It was crime at the time, but the laws, we changed them

“the equal dignity of the states, which sounds like a fine thing – although I think it isn’t a phrase that occurs in the Constitution? (Am I wrong?)”

No, you’re not wrong. There is nothing at all in the Constitution that requires the federal government to treat states equally.

You’ll note that the only constitutional provision cited by the majority is the Tenth Amendment, which reads:

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.

This prevents federal overreach: If an act of Congress or the executive can’t be grounded expressly or by implication in a specific provision of the Constitution, then it’s unconstitutional because it intrudes on the authority of the states.

But the Tenth Amendment says nothing about a requirement that powers that clearly are delegated to the federal government must be applied “equally” to the states. The majority just made that up.

Judge Richard Posner, a law professor and appeals court judge with a long history of conservative decisions behind him, was appointed by Ronald Reagan and has become one of the best-respected jurists in the country for the brilliance and persuasive power of his opinions. Here’s what he wrote this morning:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act … as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that … there is no such principle.

http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_down_the_law_is_all.html

It’s an extraordinary thing for a sitting lower court judge to say about the Supreme Court. I recommend his entire article to you.

Scott, Paul Campos agrees with you:

“So what we have here is a situation in which a war was fought in which 600,000 soldiers died, in large part so that the Constitution could be amended in such a way as to give Congress the power to force the slave states to treat black people like human beings. A century later, Congress gets around to actually using this power, and the law it passes is a remarkable success.

“But according to the Roberts Five, it’s unconstitutional for Congress to enforce legislation specifically mandated by the Constitution, because it has carried out its legislative responsibilities too well.”

http://www.salon.com/2013/06/26/this_supreme_court_is_a_disgrace/

Supreme Court Justices are best modeled as politicians who can’t run for office again — like second-term U.S. Presidents. They start to want to do things for their personal and ideological legacy. Treating them as if they have any respect for law as such is a mistake.

“Is it about time to rewrite the Constitution?”

In *this* political climate? Please, god, no.

I’m writing to explain, from a legal standpoint, how the two decisions are in accord (not to endorse the VRA decision). I’ve tried to simplify things into a thumbnail sketch…

As background, the starting off point is that under the traditional legal interpretation of our constitutional framework states have a lot of leeway to determine the conditions of voting (districting, methods, etc…) This is where the 10th Amendment becomes relevant as it provides constitution support for this power. However – nothing is absolute. So this ability is checked and balanced by various other constitutional provisions (the civil war amendments; art.I, sec4,cl.1; etc…).

When a court finds, as in Crawford, that the change a change voting procedure/requirements doesn’t affect any other relevant constitutional provision then no balancing is needed. Instead, as the state is exercising its power under the 10th amendment, the court should be extremely differential.

However, in Shelby, there is a conflict between the states’ power under the 1Oth and Congressional power under the 15th. Because there is direct conflict between the two constitutional provisions, Courts will scrutinize Congressional legislation that affects the states’ power to determine their various voting laws more closely. The existence of a competing constitutional consideration (the 10th amendment) forecloses the kind of hyper lenient review that the state enjoyed in Crawford. Now the court has to balance.

The real problem in Shelby is the balancing part; this “equal sovereignty” business really is mostly pulled from thin air. It might as well be a “penumbra” – even weaker really. What the Court did was create a weight by way of imagination in Northwest Austin (the “we warned you” case) to tip the scales here. It’s clever in some sense, but mostly sophistry.

10: I appreciate that you’re just advocating for your client (ahem), but this won’t work:

Because there is direct conflict between the two constitutional provisions, Courts will scrutinize Congressional legislation that affects the states’ power to determine their various voting laws more closely.

There is no direct conflict b/t 10A and 15A. “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.”

That’s a default clause. It *can’t* conflict with the 15A “delegation of powers” to the United States. Any time a later amendment gives more power to the feds, the 10A shrinks a little bit: it’s like what Eliot says a new poem does to all the previous poems.

13: concur in general. I continue to doubt that the Tenth can plausibly be read as affording any positive rights to the states, but alas, the test isn’t plausibility, it’s “five votes.”

