Supreme Court has voted to overturn abortion rights, draft opinion shows

[crazy canuck]

Yikes, suggesting that all court rulings are political acts is a disturbing extreme.

[Razgovory]

Make your country better?

I don't understand your question Raz.

Politics in relationship to the Supreme Court.  I was asking if our two choices were giving up or destroying the supreme court (by further delegitimizing it) and the answer I got was "politics".  How does Politics give us a third way forward regarding the supreme court?

[Zoupa]

I don't know.

There are a lot of structural anomalies in US governance. Your countrymen's reverence for the constitution doesn't help either.

In other words, just like most people in the thread, I'm just bitching without providing solutions. I don't think there are any.

[Admiral Yi]

Such as?

Hold the presidency and the Senate when their are vacancies.

[Tonitrus]

Exactly. Politics. That is what the conservatives in America have turned the USSC into - just another political institution, controlled by the minority, and a radical minority at that.

But politics have always played a role in the courts.

The GOP has just been a lot more naked about it.

Politics has always played a role, just like democracy has always played a role, and it used to be that the law and Constitution kind of had a minor role as well.

The systems and checks and balances don't exist independent of one another, so of course "politics has always played a role". But the idea was that it would be a *secondary* role, while the primary role of the USSC was the legal and constitutional role. That is no longer the case, now it is JUST politics. The only relevance to the actual law or constitution is just what you can fig leaf pretend to care about the law or constitution.

This is what comes from the conservative war on facts, reality, science, and rational thinking that has been ongoing for decades now. This is what their "victory" looks like.

Series question (for all, not just Berkut):  If one takes on the view that the USSC has become simply another political player, is it fair game for the Executive/Legislative players to reduce or ignore the respect for Judicial Review?

If the Executive were to no longer respect JR, then doesn't the USSC becomes essentially meaningless (except as a vocal, if impotent, political ally).

[Admiral Yi]

Series question (for all, not just Berkut):  If one takes on the view that the USSC has become simply another political player, is it fair game for the Executive/Legislative players to reduce or ignore the respect for Judicial Review?

If the Executive were to no longer respect JR, then doesn't the USSC becomes essentially meaningless (except as a vocal, if impotent, political ally).

If the government starts obeying only the court decisions they like then you no longer have the rule of law.

[Oexmelin]

It ought to be possible to signal respect for the spirit of the institution, while decrying the fact that your political opponents have thoroughly undermined it. As judges of the Supreme Court have basically abdicated their role as neutral arbiters, and are now judging from their political preferences, make *that* a political goal. As is often the case, people now argue about the filibuster, or no filibuster - but no one is actually arguing about what the filibuster was supposed to be achieving, and why that is important. It's all about technicalities - principles get relegated to the background, as if people all agreed about them.

I said it before, but I noticed that in my students as well. We have been operating as if all the principles of democratic rules, and the spirit of institutions were self-evident for everyone, and all we needed to know were the technicalities. Except that the technicalities were in service of certain important principles.

When I began teaching (it's been a while now...), I often asked students to produce a defense of absolutism - as a way to force them to think differently. They struggled. In recent years (5 years ago, or so), they no longer struggled. It seemed a lot easier for them to justify authoritarian regimes, even if they performed the necessary protestations. 

[The Minsky Moment]

This is not the first time this has happened.  The first time was in the 1840s and 1850s when the Court increasingly took on the role as final arbiter of the sectional crisis, leading to the grotesque effort by Justice Taney to concoct a jurisprudence of annihilation in Dred Scott, "solving" the crisis through the expedient of denying personhood to non-whites.  That made things worse, to no one's surprise other than Taney himself, leading to catastrophic war and constitutional revolution.

