Missing from this discussion is the fact that Trump v Barbara was actually a 5-4 decision on constitutional grounds, and that there's no way this case should've even been granted review. There was no lower court split, and if birthright citizenship is not "settled law" I don't know what should be.
Yeah, the IEEPA ruling is nice and all, but if my choice is between the legitimacy of my childrens' citizenship and a little more money in my pocket, it's not really hard to see which I'm going to choose.
I chose to put scary quotes around "settled law" because that's the high school debate team trick ultraconservative justice candidates have been using to get through Senate confirmation while holding positions that are way out of step with the mainstream. Complicit senators, like say, Susan Collins have been pretending to fall for the trick in order to feign consternation during their re-election campaigns.
The fact is, the court has already been packed: Packed by Mitch McConnell abusing the undemocratic powers of the majority leader of the second most undemocratic organ of the government to push the most undemocratic organ well to the right of most of the electorate's preferences.
The entirely natural and predictable outcome is that the Court is losing legitimacy at an alarming rate. Andy Craig proposes a reasonably moderate way to remedy this erosion.
I agree that pointing to Barbara as a “good” decision on a narrow decision where only five justices could rule on what are glaringly obvious constitutional grounds is a dubious way to start your argument. I refuse to give credit for following the most basic tenets of jurisprudence.
There's the matter that the Supreme Court did everything they could to prevent Trump being tried until after the 2024 election when they were hoping he would win. At this point in time I don't think the supreme court has any legitimacy. I don't see why judicial review has any value. The Supreme Court thinks they're the only ones who get to interpret the constitution and they don't have to be accountable to anyone.
Yeah...I think this takes too seriously the 'too cute by half' way in which the Roberts court conducts itself. I can find some decisions in isolation I think are sensible. I cannot discern in many of these what the precedent is or how it slots into other decisions, assuming those decisions have a rationale at all (many don't!) This defends a lot of trees, not much consideration for the forest.
Also worth mentioning: major questions doctrine might be a check on executive authoritarianism, but authoritarians can come dressed in robes, too, and we don't vote for them.
I would like an Amendment to Constitution that increases the number of judges on US Supreme Court to 15. Each new President starting in 2029 would get to pick 2 judges on US Supreme Court until we hit 15.
I would like an Amendment to Constitution that limits judges on US Supreme Court to 18 years. The 18 years starts on the day the Amendment is ratified by the necessary number of States.
I would like us to have at least 3,000 Representatives to the US House of Representatives. Our founders wanted the numbers of Representatives in the US House of Representatives to increase over time.
Would like Amendment to Constitution that gives each State 3 US Senators - 2 chosen by the people and 1 by State legislature. State legislatures should be allowed to fire US Senators they choose whenever they want and pick replacements. State legislatures would again have a say on Declaring War, military draft, Judges on US Supreme Court, tariffs, federal taxes, immigration, etc. State legislatures would be better able to fire the President.
Would like Amendment to Constitution that fixes Electoral College. Winner of a state gets 2 electoral college votes and winner of Congressional districts gets 1. Current electoral college system and popular vote for President both provide huge benefits for violence at polling places, ballot stuffing, voter suppression. Popular vote for President would decease odds Presidents would care about states low in population like NH.
Would like Amendment to Constitution - the only pay that Judges on US Supreme Court, federal judges, State Supreme Court Judges, President of the United States of America, Vice President of the United States of America, Speaker of United States of America, members of Congress, Secretaries of Federal Department should get is their pay for the position. No more domestic emoluments. No more foreign emoluments worth over $100. Foreign emoluments will continue to need the permission of members of Congress before they may be taken. Gifts from non family members have to be under $100. They may receive military pensions and state government pensions. Pensions from companies should be held in trust until after leave office.
Would like Amendment to Constitution that says when a Treaty conflicts with Bill of Rights or other parts of Constitution that part of Treaty is not constitutional.
Would like Amendment to Constitution that gives US House of Representatives Advice and Consent on Treaties.
Would like Amendment to Constitution that gives State legislatures the power to nullify, federal laws, federal regulations, Treaties.
Would like Amendment to Constitution that gives the people the power to nullify, federal laws, federal regulations, Treaties.
Would like Amendment to Constitution that gives State legislatures power to pardon federal crimes.
