After the major rulings we expect this morning, the justices will release a series of other rulings later this afternoon that won't get as much attention—even if some of them should
Steve—On Thursday, can you give us a recap of the accuracy of your predictions as to which justices wrote which opinions from last week, as well as the three (or four) from today? Thanks!
I like this idea a lot--not just those predictions, but what I got wrong about the term, in general. I'm not sure if it'll be this Thursday (we're likely to have some news to discuss), but sometime soon I'll *definitely* do a "What I Got Wrong About OT2023" post. Thanks for the suggestion!!
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.
Barrett in Murthy: "...failing to follow long-settled principles of standing doctrine and for relying upon factual conclusions that the majority deemed to be clearly erroneous." I particularly liked this comment, well deserved in this case, but obviously oblivious of when the SC majority has also done one and/or both of these in recent rulings. Striking down Chevron was the first step for Project 2025. The decision will be a disaster for the country, clog up the courts, show that corporate greed has no limit, and lead to many decisions that hurt the public - food, medicine, other areas of safety, the environment, civil rights, engineering, taxation, and the list goes on and on and on. It can also be described as the lawyers permanent super employment act. I really don't want a return to the age of the Robber Barons.
Modest proposal for Biden to test the court’s view that presidents act with impunity:
1) Execute the insurrectionists and those who instigate them by Nov 5.
2) Stack the court and permanently fix this mess of a minority owned and operated ‘democracy’.
3) Joe, if you lack the get up and go to do this; please, just get up and go. And throw your weight behind someone who is quick and sure about breaking eggs when required to protect a nation.
Congress has to remove reps themselves. The President doesn’t do that. Congress also has to be the ones to impeach Justices. The President has one role in regard to SCOTUS and that’s to appoint a nominee.
He certainly can’t be tried after leaving office which is maybe something. The other problem is the Republicans hold the House so nothing is going to happen there.
It may seem like I’m arguing with you but I’m not trying to. I would love to find a way out of this. I just don’t want it to be one where we stoop to becoming what we profess to loathe. 😔
this is part 2 of my reply, but it is just a repost of a comment by a person named Don Klemencic. His July 2 comment on the “88. Cleanup Conference” post is pasted here, and may be more responsive to you.
“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.”
I think I share many of your concerns, but though I'm much older, may be less cautious.
Following my historical/personal note below, is a much more legally knowledgeable nuts and bolts proposal by Don Klemencic that may relate to your concern.
But to be clear, my own position has 3 parts:
a) I will vote for the leading anti- magat candidate in the general no matter if he’s on life support or if she’s some person that today I have not heard of - or one that I have, and think is weak.
b) If it seems too late to try to coalesce around a best women Biden alternative now (and I don’t think that there’s a sufficient indication in the last 4 years that this is woman Harris), then how late will it seem when we have no choice in 2-3 months, and the convention is past?
One needs to have this conversation now, as it will be much less survivable later, and the odds of needing this conversation are too high to ignore. This is my ‘old doctor’ experience talking.
c) Past week I've been reading all I could find of my 6th-great grandfather, a barely schooled self-educated 3rd gen American immigrant whose grandfather by the same name came from Derbyshire England in 1683 with wife Elizabeth. His father’s death when he was 12 is attributed to ‘Indian attack’, and his mother died in childbirth to his younger sib – not easy times. A Quaker (Society of Friends, we call ourselves), a farmer, a pacifist, a slave-holder-become outspoken-abolitionist by midlife. He somehow became best friends with Benjamin Franklin with whom he co-founded the American Philosophical Society in 1643 “to pursue practical knowledge “. He was 'read-out' of Darby Friends meeting in 1958 for denying the divinity of Jesus, but continued to attend meeting and worship God as he perceived it, the rest of his life. In 1765 he was named Royal Botanist to King George III in 1765, from whom he received stipends (with the influence of Franklin, AND the commercial importance of plant knowledge) and was inducted to the Royal Academy of Science in Stockholm 1769 (perhaps by C. Linnaeus) who admired him as ‘the world’s greatest natural botanist’.
He is known to have hosted George Washington and Thomas Jefferson in the homestead he built with his second wife in 1729-31 (his first died in childbirth in 1727), and perhaps hosted most of the founding fathers in the mid 1770's, as the second continental congress one day adjourned to visit his then famous gardens 3 miles outside Philadelphia (to ‘cool down’?).
I mentioned he was an Englishman, a pacifist, and funded by George III, and yet, even as a noted man of conviction and principle and with much to lose in his later years, he harbored these ultimately violent, law-breaking insurrectionists in his home, and was tightly aligned with Franklin, who had put his name forward with King George, before courting the French.
