The Supreme Court and Normcore

by Henry on September 19, 2020

After Ruth Bader Ginsburg’s death, we are going to see more debate over the norms on judicial nominations and whether they should be observed. The so-called “McConnell rule” – that the Senate should block Supreme Court nominations in the last year of their term to allow the people their say – is giving way to an equally fanciful McConnell exception stipulating that the rule only applies when Senate and President belong to different parties. So the question then emerges of how the Democrats should respond, if McConnell and Trump manage to get a Supreme Court nomination through, perhaps in the Senate’s lame duck session. Should they accept this or should they push back, perhaps through adding another two seats to the Court, something which is allowed under the Constitution, but that pushes back against long standing norms?

The most prominent recent book on the topic, Steven Levitsky and Dan Ziblatt’s How Democracies Die, might reasonably be read to suggest that the Democrats shouldn’t pack the courts, since it would further weaken US democracy. They argue that norms are an important bulwark of democracy (p.101).

Democracies do have written rules (constitutions) and referees (the courts). But these work best, and survive longest, in countries where written constitutions are reinforced by their own unwritten rules of the game. These rules or norms serve as the soft guardrails of democracy, preventing day-to-day political competition from devolving into a no-holds-barred conflict.

Furthermore, Levitsky and Ziblatt discuss at length the last effort to expand the Court, when FDR pushed back against a Supreme Court that seemed determined to declare key elements of the New Deal unconstitutional. In their argument, this was a dangerous moment for US democracy.

The president’s motivation was, perhaps, understandable—he sought a more secure legal basis to achieve the goals of the New Deal. Had it passed, however, it would have set a dangerous precedent. The Court would have become hyperpoliticized, its membership, size, and selection rules open to constant manipulation, not unlike Argentina under Perón or Venezuela under Chávez.

There is an important logic to their argument – but it’s an incomplete one. Their account of Roosevelt’s Supreme Court plans (p.132) can be read to provide a different lesson.

It is worth noting that the Supreme Court itself played a major role in defeating Roosevelt’s plan. In a move that has been described as a “masterly retreat” to preserve the Supreme Court’s integrity, the previously anti–New Deal Court quickly reversed itself on a series of decisions. In spring 1937, the Court ruled in quick succession in favor of several pieces of New Deal legislation, including the National Labor Relations Act and Roosevelt’s Social Security legislation. With the New Deal program on more secure constitutional ground, liberal Democrats in Congress could more easily oppose the president’s Court plan. In July 1937, it died in the Senate. The president, at the peak of his popularity and power, strained against the limits of his constitutional authority and was blocked. Never again would an American president try to pack the Supreme Court.

The obvious point here is that Roosevelt’s threat was the reason why the Court backed down. If Roosevelt had not made it clear that he was willing to upset the game, by packing the Court, the Court would have had no reason to back down on judgments and precedents that systematically limited the scope of democratic politics. One norm that had been pretty systematically trashed – judicial respect for what citizens and their democratically elected representatives actually wanted – was only preserved through Roosevelt’s credible threat to upset another norm.

This seems to me to identify the major internal weakness of the “normcore” approach to analysis that Levitsky and Ziblatt have become associated with. This approach tends to treat norms as worth respecting in and of themselves, on the argument that such norms are what prevent politics from breaking down entirely. This is not an obviously wrong argument, especially in a polity like the U.S., where a two centuries old constitution has been jury-rigged by norms into something that might, just about, manage a modern polity without sinking.

But the problem is that norms are institutions (more precisely, they are informal institutions that are not supported by formal external punishments but by the expectations of the actors that adhere to them) and institutions do not exist in a vacuum. In game theoretic terms, norm maintenance depends on actors’ expectations about “what is off the equilibrium path.” In more practical language, norm maintenance requires not just that political actors worry about the chaos that will ensue if the norms stop working. It also relies on the fear of punishment – that if one side deviates from the political bargain implicit in the norm, the other side will retaliate, likely by breaking the norm in future situations in ways that are to their own particular advantage.

What this means, pretty straightforwardly, is that norms don’t just rely on the willingness of the relevant actors to adhere to them. They also rely on the willingness of actors to violate them under the right circumstances. If one side violates, then the other side has to be prepared to punish. If one side threatens a violation, then the other side has to threaten in turn, to make it clear that deviating from the norm will be costly. A norm governing relations between two opposing sides, where one side acts strategically (to exploit opportunities) and the other naively (always to support the norm) can’t be sustained.

The Levitsky and Ziblatt logic suggests that democratic breakdown is a process of unraveling, whereby tit for tat dynamics lead to accelerating norm breakdown and the breakdown of ordinary politics. That is indeed a plausible dynamic, and one can tell a story of judicial confirmations in which Republican move and Democratic countermove have led to increasingly brutal power politics.

But as the game theory suggests, tit for tat may play a crucial role in norm maintenance as well as norm breakdown. Without a willingness to punish, we end up in the McConnell equilibrium, where one side concocts ever more extravagantly contrived normative justifications for doing what it wants to do, while the other issues grave statements deploring the breakdown of civilty. That is not precisely a recipe for norm maintenance either, unless by “norm maintenance” you mean a mere preservation of outward forms and decorum – something far feebler than either Levitsky or Ziblatt advocate as I understand them.

The logic of argument I outline here isn’t the only argument against normcore – there are radical democratic critiques too, which would point to how the irruption of democracy usually involves norm flouting rather than adherence. Levitsky and Ziblatt acknowledge that norms have often resulted in the silencing of powerless populations such as African Americans, and indeed analyse how norms of mutual restraint emerged from the abandonment of the project to reconstruct the American South along more egalitarian lines.

Those are external criticisms. The one I’ve outlined is an internal one. If (1) you take Levitsky and Ziblatt’s account of the benefits of norms in avoiding chaos and political breakdown seriously, and (a different question) (2) you also believe that the tradeoffs are acceptable, then (3) you still need to think about how norms actually work. If norms rest – as surely they must – in part on implied threats of what will happen if the other side stops adhering to them, then the best strategy for preserving norms will often not be to commit to adhere to them unconditionally. Instead, the best strategy to preserve norms may be to make it clear that your adherence to the norms are conditional, that you will retaliate if the other side deviates from the norms, and to actively and vigorously retaliate against the other side if they do deviate, delivering on your threats. That’s the lesson that I think FDR has for normcore, even if it isn’t the lesson that Levitsky and Ziblatt emphasize in their book (which in all fairness is a general book for a popular audience; I’d be surprised if Levitsky and Ziblatt don’t have some idea of this critique, and they may have a counterargument to it).

{ 62 comments }

1

Mark Victor Tushnet 09.19.20 at 4:39 pm

If anyone is interested I have a (reasonably detailed) discussion of this and related issues in “Taking Back the Constitution” (Yale University Press, 2020), in Chapters 13 and 14 — including a treatment of the game-theory issues written for a general audience.

