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Is the Supreme Court Going to Suffer a Crisis of Legitimacy?

Predictions to that effect may turn out to be overblown. But we should still take seriously the threat of "court-packing" and other drastic measures to reduce the Court's authority.

In the aftermath of the highly controversial confirmation of Brett Kavanaugh and the establishment of a seemingly stable conservative majority on the Supreme Court, many commentators argue that the Court may soon suffer a crisis of legitimacy. Some liberal Democrats are considering drastic action to regain control of the Court or curb its power, such as "court-packing" or impeaching Kavanaugh. On Twitter, former Obama administration attorney general Eric Holder warns that "[w]ith the confirmation of Kavanaugh and the process which led to it, (and the treatment of Merrick Garland), the legitimacy of the Supreme Court can justifiably be questioned" (though he has not, so far, endorsed court-packing or other similar policies).

Is the Court really about to suffer a legitimacy crisis? Predictions to that effect may well be overblown, as they often have been in the past. But the notion is worth taking seriously nonetheless. The deep anger of much of the left could lead to a stronger assault on the Court than has occurred in a long time.

Before considering whether the Court's legitimacy is seriously threatened, it is worth asking what exactly we mean by that. As I use the term here, a crisis of legitimacy does not happen merely because the Court makes rulings that many people hate. Such decisions are issued almost every year. Nor will it occur merely because many believe the justices' rulings are influenced by politics (though such beliefs might help contribute to a crisis). Rather, the Court's legitimacy undergoes serious challenge only when a strong political movement seeks to curtail the Court's authority or take drastic measures to subordinate it to the party in power. Refusing to obey court decisions (as some nineteenth century presidents threatened to do) is an example of the first. "Court-packing" (as famously attempted by Franklin D. Roosevelt in 1937) is an example of the second.

I. Why the Danger May Well Be Overblown.

Is anything of the sort likely to happen in the next few years? It could well be that the answer is "no." The Court's legitimacy has survived many previous events that critics claimed were likely to seriously damage it. Many on the left thought the Court's standing would be severely undermined by such decisions as Bush v. Gore and Citizens United. Yet no crisis of legitimacy occurred, or even any significant long-term decline in the Court's popularity. The same goes for conservative complaints about such decisions as the school prayer cases, Roe v. Wade, and the 2015 same-sex marriage decision. The Court's 2005 ruling in Kelo v. City of New London was its most widely hated decision in many decades, with over 80% of the public opposed to it. Yet, once again, there was little if any long-term damage to the Court's status.

One possible reason for this pattern is that, despite their flaws, the justices still look better than the president and Congress, whose approval ratings are usually substantially lower than those of the Supreme Court. An additional factor is that most voters are "rationally ignorant" about political and legal issues, and therefore pay little attention to the doings of government generally, and the Supreme Court in particular. A recent C-SPAN poll, for example, found that 52% of likely voters cannot name a single Supreme Court justice.

People who pay little attention to the Court are less likely to develop deep anger against its rulings, and demand drastic action to curb its power. Within a few years, most ordinary voters may have either forgotten about Merrick Garland and the accusations against Kavanaugh, or at least no longer care much about them relative to the many other issues competing for public attention.

Conservative commentator David French highlights another reason why the Court's legitimacy might avoid serious challenge: over the last century, a strong norm of obedience to judicial decisions has taken hold. Even a president as contemptuous of norms as Donald Trump has - so far - stopped short of openly challenging this one.

II. Why We Should Still Take the Threat Seriously.

Nonetheless, there are good reasons to take the looming potential threat to Court's legitimacy seriously. The most significant is that left-liberal activists are indeed seriously considering drastic measures that were previously considered taboo, most notably court-packing. Such ideas were gaining some ground on the left even before the Kavanaugh confirmation. But they have become more widespread since then. Many liberals genuinely believe that court-packing is both the only way for the left to regain control of the Court and entirely justified retaliation for the misdeeds of the right, such as Senate Republicans' refusal to hold hearings on Barack Obama's nomination of Merrick Garland in 2016, and - now - the confirmation of Kavanaugh in the face of accusations of sexual assault. I don't fully buy such arguments myself, and continue to oppose court-packing, just as I did when it was previously proposed by leading conservatives. But, politically speaking, what matters is not whether court-packing is justified in some objective sense, but whether enough influential liberal Democrats believe it to be so. At least at the moment, such ideas are gaining ground. And they might well continue to do so, especially if the new conservative majority on the Court makes high-profile decisions that progressives hate.

What is true of court-packing could also become true of other aggressive measures against the Court, such as curbing its jurisdiction, impeaching justices (particularly Kavanaugh), and so on. Indeed, many of these tactics were in fact used back in the nineteenth century, sometimes successfully. If court-packing (or other similar policies) become part of the standard agenda of one of the two major political parties, voters loyal to that party are likely to support it, even if they were not initially enthusiastic about such plans, or particularly hostile to the Supreme Court. In our age of growing polarization and partisan hatred, many partisans will support almost anything that is advocated by party leaders and seems like a good way to strike a blow against the opposing party. Thus, proposals like court-packing could well enter the mainstream, even if initially they are only espoused by a relatively small group of activists.

In 1937, FDR's court-packing plan failed in large part because of opposition from many of his fellow Democrats, such as Montana Senator Burton Wheeler.We cannot necessarily count on such internal divisions today, in a time when the parties are more unified and more polarized than was the case in the late 1930s. Moreover, though FDR failed to actually pack the court, many believe that the mere threat of court-packing forced the justices to change course and abandon precedents that cut against the president's New Deal agenda. Experts disagree about whether the Court's shift really was influenced by the court-packing threat or not. But the widespread perception that FDR's plan actually "worked" (even if it really didn't) might further incentivize modern politicians to repeat the experiment.

The norm of presidential obedience to judicial decisions, like the norm against court-packing, is not an inevitable fixture of our political landscape. It too could potentially erode. Consider the following admittedly speculative scenario:

In 2022, President Elizabeth Warren, backed by a Democratic-controlled Congress, passes far-reaching campaign finance reform legislation that progressives consider to be an important part of their agenda of curbing the inordinate political power of the wealthy. A 5-4 Supreme Court decision (with the justices divided along ideological lines) strikes down key parts of the legislation.

President Warren, in turn, announces that she will not obey the ruling, and will continue to enforce the law. She argues that this is proper because two of the five justices in the majority are "illegitimate": Neil Gorsuch because he occupies a seat that was "stolen" from Merrick Garland, and Kavanaugh because he committed perjury during his confirmation hearings, when he denied the sexual assault accusation (and perhaps on other matters as well). The president could buttress her position by citing (selectively chosen) quotations from widely admired nineteenth century presidents (including Abraham Lincoln) arguing that the president need not always obey court decisions. She could also rely on similar claims by modern-day "departmentalist" legal scholars, including some staunch conservatives, such as Michael Stokes Paulsen. Only a small minority of legal scholars are thoroughgoing departmentalists. But they are enough to give the president's refusal to obey a controversial decision at least some veneer of intellectual respectability.

Some more moderate Democrats worry that the president is going too far. But most rally to her side, in her struggle against an "illegitimate" Supreme Court that has become a "puppet of the rich and powerful." A high-stakes constitutional crisis ensues.

I don't know if a near-future Democratic president would actually defy the Supreme Court in this way. If he or she did, I don't know if the defiance would be a political success. It's possible it would generate a big enough backlash to force the president to retreat. The same points apply to possible court-packing schemes. They too might never be seriously attempted. And if they are attempted, they might crash and burn.

