My sense of profound contempt for most of the members of the current Supreme Court is inexpressible. Someone posted the opinion, with which I agree, that with the Chevron revocation the Robert's Court has finally passed the Taney Court (of the Dred Scott Decision) to achieve the title of absolutely worst Supreme Court in American history…
My sense of profound contempt for most of the members of the current Supreme Court is inexpressible. Someone posted the opinion, with which I agree, that with the Chevron revocation the Robert's Court has finally passed the Taney Court (of the Dred Scott Decision) to achieve the title of absolutely worst Supreme Court in American history. If the Democrats take control of both Houses as well as the Presidency this November, I would make this seemingly radical proposal for them:
Modify the 1803 Marbury Usurpation: legislate a mechanism that any SCOTUS decision affecting federal legislation will activate an automatic Congressional review, with simple majority votes enabling rejection of the SCOTUS decision. A retrospective process should examine for reversal past Court decisions (such as Citizens United, Dobbs, Heller, and, most especially, the Chevron revocation).
Establish a Standing Committee to oversee Supreme Court ethical behavior. Define what constitutes “good behavior” including absence of persistent political partisanship (which will require an explicit written definition to facilitate impeachment and removal).
It's really hard to be a worse instantiation of a US federal institution than the version that existed in the 1850s, given that the civil war happened immediately on that decade's conclusion and that so many of the federal officials present for the runup at best did nothing, and the ways in which the civil war was ultimately a consequence of what happened in that decade. In a lot of ways I don't think it's possible to really compare that group of officials with those in the present without at least a decade of distance. Trump's first term may have been worse than Buchanan's, for example, but it's hard to say when its consequences haven't fully unfolded yet. He's certainly in or near the Nixon-Buchanan range, but I don't think we have the data to rank his actions precisely until the consequences settle out.
For the Court specifically, I'd say it's certainly in the range of the Taney-Chase Courts (Chase being the Court that decided Slaughterhouse), and very plausibly worse than those. As with Heller and Dobbs, we shall have to see exactly how awful this Court is willing to make things with their abandonment of Chevron.
As to your proposal, it strikes me as simultaneously inadequate and wrong-headed. Shelby County, for instance, another of this Court's most criticized decisions, contains within it the possibility of a legislative reversal. All that would be needed is the generalization of the preclearance formula to cover jurisdictions without explicit antecedent racial voter suppression, explicitly basing it on recent history, and Roberts' argument dissolves. And yet Congress has for the past ten years done nothing about this. Giving one branch a total veto over the way another exercises its power doesn't prevent that power from being abused, it just shifts the problem of abuse to a different place, and defuses responsibility for abuses that do occur. We saw as much with the impeachment proceedings. What is needed are some serious revisions to the Constitution, both in terms of the structure of our government, to reduce the tendency towards polarization that our current system encourages, and in terms of the specific rights and powers it describes, to ensure that the government as a whole has the ability to do what is necessary, and is restrained from the abuses we know can occur.
I've been thinking about my proposal and I think I have refined it in its latest form. I'd be interested if you think I've improved it:
The Marbury Doctrine that the Supreme Court derived from its 1803 decision in Marbury v. Madison has no Constitutional grounding: the Court simply usurped the power of legislative review for themselves. The Congress either made the decision that the Supreme Court could be trusted with this power, or they lacked the self-confidence to object. This absence of action established the tradition of accepting the Marbury "Doctrine" despite the Court's frequent failure over the years to live up to the trust that Congress acquiesced in giving them.
Two things call out for change: 1. Trump demonstrated the frailty of Implicit traditions in the instance of someone unprincipled enough to ignore them; and 2. this Supreme Court, with its record of Consistently outrageous decisions, has arguably earned the title of worst in American history, wresting that disgraceful title from the Taney Court for its particularly outrageous decision regarding Dred Scott.
Consequently, if Democrats gain control of the federal government in the November election, they should also break implicit tradition and modify the 1803 Marbury Usurpation: legislate a mechanism that any Supreme Court decision affecting federal legislation will activate an automatic Congressional review--an opportunity, if they choose, to adjust the legislation to accommodate the Court decision or, with simple majority votes in both Houses, reject the Court decision in whole or in part. They should also establish a retrospective process to examine, for modification or reversal, past Court decisions (such as Citizens United, Dobbs, Heller, and the Chevron revocation). With these modifications the Supreme Court would still be allowed to offer a perspective on Congressional legislation, but not one that overrides the majority of both Houses. (Practically speaking, Congress would likely need to abolish the Senate filibuster to make this action possible. But the Senate filibuster has degenerated into the requirement of an automatic super-majority for legislative passage, which is grossly undemocratic. It should have been abolished long ago.)
