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the third branch
Can the Supreme Court Survive the Next Presidency?
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  • Fat_Man

    Last month I told you that the Supreme Court abandoned the law 80 years ago. It took up politics in the 1950s. It became powerful because the Democrat Media Machine sang its praises in the 50s and 60s as the Court sided, regardless of the legal merits, with the DMM’s favorite causes, including the expansion of the Federal Leviathan, the empowerment of the radical left of the Democrat Party (remember when Democrats favored the 1st Amendment), and the crippling of local law enforcement. The DMM hosannas became even louder after the Supreme’s found the right to murder babies in the penumbras and emanations.

    The next President can do little to affect the course of the Court. It was Scalia, the most vocally conservative justice who died. who died. There are now 5 members in favor of the right to child murder, and the homosexual ascendancy. Hillary with a Democrat Senate will make the 5 man majority 6, but that won’t change the law. If Trump is elected he might name a replacement for Scalia who is as conservative as Scalia, or he might name someone who is as conservative as Earl Warren, William Brennan or David Souter, all of whom were Republicans. In either event, the 5 man liberal majority will continue to destroy the Constitution petit a petit, as the French say.

    The only way to restore the Constitution is to rebuild the whole legal system from the law schools up. And, no one other than I is proposing to do that.

    • Anthony

      The Court took up politics long before 1950 – The Supremely Political Court (and whether appointed by Democratic or Republican presidents judges are drawn preponderantly from privileged backgrounds, as you well know) – and the activism has gone both ways depending how you interpret corporate conservative activism historically. Restoration via rebuilding is a start but class politics are inescapable where it matters.

      • Fat_Man

        I said 80 years ago. 1950 was only 66 years ago. I know this from personal experience

        • Anthony

          I know you do as your father also practiced. But I refer to your 1950s assertion not the 80 years stipulated from before.

        • Anthony

          Did you edit your initial reply because my 1st response was to a different statement. However, law and politics and their difference Fat Man is not unknown where it truly matters. Secondarily, who’s to charge leftists or rightist virtually exchanging – though I shun either label.

          • Fat_Man

            Anthony I have never seen you say anything that wasn’t leftist.

            “class politics are inescapable where it matters”

            This is the quintessence of leftism.

          • Anthony

            Well, I should have said historical Supreme Court decisions favorable to Corporations. I can understand capitalism and not slant left (or at least try Fat Man).

          • Fat_Man

            Don’t both. I can’t jump. You cannot understand law.

          • Anthony

            You’re wrong; we see Jurist Prudence from different set of eyes. But, I’m not antagonistic towards either your cynicism or distaste for views of some people. Now, let’s move on Fats.

          • Fat_Man

            We see jurisprudence through different eyes. Mine are focused on the law, and yours are focused on leftist politics

          • Anthony

            Got it, thanks, – the end!

    • FriendlyGoat

      You’re right—–NO ONE BUT YOU is proposing that America rebuild its whole legal system in YOUR cynicism mold. Does it ever even occur to you that most people in America SERIOUSLY do not give a darn how much you want to trash their human rights which generally are preserved by the Supreme Court and not by state legislatures?
      You MAY NOT remake and replace every case decided in favor of individuals over legislatures or corporations on the anti-abortion flagship. The argument is both tired and disingenuous.
      I have listened to your nonsense here for a long time and like heck do YOU get to rebuild all justice. Why don’t you can it and go looking for some actual sense to write here for the rest of us?

    • rheddles

      The SCOTUS became political in 1803 at the latest. What happened from 1937 to1942 was that it stopped interpreting the Constitution as a separate and equal branch, and became a wholly owned subsidiary of the Blue Model and denied the right of individuals to engage in voluntary contracts.

      • Jim__L

        The biggest problem is the same as the rest of the Federal government — they assume that everything needs to be centralized, and there is no room for dissent.

        Liberty is meaningless to these people. Inalienable rights are utterly alien to them.

        They need to be ignored.

