A Normal Supreme Court

I was invited to participate last Fall on a Wisconsin Law Review symposium panel on "Is the Court out of Control?," and I wrote up a short (12-page) article for that. I thought I'd post it in several pieces; I hope some of you find it interesting, and I also still have time to make any corrections, if need be. Here's the first part.

[* * *]

This Symposium panel asks, is the Court out of control? I suppose the question is: Control by whom?

[I.] Modes of Control

[A.] Control by the Political Branches

The Court is certainly out of control of the political branches, as to certain facets of its decision-making. But that has been a feature of the Court for a long time. Eric Segall makes excellent arguments—echoing ones that had been famously made by James Bradley Thayer and others[1]—that there ought to be more control of the Court by the political process. I remember Lino Graglia saying, thirty years ago and in his usual colorful way: "People complain about tyranny of the majority; but the alternative is tyranny of the minority!," meaning tyranny of five Justices on the Supreme Court (and perhaps of the socio-ideological class to which they belong).[2] Why should they make the decisions for the rest of us?

These are all eminently plausible arguments; but, rightly or wrongly, our national legal custom has indeed been for the Court to be largely outside majoritarian political control. To be sure, the Court has at times cut back on its own power, for instance when it overruled earlier economic substantive due process and Commerce Clause cases in the 1930s and 1940s. But then judicial supremacy roared right back in other areas, such as free speech, equal protection, criminal procedure, reproductive rights, and more.

What's more, at least as to Dobbs v. Jackson Women's Health Organization[3]—likely the decision that academics are most focusing on in the past year—the Court is returning control to the political branches.[4] Now as a policy matter, I support abortion rights, and I'm glad that, for instance, even in Kansas the voters have come out in support of abortion rights.[5] And of course one can argue that abortion rights should remain the federal constitutional rule, whether out of constitutional principle or for stare decisis reasons. But in any case, that's not the Court arrogating extra power to itself, except for the power to give the power back to the political process.

New York State Rifle & Pistol Association v. Bruen,[6] to be sure, does constrain the legislature's power to ban public carrying of guns.[7] Even there, though, note that about forty-one to forty-four states (depending on how you count them) have already recognized a statutory right to carry concealed guns in public places.[8] And though people debate whether, on balance, such "shall-issue" regimes increase violent crime slightly or decrease it slightly, it's pretty clear that the skies have not fallen.

One can of course argue that the Court should be controlled by some other entity as to the restraint that it's placing on gun policy throughout the country. But my point here is simply that it's perfectly normal within U.S. history for the Court to exercise such power, much as it has exercised it regarding broad readings of other provisions of the Bill of Rights.

[B.] Control by Precedent

Of course, a second possible argument is that the Court has given up some traditional self-control, for instance by not feeling controlled by its own precedents. But again, anybody who studies the late 1930s Court or the Warren Court is surely familiar with the many important precedents that those Courts reversed—many quite rightly, I think.[9]

And it's not clear that the Court should always be constrained by precedents. Indeed, given the difficulty of correcting the Court's past errors through the constitutional amendment process, perhaps the Justices ought to be more willing to decide whether some past precedents are indeed erroneous.[10] The Court may need the power to reverse its own constitutional precedents because, largely, nobody else can.

Now some have argued, especially regarding Dobbs, that the Court had never before reversed a precedent that protected individual rights. This argument may have to do with a progressive constitutionalist view in favor of more individual rights (though of course the criticism of Bruen illustrates that progressives are, unsurprisingly, skeptical of some constitutional rights claims).

But of course, the Court has indeed reversed important precedents protecting what it had earlier seen as constitutional rights. In fact, this was so as to the same constitutional provision: the Due Process Clause as applied to unenumerated rights. In the early 1900s, the theory was that people have various liberty of contract rights to dispose of their labor without undue regulation. In the 1930s, the Court reversed that.[11]

Now, of course, one might argue that those were bad cases, meaning the Court was right to reverse them, and that Roe was a good case that the Court was wrong to reverse. But that's just an objection that the Court is out of the control of the critics' own personal moral judgment.

[C.] Control by Judicial Minimalism

Another form of self-control might have to do with judges deliberately avoiding major culture war controversies. They might, for instance, choose not to decide some questions that are too controversial, or they might choose to take small steps rather than bigger ones.

