Trumplicans I know have told me “we’ve been giving money and preference to blacks for sixty years, now it’s my turn”….”giving blacks low income housing is a waste of time, they sit at home on their fat asses, collect their welfare and food stamps, and never get to work, besides they turn new housing into rat infested slums”, “black people are naturally lazy”… and on and on with this crap. The recent Supreme Court Calais decision echos this bigoted and just plain wrong sentiment. I believe it’s time for Congress and the public to give the Supreme Court a wake up call!
Biden did nothing with the Commission’s recommendations and sat on it for quite some time before releasing it. Scalia was a nasty SOB & Thomas is ethically and intellectually questionable. Term limits is the better alternative given the 6/3 majority on this court
Interesting. And you point out the flaw: the 5 vote majority would just say it’s not overruling. But what if court had to act by supermajority in ALL cases?
The current 6-3 radically conservative majority raises the issue of what might constitute a voting supermajority other than requiring unanimity.
I’m thinking it would be well within Congress’ power to strictly limit or eliminate the pulled-out-of-their-asses “major questions doctrine”. What say you, counselor?
Despite his shared love of opera with RBG, Scalia was the most dangerous man in America while he was on the Court.
Your note on why this rule would not apply to Callais is troubling, given the disingenuousness of the Roberts Court. Yes, it "purports merely to interpret" Section 2, but to reinterpret it out of existence.
You're right. No solution is watertight, but a consensus requirement could at the very least disincentivize the Court from issuing constitutional rulings, and to the extent they issue "stealth" overturnings as in Callais, Congress would have the power to rewrite the law. (And yes, that means Congress has to become a functional body of governance once again. A guy can dream.)
Governance in the US is also subject to the dysfunctions of old age and vested interests. The costs of running an election campaign certainly favors the old warhorses who have cultivated backers and built war chests with which to fight. Electoral reform could enact some fairly simple rules to make a campaign affordable. Limiting a candidates ability to raise funds by requiring that those funds must be provided by ONLY the voters in the constituency a candidate is seeking to represent. This would, in one fell swoop, eliminate dark money PACs, and a further modest limit on how much a voter can contribute should level the financial playing field. It would also, one hopes, spur people to register to vote and it might even make those trying to suppress voting back off in the interests of extracting more money from the constituents as well as their votes....
PS. Making those strictly limited campaign donations tax deductible is another measure to enforce probity if the particulars of the donation are required and documented, they can be used to cross check the candidates' fundraising accounts.
Two notes: First, when this was raised a few years back in a NYT op-ed (I think the suggestion was 6-3?), I did a brief dive into past decisions that would have been different if such a change would have affected. There weren't actually that many, but I found three from the last 50 years or so:
United States v. Eichman, the flag-burning offence in the Flag Protection Act 1989 (passed after Texas v Johnson) would be good law under a SCOTUS supermajority requirement,
Boumediene v. Bush, which upheld access to habeas corpus, for Gitmo detainees despite the Military Commissions Act 2006 would go.
And warrantless searches by OSHA under the Occupational Safety and Health Act, which were overturned 5-3 in Marshall v. Barlow's would have been permitted.
There was also Schacht v. United States, which overturned an offence relating to wearing of military uniforms in plays or films that disparage the military. This one is debatable as it was 5-0, but that depends how your supermajority requirement is written. If you need 6 votes (or 7) it goes too.
Second, I assume that SCOTUS would already take most cases about the striking down of Congressional Legislation, but would this also apply to trial courts and courts of appeals? If US DIstrict Courts couldn't strike down Federal laws, would they still try the cases, or would the cases start a the Supreme Court as an original jurisdiction?
If 2\3 vote is sufficient for a veto override, it should be sufficient for a court supermajority. But the major problem is how to count the votes in cases with split opinions. The supermajority vote should require at least six justices concurring in a single opinion and not writing separately.
The real scandal here is the court's frequent use of the so-called shadow docket to make emergency decisions (sometimes before an appellate court has even ruled on an issue) and without a clear explanation of its rationale which leaves lower courts in the dark. Almost all of these decisions (some 90%) have been in favour of the Trump administration.
