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The Supremes After Scalia
The End of SCOTUS?
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  • Dale Fayda

    Secession. Let’s get it over with.

  • amoose1959

    Total bs. Chait is a liberal hack reporter. When the libs stand to lose it’s a crisis. When the conservatives stand to lose it’s justice. Bork them and incarcerate Hillary – go Trump

  • Pete

    The court lost its legitimacy under Earl Warren. That is when impeachments and other congressional measure to reign in a lawless court should have been the rule of the day.

    Now, the court has been stuffed with three totally unqualified dingbats.

    • Fat_Man

      The court lost its legitimacy when it failed to stop Roosevelt from stealing the people’s money and defaulting on the Goverment’s bonds.

      • LarryD

        Well, to be fair, the Supreme Court of the time tried to reign in Roosevelt, hence his packing of the Supreme Court.

        Our liberties have been eroding for all too long. If Wilson’s statements on the obsolescence of the Constitution had resulted in the Democrats being politically hammered for a decade, maybe the Progressive would have died out. I doubt their arrogance would have allowed them to consider the possibility that they were in error.

        • Fat_Man

          That is the legend anyway. The court olayed some of Roosevelt’s worst crimes, such as the above mentioned theft.

  • Kevin

    If this happens the very next step will be to increase the number of justices to ensure whoever controls both the White House and Senate can pack the Court regardless of vacancies.

  • jeburke

    Missing here is understanding of the fact that if Congress doesn’t act because it’s “gridlocked,” then that’s what is supposed to happen in a constitutional democracy. It’s a liberal supposition that “something must be done” — abortion must be legalized, gay marriage too, our “broken health care system” must be fixed, etc. etc. And when Congress won’t “get it done” then we’ll turn to the courts and wage lawfare until judges get it done. This is the political dynamic that has shifted power to the High Court in recent decades.

    • Jim__L

      The Supreme Court is simply where the Ivy League elites go to have the last word.

      No wonder the bottom 90% of this country doesn’t respect them anymore. There aren’t enough jails to hold everyone who has contempt for this court nowadays, after the Obergefell ruling.

      • FriendlyGoat

        The people who are contemptuous of the Court because of Obergefell over and above all other issues don’t belong in jails. They belong in counseling for their emotional imbalance. For instance, some people imagine that the lower 90% of all the people in the country think same-sex marriage is hurting them

        • f1b0nacc1

          The complaint that most people have with the Obergefell ruling was that it created a new ‘right’ out of whole cloth, based upon what was apparently nothing more than Anthony Kennedy’s personal preferences. Whether one shares Justice Kennedy’s views or not (and by the way, I am a strong proponent of single sex marriage), this was very bad law, and a rather arrogant presumption by the court in the first place. The court is acting more and more often as a super-legislature, and whether or not you agree with the outcomes (you don’t like Heller, for instance, others don’t like Obergefell), this isn’t a healthy trend for a republic.

          • FriendlyGoat

            The Court in Obergefell simply put the right of people who want to be married in same-sex marriages over the previously-presumed right of other people (once a majority) to not like it, The fact of the matter is that this should never be a state-by-state issue in a free country. It’s appropriately seen as people’s rights over those of their legislatures in all states or no states. They correctly moved to all states.

            MEANWHILE, many of the cases in the Court are of FAR more importance than this one, and those who just hang up on Obergefell do need some counseling. They are suffering from “I-can-no-longer-identify-why-I-am-losing-the-game-of life——so-I-will-dwell-on-none-of-my-business-issues” syndrome.

