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

[celedhring]

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

How long overdue is that flip? 

Last progressive majority was in 2013. So, 9 years 

It will flip in the next round of appointments later this year.

[The Larch]

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

How long overdue is that flip? 

Last progressive majority was in 2013. So, 9 years 

It will flip in the next round of appointments later this year.

Just realized that the long overdue renovation is not of the Supreme Court but of the CGPJ, the one PP has been blocking for the last few years.

[Sheilbh]

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That period did result in the proposal - ultimately withdrawn - to enlarge the Court.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.

Would you not also say the post-Civil War court is another example? A series of rulings that really guts reconstruction and the 14th amendment while helping lay the foundations of Jim Crow.

I think that is part of my point - the court has played an incredibly important role, if not in individual policies, then in setting the conditions of politics. I think to CC's point it would be more disturbing if that period of 1840-1940 was actually just about law and not a fundamentally political agenda. To ignore a hundred years of an institution's history - that looks similar to what's going on now and has been to some extent probably since the Burger court - and pretend it's always been a good court and now it's being politicised, I think, gets the issue wrong. Basically for half of its existence as an institution it's been a very important political and politically motivated actor - and that's a really important part of how you understand and treat it.

My view is there is a similar project happening now with the development of an individual right to bear arms, the personal rights of corporations, another gutting of 14th amendment jurisprudence (probably now on abortion - coming soon gay marriage and anti-sodomy laws).

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.

Yeah I think it's similar here. There's life tenure until 75 - but retired judges (if they choose) can be kept on a panel and seconded in to make up the numbers if needed. We also have 12 justices who generally hear cases in panels of 3 or 5 (I think this is similar to the appellate courts in the US) but, on really important issues like a lot of the Brexit litigation they will sit as 9 or 11.

But similar there is an application process and the appointment panel is basically the current President of the Supreme Court, another senior (but non-Supreme Court) judge and then representatives from the judicial appointment committees in England, Scotland and Wales (which are made up of judges, lawyers, academics and lay representatives). Then that appointment panel has to consult with senior judges and politicians from all four nations (basically Ministers of Justice/First Ministers). I think the Justice Secretary then gets a name from the panel and basically they can accept it or reject or ask the panel to reconsider - but they can only do that once so at most they will get two recommendations.

Because we always want to copy America there has been a push for nominees to testify in front of a parliamentary committee. It would be incredibly pointless because the area MPs care about is basically the more controversial/political bits of the job like human rights or administrative law. But in the UK, that's only a small fraction of the cases they hear and they try to get judges from different areas of law - so I'm not sure there'd be much benefit in MPs quizzing, say, Baroness Hale whose background is family law or some of the others whose entire career has been in commercial law

The reality is with most judges I'm not sure of their politics. There's a bit of a sense of whether they're a bit more experimental or orthodox legally and there's swings between the two over time - but even then I'm not necessarily sure it's political v their temperament as judges/lawyers.

[Zanza]

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.

Our constitutional judges have twelve year terms or until they reach 68 and are elected alternating by each chamber of parliament. As they need a 2/3 majority in the respective chamber, only consensus candidates are ever elected.

[crazy canuck]

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.

Very similar here. The PM appoints but only from a short list created by a non partisan council.  Appointments are until the age of mandatory retirement but some step away earlier.  Also the factions on the court bear no resemblance to the political party that appointed them. Rather the factions on the court are identified by their stance on legal interpretation issues.  As an example, one of the biggest debates within the court was how to deal with the standard of review for administrative judicial review cases. It concerns me that people think that courts are political tools and that their decisions are just another exercise of politics. That is what some courts have become. And it is not what they should be.

[The Minsky Moment]

I think to CC's point it would be more disturbing if that period of 1840-1940 was actually just about law and not a fundamentally political agenda.

But one can't draw such a sharp distinction.  Taney in Dred Scott was aware of the political implications of his decision, but he thought he was applying the rule of law, once one accepts the fundamental axiom - shared by most Americans at the time - that persons of African descent were not equal members of the American political community. 

