2016 and 2020: Progressives Counted Their SCOTUS Chickens Before They Hatched

Garlandfreude?

Flash back to October 2016. Justice Scalia's seat was vacant. Hillary Clinton was almost President-elect. And a quasi-conservative majority would soon be a thing of the past. Forget Merrick Garland. The Court would now have a permanent liberal majority for a generation. And progressives were ecstatic. Conservative precedents like Heller, Citizens United, Shelby County, and others cases were on the chopping block. Originalism was dead. And then election day happened. Trump won and appointed Justice Gorsuch to the Court. Then, Justice Kennedy retired, and was replaced by Justice Kavanaugh.

Now, flash back to September 2020. Joe Biden was almost President-elect. He would be ushered into Congress by a blue wave. Large majorities in both houses of Congress would eliminate the filibuster, and pass "Court Reform" legislation. Nine is a good number, but eleven is better. Conservative precedents like Heller, Citizens United, Shelby County, and others cases were once again on the chopping block. But once again, things did not go according to plan. Justice Ginsburg passed away. President Trump filled the vacancy with Justice Barrett. Biden won the election, but there was no blue wave. The Democratic majority shrank. And, best case scenario, the Democrats will have 50 votes in the Senate. "Court Reform" is off the table, at least for the next two, and probably four years.

This loss must be so difficult, because victory was so close. For the second election cycle in a row, progressives counted their SCOTUS chickens before they hatched. I don't take joy in this loss--call it Garlandfreude. Instead, I take away an important lesson. Over the next two-to-four years, when progressives criticize the Court--as they certainly will--I will frame their criticism in terms of what could have been. Every Kagan dissent could have been a Kagan majority. Every Gorsuch concurrence could have been a Gorsuch dissent. Every conservative cert grant should have been a cert denied. Every circuit vacancy that remains vacant should have been filled with a shortlister. Every conservative circuit en banc opinion should have been a conservative dissental. And so on.

Conservatives can commiserate. Stevens. O'Connor. Bork. Ginsburg. Kennedy. Souter. Roberts. Victory was so close, they could taste it. And so on.

Comments

[Brett Bellmore]

"Nine is a good number, but eleven is better."

Was anybody talking about 11? The talk I heard was of 15.

[Rat on a train]

Why go from a 5-4 to a 6-5? Too risky. It needs to be at least 10-5 to allow for the occasional defection or two.

[Deontologist]

Now, flash back to September 2020. Joe Biden was almost President-elect. He would be ushered into Congress by a blue wave. Large majorities in both houses of Congress would eliminate the filibuster, and pass "Court Reform" legislation. Nine is a good number, but eleven is better.

Only people who can't do arithmetic think the Court should have been expanded to 11 members:

Roberts, Gorsuch, Thomas, Alito, Kavanaugh, Amy--6 conservatives.

Breyer, Sotomayor, Kagan--3 liberals.

Let's say Biden actually could expand the Court to 11 members:

Roberts, Gorsuch, Thomas, Alito, Kavanaugh, Amy--6 conservatives.

Breyer, Sotomayor, Kagan, Liberal Justice A, Liberal Justice B--5 liberals.

The Court would still be split 6-5, and what's the point of creating a 6-5 conservative-liberal split if you're going to screw around with the size of the Court?

[MK Ultra]

Roberts ought not to be counted on the conservative side. While it might slightly change the math, the Democrats absolutely would have gone for 15.

[rsteinmetz]

I believe Josh wasn't counting Barrett because of the unanticipated death of Ginsburg. Had she survived into the Biden administration it would have been 5-4 and 2 new justices would have been 6-5 with Roberts as the swing vote. That would have been easier to explain. Even if she had retired immediately after the inaugeration.

With Barrett unexpectedly added then its 6-3 and at least 4 more justices are needed to tip the balance 7-6. That would be grueling process and much more difficult.

[Brett Bellmore]

And then you go to 9-6, so that you can win even when somebody on your side defects.

Though the talk of 14 was prior to RBG's death and replacement, so I suppose to gain the same margin they were aiming for, they'd go for 17 justices.

[Rat on a train]

Now, flash back to September 2016.
2020

[MikeM]

Yes... that's a typo that makes the article *very* hard to parse!

[AmosArch]

The last like 20x conservatives should get a majority a justice flips over and the Court has essentially been 4.5 vs 4.5 since forever ago. I don't see why progs whine and stamp their feet so much about the Supreme Court, I certainly would be happy with this if the same thing had happened where truckloads of supposedly leftist judges were dumped in to no avail.

