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Samizdata quote of the day “When your political system can be thrown into hysteria by something as predictable as the death of an octogenarian with advanced cancer, there’s something wrong with your political system. And when your judicial system can be redirected by such an event, there’s something wrong with your judicial system, too.”
– Glenn Reynolds, “Mr Instapundit”, and US law prof.
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Trump should pre empt the democrats and starting packing the court now , how about a 100 Supreme Court judges between now and November 😆 😆 😆
Agree that effectively something has gone very wrong
Our political/judicial system was already deep into hysteria. RBG’s death was predictable, but served as a new squirrel to shout at.
Seen from England , this issue is interesting and it would be a nice one to have, as it does not arise. Our judiciary are so thoroughly slanted towards the State and against liberty, as is the law, that the notion that a Supreme Court justice (or any judge) could have any impact if freedom-minded is simply laughable. Looking at The United States, we are so far down the well that we think it’s a telescope.
There many be “something wrong with the judicial system” but Marxist cancer squeaks always squeals the corrective chemo!!!
This sort of problem has been possible in the US for a very long time. There could have been a similar result from the extended life and then demise of Chief Justice Taney.
However, it has become much worse in the last 60 years. I blame Griswold V Connecticut, which established the precedent of removing a bad law by undemocratic means – evading the work of getting it done through the legislature.
Our biggest loss was the death of Scalia, who believed that legislatures had a perfect right to be stupid.
Here’s the thing – our political system hasn’t been thrown into hysteria.
This is all business as usual.
bobby b
Our biggest loss was the death of Scalia, who believed that legislatures had a perfect right to be stupid.
From what I read and hear that loss could well be assuaged by the nomination of Amy Coney Barrett. She seems to be the Dems worst nightmare. A female Scalia who is a person of such merit, and basic human decency, it is going to be very hard to slime her, except with the kind of slime that bounces back (such as suggesting that her Catholic faith disqualifies her.)
But I guess one should not underestimate the Dems’ slime machine.
I do fear for the country. Imagine this scenario: ACB is nominated and gains a seat on the USSC post election. The election is heavily contested and ends up in the court, with her casting the deciding vote in Trump’s favor. And if that happens after the Senate has flipped in the lame duck session, I cannot imagine the consequences for the country. FWIW I think there is a better than 30% chance that that is exactly what will happen.
Out of interest, under that scenario:
1)could she not recuse herself from the case ?
2)does it not fall on the newly elected House of Representatives to decide on the new president if the electoral college does not return a result ?
A week ago, I was feeling good. Not certain or sure, but good.
Now . . . Not so much. This has thrown all educated guesses out the window. Who will this motivate the most? Is it even possible to get 49 Senators to vote for a nominee at a time when many of those Senators are facing their own unique re-election challenges?
The threats to court-pack and add two states are empty, because they’re going to do both of those things as soon as they have the Presidency and the Senate anyway, unless tensions ease drastically. My fears lie in how this affects votes in 50-some days.
I don’t see a huge problem if ACB casts an important vote in any election brouhaha. There’s no conflict of interest – the Senate would be the body confirming her, and she’d still be in place no matter the outcome.
This is like the prisoner’s dilemma, with seven or eight prisoners and several layers of instances of choosing. Hard to game out.
@Thefat tomato
1)could she not recuse herself from the case ?
She could, but there is no reason why she should.
2)does it not fall on the newly elected House of Representatives to decide on the new president if the electoral college does not return a result ?
Why wouldn’t the electoral college return a result? Some states might not get their votes in on time but their votes would simply be excluded. But I was more thinking of cases (and I’ll bet cases plural) over things like which mail in ballots should be allowed, whether signatures have to match, what to do if violence forces polling places to shut down or stay open after the closing time, what happens when truckloads of ballots appear out of thin air, what happens if a governor refuses to certify results, or certifies results that are not valid, and on and on and on. These are court issues, and could end up in the hands of Trump’s newly selected justice.
(And FWIW, the newly elected HoR guys are not representatives until they are sworn in in January, so the power of the house resides with the lame duck representatives, reelected or not.)
BTW there is another interesting scenario — what happens if there are only eight justices and there is an election deciding case before them? Assuming they split ideologically, four conservatives and three liberals. What would Roberts do? If he votes with the liberals the country is left in total stagnation. So, my impression of the guy is that he will vote with the conservatives almost irrespective of the merits of the case because he is VERY concerned with the institution of the USSC, and he does not want it to be responsible for the chaos that would result from an unresolved judicial dispute of that magnitude.
But, Fraser, if Roberts makes the vote 4-4, all credit and blame goes back to whoever made the decision below that the USSC is being asked to review. At 4-4, it’s like the Supremes never even showed up.
This would effectively keep “The Roberts Court’s” hands clean, which seems to be one of Roberts’ priorities.
Looks like Lindsey Graham announced that he does have the votes lined up to confirm. This helps immensely.
bobby b
This would effectively keep “The Roberts Court’s” hands clean, which seems to be one of Roberts’ priorities.
Maybe, but he can’t relish the prospect of 16 supreme court justices (followed by 20 the following election cycle, then 24 the cycle after that.) I’m not sure Roberts wants to be the guy who was responsible for the destruction of the USSC.
16? 20? 24?
Think big. If we’re going down that road, I’d like to see Trump nominate and the Senate confirm the USSC appointment of every lawyer in the Federalist Society.
That’s about 72,000 lawyers.
Why not? I’d bet we could scare up some more chairs for them. And there is no legal reason why that couldn’t happen.
(Obviously, this continues until every single person in the USA is on the USSC, at which point we become a true democracy instead of a constitutional republic. This is one of the few flaws in the Constitution – that this is a possible and very legal outcome.)
One of the radical republicans was heard to say that he had prayed very hard for Justice Taney to live long enough that the president after Buchanan would get to replace him, but that clearly he had overdone his praying and if God would only allow Taney to die then he promised he would never pray again.
Seriously, Judge Taney never posed the same risk, because the civil war was won and that determined that the Republicans would have healthy majorities for some time to come. Thus the problem was sure to resolve itself in time. The assassination of Lincoln caused far more problems than the survival of Taney. But there could have been scenarios where the latter would have mattered.
Conversely of course, the understandable irritation of the Lincoln administration during the war at the fact that the Taney court would be the ultimate decider of alleged constitutional violation cases may nevertheless have contributed to their making greater efforts to ensure they did not commit them and/or had genuine war-emergency justifications.
Mr Ed beat me to the punch.
For once the great Glenn Reynolds (and he is a great man) is mistaken.
The political conflict over the Supreme Court is a STRENGTH of the American system – not a weakness.
In a system such as the British there would be no chance of a pro liberty judge being in such a position – as the system is insulated from “politics” which is seen as an evil interference in the right of the establishment to control every aspect of human life.
It is the same at State level – in American States where “the professionals” control who gets to sit on the bench, the courts are generally terrible. Massively biased towards the left.
“The Governor decides – but from this short list of names the Bar Association sends them” is an example of what to AVOID.
The United States Supreme Court is making POLITICAL choices – incredibly important POLITICAL choices.
Yes of course we would like “I am not making a political choice – I am just enforcing what the Constitution says” but to the establishment left that is political – indeed it is “extreme” politics to them.
So that has to be understood – the courts are a political battle ground. Defeat or Victory – there is no other option.