I do believe, however, that both court-packing and (more speculatively) refusal to obey judicial rulings, are no longer unthinkable to anything like the extent they might have been a few years ago. And if either is attempted and the party that does so is politically successful (or even just avoids a devastating backlash), then the Supreme Court's position will be seriously weakened. And the power of judicial review would be severely undermined. If one party successfully pushes through a court-packing plan, refuses to obey a court decision, or takes other similar actions, the other party is likely to do the same thing, whenever they get the opportunity to advance their own agenda by doing so.

This spiral may well be a feature rather than a bug, if you agree with various legal commentators (on both right and left) who believe the nation will be better off with much weaker judicial review, or even with its eventual elimination. But if, like me, you believe that judicial review is a valuable institution that we should try to preserve, now is a good time to start taking this issue seriously. I would add that simply washing one's hands of the issue by claiming that any problem is all the fault of the side of the political spectrum opposite to your own, is not a good way to take it seriously. Even if it is indeed "their" fault and not "ours," the danger is still there.

I don't have any brilliant solution to the problem, though I suggested one tentative idea here. Hopefully, others will have better insights.

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  • AmosArch||

    "Is the Supreme Court Going to Suffer a Crisis of Legitimacy?"

    If you swallow manufactured leftwing MSM narratives like a good sheep. Yes. Kinda like how fake news and election meddling was invented in 2016.

  • Rev. Arthur L. Kirkland||

    Perceiving mainstream as a pejorative likely indicates a disaffected, fringe-occupying, anti-social malcontent.

  • Mike W.||

    "The deep anger of much of the left could lead to a stronger assault on the Court than has occurred in a long time."

    If anything does come of it, this will be a demonstration that the left is much more powerful than the right because the right has had that kind of anger at the Supreme Court for 50 years now.

  • Martinned||

    Well yes, and that anger seems to have paid off quite nicely.

  • Brett Bellmore||

    The Court is only facing a "legitimacy crisis" because the left are rapidly losing their capacity to admit that any institution they don't control can actually be legitimate. Elections will be rationalized away as the product of gerrymandering, hacking, public ignorance, anything except them being legitimately rejected.

    Because this is the cause, there's absolutely nothing anybody outside the left can do to cure the problem, except cede control of the Court to the left even when they can't win the White house or Senate. I think that's too high a price to pay. We simply have to find some way to live with the fact that one of our major parties has rejected a fundamental feature of democracy: That you have to accept that you can lose.

    Unfortunately, this state of affairs does imply that, as soon as both the White House and Congress are in Democratic control, the Court will be packed. And Court packing by the left will complete the job of illegitimizing the Court.

    Cont.

  • Brett Bellmore||

    There's worse to come, though. Since it is transparently obvious that packing the Court once will just set off a string of tit for tat packings as party control of government shifts, packing the Court is clearly of only temporary utility by itself.

    Packing the Court, by a party which simply rejects the legitimacy of rule by anybody else, would only be the prelude to further measures to entrench their rule against democratic overturn. It would clear the way for laws limiting freedom of political speech or assembly, which would normally be struck down by a Supreme court that wasn't a rubber stamp. Remember, one of the left's complaints about the Court is that it's striking down laws censoring political speech. Not so long ago they actually introduced an amendment to effectively repeal constitutional protection of such speech!

    With a packed Court, they wouldn't need an amendment anymore. They'd just fill the Court with hacks who would permit such measures.

    So, preventing this future Court packing is a much higher priority for the survival of American democracy than most people recognize.

    I suggest an amendment to prohibit Court packing. And be explicit about this: If the Democrats refuse to support it, the Republicans should take this as proof they really do intend to pack the court, and proceed to preemptively pack it themselves. Maybe that would motivate the Democrats to give up on the idea.

  • Rev. Arthur L. Kirkland||

    From a Democratic perspective, (1) the Court has already been "packed" and (2) history and current law readily establish that enlargement is a natural part of our political process.

    Democrats should exhibit, in response to right-wing objections to Court enlargement, the same smile Mitch McConnell has used during recent years.

  • Brett Bellmore||

    And exhibit #1 makes his appearance.

  • Rev. Arthur L. Kirkland||

    Win elections -- in an America whose electorate trends against you every day -- or experience what a famous right-winger once described as 'what goes around comes around,' clingers.

  • DjDiverDan||

    The Democrats are doing their very best to help Republicans to win elections by continuing to demonstrate that it is not a serious political party, that it has been coopted by the looney left, the idiotic party of socialism which believes that the Health Care Fairy will magically appear to pay for Medicare for All, the party which cries out "believe the woman" when it is convenient, but ignores any allegation against the likes of Bill Clinton or Keith Ellison (no matter how well documented and supported). I've got news for you Rev., there are an awful lot of independent voters out there who have never identified as either Republican or Democrat, and what they are seeing recently from the Democratic Party scares the hell out of them. When the Democrats completely lose the fickle middle, there simply won't be enough race-obsessed minorities, SJWs, LGBT radicals, radical feminists and hard core socialists to get them over the top in ANY election.

  • Stephen Lathrop||

    Democrats and Republicans alike have a tendency to let their political preferences and ideologies cloud their political analysis. DiverDan illustrates.

  • Brett Bellmore||

    Remember the riots at Obama's inaugurations? Because I don't.

    The situation isn't symmetric. Republicans didn't try to gun down the Democratic House caucus. Republicans aren't attacking Democratic office holders in public. Republicans didn't claw at the Supreme court's doors like a zombie horde when Sotomayor and Kaygan were being sworn in.

    Republicans may be becoming more "extreme" as the parties sort, but they haven't gone batshit crazy the way the Democrats have.

  • Martinned||

    Oooph, you may not want to mention house members being "gun[ned] down"...

  • Brett Bellmore||

    I'm not sure why; The occasional crime with a gun doesn't justify taking the RKBA away, any more than extortion would justify dumping the 1st amendment. All rights are subject to abuse, my comment was about WHO was abusing this one.

    The point is, the situation isn't symmetric; The left is becoming increasingly violent and unhinged, and the right... isn't. And that's conspicuous. Democrats can call for Republican office holders to be attacked in public, and not worry about getting that treatment themselves, because they understand full well that the Democratic base has hugely more violent nutcases than the Republican base.

  • Charles Epperson||

    But that will change if the Democrats do not calm down. If they keep "talking it to the streets" I see response form other citizens.

  • Rev. Arthur L. Kirkland||

    There is a reason you couldn't make it in mainstream, successful, modern American society, Brett.

  • Rip Murdock||

    Or shooting up pizza parlors looking for kidnapped children, or hold up traffic using an armored vehicle armed with a rifle and handgun.

    Oh, wait. Not Democrats.

  • Ben of Houston||

    I'm not saying that there aren't loonies on the right. However, the vast majority of violence we have seen has been from the left. The actions of Antifa are reminiscent of the KKK (being masked hoodlums that have open committed assaults on people and have yet to have any convictions).

  • Leo Marvin||

    "However, the vast majority of violence we have seen has been from the left.The actions of Antifa are reminiscent of the KKK"

    LOL. Let me know when Antifa catches up to the body count of Tim McVey. For that matter, let me know when the whole Left catches up to McVey.

  • Krayt||

    Is Kirkland arguing the Republicans should pre-enlarge the court to pre-pack it?

    I mean, if one party loudly and seriously wants to introduce a whole bunch of new seats so they can shift thinga their way...

  • Red Rocks White Privilege||

    Arthur L. Hicklib demonstrates that he doesn't understand the limits of scale.

  • Joe_dallas||

    From a Socialist's perspective, (1) the Court has already been "packed" and (2) history and current law readily establish that enlargement is a natural part of our the socialists political process.