2

Scott Supak 09.19.20 at 4:39 pm

With notably rare exceptions, the mere threat of an eye for an eye keeps the whole world seeing?

3

SusanC 09.19.20 at 5:16 pm

If we were in some kind of science fiction dystopia movie: the main thing preventing a dictator seizing power is the Supreme Court .. but then a big chunk of the Supreme Court justices get killed all at once by a killer plague, and their replacements get chosen by… um, that would be the guy they were there to stop…

4

Dave Maier 09.19.20 at 5:17 pm

You know who’d be an interesting court pick now (not that I expect it of course)?

Merrick Garland.

5

Metatone 09.19.20 at 5:48 pm

You make this point in passing, but it’s worth emphasising – the norms are already dead and the GOP killed them. Not just McConnell, remember the sight of vans collecting postboxes to put them in warehouses.

Either the Dems adjust to this new reality or they are doomed to eternal powerless opposition.

6

Cranky Observer 09.19.20 at 6:26 pm

= = = But as the game theory suggests, tit for tat may play a crucial role in norm maintenance as well as norm breakdown. Without a willingness to punish, we end up in the McConnell equilibrium, where one side concocts ever more extravagantly contrived normative justifications for doing what it wants to do, while the other issues grave statements deploring the breakdown of civilty. = = =

As far as I have been able to tell from observing US politics since ~1976 the situation is simplified (or made more complex) by the revealed preference of the senior leadership one of the two large-scale political parties to never engage in punishment, no matter how many defections they endure (including from within their own party, e.g. Joe Lieberman). This changes the game theory calculus quite a bit. But I don’t think any member of that party’s caucus, with the possible exception of AOC, even understands the basics of game theory.

7

Hidari 09.19.20 at 7:07 pm

‘This was our paradox: no course of action could be determined by a rule, because every course of action can be made out to accord with the rule. The answer was: if everything can be made out to accord with the rule, then it can also be made out to conflict with it.’

And by ‘rule’ Wittgenstein means ‘social practices’. Or, in other words, ‘norms’. So every possible activity can be interpreted as being either in accord with the rules or not in accord with the rules. Or in accord with the norms, or not. So the discussion always goes nowhere.

8

Chris M 09.19.20 at 7:54 pm

@ Dave Meier

Age alone makes Garland non-viable for all intents and purposes.

9

Roger Gathmann 09.19.20 at 7:56 pm

As far as I can see, the norms have been terrible for most Americans, especially POC. The problem is the court itself. Newt Gingrich was right *an almost unheard of thing) and John Marshall was wrong – the Congress should be able to overrule the court. In other countries, there is a constitutional council that gives its stamp to legislation, and that is that- when legislation passes, it is constitutional. I’m not very much a fundamentalist about the Constitution, but the founders did not envision the court system that came out of the Marshall court. Far better than packing the court would be putting term limits on the judges, all federal judges, and boxing in the power to interpret legislation.

10

RobinM 09.19.20 at 7:58 pm

Keeping in mind—to quote the USC—“In all other Cases . . ., the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, WITH SUCH EXCEPTIONS, AND UNDER SUCH REGULATIONS AS THE CONGRESS SHALL MAKE” [my emphasis].

As I understand

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3665032

treating the USCS as a super-legislature and proceeding to try to curb its powers might be presented as an attempt to observe the political norms, the side benfit being that it would, if successful. enhance democracy.

11

Russell Arben Fox 09.19.20 at 8:39 pm

I’m more sympathetic to the democratic critique of Levitsky and Ziblatt than the game-theoretic one, Henry (if anything, perhaps because democratic critiques can emerge from an understanding of community which at least partakes of the same sensibility as the norm-centric vision, but at least potentially doing so from a more participatory perspective), but this is a really nice laying-out of the relevant argument. My thanks!

12

Marc 09.19.20 at 10:36 pm

This discussion assumes that the Democrats could muster 50 votes for a massive change in the rules. Any scenario where they get to 50 includes them winning in states where this would be very unpopular, even if the party that nominated Biden actually had the stomach to do something dramatic. Which they also don’t. So, well…

13

ph 09.19.20 at 10:50 pm

Thanks, this OP is one of the first sensible pieces I’ve seen on the current topography. None of this is taking place in a vacuum, however.

My own view is that there is a ‘silent’ bourgeois majority in most democracies who are best understood as prudent, rather than right or left. This community is only interested in what Canadians call peace, order, and good government. The case can be made about the level of each in the US today, pro and con. This debate is in large part what the election and the SCOTUS pick are about.

I can’t see any but activists and hardcore partisans taking a serious interest in the Scotus pick. The damage/changes resulting from Trump appear to be most significant in the lower courts. Conservatives have been disappointed, in significant cases, with Roberts and with other picks.

Law and order matters to the majority of voters on both sides of the Atlantic. Threats to ‘burn’ everything down if the GOP go forward with a nomination could not be more poorly timed to strengthen Trump’s base and publicly split the Dems. Ted Cruz has argued that the seat must be filled.

‘Threats’ to increase the number of supreme court positions, ban the electoral college, and/or create two new states sound similar to ‘social unrest’ will not end until the bourgeois learns to obey a vocal minority, a minority willing or eager to upset many of the norms generally seen as the foundation of the public good.

Making a persuasive case for peace, order, and good government no matter what the GOP does is about the only strategy I can see which wins the support of the middle. Taking to the streets will effectively eliminate any chances of a Harris-Biden victory. We’ve already seen that Trump won’t be lured into ‘sending in the federal troops.’ Social unrest is a winning issue for Trump, especially when the rioters are overwhelmingly apolitical opportunists.

Social media is certain to make ‘heroes’ of activists screaming at seniors in restaurants, turning over tables, and screaming profanity at firemen, hospital workers, and the police.

Henry has been more right about the social profile media profile left than any other critic I can name. There is a stunning lack of intelligent debate about what motivates ‘ordinary’ people. No more useless foreign wars, better jobs, safer streets, better schools, more economic opportunity, and simpler, more effective government.

Building bourgeois stability doesn’t offer the frisson of revolutionary change, or overturn the centuries of inequality and injustice. Incremental change requires persistance, patience, and hard work, all of which ordinary people have in abundance.

Threats to burn everything down made against the background of charred and smoking buildings in Minnesota demonstrates clearly the narcissism, and contempt for ordinary voters, of the social media left.

Nice piece.

14

alfredlordbleep 09.19.20 at 11:03 pm

No disagreement with HF’s major point(s).
Respectfully, a more interesting question is the confirmation of a High Court right-winger in the lame duck session, during the ballot counting-chaos&court-challenges.

