone knows that 1 girl who got pregnant in high school, and had much of her potential handcuffed as a result.

      3. Abortion has totally corrupted the left. It has made it into a death cult.

      4. Women have their priorities.

        1. Compromise: Abortion is legal so long as it’s spontaneous or the woman does it herself (safe and legal abortifacients?)and then consumes all or most of the fetal remains. I’m fine with that.

    2. Roe v. Wade is the most overrated issue in american politics.

    3. JFC, all these people whinging about ‘overturning Roe V Wade’

      1. Don’t understand RvW

      2. Don’t understand how the Supreme Court works.

      Overturning a wide-reaching decision like RvW (which, because of the ‘penumbra’s’ covers waaaaaaaaaaaaaaaaaaaaaaay more than just abortion) is not a ‘oh hey, we’ve released a new opinion’, its a decade long battle to get a case up to SCOTUS before they can even think of overturning it.

      1. And overturning it sends it to the states to decide.

      2. There’s no right to abortion in the Constitution. Judicial activism has given individual SCOTUS judges way too much power. They’re supposed to interpret laws, not invent new ones.

  6. Merrick Garland should have been confirmed despite election year shenanigans as there is no Constitutional rule or valid precedent stating otherwise. Let the preschool game begin!

    1. Nope.
      Fuck garland, fuck Obama, fuck the left.

      1. And here’s a prime reason the Dems should pack the hell out of it. Not to mention add a few more states.

        1. Democrats will never be competitive in national elections ever again.

          Its why the Lefties are trying so hard to get anything they can and make threats.

          After census 2020 and election 2020 sets Democrats back politically, the new 6-3 conservative SCOTUS majority will start rolling back horrible Lefty court precedents.

          1. Then Trump will get to replace Thomas and Breyer will die and be replaced by a Trump nominee.

          2. Christmas came early this year.

        2. 100 million citizens who own hundreds of millions of firearms.
          I don’t rhink you’ll like it if the gloves come off.

    2. Yes there is. Advice and consent of the senate dummy. There is no rule mandating a vote.

    3. The Senate does not owe the President it’s consent.

    4. Once again, your ignorance entertains me.

    5. He should have been voted on, and rejected. The only reason he wasn’t was so the Senate could vote on him should Trump lose since he wasn’t bad as compromise candidates go.

      1. He should have been voted on, and rejected.

        Why? Why go through a political divisive, time consuming charade in an election year if the outcome is clear anyway?

        The only reason he wasn’t was so the Senate could vote on him should Trump lose since he wasn’t bad as compromise candidates go.

        And that seems like a perfectly legitimate decision for the Senate majority to make.

    6. The tooth fairy should’ve left me more money. Feelings, nothing but feelings! Someone was taught that if they feel it they are correct.

    7. Agreed. The Republicans were wrong then, and the Democrats told them so. But they would be wrong now to not replace Ginsburg, but the Democrats are suddenly liking the Garland Rule.

      1. The Republicans were wrong then, and the Democrats told them so. But they would be wrong now to not replace Ginsburg, but the Democrats are suddenly liking the Garland Rule.

        There is no “Garland rule”. Republicans would have rejected Garland anyway, they simply chose to do so without hearings and the political fireworks.

        Next time Democrats hold a majority in the Senate and a Republican president nominates someone, they are free to do the same thing.

    8. Merrick Garland should have been confirmed despite election year shenanigans

      The Republican Senate wouldn’t have “consented” to him even if they had held hearings. They have a constitutional right to reject nominees. All they decided at the time was not to bother with the hearings in the first place.

      Somehow in the Democrats’ minds this morphed into “nobody can get confirmed in an election year”, which is absurd.

    9. There was a Constitutional rule. The Senate did not confirm Garland.

    10. valid precedent
      Look for lapsed in the list at https://en.wikipedia.org/wiki/List_of_nominations_to_the_Supreme_Court_of_the_United_States. There have been 15 nominations that did not receive a vote. That doesn’t include withdrawn nominations.

  7. So Mitch McConnell is a hypocrite? But was he wrong in 2016 and right now? Or right in 2016 and wrong now?

    1. Nice deflection. Republicans don’t want another liberal on the court. How hard is that to understand? So a politician lied. BFD. I have no problem with it, as long as it keeps left wingers out of power.

      I do not think you should play by the rules when the scumbag left is your enemy.

      1. Yep- and screw you guys. Hope the Dems pack the courts, enshrine voting rights, add states. Screw it.

        1. Democrats are done as a Party. They will never control both houses of congress and the White House ever again.

      2. And dems don’t want another pub on the court. Strange you FAIL to notice that.

        1. care.

          fail to care

      3. He is playing by the rules. He made up a new rule in 2016, and the Left complained like mad. But it wasn’t a new rule then, it was power politics. Now the Republicans will follow the usual rules and nominate a Justice, and it’s being branded as subverting democracy.

    2. No. He always stated when the senate and president were in opposition.

    3. Neither. There never was a “rule” of “let the American people decide on SCOTUS nominees in an election year”.

      The actual rule was “the Senate would reject this nominee, so let’s not bother with a vote an see what the outcome of the election is”.

      So, no “hypocrisy” or inconsistency.

  8. “Justice Ruth Bader Ginsburg will lie in repose at the Supreme Court on Wednesday and Thursday and lie in state Friday at the Capitol before President Trump is expected to nominate a replacement.”

    See! nothing has changed.

    1. One of the best lines in the history of television was on Mad Men when Don Draper’s daughter ran up to him screaming “daddy the President has been killed “ and he said

      “It’s okay honey, we’ll get another one”

  9. The Constitution says that the President shall nominate Supreme Court justices with the advice and consent of the Senate.

