The US Supreme Court Thread - Post Roe v. Wade reversal edition

Dems spend too much time infighting in conceptualizing a progressive utopia to play the long game. We could have had easy legislation on culture war topics like abortion, immigration and firearms that meet 95-99% of any achievable goal while eliminating 95% of the conservative vitriol. Instead we chase arguments related to “late term abortions”, taking all of the guns, immigration and transgender college swimmers. Hard to play the long game when people are busy fighting about the precise destination rather than hitting core objectives.

People were scolded for suggesting RBG should retire when Dems had the window to appoint a suitable replacement. So glad people protected her dignity to remain employed on the court for as long as she wanted. That’s been super empowering for women.

It may seem harsh to pick on her, but she was smart enough and close enough to see precisely what was going on with the court and the fed judiciary overall via Federalist Society and the corporatization of a Supreme Court bar.

 

Meh, owning the darkies and libs is more important. Priorities are just that...

 

This is stupid; there was never any point at which the Democrats could count on the votes to confirm a replacement... you are pretending to yourself that they had a significant majority.

 

People should not have been scolded for the suggestion.
But RBG should not, IMO, receive the vitriol she has received for not retiring earlier. Sure, maybe she should have seen the political headwinds, but no one willing to ditch convention like Mitch McConnell had ever been Senate Majority Leader before. It wasn't clear how awful he would be. It also wasn't clear that Trump was going to win in 2016.

This is a very "I told you so" argument, that was not clear in the moment.
That said, this mistake should NEVER be repeated.

Which is why I think Sotomayor has made a terrible miscalculation by not retiring. We are looking at a court potentially being shy a member for years if the GOP regains the Senate and Harris wins the Presidency.

 

Nope. Dems had 53 seats prior to Obama’s second midterm. Her argument was that they’d never get someone as liberal to replace her. She never refuted they’d get a liberal. And being the most liberal or the second most liberal justice on the bench confers no real advantage to the advancement of any of the causes she held dear. Those decisions, and the articulation of those decisions are fought among justices that would be categorically rated 3 through 6, depending upon the question at hand. They didn’t need to be as liberal as her. 6 of the 9 seats Dems lost in the subsequent election weren’t going to be competitive and most of those were held by soon to be retirees facing no election pressure anyway. Those were all knowns.

We also knew that a lot of states that were previously playable for Dems for Governor and Senate seats were losing ground very, very quickly. It had been occurring since 2000 and it was continuing. That was known.

She was an 80 year old cancer survivor. That was known.

We knew that things were getting increasingly partisan in the Senate. Known. We didn’t know precisely how partisan until the GOP controlled the Senate Obama’s last 2 years, but if anything that only provided additional optimism for getting her replacement confirmed.

Any one of the 9 sitting on that bench knew that the nature of the court and the types of cases and arguments being made was changing. They could feel it. Scholars were talking about it. They were inviting them in on speaking engagements to talk about it.

So no. Not stupid. It’s just a simple case of a very intelligent, ambitious high achieving person not being able to come to grips with fact that she was of an age where she needed to think strategically about succession for such an important role. It’s a very, very common story that doesn’t make someone bad. It makes them human. Biden. I’ve seen it very, very often with people who have spent 40 years of their lives building extremely successful businesses with no family or current senior employees they trust to hand over the keys to. And deferring that outcome can be the difference between getting 50 to 100 million dollars to a surviving spouse and 4-5 kids or seeing that business get run into the ground or being sold at a fraction. And these are people who sacrificed a lot of time away from their kids who want to repay that. It can be deeply personal even down to a parent child level. And they still can not make that personal decision.

Because they don’t want to see what the business/court becomes after them and they can’t imagine other ways to fill their personal time. No number of boards, committees, adjunct roles, etc feel like enough for a lot of people when their current job is essentially “them”. And smart people can justify their need to stay on when a job is their life’s passion and their core identity.

maybe it’s just me because I’ve seen it in other areas so many times professionally. But I do think this was forseeable, which is why a number of people who are experts and study this sort of thing were calling for it. And her responses were very similar to clients of mine when succession is brought up: how dare you, no one can run this like me, etc. I’m not angry with her. Frustrated for sure. It’s a pretty common human trait really. It is very difficult to get out in a bit early in an expanded time window when that is objectively a good time to get out. And we all paid a price.

 

Great post.

If RBG had lived 2 more months, even in a coma, then all this criticism would be largely muted, and more of a "Gosh we got real lucky! Don't do that again!"

And the court would still be 5-4, and Roberts would have pushed through all the same shit decisions.

 

The GOP is a death cult.

 

Really it's just a consequence of our stupid constitution, which says judges are appointed for life. The other side of the coin was Thurgood Marshall. Nobody wanted him to retire, but he said, "My body is falling apart."

 

Our Lives Suck With The Thrill Kill Kult

- American women

 

You might want to try naming the 53 reliable votes, without kidding yourself. I don't think you can.

 

Ginsburg in a coma, I know I know, it's serious
Ginsburg in a coma, I know I know, it's really serious
There were times when I could have murdered her
But you know, I would hate
Anything to happen to her
Yes, I do want to replace her

Do you really think
She'll pull through?
Do you really think
She'll pull through?
Do ooh ooh ooh

Let's prep Amy Coney Barrett
I know, it's serious

- as sung by Mitchorrissey

 

Don’t need 53. Just 50. And they held 55, 56, 53 seats at various points leading up to Obama’s 2012 re-election and the disastrous Senate election of 2014 that people could easily see coming. There were some like Kirk, Collins and Murkowski who were reliable GOP pro choice voters until the hammer fell after the 2014 wave. Enough to offset the Caseys and Mancins. And there were enough Dem retirees in some of the more vulnerable states who wouldn’t need to worry about re-election. Without going person by person (although you could given their abortion and ACA voting records), 50-52 were definitely there.

