I've been thinking of this recently - almost every other member of the federal government is either term limited (POTUS) or has to retire at some point. No matter how good they are at their jobs. Except Congress and the Supreme Court.
We can determine what the correct age is for mandatory retirement for all members of government (especially as we live longer) but the there should be some mandatory retirement for all. Whether that is an actual term limit, age requirement, or maximum years of service can be determined. Seeing Thurmond, Feinstein, and others in the halls of Congress when they clearly can no longer do their jobs is an affront to a functioning democracy. We shouldn't have to wait 50 years to replace Justices who have shown clear ethical lapses or others who are ruling from personal belief and not based on legal scholarship (There is definitely a Venn diagram with both in the middle in this instance).
I doubt legislation will get anywhere - whether adding judges, term limits, etc. I would suggest (1) encourage President Biden and notable Senators and Representatives to denounce Thomas and Alito, in particular, for their unethical acts bordering on accepting bribe (or impeach them) and (2) encourage attorneys representing progressive interests to demand recusal of Thomas, Alito and Barrett (the importance is not whether the motions will be granted but the publicity they will get). These tactics might cause Roberts to act because he seems to care about the Court's dismal reputation.
Just getting around to reading yesterday's Morning Shots. Gosh, I loved Tom Nichols article. I think about Patriotism so often now as people try to shove their version down my throat. I don't put our flag out front anymore, because I don't feel the same as those who run around waving it from their huge trucks. I hope someday to put it back out on the front of our house. I'm not sure what it will take. For now I will keep my Patriotism to myself.
Mitch McConnell's Republicans Senate did in fact steal a Supreme Court seat, we do need to be clear about that, and we do need to repeatedly emphasize it, when talking about this Court's legitimacy. What happened with Merrick Garland is 10X worse than what happened with Robert Bork, and Republicans were like a dog on a bone with THAT for thirty years!
I think that there is a clear case, based in Article II Sec. 2, for why what McConnell did with the Garland nomination was Unconstitutional. When we say that McConnell stole the seat, we have a specific complaint, rooted in the basic law of the United States.
The short version of the argument is as follows: Article II Sec. 2 gives the President the prerogative responsibility to name new officers to the Court, when Court vacancies appear. The President has the exclusive power to do this, AND the President MUST act on such vacancies. He or she cannot, for example, simply sit on a nomination, until the composition of the Senate changes to become more to their liking in getting a nominee through.
The Senate has a correlative obligation to act on the President's nomination. They cannot act as if the nominee doesn't exist.
But that's exactly what McConnell's Senate did. Recall that McConnell peremptorily declared, barely a day after Scalia died, that his Senate would refuse to recognize ANY and ALL nominees put forward by Obama for Scalia's replacement. This was not the proper, formal response to a SINGLE nominee that is mandated by the Senate's prerogative obligation of advise & consent. This was a shutting down of the entire NOMINATION PROCESS, and thereby it was a cancellation of the President Article II Sec. 2 powers and obligations. This was a violation of the Separation of Powers - not merely against the Executive, but ALSO against the Judiciary.
The case for the Unconstitutionality of McConnell's move in 2016 can be argued for in a little more detail, but that's the essence of it. When we talk about the lack of legitimacy of this Court, one of the key pieces of evidence we have is that Gorsuch occupies a stolen SC seat (technically speaking, stolen from the Obama electorate, who in 2012 voted to give Obama the power (for a FULL four-year term!) to fill vacancies to the high court).
This does not merely cast doubt on the legitimacy of any 5-4 Conservative ruling; it also casts doubt on 6-3 rulings where Roberts would otherwise have been likely to join the liberals for a 5-4 majority - with the Dobbs case being the supreme example.
On the reclaiming patriotism, disclaimer did not read the whole article. In this context the text by our politicians for 4th of July comes to mind as the republican party proudly celebrating the Liberian Flag and most egregious a US Senator posting a "quote" which was a total lie and attributing it to a great Patriot Patrick Henry which was also a total lie. At least the RNC quickly removed the offending post, Senator Hawley chose to leave his offensive post up crowing about how it "triggered the libs" apparently triggering the libs with a blatant lie is what passes these days for patriotism among republicans.
there is an answer to the problem. . . Congress could ACTUALLY do its work and pass the legislation necessary to solve problems that have, for decades, been left to the courts to resolve.