  • Brett Bellmore||

    That's my point: From a Socialists' perspective, any process that doesn't lead to them being in control is, for that reason alone, illegitimate. They completely reject any process based conception of legitimacy in favor of an outcome based conception: Outcomes they like are legitimate no matter how they're achieved, outcomes they don't like are illegitimate, again, no matter how they were arrived at.

    It's a natural consequence of utilitarian reasoning: Not only does the end justify the means, ONLY the end can justify the means.

  • Krayt||

    Come on, man. Next thing you know, the government will be toying with crimes based on pure outcome proportions, not only severed from any need to prove discriminatory wrongdoing, but in the face of process documentation to the contrary.

  • PeteRR||

    If a future Dem POTUS defies the USSC in the manner you have described, the logical next step is a large swath of the country will proceed to defy the federal government. Their agents will do their work with no local support of LE. Their edicts will be ignored and they will be told to enforce them themselves. US Marshals who try to arrest local politicians will be arrested in turn and deported back to DC.

    If they want a civil war, they are likely to be obliged in the form of devolution and regional civil disobedience.

  • Woody Chip Hurrrrr?||

    That's my reaction too. Once either side takes off the handcuffs of obedience, the other side will start taking off more handcuffs. The feds do not want to get into an obedience war with states and cities/counties, who have far more personnel and far more local backing. I can easily imagine the local militia coming out to back up their local law enforcement. Wouldn't take much outrage to have FBI agents thrown into the local hoosegow and a bunch of deputized locals standing guard.

  • Rev. Arthur L. Kirkland||

    Wingnuts pull out militia madness because their betters are contemplating enlargement of the Court, which has occurred a number of times in American history and would be effected in precise compliance with longstanding law?

    Some of you goobers should have gotten some education.

  • PeteRR||

    Explicitly packing the court in reaction to a SC decision that is a reasonable interpretation of the USC is how you get a strong reaction by us "goobers". If you're lucky, it'll be a repeat of FDR climbing down. If you're not, devolution and civil disobedience.

  • Rev. Arthur L. Kirkland||

    I would not enlarge the Court in response to any particular Supreme Court decision.

    If some yahoos choose to switch from all talk (and bigotry) to going "the full LaVoy," be my guest.

  • Red Rocks White Privilege||

    If some yahoos choose to switch from all talk (and bigotry) to going "the full LaVoy," be my guest.

    If some hicklibs choose to switch from all talk (and bigotry) to going "the full Kent State," be my guest.

  • ScottK||

    Suggesting that "hicklibs" would emulate the actions of the Ohio National Guard tends to show that that you are perceiving (and addressing) the world from exactly the wrong end.

  • Woody Chip Hurrrrr?||

    This started with the question of what would happen if President Warren illegal refused to obey a Supreme Court decision, presumably with federal police power. If the wingnut militias are your enemy, that puts you on the side of President Warren's illegal use of federal police power.

    There's only two wingnuts in this example: President Warren and you.

  • Stephen Lathrop||

    "Tree of liberty," and all that. Do you understand whose blood Jefferson had in mind when he made that remark? Or how little the thought of shedding that blood concerned him? The whole point of it, actually, was that killing rebels while suppressing rebellions would be good for government, because the horror of it would make those doing the governing cautious about provoking rebellions. But in no way did Jefferson endorse rebellions. Still less was it a caution against forcefully putting them down. Jefferson was just saying, in his peculiar Jeffersonian way, that the whole bloodletting process would make everyone more reflective about government, and that would be good.

    I get that a right wing minority expect that if they snarl and rebel all together, they can carry the day, and win sovereignty for themselves, as a minority. It's the horrifying prospect, which Jefferson foresaw. Keep in mind the outcome Jefferson had in mind—rebels dead or scattered in defeat, and everyone else a bit chastened.

    Jefferson, like pretty much all the founders, was a believer in popular sovereignty—meaning explicitly that the majority of the people hold all political power. If you conclude right-wing insurrectionists are anything like a majority in this nation, you will likely rue the day you choose to act upon that mistaken notion.

    Now would be a great time for would-be insurrectionists to try a more reflective approach.

  • Brett Bellmore||

    "The whole point of it, actually, was that killing rebels while suppressing rebellions would be good for government, because the horror of it would make those doing the governing cautious about provoking rebellions."

    My take was that he also meant that a society that didn't have an occasional rebellion would be a society that was too subservient to be free.

    "Jefferson, like pretty much all the founders, was a believer in popular sovereignty—meaning explicitly that the majority of the people hold all political power."

    And, like the other founders, believed that the extent of political power had to be strictly limited.

  • Stephen Lathrop||

    Ah, no. The American popular sovereign, like all genuine sovereigns of whatever sort, holds all political power. As in every last bit of it. Not limited at all.

    Your mistake is to suppose the (limited) political powers the American popular sovereign delegated to government—on loan, subject to recall or modification, at the sovereign's pleasure)—made the government itself sovereign.

    A moment's reflection is all it should take to cure you of that misconception. Sovereign power is defined by the ability to constitute a government at pleasure. If a power can't do that, it isn't sovereign. Can the American government do that? Of course not, it isn't sovereign—and you don't want it to be, either. If the government were sovereign, it could rewrite the Constitution on its own, without limitation. You wouldn't like that.

    What the founders understood—and what too many modern political thinkers have forgotten—is that limited government depends on a sovereign with unlimited power—to prescribe and enforce the limits.

  • Woody Chip Hurrrrr?||

    meaning explicitly that the majority of the people hold all political power.

    Is this indicative of the first half of your argument too? Explain, please, how the limited government of the US Constitution and the Bill of Rights jibes with it.

  • Stephen Lathrop||

    Woody, I am talking about the popular sovereign. You are talking about the government. They are different entities, with different rules. It is not possible to take an originalist view of American governance without understanding that.

    America's citizens hold two roles in relation to government—they are subjects individually, but sovereigns jointly.

    As citizens, people are subjects, who always act under government authority, but with the privilege of exercising enumerated rights. Those stay the hand of government in defined cases. Those rights, taken together, limit the majoritarian power which government can exercise, as the sovereign, in its wisdom, and at its pleasure, wisely decreed.

    As joint sovereigns, the American People (note the uppercase, to help distinguish which role is under discussion) hold all political power, without limitation, which they exercise at pleasure. Roughly speaking, that exercise will be regarded as legitimate while a majority of the people approve, and make the sovereign's objectives their own, and illegitimate otherwise.

    Have I answered your question?

  • PoxOnBothYourHouses||

    PeteRR: "If a future Dem POTUS defies the USSC in the manner ...."

    I had half expected the current GOP POTUS to do something like that in 2017, with the Muslin ban fiasco. It's an action that could reasonably trigger impeachment, since otherwise the President would have gained dictatorial powers, which neither party could tolerate.

    However, attempts at Court packing are much more realistic. Indeed, that's the next logical step in a four decade process of accelerating partisanship over the courts. Let me summarize.

    (1) In the 1980s the Democratic-controlled Senate began holding up judicial appointments by both Reagan and Bush I. Ultimately this led to 10 seats that Bush had tried to fill being left open until Clinton entered office, and they were filled by Clinton nominees.

    (2) Republicans then held up 24 nominees for 20 positions by Clinton, Clinton ultimately filled four and 14 were filled by Bush II.

    (3) Early in the Bush presidency, a liberal scholar argued that parliamentary procedures (i.e., filibuster) should be used to keep Bush from appointing any SCOTUS justices. When the Democrats controlled the Senate they bottled up many Bush nominees in committee. When the Republicans retook the Senate, the Democrats did begin filibustering appeals court nominees -- 10 in all.