Its the left's penchant for drama and hysterics where every minor setback is the end of the world. Take our current President who has basically policy wise been a moderate but if you read the news you'd think Hitler and Stalin had a baby. Or how they rend their garments over how the world would fall apart over Trump reversing this or that Obama policy that had only existed for 5 years.

[MK Ultra]

Everything is an existential threat.

[Curly4]

But it is the left's perchant for drama and hysterics is what keeps the left stirred up. So the next POTUS election the democrats and progressives will have a whole four years to work on the voting at the state level and also at the federal level even though it is mostly the states that control how the voting is done and how it is counted. This year there was less than a year for them to work on the states and the local elections districts. Next time there will be a full four years and the democrats and progressives will do a much better job of that control.

[Jimmy the Dane]

Part of the progressive problem is that they create this congratulatory feedback loop. They did in 2016 thinking that Clinton was going to win and it wasn't even going to be close. They did it in 2020 by declaring that there would be a massive Dem wave leaving the Republicans as a permanent minority, only part of the penance the American people would have to pay for daring to vote in Trump.

Instead we all know 2016, and 2020 faired slightly better but not by much. They almost lost the House and while the Senate hangs in the balance, I think chances are likely that Republicans win one seat. And then you have 2022 which will bring the real possibility of losing the House. Sure they got the White House, but I don't know what that will mean. It will take 4 years to figure out regulations that Trump shredded and thanks to precedent set by their overlawyering they will also have to fight nationwide injunctions the entire way.

Should be a fun time for the next few years.

[Brett Bellmore]

"and thanks to precedent set by their overlawyering they will also have to fight nationwide injunctions the entire way."

It's so cute that you think it will work out that way.

[Jimmy the Dane]

Normally I would agree that the double standard would stick. But here I think the other half of the judiciary are going to be gleefully returning the favor to lib judges. Get ready for the District Courts in red circuits to have an influx of cases.

[Aktenberg78]

Conservatives don't behave that way, because it's not who we are. If conservatives actually fought back, we wouldn't have 50 million Hispanic citizens in America, and we wouldn't have a permanently blue country going forward.

[Dilan Esper]

Part of the progressive problem is that they create this congratulatory feedback loop.

I think there's truth to this.

[MollyGodiva]

Yes, the conservatives have SCOTUS, but it is because of the our system that allows for minority rule. The Ds have won the popular vote for president all but once in the last 30 years. They routinely have less seats then (as a % of seats) then their % win in the elections. Then the Rs play dirty tricks by not even holding a vote for Garland in 2016, then ramming through ACB. The Rs play dirty and will now fuck the US with the SC for decades.

[AmosArch]

The Ds have won the popular vote for president all but once in the last 30 years.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Yeah by importing in millions of votes through illegal immigration, and rigging the system to where if you're a taxpayer you're essentially spending thousands a year to brainwash your children into voting for Democrats. And thats just a few of the tricks they use.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Then the Rs play dirty tricks by not even holding a vote for Garland in 2016, then ramming through ACB.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

When the Republicans do it its dirty tricks when the Dems do it to Bork and Estrada its...well often nobody even mentions it....

Progs are so slimy and lie so naturally. Its like hearing the story of a poor robbery victim and then only when you dig finding out he was a bank robber talking about the police confiscating his stolen money. Thats Leftists for you, they're the Kings of narratives that are 180 degrees from actual reality

You say want power to the people, lets truly have it...no more black robed tyrants over turning the will of the people. Devolve all decision making as far down as possible. No more nationwide SSM or duty to provide abortion etc. Let the people decide what they actually want. No more nationwide decrees. SF/NY/LA can do what they want and the rest of the country doesn't have to live by their rules. But you wouldn't like that would you you gigantic hypocrites?

[MollyGodiva]

Bork got a vote, and the other guy was not a SCOTUS nominee.

[Poor Yorick]

Valiant effort, but trying to convince someone who posts ad hominem garbage like "Progs are so slimy and lie so naturally" and "brainwash your children to vote for Democrats" is futile. That kind of desperate, hate filled posting isn't about facts or even debate, it's about venting his hatred for all people who have a difference of opinion on political issues.

[AmosArch]

opposition to "hatred for all people who have a difference of opinion on political issues."

opposition to 'hate speech'....cancelling of trump supporters. Cancelling of professors and speakers.

Pick one.

[Poor Yorick]

No.

[Aktenberg78]

None of that makes a difference unless we can retroactively strip all post-1965 "Americans" of their citizenship.

[MikeM]

I hear these kinds of points thrown around a lot, but I honestly don't understand them.