Yet, some of the “stolen seats” were due in part to the failure of the Dems. Unlike the republicans, Dems never successfully communicated the importance of the Supreme picks to other Dems before elections. Folks never embraced the fact that the decisions of these unelected lifetime appointees could affect day to day lives.
Where did Democrats fail on this issue? They got rid of the filibuster in terms of approving district court appointments and were flayed for it...violating norms Oh My! McConnell and the Republicans were in the majority during the times of the last two vacancies. What should the Dems have done that they didn't do?
From my perspective, SCOTUS term limits are the best answer ... and the toughest. Now the ony fix for a clearly partisan, corrupt, incorrigible person having been imbedded into the Court thanks to Machiavellian machinations is death or resignation. While term limits would ameliorate the problem, instituting them requires that most difficult of tasks, a Constitutional Amendment...and a very long wait.
Court packing is an answer, but not the right one since, done once, it can always be repeated when the electoral cards are shuffled.
The only solution is that which Joe implied, that for more normal times, which I understand to mean a the political way of saying, not only does time heal all wounds, it wounds all heels.
Maybe Ben Franklin was more prescient than was understood over time when opining that what the Founders had bequeathed on the new nation was a republic, if it could be maintained. In a republic, democratic voting as currently understood is not required nor expected, thus hopefully eliminating political partisanship as a driving force.
"... constitutionality of Biden’s obviously supralegal student loan gambit."
Sorry what? You're saying the Biden Administration was acting beyond the law in the student loan forgiveness program?
Have you done ANY research on this point? The bloody Hero's Act literally allows the Secretary to WAIVE student loan payments altogether in a national emergency which COVID surely qualifies for.
Leave aside whether it was a good policy, that's irrelevant. It was 100% legal and the fact you actually bought the majority's horrendously disingenuous reasoning leads me to one of two conclusions:
1) You're too ill equipped to comment on legal issues and should probably do a shit ton more research from broader sources (no serious legal scholar thought the legal reasoning was sound). If this is the case you should join Mona in the penalty box, prohibited from commenting on this stuff until you educate yourself.
2) You're still trapped in the Republican bubble. So you should be taking notes for your next book about emerging from said bubble.
Either way to casually drop that the student loan policy was "obviously" beyond the parameters of the law was immensely irresponsible.
Well, Zuck’s been hiring lots of folks whom Musk gleefully fired (Musk believes he knows more than any old expert). Now Musk is threatening Threads with legal action for copying Twitter’s technology, since most of Threads’ new employees are Twitter’s ex-employees.
I wish I could forward your column to David Strom at Hot Air, the author of “Arizona AG Tells U.S. Supreme Court To Shove It.” Like Captain Renault in “Casablanca”, Strom is shocked-SHOCKED!-to see Arizona Attorney General Kris Mayes pledge to defy the SCOTUS and protect the LGBTQ+ community from the “303 Creative” decision. He says he is “flummoxed” at the idea that Democratic politicians might disobey the Supremes, even though McConnell, Graham, Trump, and most of the GOP have been merrily breaking norms for the last 23 years to get the current reactionary Court, from “Bush Vs. Gore” in 2000 to Trump’s mob trashing the Capitol to terrorize Congress into giving Trump a second term. Maybe the Trump GOP would realize that if your casino is too rigged for too long, the players will stop showing up, your casino will close and you will go bankrupt, no matter how much you let Renault cheat at roulette.
Is the problem really the Court? Or is it the power vacuum created by our dysfunctional legislature that‘s driving both the executive and judicial branches to overreach?
My preferred solution is to ditch the filibuster. Given the intense partisanship in Congress (which the Court okayed when it refused to curb partisan gerrymandering) precious few members of Congress have any incentive to compromise, so what’s the point of trying to build super-majoritarian consensus?