Some federal judges have even contended that such rulings cannot be binding because they have not been explained, an extraordinary level of defiance. Joined by fellow conservative justice and Trump appointee Brett Kavanaugh, Gorsuch wrote that all Supreme Court orders carry the weight of precedent, regardless of whether or not they were issued in a shadow docket ruling. Gorsuch rebuked three U.S. district judges who had ruled in Trump-related cases - William Young, Brian Murphy and Matthew Maddox - saying their decisions were at odds with Supreme Court orders in shadow docket cases. "Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them," Gorsuch wrote.
If the administration is only seeking relief in those cases it thinks the court will grant, the success rate should be high. Moreover, concentrating on the supreme court success rate in cases that are not final, overlooks all the lower court cases not disturbed by the supreme court.
Clever, but since 90% of the Constitution has been destroyed by these hooligans, let's have this discussion AFTER we get reversals on all these racist, anti-regulatory and pro-corruption "political" decisions.
While I strongly approve some version of the "consensus" requirement I doubt that alone will whip the court into legal humility. Term limits is still a very viable idea and is used in most countries interested in judicial accountability. It is entirely possible the founders assumed/expected earlier mortality would require more frequent "refreshment" of the SCOTUS bench. Lawyerly longevity is not always the best strategy for court performance. Old age brings with it not only hardening of the arteries and other ailments, but hardening of the mental faculties. That can easily happen at any age with delusions of infallibility.
Earlier postings have some good ideas to implement reform and both houses of Congress should engage in a colloquium to discuss improving SCOTUS efficiency. The current practices of pronouncements without published reasons and other serious work evading bypasses is a symptom of legal dysfunction throughout the judicial establishment. Too many cases funded by greed, vanity, and power mongering being taken all the way to SCOTUS displaying the power of morbid wealth petulantly pushing for favorable judgement, also suggests those same oligarchs and kleptocrats would not think twice about using money to buy Justice.
Trumplicans I know have told me “we’ve been giving money and preference to blacks for sixty years, now it’s my turn”….”giving blacks low income housing is a waste of time, they sit at home on their fat asses, collect their welfare and food stamps, and never get to work, besides they turn new housing into rat infested slums”, “black people are naturally lazy”… and on and on with this crap. The recent Supreme Court Calais decision echos this bigoted and just plain wrong sentiment. I believe it’s time for Congress and the public to give the Supreme Court a wake up call!
Trumplicans are racists ... duh. The whole GOP is institutionally racist.
Wow, I think you've hit on a really great question Jesse!! These 6-3 decisions are destroying what little faith the people have in this court.
Biden did nothing with the Commission’s recommendations and sat on it for quite some time before releasing it. Scalia was a nasty SOB & Thomas is ethically and intellectually questionable. Term limits is the better alternative given the 6/3 majority on this court
Interesting. And you point out the flaw: the 5 vote majority would just say it’s not overruling. But what if court had to act by supermajority in ALL cases?
The current 6-3 radically conservative majority raises the issue of what might constitute a voting supermajority other than requiring unanimity.
I’m thinking it would be well within Congress’ power to strictly limit or eliminate the pulled-out-of-their-asses “major questions doctrine”. What say you, counselor?
Despite his shared love of opera with RBG, Scalia was the most dangerous man in America while he was on the Court.
Your note on why this rule would not apply to Callais is troubling, given the disingenuousness of the Roberts Court. Yes, it "purports merely to interpret" Section 2, but to reinterpret it out of existence.
You're right. No solution is watertight, but a consensus requirement could at the very least disincentivize the Court from issuing constitutional rulings, and to the extent they issue "stealth" overturnings as in Callais, Congress would have the power to rewrite the law. (And yes, that means Congress has to become a functional body of governance once again. A guy can dream.)
Governance in the US is also subject to the dysfunctions of old age and vested interests. The costs of running an election campaign certainly favors the old warhorses who have cultivated backers and built war chests with which to fight. Electoral reform could enact some fairly simple rules to make a campaign affordable. Limiting a candidates ability to raise funds by requiring that those funds must be provided by ONLY the voters in the constituency a candidate is seeking to represent. This would, in one fell swoop, eliminate dark money PACs, and a further modest limit on how much a voter can contribute should level the financial playing field. It would also, one hopes, spur people to register to vote and it might even make those trying to suppress voting back off in the interests of extracting more money from the constituents as well as their votes....