@J Holbo
Are you suggesting that the Sup Ct’s DOMA decision is as weak, from a strictly legal standpoint, as its Voting Rights Act decision? Or do I misunderstand you?

I haven’t read either case (I mean the actual decisions). I’m still reeling from having read Thomas, J’s concurrence in the Texas affirmative action case, where the entire first part is given over to “explaining” why AA is just as bad and indefensible as separate-but-equal. That was my Sup Ct ration for the week.

@JH
Ok, I get it, thks for clarifying.

The business about the equal dignity/sovereignty of the states is interesting. I don’t doubt that its Constitutional basis is rather weak and that it can’t justify the Shelby decision. But as a general principle, it probably does have some historical basis (esp. perhaps from the debates during and just after the Constitution’s drafting); one cd probably pluck some quotes from The Federalist. But I don’t know if Roberts even bothered to do that.

I have been thinking about the broader political ramifications of these judgments. Still haven’t really gotten my mind around it. Gays vs blacks, democratic party GOTV efforts, how the female vote would interplay…

I’m not sure how it all works, but ultimately, I gauge that the Roberts Court will be sorry, because it would have radicalized sentiment in some direction or other. I also think that alienation of other elite factions that the Supreme Court ultimately couldn’t alienate profitably is also a probability. This has internal security ramifications.

In addition to Anderson’s first comment, the Crawford case did indeed involve a balancing act, despite what Counselor Devil doe not say. The whole question was whether or not Indiana state law was inviolation of the 15th amendment (is not, what grounds did the plaintiffs have)?

Anderson: Thks for the ‘equal dignity’ link; will read.

I wonder if the two ice maidens on the right, Alito and Roberts, are really as confident that the future belongs to them as they pretend

Encouraging states to hinder the right of blacks and Hispanics to vote is a positive step, for them, towards *securing* the future.

From my point of view, the five conservative justices who decided the Shelby case belong on a vanished Confederate Supreme Court, not on ours.

Word.

Rich Puchalsky @ 33

Granting that what you say is true, or at least partially true, I’m not sure that going ugly gets us any farther along the path toward E.O. Wright’s Real Utopias than does reasoning about the application of the law to our discontents. My own experience tells me — or misleads me to think, if you prefer — that without ideals, in the sense of how things might work better, the mud-wrestling made necessary by the politics of the real has little purpose except to gain for individuals or tribes a necessarily temporary advantage. Italians, for example, have made do in Italy for centuries by shrugging at corruption while mastering your recommended arts of flattery, political contacts and bribes, but the attrition rate hasn’t been notably less disastrous than our own.

To the extent that your exhaustion with rhetoric is intended ironically, I’ll happily agree with you. To the extent that it expresses a real despair, however, I’ll have to part company with you, except, perhaps, in spirit. We may be able to see beyond our own lives, but we can’t live there. That may be a tragedy, but it isn’t an excuse to run away, or to trash the principles that make it worth getting up in the morning for however long we’re able to hear the alarm clock, or feel the sun on our faces.

The short version: arguments matter, and so do examples….

I remember the Fascist wall-stencil I saw years ago — a heroic silhouette of il Duce in a helmet, with an upraised chin, and the slogan underneath: Credere, Obbedire, Combattere! Very un-Italian, I thought, especially if you took it seriously, which I suspect most Italians at the time didn’t. More like Kant than Machiavelli, although the overall impression it left, so long after the war, was more like Kant dressed as Pantalone.

Who said within the system? Criticizing the application of the law isn’t the same thing as fighting your way into law school, buying a pair of white shoes, and hoping and changing your way through the maze of influence with an idea someday of…. Outside the system is fine, but as Mr. Dylan said, when you live outside the law, you must be honest, which to me means that you have to have at least some idea where you’re going….

I’ve met Italians, who took il Duce quite seriously. He had, and has, a lot of support, especially in southern Italy, where cynicism lies like a thick, but ancient and moth-eaten carpet over the whole landscape.