Would like Amendment to Constitution that gives States legislatures power to pardon state crimes.
Would like Amendment to Constitution that gives US Senate power to pardon federal crimes and state crimes.
Would like Amendment to Constitution that gives US House of Representatives the power to pardon federal crimes and state crimes.
Would like Amendment to Constitution that gives people the power to pardon federal crimes and state crimes. Innocent people have received death penalty.
Would like Amendment to Constitution that gives State legislatures the power to fire President, Vice President, Speaker of US House of Representatives, Secretary of State of USA, Judges on US Supreme Court, Secretaries of Federal Departments, Director of FBI, Director of CIA.
Would like Amendment to Constitution that gives the people the power to fire President, Vice President, Speaker of US House of Representatives, Secretary of State of USA, Judges on US Supreme Court, Secretaries of Federal Departments, Director of FBI, Director of CIA.
Would like Amendment to Constitution that gives the people the power to fire their US Senators, their Representatives to US House of Representatives, Governors, Mayors, Aldermen, members of School Boards, members of State legislatures. When the people fire US Senator chosen by State legislature, State legislature chosen by State legislature, State legislature chooses the replacement. The people pick the replacements for US Senators and others they elected via elections.
Would like Amendment to Constitution that gives State legislatures the power to fire US Senators and Representatives to US House of Representatives the people pick. The people would pick the replacements via elections.
This post sorts the Roberts Court's rulings by whether they checked Trump personally. A different axis explains them better: whether the ruling constrains concentrated economic power or expands it.
Look at what's being protected. The major questions doctrine has spent the years since West Virginia v. EPA narrowing agency power to control industry: emissions standards, student debt relief, and workplace rules. Citizens United and the later campaign finance cases protect the speech of capital. Trump v. Slaughter, with the Cook carveout, tells you which institutions this Court treats as too economically consequential for presidential control, and which ones (labor boards and consumer agencies) it doesn't.
Even the tariff case, the marquee example of the Court checking Trump, is a win for importers facing a tax, not an expansion of any citizen's power over the executive. I'm not sure telling Congress they cannot pass laws to protect citizens can really be counted as democracy's save.
So this case-by-case record holds up fine on its own terms. But add up which interests keep winning regardless of administration, and the throughline isn't a check on authoritarianism so much as a check on regulatory reach into capital, paired with an expansion of capital's voice in politics. That's a bend toward concentrated economic power, not toward the citizens of this country.
The retaliation spiral is carrying most of the weight in this argument and it's the one piece neither you nor Craig can put a source under, since it hasn't happened federally. 1937 cuts your way and you use it well.
The state record is murkier though. Georgia went from seven justices to nine in 2016 and Arizona went from five to seven the same year, both signed by Republican governors, Arizona over the sitting justices' objections. I can't find a documented counter-expansion following either one.
Not saying state courts travel cleanly to the federal case. But if the spiral is as reliable as the argument needs it to be, those two look like they should have set it off. Would you treat them as evidence against it, or as too different to count?
I mention those cases in my piece as examples of GOP hypocrisy (also Utah), but Dems have not had legislative majorities in any of those states since then. There are other reasons they might not pursue it even if they do get the chance, but as it stands they haven't been in a position to try even if they wanted. Unlike at the federal level where party control of the other two branches flips with some regularity.
A rational and measured expansion of the Supreme Court makes sense. Devising a term limit/age limit policy isn't fraught with unintended consequences. "Packing" the Court because of political vendetta isn't wise at all--- in time over several Congresses and a few Presidents we could have a Court seating 24.
In the UK the Justices are required to resign at 75. I think that is a great idea.
Perhaps, but I think the 75 would mostly be unnecessary as parties will nominate only people who won’t achieve age 75 before their 18 years are up.
The average age of SCOTUS nominees is 53. The oldest is 65. Nominees aged 60 or older served about a dozen years on average. Some of this seems to take care of itself?
Missing from this discussion is the fact that Trump v Barbara was actually a 5-4 decision on constitutional grounds, and that there's no way this case should've even been granted review. There was no lower court split, and if birthright citizenship is not "settled law" I don't know what should be.
Yeah, the IEEPA ruling is nice and all, but if my choice is between the legitimacy of my childrens' citizenship and a little more money in my pocket, it's not really hard to see which I'm going to choose.
