The Courts, the actual subject that the campaign and election should be about.
There is a lot going on with SCOTUS this year. The death of Chevron diverts decision making from agencies which have an expertise in particular situations to the courts who lack the technical expertise. So now we have Thomas looking back in his crystal ball to see what they were doing in the 18th Century.
Roberts believes the justices know more than the scientists and engineers know. This was done in Chevron which agency experts criticized. And they should be critical. The courts determination will undermine decisions by scientists and the very same agency experts.
It is not just Chevron which also devastated South America with bad environmental practices, it is the court reversing Roe v Wade, EPA’s interstate air pollution, Moyle v. U.S., Garland v. Cargill, Supreme Court ruling on immunity, Unhoused people sleeping outside, redraw congressional map to consider Black voters, and it goes onward.
Biden attacks Supreme Court immunity ruling as emboldening a lawless president. “The decision means there are now ‘virtually no limits on what the president can do.'”
Maybe this is the issue Democrats should be running on? Three Justices were by Trump. Roberts was appointed by Bush. And Thomas by Bush the Elder.
Should The Democrats Run On The Court?
by Digsby
Hullabaloo
Yes, yes, they should . . .
Digsby . . . I’m seeing a lot of discussion about whether or not the Democrats should use this Court’s extreme decisions as a primary issue in the fall since there’s not a lot we can do about it. I say yes. It’s all part of the far-right power grab that includes Trump and Project 2025. Of course they must run on it.
Josh Marshall wrote this today:
Obviously, wanting to focus attention on something doesn’t mean you’ll succeed. And for those ready to pounce: No, this is irrespective of who is at the top of the Democratic ticket. The obvious fact is that any day Democrats are talking about Joe Biden’s age is a wasted, lost day. What’s more relevant is that this is not and would not be changing the subject. It is the subject. It’s the actual subject that the campaign and election are about.
Donald Trump threatens the entire existence of the American republic. He is able to do this because the Supreme Court he created is assisting him in doing so. It is a corrupt Court. It overturned a central right for half of our population. It routinely mixes and matches rationales, jurisprudences, logics to arrive at the end point of transforming America into the justices’ extremist vision. We’ve heard that yesterday’s decision was a terrible decision, an extremist decision, that it changes the American experiment fundamentally. No disagreement with any of those points. Most importantly, in my mind, it’s a fake decision. Yes, it will now be controlling within the federal courts. But it doesn’t change the constitution any more than a foreign army occupying New England would make Massachusetts no longer part of the United States. That may seem like a jarring analogy. But it’s the only kind that allows us to properly view and react to this Supreme Court.
The rationale for the decision yesterday has literally no basis whatsoever in the U.S. Constitution. To capture this, comparing it to the earlier, unanimous appellate court decision in the contrary direction is revealing. The argument amounts to: separation of powers, yada. That’s it.
The advantage we can all take from the Dobbs decision is that it takes issues and actions that can seem technical, esoteric, removed from daily life and plants it squarely in the center of daily life. The Supreme Court is hellbent on taking away our freedoms and our liberty? Yes, really. Dobbs, in addition to being a huge deal itself, anchors the larger assault in everyone’s daily lived reality. That’s the way to see this and argue it to the public: the same out-of-control Court, which Donald Trump created and which ended abortion rights, now wants to change the constitution itself to help Donald Trump commit more crimes.
The election is about Donald Trump and the Supreme Court, the two forces working to overthrow the American republic. That’s the subject. It’s not Joe Biden. So both substantively and politically it makes all the sense in the world. The Court has done us all the favor of not always being as aware as it might be of the political and electoral dimensions of the justices’ bad acts. Yesterday’s ruling is a helpful if disastrous reminder of what the election is really about.
Back to Digsby . . . I could not agree more. At some point we are going to know if Biden is staying in or not and while the press will dog him relentlessly if he does, the race will reset to focus on Trump again. He will make sure of it. This is the message or at least the primary message. The court ‘s decision is the most far-reaching wrong turn the court has taken probably since Dred Scott. They’ve redefined the presidency as a time-limited (maybe…) dictatorship. The stakes in this campaign were always high. Now they’re truly existential.
not time limited…Trump will not leave office.
and it’s not just technology the Court has no expertise in. They have no expertise in law or the Constitution. They just want to get rid of it so big money can rule us all.
Law schools should stop teaching constitutional law and teach the real subject, political science.
@Jack,
Why not both?
Because the Supreme Court gets to define constitutional “law”. The Supreme Court is a political institution that behaves in a political way. That it cloaks its rulings in legal sounding language does not change the reality of who it is and what it is doing. It’s product is undeserving of the label, law.
@Jack,
That’s a case for teaching politics. That’s not a case for not teaching Constitutional law.
@Joel,
Years ago Chief Justice Charles Evans Hughes pronounced that the constitution means what the court says it means. Arguing that when the court pronounces that black is white or vice versa is law is a sad notion of law. It’s like claiming that throwing virgins into a volcano will stop a plague is medicine. The English common law on which the American common law is based, made an effort to be persuasively logical based on preexisting precedent or statutory language. It very rarely made things up out of whole cloth as does our court. Calling what our court is doing law is like my calling Trump’s prescription of injecting antiseptic into one’s body to treat Covid medicine. I doubt you’d sit still for that.
@Jack,
“Years ago Chief Justice Charles Evans Hughes pronounced that the constitution means what the court says it means.”
Yes, I remember having had that explained to me by a law student back when I was in grad school around 1980. It’s not news to me.
All the rest of your post misses my point. You have nothing to teach me about the politics of the court. I don’t take a back seat to you in being pissed off by the Roberts court.
