Home / General / A Trumped-Up Supreme Court

A Trumped-Up Supreme Court



I have a piece in Mic about how one of the greatest tragedies of the people’s second choice winning the presidency is that Republicans may be able to impose a constitutional vision on voters that have consistently rejected it for decades:

It would be one thing if Republicans had persuaded the American public about the merits of their neoconfederate constitutional vision. But they haven’t. The Democrats have now won the popular vote in six of the last seven presidential elections. Going back to 1964, they have won the popular vote eight times, Republicans six. But Republicans have controlled the Supreme Court since early in the Nixon administration, and will be able to continue this into at least a sixth decade.

Thanks to the Electoral College — that anachronistic and indefensible mechanism the Constitution uses to select the president — putting the popular vote loser in the White House twice in 16 years, along with institutional failures such as the Supreme Court’s lawless resolution of the election in 2000, the FBI putting a thumb on the scale in the last days of the 2016 election and widespread vote suppression in both 2000 and 2016, Republicans have maintained a stranglehold on the Supreme Court while representing an increasingly narrow coalition.

At this stage of American constitutionalism, the most anti-democratic institutional features all have a mutually reinforcing effect. Just hope that the decisions of Ruth Bader Ginsburg and Stephen Breyer to remain on the Court rather than allowing Obama to nominate their replacements don’t make the selection of Trump even more catastrophic.

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  • rm

    Given how things went with Garland, do we think that if Ginsburg and Breyer had retired in 2012, their seats would not still be empty?

    I think I am snarking bitterly, but really, I’m not sure.

    • Denverite

      Obama would have been allowed to fill them because they wouldn’t have flipped the Court. My guess is that if one of them had retired or died in 2016 instead of Scalia, the same would have occurred for the same reason.

      • I think Obama would have been allowed to replace either of them in 2012. In 2016, though, the “reasoning” the Republicans used to deny replacing Scalia applies just as well to any justice, with the added benefit that it would have more firmly locked in the Republican advantage on the court.

    • Scott Lemieux

      Republicans didn’t control the Senate until 2014, so sure. Reid would have blown up the filibuster for Supreme Court nominations if necessary.

  • Joe_JP

    Aside from Breyer for White (who voted with the liberals on certain things like sexual equality outside of abortion rights), the Supreme Court didn’t move at least a bit to the left since the 1960s. Ginsburg might be somewhat more left than Blackmun, but like Kagan for Souter etc., it was mostly a wash. OTOH, Alito for O’Connor was a true shift.

    I thought that with Clinton that we would have for the first time in my lifetime a shift on the Supreme Court somewhat left. Now, there is little chance of that happening in at least a decade or more. Instead, we very well might go backward. Realize “might” is optimistic. It is tragic.

    • Mark Field

      Personally, I think a decade would be optimistic. Unless the Dems increase the size of the Court, and unless Ginsburg and Breyer live longer than expected and the Dems win in 2020, the chances of a shift are probably at least 15 years out (based on Thomas’ life expectancy).

      • LosGatosCA

        James Comey fulfilled his mission, Obama and the liberal political appointees on the Supreme Court did not.

        Supreme Court justices are just politicians in robes, a fact better understood by Scalia and Sandra day O’Connor than Ginsburg or Breyer.

        There’s always been a lot more at stake than the ACA, facts that Republicans never forget.

        The Court, (minority/lower class) voter suppression, Planned Parenthood, etc,etc,etc.

        The Democrats have been misplaying their cards my whole life.

  • Domino

    Can someone who know more about this than me point out why every State is entitled to at least 3 EC votes? If the electoral college more accurately reflected population (CA, TX, NY & FL get more votes) then I could tolerate it more. But the fact that Vermont and Wyoming get to have EC votes that are way disproportionate to TX and CA makes 0 sense.

    • malraux

      We need a method to elect a president; this is a method.

    • wjts

      Because electors (outside of D.C.) are apportioned according to the number of legislators representing that state in Congress. So one for each senator and House member gets you a minimum of three. And the number of House seats has been capped at 435 since the early 20th century, so states that have grown in population since then are handicapped in terms of representation according to population.

    • Denverite

      The “why” is that the electoral college landscape was very different in the late 18th century. There were only 13 states, and the ratio of population of the largest to the smallest was less than 10:1. Adding the two Senate votes was intended to smooth out the disparity so that the big states only had 3x the voting power and not 8x. It’s not the same now, where there are 50 states, and the ratio of the biggest to the smallest is more like 80:1 (and even taking out the big outliers of California and Wyoming, it’s like 30:1). It’s just a different world, even accepting the rationale from 1785.