That said, I don’t think the Court this term has been so very bad. (Well, except about clean water.) But affirmative action was reformed, not abolished—only Thomas said the Court‘s most recent opinion on it (Grutter) had been virtually overruled. And, as a gay man, I’m not all that worried about the web designer case. Both gay rights and free speech are dear to my heart, so it was basically a wash.
The most disturbing thing is that the Court is taking on ginned up faux disputes against all reasonable expectations of standing. That just means that “standing” is like “fiscal responsibility” or “judicial restraint”—something for when the other party is in power. Standing matters to this Court like deficits mattered to Dick Cheney: not a bit. This may be hypocrisy but it’s not norm-busting.
Biden is very level-headed about the Court—about a lot of things, actually. Given how much he’s accomplished (Chips, Infrastructure, the Environment, Drug prices, Ukraine) in this dicey political climate, it’s pretty impressive.
I think Biden is wise not to try court-packing. Unfortunately, with the Republican Party the way it is, this will only lead to more court-packing. President Biden, and any President for that matter, should not openly speak against judicial rulings. I understand the anger dems have for a stolen senate seat. I don't agree with how the 6-3 majority came into existence. That being said, this is not the time to reconsider refashioning the court. One reason liberals are thinking this way is that they believe the court is ideological and political, forgetting all the "surprise" rulings that went in their favor. Bostock, upholding the Indian Child Welfare Act, and the most recent ruling on Alabama's gerrymandering - I could also go on to state that the Supreme Court routinely did not take up Donald Trump's cases concerning voter fraud. This court is not ideological. It does have a majority of justices that have similar jurisprudence.
My idea to minimize the effect of politics on the SCOTUS is to either add or eliminate one seat to make an even number, then require an equal number of justices from the conservative and the liberal side. Like the 60 vote rule in the Senate, at least one justice from the “opposing” view would have to agree with the other or nothing changes.
I've been thinking of this recently - almost every other member of the federal government is either term limited (POTUS) or has to retire at some point. No matter how good they are at their jobs. Except Congress and the Supreme Court.
We can determine what the correct age is for mandatory retirement for all members of government (especially as we live longer) but the there should be some mandatory retirement for all. Whether that is an actual term limit, age requirement, or maximum years of service can be determined. Seeing Thurmond, Feinstein, and others in the halls of Congress when they clearly can no longer do their jobs is an affront to a functioning democracy. We shouldn't have to wait 50 years to replace Justices who have shown clear ethical lapses or others who are ruling from personal belief and not based on legal scholarship (There is definitely a Venn diagram with both in the middle in this instance).
I doubt legislation will get anywhere - whether adding judges, term limits, etc. I would suggest (1) encourage President Biden and notable Senators and Representatives to denounce Thomas and Alito, in particular, for their unethical acts bordering on accepting bribe (or impeach them) and (2) encourage attorneys representing progressive interests to demand recusal of Thomas, Alito and Barrett (the importance is not whether the motions will be granted but the publicity they will get). These tactics might cause Roberts to act because he seems to care about the Court's dismal reputation.
Just getting around to reading yesterday's Morning Shots. Gosh, I loved Tom Nichols article. I think about Patriotism so often now as people try to shove their version down my throat. I don't put our flag out front anymore, because I don't feel the same as those who run around waving it from their huge trucks. I hope someday to put it back out on the front of our house. I'm not sure what it will take. For now I will keep my Patriotism to myself.
Excellent article on SCOTUS. Thank you
Mitch McConnell's Republicans Senate did in fact steal a Supreme Court seat, we do need to be clear about that, and we do need to repeatedly emphasize it, when talking about this Court's legitimacy. What happened with Merrick Garland is 10X worse than what happened with Robert Bork, and Republicans were like a dog on a bone with THAT for thirty years!
I think that there is a clear case, based in Article II Sec. 2, for why what McConnell did with the Garland nomination was Unconstitutional. When we say that McConnell stole the seat, we have a specific complaint, rooted in the basic law of the United States.