But the Court often decides which cases to hear based on splits among the federal circuit courts or state supreme courts. Categorical minimalism would leave these disagreements unresolved, with one understanding of federal rights prevailing in one region of the country while an opposite understanding controls another region.

Bruen offers a classic example: There some circuit courts held there was an individual right to keep and bear arms in public places, and others held there wasn't.[12] The Court could indeed have just sat that out; but I doubt it would have been right for, say, the Illinois and D.C. legislatures to remain constrained by one reading of the Second Amendment, and the California and New Jersey legislatures to be freed by a different reading. We should indeed be concerned about public confidence in the Court, and in the court system more broadly. But I doubt that such an enduring inconsistency in how federal rights are understood by federal courts would yield more public confidence.

As to incrementalism, some Justices may prefer incremental movement, but see their adversaries, either on the current or past Courts, making radical changes. Say what you would about Roe v. Wade,[13] but it was a radical decision. It's not clear that many Justices would or should feel obligated to be incrementalist when the other side is not. And of course, this is equally true as to both sides of the aisle. If some Justices think that Bruen or District of Columbia v. Heller[14] were radically wrong, I doubt those Justices would or should be particularly incrementalist in dealing with those cases if they got a majority for reversing them (though, of course, who knows for sure?).

[D.] Control by Text, Original Meaning, and Tradition

Another possible argument is that the Court refuses to be controlled by the constitutional text, original meaning, and tradition—the classic criticism that had been levied by conservatives against past Courts.

I think Bruen is consistent with the constitutional text, with our best inference as to original meaning, and with the American tradition of allowing some form of carrying (depending on the time and place, open or concealed). But of course, human nature being what it is, it's unsurprising that, when people look at ambiguous texts and traditions—or texts and traditions that others might see as ambiguous—they see things they like. Indeed, this might be a problem with the traditional conservative argument that attention to text, original meaning, and tradition will constrain judges: perhaps, realistically, it doesn't actually constrain them.

But it's not like living constitutionalism offers much more constraint, right? If all of the conservatives on the Court said, we see the light, we are living constitutionalists now, I very much doubt that people on the Left would applaud the results. After all, the conservatives would then likely say—again, human nature being what it is—that the Constitution has evolved to the point of recognizing the importance of armed self-defense,[15] the importance of leaving difficult questions like abortion to the political process, and who knows what other things that conservatives might like and progressives might not.

[1]. See, e.g., James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893); Learned Hand, The Bill of Rights (1958); see also Symposium, One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 Nw. U. L. Rev. 1 (1993) (documenting the importance of Thayer's work in the legal profession).

[2]. See, e.g., Lino A. Graglia, It's Not Constitutionalism, It's Judicial Activism, 19 Harv. J.L. & Pub. Pol'y 293 (1996).

[3]. 142 S. Ct. 2228 (2022).

[4]. Id. at 2277.

[5]. Eugene Volokh, Kansas Voters Reject Repeal of State Constitutional Abortion Rights, by >58%-42% Margin, Reason: The Volokh Conspiracy (Aug. 2, 2022, 11:43 PM), https://‌reason.com/‌volokh/‌2022/‌08/‌02/‌kansas-voters-reject-repeal-of-state-constitutional-abortion-rights-by-60-40-margin [https://‌perma.cc/‌X3PG-DYAV].

[6]. 142 S. Ct. 2111 (2022).

[7]. Id. at 2156.

[8]. See id. at 2123 & n.1 (noting that forty-three states are "shall-issue" states, in which pretty much all law-abiding adults can get concealed carry licenses, and that one state, Vermont, does not require licenses and does not even have a licensing system). As the Court notes, "[t]hree States—Connecticut, Delaware, and Rhode Island—have discretionary criteria but appear to operate like 'shall issue' jurisdictions," id., so out of caution I give the range as forty-one to forty-four. See id.

[9]. See Table of Supreme Court Decisions Overruled by Subsequent Decisions, Const. Annotated, https://‌constitution.congress.gov/‌resources/‌decisions-overruled/‌. The data on this page can be filtered by year, so filtering for 1961 to 1969 shows you all the precedents overruled during the second half of the Warren Court years.

[10]. See, e.g., Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (plurality opinion) (endorsing "this Court's considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases").

[11]. See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391–93, 400 (1937).