As for "some serious revisions to the Constitution, both in terms of the structure of our government, to reduce the tendency towards polarization that our current system encourages, and in terms of the specific rights and powers it describes, to ensure that the government as a whole has the ability to do what is necessary, and is restrained from the abuses we know can occur.": what comes to mind is the difficulty in successfully using the Amendment process, or the potential hazard of calling a new Constitutional Convention.
As far as reducing the tendency toward polarization, there is something that Congress could do within their current legislative power. Reference the Election Clause: Article I, Section 4, Clause 1: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." The key word is "Manner". The Election Clause gives Congress the power to mandate Ranked Choice Voting (RCV) in all federal elections. (To avoid the complication of maintaining two different voting systems, states would be strongly induced to extend RCV to state elections as well.) Our current, defective plurality-and-one choice-only voting system gives an advantage to all incumbent office holders so an organized grass roots campaign might be necessary to get them to act.
Two points about RCV:
1. It provides the solution to the "voter's dilemma": do I vote for my true favorite even if he or she, as a non-duopoly candidate, has no chance of actually winning, or do I vote for my lesser-of-two evils within the duopoly so my vote is not wasted? The solution is to choose as first-choice your actual favorite and your second choice your lesser-of-two evils within the duopoly. If your first choice is eliminated in the instant run-off to construct a majority, your second choice is counted. Without the burden of losing votes because of the power of the voter's dilemma, the non-duopoly candidate may gain a real chance of winning. Over time, the power of the duopoly will weaken, and representation in Congress will come to more closely reflect the will of the people.
2. For the candidates to accumulate a winning majority they must attend to their second and third place votes. This will require them to be rational, conciliatory, and "big-tent". Firebrands and demagogues are at a major disadvantage.
Some variation on RCV is absolutely essential for breaking down the polarization drive, and I'm glad to see others bringing it up. I don't think it's quite sufficient though; you need to have both RCV *and* some kind of multimember district structure in order to ensure that durable and significant minorities have true representation. It's also important to punish slate voting, prevent district capture, and generally make coordinated strategic voting both difficult and unnecessary if we want to prevent a spiral of issue-merging and partisanship. Otherwise, while the duopoly dilemma is solved, the voter is still encouraged to rank candidates based on a loose, overall vibe, rather than their competence in specific issues the voter cares about. We don't want a charismatic celebrity taking advantage of, say, an international policy candidate and a criminal justice candidate splitting the votes of people who are more focused on one or the other of those. We want to be able to elect both of those candidates, and have them do their separate jobs.
I think there could be a way to hybridize at-large and district voting to meet these needs. For example, if your state has a three member House delegation and two districts, your ranked ballot would be used to map your preferences onto the seat for your district and an "at large" seat simultaneously, but would only have indirect effects on who gets the other seat, with candidates being eligible for either the appropriate district seat or the at-large seat. That said, I haven't done a deep dive into the mathematics of this kind of approach, so it might be difficult to make work. There's also a separate problem in terms of designing the ballots to reduce the cognitive burden on voters in this kind of system, which requires real thought that goes beyond just the rules, but it's certainly doable.
The Marbury doctrine is tenuous, but not completely without grounding. It doesn't come from Article III (which is woefully lacking in specifics, and exists mostly to avoid granting judicial powers to either Congress or the President) - rather, it comes from Article VI and the Supremacy clause: if there is tension between an ordinary law and the Constitution, the Constitution wins. Without some kind of rule like that, you end up in an Israel-type situation where the "Constitution" can change randomly based on who holds power in the legislature, and if there's going to be this kind of baseline law, there needs to be a separate body applying it to the more usual laws.
Rather than hand over the Court's power to the legislature, I think the key is to make sure that shifts in its composition are extremely regular and predictable, in order to discourage opportunistic abandonment of precedent and still make sure that the Court evolves along with society more broadly. This would start with the standard suggestion of staggered 18-year terms followed by some sort of senior status, with this addendum: for any case where a seat is temporarily empty, whether because its successor has not been appointed or because there was a need for recusal, the most recent former justice to take senior status is brought in to fill that seat, unless they are themselves unavailable. This cuts the legs out from under any sort of "duty to sit" argument against recusal, making a binding set of ethical rules viable, and ensures that chaos in the political branches can't impede the functioning of the Court by leaving it short-staffed. The term limits themselves ensure that the composition of the Court changes regularly and predictably. It also ensures that incompetent, malicious, or partisan Justices rotate out regularly even in the absence of impeachment. Finally, staggering the terms reduces the stakes of each appointment by ensuring that each change to the Court's composition is incremental.
In terms of fixing the current Court's terrible record, I still think this is best accomplished by amendment to the Constitution. An explicit right to privacy and some kind of Constitutional structuring for the federal bureaucracy, with specialist regulators separated from more action-oriented executive agencies, are two items that seem like they really need to go in there. No doubt there are others.