          • f1b0nacc1

            Let me stress again that you and I are on the same side of the SSM debate. What I object to (and what MANY of the people who find fault with the ruling object to) is the way that the court chose to frame their ruling. They threw out essentially all state law, arguing that it was based upon nothing more than bigotry and blind animus, then instituted a new universal right, despite the fact that such a right would have been inconceivable only 10 years (perhaps 5 years!) earlier. Whether or not you or I see this as appropriate is not the point, it is a legal mishmash that has very little basis in anything other than the personal preferences of those wearing the black robes, and it was seen that way by those who objected to it. To pretend that this was beyond debate is to pretend that a position held almost universally only a few years ago (a position publicly endorsed by Obama, Hillary Clinton, etc. up until the last 2-3 years) was somehow beyond the pale.
            As for this being a state-by-state issue….well, that is what Federalism is about, and unless you want to amend the constitution (and if you do, good luck to you in your efforts), it is what the law is supposed to be about. My position is less complicated, as I don’t believe that the government should be in the business of regulating any sort of marriage in the first place (if it does, I support SSM, albeit with the understanding that no marriage should be regulated being the better policy). Absent a ruling that included the 14th Amendment as the basis for the court’s reasoning on this, the finding that suddenly there was a constitutional right to marry (which of course didn’t include polyamorous groups, pedophiles, furries, or people far too attached to their cars) simply made little or no legal sense. The court was imposing a preference, and that is what people objected to.
            Regarding the more important rulings…perhaps. Whatever my policy positions on these other rulings (I suspect that both Heller and Citizen’s United would be high on your list), there is a legal reasoning here that can be debated, whereas with Obergefell there is little more than posturing and virtue signaling. I am pleased with the policy result, but deeply troubled by the legal precedent, and believe it is far more dangerous to start down that road.

          • FriendlyGoat

            Well, I’m glad we agree on the SSM issue itself. Being a life-long straight, early married (at 20) to one woman (at 20) and still married 40+ years, advocating for gay lifestyle is just not “my” issue. I do not personally understand SSA because I never had it. But I believe in committed relationships because I have had one of those. Personally it is hard for me to imagine better arrangements for SSA people than in SS marriages. So I’m glad this has come to been seen as normal and okay for the fraction of people who will ever desire it. I think the rest of us can just chill on the issue and have confidence that the sky is not falling because of this.

            So, with all that in mind, I think that for “federalism” to claim that long-term committed relationships with legal rights and responsibilities are dandy in Massachusetts but not in Alabama is just silly. It’s about the people in those marriages. It is not about the cultural or religious norms of the surrounding citizens—or about any opinions they can express through a legislature. As for the rest of modern “federalism”, I’ve come to believe that George Will, the great explainer of “entrepreneurial federalism” has it figured out.
            The citizens through their legislatures compete to see which ones can give away the most to incorporated entities in structuring the so-called business climate. George believes in it. I don’t.

          • f1b0nacc1

            Yes, you have entertained us with your explanations of what you don’t like about federalism before, and they remain utterly irrelevant to the question at hand. Whatever you or I (or George Will) think of federalism, the writers of the constitution quietly clearly DID approve of it, and built the entire document around that concept. Now, as I said before, if you don’t like Federalism, by all means, go ahead and try to change it. Amend the constitution if you can (you cannot), but do not pretend that it doesn’t say what it clearly does say.
            Regarding SSM and SSA, the problem here is not whether this is good or bad for gays, or in fact whether most gays want SSM or not. The objection that most (not all, I am sure that we can both agree that there are some individuals who are driven be animus against gays, though we would probably disagree about just how many of them there are) who have opposed SSM as reasoned in the Obergefell decision was that the decision was bad law, poorly reasoned from faulty principles, in fact no principles at all. If you really believe that it is OK to alter hundreds of years of standing social doctrine over some recently revealed trends, prepare yourself for a great deal of pushback from individuals who don’t share this rather expansive view. If we had 7 SCOTUS justices who felt that slavery was AOK to reimpose would you accept that? How about Sharia law? Lets be clear…the rule of law, and the incrementalist nature of the law, is a protection for us all. No, it isn’t always convenient, easy, or even comforting, but it does protect us from the vagaries of passing passions….

          • FriendlyGoat

            Surely you understand that court-ordered “slavery” and “Sharia law” would be reductions in individuals’ rights and are therefore not comparable to an expansion of individuals’ rights which was the case with Obergefell. Even if you don’t grasp that difference, I do.