So: WHEN and how does one reach that point where one commits one’s “life, liberty, and sacred honor” to do what is "right", instead of what is “legal”, within / under a corrupt and abusive system? Do we have this commitment in us?
So to be clear: I am thinking and speaking of the real and present need for fixing a broken democracy OUTSIDE that broken system, not within it.
There’s an ESSENTIAL distinction between the insurrectionists of 1776, and the insurrectionists of Jan 6, and one MUST preserve it, I agree, to avoid becoming that which we loathe. But when men take up arms, they do all look alike.
(And so, yes, I do loathe the Hamas attack compared to the bombing of Gaza in direct proportion to the innocents killed in each - does that somehow make me and my 20yo left of you?)
John Bartram, 1699-1777, is the Quaker ancestor, and my current case study in how to be an principled insurrectionist like the English colonialists of 1776, and hopefully not one I come to loathe.
I do think we’ve already let our constitutional democracy regress to tokens and forms with rapidly diminishing substance; it is much less in any sense a democracy now than a generation ago; it is an oligarchic plutocracy trending toward an autocratic kleptocracy.
To restore (and perfect) our governance requires TAKING power back from the co-opted SC, and increasingly fascist members of congress. This is NOT usually harmless.
My experience in governance both in the U.S. and abroad has confirmed my education and reading that great powers rarely relinquish their great powers (relatively) peacefully or gracefully (Paul Kennedy wrote a book about that in the 1990's, Fall of Great Powers).
Those rare exceptions do merit study, in that the times were right, the populations were substantively principled (& held important shared principles) on both sides of the power conflicts, AND there was a King, a Mandela, or a Gandhi, …instead of a Biden… who could sell the vision and walk the long walk.
But neither Washington nor Lincoln had that rare opportunity, not do we, now. I think this is the usual case.
We are deeply divided politically AND morally, and moreover, there are potent state-actors pumping fuel on the fire over the internet, and we have no one providing vigorous and highly visible moral or intellectual or strategic leadership - we are boxed in by the paucity of our moral imaginations and even moral interest, by the crass strategic positioning of winning a transactional power struggle in the media, and by the weak voice of a once inspiring leader who is a good man, but is like myself, is a failing old man well past his prime.
We all are failing to remember that the media itself may be the very message we need to question, regulate, redo.
We accuse GOP of a personality cult and monarchy-esque redesign of American political power, yet we haven't trusted a democratic process within the Dem party. Henry Ford said you can have any color car you want, as long as it is black. This is autocratic.
So yes, Dems MUST practice the democracy they want, which includes hearing out contrary voices, tolerating and embracing this difference, reaching, and then accepting the majority voice once the convention is over.
Or yes, we all lose.
The abyss we face now, is that part of US believes in the right and freedom to dominate inferiors or foreigners or women, or the weak (or at least they like this privilege and will fight to keep it). Their notion of freedom is to be ‘free from’ federal interference (borrowing on the Pulitzer winning Freedom’s Dominion by Jefferson Cowie, & Awakening Democracy, by Heather Cox Richardson) to dominate others as they can.
A different part of US believe instead, in the equality of all people (in some abstract sense of human rights, and equal ‘freedom to pursue happiness’ …).
Lincoln asserted that if the United States is to fall, it will fall from within.
I would object to any who fail to understand that our democracy is on life support. This may be reflect our leadership, but also we the voters. The hopeful democracy we grew up with following the 1968 chaotic convention is no longer in effect; it is inexorably imploding as the slow poisons of Wallace, Thurmond, McConnell, THEN tfg, work increasingly through the organs of government.
Nontrivial changes in power structures are required to re-approximate it.
Some of these changes may not happen 'inside the box', or peacefully.
So, I am thinking hard about those English colonists, how did they come to take the actions they took? Their wives wanted to pay less for tea? Not likely. They were the suffering masses? No. Were they wrong? (on July 4th!) I think not.
But , I’m even more afraid the changes the U.S. needs WON’T happen, and that ‘just vote’ has become an opiate of a disinfotainment culture.
We ARE in a box of history and complacency; we need to act outside it.
Lastly, just noticed AOC may have started to act on my concern.
Steve—On Thursday, can you give us a recap of the accuracy of your predictions as to which justices wrote which opinions from last week, as well as the three (or four) from today? Thanks!