My sense of profound contempt for most of the members of the current Supreme Court is inexpressible. Someone posted the opinion, with which I agree, that with the Chevron revocation the Robert's Court has finally passed the Taney Court (of the Dred Scott Decision) to achieve the title of absolutely worst Supreme Court in American history. If the Democrats take control of both Houses as well as the Presidency this November, I would make this seemingly radical proposal for them:
Modify the 1803 Marbury Usurpation: legislate a mechanism that any SCOTUS decision affecting federal legislation will activate an automatic Congressional review, with simple majority votes enabling rejection of the SCOTUS decision. A retrospective process should examine for reversal past Court decisions (such as Citizens United, Dobbs, Heller, and, most especially, the Chevron revocation).
Establish a Standing Committee to oversee Supreme Court ethical behavior. Define what constitutes “good behavior” including absence of persistent political partisanship (which will require an explicit written definition to facilitate impeachment and removal).
It's really hard to be a worse instantiation of a US federal institution than the version that existed in the 1850s, given that the civil war happened immediately on that decade's conclusion and that so many of the federal officials present for the runup at best did nothing, and the ways in which the civil war was ultimately a consequence of what happened in that decade. In a lot of ways I don't think it's possible to really compare that group of officials with those in the present without at least a decade of distance. Trump's first term may have been worse than Buchanan's, for example, but it's hard to say when its consequences haven't fully unfolded yet. He's certainly in or near the Nixon-Buchanan range, but I don't think we have the data to rank his actions precisely until the consequences settle out.
For the Court specifically, I'd say it's certainly in the range of the Taney-Chase Courts (Chase being the Court that decided Slaughterhouse), and very plausibly worse than those. As with Heller and Dobbs, we shall have to see exactly how awful this Court is willing to make things with their abandonment of Chevron.
As to your proposal, it strikes me as simultaneously inadequate and wrong-headed. Shelby County, for instance, another of this Court's most criticized decisions, contains within it the possibility of a legislative reversal. All that would be needed is the generalization of the preclearance formula to cover jurisdictions without explicit antecedent racial voter suppression, explicitly basing it on recent history, and Roberts' argument dissolves. And yet Congress has for the past ten years done nothing about this. Giving one branch a total veto over the way another exercises its power doesn't prevent that power from being abused, it just shifts the problem of abuse to a different place, and defuses responsibility for abuses that do occur. We saw as much with the impeachment proceedings. What is needed are some serious revisions to the Constitution, both in terms of the structure of our government, to reduce the tendency towards polarization that our current system encourages, and in terms of the specific rights and powers it describes, to ensure that the government as a whole has the ability to do what is necessary, and is restrained from the abuses we know can occur.
Gazeboist,
I've been thinking about my proposal and I think I have refined it in its latest form. I'd be interested if you think I've improved it:
The Marbury Doctrine that the Supreme Court derived from its 1803 decision in Marbury v. Madison has no Constitutional grounding: the Court simply usurped the power of legislative review for themselves. The Congress either made the decision that the Supreme Court could be trusted with this power, or they lacked the self-confidence to object. This absence of action established the tradition of accepting the Marbury "Doctrine" despite the Court's frequent failure over the years to live up to the trust that Congress acquiesced in giving them.
Two things call out for change: 1. Trump demonstrated the frailty of Implicit traditions in the instance of someone unprincipled enough to ignore them; and 2. this Supreme Court, with its record of Consistently outrageous decisions, has arguably earned the title of worst in American history, wresting that disgraceful title from the Taney Court for its particularly outrageous decision regarding Dred Scott.
Consequently, if Democrats gain control of the federal government in the November election, they should also break implicit tradition and modify the 1803 Marbury Usurpation: legislate a mechanism that any Supreme Court decision affecting federal legislation will activate an automatic Congressional review--an opportunity, if they choose, to adjust the legislation to accommodate the Court decision or, with simple majority votes in both Houses, reject the Court decision in whole or in part. They should also establish a retrospective process to examine, for modification or reversal, past Court decisions (such as Citizens United, Dobbs, Heller, and the Chevron revocation). With these modifications the Supreme Court would still be allowed to offer a perspective on Congressional legislation, but not one that overrides the majority of both Houses. (Practically speaking, Congress would likely need to abolish the Senate filibuster to make this action possible. But the Senate filibuster has degenerated into the requirement of an automatic super-majority for legislative passage, which is grossly undemocratic. It should have been abolished long ago.)