    (continued)

  • PoxOnBothYourHouses||

    (continued)

    (4) This was when the threat was first made to use the "nuclear option." It was avoided by the agreement of the bipartisan "gang of 14" to limit filibusters and vote against any effort to kill the filibuster. Nevertheless, Miguel Estrada had been successfully filibustered, and there was an attempt to filibuster Samuel Alito's nomination.

    (5) During the Obama presidency, when the Republicans held the Senate they bottled a number of judicial nominations in committee. When the Democrats regained the Senate, Republicans began using the filibuster to block judicial appointments. At this point Senate Democrats, led by Harry Reid, actually did employ the nuclear option for all appointments except for SCOTUS nominees.

    (6) After Republicans regained the Senate, the sudden death of Antonin Scalia gave President Obama an opportunity to replace a conservative justice with a moderately liberal one, Merrick Garland. The Republican Senate, led by Mitch McConnell, held up Garland's nomination until Obama left office. [and yes, it was an odious deed]

    (7) During the 2016 election, when it was expected that Hillary Clinton would win the presidency and the Democrats would regain the Senate, Harry Reid stated that if the Republicans tried to filibuster Clinton's SCOTUS the Democrats would use the nuclear option for such appointments. But ...

    (continued)

  • PoxOnBothYourHouses||

    (continued)

    (8) Donald Trump won the election and nominated Neil Gorsuch. The Democrats filibustered the nomination and the Republicans -- pretty predictably -- voted away the filibuster for SCOTUS nominees.

    (9) That takes us to the Kavanaugh nomination, which leaders of the Democratic minority immediately and loudly proclaimed they would fight by any means necessary, though Kavanaugh was pretty widely respected. And they did, by any means necessary, but lost.It's pretty obvious that I don't approve of the Senate Democrats actions, but their logical basis in this trek toward fissure is impeccable. [For the record, I thought Kavanaugh's performance after Ford's testimony was a self-destructive exercise in bridge burning that left him too tarnished to sit on the court. But nobody asked me.]

    (10) So what is to stop the next logical step? Each party must play to its base. No one can -- or for the most part -- wants to find a way to rein in the process. Why /not/ court packing? It's at least Constitutional, unlike the suggested ignoring of judicial rulings. At each stage, the party in question did not /have/ to up the ante, but it /did/ so. Only once, with the "gang of 14" agreement, was there a clear attempt to dial back the hyper-partisanship, and that seems like ancient history. The air is so thick with hostility now that I find it hard to believe that step won't come as soon as the Senate and Presidency jointly change hands.

  • Brett Bellmore||

    " It was avoided by the agreement of the bipartisan "gang of 14" to limit filibusters and vote against any effort to kill the filibuster."

    The agreement was, basically, that Bush would renominate some of Clinton's failed nominees, in return for his getting a pass.

    The agreement was violated, the Democrats took their winnings and continued to block Bush's nominees. So that's not happening again.

  • Eric VonSalzen||

    The Left argues that the Supreme Court is legitimate when it supports Left positions, like Gay marriage and abortion, but it's illegitimate when it supports Right positions, like the right to bear arms. Why should we treat such hypocrisy seriously?

  • C. S. P. Schofield||

    We should treat such hypocrisy seriously because it is seriously meant. The Left has been burning assets, with little return, since the 2016 election. F0r that matter, they burned a great many getting Obama elected twice, and pushing through Obamacare. They are becoming increasingly desperate, as it becomes clear that one of the major effects of their two years' tantrum is a growing impatience on the part of previously undecided voters.

    We'll see how that plays out on National Send In The Clowns Day, Nov. 6.

    As for the issue of 'Partisan Hatred', that comes most from the Left. It is the Left that is screaming at people in restaurants, shooting at opposing politicians, manufacturing fake 'hate crime', and generally acting like a two year old with ants in her shorts. Sure, the Right is disdainful. But there is little or no symmetry.

  • Martinned||

    As above: who is shooting at politicians???

  • Brett Bellmore||

    Democrats. Why, don't you read the news?

    OK, I will give you this: Hodgkinson was thrust down the memory hole in record time, so maybe you have forgotten.

  • Rip Murdock||

    And pizza parlors, looking for kidnapped children in a non-existent basement, or blocking traffic in an armored vehicle, waving a rifle, Hoover dam.

    Oh, wait. Not Democrats. Trump supporters.

  • mad_kalak||

    If the Supreme Court can still be a respected institution after the Warren Court, then there isn't much to worry about, if history is a guide.

    The best thing the Supreme Court can do now to maintain its legitimacy, is to stop playing "republican schoolmaster" (lecturing the rest of the country like philosopher kings) and stick to solving tricky issues without much political salience. They really should be doing some some "division of labor work" for the dominant ruling Republican coalition and picking off low hanging fruits that the elected branches can't take the time to deal with, or spare the political capital on.

    The way that they will most risk legitimacy, in my opinion, is like Scalia and Thomas and Gorsuch wanted, grant cert and have a decision that gives Second Amendment protections to "assault weapons" or "high capacity" magazines and which undoes a bunch of stupid gun laws. Note, what might be good for the Court's legitimacy, might not be good for our individual rights and national comity.

  • KHP54||

    Your last paragraph leaves me scratching my head. Could you spell it out more clearly what part you think would be bad, and particularly *why*?

  • mad_kalak||

    Grrr, my detailed and thoughtful comment was lost in the ether of Reason's comment system. In short, though, a 2nd Amendment decision that rules a large swath of state gun laws unconstitutional would be seen as highly partisan, and would lead to widespread non-compliance from state and local governments, and furthermore, lower courts would be reluctant to intervene as they have (mostly) been weak on the 2nd Amendment. Even with a strong pro-gun majority in the federal government, there will be little the federal government can/will do when it comes to enforcing the SCOTUS ruling. Governor Cuomo will stand at the statehouse door and say "assault weapons bans today, assault weapons bans tomorrow, and assault weapons bans forever." That will lead to a crisis of legitimacy.

  • Bubba Jones||

    But that already happens. The second amendment foundation makes a living prosecuting these cases.

    Even NY would have a district court willing to follow precedent.

  • Stephen Lathrop||

    Bubba, I suggest your comment misses the import of a court legitimacy crisis. The point is that in a legitimacy crisis, the question of the court system's authority escapes judicial channels, and gets fought out by other means—certainly including political means, but possibly including even tests of sovereign power.

    That is a big deal, and a very good reason not to attempt in the first place any actions which any reasonable person might anticipate would put legitimacy in question. McConnell on Garland, followed by Kavanaugh rammed through, are two such things which should never have been tried. So now the fat is in the fire, and there is no point anymore in arguing about whether the many people who now question SCOTUS legitimacy do so with justification. The only question is how to get out of the crisis.

    Hopefully, Roberts will get that. Perhaps he can find some way for SCOTUS itself to take an active and constructive role, before things spin further out of control. Neither Republicans, nor Democrats, nor Trump, look now like they have any clue what to do, nor even what the risks are. One might hope election results will chasten Republicans, and help them back down—but it's pretty hard to imagine a chastened Mitch McConnell, don't you think?

  • Brett Bellmore||

    "That is a big deal, and a very good reason not to attempt in the first place any actions which any reasonable person might anticipate would put legitimacy in question. "

    No, a thousand times no. If the only way we can get Democrats to admit the Court is legitimate is to give them all the wins, we might as well not have a system of laws, we might as well not have elections. Just stop pretending to be a democratic constitutional republic, and put the Democratic party in charge of everything. Because that's what they're demanding: They win, or a temper tantrum.

    I'd rather the Court rule on proper legal grounds, and if the Democrats won't accept that, let's have it out. Bring it, and see if they've got more than temper tantrums.