The jurisprudence of the Lochner era was based on certain legal principles that appeared logical and justifiable to the justices who applied them: namely that labor was a form of property and that liberty to contract - including the right to sell one's labor - was a fundamental liberty, a proposition that found internal support within the contacts clause of the Constitution. And Lochner era courts didn't strike down all economic legislation - just the laws that didn't satisfy the narrow definition of legal concept of state police powers.  In fact, the Parrish decision that heralded the end of the era accepted the fundamental proposition of liberty of contract, it just adopted a broader reading the concept of police powers.

The current court majority is operating in the same manner - rather than simply applying political results as fiat, they are adopting modes of reasoning that can be rhetorically described as a political neutral "judicial philosophy" but in reality contain powerful biases that shape political outcomes in a reactionary political direction.  It is tempting to adopt the position of Thrasymachus and view this as simply another manifestation of justice as the whim of the powerful.  But the likes of Thomas or Coney Barret do not see it that way - they honestly believe that their jurisprudential approach is the one most consistent with the constitutional system of ordered liberty and that they are simply following the results of a fair and proper legal analysis.

To ignore a hundred years of an institution's history - that looks similar to what's going on now and has been to some extent probably since the Burger court - and pretend it's always been a good court and now it's being politicised, I think, gets the issue wrong. Basically for half of its existence as an institution it's been a very important political and politically motivated actor - and that's a really important part of how you understand and treat it.

I disagree - it has been an important and motivated political actor for 100% of its existence. John Marshall was as a political a man as ever lived in America, but he achieved legitimacy for a struggling institution by controlling and channeling that political motivation through the discipline of legal modes of reasoning around which he could build a consensus.  And that has been the hallmark for the periods when the Court has enjoyed general popular legitimacy.  It's absence has been the hallmark of the periods when the Court has not.

The Warren court became controversial not just because of the content of its opinions but because the left wing of the court - Justice Douglas in particular  - was perceived as acting too overtly to fit reasoning into predetermined political results.  The Burger and Rehnquist courts led a backlash with decisions that dismayed many of the left, but it did not seriously implicate the Court's legitimacy because they acted within the Marshallian mode of adhering to interpretive methods and canons within the jurisprudential mainstream.  That kind of small "c" conservative jurisprudence was able to get to conservative results (albeit within certain limits) without fundamentally implicating the Court's bona fides.  But now the leading representative of that conservative approach, Chief Justice Roberts, finds himself increasingly isolated in the face of a reactionary jurisprudence.  And that is why the Court's popular standing and perceived legitimacy is again under siege.

[Sheilbh]

But one can't draw such a sharp distinction.  Taney in Dred Scott was aware of the political implications of his decision, but he thought he was applying the rule of law, once one accepts the fundamental axiom - shared by most Americans at the time - that persons of African descent were not equal members of the American political community. 

The jurisprudence of the Lochner era was based on certain legal principles that appeared logical and justifiable to the justices who applied them: namely that labor was a form of property and that liberty to contract - including the right to sell one's labor - was a fundamental liberty, a proposition that found internal support within the contacts clause of the Constitution. And Lochner era courts didn't strike down all economic legislation - just the laws that didn't satisfy the narrow definition of legal concept of state police powers.  In fact, the Parrish decision that heralded the end of the era accepted the fundamental proposition of liberty of contract, it just adopted a broader reading the concept of police powers.

The current court majority is operating in the same manner - rather than simply applying political results as fiat, they are adopting modes of reasoning that can be rhetorically described as a political neutral "judicial philosophy" but in reality contain powerful biases that shape political outcomes in a reactionary political direction.  It is tempting to adopt the position of Thrasymachus and view this as simply another manifestation of justice as the whim of the powerful.  But the likes of Thomas or Coney Barret do not see it that way - they honestly believe that their jurisprudential approach is the one most consistent with the constitutional system of ordered liberty and that they are simply following the results of a fair and proper legal analysis.

That's fair and I agree. I think it's why I struggle with the idea that you have a non-political constitutional or supreme court. Or that it is dangerous or wrong to think about what the court or the legal system achieves politically. Of course that doesn't mean that there is no theory or legal reasoning behind that.

That's part of what I mean by the current court being a product of what I mean by the right-wing infrastructure around the court. They have advanced a legal theory - my view is that it's a legal theory to push political ends. That doesn't mean that the judges or the academics or law students are just political hacks, but I don't think they are getting these results or reaching these conclusions without the writing and thinking that goes on around them.