15

Sebastian H 09.19.20 at 11:44 pm

The problem with the Supreme Court is that we have simultaneously seen Democrats and Republicans play tit for tat with the Supreme Court while letting it exercise more and more power. Making the least democratic branch gain power boxes everyone into constant escalation. The proper response is not to just pack the Courts, begging for even further tats. The proper response is to drain the Court of much of its power.

16

RobinM 09.20.20 at 12:12 am

ph (no. 13)

It seems to me you’re opining that the distribution of political opinion/ideology in the US still roughly approximates that old bell-shaped curve (and Nixon’s “silent majority” model?). Maybe you’re right. But the feeling I get from living in the US these past many years, since 2008/9 and more especially since 2016, is that the centre has been hollowed out to some degree. I imagine, e.g., that someone like David Brooks would once have presented himself as a bit of a centrist. and perhaps he still does. But reading him or, better yet, watching him on PBS News Hour every Friday, leaves the distinct impression that he’s on the anti-Trump, anti-the-actually-existing Republican Party wing of the current distribution. People like him—and those prudent centrists you imagine—may well be interested in “peace, order, and good government,” but many of them seem to be asking whether the present administration and its supporters in Congress is conducive to any of these things since they seem to have flouted the “bourgeois norms” you appeal to.

I also think it unfortunate that you repeatedly conflate legitimate, constitutionally protected behaviour with the behaviour of an extreme minority. You’ve seem to have drunk the Trump kool-aid (to steal a few words from the Woodward book). “Threats to burn everything down,” indeed?

17

faustusnotes 09.20.20 at 4:38 am

I’m already seeing talk of strategies based on the one described in the OP: Telling McConnel that if he deviates from his own new principle of not selecting a justice just before an election, then when the Dems win power they will stack the court. I’ve seen it described as particularly powerful for convincing scared GOP senators like Collins, or potentially disloyal ones like Romney, to hold their vote until the election is decided.

I don’t think this will work on Romney though because he knows the GOP is on a hiding to nothing and his full strategy is to overturn the election. So he needs one more justice more reliable than Roberts, and he will do what is needed to get one.

18

CHETAN R MURTHY 09.20.20 at 4:42 am

Contra “ph”, the Democrats have been incredibly patient incrementalists. Anybody who thinks otherwise needs to explain the ACA. It is the GrOPers who have been the firebrands. To wit, from a comment just now at LG&M:

For most of the last couple decades the democrats have been the party of moderation and cooler heads.The party of let’s just talk this over, shall we?

And because we did that, they kept coming and coming, and coming and now here we stand awash in Nazi’s and everyone is going “Man how did this happen!????”

Awash in Nazis, indeed.

But to the point of the OP. When I start out with $10 in lunch money, and Moscow Mitch steals it from me, it isn’t enough for teacher to merely give me $10, because I stated off up $10 over Mitch. Teacher needs to give me $20 to actually restore the prior state of affairs. Oh, and as we well understand, nobody will stop trying when they aren’t punished. Which means that really, teacher needs to either take away the $10 that Mitch stole (and give that to me) or give me $30.
That is, 2 seats for each seat that Mitch stole, and another seat for each, as punishment.

The GrOPers chose a Traitor to our country. If there were real justice, every one of his appointments would be impeached and removed, and sure, allowed to reapply for their positions.

This would not be incendiary: it would be -justice-, and it would be punishment that would ward off a repeat of this entire sordid story.

19

CHETAN R MURTHY 09.20.20 at 4:46 am

“ph” also says “I can’t see any but activists and hardcore partisans taking a serious interest in the Scotus pick”.

Tens of millions of dollars in donations to campaigns to unseat GrOPer Senators, recorded during some of the highest-grossing single hours in ActBlue history, tell a different story. And the volume of money speaks to people with money to spend, not those who are penniless. This is, indeed, the bourgeois majority speaking, with their wallets [Oh, and sadly since “ph” doesn’t know, almost all the counties were all the real economic activity is generated, voted for Hillary in 2016.]

And it’s not surprising: Roe v. Wade is now truly at risk, and so is the ACA. This, in the middle of a pandemic during which the US is singularly scoring own-goals in the hundreds of thousands (that’s deaths, “ph”, -deaths-).

20

MM 09.20.20 at 6:49 am

Every time people get into a knifefight over SCOTUS nomimations, I am reminded of the story about the flaw Godel found in the US Constitution (see https://jeffreykegler.github.io/personal/morgenstern.html if you haven’t head it before). I am increasingly convinced that he had Article III, Section I in mind.

21

bad Jim 09.20.20 at 6:58 am

Erwin Chemerinsky cheerfully asserts that in the event of a lame duck appointment the incoming Biden administration would easily remediate the malfeasance of the previous administration by packing the court.

Roosevelt faced a different problem. The composition of the court he inherited, and the tendency of its jurisprudence, had hardly changed for a generation, and had by its longevity acquired a presumption of legitimacy. The present prospect is that of a court selected by presidents and senates elected by minorities of voters to overturn several decades of precedent, a context which renders the present circumstance illegitimate and worthy of remediation.

With a modest Senate majority Biden might well be able to pack the court.

In the blackness of my heart I hope Pelosi will let McConnell know that there will be no continuing resolution to keep the government going, much less a pre-election stimulus package, unless the court is taken off the table. I do not expect that to happen; Democrats are not nihilists. I am irked that I’ve yet to see this elsewhere discussed.

22

Thomas P 09.20.20 at 11:13 am

There is another dynamic at play too: some people on the right don’t mind if the government loses credibility. The more chaos, the more they can argue that you need to shrink the government since it isn’t doing a good job anyway. For them breaking the norms is easy and if the other side retaliate, so what?

We see the same asymmetry in, for example, the climate debate where “skeptics” don’t care if they are right or not, they just want to create uncertainty, in the expectation that this will lead to business as usual continuing.

23

Lee A. Arnold 09.20.20 at 11:55 am

The normpolice the GOP should worry about are not the Democrats but the independent voters. Look at Trump’s disapproval/approval ratings: https://projects.fivethirtyeight.com/trump-approval-ratings/
Trump has been underwater since right after the 2016 election. This is because he broke the independent voters’ expectations of Presidential centrism, civility, comportment and quietude. Banging on the law-and-order drum hasn’t lessened the disapproval. Similarly the Presidential race has been stable, with the usual tightening here at the end.
So breaking the “Merrick Garland Rule” may not help Trump either, especially in most of the swing states where he needs shoring up, although he may figure he needs Barbara Lagoa to help him win Florida, where he’s 3 points behind Biden when he should be 5 points ahead. But the Senate GOP will probably approve the SCOTUS pick because they are totally without honor despite their insistence upon morality, and it could be their last shot in a while. And this election may end up in front of SCOTUS since both sides are gearing up legal machines to contest the returns in any state where it matters.