I like this idea a lot--not just those predictions, but what I got wrong about the term, in general. I'm not sure if it'll be this Thursday (we're likely to have some news to discuss), but sometime soon I'll *definitely* do a "What I Got Wrong About OT2023" post. Thanks for the suggestion!!
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.
Barrett in Murthy: "...failing to follow long-settled principles of standing doctrine and for relying upon factual conclusions that the majority deemed to be clearly erroneous." I particularly liked this comment, well deserved in this case, but obviously oblivious of when the SC majority has also done one and/or both of these in recent rulings. Striking down Chevron was the first step for Project 2025. The decision will be a disaster for the country, clog up the courts, show that corporate greed has no limit, and lead to many decisions that hurt the public - food, medicine, other areas of safety, the environment, civil rights, engineering, taxation, and the list goes on and on and on. It can also be described as the lawyers permanent super employment act. I really don't want a return to the age of the Robber Barons.
Modest proposal for Biden to test the court’s view that presidents act with impunity:
1) Execute the insurrectionists and those who instigate them by Nov 5.
2) Stack the court and permanently fix this mess of a minority owned and operated ‘democracy’.
3) Joe, if you lack the get up and go to do this; please, just get up and go. And throw your weight behind someone who is quick and sure about breaking eggs when required to protect a nation.
How does Biden stack the court? Only Congress can increase the size of the court and the Dems don’t have the House. Am I missing something?
Seems he’d have to impeach and recuse and eventually lock up, the rep.s who participated in or supported the insurrection.
One can’t tolerate insurrection and run a nation.
Congress has to remove reps themselves. The President doesn’t do that. Congress also has to be the ones to impeach Justices. The President has one role in regard to SCOTUS and that’s to appoint a nominee.
Our current president can’t lead congress to do this, I am afraid you are right, unless his ‘team’ can move congress.
But a strong president gets congress to do the necessary, when it is this important.
After all he has immunity…
He certainly can’t be tried after leaving office which is maybe something. The other problem is the Republicans hold the House so nothing is going to happen there.
It may seem like I’m arguing with you but I’m not trying to. I would love to find a way out of this. I just don’t want it to be one where we stoop to becoming what we profess to loathe. 😔
this is part 2 of my reply, but it is just a repost of a comment by a person named Don Klemencic. His July 2 comment on the “88. Cleanup Conference” post is pasted here, and may be more responsive to you.
“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.”
Gail,
I think I share many of your concerns, but though I'm much older, may be less cautious.
Following my historical/personal note below, is a much more legally knowledgeable nuts and bolts proposal by Don Klemencic that may relate to your concern.
But to be clear, my own position has 3 parts:
a) I will vote for the leading anti- magat candidate in the general no matter if he’s on life support or if she’s some person that today I have not heard of - or one that I have, and think is weak.
b) If it seems too late to try to coalesce around a best women Biden alternative now (and I don’t think that there’s a sufficient indication in the last 4 years that this is woman Harris), then how late will it seem when we have no choice in 2-3 months, and the convention is past?
One needs to have this conversation now, as it will be much less survivable later, and the odds of needing this conversation are too high to ignore. This is my ‘old doctor’ experience talking.
c) Past week I've been reading all I could find of my 6th-great grandfather, a barely schooled self-educated 3rd gen American immigrant whose grandfather by the same name came from Derbyshire England in 1683 with wife Elizabeth. His father’s death when he was 12 is attributed to ‘Indian attack’, and his mother died in childbirth to his younger sib – not easy times. A Quaker (Society of Friends, we call ourselves), a farmer, a pacifist, a slave-holder-become outspoken-abolitionist by midlife. He somehow became best friends with Benjamin Franklin with whom he co-founded the American Philosophical Society in 1643 “to pursue practical knowledge “. He was 'read-out' of Darby Friends meeting in 1958 for denying the divinity of Jesus, but continued to attend meeting and worship God as he perceived it, the rest of his life. In 1765 he was named Royal Botanist to King George III in 1765, from whom he received stipends (with the influence of Franklin, AND the commercial importance of plant knowledge) and was inducted to the Royal Academy of Science in Stockholm 1769 (perhaps by C. Linnaeus) who admired him as ‘the world’s greatest natural botanist’.
He is known to have hosted George Washington and Thomas Jefferson in the homestead he built with his second wife in 1729-31 (his first died in childbirth in 1727), and perhaps hosted most of the founding fathers in the mid 1770's, as the second continental congress one day adjourned to visit his then famous gardens 3 miles outside Philadelphia (to ‘cool down’?).