[12]. Gould v. Morgan, 907 F.3d 659, 676–77 (1st Cir. 2018), Kachalsky v. County of Westchester, 701 F.3d 81, 101 (2d Cir. 2012), Drake v. Filko, 724 F.3d 426, 440 (3d Cir. 2013), United States v. Masciandaro, 638 F.3d 458, 460, 473–74 (4th Cir. 2011), and Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021), had upheld broad restrictions on carrying in public. Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), and Wrenn v. District of Columbia, 864 F.3d 650, 667–68 (D.C. Cir. 2017), had struck them down.

[13]. 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).

[14]. 554 U.S. 570 (2008).

[15]. Cf. David Kopel, The Right to Arms in the Living Constitution, 100 Cardozo L. Rev. De Novo 99, 136–38 (2010) (suggesting that a living-constitution approach to the Second Amendment should indeed lead to broad protection for gun rights); Eugene Volokh, Who's Right on Second?, Nat'l Rev. (Dec. 6, 2002, 5:25 PM), https://web.archive.org/web/20021219232455/https://www.nationalreview.com/comment/comment-volohk120602.asp (same).

 

Comments

[Frank Drackman]

OK, I get what's the matter with Kansas. Why inflict a lifetime of living in Kansas on a poor unborn Fetus?

[A nerdy Fred]

This is what the most cited legal scholar of the 20th century had to say about one landmark ruling of the Roberts Court.
https://www.law.uchicago.edu/news/richard-posners-slate-scotus-review-shelby-county-v-holder-uchilawsct
They overrode the plain letter of the Constitution using a doctrine which Judge Posner says "does not exist".

[Michael P]

If he thinks the doctrine doesn’t exist, he should probably spend less time opining and more time reading Supreme Court decisions. Or even the Constitution, if he doesn't realize that states are sovereigns.

[Stephen Lathrop]

No, Michael P, as early as the first two decades of the 19th century, it became settled law that the People of the United States, taken in a body, are sovereign over every state. You conflate constitutional federalism—a creation of the People of the United States, and not of any particular state—with questions of sovereignty.

To note that happened is not to say it was never challenged. Calhoun made himself famous challenging that notion. The Civil War made Calhoun's doctrine infamous.

[Dr. Ed 2]

Stephen, don't forget the Hartford Convention.

[JasonT20]

sovereign - noun
1. One that exercises supreme, permanent authority, especially in a nation or other governmental unit, as
2. A king, queen, or other noble person who serves as chief of state; a ruler or monarch.
3. A national governing council or committee.

Even if you don't agree with Stephen Lathrop on the extent to which the people of the United States are sovereign, it absolutely violates the basic definition of the word to claim that a subdivision of a sovereign nation can also be sovereign. Dual sovereignty is an oxymoron.

Thus, states cannot be equally sovereign in the Union, since they aren't sovereign at all. Federalism divides the powers of government between the states and the national government, but the Supremacy Clause makes it clear which has the higher authority in areas where both would have power. Some might want states to always be on equal footing with each other, but nothing in the Constitution requires that this be the case generally. Equal representation in the Senate, each state getting one vote for President in the House in the event no one won a majority of Electoral votes, and each state's vote being equal in ratifying amendments are the only ways in which they are required to be equal, that I can see. There is no requirement that federal laws need to apply to all states in the same manner.

[Gandydancer]

Utter nonsense. The Colonies first gave up temporary control over the exercise of their newly-acquired sovereignty to a Federal government under the Articles of Confederation and Perpetual Union and then. being still sovereign, took it back and gave temporary control of a slightly more comprehensive fraction of their sovereignty to a new Federal government. To call that union of States “a sovereign nation” begs the question. If sovereignty could not be divided then it was, as conceived, not one, under YOUR preferred definition. But no one is required to agree with you..

[Dr. Ed 2]

I agree -- look at the definition of the word "Federal."

[JasonT20]

Taking Dr. Ed's advice, the American Heritage Dictionary defines "federal" this way:

1. Of, relating to, or being a form of government in which a union of states recognizes the sovereignty of a central authority while retaining certain residual powers of government.

2. Of or constituting a form of government in which sovereign power is divided between a central authority and a number of constituent political units.