As for "some serious revisions to the Constitution, both in terms of the structure of our government, to reduce the tendency towards polarization that our current system encourages, and in terms of the specific rights and powers it describes, to ensure that the government as a whole has the ability to do what is necessary, and is restrained from the abuses we know can occur.": what comes to mind is the difficulty in successfully using the Amendment process, or the potential hazard of calling a new Constitutional Convention.
As far as reducing the tendency toward polarization, there is something that Congress could do within their current legislative power. Reference the Election Clause: Article I, Section 4, Clause 1: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." The key word is "Manner". The Election Clause gives Congress the power to mandate Ranked Choice Voting (RCV) in all federal elections. (To avoid the complication of maintaining two different voting systems, states would be strongly induced to extend RCV to state elections as well.) Our current, defective plurality-and-one choice-only voting system gives an advantage to all incumbent office holders so an organized grass roots campaign might be necessary to get them to act.
Two points about RCV:
1. It provides the solution to the "voter's dilemma": do I vote for my true favorite even if he or she, as a non-duopoly candidate, has no chance of actually winning, or do I vote for my lesser-of-two evils within the duopoly so my vote is not wasted? The solution is to choose as first-choice your actual favorite and your second choice your lesser-of-two evils within the duopoly. If your first choice is eliminated in the instant run-off to construct a majority, your second choice is counted. Without the burden of losing votes because of the power of the voter's dilemma, the non-duopoly candidate may gain a real chance of winning. Over time, the power of the duopoly will weaken, and representation in Congress will come to more closely reflect the will of the people.
2. For the candidates to accumulate a winning majority they must attend to their second and third place votes. This will require them to be rational, conciliatory, and "big-tent". Firebrands and demagogues are at a major disadvantage.
Some variation on RCV is absolutely essential for breaking down the polarization drive, and I'm glad to see others bringing it up. I don't think it's quite sufficient though; you need to have both RCV *and* some kind of multimember district structure in order to ensure that durable and significant minorities have true representation. It's also important to punish slate voting, prevent district capture, and generally make coordinated strategic voting both difficult and unnecessary if we want to prevent a spiral of issue-merging and partisanship. Otherwise, while the duopoly dilemma is solved, the voter is still encouraged to rank candidates based on a loose, overall vibe, rather than their competence in specific issues the voter cares about. We don't want a charismatic celebrity taking advantage of, say, an international policy candidate and a criminal justice candidate splitting the votes of people who are more focused on one or the other of those. We want to be able to elect both of those candidates, and have them do their separate jobs.
I think there could be a way to hybridize at-large and district voting to meet these needs. For example, if your state has a three member House delegation and two districts, your ranked ballot would be used to map your preferences onto the seat for your district and an "at large" seat simultaneously, but would only have indirect effects on who gets the other seat, with candidates being eligible for either the appropriate district seat or the at-large seat. That said, I haven't done a deep dive into the mathematics of this kind of approach, so it might be difficult to make work. There's also a separate problem in terms of designing the ballots to reduce the cognitive burden on voters in this kind of system, which requires real thought that goes beyond just the rules, but it's certainly doable.
The Marbury doctrine is tenuous, but not completely without grounding. It doesn't come from Article III (which is woefully lacking in specifics, and exists mostly to avoid granting judicial powers to either Congress or the President) - rather, it comes from Article VI and the Supremacy clause: if there is tension between an ordinary law and the Constitution, the Constitution wins. Without some kind of rule like that, you end up in an Israel-type situation where the "Constitution" can change randomly based on who holds power in the legislature, and if there's going to be this kind of baseline law, there needs to be a separate body applying it to the more usual laws.
Rather than hand over the Court's power to the legislature, I think the key is to make sure that shifts in its composition are extremely regular and predictable, in order to discourage opportunistic abandonment of precedent and still make sure that the Court evolves along with society more broadly. This would start with the standard suggestion of staggered 18-year terms followed by some sort of senior status, with this addendum: for any case where a seat is temporarily empty, whether because its successor has not been appointed or because there was a need for recusal, the most recent former justice to take senior status is brought in to fill that seat, unless they are themselves unavailable. This cuts the legs out from under any sort of "duty to sit" argument against recusal, making a binding set of ethical rules viable, and ensures that chaos in the political branches can't impede the functioning of the Court by leaving it short-staffed. The term limits themselves ensure that the composition of the Court changes regularly and predictably. It also ensures that incompetent, malicious, or partisan Justices rotate out regularly even in the absence of impeachment. Finally, staggering the terms reduces the stakes of each appointment by ensuring that each change to the Court's composition is incremental.
In terms of fixing the current Court's terrible record, I still think this is best accomplished by amendment to the Constitution. An explicit right to privacy and some kind of Constitutional structuring for the federal bureaucracy, with specialist regulators separated from more action-oriented executive agencies, are two items that seem like they really need to go in there. No doubt there are others.