I chose to put scary quotes around "settled law" because that's the high school debate team trick ultraconservative justice candidates have been using to get through Senate confirmation while holding positions that are way out of step with the mainstream. Complicit senators, like say, Susan Collins have been pretending to fall for the trick in order to feign consternation during their re-election campaigns.
The fact is, the court has already been packed: Packed by Mitch McConnell abusing the undemocratic powers of the majority leader of the second most undemocratic organ of the government to push the most undemocratic organ well to the right of most of the electorate's preferences.
The entirely natural and predictable outcome is that the Court is losing legitimacy at an alarming rate. Andy Craig proposes a reasonably moderate way to remedy this erosion.
I agree that pointing to Barbara as a “good” decision on a narrow decision where only five justices could rule on what are glaringly obvious constitutional grounds is a dubious way to start your argument. I refuse to give credit for following the most basic tenets of jurisprudence.
There's the matter that the Supreme Court did everything they could to prevent Trump being tried until after the 2024 election when they were hoping he would win. At this point in time I don't think the supreme court has any legitimacy. I don't see why judicial review has any value. The Supreme Court thinks they're the only ones who get to interpret the constitution and they don't have to be accountable to anyone.
Yeah...I think this takes too seriously the 'too cute by half' way in which the Roberts court conducts itself. I can find some decisions in isolation I think are sensible. I cannot discern in many of these what the precedent is or how it slots into other decisions, assuming those decisions have a rationale at all (many don't!) This defends a lot of trees, not much consideration for the forest.
Also worth mentioning: major questions doctrine might be a check on executive authoritarianism, but authoritarians can come dressed in robes, too, and we don't vote for them.
Wrote United States Supreme Court decisions that are not constitutional
should be ignored by Congress and the President
Sunday, March 4, 2007
by Kenneth Scot Stremsky
https://www.thegreenpapers.com/Vox/?20070304-0
because of out of control judges on US Supreme Court.
Wrote What do you mean 'not at all responsible to the Congress of the United States'?
Monday, April 13, 2009
by Ken Stremsky
https://www.thegreenpapers.com/Vox/?20090413-0 because of out of control Presidents
I would like an Amendment to Constitution that increases the number of judges on US Supreme Court to 15. Each new President starting in 2029 would get to pick 2 judges on US Supreme Court until we hit 15.
I would like an Amendment to Constitution that limits judges on US Supreme Court to 18 years. The 18 years starts on the day the Amendment is ratified by the necessary number of States.
I would like us to have at least 3,000 Representatives to the US House of Representatives. Our founders wanted the numbers of Representatives in the US House of Representatives to increase over time.
Would like Amendment to Constitution that gives each State 3 US Senators - 2 chosen by the people and 1 by State legislature. State legislatures should be allowed to fire US Senators they choose whenever they want and pick replacements. State legislatures would again have a say on Declaring War, military draft, Judges on US Supreme Court, tariffs, federal taxes, immigration, etc. State legislatures would be better able to fire the President.
Would like Amendment to Constitution that fixes Electoral College. Winner of a state gets 2 electoral college votes and winner of Congressional districts gets 1. Current electoral college system and popular vote for President both provide huge benefits for violence at polling places, ballot stuffing, voter suppression. Popular vote for President would decease odds Presidents would care about states low in population like NH.
Would like Amendment to Constitution - the only pay that Judges on US Supreme Court, federal judges, State Supreme Court Judges, President of the United States of America, Vice President of the United States of America, Speaker of United States of America, members of Congress, Secretaries of Federal Department should get is their pay for the position. No more domestic emoluments. No more foreign emoluments worth over $100. Foreign emoluments will continue to need the permission of members of Congress before they may be taken. Gifts from non family members have to be under $100. They may receive military pensions and state government pensions. Pensions from companies should be held in trust until after leave office.
Would like Amendment to Constitution that says when a Treaty conflicts with Bill of Rights or other parts of Constitution that part of Treaty is not constitutional.
Would like Amendment to Constitution that gives US House of Representatives Advice and Consent on Treaties.
Would like Amendment to Constitution that gives State legislatures the power to nullify, federal laws, federal regulations, Treaties.
Would like Amendment to Constitution that gives the people the power to nullify, federal laws, federal regulations, Treaties.