What do you mean by "minority rule"? Or that "our system ... allows for minority rule"?

On the observation that the "Ds have won the popular vote for president all but once in the last 30 years." – what is the "popular vote for president"? I'm assuming you mean that if you add up all of the state vote tallies, you end up with more total votes for the Democratic than the Republican candidate?

First, that's factually not true – George W. got more than Kerry. But, more importantly, if it were a truly national election, the numbers would be very different. California has 5 million Republicans. That's a bigger number than the total number of voters in Ohio. Today their votes don't matter, but in a national election they would. The candidates and campaigns would strategize differently, and the results would be different. Maybe Democrats would still always win, but that's speculation and not a foregone conclusion.

You mean "fewer seats" not "less seats", by the way. But if I understand the point you're trying to make, the House is pretty evenly split, if you look at the vote totals for truly competitive seats. (Sean Trende at realclearpolitics has done this analysis.) You can argue this point, but it's not self-evidently true, although it's often presented as such.

Senators – every Democrat loves to point out Wyoming, but somehow forget about Rhode Island, Vermont, Delaware and the like. Even setting aside that the Senate is structured as a body that represents states rather than populations, there *still* is a fairly even D/R distribution among the small states.

And as to "dirty tricks" or "ramming" with respect to Garland or ACB nominations – when Harry Reid gets rid of the filibuster or Pelosi puts through ObamaCare via budget reconciliation, what do you call that? "Dirty tricks / Ramming" or using the rules to their advantage? I don't agree with McConnell's approach, but at least he's doing things within the rules, rather than bending them to suit his purpose.

[Dilan Esper]

You mean “fewer seats” not “less seats”, by the way.

Actually, Molly meant less seats. You see, in trying to look smart, you made yourself look like an idiot, because educated people know that just about every dictionary defines "less" as including "less in number". It is only ignorant people who think that only "fewer" may be used.

[MatthewSlyfield]

You are somewhat correct, but go to far in implying that fewer and less are fully interchangeable.

Since You brought up dictionaries, here's what Merriam Webster has to say about fewer vs less

Generally, fewer is used when the number of things is counted (fewer problems) whereas less is used when the number is measured (less trouble or less time). However, this is not a hard rule and there are accepted instances of "less" being used with countable amounts such as "250 words or less," "3 items or less" and especially with money (less than $20) and distance (less than 3 miles).

[Dilan Esper]

That dictionary entry is completely consistent with what I said.

And yes, they actually are fully interchangeable. M-w is being diplomatic about it because there are so many egotistical pedants out there who whine about this, but in my m-w desk dictionary, "fewer" is literally the first definition of less, i.e., its most common usage.

[Dilan Esper]

Indeed, it still is that way:

https://www.merriam-webster.com/dictionary/less

[Brett Bellmore]

No, they're not fully interchangeable. You might speak of "fewer" or "less" bottles of water, but you'd never speak of "fewer" water in a bottle.

You would speak of "fewer" pints of water in the bottle, but the addition of a unit brings you back into the realm of counting. There has to be some hint of counting about to be using "fewer". Not so for "less".

[Dilan Esper]

They are interchangeable in the area where the idiot douchebag prescriptivist pedants are telling us we can't use "less".

[MollyGodiva]

It is not complicated. In most countries, and the way it should be, the party that gets the most national votes in an election will control the government until the next election. In the US, the party that regularly gets less votes maintains power. In some states, gerrymandering ensures minority rule there also.

[Rossami]

You're right, it's not complicated. Most countries ignore the problem of the "tyranny of the majority" and have few to no control against those abuses. In the US, we intentionally have a balance of majoritarian and anti-majoritarian systems to reduce the risk of such abuses.

As the saying goes, a functioning democracy is not two wolves and a sheep voting on what's for dinner.

[Aktenberg78]

And in those countries, they also have disarmed their people, made "hate speech" illegal, and told deviant men that they're heroes for shooting off in another man's rear end. Exactly what you leftists have in store for us.

No thanks.

[Krychek_2]

MikeM:

As far as the Senate is concerned, if you rank the states by population, it takes the bottom 18 to add up to California, and the overwhelming majority of the bottom 18 are conservative. So even though Vermont, conservatives still come out way ahead.

And as far as Harry Reid getting rid of the filibuster and Nancy Pelosi ramming through Obamacare, the only reason either of those was necessary is because anti-democratic institutions like the Senate make it next to impossible to pass things the majority wants, like single payer health care. So when the Democrats use stunts to get stuff done, they are doing what the majority of the country wants, unlike the Republicans, who are blocking what the majority of the country wants. So the two are not equivalent.