And if you don’t believe that, ask yourself when you think the math would have supported succession. Through a 2012-14 lens:

Losing the Senste decisively in 2014 was a known. How decisively was not. Gaining it back in 2016 w a Dem POTUS was possible. Getting to a less contentious Senate confirmation margin was not going to happen. You need a Dem POTUS to nominate someone as liberal, and given the states in play and the midterm headwind of the sitting POTUS, that wasn’t going to happen in 2018. Best chance to get to 53 would be to have an unpopular GOP POTUS from 2016-2020 w a wave election, and 53 would have been very optimistic. Which is kinda what happened, but only to 50 seats.

Not retiring in that 2012-14 window meant a long term commitment to at least 2020 was required. Not something that an 80 year old with multiple cancers in her medical history especially should be considering. She damn near made it. And it was reasonable to foresee that nomination process as no easier (and likely more difficult) than it would have been in 2012-14.

 

A lot of it would have played out similarly for sure. But margins do matter because the reach and scope of decisions is influenced deeply by the tipping point justice required to secure the majority opinion. It Roberts (or anyone else for that matter) was the decisive justice required to secure the opinion, we would have seen more things get sent back to lower courts or more narrow delineation of why X should deviate from precedent. And we very likely would have seen some different decisions on a few 5-4 narrow majority decisions or an outright refusal to hear.

But yeah, with a 5-4 court there would be some
reason to believe the court could turn the other way within a decade despite the unfavorable senate dynamics. Currently, I think we’re more likely to get a 7-2 court than to get back to 5-4. Hell, 6-1, 5-3, 5-2, 4-3 are probably more likely than 5-4 in the next 6 years. The GOP will likely block any nomination a hypothetical Harris administration would bring to them. The only way they wouldn’t is if they internally calculate the risk of an outright popular revolt or a hastened Sun Belt electoral sea change is a worse outcome than maintaining their 6-3 majority or not pushing for 7-2.

To his (very partial) credit, I do think that Roberts is trying to not break the country/court and I think that will become more apparent over time. If only because the risk of the country breaking is increasing. Especially if Trump is elected. I don’t think he’ll change on social issues. Wrt to regulatory issues, setting a bar on state v fed issues, corporate vs private citizen matters…I think he realizes they are in a huge conundrum. He’s political. He wants society and institutions to hum along. He won’t care about reproductive freedom or inserting religion into government or LGBTQ or POC protections unless they reach a point where that becomes the thing that leads to popular revolt where 70%+ of the country is asking WTF happened. And as much as everyone should care about those things, I don’t think they will. On regulatory, state v fed, corporate vs private interests/public good access angles, I could see him switching things up substantially if Trump is elected. People grossly underestimate what a second term would do from an economic and regulatory and household financial security standpoint. We have no collective concept of true hardship. Markets and trade partners and global partners want certainty and Trump would crush that. The economic fallout would be terrible. That’s where things disintegrate IMO and he doesn’t want to be the last chief justice of the SCOTUS.

 

LOL @ John Roberts.....Who do you think you are fooling.....You are a corrupt hack and one of the worst Chief Justice ever. You are in competition with Roger Taney at this point.

Chief Justice John Roberts “was shaken by the adverse public reaction to his decision affording Trump substantial immunity from criminal prosecution,” CNNreports.

“His protestations that the case concerned the presidency, not Trump, held little currency.”

“Unlike most of the justices, he made no public speeches over the summer. Colleagues and friends who saw him said he looked especially weary, as if carrying greater weight on his shoulders.”

 

Good. His court and his legacy will be dogshit

 

******** that guy!!
At least Trump embraces he is an asshole. Ain't nothing worse than an asshole in who thinks he's a good guy. If this article is to be believed and not just a reach around from a journalist friend in exchange for an exclusive in a few months.

 

I'd say the legal community leans liberal and the great CJs of recent vintage presided over some major decisions like Brown, Griswold, Miranda, Loving, Roe, NY Times v Sullivan, etc. He's a Federalist Society chode but doesn't wanna be viewed as one. Too f-ing bad.

 

Maybe just a right-hand exit that veers off a cliff

 

Im not disagreeing with your points. I think what he’s doing is the same thing Mom and Dad do when they take the kids to Disney and fun staff and laugh and pretend when their marriage is shit. He’s pretending that everything is okay with the indignation hoping it will turn out okay. But that is becoming increasingly difficult to ignore. The fact he’s not out doing public engagements is a symptom of that. The SCOTUS has always been a political animal but it detached with an aura with the black robes and lack of camera footage and appointments in lieu of elections. He’s being asked to supervise a bunch of people he can’t fire hired by a body that doesn’t reflect the general attitudes and beliefs of the country at large due to the system we have established. I don’t agree with his ideological and political views, but at the same time the Senate has pretty much screwed him. At this point, he’s not even the decisive vote wrt to which cases they accept. Trying to maintain even the illusion of the institution being above politics is out the window. So despite my difference of opinion w the guy, he does have a bit of sympathy from me. Being asked to clean up a mess 100 people have created over 30 years given the limitations of his authority isn’t optimal. There will be some difficult choices ahead for the guy.