Would like Amendment to Constitution that gives State legislatures power to pardon federal crimes.
Would like Amendment to Constitution that gives States legislatures power to pardon state crimes.
Would like Amendment to Constitution that gives US Senate power to pardon federal crimes and state crimes.
Would like Amendment to Constitution that gives US House of Representatives the power to pardon federal crimes and state crimes.
Would like Amendment to Constitution that gives people the power to pardon federal crimes and state crimes. Innocent people have received death penalty.
Would like Amendment to Constitution that gives State legislatures the power to fire President, Vice President, Speaker of US House of Representatives, Secretary of State of USA, Judges on US Supreme Court, Secretaries of Federal Departments, Director of FBI, Director of CIA.
Would like Amendment to Constitution that gives the people the power to fire President, Vice President, Speaker of US House of Representatives, Secretary of State of USA, Judges on US Supreme Court, Secretaries of Federal Departments, Director of FBI, Director of CIA.
Would like Amendment to Constitution that gives the people the power to fire their US Senators, their Representatives to US House of Representatives, Governors, Mayors, Aldermen, members of School Boards, members of State legislatures. When the people fire US Senator chosen by State legislature, State legislature chosen by State legislature, State legislature chooses the replacement. The people pick the replacements for US Senators and others they elected via elections.
Would like Amendment to Constitution that gives State legislatures the power to fire US Senators and Representatives to US House of Representatives the people pick. The people would pick the replacements via elections.
Sincerely,
Kenneth Scot Stremsky
187 Poplar Street
Manchester, NH 03104
603-647-5898
This post sorts the Roberts Court's rulings by whether they checked Trump personally. A different axis explains them better: whether the ruling constrains concentrated economic power or expands it.
Look at what's being protected. The major questions doctrine has spent the years since West Virginia v. EPA narrowing agency power to control industry: emissions standards, student debt relief, and workplace rules. Citizens United and the later campaign finance cases protect the speech of capital. Trump v. Slaughter, with the Cook carveout, tells you which institutions this Court treats as too economically consequential for presidential control, and which ones (labor boards and consumer agencies) it doesn't.
Even the tariff case, the marquee example of the Court checking Trump, is a win for importers facing a tax, not an expansion of any citizen's power over the executive. I'm not sure telling Congress they cannot pass laws to protect citizens can really be counted as democracy's save.
So this case-by-case record holds up fine on its own terms. But add up which interests keep winning regardless of administration, and the throughline isn't a check on authoritarianism so much as a check on regulatory reach into capital, paired with an expansion of capital's voice in politics. That's a bend toward concentrated economic power, not toward the citizens of this country.
The retaliation spiral is carrying most of the weight in this argument and it's the one piece neither you nor Craig can put a source under, since it hasn't happened federally. 1937 cuts your way and you use it well.
The state record is murkier though. Georgia went from seven justices to nine in 2016 and Arizona went from five to seven the same year, both signed by Republican governors, Arizona over the sitting justices' objections. I can't find a documented counter-expansion following either one.
Not saying state courts travel cleanly to the federal case. But if the spiral is as reliable as the argument needs it to be, those two look like they should have set it off. Would you treat them as evidence against it, or as too different to count?
I mention those cases in my piece as examples of GOP hypocrisy (also Utah), but Dems have not had legislative majorities in any of those states since then. There are other reasons they might not pursue it even if they do get the chance, but as it stands they haven't been in a position to try even if they wanted. Unlike at the federal level where party control of the other two branches flips with some regularity.
A rational and measured expansion of the Supreme Court makes sense. Devising a term limit/age limit policy isn't fraught with unintended consequences. "Packing" the Court because of political vendetta isn't wise at all--- in time over several Congresses and a few Presidents we could have a Court seating 24.
In the UK the Justices are required to resign at 75. I think that is a great idea.
I prefer the term limit idea, only because both parties will appoint as many 40-year-olds as possible if given an age limit.
Actually a combination of the two might also work--- 18 years or out at 75 whichever comes first.
Perhaps, but I think the 75 would mostly be unnecessary as parties will nominate only people who won’t achieve age 75 before their 18 years are up.
The average age of SCOTUS nominees is 53. The oldest is 65. Nominees aged 60 or older served about a dozen years on average. Some of this seems to take care of itself?