      • Joe_JP


        It was a reasonable compromise in 1787, though even then people like Madison wanted the Senate to be popularly apportioned [the three electoral votes arising from the legislative apportionment rule where each state had at least three people in Congress]. But, times changed, including population differentials. And, it looks much less reasonable.

      • GeorgeBurnsWasRight

        I’m not close to being a constitutional scholar, but my impression is that the EC was created because it was the compromise necessary to get all 13 colonies to agree to ratify the constitution.

        It looks inevitable looking back to most people, but it’s not at all obvious that the colonies were going to unite; after all, their first try produced a constitution which gave the individual colonies too much power relative to the federal government. This could only have happened because the articles of confederation represented what the colonies wanted, and only after it clearly failed did they grudgingly give up some of their autonomy.

        Two centuries-plus it’s not surprising that this mechanism which was necessary back then no longer meets our current needs. But we worship the constitution and its authors as if they had the ultimate wisdom for all time, instead of admitting that they were a bunch of gifted yet very fallible men who came up with a constitution that could be ratified, and luck played a significant role in their success.

  • (Don’t) Say My Nym

    What if all 4 good justices had gone on strike to force Garland hearings?

    This question is not pointed at what might have been, but at the kind of serious resistance tactics we need to be thinking about now.

    • Dilan Esper

      As I have said every time the Ginsburg thing came up, judges don’t think of themselves as naked political actors (even though Supreme Court justices often are) and this is one of the foundational fictions of our legal system and not one that anyone here is going to change.

      • LeeEsq

        At least some Republican judges act and might even think of themselves as political actors at times.

      • LeeEsq

        Republican judges act and might even see themselves as political actors at times.

      • Murc

        As I have said every time the Ginsburg thing came up, judges don’t think of themselves as naked political actors

        Hogwash. There are plenty of judges who think of themselves this way.

        • Dilan Esper

          No, there aren’t. Especially federal judges and most especially Supreme Court justices

          They are inculcated from law school forward about judicial independence. It’s a big deal in Senate confirmations too.

          • Gator90

            So when the Supremes decided Bush v. Gore, the justices comprising the majority honestly believed they were neutrally applying the law?

            • Dilan Esper

              Not necessarily. (Although I bet you the urge to justify whatever one does using neutral principles is huge even then.)

              But the problem with a lot of non-lawyers and non-experts is they assume Bush v. Gore (and a few other highly politicized cases) comprises the courts’ output.

              Think about what a judge does day in and day out. Do they consider themselves a political actor when they decide ordinary cases?

              Lots of US Supreme Court cases are 9-0. They don’t get as much attention, but they happen all the time. Are the judges acting politically, or are they trying to get the law right?

              This is deeply engrained in our legal system. Judges AREN’T supposed to be political actors, and even when they do, they tend to tell themselves that they are not, and even when they do and they know they are, they are supposed to pretend that they are not.

              This is also why judges– even ideological judges– tend to avoid highly ideological gatherings and groups. This doesn’t happen 100 percent of the time, but, for instance, you never see a Supreme Court justice speaking at either party’s presidential nominating convention. Ever wonder why?

              This is not changing and activists are simply never going to convince liberal judges that they should do these sorts of activist things.

              • Gator90

                you never see a Supreme Court justice speaking at either party’s presidential nominating convention. Ever wonder why?

                Certainly Supreme Court justices understand the importance of appearing politically neutral. That doesn’t mean they actually are, or that they perceive themselves to be.

                As to the 9-0 decisions, there are many cases that do not have a significant political dimension. In such cases, the justices are not political actors because they have no need to be, and they actually do attempt to apply the law in good faith. But how often is there a 9-0 decision in a case that has a distinct left-versus-right dynamic, i.e., one as to which liberals and conservatives are inclined to disagree as a matter of ideology?

              • efgoldman

                This is deeply engrained in our legal system. Judges AREN’T supposed to be political actors

                So Rogers Brown and her acolytes on the fifth circuit aren’t political/religious actors and decide all their cases using strict legal reasoning on the merits of the arguments?

              • efgoldman

                This is deeply engrained in our legal system. Judges AREN’T supposed to be political actors

                So Rogers Brown and her acolytes on the fifth circuit aren’t political/religious actors and decide all their cases using strict legal reasoning on the merits of the arguments?

        • Joe_JP

          No, they think of themselves as political, but not “naked” to the degree required for that strike thing to be likely.

          So, RBG clearly had political sentiments, but not so blatant as to simply criticize Trump wily-nily.

    • Scott Lemieux

      How would that have forced the Senate to hold hearings anyway?

      • sneezehonestly

        It wouldn’t, at least not directly. But leaving the Court without a quorum would shut it down entirely, and no cases would be heard or decided. This would, hypothetically, cause a crisis big enough to force the Senate to hold hearings.