3. Of or relating to the central government of a federation as distinct from the governments of its member units.

Personally, I would prefer 3., as it wouldn't conflict with the idea that is the people that are sovereign, not a government. You seem to agree with none of them, if you believe that states are still able to revoke their grant of control under the Constitution. I thought that question was fairly definitively settled in the negative in 1865.

We could go around in circles for days about the theory of whether states were individual sovereigns upon ratifying the Articles and Constitution, but I think that would forget the important idea that it was the people of those states that were sovereign, not the states as entities that exist outside of the will of their citizens. The states ratified the Articles and then the Constitution as representing the people in their jurisdictions. The people of every state thus joined the United States and by becoming citizens of the United States through those acts, a single nation was formed.

[Stephen Lathrop]

JasonT20 gets it. This part has an important corollary:

Dual sovereignty is an oxymoron.

It means that although sovereigns may at times be challenged, they cannot afford even slightly to indulge challengers. To suffer a challenger to continue amounts to an end for the existing sovereignty. Absolute power to govern cannot continue alongside a rival purporting the same. The existence of the rival becomes proof that absolute power to rule is gone.

Thus, in the event of a challenge, either the challenge is eliminated promptly, or what happens next becomes a test of power for the challenger, with the previous sovereign at least already discredited, and likely out of the picture. If the challenger proves that it can itself wield absolute power successfully, it supplants the former sovereign. If the challenger fails that test, sovereignty ceases to exist. The latter case is inherently unstable, and tends to be unpleasant, but may nevertheless last a long time. There have always been considerable territories on earth which no sovereign can claim.

Finally, that corollary has a corollary. Because no challenge to established sovereignty can be suffered to exist, lest the existing sovereignty lapse for want of defense, the first and most important duty of any existing sovereign’s government is to guard jealously the sovereign’s prerogative to rule. That is a government duty to eliminate promptly any would-be challenges for sovereign power. All that applies with as much force to the American People’s joint popular sovereignty as to that of any king purporting to rule by divine right.

As a matter of political philosophy, the foregoing is not a prescription of norms for government, but instead a description of what actually enables self-governing nation states, and has done since the end of medieval religious rule in most of the world.

[Brett Bellmore]

It's not "dual" sovereignty, it's "divided" sovereignty: Under the Constitution, the federal government is sovereign in regards to the topics it was given jurisdiction over, and the states remained sovereign in regards to everything else that the Constitution didn't come out and take away from them. Both get their sovereignty on revokable delegation from the people.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Three columns: The federal government, the states, and the people, and they add up to 100%.

Now, as to whether this sort of arrangement is stable, long term? Doesn't appear to have been. But that was the arrangement.

[Stephen Lathrop]

Bellmore, that quote you put in the middle of your comment? You know who wrote it? It was, We the People. That fact makes nonsense of the rest of your comment.

You can’t use the People’s undivided sovereignty to prove they do not have undivided sovereignty. When they wrote about reserving rights and powers from the federal government they were reserving those unspecified rights and powers . . . to themselves. What the federal government couldn’t have, the People themselves kept, or at their pleasure used to empower state governments. But the People never gave any of that power up to any government, state or federal. The People kept it all. No government in the United States has power to constrain the People’s power to act at pleasure, to do anything at all.

To the extent anyone might have thought otherwise, the Civil War settled the question. Please shut up. No one wants another civil war. Oh, wait, some do want another civil war. Please shut up.

Also, your, "Three columns," remark. Utter bullshit. It implies a three-way separation of powers, with two flavors of government on par with the sovereign. In fact, none of those governments has power to constrain the sovereign at all. Not even the Constitution itself constrains the sovereign. It is their decree.

[Brett Bellmore]

"You know who wrote it? It was, We the People."

I'm pretty sure "James Madison" is NOT a pen name of "We the People", so that would be a decisive "nope!".

[Stephen Lathrop]

Bellmore, ratification is what gives authorship, not drafting. James Wilson drafted much of the text of the final Constitution. That did not make him the author of it.

[JasonT20]

It’s not “dual” sovereignty, it’s “divided” sovereignty: Under the Constitution, the federal government is sovereign in regards to the topics it was given jurisdiction over, and the states remained sovereign in regards to everything else that the Constitution didn’t come out and take away from them. Both get their sovereignty on revokable delegation from the people.