[Brett Bellmore]

Super-majority rules are there so that you can't do big things with just a bare, momentary majority, you need a sustained, large majority. The ability of a momentary and bare majority to irreversibly commit a nation to big things is a problem in a democracy, not a solution.

[Krychek_2]

Democrats have won the popular vote in 7 of the last 8 elections; I would say that's significantly more than a "bare, momentary majority." And I haven't noticed that parliamentary democracies that don't have supermajority rules face catastrophe because their majorities commit them to policies that turn out to be disastrous. They may have policies you disagree with, but that's not the same thing.

[MatthewSlyfield]

"Democrats have won the popular vote in 7 of the last 8 elections;"

I presume you mean the Presidential elections.

The last 8 elections would go back to the 1992 election that put Bill Clinton in office for his first term.

Yes, Democrats technically won the popular vote in 7 of the last 8 presidential elections, but of those, 4 (1992, 1996, 2000, and 2016) were only plurality wins, so no true majority at all.

And of the true majority wins, the strongest win was Obama in 2008 at 52.9%. So yes, minimal majorities, even if not momentary.

[MatthewSlyfield]

List of United States presidential elections by popular vote margin

So on the popular vote, the Democrats had a majority in just 3 out of the last 8 presidential elections, and those majorities are best described as thin.

[Rossami]

Not remotely. Even assuming your hypothesis about the "popular vote" (which, as has been explained elsewhere, is an untested assumption because we don't actually measure it), the fact that D's had a majority in 7 of the last 8 argues only that it might not be momentary. Look at the numbers and it's still a bare majority even if repeated multiple times.

Your comparison to parliamentary systems fails because you are, for the most part, attempting to compare countries that are far smaller and less diverse that the US. Whether measured by geography or population, most parliamentary democracies are smaller than the average US state.

[MatthewSlyfield]

Except the Ds didn't have a majority in 7 of the last 8. 4 of the last 8 were plurality wins for the Ds and 1 was a majority for the Rs, so only 3 actual majorities for the Ds.

[Aktenberg78]

How many if you exclude the 50 million mestizos foisted on an unwilling American people?

[MK Ultra]

Your unhappiness pleases me. There are plenty of Parliamentary-based systems. Feel free to research and move. Or donate/volunteer for the idiot Popular Vote Compact, which would be unanimously smacked down regardless of how many Justices the Democrats could pack into it.

Also, "fewer seats."

[Krychek_2]

Matthew, Rossami and MK:

I did not say the Democrats won a majority in 7 of the last 8 presidential elections; I said they won the popular vote, which includes pluralities. However, most election years the Democrats have also gotten more votes for Senate and House, usually by healthy majorities, but because of two senators per state and gerrymandered house seats the GOP maintains control anyway. That, when issue polling is done, such as on single payer health care, for the most part there is more popular support for Democratic positions than Republican ones, so it's safe to say that there's a majority out there for Democratic programs.

But all of this mostly misses the point. The arguments for anti-democratic institutions are noble sentiments about the tyranny of the majority (why the tyranny of the minority is preferable is never explained) coupled with sky-will-fall arguments about mob rule. The actual evidence, however, points in the opposite direction. We have political dysfunction unknown anywhere else in the Western world. Our Congress can't even pass a budget. Our debt is in the trillions because both parties spend and the GOP won't tax. The spectacle of the last three weeks, with Trump and his 31 frivolous lawsuits, has made us the laughingstock of the world. For that matter, we've had a president for the last four years more suited to running a three-card monte scam somewhere in Queens than to leading the free world.

MK, my unhappiness stems from wanting a government that actually works. That you are pleased at having one that doesn't says far more about you than it does about me.

So please, can the claims about how minority government is good for us. It isn't. Admit that it's nothing more than the naked exercise of power by a political minority. Then, we can have a conversation about it that's actually an honest conversation.

[Rossami]

If you're so miserable, why are you still here? Is it possibly because, despite our warts, we're still the least-bad system of government in the world? You say we are the "laughingstock of the world" while ignoring the many, many political controversies that go unremarked pretty much everywhere else.

You also completely ignored the point about tyrannies of the majority. Yes, tyranny of the minority is also bad - which is why our system of government has a balance of both majoritarian and anti-majoritarian systems.

Fundamentally, however, I think that you are wrong in your core goal. I don't want a government that "works". I want one that stays out of my way and leaves its people as free as possible. What you call political dysfunction I call a system operating as intended (with the exception of our god-awful debt problem which no one seems inclined to fix).