Most people, in any time or place, are frustrated in their life’s ambitions, and disappointed in themselves. We can hope for a christian utopia of universal love, compassion and acceptance, but we live in a hard reality of limited resources and individual powerlessness and conflict. The hard reality of conflict and individual powerlessness has a corrosive effect on the human spirit. Much of political ideology is propaganda trying to hide from or disguise the reality of individual powerlessness and the inevitability of conflict, which politics exposes.

The richer and more materially successful you are, the easier it is to hide, the easier it is to disguise individual powerlessness, the easier to hope to escape aging and death and insignificance, in narcissism. You may be individually powerless, but you are in a place in society, where you exercise considerable power as manager in your firm, a leader in your community. In conflict with others, you often win, and if you compromise, it is only after negotiation.

For the common people, for the poor or merely middle class, it is easy to see that things are not as they “should” be, but it is very hard to see that there is anything to be done about it, any point in trust. The rich do as they will; the poor suffer what they must. Cynicism is not a monopoly of the poor; for the rich, it is an excuse for bad behavior, but for the poor, it is a consolation prize, a cheap trinket you get for eating thru the awful Cracker Jacks, which is to say, for paying enough attention to politics to know that things are not as they should be. And, you may be wrong; you may be misinformed about the nature of the conflict, the compromise, the reconciliation with reality, that policy represents. But, still, you have no basis for trust, so what is left is, cynicism.

il Duce lets people feel they are part of something greater, that someone cares enough to see that the trains run on time, which is a way of saying that at least some things are “right”. He claims to cut thru the endless arguments of politics, which material conflict engenders, and which only tire most of us out, and seem to result, more often than not, in defective compromises or endless and wasteful delay.

The cartoonish nature of il Duce is a puzzlement to some. But, resentment competes pretty heavily with admiration in the psyche of most people. Resentment loves a fake. Real heroes can be an affront, a reminder of how far short most of us fall. The fakes — Ronald Reagan or John Wayne — are easier, sometimes, to tolerate, even when we need heroes, than the more genuine article, who will wear shortcomings along with the medals. Prophets are much more trouble than preachers. Saints are not a realistic prescription; saints are dead, but being dead may be their one redeeming quality — you can trust the dead without fear.

A last note to bring my comments back to constitutional law.

When Alito was in the process of being confirmed, I read some of his salient opinions and the commentary on who he is, (and even followed comment threads at Volokh Conspiracy . . . oh the humanity!)

Alito has a distinctive legal theory in his record. He wants to extend judicial review — the capacity of the Federal courts to declare legislation null and void by reason of being unconstitutional — into a kind of Lord’s Veto. The House of Lords in the British Parliamentary system, for many decades, could not quite block the will of the Commons, but could delay enactment of law, by refusing to concur in legislation the Commons passed. Alito’s idea, which he had already put forth in dissents as a lower court judge before his appointment to the high court, provides exactly the path the Court has taken in the Voting Rights cases. The Court doesn’t have to find that Congress did not have the power, under the Constitution, to enact this or that provision of law; the Court can take a middle ground, of disapproving of the sufficiency of justification, which the Congress evidenced. Where, before, the Court might look to the record of hearings or debate for evidence of constitutional intent, now the Court can look to that record for a sufficiency of justification or method. And, the Court doesn’t have to rule that Congress lacked the Constitutional power to do what it did; it can send the law or provision in question back to Congress for a re-do. In effect, judicial review becomes a potential delaying veto, which the Court may wield as a third legislative house.

It is a remarkable innovation, with which Alito ought to be credited.

I do love a well-functioning bureaucracy.

Gawd, I hope I don’t get typecast here as the left’s Rebecca of Sunnybrook Farm. We’re talking about different types of ugly, I think. Maybe the confusion’s mine, but all I was trying to get at was that what we called the Enlightenment did take place, and that despite everything else we know about human motivation, both individual and collective, it was of some significance as a guide to how we should conceptualize human relations. As an antidote to tribalism, it deserves to be defended, despite things like the Soviet collectivism of agriculture, or Auschwitz-Birkenau, which in a sense were rationalism’s pride-goeth-before-a-fall moment for all time.