The term "dual sovereignty" refers to a constitutional doctrine essentially invented to get around double jeopardy.
See here. United States v. Lanza (1922), upheld in Gamble v. United States (2019):

The Lanza Court stated: "We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other."

But state and the federal government do not derive their powers from different sources. Both derive their power from the people and are both constrained by the U.S. Constitution. It is the powers of government that are divided between states and the federal government, not sovereignty itself. In addition to the Supremacy Clause illustrating this clearly, you should also think about who gets to decide which level of government has the power in a particular situation.

This is the way I see it, and I think Stephen at least sees things similarly:

The People of the United States (the sovereign) grant governmental authority and powers through the Constitution. The Constitution delegates specific powers to the federal government, including the ability and responsibility to enforce the Constitution itself, leaving what is left to the states, except for certain things the states are specifically prohibited from doing.

This theoretical hierarchy is important, because we should always keep in mind that government serves the people and only legitimately wields power with the consent of the people. I see libertarians and conservatives talk about "the states" as in "states' rights" in such a way that seems to forget that it is the people that are the ultimate authority.

[Stephen Lathrop]

JasonT20, note also, the decision you cited relies on the lawyers’ commonplace shorthand to use language to equate with the actual sovereign governments exercising sovereign powers (in that case the power to punish). That happens all the time, and results in a lot of confusion, because it suggests to some readers practices inconsistent with a political philosopher’s understanding of sovereignty.

Also, thanks for the citation. I had not known where that term came from.

[Noscitur a sociis]

I'm not sure you want Richard Posner on your side if you want to criticize judges for being out of control or making up doctrines to suit their policy preferences.

[Gandydancer]

I'm not sure that your judgment on that question, unsupported by actual argument, should be of any interest to anyone at all. It just means that you disagreed with him as do I, generally, with you.

[The Margrave of Azilia]

"Now as a policy matter, I support abortion rights, and I'm glad that, for instance, even in Kansas the voters have come out in support of abortion rights."

As long as popular sovereighty is observed in Kansas, it's all right.

[JasonT20]

Or, he could mean that he is glad that there wasn't a popular majority in Kansas that wanted to force women to give birth. I would think he'd also be glad if there wasn't a popular majority in California that wanted to strip people of their gun ownership rights.

No one wants popular sovereignty to always be observed. As soon as a right they hold dear are only respected by a minority, anyone would turn against an absolutist position on popular sovereignty.

[The Margrave of Azilia]

I see you missed the historical allusion.

Prof. Volokh is one of the Stephen Douglases of our age - nothing wrong with abortion so long as the people have a vote on it.

[Gandydancer]

Works for me, too.

[JasonT20]

Prof. Volokh is one of the Stephen Douglases of our age – nothing wrong with abortion so long as the people have a vote on it.

I don’t read his statement that way, nor would do I think he would actually believe that. As I said, every person can think of at least something they view as an inalienable right that should not be up for a vote. It is a straw man to contend that someone would be fine with government doing what even they would agree are horrible things as long as a majority voted for it. I’ve never seen anyone truly stick to that kind of principle.

[Dr. Ed 2]

Let me first state my bias -- I am not an attorney but do have credentials in US History curriculum for grades 7-12, and I look at this as more of a historical than legal issue.

When the Federalists lost in 1800, they preceded to pack the courts with Federalists, one of the more extreme of who was Justice Samuel Chase. His charge to the Baltimore Grand Jury was -- well, something you'd expect from Merritt Garland -- outrageously biased. Now *as* IANAA, I'm not quite sure why a SCOTUS justice would be charging a grand jury, but whatever...

Long and short, he was impeached but not convicted and the principle was established that a judge couldn't be impeached merely because you didn't like his political opinions. I know it was *much* more complicated than this, but most high school teachers don't even know who Samuel Chase even was...

And then there was John Marshall, who -- like J Edgar Hoover -- expanded an insignificant office in an insignificant branch of the government into a major player. I teach that the judiciary was mentioned last (i.e. third) as the framers considered it the least important branch of the government.

My point is that the concept of the court out of control has to be viewed from a historical perspective and in the partisan battles of the early 19th Century. Andrew Jackson's infamous "John Marshall has made his decision, now let's see him enforce it" also needs to be seen in that light -- Jackson's "Spoils System" was largely the removal of Federalists from the Executive Branch.