The second time - and the one this episode more closely resembles - was the so-called "Lochner" era of the late 19th century through the mid-1930s. During that period, the justices invoked the 14th amendment to strike down a wide array of economic legislation on abstract "liberty" grounds.  The decisions of this period follow the internal logic of a very particular ideological view of the constitution and its intersection with laissez faire economic theory, until they reach points of absurdity.  This is the same dynamic playing out now with originalist dogma, except that crude third rate historical reasoning now stands in for crude third rate political economy.

That period did result in the proposal - ultimately withdrawn - to enlarge the Court.  But while the popular histories often cite that episode - and the subsequent "switch in time that saved nine" - as the key event, what really undid Lochner was the total domination of US politics by the Roosevelt Democrats for 20 years and the resulting change the Court's composition.

[grumbler]

The court dropped Lochner-type reasoning before the court's composition changed, because the results of the 1936 election gave Roosevelt the power to pack the court without anything to stop him but the court's surrender of their bizarre crusade to make the rich richer.  The court surrendered in West Coast Hotel Co. v. Parrish decided March 29, 1937, some 69 days after Roosevelt's second inauguration.

[The Minsky Moment]

The court dropped Lochner-type reasoning before the court's composition changed, because the results of the 1936 election gave Roosevelt the power to pack the court without anything to stop him but the court's surrender of their bizarre crusade to make the rich richer.  The court surrendered in West Coast Hotel Co. v. Parrish decided March 29, 1937, some 69 days after Roosevelt's second inauguration.

That's the story but Parrish was just one case out of many.  By 1939, 3 of the 4 horsemen had retired and by the early 40s the Court's composition had been utterly reworked.  Time was on FDRs side.

[crazy canuck]

It ought to be possible to signal respect for the spirit of the institution, while decrying the fact that your political opponents have thoroughly undermined it. As judges of the Supreme Court have basically abdicated their role as neutral arbiters, and are now judging from their political preferences, make *that* a political goal. As is often the case, people now argue about the filibuster, or no filibuster - but no one is actually arguing about what the filibuster was supposed to be achieving, and why that is important. It's all about technicalities - principles get relegated to the background, as if people all agreed about them.

I said it before, but I noticed that in my students as well. We have been operating as if all the principles of democratic rules, and the spirit of institutions were self-evident for everyone, and all we needed to know were the technicalities. Except that the technicalities were in service of certain important principles.

When I began teaching (it's been a while now...), I often asked students to produce a defense of absolutism - as a way to force them to think differently. They struggled. In recent years (5 years ago, or so), they no longer struggled. It seemed a lot easier for them to justify authoritarian regimes, even if they performed the necessary protestations.

Yes, I think that is the way forward for the Americans. Those who still understand what the court should be should continue to reinforce that point while also lamenting the fact that the court is no longer what it should be.

[celedhring]

I think the fatal flaw is the life appointments, it solidifies court majorities and makes it more viable to employ the court as a tool to shape the law of the land outside of the regular political process. This seems to have had a pernicious effect on American politics (at least in the past cycles), with justice appointments becoming a top electoral issue.

Over here we have staggered 9 year terms for justices, and the court is flipping all the time (right now is about to flip from conservative to progressive).  This makes it hard to use ideologically, since court majorities are just not very stable. Now, the drawback is that the court tends to get stalled in controversial matters, like the 10-years-in-the-making abortion decision. But I'll take that compared to what's happening in the US.

[bogh]

We have life long (or rather tenure until age 70 where forced retirement kicks in) appointments, but none of the politics. Supreme Court justices are appointed formally by the Minister of Justice, but all nominations are done by a non-partisan expert panel. Panel members sit for four years and are nominated by the courts themselves (supreme, country and regional) the professional associations for judges and lawyers, state administrative levels and civil society associations. Not perfect, but so broadly based that it's very hard for a minority to seize control in any meaningful way.

[The Larch]

(right now is about to flip from conservative to progressive)

How long overdue is that flip? 

[The Brain]

I don't even know the details about the Swedish Supreme Court. Since it is fairly simple to change the constitution in Sweden the Supreme Court is not politically important.