If Rich was seriously saying that all we need to do is learn to bribe our congresscritters, or perhaps forget about our justice system and sign up with our neighborhood warlord — which of course he wasn’t — then I just wanted to go on record that maybe we oughtn’t to throw the baby out with the bathwater. As for the likely course the future will take, my own view is as close to yours as to make differentiating one from the other an exercise in semantics. You say system collapse and rebellion, I say maybe events will give us a hand. It’s certainly true that men on horseback, with as keen an eye on our discontents as any psychoanalyst, can do an awful lot of damage, but in the end, when the pieces need to be put back together again, they won’t be much help. Maybe we won’t either, but the testimony of history on that score isn’t as one-sided as you make out.

And lest I wind up sounding like Glenn Beck, please make that the Soviet collectivization of agriculture, rather than collectivism.

Bruce Wilder: “It is a remarkable innovation, with which Alito ought to be credited.”

In other words, Alito is the biggest judicial activist to be confirmed to the court since …….. well, in a long time. Makes sense – the right never accuses the left of anything that the right isn’t already doing, and usually doing 10x as much.

I’m still trying to scrape off the lesser evil bumpersticker.

W Timberman @36
More like Kant than Machiavelli

Not like either of ’em, imo

By ‘decent’ I mean plausible or not laughable.

But that is already a position of contempt for the law, and an admission that it’s just naked politics. What you’re saying is that there isn’t really any law, not at the highest levels, and that instead what we have are appointed political functionaries who will more or less carry out the political positions that they advertised in order to get the job. And that the only way to trust that there will be legal predictability, much less justice, is if the right people win elections.

Of course it’s just naked politics. Everything is naked politics. What else could it possibly be?

Bruce Wilder @42

Alito has a distinctive legal theory in his record. He wants to extend judicial review — the capacity of the Federal courts to declare legislation null and void by reason of being unconstitutional — into a kind of Lord’s Veto(…)It is a remarkable innovation, with which Alito ought to be credited.

Not so much. Constitutional Tribunal of Poland has power like that since 1997 (so called preventive review). Bill that passed through Sejm and Senat goes to the President who, in addition to signing or vetoing it, may refer it to the Tribunal to find if it conforms to the Constitution.

“Of course it’s just naked politics. Everything is naked politics. What else could it possibly be?”

I agree. It’s always naked politics, to the extent permitted by the rules and circumstances. The boundaries tend to loosen up, gradually, and are nearly impossible to tighten up again. Only as a result of some serious shock, a big scare.

@LFC Most legislatures do lots of stuff that isn’t raw politics – committee work on routine bills and so on. The SC seems pretty similar to the Senate in this respect – fairly sharply divided on partisan lines, but with enough swing voters to keep things working.

“Stare decisis didn’t save Bowers v. Hardwick, and there is no reason to believe that a Court with one more Democrat on it would feel obliged to defer to the shoddy reasoning of Shelby County.”

Which is another way of saying that past interpretations of the law don’t matter unless some future court decides that they should: raw politics. If what it takes is one more Democrat, then who cares what the justification or the dissent is — the future court could say “We’re Democrats now and so we’re reversing the decision because UFOs.”

I’m not even calling for justice at this point. There’s something more basic that law as a mechanism needs: predictability. We’ve now reached a state at which the foremost justice arguing in favor of originalism is making up new law. No one can be sure, at the most basic level, that the Bill of Rights really means anything. I’ll certainly attempt to call on the 1st or 4th Amendments whenever I can, just because of their residual cultural value and because we have nothing else, but no one familiar with the system really believes any more that they protect anything.

Nachasz @ 60

You don’t understand the distinction. Quite a few countries allow a great officer of state to put questions to a court of constitutional review. That’s not the case in the U.S., though, and it is not what Alito is pressing forward.

Alito is pressing a doctrine of judicial review, where the Court holds that Congress has the constitutional authority to enact measures of the sort under consideration, but they must do over this particular measure, because of what amount to certain deficiencies of legislative procedure or style. The Court is not ruling a law unconstitutional, by the usual reason of not being authorized categorically or substantively under the Constitution, but, instead, only ruling that Congress must enact it again, because the Court did not like some aspect of the style of the first enactment.