          • f1b0nacc1

            First, stop calling me ‘Shirley’

            Second, if the courts are extending individuals rights as in say, Heller (which extends rights, even if you believe that it should not do so), you seem to have a way of opposing them, so forgive me if I don’t think you grasp the difference. My point is that if we simply alter existing law in the interest of ‘extending rights’, just whose rights are we discussing? Sometimes it isn’t so straightforward as that, which is why the law is so often frustrating to those who treat it as an after-school special.

            If you agree that the SCOTUS can (and should) do whatever appeals to its personal preferences (as opposed to the constitution), then you cannot argue when presented with cases where they take your advice. If you have a court where 7 justices (just to pick a random number…I like 7) agree that blacks are not human beings and thus unworthy of protection under the constitution (i.e. the 14th amendment doesn’t apply to them), then legislation reestablishing slavery for blacks would not be prohibited under your reasoning. In fact, as it would be extending new property rights to people, we might even be able to endorse it? Obviously this is nonsense on stilts, but surely you must see where your reasoning leads.

            I understand the temptation on the Left to dispense with inconvenient and frustrating things like the rule of law and the constitution, but it is because of just that temptation that it is essential we not surrender to it. The courts have far too much power, not too little, and though (as in the case of SSM) we might agree that the courts came up with the right move, it would have been better to simple wait a few more years (and at the rate things were going, a few more years would have been all that it would have taken) to get to the same goal WITHOUT undermining the law. Didn’t the example of Roe v Wade teach you anything?

          • FriendlyGoat

            1) I don’t object to Heller as much as you think. Americans should have a right to own self-defense arms without being in the militia. I’ve personally had a rifle in my homes for all of my married life. In the states where I lived, no one ever told me I couldn’t.

            2) Your second paragraph really is nonsense on stilts, as you say. I think you should go find someone named Shirley to run it past.

            3) We are devolving to low levels if we “agree that the courts came up with the right move” but must debate whether to bash them for being right.

            4) What Roe taught us was that a certain number of states were never going to affirm women’s rights to choose whether they would or would not become mothers. All we have to do is listen to what is still going on in statehouses with respect to that issue. The argument that the Supreme Court made anti-choice people into anti-choice people is not a valid one.

          • Legal Economist

            If the people wanted to “put the right of people who want to be married in same-sex marriages over” anything else in all fifty states, the only legitimate way to do so would have been by amending the U.S. constitution (or each and every state constitution).

          • FriendlyGoat

            You also seem to not “get it” that marriage rights are to be the rights of the parties to the proposed marriage, not the rights of their armchair critics. We have finally moved beyond the “if the (voting) people wanted” this or that stage with respect to this subject. Here is a link to the Loving vs. Virginia case of 1967 where the Supreme Court unanimously threw out state laws banning interracial marriage. https://en.wikipedia.org/wiki/Loving_v._Virginia

            If you asked people today whether the USA needed to move through the constitutional amendment process to produce that result, everyone but the remaining confirmed racists would tell you “of course not”. The same will be true of Obergefell after the passing of a few years during which the sky does not fall.

          • Anthony

            FG, you may be arguing against a penumbra (the idea that the Supreme Court’s politicized role has corroded self government at the heart of American Constitutionalism). Your counters consciously or unconsciously argue “in a democracy, voters not unelected judges decide the momentous questions” while you (though in agreement) proffer something else. Carry on.

          • FriendlyGoat

            I am painfully aware that “Constitutionalists” always were more in favor of states’ rights than individuals’ rights and that the current crop of them are just getting meaner and meaner. There is a possibility that the drama of the Scalia vacancy will cause this to be the over-riding issue of the 2016 election. It’s likely not a winner for the conservatives.

          • Anthony

            Agreed but I think your counters think you were arguing further politicizing constitutional law – government by judiciary – when instead you were positioning something other (while not letting lawmakers [representatives] off the hook regarding contentious issues handed off to the Supreme Court).

