What if Trump Just Ignores the Courts?

Lex Anteinternet: Biden proposes changes to the framework of American government.

Lex Anteinternet: Biden proposes changes to the framework of America...:  

Biden proposes changes to the framework of American government.

 Joe Biden, in an op ed in the Washington Post (a poor way to make major proposals, in my view) proposed some major structural changes to the framework of U.S. governance today.  The proposals are:

1.  A Constitutional Amendment making it clear that there is no immunity for crimes a former president committed while in office.

2.  Term limits for Supreme Court Justices such that a President would appoint a justice every two years for a term of 18 years on the Court.

3.  A binding code of ethics for the Supreme Court.

On these, fwiw, I think a Constitutional Amendment would be justified, but I'd go further than what's stated.  I don't support any kind of immunity at all.

On term limits, I don't support that either, but would support age limits.  Once a Federal Judge reached age 60, or at least no older than 65, they'd be required to retire, including members of the Supreme Court.

On a code of ethics for the Supreme Court, it's a good idea, but I don't know how you impose one, given the independence of the judiciary.

Meet the Press interviews Stephen G. Breyer

Meet The Press's host interviewed retired United States Supreme Court Justice Stephen G. Breyer on last weekend's episode.

Apparently Breyer just wrote a biography, which must have been his incentive for giving the interview.  It was awful.  He really didn't comment on anything.

The episode is worth listening to, but due to Chuck Todd and Kristen Welker going after their employer, NBC, for getting them set up in an interview of Ronna McDaniel after it turns out that NBC has hired McDaniel to be a pundit.  Suffice it to say, McDaniel won't be inviting them to any after work gatherings.  But the interview of Breyer was pointless.

Blog Mirror: Supreme Court likely to discard Chevron

Supreme Court likely to discard Chevron

Which is huge legal news.

The court strongly hinted it might do this in one of its decisions last year.  Now it appears it is going to do it.

In Memoriam: Justice Sandra Day O'Connor

I'm late in posting this and, frankly, so many things have been posted it would hardly be necessarily.

Justice O'Connor was the first woman appointed to the United States Supreme Court. Frankly, even though this came in relative terms, in 1981, fairly close to the pioneering appointment of an African American to the Supreme Court bench, it was later than it should have been. Having said that, like Nixon going to China, coming by way of a conservative, Ronald Reagan, perhaps it meant more in real terms than it would have had it come under an earlier President, such as Jimmy Carter.

O'Connor had been a member of the Arizona Court of Appeals at the time of her appointment. She was a Westerner by birth, having been raised on a 198,000 acre cattle ranch in that state.  She attended Stanford as an undergrad and as a law student, and oddly enough had received a proposal of marriage from William Rehnquist while still a student.

Her accomplishments cannot be denied, but frankly, like a lot that Reagan did, her appointment has a mixed record.  I frankly don't think she was as great of jurist as people now wish to recall, and like many of the "conservative" justice of her era, she was conservative only in a very reserved way.  True conservatives wouldn't really reappear on the Supreme Court for many years, none of which takes away from her personal accomplishments.

Today In Wyoming's History: U.S. Supreme Court upholds the 1978 Indian Child Welfare Act.

Today In Wyoming's History: U.S. Supreme Court upholds the 1978 Indian Child W...: 

U.S. Supreme Court upholds the 1978 Indian Child Welfare Act.

The United States Supreme Court, contrary to many expectations, including many in the legislature, upheld today the 1978 Indian Child Welfare Act.

Supreme Court Dobb's Decision Leaker remains a mystery.

The U.S. Supreme Court concluded its investigation of the leak of the draft Dobb's decision with no determination as to who the leaker was.

Be that as it may, like most such events, the furor seems to have passed.

2022 Year-End Report on the Federal Judiciary

 2022 Year-End Report on the Federal Judiciary

2022 United States Supreme Court Watch

This June/July promises to be one in which a whole boatload of major rulings are set to be handed down.

Given that, while we've never had a trailing thread of any kind here before, we're going to track a few of the bigger ones this year.

June 23, 2022

The first of the claims that will be big and controversial.

In 6-3 ruling, court strikes down New York’s concealed-carry law

Here's the text:

New York State Rifle & Pistol Association v. Bruen.

Note, this opinion, combined with the descent, is of epic length.

I haven't reviewed this fully, but apparently what it holds is that a state can't require a party wishing to carry concealed, or just to carry, to prove a particular need to do so.

June 24, 2022

The Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Clinic.

The decision was, quite frankly, way overdue.

June 27, 2022

From last week, the Court held that you cannot sue for Miranda rights violations in Vega v. Tekoh.

This has no criminal law implications.

In Kennedy v. Bremmerton School District, the Court ruled that a coach praying on the football field after games was not a violation of the Establishment Clause.

June 30, 2022

Justices reinstate Louisiana voting map that is being challenged under Voting Rights Act

Supreme Court curtails EPA’s authority to fight climate change

Divided court allows Biden to end Trump’s “remain in Mexico” asylum policy

Justice Ketanji Brown Jackson Confirmed by Senate

I should have noted this when it occurred, but it seemed sort of anticlimactic at the time and there was a lot going on, so I failed to note it. 

Also, I don't have a good picture to put up as, unusually, Justice Jackson lacks a public domain photo that I can find, in spite of being an appellate court judge prior to being confirmed for the U.S. Supreme Court.