    It doesn’t say the Senate has to consent, and it doesn’t say that nominations cannot be made after a certain time before an election.

    In 1987 the Senate did not consent. That’s their right.

    In 2016, the Senate did not consent. That’s their right.

    If in 2020 they do consent, that’s their right as well.

    Folks may not like what they decide, and may think it’s unethical, but it’s totally legal.

    1. Well it’ll be totally legal for the Democrats to increase the number of judges. Fuck you works both ways.

      1. But that would mess up the Nazgul memes…

        1. The left can’t meme, so this dumbass doesn’t even know what you’re talking about.

      2. haha!

      3. Except adding more and more seats to the Court is ridiculous.
        Replacing justices when they die is business as usual.

      4. Well, good luck with that.

        If Democrats return to some semblance of sanity, they’ll sit down next year with the president and the Senate and work out a compromise where future SCOTUS justices are term-limited to 12 or 16 years, and maybe increased in number up to 15, with one new seat every four years.

        1. That compromise will take a Constitutional Amendment. I don’t see that happening.

          1. If we are going to go the amendment route then what needs to happen is a mechanism for the other branches of government to reclaim what was lost in Marbury v. Madison.

            If 2/3rds can override a POTUS veto then 2/3rds + POTUS signature should also be able to undo a SCOTUS verdict. Particularly when the decision is not the mere rejection/nullification of law, but the far too common legislation from the bench.

            1. that strikes me as a strangely appealing idea

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  12. But as power politics becomes more crude, is that good for the country on balance?

    The best thing about Trump is he has shredded all the lies, illusions, and myths about politics that we’ve shrouded ourselves in. Its shown that both parties are filled with greedy, grasping, power-mongers who will do anything, *anything*, to further increase their own wealth and power. They have the same principles as a gangster. They are stationary bandits that we pretend are not.

    Its not about power politics becoming more crude – its always been this crude.

    Its about power politics being shown for what it is, in the full light of day. Nothing has changed about government in the ‘Trump era’.

    1. ” its always been this crude.”

      Nailed it.

      This article is built upon a lie, and a purposeful one at that.

      Which is a thing worse than crude.

    2. and THATS why trump should be on mount rushmore ABOVE the other 4

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  14. If we prohibited government from initiating force it wouldn’t matter who was on the court.

    1. If the entire world embraced peace, we could abolish the Army.

      1. But why do it then, when victory is within our grasp?

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  17. The left must be shattered and demoralized and the best way to achieve that is to have RBG’s replacement confirmed before the elections.

    This will also have the added benefit of shielding the elections against the democrat’s mail-in-ballot schemes. AOC and Hillary had already started to backpedal on it and now they’re promoting vote in person with renewed strength.

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  19. N.B. – Lindsey Graham is one of 2 remaining members of the Gang of 14 (Susan Collins is the other).

    This is the logical conclusion of a long line of gamesmanship by both parties. They all richly deserve the blame.

  20. The SCOTIS wats have been going on a long time, and let us never forget that it was the scum on the left who started them by smearing decent, qualified people like Robert Bork who never did anything wrong except have the audacity to disagree with some of the left’s bullshit narratives.

    1. You know, there really are some good fucking nuggets of wisdom to be found in the Bible. For example, those who sow the wind will reap the whirlwind d.

      The far left has been sowing the wind for a long time, and this year more so than ever. So now they’re going to reap the whirlwind.

  21. ” a long-degraded political culture”

    Ripe coming from a publication that waited three months to start noting that riots are bad.

  22. So if the senate confirms Trump’s pick:

    Biden wins and dems take senate, adding at least 6 justices, packing the lower courts too, and giving DC and PR statehood. Taxes on the wealthy and corporations will go back up to at least 1970s levels, along with inflation. But we won’t have disco, orgies, or qualudes to seek comfort in.

    Trump is re-elected. Antifa punks and leftists go apeshit, burning cities to the ground. California and the northeastern states secede.

    It’s about to get really interesting.

  23. And Romney just said he’d vote for Trump’s nominee, giving Republicans 51 votes, per BBC and WAPO.

    Really time to make the popcorn now. It’s going to be full-on no rules cage match.

    1. Yep, and they don’t even need 51 senators, they need 50 + Pence. It’s probably all over except the screaming, wailing, and gnashing of teeth, unless the dems try to pull a stunt like fleeing the country (and I wouldn’t put anything past them).

  24. I encourage the Repubs to ram through a conservative judge, and I encourage the Dems to pack the court. Then I encourage the Repubs to do likewise once back in power. And the Dems after that, etc.

    The country is politically broken and no president, Congress Critter or upstanding libertarian is putting it back together. Best to get the inevitable collapse of the Republic over with as quickly as possible. A court-packing battle that ends in the total discrediting of the judiciary will do the trick. In the meantime we can focus on the more pertinent tasks of safeguarding our investments for the fast-approaching dislodging of the dollar as global reserve currency, and teaching our kids techniques for surviving in the ashes of the failed American state.

    1. Don’t the three branches each get to dictate their own rules? If the court gets packed in successive administrations i can imagine the chief justice portioning out groups or 3 or 5 justices to be the panel for their case load [which could get larger]. Then the politics of it would be in how the chief justice apportions his associate judges. put 3 liberal judges in one 3 judge pod and assign them to non critical cases… then maybe two others ((1 each) in 2 more 3 judge pods [a 2-1 conservative majority] and have a totally conservative 3 judge pod. my version of supreme court gerrymandering

  25. Spending libertarian time & energy discussing/debating the details of coercive politics, as if details mattered, is to discuss hacking at the leaves/branches of evil (not actually hacking) and certainly won’t do anything to “strike the root” of authoritarianism.
    Stick to our principles! Advocate for reason, rights, choice. Time is of the essence.

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