          • Anthony
          • FriendlyGoat

            Thanks. I agree that the ascension of Trump implies we are a nation with a growing number of idiots, but Trump didn’t make us that way. Rather, we can credit talk radio, Fox News, various personalities like Breitbart, Palin, Norquist, Luntz, Will—–and a host of off-the-rails pastors for “dumbing us down”.

            BUT, I still prefer Trump as a candidate, or even as president, to another Chamber of Commerce railroad job with a ticket of say Rubio/Haley (or as might have been, Walker/Martinez).

            We have to consider that Trump has contemplated the possibility of actually inheriting the BURDEN of The White House and has plans in his mind to be more pragmatic than he now looks. We may be idiots, but it’s arguable that he is not. OF COURSE I would prefer a Democrat, but the rise of Trump is not the worst thing that can happen. First of all, he might lose the general. Secondly, he has toasted the “ism” that was represented by Walker, Bush, Christie, Fiorina, Kasich and, we hope, Cruz and Rubio.

          • Anthony

            You’re welcome. He is certainly not and article says as much and I think your assessment sums up current situation well.

          • Jim__L

            … And when those state constitutions were amended, they were in fact amended to support the actual definition of marriage.

          • jeburke

            The trouble with this line of argument is that there was never any constitutional “right” to marriage for anyone. In fact, civil legal recognition and regulation of marriage was always since the nation’s founding a matter for legislatures — almost entirely state legislatures. So leveraging that invisible right to SSM via 14th Amendment jurisprudence is an intrinsically legislative act. And that’s the problem with the contemporary role of the Court, which has become in recent decades a sort of Council of State, in effect, a third political branch. IMO, this is in large part due to the political left waging campaigns to move courts where legislatures were not inclined to move fast enough, but there is plenty of blame to go around. The right has happily taken up the cudgels and as a result, the entire federal judiciary has become increasingly politicized (trust me, 40 years ago, the media did not even think to report who appointed the judge issuing some decision, which has become routine).

            I think it’s possible — and important — to understand this, regardless of what side you are on with respect to SSM or any other issue. A political court can change when the political winds shift and when courts intrude on essentially legislative decisions, there decisions will never be fully respected. Just look at how after 43 years, half the country is not fully satisfied sbout Roe v. Wade. When a change, however radical, happens as a result of a broad political consensus through democratic processes, it sticks.

          • FriendlyGoat

            I can only suppose you think that black people were duty-bound by an implied obligation to love their state (or something) to “respect” slavery or Jim Crow and segregation because of the dignity of the legislative process by which they were imposed.

            History is not on your side to be making arguments about what “sticks” or why it should “stick”. There is just too much pure crap in legislative history and we all know about it now.

          • jeburke

            This is, of course, an irrelevant and fundamentally absurd argument — scurrilous, too. The 13th, 14th and 15th Amendments to the Constitution — 14th in particular — made it the indisputable part of the fundamental law of the land that former enslaved people and Black Americans generally were entltled to civil equality and all the rights and freedoms of American citizens. For a while, the Northern-dominated Federal government enforced the letter and spirit of these provisions, but backed away after the so-called Compromise of 1877, after which white Southerners gradually retook political control of the states, disenfranchised Blacks and began to enact Jim Crow laws. Challenged (in Plessy v. Ferguson, an 1896 Louisiana case involving public transportation) the Supreme Court to its eternal shame ruled seven to one (!) to uphold de jure race segregation — a sweeping decision that legitimized Jim Crow laws in every aspect of life across the South. And indeed, most such laws were passed in the years following this decision.

            The lesson? This decision was essentially a political one made by a Court that ignored the plain injunctions of the Constitution for no better reason than that American public opinion had in the 30 years since the Civil War moved away from sympathy with freed slaves to concern about “reconcilation” with the white South. Thus, in Brown v. Board of Education in 1954 and other related decision, the Court was simply taking seriously the words of the Constitution. The same simply cannot be said of Roe, Obergefell or a number of other more recent decisions, which, like Plessy, are rooted in the shifting sands of public opinion, not the Constitution.