The short version of the argument is as follows: Article II Sec. 2 gives the President the prerogative responsibility to name new officers to the Court, when Court vacancies appear. The President has the exclusive power to do this, AND the President MUST act on such vacancies. He or she cannot, for example, simply sit on a nomination, until the composition of the Senate changes to become more to their liking in getting a nominee through.
The Senate has a correlative obligation to act on the President's nomination. They cannot act as if the nominee doesn't exist.
But that's exactly what McConnell's Senate did. Recall that McConnell peremptorily declared, barely a day after Scalia died, that his Senate would refuse to recognize ANY and ALL nominees put forward by Obama for Scalia's replacement. This was not the proper, formal response to a SINGLE nominee that is mandated by the Senate's prerogative obligation of advise & consent. This was a shutting down of the entire NOMINATION PROCESS, and thereby it was a cancellation of the President Article II Sec. 2 powers and obligations. This was a violation of the Separation of Powers - not merely against the Executive, but ALSO against the Judiciary.
The case for the Unconstitutionality of McConnell's move in 2016 can be argued for in a little more detail, but that's the essence of it. When we talk about the lack of legitimacy of this Court, one of the key pieces of evidence we have is that Gorsuch occupies a stolen SC seat (technically speaking, stolen from the Obama electorate, who in 2012 voted to give Obama the power (for a FULL four-year term!) to fill vacancies to the high court).
This does not merely cast doubt on the legitimacy of any 5-4 Conservative ruling; it also casts doubt on 6-3 rulings where Roberts would otherwise have been likely to join the liberals for a 5-4 majority - with the Dobbs case being the supreme example.
On the reclaiming patriotism, disclaimer did not read the whole article. In this context the text by our politicians for 4th of July comes to mind as the republican party proudly celebrating the Liberian Flag and most egregious a US Senator posting a "quote" which was a total lie and attributing it to a great Patriot Patrick Henry which was also a total lie. At least the RNC quickly removed the offending post, Senator Hawley chose to leave his offensive post up crowing about how it "triggered the libs" apparently triggering the libs with a blatant lie is what passes these days for patriotism among republicans.
there is an answer to the problem. . . Congress could ACTUALLY do its work and pass the legislation necessary to solve problems that have, for decades, been left to the courts to resolve.
Yet, some of the “stolen seats” were due in part to the failure of the Dems. Unlike the republicans, Dems never successfully communicated the importance of the Supreme picks to other Dems before elections. Folks never embraced the fact that the decisions of these unelected lifetime appointees could affect day to day lives.
Where did Democrats fail on this issue? They got rid of the filibuster in terms of approving district court appointments and were flayed for it...violating norms Oh My! McConnell and the Republicans were in the majority during the times of the last two vacancies. What should the Dems have done that they didn't do?
From my perspective, SCOTUS term limits are the best answer ... and the toughest. Now the ony fix for a clearly partisan, corrupt, incorrigible person having been imbedded into the Court thanks to Machiavellian machinations is death or resignation. While term limits would ameliorate the problem, instituting them requires that most difficult of tasks, a Constitutional Amendment...and a very long wait.
Court packing is an answer, but not the right one since, done once, it can always be repeated when the electoral cards are shuffled.
The only solution is that which Joe implied, that for more normal times, which I understand to mean a the political way of saying, not only does time heal all wounds, it wounds all heels.
Maybe Ben Franklin was more prescient than was understood over time when opining that what the Founders had bequeathed on the new nation was a republic, if it could be maintained. In a republic, democratic voting as currently understood is not required nor expected, thus hopefully eliminating political partisanship as a driving force.
"... constitutionality of Biden’s obviously supralegal student loan gambit."
Sorry what? You're saying the Biden Administration was acting beyond the law in the student loan forgiveness program?
Have you done ANY research on this point? The bloody Hero's Act literally allows the Secretary to WAIVE student loan payments altogether in a national emergency which COVID surely qualifies for.