24

Faustusnotes 09.20.20 at 12:03 pm

Sebastian h, only one side tried to use the Supreme Court to ban gay marriage in all the states, only one side shopped around for two years to find appellants to undo a major legislative change, and only one side used the Supreme Court to overturn an election. Why do you bother to “both sides” this? Your country’s future is on the line and you still believe this junk?

25

Jake Gibson 09.20.20 at 12:51 pm

@Chetan R. Murphy 18
I have been pointing out the last several years that the US has a conservative party with a social democratic wing and a reactionary authoritarian party with a neo-fascist wing. The former being the Democratic Party.

26

Hidari 09.20.20 at 12:52 pm

@21

It’s a basic error in philosophy to ‘get an ought from an is’.

An equally basic error in politics is trying ‘to infer an is from an ought’. (i.e. inferring that because something ought to be the case, for some mysterious and almost non-political reason, this thing will in fact happen).

‘With a modest Senate majority Biden might well be able to pack the court.’

That is of course true. Nonetheless just because he ‘might’ be able to do it, it doesn’t follow that he will, and in fact, the existing evidence would seem to demonstrate that he almost certainly won’t.

CF here:

https://twitter.com/BoKnowsNews/status/1307363993317761024

@15 and @9 Yes. It is one of the many astonishing things about the United States’ astonishingly anti-democratic political system that the unelected Supreme Court (a court which, let’s not forget, doesn’t even have term limits) has managed to accrue so much power. Any sane discussion, based on basic democratic principles, would not be about how one packs it, or whatever, but of how one abolishes it, or at least radically reforms it to make it more democratically accountable (or at least less powerful).

27

ph 09.20.20 at 1:56 pm

Don’t fill the seat or we burn the country down:

https://thefederalist.com/2020/09/18/after-rbgs-death-left-wing-activists-promise-violence-if-trump-appoints-her-replacement/

AOC: “I need you to be ready” https://www.realclearpolitics.com/video/2020/09/19/alexandria_ocasio-cortez_on_ruth_bader_ginsburgs_death_let_this_moment_radicalize_you.html

Versus:

Keir Starmer: https://www.dailymail.co.uk/news/article-8752561/Keir-Starmer-tell-Labour-rediscover-patriotism-pride-Britain-win-voters.html

Trump announced he will nominate a female candidate for Scotus next week. Starmer understands what AOC does not – the prudent middle will punish that party that promotes social unrest. Peaceful protest won’t win clicks.

After four years of doing everything possible to undo 2016, threatening voters in 2020 with continued social unrest over Scotus is likely to push the prudent middle even more firmly behind Trump.

Trying to intimidate voters with more riots and disorder is an extremely bad idea.

28

Faustusnotes 09.20.20 at 2:35 pm

Hidarite, any discussion about reforming or abolishing the court that doesn’t start with controlling it or packing it is not “sane”. This is how power works and the American hard left have been consistently foolish bout this. Recall that in 2015 the Putin friendly left on here were demanding everyone vote third party and accusing those of us who warned about the Supreme Court of “blackmail”. Now you can see the whole thing slipping away and you’re talking about reforming the monster you ignored in 2015. Either you don’t understand how power works or you don’t care.

29

CHETAN R MURTHY 09.20.20 at 3:19 pm

Jake Gibson @ 25: Yes indeed. And this has been true for generations. In the early 80s in a community college course in Bumfuck NowhereWeatherford, TX, my history teacher told us there were two conservative parties in the US. And he defined “conservative” as “primarly concerned with protecting the rights of property”. Shocking that he could get away with teaching such stuff in that lily-white backward small town.

30

Starry Gordon 09.20.20 at 3:35 pm

@24 — I think you’re confusing the salesmen with the products. The general task of both major parties is to manage political life in support of the interests of the ruling, check-writing class. They appeal to and con different sectors of the population, hence the differences is style, and the kayfabe nature of their contests. Very serious criticisms could be made of the performance of the US r.c. and government, but instead of demanding an accounting for the failure to suppress COVID-19, the addiction to endless war, the decline of economy and culture, the absurd militarization of the police, the ubiquitous surveillance, and so forth, we’re going to spend the next two months or so horseracing the Supreme Court. This must be accounted a great success for the r.c.: ‘Nothing fundamental will change.’ It’s a promise.

31

Carol 09.20.20 at 5:18 pm

You have to consider the fact that any legislative change to the SCOTUS will be challenged immediately and probably sooner than later reach said court which will vote 6-3 against any change whether it be term limits or packing.

32

Orange Watch 09.20.20 at 9:34 pm

Roger Gathmann@9:
Far better than packing the court would be putting term limits on the judges, all federal judges, and boxing in the power to interpret legislation.

My preferred “limited structural change” would be to draw lots for any case seeking to come before the court, and divide its members randomly into the equally-sized pools of “granting cert”, “deciding the case”, and “not participating”. Removing the ability of plaintiffs to know ahead of time who would hear their case – and that of justices to know who would hear and decide it, particularly when that answer would of course include “me” – would limit the ability of citizens to “propose legislation” to the Court and the ability of the Court to “set a legislative agenda”, and should in practice remove much of the current problematic aspects of how the Court functions.

ph@13:
I can’t see any but activists and hardcore partisans taking a serious interest in the Scotus pick.

This just underscores once again that you don’t understand American culture or politics – not even conservative American culture and politics. “The courts” in general, and SCOTUS in particular, was the most-cited justification I heard from Republicans who did not support Trump to vote for him anyway. I have family who were quite explicit about this, and have heard the same observation from many others. Exit polling placed a full 21% of voters as viewing judicial nominees as the prime issue deciding their vote in 2016. It won’t be dead now even with a 5-3 conservative majority – placing another conservative justice will prevent embarassing defections such as those we’ve seen by Roberts or Gorsuch (!!!) from stealing “wins” from the theoretically undivided majority.

33

Robert Weston 09.20.20 at 10:03 pm

OP: “In game theoretic terms, norm maintenance depends on actors’ expectations about “what is off the equilibrium path.” In more practical language, norm maintenance requires not just that political actors worry about the chaos that will ensue if the norms stop working. It also relies on the fear of punishment – that if one side deviates from the political bargain implicit in the norm, the other side will retaliate, likely by breaking the norm in future situations in ways that are to their own particular advantage.”

What this leaves out, unless I misunderstand the argument, is the reaction of non-actors to the possibility of retaliation. In other words, and with regard to the specific situation that prompted your post: I wouldn’t be surprised if Democrats held off on retaliation because they’re concerned about the way public opinion (understood her as prime target groups like moderate suburban voters), donors, media and business elites, etc., will perceive a tit-for-tat strategy. Democrats could be afraid of the way retaliation will impact their branding as the party of compromise, moderation and commitment to the political system as it (still) exists. I get the argument that retaliation may – or may not – help preserve norms. But will key groups that matter to the Democratic Party see it that way?