          • FriendlyGoat

            You seem to be arguing that Plessy v. Ferguson somehow made southern legislatures into monsters. While the case did “permit” those legislatures to go off the rails, the Court did not “require” them to enact bad laws. Legislatures are perfectly capable of doing that all by themselves and Courts in the modern era fulfill the function of over-ruling those laws ——as they have with Brown, with Loving, with Roe, with Obergefell and many other cases.

            You also seem to be arguing that those of us who celebrate liberal decisions should BE CAREFUL, because we never know when conservatives might retake the Court altogether and run roughshod over people. I understand that issue as a good rationale for keeping conservatives off the Court rather than a proper argument for saying the Court should not make decisions.

          • jeburke

            No, I’m not making any of those arguments. I’m saying something really simple: the 13th and 14th Amendments plainly banned unequal treatment of former slaves and Black people. Thus, in Plessy, the Court acted politically and ignored the Constitution. In 1954, it rectified this grave and inexcusable error. In such other cases as Roe, there is simply no analogy. Period.

          • FriendlyGoat

            Prior to Brown, there were black people denied a reasonable right to a quality education due to segregation determined by white male legislators. Prior to Roe, women were limited to reproductive rights as determined by male legislators. Not much difference in reality.

            You keep wanting to make these constitutional arguments on why no one can have rights unless “originalists” find ways to permit them. The Court for decades has said “baloney” to that in many kinds of cases. I’m not for rolling back. That’s why I’m not a conservative.
            A lot of what that movement wishes to “conserve” should not be conserved. We have some precedents against that mentality and we plan to keep them.

        • Jim__L

          Obergefell simply brought into stark relief the fact that the elites of this country are simply out of touch with the beliefs of the rest of the country.

          The fact that the elites of this country are so badly out of touch hurts America greatly.

          • FriendlyGoat

            It’s arguable that conservative members of the Supreme Court are as “elite” as liberal members. It’s arguable that Donald Trump this time, Mitt Romney last time and John McCain before that are all properly described as VERY “elite”. It’s arguable that the head of Liberty University, the Robertsons of Duck Dynasty, the pundits of AM talk radio, the commentators on Fox News, hundreds of mega-church pastors, all the CEOs of member companies in the U.S. Chamber of Commerce, and all the fellows at conservative think tanks are VERY “elite”.

            You, of all people, should know that “elite” is a tired word that doesn’t mean anything to people who think. YOU THINK, so why are you going with low-brow arguments?

          • Jim__L

            “Elite” is shorthand for the top income decile. If you recall, these are the folks who basically control the legislation of this country. (VM cited a study on this subject, comparing the policy preferences of the median of the top 10% with the median of all voters. Basically, if the median of all voters ever get their way, it was because they happened to agree with the median of the 10%.)

            This group certainly qualifies as “elite”, by the commonly understood and used definition, and it’s a useful appellation here. It is not entirely monolithic or homogeneous. You can find some members who agree with the population overall. However, there are few enough of those that we have “surprise” insurgent populist campaigns on both sides of the aisle — one by Bernie Sanders and one by Donald Trump.

            This is a symptom of how badly out of touch the elites (which include each party’s Establishment) have gotten.

            As an aside, you seriously believe that the Duck Dynasty guys are for real?

          • FriendlyGoat

            Yes, of course the Duck Dynasty guys are for real. They had a duck call business before one of Phil’s (the patriarch) sons got them into the “reality” TV business—which caused them to have their logo and shtick on some 2000 consumer items. (I actually read Phil’s brother’s (Uncle Si) book, “Sicology 101”.) They have convinced millions that a mix of quirky entrepreneurship mixed with religion and camo clothes is the “ticket out” of the declining fortunes of the working class. That might work at the Robertsons’ level for a dozen or two per each 10,000 families——sooooo—–“vote conservative, everyone”.