    Because I don't want to end up in a Democratic party oligarchy just because we were too chicken to call their bluff.

  • Brett Bellmore||

    All you're saying here is that decisions that don't go the Democrats' way will be seen as illegitimate, regardless of how well grounded they are in the text of the Constitution.

    Which is true, but that's utterly inadequate reason to just throw up our hands, and give the Democrats everything they want in return for them admitting that getting everything they want is "legitimate".

    We tried that with the 14th amendment, and it was ugly for several generations. I see no reason to try it again.

  • mad_kalak||

    No, Stephen Lathrop has what I am saying correctly. That Court decision that are unpopular with a large swath of the county (like a decision that undoes many gun laws) that would be promptly ignored and would require implementation to not be voluntary but come through the political branches, would be a wound to the Court's legitimacy.

    While I really, really, want the a series of strongly worded 2nd Amendment decision that rules high capacity magazine bans and assault weapons bans and one gun a month laws and safe storage laws and gives us nationwide concealed carry....I distinctly know that it will lead to a legitimacy problem with the Court. Would it be a crisis? Maybe, maybe not. But it would be as bad as the "impeach Earl Warren" movement.

  • Brett Bellmore||

    It would be a crisis worth having, if the alternative is that explicitly protected rights in the Constitution aren't worth the parchment they're written on.

  • Brett Bellmore||

    No, there's no road to the Court retaining a widespread perception of legitimacy, because what the two ends of the political spectrum regard as legitimate are mutually exclusive. The left won't admit anything but a rubber stamp for their agenda is legit, and the right won't admit THAT is legit.

  • KHP54||

    *What* legitimacy? After Raich, I figured there was nothing left to lose.

  • KHP54||

    Oh for more justices to follow the example of Thomas.

  • Bubba Jones||

    He is wrong about privacy. The 4th and 5th amendment imply that my private business is protected from the government. And the 10th precludes the argument that if it isn't expressly in the text then it doesn't exist.

  • kramartini||

    How exactly would President Warren "enforce" this hypothetical law? Even if the President refused to recognize the authority of the Supreme Court, lower court judges would not necessarily follow her. They would be highly likely to follow precedent.

    Any cases brought against citizens under the statute would presumably be dismissed by the courts and any Federal officers that continued to restrain citizens pursuant to an unconstitutional statute would face liability under Bivens...

  • JeremyR||

    Democrats make up most of the government bureaucrats and even police (which is completely unionized). It would be very easy for them to enforce

  • y81||

    The police may be unionized, but that doesn't make them Republican. Remember how, in the era of good feelings immediately following 9/11, Hillary Clinton was publicly booed by the police and firemen?

  • Ben of Houston||

    Look at your $20 bill and quote me the most famous quote of that Man. Jackson used the army.

  • Longtobefree||

    The court has survived Warren.
    The court has survived Ruth Bader Ginsburg.
    The court has survived Elena Kagan.
    The court has survived Sonia Sotomayor.
    The court will survive Brett Kavanaugh.

    Now, the Democratic party - - - - - -

  • DjDiverDan||

    Why the danger may be overblown? Simple. Consider the source. Every single source warning of the "delegitimizing" of the Supreme Court. If the Supreme Court begins to restore a judiciary that honors and follows the Constitution, the text of statutes, and the rule of law, maybe, just MAYBE, some of the extensive damage to the legitimacy of the Supreme Court, and the judiciary in general, by the looney left which is now bemoaning the fact that it won't be able to use the judiciary as just another tool of raw political power, can be repaired.

  • Rev. Arthur L. Kirkland||

    I'm thinking Barack Obama for the 10th justice, and I have an open mind for the 11th. Any suggestions, Dan?

  • DjDiverDan||

    It's too bad that neither Howdy Doody nor Mortimer Snerd ever went to law school, because a marionette on strings would be the perfect nominee for a Democrat President.

  • Rev. Arthur L. Kirkland||

    Get an education, Dan. Start with standard English.

  • OpenBordersLiberal-tarian||

    The Supreme Court is indeed illegitimate as long as Kavanaugh and Gorsuch are members. Kavanaugh's illegitimacy should be obvious to all serious libertarians. But don't forget Gorsuch was also put there by Drumpf — an illegitimate President who lost the election by 3 million votes and was pushed across the finish line by Russian hacking and the Comey letter.

    Fortunately there is a simple way to restore the Court to its former prestige: vote Democrat. Cory Booker, for instance, has raised the possibility of removing Kavanaugh when the Democrats are back in control of Congress. And when we have a Democrat back in the White House, we'll get at least one, and hopefully several justices similar to RBG.

  • DjDiverDan||

    I think there's something wring with my software. Your name shows up as "OpenBordersLiberal-tarian", but from your comment I'm pretty sure that it should be "EmptyBrainpanLooney-tarian". I need to get that fixed.

  • OpenBordersLiberal-tarian||

    Name calling is very immature.

  • JesseAz||

    OBL is the clever parody of the idiot Arthur Kirkland. He's found in non volokh threads often.

  • Rev. Arthur L. Kirkland||

    I'm an idiot.

    You're a bigot.

    Which is worse, Jesse?

  • Smooth Like a Rhapsody||

    1. How is Kavanaugh "illegitimate "?
    2. Our presidential elections have NEVER been decided based on popular vote.
    Stop with the butthurt and start winning the votes of midwestern women.

  • MonitorsMost||

    He explained why he thought Gorsuch and Kavanaugh were illegitimate; because they were nominated by Trump. The real question is why that illegitimacy should be "obvious to all serious libertarians" when the libertarian philosophy doesn't really speak in any direction on senate procedures.

  • Krayt||

    And even if one wants to get into Kavanaugh's likely vote patterns, libertarians are usually faced with an ugly choice either way. Either go with many personal rights like Roe and free speech, or go with economic freedoms (which have massive benefits).

    This is why free speech codes and looking the other way when harassing people...certain kinds of harassment...is troubling as usually "that side" is against it. They are not going the correct direction currently.

  • OpenBordersLiberal-tarian||

    Kavanaugh is illegitimate for the same reason Gorsuch is (nominated by an illegitimate President), plus several more reasons: credible accusations of sexual assault, baseball ticket debt, white power hand gestures, Kennedy's suspiciously timed retirement.

    Drumpf's Electoral College victory was the result of a hostile foreign power hacking the election. Robert Mueller is still putting the finishing touches on his investigation, but next year he'll submit his final report which will definitively prove Russian collusion.

    As for winning elections? Just wait until next month when Democrats win both houses of Congress.

  • Bubba Jones||

    Baseball tickets debt!

    Perfect

  • Brett Bellmore||

    "Robert Mueller is still putting the finishing touches on his investigation, but next year he'll submit his final report which will definitively prove Russian collusion."

    I suspect not, because he's started leaking like a sieve the last few weeks, and if he had anything, he wouldn't be doing that.

    Like the Democrats with their rape smear, it's a fallback tactic.

  • JesseAz||

    OBL is a parody account. He's just so good at mimicking the idiotic arguments of the left that he seems real.

  • Woody Chip Hurrrrr?||

    Looks like he's found excellent new fishing grounds. I look forward to Volokh commentator awakenings.

  • mad_kalak||

    Don't take the bait, he's an idiot that trolls mostly non-VC articles on Reason.

  • OpenBordersLiberal-tarian||

    I'm neither an "idiot" nor a "troll" nor a "he." My pronouns are they / them.

  • Smooth Like a Rhapsody||

    Don't you mean, "our pronouns"??
    Also: can you come up with a snappy catchphrase, like, "FRAUD!!"?

  • DjDiverDan||

    "I'm neither an 'idiot' nor a 'troll'."