I would also suggest comparing the US Supreme Court to those of both Canada and Israel -- both Western Democracies whose judicial systems share a somewhat common root with ours.

Canada because (apparently) the Federal legislature can vote to overrule the court *and* because (for reasons I don't understand) Quebec (PdQ, not the city) was able to totally ignore a court decision that their ban on the use of English was somehow verboten.

And Israel if for no reason than the current controversy, which I don't understand but some allege that Bibi N is simply trying to reign in an out of control court -- and others allege other things...

But I really think you need to start with Chase & Marshall.

[Noscitur a sociis]

I am not an attorney but do have credentials in US History curriculum for grades 7-12, and I look at this as more of a historical than legal issue.

Well, at least you're half right.

[Michael D]

Yes, leave it up to the lawyers. They have done a bang-up job so far. There are many reasons people dislike lawyers. The superiority expressed in your comment might be number 53 on the list.

[Noscitur a sociis]

Huh? The sense of superiority I feel over Dr. Ed has absolutely nothing to do with his not being a lawyer.

[BrotherMovesOn]

"I...do have credentials in US History curriculum for grades 7-12".
Just freaking hilarious.

[JasonT20]

My teaching certificate (physics and chemistry) gives me credentials in my state to teach environmental science, earth/space science, and a couple of others that include a lot of content that I never learned in any college-level class. Rather than mentioning being credentialed to teach US History in 7-12th grade, perhaps Dr. Ed could explain what studies or experience in US History he has that would not be shared by at least most of the people around here.

[Gandydancer]

I think he is being unduly modest.* His take on things is usually sounder than that of, e.g., Noscitur a sociis, and unlike Noscitur a sociis he doesn't imagine that graduating law school gives him a right to rule over the peons who haven't.

* E.g., in the sentence " IANAA, I’m not quite sure why a SCOTUS justice would be charging a grand jury..." he imagines that an attorney ought know the answer to that question, but an attorney would in general be utterly ignorant on that point.

[Dr. Ed 2]

Thank you.

For what it is worth, my dissertation involved the teaching of US History and I have other credentials, but my point was/is that I am looking at this from a historical and not legal perspective.

[myself]

I suspect one of the reasons that the courts have grown more influential in the US is because the two party tradition of governance there means that a strong Judiciary is necessary to prevent one party from simply making themselves leaders for life.

And Israel if for no reason than the current controversy, which I don’t understand but some allege that Bibi N is simply trying to reign in an out of control court — and others allege other things…

While the coalition partners want to "reign in an out of control court" I think it's universally accepted that Bibi's major motive is staying out of jail.

[David Nieporent]

*rein

[Gandydancer]

No, not universally. His position that the courts ought not gag him from speaking against their egregious power grabbing is perfectly reasonable, and the fact that outcome of the fight will have a more than ordinary personal effect on him doesn't make his participation in it corrupt. Washington opposed the limits on his land speculation, but it is not "universally agreed" that that was THE "major motive" for his not being a Loyalist.

[Dr. Ed 2]

"the two party tradition of governance there means that a strong Judiciary is necessary to prevent one party from simply making themselves leaders for life."

No, at least not initially -- and that is my point about Chase & Marshall.

Washington was our first President, and he served until 1797 with John Adams being elected President in November of 1796 and Adams is the head of the Federalists. He starts fighting with Jefferson but remember that Adam's party controls everything -- all three branches of government.

The Federalists are soundly defeated in the election of 1800 and Adams appoints as many Federalists as possible until his term ends in March of 1801 (back then it was March because of difficulties traveling in January). The "tradition" of two party conflict *starts* with a Federalist judiciary and Jeffersonians in the other two branches.

[Ben_]

I don't think things like this will persuade:

"And though people debate whether, on balance, such "shall-issue" regimes increase violent crime slightly or decrease it slightly, it's pretty clear that the skies have not fallen."

Keep in mind that a large number of people in your audience "know" things that are simply false. For example, a majority of Very Liberal people think police shot over 1000 unarmed black men in 2019 when the actual number was 12. Only a very few people in that survey had anywhere close to a correct impression of reality. Polarized people are encouraged to exaggerate and taught to despise contrary assertions and anyone arguing against crisis thinking.

As dumb as it sounds, a large number of people in your audience need proof that "the skies have not fallen" and will disregard your message to the extent it relies on non-panicked assertions.