No one can be sure, at the most basic level, that the Bill of Rights really means anything. I’ll certainly attempt to call on the 1st or 4th Amendments whenever I can, just because of their residual cultural value and because we have nothing else, but no one familiar with the system really believes any more that they protect anything.

This is considerably overstated, I think. I don’t think we’re going to reach agreement on this. I would suggest, however, that you might want to look at some of the 4th Am cases from this SC term just ended, such as the drug-sniffing-dog case (Florida v. Jardine (?), or something like that), where Scalia [sic] wrote a majority op. saying that a policeman’s use of a drug-sniffing dog on someone’s porch was a warrantless search barred by the 4th Am.

LFC @ 71

Tell that to Scalia and see if it gets you a discount at Starbucks — ’cause the discount you get is just about what your insight is worth.

A key aspect of rhetorical exchange in a representative democracy is the characterization of the goals and methods of the opposing coalition (and, usually politics is dominated by dichotomous coalitions, even in nominally multi-party systems). Legitimacy is usually prized, as an insurance policy that your side’s achievements will be tolerated and preserved. And, a certain ambiguity in the interpretation of the constitution and laws has to be tolerated to keep both sides in the
game, just as much as a certain reliability in acquiescence to successful enactments is necessary.

Raw politics reveals itself on the Right, but whatever acknowledgement of the rawness that might squeak out of the Center or Center-Left passes quickly into obscurity. The vast majority of Democrats in office, and in the business of what passes for liberal media opinion, never act as if they believe in the substance of their nominal criticisms of the Right. And, very often, I think the criticisms (from the Center or the Center-Left) of the Right are unaccountably oblique — they don’t take into account the full ambition of the Right, nor do they entail doing anything to reverse these steps.

So, the Right doesn’t feel it needs the insurance policy of legitimacy. The Center and Center-Left won’t challenge them by telling the truth about their goals, nor seek to undo anything they accomplish. At most, the Democrats might use some residual outrage in a comic-villain P.R. campaign, as part of a fund-raising of get-out-the-vote campaign. But, the gloves never come off. A P.R. blast, carefully modulated, about, say, “the Republican war on women”, might go out to influence a general election result, but nothing is ever done about the filibuster or union rights (what can we do? the Supremes won’t even let us require employers to put up posters about rights we cannot and will not protect anyway! Oh, the humanity! Work your heart out for the Democrat in the next election, or else! Except “else” is just a different flavor of the same zero calorie ice cream) or secret wars and surveillance, or usury and epidemic fraud in the financial system, etc.

I dare say that Scalia, Roberts, Alito and Thomas — no more or less than the other Justices — value the rule of law, and the convenience afforded certain parties to use the power of the state, either to oppress or to arbitrate disputes, as deemed appropriate to particular circumstances. The Court can be relied on to act to preserve the utility of arbitration, when needed in disputes between giant corporate businesses or among the mega-rich, just as they can be relied on to close the court house door on the fingers of the poor and merely middle class, who must suffer what they must, to serve their betters, or else.

In changing course, making the world safe for billionaire plutocrats and CEOs, and no one else, the Supremes are aware that the dissatisfied will question the legitimacy of individual decisions, but they wouldn’t be taking the risk if they hadn’t calculated on the powerlessness and/or fundamental disinterest of critics.

@B. Wilder
Well, I should have made clear that by “constrains” I meant “constrains to some, but often small, degree.” I was more or less just repeating what Holbo said @22, but perhaps I shd let him defend his position himself.

“I don’t think you can say the court is nakedly political unless they are actually writing opinions that say ’5 of us are Republicans so we’re voting the party line on this one.’ ”

There’s a lot of argument via definition going on — like Jerry V’s attempt to collapse the distinction between law and naked politics by saying that everything comes down to naked politics in the end. If people don’t like “nakedly political”, find some other phrase that describes the distinction in question and use that. Don’t say that there’s no distinction, or if you do, then threads like this one become meaningless. How could we possibly say that things are worse if they’ve always been uniformly bad?