            Back to the elites. I will not argue with a definition that includes the top 10% of wealth measured by net worth. And I will not argue with the reality that this class controls most of politics. THE PROBLEM is that the “elites”, as you complain about them, are painted as Ivy League liberals ruining the country with Godless left-wing socialism, when, in fact, a majority of the “elites” are staunch conservatives buying their will in both Congress and the statehouses.

            Meanwhile, too many Duck Dynasty fans are enabling the “elites” with their votes. It has been going on since 1980.

          • Fat_Man

            They are not out of touch. They hate the majority of the citizens of the United States and want to humiliate them in any way possible. It is the entire project of turning perversions into “rights”.

  • vepxistqaosani

    The fundamental problem is that the Federal government is too big to be constrained by the Constitution. We must either shrink the government or rewrite the Constitution.

    Even if they were motivated and competent, Congress would prove incapable of writing laws that do not leave unconstitutional room for administrative interpretation. This was one of the late Justice Scalia’s hobbyhorses: he had the ridiculous idea that laws passed by Congress should be so clear that anyone would be able to know what was — and was not — in violation.

    I would argue, in addition, that when we have so many laws that they cannot all be enforced (or even enumerated) — thus giving rise to prosecutorial and/or executive discretion — we simply have too many laws.

    If Congress could make two simple reforms (and it can’t) — to require that each bill address only a single subject and to rescind five old, obsolete laws for every one it passes — the American Constitution would be restored in short order.

  • Anthony

    Article III, Section I of the U.S. Constitution reads: the judicial power of the United States shall be vested in one Supreme Court (also lower federal courts). As a consequence, Who Judges? Above all, What is real (legitimate) political role of the Court?

    That is, whether appointed by Democratic or Republican presidents, judges are drawn preponderantly from highly privileged backgrounds (the range of acceptable political ideology is from ultra conservative to mainstream liberal). So, the political consternation is rally about…since historically both conservatives and liberal ideologies accept the existing economic system as an unchallenged given – plausible unknown variable in Sanders/Trump currency perhaps. Similarly referencing SCOTUS and legitimacy, a final observation: judicial activism that strengthens authoritarian and corporate class interests is acceptable (Trump perhaps) and judicial activism that defends democratic working-class rights and social equality invites attack (Bernie perhaps). To be sure, we have a Supremely Political Court with purpose.

  • Jacksonian_Libertarian

    Letting the power hungry Executive and Legislative branches pick the Justices of the Supreme Court is like letting the Defense in a criminal case pick the jurors from an unlimited jury pool. No criminal would ever be convicted under such conditions, and today’s Supreme Court never protects the Authorities of the States and the People over the 2 other power hungry branches of Government, even though protecting the States and the People is their entire JOB!

    The Supreme Court Justices should be chosen by the States, with the consent of the People, as those are the groups whose interests the Supreme Court is supposed to protect.

  • Fat_Man

    The Supreme Court has been a bad joke for a very long time. Replacing the Justices with an equal number of tabby cats would not change this country a single bit, and the videos would be more amusing.. I realize that cases need to be decided, but we could hire a couple of NFL referees to flip coins and the results would be just as good.

    • Fat_Man

      I will take back what I said about the NFL referees. Coin flipping is 50/50. The Supreme Court has been systematically wrong for most of the last 80 years.

      Even when they were right, as in Brown v Board of Education, they were useless. Schools are far more segregated now and the decedents of the Brown plaintiffs get worse educations than they got in segregated schools.

      Mostly, they have approved the depredations of the Federal leviathan that they were supposed to restrain, and gone out of their way to destroy the authority and legitimacy of state governments they were not supposed to be involved with.