A before/after statistical comparison would at least demonstrate using data that the skies are no more fallen after than they were before.

[Gandydancer]

It’s still at least “pretty clear” even if many gun grabbers refuse to acknowledge that fact or even deny it to themselves. Convincing them of what they do not wish to believe is a fools errand and a lack of success in accomplishing that task is no measure of anything important.

[Stephen Lathrop]

I think Bruen is consistent with the constitutional text, with our best inference as to original meaning, and with the American tradition of allowing some form of carrying (depending on the time and place, open or concealed).

Bruen cannot be right about those questions, because American history and tradition contests them all. There is no historically correct consensus to be found on any of those points.

But it is important to note that Bruen is dead wrong, not just ambiguously wrong. Bruen joins a short roster of worst Supreme Court decisions. It earns that distinction with its attempt to decree as mandatory a historical method chosen on purpose to cripple critiques of its reasoning—and by picking that method ignorantly, in defiance of historical professional norms to the contrary.

Put simply, Bruen's decree attempts to make mandatory a method of historical analysis—the method to infer history from the texts of laws—which was mistakenly chosen in the first place. Historians have recognized for nearly a century that is not possible to infer from the texts of laws what happened in the past—with the trivial and tautological exception of the passage of the laws themselves.

If the texts of laws cannot confer power to infer what happened during an entire historical era, still less can they do so within a chaotically gerrymandered historical scope of part of an era. But the Court gerrymandered so extensively that it excluded a majority of the actual historical interval under consideration. Of course, upon inspection the historical bits which the Court gerrymandered out turn out to feature laws with texts which would embarrass the majority's preferred outcome. Because those excluded intervals aggregate to a majority fraction of the nation's entire history, leaving them out looks particularly pointed and peculiar.

Bruen is a fraud. The Court majority not only practiced some of the worst analysis ever seen in a Supreme Court decision, but it also decreed that its own faulty method of analysis be applied alike to any critique of its own mistakes. To that, the majority added the arrogance to pick and tailor a method of practice for use in a professional field the majority's members are not educated in, and do not understand.

In consequence of that ignorance, the Bruen majority settled on a method historical professionals reject, because forebears in their own field had rejected that method nearly a century ago, as too prone to deliver error and misinformation, even when applied uniformly and dispassionately. Then the Bruen majority decreed off limits even uniform application of its historically rejected method—because uniform application turned up unwanted data—and cherry picked its way to its own passionately desired result.

The Bruen decision may not be remembered among the most evil Supreme Court decisions ever, although that point might yet be contested. But it sets a standard for elaborate and outlandish mis-analysis which few future decisions are likely ever to approach—unless this same court can come up with another such case shortly.

[Gandydancer]

"The Court majority... added the arrogance to pick and tailor a method of practice for use in a professional field the majority’s members are not educated in, and do not understand."

False. so-called historians can continue to push their political agendas using whatever methods others choose to tolerate. Lower courts are a different matter, but that is SCOTUS' remit.

[Stephen Lathrop]

QED

[ah....Clem]

How about "controlled by a code of ethics that they recognize and follow"?

Clearly they are "out of control" of such a mechanism. Which is "controlling" for every other member of the federal judiciary. They get a pass because they are "made guys" not subject to the rules that apply to everyone else?

[Gandydancer]

What rule outside your motivated imagination are you talking about?

[OtisAH]

La dee dahhhh… “Clarence Thomas”?

I don’t know her.

La dee dahhhh…

[Gandydancer]

Are you on drugs?

[Brett Bellmore]

Both refusing to uphold rights actually found in the Constitution, and 'upholding' rights not found in it, are exercises of judicial power. They both represent the Court exploiting its position to impose on the rest of society policy choices that it wasn't delegated, but which have already been made and embodied in the Constitution.

You can't evaluate this topic without at least implicitly looking at whether the Court is actually following the Constitution, or just using it as an excuse to impose its own preferences. That's the whole game.

[bernard11]

How about "control by non-partisanship?"

This would be a form of self-control which recognizes that a preference for one political party, or certain positions should not dictate one's rulings.

I think Shelby County and Rucho were purely partisan decisions. The census decision would have been another has Roberts not been totally embarrassed by the blatant lies his conservative colleagues swallowed. They swallowed more in Kennedy, and Roberts went along that time.