If someone doesn’t want to say that Bush v Gore was not naked politics because the SC didn’t write “We’re electing a Republican on a 5-4 party line vote” then fine. I have no idea why nakedness only applies when people virtuously renounce propaganda about what they’re doing, as opposed to being “the emperor has no clothes” nakedness which is a classic political trope in itself. But naked, hidden, or whatever, the existence of Bush v Gore style legal opinions / propaganda does not limit their action in any way. Their decision still held; they lost nothing by having to write “We have legal reasons for doing this, which will not hold as precedent” rather than “Because UFOs” or “Because we’re conservatives.”

I would say that Bush v Gore is reactive, while Shelby is proactive. In Bush v Gore they could only say that they were choosing the President for reasons which would never be repeatable, because they were reacting to events. In Shelby they were justifying something they wanted to do. Disenfranchising black people is not really any less nakedly political than choosing a President directly.

As for the precedent, yes, people can say that this is part of 11th dimensional chess on Roberts’ part. But they themselves will ignore the precedent whenever they want to, as will future courts. Does “a new, convenient line of BS” really equal precedent, if no one treats it seriously?

Congress passes the Voting Rights Act in 1965, as per their mandate under the 15th Amendment. This is the law of the land except for this incorrigible lot over here (section 4 states) – these guys are so pig headed and we can’t trust them not to circumvent a perfectly good law we have this bunch of special hoops for them to jump through.

So the law of the land prevails, we (society) says this was a pretty darn good law and we’re glad the incorrigibles are getting their due and predictably, some do try on some occassions to circumvent the law.

40 years go by and the pig headed incorrigible lot says – we’ve changed, we get it, give us another chance to show you we’ve learned our lesson, take us out of the penalty box.

Who other than the SCOTUS can really decide whether Section 4 was meant to be enforced in perpetuity or whether, as the pig headed incorrigible lot suggested – they can demonstrate that they learned their lesson, be released from the penalty box and simply have the balance of the law enforced upon them like all of the other states?

It’s entirely reasonable to disagree with the decision and even Roberts imaginary ‘state equality’ rationale, but I’m struggling with some of the suggestions that the SCOTUS didn’t have standing to decide. If not them, who? Allowing Congress to permanently legislate differences between states isn’t usually a preferred solution to any sort of problem, particularly a civil rights one.

71: It has to say something that looks like a legal opinion; it has to wrap “because UFOs” in the swaddling clothes of legalese and precedent. And the very act of wrapping conditions and constrains what the Court can do.

Well, a little bit. The shocking thing about Shelby County is that it was such a thinly-veiled power-grab vs. Congress. It wasn’t nakedly political, perhaps, but it was topless in a G-string.

It “looks like a legal opinion” to the lay reader, perhaps, but it’s missing essential logical steps that any serious opinion wouldn’t omit. Ginsburg calls out the majority for not discussing the standard of review, and that is huge — the standard of review sets how much deference the Court owes to the decision or statute in question.

So apart from the bad result, the disturbing thing here is that we may be seeing a Roberts Court that is going to write more decisions like this, thumbing their noses at the legal proprieties. Like Bush v. Gore, this is an attempt to influence who’s going to be appointing Supreme Court justices, because the effect of the decision will be to hinder racial minorities from voting, in the interests of the Democratic Party. It’s that dirty.

Anderson @84

(1) I’m sure I would entirely agree w you re Shelby were I to read the decision which, as I made very clear upthread, I haven’t. Therefore the comment of mine that you quote was a general comment about SCOTUS not a specific comment about Shelby.

(2) Note that I am not, strictly speaking, a “lay reader”; although I am most definitely not a practicing lawyer, I do have a (rather old and rather undistinguished) law degree. There was a time when I was required to pay more attention to the Sup Ct than I do now; now I don’t have to unless I want to, and for reasons that will not surprise you, I increasingly don’t want to.

(3) Finally, given this discussion, Tushnet has a forthcoming bk, ‘In the Balance,’ on the Roberts Ct that might be of interest. (I’m not giving the Amazon link b/c I think Amazon is now doing picture-links of the front covers and it f*** everything up.)

although I am most definitely not a practicing lawyer, I do have a (rather old and rather undistinguished) law degree

But you sound so reasonable most of the time – no one would guess!

Anderson @88
LOL

@89
In your hypothetical Georgia could seek out exemption from section 5 coverage from the district court of the District of Columbia. Its almost as if Congress already thought of this!