But you still haven’t explained why constitutional law and politics *can’t* be taught side-by-side.
@Joel,
I should have added the example of President Roosevelt trying to stack the court and the court subsequently changing its rulings on the constitutionality of NewDeal legislation known as the switch in time that saved nine. That’s law in the same sense that “Nice little store you got here and nice family too” is an offer of service.
JackD
I agree about “the law” being politics, and especially that the SC tortures logic, reason and decency to come to the political opinion they like…often without realizing that is what they are doing [that not realizing applies to past Courts more than the presentSC..the past Courts having arised out of society with greater consensus about what is right and what is wrong].
but teaching “law” means acknowledging this and teaching both the general structure of laws [to date] and what the courts have made of the law [up to now]. i thinkd the idea of precedent had more to do with guessing what the king would say without bothering him all the time than it had to do with any real attempt at “justice”….and in any case up to a point “continuity” (predictability) is an important part of “fairness.”
we had our turn at outraging public opinion with brown v board and gideon and …other things….that became public opinion after the decisions, not before.
that said..the present court honors neither precedents or decency or “the intent of the framers” or recognizable logic. these guys are insurrectionists carefully chosen by people who knew what they were doing.
@coberly,
I don’t disagree with your characterization of the earlier court’s behavior. Indeed, I think you make my point. Part of the problem is that the court rarely reflects the positions of the citizenry because, in part, of the randomness of the occurrence of vacancies, the distortion of the Senate’s public representation, and the effects of gerrymandering.
@Joel,
They can be taught side by side. However, the law part of the course will be quite brief, the majority of it being politics. In ordinary law courses (contracts, torts, civil procedure, land law, and the like), precedents are emphasized. Stability and predictability are valued. Not so much in Constitutional “law”. In Brown v. Board, there was at least the equal protection clause for enforcement. In the recent immunity decision, there is nothing in the document or precedent. It’s pretty hard to teach the substance of the ruling and its “basis” without getting deeply into politics. Teach both? OK, but law gets a week’s time in the semester.
Jackson
it is possible…i don’t know….that gas stoves represent danger that the people, if they knew about it….would stop buying gas stoves.
your concern as presented tells me that you have more concern about not being free to do anything you damn please than solving the problems that may arise from time to time that cannot be solved by perfectly free markets. you cannot, you will never, be free of government. if you succeed in destroying a government that in the face of difficulties tries to work for the welfare of all, you will end up with a government by people who are interested in nothing except their own power to do what they want…just like you, but they will have more power than you.
JackD
I don’t know about making your point. I am a lot friendlier to your point than others nearby. my point is that the law is and always has been about politics…but teaching law means teaching future lawyers about how “the law” works in all its forms and structures as they have developed up to this time.
I doubt there are many lawyers who are unaware of the role of politics in the law. Indeed I suspect most lawyers are far smarter than I am about “politics”.
I do not know if even courses (all of them taken together) in political science go deeply into the actual role that “politics” plays in politics.
[thinking about it, briefly, i suspect that teaching “physics” teaches students about the things people have discovered or are now thinking about “how things work,” but it does not teach them how to DO physics. Some things you have to learn by doing; they cannot be “taught.”]
When a judge needs an expert in a field he appoints one a master. Local law is always better than The Administrative State in DC .
The Federal Agencies act more like shake down artists and fascists than arbitrators and experts. GAS Stoves anyone?
@Jackson,
LOL! We had a gas stove up until we moved to RI, where the stove is electric. No federal agency ever prevented us from buying or using our gas stove. What planet are you living on?
Consumer Product Safety Commission Richard Trumka, who this all started with, saying that they should leave open the remote possibility of banning the sale of new gas stoves entirely. Guess who’s son Trumka is.
Meanwhile, four states where policymakers have passed measures that restrict building gas use — California, Colorado, New York and Washington — accounted for 24% of the nation’s residential gas use and 20% of its commercial gas demand in 2020.J
@Jackson,
LOL! Stop with the silly right-wing propaganda.
“You’ve probably heard that California is planning a gas appliance ban. If a gas appliance ban makes you think of Charlton Heston’s famous phrase, “From my cold dead hands,” there’s no need to panic. No one is going to come knock on your door and rip out your gas appliances. First off, on the state level, it’s a phased program, primarily aimed at new construction, that focuses on heaters and furnaces with incentives (not mandates) for homeowners to switch from gas to electric.”
I don’t know if you’re a fool, a dupe or a liar.
https://ongaroandsons.com/blog/gas-appliance-ban/
@Jackson,
“And by 2027, natural gas will not be permitted for any heating or cooling equipment in new commercial buildings, the city’s building officials said in a news release. These restrictions do not apply to gas stoves.”
https://denvergazette.com/news/business/denver-imposes-natural-gas-ban-on-heating-cooling-equipment-in-commercial-buildings-multi-family-housing/article_e8a5352c-b6f1-11ed-b6f5-2bbe6c6ff924.html#:~:text=And%20by%202027%2C%20natural%20gas,January%20by%20Denver%20City%20Council.
As for Washington:
“Though he signed new legislation, House Bill 1589 is not the natural gas ban that opponents accuse it of being. Simply put, HB1589 incentivizes customers and pressures utility companies, specifically Puget Sound Energy (PSE), to move away from fossil fuels and towards the state’s often touted goal of 100% clean energy.”
https://www.king5.com/article/tech/science/environment/new-state-law-does-not-ban-natural-gas-discourages-use/281-04f7f343-1669-4e60-858c-18ff176c750a