It’s true failure to exact punishment could prompt further challenges from the democratic socialist left. But is that concern foremost in the minds of Democratic congressional leadership?

34

Alex SL 09.20.20 at 10:39 pm

I completely agree with this game-theoretical argument. I am constantly puzzled what the US Democrats think the outcome of them playing nicely will be. The Republicans going, “oh, the other side is so nice, what a good example, I shall now also be nice although being nasty has no downsides whatsoever?” The idea immediately falls apart when spelled out, yet it seems to underpin the approach all high-level Democratic politicians.

Regarding the worry that democracy could be weakened, one should also at least entertain the possibility that it is not in the gift of one side of the spectrum to unilaterally stop this weakening if the other side is fully committed to destroying democracy. If, say, 40% of a country’s population want democracy gone then democracy is already in deep trouble no matter what some politician of the other major party does. Anybody believing otherwise has fallen to the “big man” theory of politics.

35

Hidari 09.21.20 at 5:23 am

@27

‘Starmer understands….’

Let me just stop you right there.

36

bad Jim 09.21.20 at 6:14 am

No sane discussion of the problems with the American political system begins with constitutional reform. Not only is it a nearly impossible lift, requiring the assent of 2/3 of both houses of Congress and 3/4 of the states, but Article V states that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”, which may preclude reform of the Electoral College.

The only practical remedies are those which can be accomplished through legislation.

37

Orange Watch 09.21.20 at 6:23 pm

Carol@31:

What you’re saying here is half-relevant. It’s probably true that court-packing legislation would be challenged in court, and it’s certainly true that term limits would be. And to be honest, I don’t think term limit legislation would be struck down 6-3 – it would be struck down 9-0, because it is blatantly unconstitutional. Term limits on federal judges cannot be legislated; they require an amendment to impose. But court-packing? SCOTUS striking down Congress legislating changes to the size of SCOTUS at their own peril, as they will be provoking an explicit Constitutional crisis. Congress has the power to change the size of SCOTUS, and has exercised that power in the past. While I don’t think the Roberts court would balk at trying to find rationalizations – presumably regarding the partisan nature of the legislation – they have no legal leg to stand on in doing so, and in particular precedent is squarely set against them. By doing so, they acknowledge that they are unilaterally changing the role of the courts in the US system, and counting on public opinion regarding sanctity and neutrality of the courts to protect their unconstitutional power play from being rightly opposed. I.e., it would be a blatant and unavoidably explicit Constitutional crisis.

Admittedly, Bush v. Gore should have provoked a Constitutional crisis, but didn’t. One will rarely lose money betting on spinelessness from the centrist Democratic establishment, who are more concerned with retaining their personal power in the party than retaining power for the party. And that’s actually why none of this might be relevant; Biden is already on record declaring he will not pack the court b/c it sets bad precedents and will lead to further packing. So we can expect a Biden presidency to continue the trend of valuing institutions over people, to treat Republicans as good-faith negotiating partners, to insist on incremental change towards a triangulated middleground when the middle is being moved right by radical reactionaries, to cede power to preserve norms that the other party has no intent to preserve, and generally insist that we’re in the middle of a game of tightly-refereed FIFA-regulation soccer when we’ve been playing Calvinball for decades.

38

John Quiggin 09.21.20 at 11:03 pm

A question I’ve wondered about, and never had a good answer for, on the specific issue of Roe v Wade. Suppose Biden wins and the Dems get a Senate majority large enough to override the filibuster (necessary for both court expansion and legislation). If they legislate to protect abortion rights, along the lines of the Civil Rights Act, is it likely that the SC would find this unconstitutional? I’d be interested both in legal expertise (on the Commerce clause etc) and on the strategic aspects (does the Court act in a way that makes expansion much more likely?)

39

CHETAN R MURTHY 09.21.20 at 11:18 pm

I follow LG&M, and the consensus over there (and they have a ton of (non-wingnut) lawyers there) is that Roberts pushes about as far as he thinks he can go, without getting smacked down. So if the Dems have the actual position to enlarge SCOTUS, I think you can bet on Roberts backing-off. He’s a good soldier and knows his masters wouldn’t like it if he scuttled the entire Project For A New Gilded Age, out of overreach.

But frankly, after Shelby County, that abysmal ACA decision, and a few others that Roberts has written, I fail to see how the Dems don’t already have enough cause to pack the Court. Heck, that hack needs to be impeached for what he did to the Voting Rights Act.

Something else: times change, and a (hoped-for) Dem trifecta in January 2021 can evaporate by January 2023, or 2025. So the idea that somehow the Dems can pass legislation in 2021, and expect that by the time it gets to Roberts (and he rules against them), they’ll still have enough seats in Congress to turn around and smack him …. well, that’s pretty dicey, I think.

Of course, the problem is, I’m not sure enough Dems care about this, that they’ll move immediately to expand the Court, rather than “let’s wait until we absolutely need to do it”.

That latter course is what’ll destroy American democracy.

40

CHETAN R MURTHY 09.21.20 at 11:19 pm

John, just to clarify:

I don’t see Roberts ruling against things like a Women’s Reproductive Rights Act, or a new VRA, or a law abolishing qualified immunity for po-po, unless the Dems have lost the trifecta, and (hence) he thinks he can get away with it. OTOH, if he does think he can get away with it, I’m sure he would. I’m sure he would.

41

Matt 09.22.20 at 3:18 am

JQ in 33 – it’s pretty unlikely that the Democrats will get a large enough majority in the Senate to overcome a filibuster. (I think that the most optimistic projections have them wining 53 or 54 seats at most.) But – the Senate sets its own rules, and can change them with a mere majority, so a majority can end the filibuster if it wants to. (The problem there is that several “old-school” Democratic Senators such as Diane Feinstein, are on record as opposing such a change, for reasons that really don’t make sense, especially now.)

The power to pass the Civil Rights act comes from Sec. 5 of the 14th Amendment to the US Constitution, which says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” It’s possible that congress could purport to pass abortion rights legislation under the “privileges or immunities” or the “equal protection” clause of Sec. 1 of the 14th Amendment, although this would be breaking new ground. Given that the Roberts Court basically made up an excuse out of whole cloth in Shelby County v Holder to hold much more textually sound legislation (part of the voting rights act) unconstitutional, I wouldn’t have much faith in them to uphold such a law, and might worry that they’d try to say that any law allowing abortion was a violation of the right to “life” in the 14th Amendment. (This would be pretty weak, of course, since the text talks about people “born” in the US or “citizens” of the US, and the unborn are, obviously, neither, but again, that would only be slightly more outrageous than the decision in Shelby County was as far as the text goes.)