  • circleglider

    This fragile arrangement is not built into the Court’s constitutional design, and it could well disappear under the next president.

    Yeah, no kidding.The only legitimate constitutional mechanism that “embodies a super-democratic consensus” is Article V. The Founders would have fully expected any Justice who behaved otherwise to be impeached.But seriously, who needs Founders — or even a constitution — when we have Professor Bruce Ackerman!

    • Jim__L

      Ah, but if whatever adjusts the Constitution disagrees with the Leftists, it gets set aside.

      See Prop 8 in California.

  • Anthony

    Can the Supreme Court survive the next Presidency? Well, yes. The Court has “always” played a political role – 2016 election brings no new concern in that respect. Most important, despite some wishes to the contrary, Supreme Court Justices (nominees) are not above the normal prejudices of other citizens. Similarly, ideological predilections continue to influence jurist as referenced in Post – we are under a Constitution but the Constitution is what the judges say it is. So, either Trump or Clinton As always Article III, Section will continue the Supreme Court’s political influence – yes we will survive but with perhaps more feedback effect from court decisions in a climate of polarization shaped by opposing political forces. As always, Article III, Section I of the U.S. Constitution still reads: judicial power of the United States shall be vested in one Supreme Court….

  • rheddles

    The senate seems likely as not to remain in Republican hands. I trust them to temper the nominations of either candidate, especially after the nuclear option is extended to SCOTUS nominations. Further the justices will get to see the train wreck that they have helped create through their 80 years of activism at its peak. They could well be chastened. I trust Kaine or Pence to make good nominations after the impeachment or whatever.

  • Andrew Allison

    Oh, please! The Supreme Court, and the Union, have survived far worse than either of the, admittedly awful, candidates.

    • kingschitz

      Of course, you’re correct. But I wonder if the court can survive itself? The funnel through which justices pass has become far more narrow, limited to fewer schools and sharing more and more of the same cultural outlooks, despite the false diversity claimed by race and gender.

      With a few honorable exceptions, the court now speaks for a Gramsci-like hegemon. The sectional, religious and class differences that the Framers intended to balance through constitutional checks and balances have vanished. Congress, the Executive and the Judiciary are far less intellectually diverse than ever.

      • Andrew Allison

        I would argue that the recent voting history points either to significantly different cultural outlooks or to gender differences: the votes on most issues can be predicted. The real threat to the court may be that justices are selected on the basis of their ideology rather than their jurisprudence.

  • kingschitz

    Disagree with the writer. The Court’s legitimacy depends on the widespread belief by the public that SC justices are genuinely disinterested adjudicators. And until the rise of our current cultural monoculture that perception, fictional or not, did much to enhance the Court’s authority.

    (Readers who know something of the political tick-tock surrounding the Dred Scott case–the last time SC legitimacy was in serious question–may remember that many in the North believed, with circumstantial evidence, that the decision was “cooked” between Taney and Buchanan.)

    The Bork confirmation hearings began to change this as Democrats destroyed the illusion for short term gain. Now the “secret” is in the open as the court has joined an increasingly delegitimized political process as just one more degraded actor.

    • FriendlyGoat

      Blaming the Democrats for Bork? Come now.

      • kingschitz

        One Democrat in particular, Chappaquidick Ted.

        • FriendlyGoat

          I don’t guess you get it that the Bork problem was Bork and the people who nominated him while KNOWING he was a crackpot.

          • kingschitz

            “Crackpot”

            Strong stuff. And since Bork practiced law from 1953 until his death 2012, you must have abundant evidence for the word. Do share.

          • FriendlyGoat

            All jurists who consider themselves “originalists” are crackpots in my view. That’s because the “original” constitution—–among other deficiencies—– permitted slavery and did not give women a right to vote. Those two alone prove that we are only fools to worship “founders’ intent” as all-wise and all-knowing. It wasn’t.

            The point of this article is that we wish our judges were more centrist, balanced and apolitical. Bork was put up as the most radical far right guy Republicans could find. It was a correct response for the Senate to say no. Kennedy was a hero for doing the hard work on that.

