The importance of the Supreme Court

[Berkut]

I was discussing with a friend the Kavanaugh and Gorsich appointments and what that might mean for the future of Roe v Wade. She was not terribly worried because she felt confident that the SC doesn't really make new laws, and would be very unlikely to simply over turn something as well established as a woman's right to choose.


That got me thinking, and I wonder what people would think about the following argument:


There have been several examples in the last 50 years where the right has managed to basically create entirely new law on critical issues by consistently winning the "Who can pack the Supreme Court better" game.


1. Gun rights. Prior to Heller, the idea that the 2nd Amendment had much of anything to do with individuals right to tote around particular weapons was not at all established law in the US. Indeed, all the way back to Washingtons presidency there were laws regulated the ownership of arms, and it was pretty much a reversal of previous jurisprudence that saw the invention by the NRA of the individual right to own weapons outside of any militia pretty much out of whole cloth.
https://www.washingtonpost.com/outlook/2019/09/09/why-accurate-history-must-guide-coming-debate-about-guns-second-amendment/

Although this civic republican understanding of the Second Amendment did not preclude citizens from owning and using guns for lawful purposes, there was a consensus throughout the 19th century that state and local governments maintained broad police powers to regulate the carrying of dangerous weapons in public. The Supreme Court applied the militia-centered (or collective) view of the right to bear arms well into the 20th century. It upheld the 1934 National Firearms Act and the 1938 Gun Control Act, which imposed severe restrictions on machine guns, sawed-off shotguns and silencers. In United States v. Miller (1939), the court found the Second Amendment protected the right to keep and bear firearms only for certain military purposes.

Heller invented a new right that never existed before, on the basis of a theme that the NRA had been pushing for years. This was only possible by getting right wing justices on the court willing to overlook the actual law and history in favor of their political ideology and the power behind those who put them there (the NRA support for the Republican Party).


2. Citizens United. Again, a right wing court invents out of thin air law that never existed before, and overturns significant precedence in the process. Again, it is a straight ideological "decision" where it is pretty clear that those creating new law could not and did not care one bit about the actual history or law, they simply created new ideological law and then slapped a thin veneer of justification over the top. This is even more appalling than the NRA sponsored re-writing of the Constitituion, since it represented a direct attack on representative democracy intended and aligned in such a way as to promote a particular political party over the other.


https://www.acslaw.org/issue_brief/briefs-landing/a-right-wing-rout-what-the-roberts-five-decisions-tell-us-about-the-integrity-of-todays-supreme-court/


You can argue pretty convincingly that if the planet gets totally fucked by gobal warming, we will have Citizens United to blame. I opened up the ampaign finance system to companies with money to spend, and the fossil fuel industry has lot and lots and lots of money to spend. You used to be able to find Republicans who were climate activist. Not anymore. It is not possible to get elected as a Republican who believes in climate science - the oil companies will invest heavily in your primary and you will be gone.

First, political control: conservative interests seek to control the political process by giving their corporate, and often secret, big-money benefactors more freedom to spend on elections. This, in turn, helps them drown out opposing voices, manipulate political outcomes and set the agenda in Congress. For proof of this dynamic, look no further than how the Court's decision in Citizens United proved the death knell for climate change legislation in Congress. Before that fateful decision, which lifted restrictions on corporate spending in candidate elections, Congress had held regular, bipartisan hearings and even votes on legislation to limit the carbon emissions causing climate change. But Citizens United allowed the fossil fuel industry to use its massive money advantage to strike at this bipartisan progress, and it struck hard. The fossil fuel industry set its political forces instantly to work, targeting pro-climate-action candidates, particularly Republicans. Outside spending in 2010's congressional races increased by more than $200 million over the previous midterm's levels—a nearly 450 percent increase.[7] Bipartisanship stopped dead.

3. Shelby County vs. Holder. The US Congress in 2006 voted 98-0 in the Senate and 390-33 in the House to extend the Voting Rights Act another 25 years. Eight years later, those 5 Conservative Justices threw it our and declare the end of racism in America. Turns out that there is no need for voter protection anymore, because there was no racism anymore. Again, a purely ideological decision that threw out Congresses power as a legislative body and finder of fact. The results of course, speak for themselves, with multiple southern states engaged in voter suppression attempts - not an unforeseen consequence of the decision, but in fact the intended outcome.


Row v Wade could very definitely be gone once they find the right case to bring. The five conservative justices have a well established history at this point, and it is perfectly clear what their judicial mandate is, and it has very little to do with the law or the US Constitution.

[The Brain]

Is there a solution?

[The Brain]

Also, could you keep the puns to a minimum? kthx

[Sophie Scholl]

Is there a solution?