I think there's a question of the extent to which you believe that legal theory is in good faith and the extent to which it's a little bit of the emperor's new clothes. My own view is that the judges, academics etc contributing to this fiercely reactionary approach to law probably start from having certain political views and then find first textualism, then originalism - and who knows what next Vermeule's "common good constitutionalism" - as an attractive and coherent(-ish) theory. In the same way as I think if you're left-wing law student you might get a little more influenced by critical theory and that will have an impact.

I disagree - it has been an important and motivated political actor for 100% of its existence. John Marshall was as a political a man as ever lived in America, but he achieved legitimacy for a struggling institution by controlling and channeling that political motivation through the discipline of legal modes of reasoning around which he could build a consensus.  And that has been the hallmark for the periods when the Court has enjoyed general popular legitimacy.  It's absence has been the hallmark of the periods when the Court has not.

That's fair and I take the correction. But this is where I would criticise strands on the liberal/left who, I think, do not want to challenge or accept challenges to the court's legitimacy because of the "defend institutions" strain of resistance to Trump. I think there's an element of "not shining light on magic" about that which is not justifiable on a body that has a lot of power and is a political actor.

They may earn legitimacy or a bit of dignity but, despite the robes and the lack of TV cameras and the Norman French which is all their to elevate their office a bit we shouldn't give in to that if it's not true.

And it's very fair on Marshall as political - so was Earl Warren. It is a distinctive feature of the US system that through the history of the court you have figures appointed who are primarily political figures until they're on the Supreme Court. I think that era is probably over - but even the Merrick Garland from Supreme Court nominee to Attorney General in a President's administration is weird from a British perspective and I imagine would also be weird from a German, Danish or Canadian point of view.

The Warren court became controversial not just because of the content of its opinions but because the left wing of the court - Justice Douglas in particular  - was perceived as acting too overtly to fit reasoning into predetermined political results.  The Burger and Rehnquist courts led a backlash with decisions that dismayed many of the left, but it did not seriously implicate the Court's legitimacy because they acted within the Marshallian mode of adhering to interpretive methods and canons within the jurisprudential mainstream.  That kind of small "c" conservative jurisprudence was able to get to conservative results (albeit within certain limits) without fundamentally implicating the Court's bona fides.  But now the leading representative of that conservative approach, Chief Justice Roberts, finds himself increasingly isolated in the face of a reactionary jurisprudence.  And that is why the Court's popular standing and perceived legitimacy is again under siege.

Although I think this captures what I mean by the risk of law as an area that normalises quickly and tends to be small-c conservative. Because the pushback I'd make here is that your description understates how radical Rehnquist was - especially on the 14th amendment which is core to Roe and the other judgement's Alito is putting in doubt. I don't think Rehnquist acted within the Marshallian mode - I just don't think he had the votes for his type of radicalism.

They're going to have 10-15 years probably to build on cases like Heller, Citizens United, overturning Roe etc. That will become normalised. The institutionalist, small-c conservative instinct in the law will defer to this growing body of law and the theory behind it will be taught as a prominent way of interpreting the constitution. So if you want it overturned then there will need to be an alternative theory that I don't think exists yet - or at least doesn't seem widespread.

[The Minsky Moment]

I think there's a question of the extent to which you believe that legal theory is in good faith and the extent to which it's a little bit of the emperor's new clothes. My own view is that the judges, academics etc contributing to this fiercely reactionary approach to law probably start from having certain political views and then find first textualism, then originalism - and who knows what next Vermeule's "common good constitutionalism" - as an attractive and coherent(-ish) theory. In the same way as I think if you're left-wing law student you might get a little more influenced by critical theory and that will have an impact.

I think you've captured the sociology of it.  Every law student studies the same jurisprudential history and faces the same problem: a purely textualist and formalist approach to interpretation won't give definitive answers to all pertinent legal interpretive questions.  That isn't so much of problem for those at home with critical theory - it's more of a feature.  But it is a problem for those looking for a more self-contained legal framework. If one rejects the pragmatic response epitomized by the publicly popular but often scorned Justice O'Connor - it's easy to be led into desperate stopgaps like originalism.

But this is where I would criticise strands on the liberal/left who, I think, do not want to challenge or accept challenges to the court's legitimacy because of the "defend institutions" strain of resistance to Trump. I think there's an element of "not shining light on magic" about that which is not justifiable on a body that has a lot of power and is a political actor.