    Sorry, OBL, but the evidence you have left on this thread pretty convincingly demonstrates otherwise.

  • Brett Bellmore||

    I don't think he's an idiot, but denying being a troll is just part of his troll persona, can't fault him for that.

  • Krayt||

    A real troll neither confirms nor denies. It's unseemly and not part of the game.

  • Bubba Jones||

    He might be the smartest commenter on Reason.

  • Bubba Jones||

    I guess the Dems should have thought about this before they killed the filibuster of judicial nominations.

    Fuck them. Disingenuous assholes. I wouldn't piss on them if they were on fire.

    WHY COULDN'T TRUMP NOMINATE SOMEONE NONCONTROVERSIAL LIKE GORSUCH?

    Seriously. Fuck them with a rusty coat hanger.

  • Rev. Arthur L. Kirkland||

    Boy, are you going to be disturbed when the liberal-libertarian alliance that has crafted all of the progress you have hated for your entire life enlarge the Supreme Court.

    Prepare yourselves, clingers. Maybe write some strongly worded letters, or prepare a call to Hannity, or do some freelance voter suppression work, or something to make yourselves feel better.

  • Rev. Arthur L. Kirkland||

    Did I miss this white, male, movement conservative's blog's use of the term "court-packing" when the Arizona Supreme Court was enlarged a couple of years ago?

    Did I miss this improbably male, lily white Republican blog's objection to the enlargement of the Arizona Supreme Court in 2016?

    Did this strikingly male, old-timey white right-wing blog mention the recent enlargement of the Arizona Supreme Court?

    I hope Democrats show just as much respect for (and deference to) raw power as Republicans have exhibited during recent Supreme Court-related events.

    I advise Republicans to win elections if they wish to maintain the sketchily arranged, precarious Supreme Court majority.

    That, or perfect a machine that mass-produces cranky, gullible, superstitious, poorly educated, rural, southern, easily frightened, broadly intolerant, old and old-timey white males. And get the Republican Party to figure how to register the newly hatched goobers to vote.

  • jdgalt1||

    It seems to me that the Court, or at least many of its major decisions, have been illegitimate ever since FDR's threat to pack the court successfully caused the "switch in time that saved nine" (in a case that upheld the NLRA and struck down the individual right to refuse political contributions to a union, which was only recently partly overturned) and other bad precedents which still stand, but expecially Wickard v. Filburn.

    The immediate threat of court-packing by the method FDR threatened to use (enlarging the court) can only be, and ought to be, eliminated by amending the Constitution to fix the size of the Court at nine seats. But as Ilya points out here, the court could also be "packed" by impeaching and removing justices on bogus grounds. Ultimately that can't be made impossible, though if it starts happening we might look at increasing the fraction of the Senate required to convict a justice (which would also require a constitutional amendment).

    As far as the threat of a President simply defying the Court, this is a whole 'nother problem, caused by the "separation of powers" doctrine, and has already unjustly happened multiple times, in particular by Andrew Jackson when the Indian Removal Act was overturned but enforced anyway. I doubt that either most of the Conspiracy or most of the US population would support what I believe to be the only possible cure -- a constitutional amendment giving the Court the power to remove a President who disobeys its orders.

  • BadLib||

    Perhaps in addition to amending the Constitution to fix the court at nine Justices, add a clause that states that any seat on the court vacated by impeachment will be temporarily filled by a Federal judge from the lower courts selected by the President with the Advice and Consent of the Senate who will occupy the seat for five years. This insures the seat is permanently filled by a President which has won the Presidency in an election cycle where the voting public knows that they will get to fill that seat.

    The temporary Justice retains her lifetime appointment, just goes back to the court she was "borrowed" from.

  • Brett Bellmore||

    Not a bad idea. I would just note that replacing the default "he" with a default "she" as the gender unspecific pronoun doesn't actually fix the problem of English lacking a gender free pronoun. It just replaces a mildly patriarchal state with a mildly matriarchal one.

    Feminism quite some time ago shifted from ending patriarchy to imposing matriarchy.

    That said, again, good idea.

  • MatthewSlyfield||

    "the problem of English lacking a gender free pronoun"

    But English does have a gender free pronoun: it.

  • Rev. Arthur L. Kirkland||

    In 2022, President Elizabeth Warren, backed by a Democratic-controlled Congress, passes far-reaching campaign finance reform legislation that progressives consider to be an important part of their agenda of curbing the inordinate political power of the wealthy. A 5-4 Supreme Court decision . . .

    Unless two justices declined to participate consequent to recusal, this is a trick question. A Democratic president and Democratic Congress would mean an 11-justice Supreme Court.

  • kramartini||

    So I suppose that, if Trump replaces RBG, then there would be a 13 member court?

  • Rev. Arthur L. Kirkland||

    The mathematics are strong with this one.

  • Red Rocks White Privilege||

    Arthur L. Hicklib still can't add 2+2.

  • Smooth Like a Rhapsody||

    He can add; he is just saying that the libs should stack the court to whatever extent necessary to accomplish his goals.

  • Bubba Jones||

    I am beginning to like you.

  • Brett Bellmore||

    "A Democratic president and Democratic Congress would mean an 11-justice Supreme Court."

    Actually, last time I looked, the proposal was to go straight to 13 or 15, on the theory that the existing liberal justices weren't viewed as all that reliable, and to truly turn the Court into a rubber stamp some safety margin was required.

  • Rev. Arthur L. Kirkland||

    I endorse the Eastwood-Berle approach: Just enough to win.

  • Leo Marvin||

    I'm familiar with the Berle joke. How does it apply to Eastwood?

  • Smooth Like a Rhapsody||

    SCOTUS can work with 11 justices without a loss of legitimacy if the legislation adding justices provides that a presidential election intervenes between passage and enforcement.

  • Rev. Arthur L. Kirkland||

    Thank you for your advice, which will be ignored.

  • Smooth Like a Rhapsody||

    You're really a bitter man, aren't you?

  • David Welker||

    Bitter or not, he does have a point. When we elect a Congress, we do know that they have the ability to pass ordinary laws. Adjusting the size of the court is an ordinary law, not a constitutional amendment.

    Again, you just want to stack the procedures in your favor. Kind of like McConnell did when he decided to not hold hearing for Garland or eliminated the filibuster for Supreme Court appointments to pave the way for Gorsuch. Or like Republicans do (and Democrats would do as soon as they were given an opportunity) when they ruthlessly gerrymander in order maximize the amount of power they can exercise with a minimum of democratic support.

    You want to make it new stacked procedures in order to protect these past stacked procedures.

    I don't see why anyone should be persuaded by that. Congress has the powers that Congress has already. And the time to act is after winning an election, not waiting.

  • Smooth Like a Rhapsody||

    So after the Republicans gain seats in the Senate next year, your advice to them would be to add 4 seats to SCOTUS?

  • Rev. Arthur L. Kirkland||

    First, a majority vote in the House also would be needed.

    Second, 'any number you can choose, we can choose better.'

    Other than that, though, great comment.

  • MatthewSlyfield||

    Except at least right now, the right probably controls enough state legislatures to fix the size of the court by constitutional amendment. If your strategy is to enlarge the court to pack it, it would probably be best to keep that quiet for now.

  • Red Rocks White Privilege||

    Again, you just want to stack the procedures in your favor.

    Don't pretend that you don't want to do otherwise. At least Arthur L. Hicklib is honest about his Jacobinsm.

  • AmosArch||

    The Senate is supposed to be an obstacle and not a rubber stamp to Presidential SC appointments. Packing the court on the other hand will destroy it as an independent distinct body and is a clear end run around separation and balance of powers. I'm amazed that so many people who claim to study and love law have a hard time understanding that. Having said that I would love for the Dems to attempt it. If the Republic falls I want their name etched on it for all the history books forever.