Not an easy one.  The breaking of norms by Republicans in power of late have prevented any chance of a shift in power at the Supreme Court for years if not decades to come.  I think we're in line for even more awfulness ahead.  I suppose that with every other piece of government being actively dysfunctional or broken you could try an FDR court packing effort if Democrats manage to take control of the Presidency and Congress.  As to Citizen's Untied, I've always found the following clip from Keith Olbermann from 2010 to be amazingly accurate.  I like to watch it every now and again as well as share it to marvel at its prescience.  https://www.youtube.com/watch?v=PKZKETizybw

[Berkut]

I think the Dems should absolutely pack the court if they can. The Republicans already broke the fig leaf political neutrality of the court itself, and the make up of it with the refusal to let Obama appoint a justice.

And they did not do so lightly - they knew exactly how important this was - how much of their current power is directly related to that 5-4 majority on the court. They would, have, and will do anything they can to maintain that control.

If the Dems continue to play a game by rules that nobody else if following, the Republicans will never relinquish their stranglehold on the court, no matter what public opinion or the law says.

[grumbler]

(snip) As to Citizen's Untied, I've always found the following clip from Keith Olbermann from 2010 to be amazingly accurate.  I like to watch it every now and again as well as share it to marvel at its prescience.  https://www.youtube.com/watch?v=PKZKETizybw

Actually, that clip is more amusing than amazing, as he totally missed the actual impact of Citizens United.  Walmart is abandoning small towns, not taking them over.  The Tea party is stronger than ever.  He was right about tax cuts, but that was old news even as he spoke.

The real impact, which he (almost completely) missed (he almost gets there at the end), was the fact that organizations contain all of the vices but none of the virtues of individuals.  Corporate board members, as individuals, lose sleep over the thought of the world that they are leaving their children.  As members of a group, they bleat about their responsibility to their shareholders and fuck over that world.  Dred Scott II was the ruling that said that their combined vices were as valid as their individual virtues.  Therein lies the problem.

If there was one constitutional amendment I could make, it would be this:  no one can contribute to an election campaign in which they cannot vote.

[The Minsky Moment]

I was discussing with a friend the Kavanaugh and Gorsich appointments and what that might mean for the future of Roe v Wade. She was not terribly worried because she felt confident that the SC doesn't really make new laws, and would be very unlikely to simply over turn something as well established as a woman's right to choose.

You could add literally hundreds of examples to your list of 3 that would prove this proposition wrong.

What is the greater power, the power to enact new laws or the power to say what those laws mean?

There is no definitive answer to the question but it should be obvious that the latter power is very significant indeed.

[The Minsky Moment]

The real impact, which he (almost completely) missed (he almost gets there at the end), was the fact that organizations contain all of the vices but none of the virtues of individuals. 

That's a good point.  Corporations can be like machines for the diffusion of moral responsibility.

Corporations (and LLCs/LPs/etc) are incredibly useful tools, but they are just that.  Tools.  We panic about the hypothetical future possibility of our tools assuming human characteristics and taking over (in the guise of robots), but many of our otherwise intelligent fellow citizens and leaders think nothing of allowing our tools in organizational form to do the same.

[Admiral Yi]

That's a good point.  Corporations can be like machines for the diffusion of moral responsibility.

Corporations (and LLCs/LPs/etc) are incredibly useful tools, but they are just that.  Tools.  We panic about the hypothetical future possibility of our tools assuming human characteristics and taking over (in the guise of robots), but many of our otherwise intelligent fellow citizens and leaders think nothing of allowing our tools in organizational form to do the same.

codswallop

The structures themselves don't make moral choices; the humans intertwined in the structures do. Structures don't have agency.

[The Minsky Moment]

The structures themselves don't make moral choices; the humans intertwined in the structures do. Structures don't have agency.

Congratulations.  You just demolished the premises that underlie Citizens United and Hobby Lobby.

[Admiral Yi]

Congratulations.  You just demolished the premises that underlie Citizens United and Hobby Lobby.

I don't see it that way.

[Oexmelin]

codswallop

The structures themselves don't make moral choices; the humans intertwined in the structures do. Structures don't have agency.

https://en.m.wikipedia.org/wiki/Institutional_analysis

[jimmy olsen]

Is there a solution?

Pack the court

[Sheilbh]

Mandatory retirement and a maximum of, say, 12-5 years on the court would probably help.

[Sophie Scholl]

Actually, that clip is more amusing than amazing, as he totally missed the actual impact of Citizens United.   (snip)

Yeah, I'm going to have to go ahead and ask you to put me with Raz if you're going to be that disingenuous when it comes to replies.  I've known for quite a while we don't see eye to eye on posting and especially political items, but the last few year plus you've gotten to the point where I have zero interest in engaging with you or having you engage with me.  Keep your shtick for those who haven't burned out on it yet, I'm all done.  Thanks!