The liberal concern with Court legitimacy predates Trump and is based on its essential institutional role in containing executive power. As frustrating and disappointing as the Court can be, the most significant structural concern in America since WW2 has been the extraordinary growth in executive and presidential power.  Since Congress has weakened over the same period, exacerbated by many self-inflicted wounds, the Court's institutional role is more significant than ever.  And even a slanted court can usually be counted on to restrain the worst excesses of an otherwise allied executive, as occurred in the GWB and Trump admins.

They're going to have 10-15 years probably to build on cases like Heller, Citizens United, overturning Roe etc. That will become normalised. The institutionalist, small-c conservative instinct in the law will defer to this growing body of law and the theory behind it will be taught as a prominent way of interpreting the constitution. So if you want it overturned then there will need to be an alternative theory that I don't think exists yet - or at least doesn't seem widespread.

Unfortunately, this is probably right, at least in the limited sense that legal culture cannot avoid being influenced by and engaging with interpretive approaches that are dominant in the Supreme Court and prevalent throughout the federal court system.  And we see that already with lower court decisions engaging in the same kind of freewheeling antiquarianism seen in Heller and the Alito draft.  But it's hard seeing it become *too* normalized when it involves pushing an interpretive theory so naive that it would get you laughed out of an undergrad seminar.

[Iormlund]

Such as?

Hold the presidency and the Senate when their are vacancies.

The Senate is designed to represent backward, dim-witted folks. There's no way progressives are going to dominate it for an entire generation, which is what it would take to reverse a 3-6 minority.

If any active Dem politician wants to regain control in their lifetime packing it is the only way. So what if the GOP does the same right after? You can do it all over again when it is your turn. And at least you get a sane court half the time.

It's not like the court has any legitimacy left anyway. A RvW reversal is just the icing on the cake.

[Barrister]

Such as?

Hold the presidency and the Senate when their are vacancies.

The Senate is designed to represent backward, dim-witted folks. There's no way progressives are going to dominate it for an entire generation, which is what it would take to reverse a 3-6 minority.

If any active Dem politician wants to regain control in their lifetime packing it is the only way. So what if the GOP does the same right after? You can do it all over again when it is your turn. And at least you get a sane court half the time.

It's not like the court has any legitimacy left anyway. A RvW reversal is just the icing on the cake.

Call me crazy, but maybe the Democratic Party could change it's policies in order to appeal to voters in red states, instead of just dismissing them as "backward, dim-witted folks"?

Nah - that would never work...

[Josquius]

Such as?

Hold the presidency and the Senate when their are vacancies.

The Senate is designed to represent backward, dim-witted folks. There's no way progressives are going to dominate it for an entire generation, which is what it would take to reverse a 3-6 minority.

If any active Dem politician wants to regain control in their lifetime packing it is the only way. So what if the GOP does the same right after? You can do it all over again when it is your turn. And at least you get a sane court half the time.

It's not like the court has any legitimacy left anyway. A RvW reversal is just the icing on the cake.

Call me crazy, but maybe the Democratic Party could change it's policies in order to appeal to voters in red states, instead of just dismissing them as "backward, dim-witted folks"?

Nah - that would never work...

Do you really think that would work?
For the sake of argument the Democrats come out and say fuck the gays, women deserve no rights, etc...
I get the feeling the entrenchment of blue team and red team is so deep that they still wouldn't sway many.

[Admiral Yi]

Yeah Beeb, they could maybe appeal to rural voters by becoming another Republican party, but that would sort of defeat the purpose.

[Zoupa]

It sure would be more democratic if SC nominees needed to be confirmed by the House and not the Senate.

The Democratic party already is more popular in the general population, why would it need to adopt regressive policies to please a minority of voters and potentially alienating a majority?

[crazy canuck]

That is WAD

[Barrister]

Do you really think that would work?
For the sake of argument the Democrats come out and say fuck the gays, women deserve no rights, etc...
I get the feeling the entrenchment of blue team and red team is so deep that they still wouldn't sway many.

Yes, the only way to appeal to voters in Ohio, Michigan and the like is to say "fuck the gays and women deserve no rights".

What I mean is to run to the CENTER.  You know, where the voters are.