        In my opinion, it is more likely that Congress would have impeached the four “striking” justices out of spite before giving in and holding a hearing for Garland.

        • Murc

          But leaving the Court without a quorum would shut it down entirely, and no cases would be heard or decided. This would, hypothetically, cause a crisis big enough to force the Senate to hold hearings.

          It really wouldn’t have.

          I don’t believe the Republicans are political nihilists; they have things they care about very much and will work to make those goals happen.

          But “a functioning Supreme Court” isn’t one of those things. A court that isn’t working doesn’t hurt them at all. Indeed, it helps them, because the circuit courts can get up to all sorts of mischief.

          • sneezehonestly

            I agree with you. I was just explaining the thought process behind the idea that was being discussed. As I said in my second paragraph, I think impeachment of the “striking” justices (which would, obviously, leave the Court without a quorum, and leave all the power to the circuit courts) would be the likely outcome.

            Under the impeachment alternative history, the Republicans wouldn’t have enough votes to convict, but they would use the “strike” by the liberal justices to show that Democrats are the real obstructionists.

  • Brett

    Congress controls the number of Justices on the Court. A progressive Congress down the line could increase the size of the Court to dilute the power of the conservative justices (which was unpopular last time but might be successful the next time around), or curtail their jurisdiction. And if they shrank the Court in size . . . would they have to impeach justices to do that, or would they just be forced out automatically?

    Of course, that’s assuming that Democrats retake power again in the near future. That might be a big if, although it’s happened before and the Republicans will certainly fuck enough shit up to potentially make it possible.

    • Denverite

      would they have to impeach justices to do that, or would they just be forced out automatically?

      The former. Theoretically, if they were willing to wait, they could just say that retiring/dying justices wouldn’t be replaced without constitutional issue.

    • rewenzo

      I like the idea of expanding the Court. One problem is that the Republicans will just turn around and do the same thing when they return to power, but:

      (1) A universe where Democrats and Republican control of the Court switches every 4-8 years is better than what we have now

      (2) Ideally we would package the Court Packing with a more comprehensive set of election reforms so that Democrats are not so consistently screwed

      • Phil Perspective

        (2) Ideally we would package the Court Packing with a more comprehensive set of election reforms so that Democrats are not so consistently screwed.

        In an ideal world, Democrats wouldn’t shoot themselves in the foot by defunding ACORN, and similar stupidity.

      • Steve LaBonne

        I’m for expanding the size of the House of Representatives as well. If the Republicans want to regain power after that, they will have to actually learn how to appeal to a majority of voters.

        • Mark Field

          This is THE critical issue, but I don’t see any sign that elected Dems recognize it.

        • Ramon A. Clef
          • Joe_JP

            how many would that amount to? thousands?

            Apportionment and gerrymandering is a problem, but I wonder what the “democratic deficiency” ratio amounts to in bare numbers. [Mark Field suggests a number.]

            How many more representatives would really be necessary until they “have to actually learn how to appeal to a majority of voters”? For one thing, they already need to do this somewhat — the fact they do so by lying, in negative ways etc. aside. I gather it’s only part of the problem.

            From what I can tell, the problem is most blatant in a few states. Plus, the biggest problem at the moment very well might be state government and not just because of its power over apportionment. Somehow, the Republicans gained power over a scary majority of them in recent years.

      • ASV

        Systemic governmental reform is something that the Democratic Party, despite being the home of most remaining goo-goos, never seems very interested in. We should have the abolition of the Electoral College in the party platform, along with fixed-term SCOTUS appointments, an expanded House, and at the very least major structural reform of the Senate. Even having prominent Democrats talking about these things would be nice.

        • rewenzo

          I think part of the problem is that openly campaigning for government reform sounds like you think the Constitution is, god forbid, less than perfect. The other issue is that it’s really hard to actually reform the government without constitutional amendments and those are functionally impossible, so why take the hit on something that can’t ever be fixed?

          But Democrats need to come up with a platform of legislative and executive changes that will tighten the relationship between votes and winning elections, and makes voting as easy as possible for as many people as possible.

          • Mark Field

            Congress can take some steps without amending the Constitution. The most important, as Steve LaBonne suggests above, is to increase the size of the House. Congress has undisputed authority to do this.

            I’d suggest they increase it to 657 (the size of Parliament). That makes urban districts more compact and allows more representation for those constituencies. It also reduces the current over-representation of states like WY, which have less population than an average House district.

            Another legislative fix would be a national voting bill of rights, which Congress can pass under its authority to regulate the time, place, and manner of elections.

            A third would be to establish a national redistricting commission in order to prevent gerrymandering. The Constitution is silent on this, so there’s no textual objection to it. That said, a conservative Court might strike it down.