[Krychek_2]

I didn't say I was miserable; it's more the sadness that comes from lost potential. Like watching a brilliant but unmotivated student move toward a career in flipping burgers because he's too lazy to study. We could be doing so much better.

And your balanced majority/minority argument ignores the fact that in order for anything of any real substance to happen, both sides need to be on board, which effectively gives the minority a veto that the majority doesn't have.

And while you are entitled to your libertarian political preferences, you should not be able to constitutionalize them. Our values in 2020 are not what they were in 1790. What Americans want from their government has radically changed. People dead for over 200 years should not be able to stand in the way.

[Aktenberg78]

Only because you've changed the definition of "Americans" by importing tens of millions of semi-retarded third worlders.

[Curly4]

Well, MollyGodiva, it is the constitution that put the electoral college into effect not the republicans. It was from a democrat that the republicans got the idea of not approving the S C nominee even so the constitution does not say that the senate has to approve a nominee.

[bernard11]

I don't take joy in this loss–call it Garlandfreude. Instead, I take away an important lesson. Over the next two-to-four years, when progressives criticize the Court–as they certainly will–I will frame their criticism in terms of what could have been. Every Kagan dissent could have been a Kagan majority...

No joy. Right, Josh.

What is the point of this post except to gloat?

[Deontologist]

Point is to get a reaction from you.

[Poor Yorick]

So, trolling. That's my conclusion about this "article" too.

[bernard11]

As I said, to gloat.

Recall that Josh almost danced a jig when Ginsburg dies.

[Jimmy the Dane]

I know a liberal, who is also a prominent attorney, that actually danced a gig when Scalia died. I'll withhold the name, but it wouldn't surprise me if they were put into the national spotlight soon that video of the incident surfaced.

[bernard11]

Whether that's true or not, do you claim that it vindicates Blackman's disgusting behavior?

That's ridiculous.

I mean, if you want to criticize your attorney friend, assuming he exists, go ahead. I won't argue. But none of that makes Blackman's gloating, and his lying about it, anything other than it is.

[Dan Schiavetta]

Josh's main problem is lack of maturity.

[Jimmy the Dane]

Haters gonna hate.

[Rev. Arthur L. Kirkland]

Gloat? About what?

About getting curb-stomped by better people in the culture war?

About being destined to lose culturally and politically for the rest of his life because there just aren’t enough bigots, religious kooks, and half-educated rubes left in America to keep Republicans competitive in national elections?

About being disrespected by all of our society’s strongest institutions?

About being physically painted into smaller, more desolate, more dysfunctional portions of modern America?

What, exactly, do our bigoted, ignorant, superstitious conservatives have to gloat about?

[Rev. Arthur L. Kirkland]

Well, I forgot that plum gig at the South Texas School Of Law-Drawling.

[Dan Schiavetta]

"Conservatives can commiserate. Stevens. O'Connor. Bork. Ginsburg. Kennedy. Souter. Roberts. Victory was so close, they could taste it. And so on."

What?

Did a Democratic Senate refuse to hold hearings on any of those? After specifically singling out these men as someone they would vote in favor of?

"False equivalence".

[ReaderY]

Well, the Democratic Senate twice refused to hold hearings for Judge Roberts when he was nominated for the court of appeals. He got a hearing, and became an appeals judge, only because the Republicans became the majority in the elections. It’s a tactic that’s been used by both sides.

[ReaderY]

When the country is roughly evenly divided between Republicans and Democrats, with each party alternately taking the White House and the Senate, there will be times when the Supreme Court has a conservative majority, just as there will be times when it has a liberal majority.

This basic fact is somethjng the court has to grapple with. It has two choices.

One choice is it constantly flip-flops, with massive reversals each time a majority changes, one day upholding sodomy laws and the next declaring gay marriage and trans bathroom rights are fundamental, one day declaring the constitution says nothing about abortion, the bext declaring government funding for abortion a fundamental right.

The other choice is it finds a path that doesn’t require constant flip-flopping whenever a new justice changes the majority. It finds some compromise path that it can mostly stick to regardless of which side gets to count to five.

[Brett Bellmore]

"The other choice is it finds a path that doesn’t require constant flip-flopping whenever a new justice changes the majority. It finds some compromise path that it can mostly stick to regardless of which side gets to count to five."

I don't see how we get to that place from here. The left is pretty committed to using the Court as a tool to impose social change via dubious constitutional interpretation. They've gotten a 'right' to abortion, they've imposed SSM on the country, and it hasn't been a case of "flip flop", they've never lost any of their wins.

Where's this "flopping" you see? I only see "flipping".