Leave aside whether it was a good policy, that's irrelevant. It was 100% legal and the fact you actually bought the majority's horrendously disingenuous reasoning leads me to one of two conclusions:
1) You're too ill equipped to comment on legal issues and should probably do a shit ton more research from broader sources (no serious legal scholar thought the legal reasoning was sound). If this is the case you should join Mona in the penalty box, prohibited from commenting on this stuff until you educate yourself.
2) You're still trapped in the Republican bubble. So you should be taking notes for your next book about emerging from said bubble.
Either way to casually drop that the student loan policy was "obviously" beyond the parameters of the law was immensely irresponsible.
I expected better from you.
Well, Zuck’s been hiring lots of folks whom Musk gleefully fired (Musk believes he knows more than any old expert). Now Musk is threatening Threads with legal action for copying Twitter’s technology, since most of Threads’ new employees are Twitter’s ex-employees.
Heh. Have some irony: it’s good for your blood.
Tim,
I wish I could forward your column to David Strom at Hot Air, the author of “Arizona AG Tells U.S. Supreme Court To Shove It.” Like Captain Renault in “Casablanca”, Strom is shocked-SHOCKED!-to see Arizona Attorney General Kris Mayes pledge to defy the SCOTUS and protect the LGBTQ+ community from the “303 Creative” decision. He says he is “flummoxed” at the idea that Democratic politicians might disobey the Supremes, even though McConnell, Graham, Trump, and most of the GOP have been merrily breaking norms for the last 23 years to get the current reactionary Court, from “Bush Vs. Gore” in 2000 to Trump’s mob trashing the Capitol to terrorize Congress into giving Trump a second term. Maybe the Trump GOP would realize that if your casino is too rigged for too long, the players will stop showing up, your casino will close and you will go bankrupt, no matter how much you let Renault cheat at roulette.
Is the problem really the Court? Or is it the power vacuum created by our dysfunctional legislature that‘s driving both the executive and judicial branches to overreach?
My preferred solution is to ditch the filibuster. Given the intense partisanship in Congress (which the Court okayed when it refused to curb partisan gerrymandering) precious few members of Congress have any incentive to compromise, so what’s the point of trying to build super-majoritarian consensus?
That said, I don’t think the Court this term has been so very bad. (Well, except about clean water.) But affirmative action was reformed, not abolished—only Thomas said the Court‘s most recent opinion on it (Grutter) had been virtually overruled. And, as a gay man, I’m not all that worried about the web designer case. Both gay rights and free speech are dear to my heart, so it was basically a wash.
The most disturbing thing is that the Court is taking on ginned up faux disputes against all reasonable expectations of standing. That just means that “standing” is like “fiscal responsibility” or “judicial restraint”—something for when the other party is in power. Standing matters to this Court like deficits mattered to Dick Cheney: not a bit. This may be hypocrisy but it’s not norm-busting.
Biden is very level-headed about the Court—about a lot of things, actually. Given how much he’s accomplished (Chips, Infrastructure, the Environment, Drug prices, Ukraine) in this dicey political climate, it’s pretty impressive.
I think Biden is wise not to try court-packing. Unfortunately, with the Republican Party the way it is, this will only lead to more court-packing. President Biden, and any President for that matter, should not openly speak against judicial rulings. I understand the anger dems have for a stolen senate seat. I don't agree with how the 6-3 majority came into existence. That being said, this is not the time to reconsider refashioning the court. One reason liberals are thinking this way is that they believe the court is ideological and political, forgetting all the "surprise" rulings that went in their favor. Bostock, upholding the Indian Child Welfare Act, and the most recent ruling on Alabama's gerrymandering - I could also go on to state that the Supreme Court routinely did not take up Donald Trump's cases concerning voter fraud. This court is not ideological. It does have a majority of justices that have similar jurisprudence.
Funniest thing I've read today: Marjorie got kicked out the House Freedom Caucus for being mean to Lauren! ROTFL!!!!!
My idea to minimize the effect of politics on the SCOTUS is to either add or eliminate one seat to make an even number, then require an equal number of justices from the conservative and the liberal side. Like the 60 vote rule in the Senate, at least one justice from the “opposing” view would have to agree with the other or nothing changes.