42

Suzanne 09.22.20 at 4:39 am

@25 & 28: Way behind the curve:

Jonathan Miller: Of course they have inherited our two party system.

Dudley Moore: Oh, yes. How does that work?

JM: Well, let’s see, you have the Republican Party, which is the equivalent of our Conservative party. And then you have the Democratic Party which is the equivalent of our Conservative Party.

DM: Are the liberals Democratic or Republican?

Alan Bennett: Yes. As is convenient for them.

@12: It can be forgotten that when FDR threatened to pack the court he had a whopping Senate majority and the Judicial Procedures Reform Bill of 1937 still failed. The Supremes blinked all the same, but I wonder if American reactionaries today will do so. Even if Biden sweeps into office with huge majorities and the Democrats win the Senate, the chamber will still be closely divided.

43

bad Jim 09.22.20 at 4:39 am

In response to John Quiggin (9.21 11:03pm) on the constitutionality of laws regarding civil rights or abortion: it’s my understanding that should the court revert to the precedents of the Lochner era of jurisprudence, which is not inconceivable given the libertarian bent of the current crop of justices, anything enacted since the New Deal could be up for grabs.

44

Nigel 09.22.20 at 11:43 am

‘the prudent middle will punish that party that promotes social unrest. Peaceful protest won’t win clicks.’
‘We won’t be sorry nor have any regret when The Long Hunt begins and we stalk Antifa’s seed for generations.’
https://twitter.com/AlanBings/status/1308118118380826626

Aside from that, I don’t think prudent voters will associate Trump’s efforts to send in Federal troops to crush dissent and his celebration of violent policing and attacks on journalists with social restfulness.

45

Trader Joe 09.22.20 at 2:27 pm

I always find it remarkable that the Left gets in such a perpetual lather about filling Supreme Court seats. Win the Senate, Win the Presidency and you can move the court back where you want it in the ordinary course of business….no packing required.

Every new Justice that Republicans seek to approve we hear “oh Roe will be gone” or “ACA” or whatever….the fact is the Court has had more than 20 years to take a case to toss R v. Wade if they wanted to and they didn’t. They had the chance to nuke ACA from day 1 and didn’t and have had 4 years since that to find another case to do it and didn’t.

The court has a balance that has routinely defied all the political rhetoric surrounding it. Many different Justices have stepped up to that plate on both sides of the aisle to preserve it. I get the concerns and certainly 100% of all decisions aren’t going to go “your” way – but considering how long the court has had a conservative majority – I’m pretty inclined to call BS on all the pearl grasping.

46

Orange Watch 09.22.20 at 7:04 pm

Matt@41:

You more-or-less have hit on the core problem with Congressional action to impact SCOTUS. Congress as an institution no longer has respect for itself nor its prerogatives – its members in all parties are content to become a subordinate branch of government. The appropriate Congressional reaction for legislators who value the Constitutional system of government would have been to impeach at a minimum Roberts – and quite possibly also Scalia, Kennedy, Thomas, and Alito – for high crimes and misdemeanors in the form of usurping for the judiciary powers granted to Congress. We can tell how far we are from such a world by how absurd that sentence sounds. Even re-instating VRA verbatim would have sent a message to the Courts that it’s not their place to decide when the time has come to repeal lawfully-passed legislation – that a court full of perjurers who professed to “call balls and strikes” has no business imposing their personal opinion as to when non-controversially constitutional laws have passed their best-by date.

Admittedly, Congress ceded any claim to retaining exclusive right to legislative privileges vis a vis the Courts well before Holder v. Shelby County. An oft-cited example is the legal Tower of Babel stacked atop the Federal Arbitration Act of 1925 – a pernicious abomination in which SCOTUS has, among other sins, asserted unstated primacy in the FAA that meant the opinion of Congress in 1925 must be assumed to supersede the opinion of later Congresses who passed laws that textually overrode aspects of the FAA (and had been non-controversially held to do so for decades). On top of that, it also serves as a perfect example of Justices adding asides in earlier opinions (and dissents) that they themself later cite as precedent in later opinions. FAA caselaw is a perfect example of how much of the legislative function the courts have usurped, and how ineffectual-to-non-existent Congressional pushback has been since it suits corporatist interests in both parties even as it hollows out Congress as an institution.

47

Dr. Hilarius 09.22.20 at 7:17 pm

bad Jim@43 is spot on. Undoing the New Deal and killing the regulatory state is the real goal of the Republican Party. Conventional law-school analysis of precedent is coming to an end as various flavors of originalism and textualism are used to discard inconvenient precedent. All is takes is “wrongly decided.” Nice to add on some intellectual camouflage but, unlike litigants, the Supreme Court doesn’t have to persuade.

48

MarkW 09.23.20 at 12:22 am

@38. I’m not sure whether or not the Supreme Court would find this unconstitutional, but it seems like a short-sighted strategy. If the USSC agrees that the expansive commerce clause allows the U.S. government to override state abortion laws, then wouldn’t that create the possibility of conservatives restricting or banning abortion nationwide once they regained control? As things are now, if Roe were overturned, that would take us to the status quo ante where abortion was already legal in many states, and surely many more would legalize immediately following repeal. But if the commerce clause was used to justify national abortion laws, then you could conceivably see it banned in even in liberal states again, no?

To be honest, I’d like to see Roe overturned. That was THE decision that started us down this path of a hyperpolarized, super-powerful Supreme Court. Abortion laws should be subject to the electoral process in U.S. states just as in EU member states. Will some states ban? Yes, but travel is inexpensive. Have abortion rights groups provide travel funding for women who can’t afford a plane ticket while getting busy trying to get the restrictive laws changed.

49

Ann Robinson 09.23.20 at 2:39 am

It seems to me that ignoring the Supreme Court rulings has been established by the current adminstration’s violation of the Supreme Court’s rulings regarding DACA, and ignoring restoring the DACA enrollment and extending eligibility to established or eligible participants.
I do not agree with this ignorance, and it’s presidence for simply ignoring the judicial system.
Shall we continue, or condemn?
I condemn.
But for political furtherance or convenience, why not continue ignorance

50

CHETAN R MURTHY 09.23.20 at 5:04 am

MarkW @ 48: “To be honest, I’d like to see Roe overturned. That was THE decision that started us down this path of a hyperpolarized, super-powerful Supreme Court. Abortion laws should be subject to the electoral process in U.S. states just as in EU member states.”

Oh, here we go. The old “not the courts, go thru Congress” // “not Congress, go thru the courts” two-step. There’s never a right way to do it. And I remember reading that back before Roe v. Wade, there was precisely an argument that it should be decided in the courts, and not in Congress. Yeah, the old two-step. Also, funny thing, the VRA was struck down (in Shelby County) by the courts — gosh, imagine that.