  • Rev. Arthur L. Kirkland||

    How many times has the United States Supreme Court been enlarged, you half-educated rube?

  • Rev. Arthur L. Kirkland||

    You're really a bitter man, aren't you?

    Bitter?

    At the personal level, I have built a successful life (from paltry beginnings) on reason, education, the kindness of others, good fortune, good government, and effort.

    At the broader level, my preferences have prevailed in America throughout my lifetime, despite the efforts and wishes of conservatives, and I expect my preferences to continue to shape America's course of progress.

    I live in a modern, successful community in a great liberal-libertarian country and have a wonderful family. I expect the Stones to tour again soon and I can see Bruce Springsteen perform just about any time I wish. Life is good.

  • David Welker||

    Testing. Comments do not seem to be going through...

  • David Welker||

    Well, this one went through. Good. And also strange that the others did not. Oh well.

  • A nerdy Fred||

    "... over the last century, a strong norm of obedience to judicial decisions has taken hold. Even a president as contemptuous of norms as Donald Trump has - so far - stopped short of openly challenging this one."

    I argue that the Arpaio pardon was an open challenge. Trump prevented a court from enforcing obedience to its orders.

  • Red Rocks White Privilege||

    Please. If pardons are an open challenge, then every President prior to Trump was doing the same thing.

  • Iation||

    One type of court-packing is highly desirable. We need more defense attorneys to be nominated as judges. Too many prosecutors get appointed as judges, distorting the desired neutrality of courts.

  • Smooth Like a Rhapsody||

    Hell, I'd settle for someone who has spent most of her life in trial courts, rather than on the bench.

  • Iation||

    Or his life (inclusive sense), or his/her life, or their life (singular inclusive).

    Your politically correct language detracts from the point.

  • Stephen Lathrop||

    Remarkable that neither Somin, nor any commenters, have mentioned this, from Article III, Section 2:

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    That clause was invoked successfully against Supreme Court jurisdiction during Reconstruction—Ex parte McArdle. The result was a bit ambiguous because of a complicating factor, but the decision language was in clear support of the constitutional text.

    You could also note historical citations in favor of congressional supremacy from the same era. For example, Thaddeus Stevens:

    In this country the whole sovereignty rests with the people, and is exercised
    through their Representatives in Congress assembled. The legislative power is
    the sole guardian of that sovereignty. No other branch of the Government, no
    other Department, no other officer of the Government, possesses one single
    particle of the sovereignty of the people. No any one official, from the
    President and Chief Justice down, can do any one act which is not prescribed
    and directed by the legislative power.

    I suggest those citations indicate another likely route toward questioning SCOTUS legitimacy.

  • Stephen Lathrop||

    Somin frames his article in terms of a prospective crisis of legitimacy. But the crisis is already here. Absent proactive policies from the Court itself, attempts at political interference with Court jurisdiction, or some kind of court packing, will inevitably test the long-relied-upon consensus regarding the Court's power.

    Chief Justice Roberts may have an historic role to play, if he can figure some way to manage out of the crisis. A first step, which Roberts could surely accomplish, would be to join with the minority to postpone indefinitely all cases which touch directly on the political process. The otherwise-inevitable Republican-favoring decisions on cases dealing with gerrymandering, voter ID, purging voter rolls, election outcomes issues, political funding, etc., will become flash points for political explosions, which Democrats will detonate when they get power to do it. Cases of that sort ought to be avoided for the foreseeable future. The minority, plus Roberts, could, as a practical matter, keep cases of that sort off the docket. They should do it.

  • Brett Bellmore||

    Again with this. Preemptive surrender is no way to avoid a fight, if anything at all important is at stake. you're just counseling that Republicans should buy the Democrats' agreement by letting them win all the fights.

    I'd rather just have that civil war.

  • Stephen Lathrop||

    Brett, do you really counsel that the Supreme Court ought to be a venue for political fights, and insist that it is worth actual civil war—killing people—to vindicate that as a principle?

  • mad_kalak||

    Stephen, while you are correct that if the Court sticks to non polarizing cases, I dunno, like contract law disputes, then this will fade as an issue. But don't doubt that if the situation were reversed, and there was a new solid 5-4 liberal majority on the Court, that they would be full speed ahead. What Brett is pointing out is, essentially, why the Right often loses the culture war...we play nice while the other side doesn't, Trump being the first exception in living memory.

  • Rev. Arthur L. Kirkland||

    What Brett is pointing out is, essentially, why the Right often loses the culture war...we play nice while the other side doesn't, Trump being the first exception in living memory.

    The rights loses cultural battles because it prefers insularity, white privilege, gay-bashing, superstition, ignorance, and the like to reason, education, tolerance, science, and modernity.

  • Michael Ejercito||

    White privilege?

    because the color of bandages is such a privilege!

  • Stephen Lathrop||

    mad_kalak, I don't think the Court would even have to stick to non-polarizing issues. I suggest the Court might even get away with limiting Roe on a state-by-state basis. Which would be plenty politically polarizing—but which would not go to political process questions.

    Where I fear the crisis is if the Court continues to meddle in the political process itself. That it could not do now, without seeming (from a left point of view) to armor-plate the political process against the political left's ability to participate as equals in politics.

    You have mentioned your interest in gun issues. I suggest that the widespread tendency on the right toward insurrectionist threats—and insurrectionist organization—will either have to be dialed way back, or else all gun regulation questions risk being swept toward the legitimacy-crisis bin. Maybe you already sense that yourself. It strikes me as the most dangerous legitimacy flash-point of all.

    Armed insurrectionism is interpreted on the left as threat of minority political control by force. It doesn't get more provocative than that. On that basis, gun policy questions could join some others as too explosive for present Court consideration. My advice to pro-gun types—don't take guns to political meetings—not even your own, but especially not when the urge strikes you to supply "protection" to demonstrating leftists.

  • Brett Bellmore||

    "Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!"

    Democrats demand that they rule, as the price of their admitting government is legitimate. That by itself is enough to prove that they're unfit to rule.

    What you call making the Court a venue for political fights, is just vindicating rights explicitly guaranteed by the Constitution, that the left happens to be opposed to. If every right they despise must fall as the price of their admitting the Court is legitimate, in the end no rights will be left. Better to tell them to go to Hell, and offer to send them.

  • mad_kalak||

    Our Second Amendment right is not explicit in the Constitution, else we would not have had to fight so hard to retain it. That should be obvious on its face.

    Yes, yes, you make a good moral case for pressing ahead, but I don't think you truly understand the depths to which the Left will sink when they realize that they were *this close* to fundamental transformation of this county and then it all slipped away, in which case you will be doing more harm to the Republic than good.

  • Brett Bellmore||

    What's obvious on its face is that I can open my pocket edition of the Constitution, and point to the 2nd amendment. That's what "explicit" means.

    No language is so clear as to be 'controversial' in a trivial sense, as long as the people who don't like it have no shame. The 2nd amendment is clear enough to people who aren't determined to rationalize it away.

    I do understand the depths they'll sink to, and those depths are precisely why no price is too high to keep them from winning.

  • mad_kalak||

    You're being disingenuous, it wasn't long after the 2nd Amendment was adopted that Southern states enacted (sometimes) strict gun control...and not to control blacks, but to control white honor culture violence. Again, if it was obvious on it's face, then it wouldn't have taken the modern gun rights movement, which started late 1960s, roughly 40 years to get Heller.