PS. Making those strictly limited campaign donations tax deductible is another measure to enforce probity if the particulars of the donation are required and documented, they can be used to cross check the candidates' fundraising accounts.
Just when we thought we had hit rock bottom. https://harrychancey.substack.com/p/all-bat-no-balls
Ridiculous idea. File in the folder with the
“Impeach Earl Warren” bumper stickers
Two notes: First, when this was raised a few years back in a NYT op-ed (I think the suggestion was 6-3?), I did a brief dive into past decisions that would have been different if such a change would have affected. There weren't actually that many, but I found three from the last 50 years or so:
United States v. Eichman, the flag-burning offence in the Flag Protection Act 1989 (passed after Texas v Johnson) would be good law under a SCOTUS supermajority requirement,
Boumediene v. Bush, which upheld access to habeas corpus, for Gitmo detainees despite the Military Commissions Act 2006 would go.
And warrantless searches by OSHA under the Occupational Safety and Health Act, which were overturned 5-3 in Marshall v. Barlow's would have been permitted.
There was also Schacht v. United States, which overturned an offence relating to wearing of military uniforms in plays or films that disparage the military. This one is debatable as it was 5-0, but that depends how your supermajority requirement is written. If you need 6 votes (or 7) it goes too.
Second, I assume that SCOTUS would already take most cases about the striking down of Congressional Legislation, but would this also apply to trial courts and courts of appeals? If US DIstrict Courts couldn't strike down Federal laws, would they still try the cases, or would the cases start a the Supreme Court as an original jurisdiction?
If 2\3 vote is sufficient for a veto override, it should be sufficient for a court supermajority. But the major problem is how to count the votes in cases with split opinions. The supermajority vote should require at least six justices concurring in a single opinion and not writing separately.
The real scandal here is the court's frequent use of the so-called shadow docket to make emergency decisions (sometimes before an appellate court has even ruled on an issue) and without a clear explanation of its rationale which leaves lower courts in the dark. Almost all of these decisions (some 90%) have been in favour of the Trump administration.
https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket-tracker-challenges-trump-administration
https://theconversation.com/supreme-courts-shadow-docket-brings-hasty-decisions-with-long-lasting-implications-outside-of-its-usual-careful-deliberation-281212
Some federal judges have even contended that such rulings cannot be binding because they have not been explained, an extraordinary level of defiance. Joined by fellow conservative justice and Trump appointee Brett Kavanaugh, Gorsuch wrote that all Supreme Court orders carry the weight of precedent, regardless of whether or not they were issued in a shadow docket ruling. Gorsuch rebuked three U.S. district judges who had ruled in Trump-related cases - William Young, Brian Murphy and Matthew Maddox - saying their decisions were at odds with Supreme Court orders in shadow docket cases. "Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them," Gorsuch wrote.
If the administration is only seeking relief in those cases it thinks the court will grant, the success rate should be high. Moreover, concentrating on the supreme court success rate in cases that are not final, overlooks all the lower court cases not disturbed by the supreme court.
Clever, but since 90% of the Constitution has been destroyed by these hooligans, let's have this discussion AFTER we get reversals on all these racist, anti-regulatory and pro-corruption "political" decisions.
While I strongly approve some version of the "consensus" requirement I doubt that alone will whip the court into legal humility. Term limits is still a very viable idea and is used in most countries interested in judicial accountability. It is entirely possible the founders assumed/expected earlier mortality would require more frequent "refreshment" of the SCOTUS bench. Lawyerly longevity is not always the best strategy for court performance. Old age brings with it not only hardening of the arteries and other ailments, but hardening of the mental faculties. That can easily happen at any age with delusions of infallibility.
Earlier postings have some good ideas to implement reform and both houses of Congress should engage in a colloquium to discuss improving SCOTUS efficiency. The current practices of pronouncements without published reasons and other serious work evading bypasses is a symptom of legal dysfunction throughout the judicial establishment. Too many cases funded by greed, vanity, and power mongering being taken all the way to SCOTUS displaying the power of morbid wealth petulantly pushing for favorable judgement, also suggests those same oligarchs and kleptocrats would not think twice about using money to buy Justice.