“Rich, suppose that tomorrow the court literally started writing 1-sentence decisions that read, in toto: 5-4, Republicans win! Do you seriously propose that wouldn’t be a significant departure from what we’ve got?”

It’s an impossible standard. I suggest that rather than wait for the Supreme Court to openly and mockingly thumb their noses at everyone, instead you decide that your metaphor is leading you astray. This is as political as the court can be without being taken over by James Bond villains, so this is as political as the court can be. If you think that them wearing robes and writing legal justifications makes it by definition not naked politics, pick another phrase.

94: Rich, I’m sympathetic to you – democracy got hosed this week – but the problem is not “the Supreme Court,” which can’t be reified any more than there is such a thing as “Congress.” Like Congress, the Court is made up of individuals, some of whom are assholes.

This I guess is another way for me to try to say that the problem is not the Court, it’s the lawless GOP appointees who have the majority. From, what, 1969 to present, there have been *four* justices appointed by Democrats? (Carter had none.) Versus 12 by Republicans. Wow.

If the Democrats hold the White House in 2016, it is very likely that at least a couple of the current Republicans will be replaced. (Scalia & Kennedy were both born in 1936.) That would change the Court for a generation.

As I said before, to an outsider, the Supreme Court looks a lot like the Senate (except that party control is reversed). Plenty of odd procedures, and flowery speeches, and occasional shifts by swing voters, but still a political chamber with a Republican majority.

Anderson: “the problem is not “the Supreme Court,” which can’t be reified any more than there is such a thing as “Congress.” Like Congress, the Court is made up of individuals, some of whom are assholes.”

The Supreme Court is an entity: an entity with a particular role in the U.S. Constitutional order, and one which it is signally failing to do. The idea that governmental roles will only work if you get the right people in them, and you’re helpless to do anything otherwise, is foreign to the political philosophy that underlies the Constitution in the first place. Whether we get the right people in the Supreme Court or not, the structure has failed, and there is no longer any justification for the Constitutional order or the U.S. state other than that what might replace it might be worse.

We still have to deal with that in a practical sense. But in an intellectual sense, the argument is over, the case file stamped “failure”. That’s what I mean by contempt for the law. It’s now only a lesser evil in a Hobbesian sense, and no more deserving of respect than if we had a President For Life to rule us.

” But the idea that they could be shut out entirely, based on domination of the Supreme Court? That’s broken politics.”

Not getting you here, Rich. If 27% of the US were Nazi, would you be upset they were frozen out? That’s more procedural-liberal than I expected from you.

Or, to put it another way, doing Bush v Gore in no way prevents them from doing it again. What’s going to happen? So someone like Posner no longer pooh-poohs people who say that the system has gone off the rails. Big deal. They don’t need Posner’s approval, or anyone’s, as long as the system does not entirely collapse.

If you go into a boxing match in which you’ve agreed to wear gloves, and your opponent takes them off and no one stops them from doing so, it’s not actually a boxing match.

“Well, that’s sort of the point of the post (see above). Shelby implies that it’s alright to do that – take the gloves off and go naked in deshabille political – but the court hasn’t explicitly embraced that implication yet. That is, no one has yet written an opinion that literally says, in so many words, that it’s ok for judges just to be partisan. I doubt we will see that.”

Why is that important to you? If the Justices act this way without codifying it, isn’t that “bad enough”? Haven’t you gone far enough into “naked politics” territory by act alone?

The terminological difference seems to arise because you seem to be putting the emphasis on making the announcement “we’re now just messing with you” rather than on the Courts decisions. I understand that’s what you want to emphasize, but the question is, why focus on that and not on the naked politics of the Justices actual decisions? The effect of your emphasis is to move the goalposts: instead of focusing on the decisions, and what they imply, they somehow declare that the next step in politicization, an even more extreme step, is the important one. I’m all for silver linings, but that goes too far for me.

How much further can they go? There’s a hard physical limit to lawlessness, how little attention you pay to laws: if you’re paying no attention to a law there’s no further left to go. And pragmatically “we strike down this law because of something that isn’t actually in the US constitution because we just invented it” isn’t really any different from “we strike down this law because fuck you”.