    And regardless of how you or I feel about it, rights advocates are going to continue to press their case, and the Court will grant cert on enough of them, that you'll get your wish. In fact, the process might accelerate. Liberal activists rolled the dice with Kennedy and went to the courts when they couldn't get their way in the legislature. When the right decided "if you can't beat 'em, join em" and started their own legal activism modeled after the NAACP, they do the same. With a solid 5-4 conservative majority on SCOTUS, liberals will not be so keen on going to the courts, but the right will.

  • Brett Bellmore||

    "it wasn't long after the 2nd Amendment was adopted that Southern states enacted (sometimes) strict gun control...and not to control blacks, but to control white honor culture violence."

    This was prior to the 2nd amendment being incorporated against the states by the 14th amendment, so it's basically irrelevant as evidence of its meaning.

  • mad_kalak||

    Not when State Supreme Court cases at the time ruled some of those gun control laws unconstitutional using the Second Amendment as the reason why. There is one from Texas, but the one from Georgia I recall more clearly, see Nunn v Georgia

    https://en.wikipedia.org/wiki/Nunn_v._Georgia

  • mad_kalak||

    And while you may think that is evidence that I am arguing against myself, you had other cases upholding the concealed carry laws, like State v. Mitchell (in Indiana). This is evidence that there was no "explicit" understanding of what the Second Amendment protected.

    While the weight of the evidence the Second Amendment protects an individual right, it is not, and never has been, "explicit". Because if it was, nobody would have passed those laws, and no court cases would have been needed to undo, or hold them up.

  • Ridgeway||

    The ink wasn't even dry on the First Amendment when The Alien & Sedition Act was adopted. "This law is obviously unconstitutional" has unfortunately never been much of a hurdle to determined lawmakers. Just ask Jerry "More Broads on Boards" Brown.

  • mad_kalak||

    That is a different argument though. I'm not saying the those who passed gun bans in the early to mid 19th Century thought the laws were unconstitutional and did it anyway, I'm saying that what the 2nd Amendment protects wasn't "explicit" so they passed the gun laws.

    Brett is saying that 2nd Amendment protections were "explicit," but the text with the militia prefatory clause means its not, because if it was explicit, then it wouldn't take a stack of research the size of a mountain to show the history behind the amendment *was* to protect an individual right. If the amendment said, "A citizen's right to keep and carry about with them military-grade personal arms shall not be infringed" then you might have a case that they knew what it was to protect and ignored it anyway.

  • Stephen Lathrop||

    . . . then it wouldn't take a stack of research the size of a mountain to show the history behind the amendment *was* to protect an individual right.

    Take another look at Heller, with this question in mind: leaving aside the question whether founding-era society was generally favorable to the notion of armed self-defense, where is any specific historical citation to show it was the intent of the founders to protect armed self-defense using the U.S. Constitution?

    So far, despite the historical efforts you mention, no one has turned up anything specific to support what Heller concluded—that there is historical basis to show the founders included armed self-defense in the U.S. Constitution. That is why no such citation appears in Heller. More detailed analysis suggests the armed self-defense question is one the founders would typically choose to avoid.

    Balanced one way, the self-defense question would raise provocative implications for slave owners. Balanced another way, it would offend northerners. The founders again and again encountered issues on which various states diverged insistently, and again and again they put those questions aside; to avoid burdening ratification, they typically left such disputed questions to individual states.

    The militia question, however, was one which worked for everyone. Historically speaking, only the militia question is directly attested in the record regarding arms and the U.S. Constitution. It is extremely well documented.

  • Rev. Arthur L. Kirkland||

    The otherwise-inevitable Republican-favoring decisions on cases dealing with gerrymandering, voter ID, purging voter rolls, election outcomes issues, political funding, etc., will become flash points for political explosions, which Democrats will detonate when they get power to do it.

    I would wager on this.

    Of course, I love demographic projections.

  • Bob from Ohio||

    This "crisis of legitimacy" is just lib gaslighting.

    Let's do what we want and let the chips fall where they may.

    Anything the Dems do can be undone or retaliated against later. Pack away.

    But first, win some elections.

  • Smooth Like a Rhapsody||

    People keep using "gaslighting" as if it means: "trying to make other people think you yourself are crazy"; it means the opposite: "trying to make someone else believe that HE is crazy".
    The libs are not telling their enemies that they are crazy, they are making crazy threats, and telling their enemies that they, the enemies, are evil and/or stupid.
    (See e.g., every single comment by RAK)

  • Rich Rostrom||

    "Anything the Dems do can be undone..."

    Venezuela shows otherwise. The chavista regime allowed the opposition to operate openly and even win state elections. But... the chavistas packed the Supreme Court (TSJ) and systematically loaded the election system in unobvious ways.

    The opposition was free to campaign, and votes were mostly counted honestly. But the system was skewed to make it almost impossible to win the Presidency. The regime exploited every form of state power to harass and cripple the opposition, and to build up blocs of voters that were effectively controlled. Over time, the opposition became exhausted. Many of its leaders were subjected to legal persecution, even to arrest and imprisonment. It became impossible for the opposition to represent the widespread discontent.

    The regime also used the TSJ to bypass the opposition as needed - ruling by decree after the opposition won control of the National Assembly. Finally, the regime formed a "Constituent Assembly", elected through a byzantine procedure administered by them, which was declared to supersede the National Assembly.

    Today, the opposition is almost completely impotent. It could happen here.

    The courts are key in this. One trick of the Left is when an inconvenient law is enacted by referendum, or by the legislature, is for someone to file suit against it, in front of a sympathetic judge, while the lawyers representing the government don't defend it. That's what happened with Prop 8 in California.

  • Phinius||

    Nothing new in these threats. The Progressives have never wanted to be constrained by the Constitution. Woodrow Wilson argued that the separation of powers established by the Constitution prevented truly democratic government. In order to render government more accountable to public opinion, Wilson held that the business of politics—namely, elections—should be separated from the administration of government, which would be overseen by nonpartisan, and therefore neutral, experts. The president, as the only nationally elected public official, best embodies the will of the people, resulting in a legislative mandate.

  • Eddy||

    It's more of a crisis when the Supreme Court is considered so super-legitimate that its word is literally taken as law.

    Sure they can decide who wins or loses lawsuits, with the U. S. Marshals available in case anyone wants to resist a decision, but for their expositions of the law to be taken as true requires that they come up with good arguments.

  • DWB||

    Leftist cheat?

    Well knock me over with a feather.

    The court is nothing more than a super-legislature forcing "wins" where it never could by the legitimate ballot box -- it lost credibility years ago.

  • Stephen Lathrop||

    Still nonplussed that nobody is responding to the citation from Article III, Section 2, which says that Congress has constitutional power in many instances to control the SCOTUS docket. That shows, among other things, that the nation could confront a situation where the Supreme Court overruled a legitimate, properly passed law, and that it was the Court which was acting unconstitutionally by doing it. Seems like that would be worth some comment.

  • Rich Rostrom||

    The Chavista regime in Venezuela packed the courts there, turning the Supreme Court into a complete rubberstamp. (According to Caracas Chronicles, the Court found for the government in over 45,000 consecutive cases.) The regime used the Court to legitimize Presidential rule by decree, and to void the authority of the National Assembly after the opposition gained control.

    Venezuela is now in a state of collapse. The government is bankrupt. Criminal gangs run wild. The national infrastructure (electricity and water supplies, roads, trains, airports) is breaking down everywhere. Medical care is almost non-existent (the handful of doctors and nurses who have remained in the country without pay do what they can without supplies or equipment). Food is disappearing. The oil industry is breaking down. The national currency is worthless. Millions of people have fled the country.

    But to much of the American Left, Venezuela remains a role model to be emulated.

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