            • searcher

              At least 659. As the biggest and best democracy in the world, we should have the biggest and best House of Representatives in the world. And anyone who says otherwise is a Commie and a traitor.

            • ASV

              To hit the same average district population as the UK, we’d need to go to nearly 3300. I say just make it a little easier and divide every existing district in ten, for a total of 4350 House seats. In a reallocation, Wyoming would get eight, so we would be well beyond the point where any tiny state was getting overrepresented in the House.

              • Redwood Rhiadra

                You’d also have a Congress too unwieldy to pass ANY kind of legislation, much less liberal legislation. And tiny districts *also* lead to the problem of a lot of them electing total crackpots (goldbugs, flat-earthers, LaRouchites, etc.) – New Hampshire is *notorious* for having this problem due to having 400 Representatives in their state House.

                • Just_Dropping_By

                  God forbid that people you don’t agree with be able to get political representation!

                • Lurking Canadian

                  Is 100,000 a “tiny” district?

                • ASV

                  A handful of crackpots can do a lot more damage in a body of 400 than in a body of 4000+.

  • The best hope here is that Scalia’s seat is the only one Trump gets. It’s not actually that far-fetched, there were no appointments at all in three of the last six Presidential terms (Obama’s 2nd, Bush’s 1st, Clinton’s 2nd), but it’s all dependent on luck.

    It would also be helpful if the Democrats could somehow retake the Senate in 2018. Assuming massive Trump unpopularity (which seems likely), holding a seat open for a year or more until after the 2020 election would be a good thing to do. That’d reduce the window we have to worry about from four years to two.

    • Steve LaBonne

      The 2018 map is terrible for Democrats; short of the Republicans going the way of the Whigs, which ain’t gonna happen, there’s no chance.

      • L2P

        Counterpoint: It’s a whole new ‘Merica now.

        The Republican candidates, to an extent we’ve never had before, run on nonsense. That they can bring back factory jobs from Mexico. That they can replace Obamacare with something cheaper and better. That they are the party that will rein in big banks. That they can build a wall Mexico will pay for.

        And IMX a significant number of Republican voters intend to hold their party to it. They have everything now. There’s no excuses. If those factory jobs don’t come back, if their insurance sucks or is expensive, if the economy isn’t booming and their kids don’t have awesome jobs, if those immigrants are still mucking around, they might not be back.

        There’s a lot of Republicans that aren’t “message board” Republicans. We’ll see how they pull in 2018.

    • rewenzo

      Democrats retaking the Senate has to be the priority. Oversight, actual investigations of unethical wrongdoing, blocking judicial appointments, preventing the looting of the Republic. Soooo important.

    • TopsyJane

      The luck and the electoral map are all with Trump right now. He’s already unpopular, but that’s not stopping him or his party.

      I trust, or hope, that Scalia’s replacement will go through without a single Democratic vote. We might as well die fighting and the Dems can’t help establish the terrible precedent being set with the Garland nomination.

  • OT, sorry, but I just noticed today that Nat Hentoff died last week. Along with Anthony Lewis, I think, Hentoff was one of the first writers who helped shape my views on civil liberties and first amendment issues. It was just gravy that he was also an exellent and influential writer on Jazz.

    • Just_Dropping_By

      I’m surprised that Lemieux didn’t post something cackling about it.

  • Paleolithic

    obviously Saul Alinsky has kompromat on you


    my new favorite word, just say it a few times, wonderful

    • Brett

      It rhymes with laundromat!

    • Steve LaBonne

      Given the incredibly boring, straight-arrow life that I lead (nerd that I am), I find it amusing to try to imagine what kind of kompromat anybody could get on me. Well, I’m an atheist, so I guess there’s that. (On the other hand, as a UU I am also a regular churchgoer who sings in the choir!)

  • Abbey Bartlet

    Yes, but at least Hillary Clinton won’t get to appoint neolibs to the Court.

    -Bartlet, once for Gallifrey

    • GeorgeBurnsWasRight

      Off topic, but it seems to me that the US government is becoming about as disfunctional as the one on Gallifrey was towards the end.

  • Just_Dropping_By

    An interesting question: what would have happened if Obama had offered to McConnell in late May of 2016 that he would publicly endorse and encourage Democratic members to vote for a constitutional amendment setting an 18-year term limit for SCOTUS justices appointed after May 31, 2016 in exchange for Garland’s appointment by the Senate (i.e., that Garland would be subject to the term limit)? It seems like he might have gotten McConnell to take that deal based on what the polling for Trump looked like through the summer.

    • GeorgeBurnsWasRight

      I don’t think McConnell would want to be seen dealing with Obama on anything. Look at how on at least one occasion when Obama supported a Republican position they immediately switched to opposing their own bill.

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