The only “further” left is doing this more often.

John Holbo: “That is, no one has yet written an opinion that literally says, in so many words, that it’s ok for judges just to be partisan. I doubt we will see that.”

There are and have been a lot of nasty governments where a public face of procedure and law were kept on, long after it was clear that the government with no more contstraints than that practical limits of its physical power. And I’m sure that in many nooks and. Corners, things remained 90% sorta, superficially non-political. For example, I wouldn’t be surprised to see what looks to me like an ordinary traffic court, even in some countries where the government regularly dumped the tortured corpses of opponents in the streets as a warning.

LFC: “Rich seems to think there was a time when the Justices “followed the law” and now they are not “following the law.” This is not right, imo. The formula “following the law” is quite empty in this context”

I no longer trust that e.g. the 1st Amendment means anything. Whenever it conflicts with something important to plutocracy, it will fail. Nor do rights written into the body of the Constitution itself mean anything — habeas corpus, for instance, is a dead letter. At-will executions and imprisonments by the executive are happening. There’s only so much BS about how the Constitution has always been interpreted that someone can accept before they compare it against reality and say that it has no protective value for anyone outside a privileged few. If you want to say that that is how the Constitution has always been, then fine, it should have been discarded a long time ago.

“JHolbo is right that respect and legitimacy are v important to the Ct. If they lose that they (1) can’t push their political/philosophical preferences as easily, and (2) they will have to start worrying about whether lower cts and parties actually comply with their directives. ”

They have an entire police state to enforce their directives. Decisions in favor of the plutocracy get the full force of the plutocracy backing them up.

Rich Puchalsky @ 116

I wonder what you say about the Constitution isn’t true of any document which attempts to codify best practices, and to state our reasons for the codification. Even if in practice such documents aren’t worth the paper they’re printed on, they do serve as a kind of standard measurement of what, at some point, we were aiming at. And then there’s the whole eternal struggle/eternal recurrence phenomenon. What do you think it means when, for example, a makeshift statue of liberty shows up in Tiananmen Square? Are such things just symbols of a common delusion, or are they more than that?

“I wonder what you say about the Constitution isn’t true of any document which attempts to codify best practices, and to state our reasons for the codification. Even if in practice such documents aren’t worth the paper they’re printed on”

Wait, stop there. That’s not the purpose of the Constitution at all. The whole point of American political theory was: given that powerful people are often horrible, how can we arrange a system in which these things are enforceable even against them? The document isn’t a list of best practices. There’s a whole lot of structure that’s supposed to enforce the rules via separation of powers, checks and balances, limits to personal power, limits to democratic power of the majority, etc. If the structure doesn’t work, the list is meaningless, and the people who wrote the document in the first place knew that.

The list itself is in notably plain language. (With occasional failures like “well regulated militia”.) It’s supposed to be understood by everyone, not only understood through the interpretation of legal priests. That’s one of the limits to power built into it.

More about the statue in some future point, possibly, but so much of that is from the same era that e.g. Bruce Wilder seems to be often writing out of: the post-WW-II liberal order, which was one of the two competing systems that beat fascism and seemed/seems quite preferable in many ways. It was highly racist, but the racism was always marked out as a problem within it, one which MLK Jr. could attack through nonviolent means because it really had no ideas defending it within the system.

“It’s true enough that the malady lingers on, but it isn’t strictly speaking a neoliberal one. It’s far more ancient than that….”

I certainly didn’t mean to imply that American racism was a new feature of the post-WW II order. Only that it was still there, but that the liberal order really had no ideological support for it. On the contrary, as a self-consciously universalist order that had the ambition of covering the entire globe, postwar liberalism was pretty much bound to treat it as a relic that should be done away with.

That’s where the makeshift statue of liberty comes from, pretty much. But from the moment of Reagan’s successful reaction, white racism became all-important again as a source of American values. There’s no attractiveness or global appeal to a system based on that. And white racism can now not ever be renounced, it can only gradually lose salience for demographic reasons. At least they can congratulate themselves that they successfully took down the American system with them.