          • kingschitz

            Originalism and its enemies are surrogates for the real conflict masked by these sorts arguments: by what standard is the law to be interpreted and by whom? If the U.S. Constitution was unamendable, then the usual, unimaginative leftst critique would have it right.

            But it is amendable and the two instances you cite–slavery and equal gender voting–were each enshrined in new amendments, a process which itself pays tribute to originalism. I would argue that originalism was a sound reaction to cases like Griswold, in which Douglas embarrassed the court and himself by finding mysterious “penumbras” and “emanations” in the charter, in sum, a pretzel twist to reach the conclusion that he wanted, albeit without warrant.

          • FriendlyGoat

            The law is to be interpreted with a bias to INDIVIDUALS’ human rights and legislatures have a rich history of doing the opposite. Every regressive thing which has happened in the American past and which might happen in the future was permitted and justified by the concept of originalism.
            If Bork had been even “half” centrist or “half” apolitical, he would have been confirmed.

          • kingschitz

            Actually, had he not fired Archibald Cox he would have been confirmed. Although the left later rehabilitated Nixon when they needed his memory to bash Bush-43, at the time of Bork’s nomination that president was still toxic. In leftist mythology of the day Bork had committed the ultimate sin.

          • FriendlyGoat

            Some of us merely interpreted it as avoiding an EXTREME ideologue who was NOT appointed for any kind of “balance”—–and we still see Bork that way. Thomas and Alito are cases of exactly the same thing, but we were unable to get them blocked.
            We should have a Court full of middle-of-the-roaders for the sake of our country and our people.

          • Boritz

            And when you say individuals of course you include unions…

          • FriendlyGoat

            Yes, of course, but collective bargaining is only one part of preserving individuals’ human rights.

          • seattleoutcast

            Collective bargaining applies to unions, but not to citizens who wish to band together for a political cause?

          • FriendlyGoat

            In the current situation, the Citizens United case has unions more free to support political candidates than they should be—-as well as corporations freed up to also seek to influence politics through their own various PAC arrangements. If I had my preference, for-profit corporations and not-for-profit corporations would not be free to support candidates, and NEITHER would unions be.
            Collective bargaining is important for doing exactly what the two words mean, but I don’t support the political activity of unions—–provided that we also got rid of the money from the other side.
            We individuals are sort of cheated out of the proper dynamic of elections when too many incorporated voices are able to buy the “megaphones” with which to brainwash us.

          • seattleoutcast

            Sure, and forcing people to purchase health insurance, mandated by the SC is progressive. Unfortunately, denying the right to choose has driven up insurance rates and deductibles and siphoned money to insurance and medical corporations. I have a good friend who only makes $16.00 per hour and is now over $5,000 in medical debt because his insurance was eviscerated by your progressive laws. I guess the right to choose only comes with pregnant women. How thoughtful of you.

            Thanks to you progressives, Baker v Carr redefined the states’ rights on how to establish their legislatures. Because of it, cities now dominate every state legislature. As a result, there is no check on corruption in many cities. The result: your Progressive agenda has destroyed the black family. How many children are born without fathers? How many minorities are forced to endure sub standard education? Why is the murder rate so high? Why do more black mothers have abortions that white mothers?

            Thanks for that.

          • FriendlyGoat

            1) The trend to urbanization exists worldwide and did not happen because of American Democrats or me personally.
            2) I’m sorry to hear of the case of your friend and $5,000 medical debt. But, I’d need to know A LOT more about exactly (exactly) how Obamacare impacted his situation—–what he had before, what he has now and what he realistically would have had now without PPACA. Insurance has been difficult for decades and deductibles/copays have been going up steadily the whole time. It’s not as though insurance was going to have gotten better if we had just done nothing in the years since PPACA was enacted and various parts became effective.