      • Frank Natoli

        Lino Graglia made an interesting SCOTUS comment that involved Brown. Graglia noted that in 1896, Plessey v Ferguson, SCOTUS found that the Constitution did NOT prohibit state written de jure segregation in schools. Then in 1954, without any intervening amendments, with Brown SCOTUS found that the Constitution DID prohibit segregation. Then, in the 1970s, without any intervening amendments, with the Boston school busing decision, SCOTUS found that the Constitution REQUIRED race to be the criteria for sending children to certain schools.
        I guess the Constitution has been “living” i.e. dead for a long time.

        • Fat_Man

          Plessey was a case about seating on railroad train cars. https://supreme.justia.com/cases/federal/us/163/537/

          A good case could be made that SCOTU decided Brown wrongly. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment [1977] –http://oll.libertyfund.org/titles/675
          http://oll.libertyfund.org/titles/675#lf0003_head_030

          Be that as it may, even if Brown were correctly decided, it has not helped and very well may have harmed the people it was intended to benefit.

          • Anthony

            Some have argued during my life that as a matter of principled Constitutional Law, the Brown opinion is almost certainly indefensible. The argument has legal merit.

          • Fat_Man

            Yes, read the linked book.

          • Anthony

            Thanks.

          • Fat_Man

            Think nothing of it.

  • Andrew Allison

    What nonsense. The current issue has nothing to do with who controls Congress, and everything to do, as Biden declared in 1972, with lame duck nominations.

  • Frank Natoli

    its [sic] possible to imagine a scenario where the Court gradually hemorrhages legitimacy even as it accumulates more and more power.
    That happened eighty years ago. When FDR took office, and tried to do many things legally analogous to almost everything BHO has done, the Supreme Court said “no”. FDR’s first reaction, like all political demagogues, was to pack the court, the number of justices not fixed by the Constitution, you know, that flimsy that calls itself the Supreme Law of the Land. His Democrat allies in Congress convinced him to wait for simple mortality to take its course, which it did, and in due course FDR got his court and got his favorable rulings [a la upholding Affordable Care Act] and from that point forward the Supreme Law of the Land became irrelevant to the political majority.

  • ARMSTROB

    Not too sure about this article. Just look at the vote on both of Obama’s SCOTUS nominations, hardly a case where the opposing party just said no. Also missing is Justice Scalia’s view that it is the court them selves as well as other lower level judges who are destroying the court system by making themselves the last and final word. That is something the SCOTUS themselves assumed back in the 1800’s and is nowhere in the Constitution. We should not be ruled by the opinions of so few.

  • Beauceron

    Chait is one of those uncompromising, zealous Lefties where everything must go their way or the Republic itself is in danger– if the Republicans don’t yield and he doesn’t get who he wants, then the whole court has lost legitimacy.

    If someone on the right wrote the exact same thing and Chait approved of the nominee, he’d be cursing them as traitors.

  • Palinurus

    One of the problems with the Supreme Court is lifetime tenure. That an outsized measure of power should be wielded by office holders unaccountable to and unchecked by democratic processes for as long as they live or choose to serve is repugnant to democratic and republican values. It leads to predictable abuses and distortions.

    Most obviously, lifetime tenure plays no small role in raising the stakes of any nomination battle to a do-or-die level. It also results in scandalous situations when a Justice holds onto office after he or she is physically or mentally unfit for the job; Douglas, Marshall, and Stevens come to mind, one of whom, it is said, spent his declining years watching soap operas while his freshly law-school-minted clerks ran his office. Lifetime tenure means that mediocrities and mistakes linger for years and, due to the vagaries of Court politics, might come to assume an importance that is unwarranted by their abilities, that overwhelms their discretion and self-restraint, and that results in all sorts of mischief; multi-part-test O’Connor and, especially, “sweet meaning of life” Kennedy are cautionary tales of black-robe fever. And lifetime office means that legal problems, with all their real-world implications and context, are entrusted to an increasingly cloistered, geriatric bench and their twenty-something law clerks.

    Justices should be limited to something like a 12- or at most 16-year term, with the terms staggered so that each president gets to appoint two or three Justices during a four-year term.

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