As for the commerce clause, I guess MarkW is showing his libertarian (ahem) hindquarters again. Yeah, that makes sense: in a nation the size of a continent, where businesses regularly operate in all 50 states, and this ability to do so has been for well over a century one of signal strengths of the US, we’re going to strike down the federal government’s ability to regulate interstate commerce. Riiiight.

I also like how he never actually addresses the substantive issues. Roe v. Wade is bad on procedural grounds, and should be struck down. Next we’ll hear that the ACA’s mandate isn’t severable. Nosirree, balls and strikes here, no politicking goin’ on. Nosirree.

51

CHETAN R MURTHY 09.23.20 at 5:07 am

I’m sure MarkW would also like Brown v. Board of Education struck down. I mean, that was another super-powered court decision, right? And then there’s that decision (IIRC in the 60s) that outlawed malapportioned Congressional districts. I only learned about it last week: apparently there was some district out in the Midwest with 500-something voters (ha!) Yeah, that’s not for the Court to strike down — Congress needs to legislate. But what happens when that malapportionment means that Congress won’t legislate.

Democracy! It’s for White Supremacists!a

52

bad Jim 09.23.20 at 6:10 am

Trader Joe (09.22.20 at 2:27 pm) must be reporting from a different timeline. On my planet the air has lost its orange tinge and the Voting Rights Act of 1965 was gutted by the decision in Shelby County v. Holder, characterized by a cranky old lady as “like throwing away your umbrella in a rainstorm because you are not getting wet”, allowing states notorious for disenfranchising non-white voters to revert to their traditional practices, with predictable results in subsequent elections.

I’m sorry to be so harsh, but I was 13 when the Voting Rights Act was passed. It was kind of a big thing at the time, and it enraged me to see it tossed casually aside.

53

J-D 09.23.20 at 6:36 am

I always find it remarkable that the Left gets in such a perpetual lather about filling Supreme Court seats. Win the Senate, Win the Presidency and you can move the court back where you want it in the ordinary course of business….no packing required.

You find it remarkable that the Left ‘gets in a lather’, but you make no remark on how excited the Right gets about Supreme Court nominations?

The most recent vacancies on the Supreme Court resulted from the death of Ruth Bader Ginsburg at 87, the retirement of Anthony Kennedy at 82, the death of Antonin Scalia at 79, and the retirement of John Paul Stevens at 90. The oldest Republican appointee on the Court currently is Clarence Thomas, who is 72 now and due to reach 76 by the end of the next Presidential term. Obviously anybody might die or retire at any time, but if current Supreme Court Justices remain on the bench to ages similar to those of recent ones, the only vacancy likely in the next Presidential term is one resulting from the departure of a Democratic appointee, Stephen Breyer, who is 82 now and due to reach 86 by the end of the Presidential term.

Now, if the Democrats win five Presidential elections in a row, they should find little difficulty in shaping the Supreme Court the way they want it: but is it a reasonable political position to say to people ‘You can have what you want if you win five elections in a row and wait twenty years’? Is that you would call ‘the ordinary course of business’?

Every new Justice that Republicans seek to approve we hear “oh Roe will be gone” or “ACA” or whatever….the fact is the Court has had more than 20 years to take a case to toss R v. Wade if they wanted to and they didn’t. They had the chance to nuke ACA from day 1 and didn’t and have had 4 years since that to find another case to do it and didn’t.

The court has a balance that has routinely defied all the political rhetoric surrounding it. Many different Justices have stepped up to that plate on both sides of the aisle to preserve it. I get the concerns and certainly 100% of all decisions aren’t going to go “your” way – but considering how long the court has had a conservative majority – I’m pretty inclined to call BS on all the pearl grasping.

The idea that it makes no difference who the Justices are is grossly implausible. Not only is it obviously not the case that all Justice are the same, it is also obviously not the case that all Justices nominated by Republican Presidents are the same. For one thing, it is reasonable to expect some difference between Justices nominated by Republican Presidents but confirmed by Democratic-majority Senates and Justices nominated by Republican Presidents but confirmed by Republican-majority Senates. One of the incremental changes that has been taking place over recent decades is an increase in the number of Justices in the second of those two categories. Another is an increase in the systematic scrutiny by conservatives of the records of potential nominees to identify with greater confidence the ones who will best suit them. President Eisenhower is supposed to have said that appointing Earl Warren was his greatest mistake; one of the things that means is that he would not have done so if he had been better informed, which suggests that better informed Republican Presidents will make no further such nominations.

It seems to me that there are some Republican Justices who would be prepared to overturn Roe v. Wade, invalidate the Affordable Care Act, and so on, and other Republican Justices who are not prepared to do so; but if these have balanced each other out until now, it doesn’t follow that this must inevitably continue indefinitely. On the contrary, it suggests a possible situation where the appointment of just one more Justice who is so minded could change the outcomes.

So, taking one thing with another, your comment as a whole reads like somebody looking for excuses for sneering at Democrats.

54

J-D 09.23.20 at 7:10 am

Everybody has a different background, and as a result everybody considers issues like this from a different angle. The people who established the US system were mostly familiar with the British system, and it’s natural that they considered issues from that angle, and that many people in the US continue to do so. From that angle, it stands out that the US is different from Britain in that it is a federation and in that it has a written Constitution. So it’s easy for people in the US to think that the reason that the US has a Supreme Court which is so politically important is because it needs one to interpret its written Constitution and maintain its federal balance.

But I consider this from the angle of somebody with an Australian background. Australia is a federation and has a written constitution, and the High Court of Australia does play a role in interpreting the Australian constitution which has sometimes made it important in Australian political history. But the High Court of Australia has never (or almost never) been anywhere near as politically important as the Supreme Court of the United States has become. Once you’ve noticed that, it’s not hard to notice that there are also other countries which are federations with written constitutions and yet don’t have courts which are anywhere near as politically important as the Supreme Court of the United States.

This suggests several questions. One of them is: How did the Supreme Court of the United States become as politically important as it has? It’s not just because you have a federal system with a written constitution, because the same thing hasn’t happened in other federal systems with written constitutions. I just don’t know what the answer to this question is, although I would like to.

Another question is: Is it a good thing for the Supreme Court of the United States to be as politically important as it is? I think not. However it happened, I don’t think the effects have been good ones. I don’t know of any way the US is better off for having a court which is so much more politically important than courts in other countries.

However, in the short term there seems very little chance of reducing the political importance of the Supreme Court, so in the short term everybody in the USA has to live with that situation and make their decisions in that context. It would make no sense to say that because the right thing would be for the Supreme Court to lose some of its political importance, the right thing for people to do now is to behave as if it had already happened when in fact it hasn’t.