          • seattleoutcast

            Oh, right. It’s just urbanization. Cities run exclusively by democrats for decades such as Detroit, Chicago and Baltimore are bankrupt. They control the state governments because there is no check on them. They make states like Illinois and New York hell holes. You comment here but you don’t seem to understand Mead’s Blue Model. That’s a shame. You are like the clueless French aristocracy.

            You know nothing about my friend’s situation so don’t you dare act with some faux omniscience. His health care was destroyed because of Obamacare. You, personally, are responsible if you voted for Obama. Thanks for putting him in debt.

          • FriendlyGoat

            Paragraph 2) Bullsh*t. I don’t know anything about your friend’s situation because you don’t really know and wouldn’t tell me if you did. It’s possible he does not even know—–because—-insurance was not going to be standing still since the time of enactment of PPACA, even if it had never been enacted. Stop lying to me.
            Paragraph 1) It actually is just urbanization. City problems are not easy anywhere. Check out Mumbai, Mexico City, Tokyo, London, Paris, Rio, Tehran—-any of the big ones.

          • seattleoutcast

            How does it feel to know you’ve destroyed somebody’s life?

          • FriendlyGoat

            I’d worry except that I know you are 1) Lying to me. 2) Full of it.
            Reality for the whole of people in the USA is that PPACA is a net positive for far fewer people suffering medical life destruction. It’s not like I haven’t been around the administration of health insurance for virtually my whole life.

          • seattleoutcast

            Um, I’ve lived in a few of those cities. They don’t have the same issues as Detroit, Baltimore and Chicago. Get real.

          • seattleoutcast

            Ahhh, demonizing the opposing side. How Alinsky of you. I could just as easily say those who interpret the Constitution as a living document are crackpots. (My, that’s easy just to throw out slurs!)

            If you really wanted the Constitution to be a living document, you would work for getting amendments, such as was the case for sufferage and for the rights of blacks. But you are really just seeking power to advance your ideology when you think nine justices have the right to trounce the executive and legislative branches. Of course, as you now interpret the 1st amendment as having the right to free speech but NOT the exercise of religion, I can see why this works in your favor.

          • FriendlyGoat

            I never suggested you should not exercise your religion. If, of course, your religion insists you must limit the rights of other people—-uh, let me think here——oh, yeah, got it now——nope.

          • seattleoutcast

            It’s cute how your personal philosophical system gets to trump everyone else’s. That’s called a tyranny.

            To paraphrase Jefferson, As long as it doesn’t break my leg or pick my pocket, it’s not my business. It’s true Natural Law.

          • FriendlyGoat

            You don’t really think I’m cute. How about stalking someone else?

          • Jim__L

            FG… your political and social point of view really does ruin lives.

            It isn’t stalking to point this out — even to point this out angrily.

            You’re encouraging people to vote for Trump here, just like the rest of the Left.

          • FriendlyGoat

            Bullsh*t. You are so marinated in lies, you have ruined your own darn life believing them. You vote for Trump? You did it, Jim, not me. I’ve already been though it with YOU on the stalker stuff. S-O is just another one. You can’t validate him for me or vice versa.

  • Wayne Lusvardi

    Thank you Prof. Mead for raising the issue of the court’s legitimacy, which is too often taken for granted. What could be the outcome of an illegitimately perceived Supreme Court?

    Would Congress try to reduce the Court’s power?

    Could Congress rewrite the Constitution to cut the Court’s power?

    Could other branches of government just ignore the court’s decisions?

    Without an army how would the court enforce an unpopular decision?

    Would the executive branch starve the court for resources?

    Would the executive branch defy the court (as did Lincoln)?

    To gain legitimacy the court apparently needs to retain the role of the swing justice. But if Hillary Clinton is elected we could expect that to be eliminated. Could the same occur under a Pres. Trump? We don’t know. Creating a mere fictional appearance of a discretionary swing justice could also lead to erosion of legitimacy.

    Under Obama we have seen the president’s open use of public ridicule of the court during State of the Union speeches and the eventual destruction of the rule of law in the streets with the Black Lives Movement. What can we expect under a Pres. Clinton or Trump?