I mentioned he was an Englishman, a pacifist, and funded by George III, and yet, even as a noted man of conviction and principle and with much to lose in his later years, he harbored these ultimately violent, law-breaking insurrectionists in his home, and was tightly aligned with Franklin, who had put his name forward with King George, before courting the French.
So: WHEN and how does one reach that point where one commits one’s “life, liberty, and sacred honor” to do what is "right", instead of what is “legal”, within / under a corrupt and abusive system? Do we have this commitment in us?
So to be clear: I am thinking and speaking of the real and present need for fixing a broken democracy OUTSIDE that broken system, not within it.
There’s an ESSENTIAL distinction between the insurrectionists of 1776, and the insurrectionists of Jan 6, and one MUST preserve it, I agree, to avoid becoming that which we loathe. But when men take up arms, they do all look alike.
(And so, yes, I do loathe the Hamas attack compared to the bombing of Gaza in direct proportion to the innocents killed in each - does that somehow make me and my 20yo left of you?)
John Bartram, 1699-1777, is the Quaker ancestor, and my current case study in how to be an principled insurrectionist like the English colonialists of 1776, and hopefully not one I come to loathe.
I do think we’ve already let our constitutional democracy regress to tokens and forms with rapidly diminishing substance; it is much less in any sense a democracy now than a generation ago; it is an oligarchic plutocracy trending toward an autocratic kleptocracy.
To restore (and perfect) our governance requires TAKING power back from the co-opted SC, and increasingly fascist members of congress. This is NOT usually harmless.
My experience in governance both in the U.S. and abroad has confirmed my education and reading that great powers rarely relinquish their great powers (relatively) peacefully or gracefully (Paul Kennedy wrote a book about that in the 1990's, Fall of Great Powers).
Those rare exceptions do merit study, in that the times were right, the populations were substantively principled (& held important shared principles) on both sides of the power conflicts, AND there was a King, a Mandela, or a Gandhi, …instead of a Biden… who could sell the vision and walk the long walk.
But neither Washington nor Lincoln had that rare opportunity, not do we, now. I think this is the usual case.
We are deeply divided politically AND morally, and moreover, there are potent state-actors pumping fuel on the fire over the internet, and we have no one providing vigorous and highly visible moral or intellectual or strategic leadership - we are boxed in by the paucity of our moral imaginations and even moral interest, by the crass strategic positioning of winning a transactional power struggle in the media, and by the weak voice of a once inspiring leader who is a good man, but is like myself, is a failing old man well past his prime.
We all are failing to remember that the media itself may be the very message we need to question, regulate, redo.
We accuse GOP of a personality cult and monarchy-esque redesign of American political power, yet we haven't trusted a democratic process within the Dem party. Henry Ford said you can have any color car you want, as long as it is black. This is autocratic.
So yes, Dems MUST practice the democracy they want, which includes hearing out contrary voices, tolerating and embracing this difference, reaching, and then accepting the majority voice once the convention is over.
Or yes, we all lose.
The abyss we face now, is that part of US believes in the right and freedom to dominate inferiors or foreigners or women, or the weak (or at least they like this privilege and will fight to keep it). Their notion of freedom is to be ‘free from’ federal interference (borrowing on the Pulitzer winning Freedom’s Dominion by Jefferson Cowie, & Awakening Democracy, by Heather Cox Richardson) to dominate others as they can.
A different part of US believe instead, in the equality of all people (in some abstract sense of human rights, and equal ‘freedom to pursue happiness’ …).
Lincoln asserted that if the United States is to fall, it will fall from within.
I would object to any who fail to understand that our democracy is on life support. This may be reflect our leadership, but also we the voters. The hopeful democracy we grew up with following the 1968 chaotic convention is no longer in effect; it is inexorably imploding as the slow poisons of Wallace, Thurmond, McConnell, THEN tfg, work increasingly through the organs of government.
Nontrivial changes in power structures are required to re-approximate it.
Some of these changes may not happen 'inside the box', or peacefully.
So, I am thinking hard about those English colonists, how did they come to take the actions they took? Their wives wanted to pay less for tea? Not likely. They were the suffering masses? No. Were they wrong? (on July 4th!) I think not.
But , I’m even more afraid the changes the U.S. needs WON’T happen, and that ‘just vote’ has become an opiate of a disinfotainment culture.
We ARE in a box of history and complacency; we need to act outside it.
Lastly, just noticed AOC may have started to act on my concern.
Steve, a question: If a justice is reading a dissent from the bench, are the other justices obligated to be present when they are reading it?
Not necessarily, but it sure would be a (noticeable) breach of decorum to get up just for that...