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CHETAN R MURTHY 09.23.20 at 7:18 am

MarkW @ 48: “if Roe were overturned, that would take us to the status quo ante where abortion was already legal in many states, and surely many more would legalize immediately following repeal.”

As someone over at LG&M pointed out just this evening, support for legalizing abortion in Alabama is at 37%. Several other Southern states are less than 50%. Those states would outlaw abortion. But hey, it’s a small price to pay, for allowing Teh [sic] Laboratories of Democracy to do their God-Ordained work.

Also: there’s no good reason to think that the GrOPers wouldn’t outlaw abortion nationwide, and every reason to think they would do it. To argue that this new version of the GOP (sooner or later, after so many years of spouting all that anti-abortion bullshit, they ended up believing their own hokum) won’t do it is either stupidity or gaslighting.

56

Hidari 09.23.20 at 7:48 am

@47 ‘Undoing the New Deal and killing the regulatory state is the real goal of the Republican Party’.

Yes. The Republican Party is an instrument of class warfare (with, so to speak, a sprinkling of racism and sexism on top). They are still fuming about the 1930s, when ‘communists’ seized control of the country and brought in all that awful New Deal stuff. They also don’t like a lot of that stuff that was brought in in the 1960s and 1970s but as that was more to do with culture (and some of which was brought in by the Republicans themselves, e.g. the EPA) they can live with it for now, although in the long run they want that gutted and removed as well.

But the Republican Party paradise was the Gilded Age: plutocracy at home, imperialism abroad. They are quite open about it (and be under no illusions: the Tories feel the same about the 1945 Labour Government and will never rest until e.g. the NHS is privatised, although they will do it by stealth).

The long term Republican goal is the death of the New Deal and a return to about 1890, as much as that is currently possible. Everything they do should be interpreted in that way.

57

Orange Watch 09.23.20 at 5:00 pm

Trader Joe@45:

The portions of the left that get into a lather about filling SCOTUS seats are the same portions that reject a 50-state strategy (let alone a 3000 county strategy) – the ones who prefer top-down rule to bottom-up organization. If you’re basically an authoritarian who simultaneously assumes that society has a meritocratic elite (to which you naturally belong), that any merit that elite has is because of individual talent and inborn motivation rather than socially (de)constructed public institutions and (in)formal systems that ensure that equality of opportunity is as much a lie as equality of outcome, and that this state of affairs is inevitable… you have no reason to try to ensure the body politic is informed or educated – let alone engaged. Having an unelected group with lifetime appointments serving as a backstop that can always strike down any misguided effort from the childish proles to interfere with the thoughtful plans of the serious adults in the room is an entirely natural outcome.

And yes, I’m keenly aware that this attitude is also frequently present on the right. Authoritarian vs. egalitarian is a divide that our commonplace 1D left-right spectrum tends to make subordinate to cultural, social, and economic dichotomies.

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faustusnotes 09.24.20 at 1:34 am

Wow some really naive silliness here. The supreme court is not a conservative bludgeon, Trump isn’t a special situation, the culmination of a 30 year conservative project to get an inassailable majority on the court is nothing to worry about, the Dems are just as bad as the GOP, and a completely conservative supreme court will definitely respect state’s rights on abortion. Absolutely spot on political analysis from the usual suspects here.

59

Roger Gathmann 09.24.20 at 8:52 am

I’m sorta unclear about what the SCOTUS could actually do if the legislature decided to impose term limits and ignore their judicial review powers. The only power Scotus has is the respect in which they are held. There’s no power of the purse, for instance. The fact is that the executive and the legislature have long merrily trounced constitutional limitations on warmaking power, one of the chief concerns of the constitutional gang of the 1780s. The court decided its own sweet self that the constitutional provision concerning warrents and searches didn’t apply to cars in Carrol v. US back in 1925. The power of the Supreme Court is that it generally gets along very well with the cops and the corporations – its constituency. But if the right and the left agree about anything, it is about “draining” the power of the Fed. courts. I think a term limits provision for judges would be wildly popular, save among the commentariat, which would moan about mobs – twitter mobs and others – taking over.
Lets let the mob take over this one.

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Gorgonzola Petrovna 09.24.20 at 10:10 am

I’ve never heard of Levitsky and Ziblatt and their book. In my opinion, the reality is much simpler, and it doesn’t take a book to describe: politicians do whatever they think they can get away with. For them, it’s a simple cost/benefit analysis calculation.

And actually, “written constitutions are reinforced by their own unwritten rules of the game” doesn’t sound like a good thing. It smacks of corruption.

61

MarkW 09.24.20 at 10:22 am

@48 US, we’re going to strike down the federal government’s ability to regulate interstate commerce. Riiiight

Not at all. It is necessary. But the commerce clause should not be able to justify any and every Federal law and regulation based on tortuous reasoning. Wickard v Fillburn was another terrible decision. If growing wheat on your own land to feed your own animals can be punished by the federal government (because it might affect the amount the farmer would buy otherwise), there is virtually nothing the federal government could not regulate using this strategy. I’m sure Chetan Murphy cheered when the ‘liberal’ block on the Supreme Court (including Saint RBG) all voted to approve of federal prosecutions of medical marijuana patients in California in Gonzales v Raich. Seriously – please give me your opinion on this case. Was it worth it in your view to screw over Angel Raich (a patient with an incurable brain tumor growing her own marijuana for medical use) in order to preserve the power and majesty of the expanded commerce clause?

Oh, here we go. The old “not the courts, go thru Congress” // “not Congress, go thru the courts” two-step.

No, the argument here is that abortion law should be left to the individual states and neither the federal government nor the the federal courts should be imposing a national policy. Don’t assume that the federal government is always on the side of the angels. Remember how Hawaii had legalized gay marriage and then along came the ‘Defense of Marriage Act’ that established that neither the federal government nor other states had to recognize those legal marriages? Good times. Hell, go way back — the Fugitive Slave Act was federal law that imposed the obligation of capturing and returning escaped slaves on the free states. American history has many examples of actions by the feds and the USSC that imposed uniform injustice nationwide (Dred Scott, Plessy v Ferguson, Buck v Bell, Raich v Gonzales).

As for Brown v Board of Education, that seems perfectly justified based on equal protection grounds. It was also, from my point of view, an advance in justice, but it should not be the role of the Supreme Court to decide what they believe is morally right (which is sometimes horrifying) and then construct an argument — however rickety– to support it.

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Trader Joe 09.24.20 at 12:24 pm

@51 Bad Jim

Sure, Holder was a bad decision. But packing the courts won’t change that and count on the fact that whatever the Ds manage to do, when it gets to be the Rs turn again (and it will happen), their antidote will be 5x worse.

Like I said, the way you ‘win’ is to win the Presidency and Senate – something the Ds have only accomplished for 2 years in the last 20 that’s why we have the court we have.

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