    We know which type of justices each presidential candidate would appoint to the court but would they try and preserve the structure of the swing voting justice as Republicans have done with Kennedy (a Catholic Republican appointed by Ford), O’Connor (Republican appointed by Reagan) and Powell (Democrat appointed by Nixon)? As far as we can guess, Hillary Clinton would get rid of the swing justice structure (would she try to appoint Khizir Khan?) Eisenhower (Republican) appointed Justice Earl Warren who swung the court to the left for 16 years. There is more a likelihood that Trump would retain the structure of the swing justice given the history of Republican appointments.

  • FriendlyGoat

    It wouldn’t have hurt anything here to brag on Obama for trying to avoid—–with Merrick Garland—–the exact problem you are describing.

  • PCB

    Perhaps the Founders foresaw the potential that the unelected co-equal branch could become (overly) perverted by partisanship and therefore, sought to provide remedy for extreme circumstances in order to reign in abuses and restore balance among the branches amid a deeply divided nation, (i.e. Congress consistently held by one party, while Executive consistently held by the other party, similar to the highly contentious situation currently existing in the U.S.).

    To my understanding, Article III of the Constitution creates the Supreme Court, but seemingly gives Congress the power to organize it. (Per the Federal Courts website, “Over the years, various Acts of Congress have altered the number of seats on the Supreme Court, from a low of five to a high of 10. Shortly after the Civil War, the number of seats on the Court was fixed at nine”).

    It may well be that time is rife, depending on the post-2016 political balance of power, in order to restore balance of branches, and in order to restore confidence in, and respect for judicial integrity and non-partisan fairness, in this deeply divided nation, for Congress to again act (with precedent) to alter current number of seats on the Supreme Court – otherwise force the nation to suffer near-certain dead-lock over the looming Supreme Court judicial nomination process, and its potential for causing ever greater erosion of public judicial confidence.

  • vepxistqaosani

    I don’t think the Founders envisioned a future in which the document they sweated over would become a palimpsest.

  • Beauceron

    I don’t think any institutions will survive the coming control of the Left.
    The educational system, firmly in the hands of the Left for decades, is a wreck and ruin; the media is now quickly becoming a joke; I don’t see why the legal system– not just the Supreme Court, but the entire legal system in the US– will fare any better.

    • kingschitz

      I disagree only to the extent that what you put in future tense I believe already characterizes the present.

      The government’s legitimacy is now sustained only by elections; but given how far major national policies have diverged from public support (as evidenced by polling data–and here, think immigration and health care, as two examples) elections are mere plebiscites where turnout is driven by racial, gender and ethnic identities or social issues while actual policy differences on transformational matters are obscured: While we thrill to vote to elect one of “ours” or protect our gun rights, right to abort or not, same sex bathrooms, et al, bipartisan governing elites unite around free trade and associated sovereign-destructive policies, such as open border immigration.

      As the purview of state and local governments has declined, the elections at these levels have become far less relevant than when the country had a robust federal system.

      What does lie in the future is that such elections will become less and less able to confer legitimacy to the existing administrative state superstructure and the Deep State on which it rests. What happens after that is beyond my pay grade (and likely beyond my remaining years.)

  • Frank Natoli

    The author, like all Democrats, thinks the court is a super legislature, answering to political forces, and therefore needs political “balance”. Except that is not what the judges are sworn to do. But they do it anyway, because Breyer and Ginsburg and Kagan and Sotomayor are Democrats, for whom politics is the only consideration.
    I’d like to ask the author this: is there anyone in your life whom you love enough to want to provide for after you’re gone? Anyone? For that one, would you make the most exacting effort to provide a Will and financial planning that would safeguard them? How would you like it, looking down from above, when someone else says “oh, that is a ‘living’ Will and ‘living’ financial planning, and we’re now going to interpret it as we see best, not like that dead white male intended”? THAT is exactly what Breyer and Ginsburg and Kagan and Sotomayor [and Kennedy, depending on which side of the bed he got up on that morning] do. How do you like it?

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