As widely noted, the confirmation is historic as she's the first African American woman appointed to the U.S. Supreme Court.  It's presumed that she's liberal to moderately liberal in her judicial views.  Her confirmation hearings turned out to be oddly contentious on odd issues, unfairly focusing on her role as a public defender, whose job after all is to defend the accused, and on sentencing as a district court judge that largely matches the Federal norm.  Indeed, the hearings focused attention on how political such appointments now are, in the view of Senators, something we'll presumably live with for a long time.

Courthouses of the West: Jackson Hearing Concludes.

Since this post from this morning:

Jackson Hearing Concludes.

Courthouses of the West: News of the Supreme Court. Day three of the Jacks...:   The Jackson hearings: Key moments from Day 3 and Court remains silent on Thomas’ condition after he entered the hospital last week I have ...

These hearings are now concluded, and Judge Jackson will be confirmed.

Senate Minority Leader Mitch McConnell indicated that he would not vote to confirm Judge Jackson. Republican votes are not needed for this, due to the removal of the filibuster provisions for Supreme Court nominations back during the last period in which the Democrats controlled the Senate, so barring something spectacularly bizarre, confirmation is assured.

I'll confess that, as previously noted, unlike the norm, I never got into the confirmation hearings.  Usually I do in fact follow them, but I just didn't.  I picked up bits and pieces of the news on them, including Ted Cruz reading from a children's book, and a question on if the Judge could define what a woman is, but as the news all came out of context, I frankly haven't paid much attention to it.

Senator Manchin has announced that he is supporting Judge Jackson.  This means that she shall be joining the Court.

Jackson Hearing Concludes.

Courthouses of the West: News of the Supreme Court. Day three of the Jacks...:   The Jackson hearings: Key moments from Day 3 and Court remains silent on Thomas’ condition after he entered the hospital last week I have ...

These hearings are now concluded, and Judge Jackson will be confirmed.

Senate Minority Leader Mitch McConnell indicated that he would not vote to confirm Judge Jackson. Republican votes are not needed for this, due to the removal of the filibuster provisions for Supreme Court nominations back during the last period in which the Democrats controlled the Senate, so barring something spectacularly bizarre, confirmation is assured.

I'll confess that, as previously noted, unlike the norm, I never got into the confirmation hearings.  Usually I do in fact follow them, but I just didn't.  I picked up bits and pieces of the news on them, including Ted Cruz reading from a children's book, and a question on if the Judge could define what a woman is, but as the news all came out of context, I frankly haven't paid much attention to it.

News of the Supreme Court. Day three of the Jackson Hearings and Silence on Justice Thomas

 The Jackson hearings: Key moments from Day 3

and

Court remains silent on Thomas’ condition after he entered the hospital last week

I have to admit that for some reason I've found myself oddly disinterested in these stories.  I have no idea why, but I haven't really been following either, when normally I would.

Not be grim, but given the second story, both have the chance to become momentous events.

Lex Anteinternet: Biden Nominates Kentaji Brown Jackson to the United States Supreme Court

Lex Anteinternet: Biden Nominates Kentaji Brown Jackson to the Unite...:   

Biden Nominates Kentaji Brown Jackson to the United States Supreme Court

 

Jackson with Justice Breyer, whom she is nominated to replace.

She's no doubt qualified and is a sitting DC Circuit Federal Appeals Court Judge, but I'll admit I'm disappointed.  Jackson is a Harvard Law graduate, making the Ivy League grip on the court seemingly irreversible.  She's also married to another Harvard graduate, a surgeon, who is of the Boston Brahmin class.

I was hoping for a less Ivy League nominee

She's likely to pass, however, the Senate Judiciary Committee and receive enough votes to be seated, an important consideration for any nominee is this highly polarized era.

Justice Stephen Breyer To Retire.

Just when you thought the news wasn't tense enough. . . Russians looming over Ukraine. . . PRC looming over Taiwan. . . the mid term election. . . a baseball lockout. . . 

Justice Stephen Breyer decides to retire.

Uff.

Well, off to a titanic nomination spat with a 50/50 divided Senate.

The filibuster, however, won't apply, so the Democrats, assuming they can all agree on the replacement nominee, will get somebody in.  They key will be satisfying the moderate Democrats, although they are few in number.

Breyer, a 1964 Harvard law graduate, was appointed to the Court by Bill Clinton in 1994.  He was principally a government attorney early in his career before becoming a Harvard professor in 1967, although he took time out from that pursuit to engage in government service from time to time, including serving as a Watergate prosecutor.  He was an expert on administrative law.  He went on the bench in 1980.

Breyer had one of those legal careers that's both enviable and deceptive.  Undoubtedly highly intelligent, he actually practiced real law very little, spending no time whatsoever in private practice and the most of his career in academia or on the bench.  Of some slight interest, in his early legal career, 1964 and 1965, he was completing eight years in the Army Reserve, from which he left as a corporal.

Beyer, who is 83, has been under enormous pressure to retire due to Democratic fears that if he does not do so prior to the November election and should then pass away, certain a possibility at his advanced age, his replacement would not get through a Republican Senate or would be nominated by a Republican President.

Lex Anteinternet: Amy Coney Barrett as a Mirror

Lex Anteinternet: Amy Coney Barrett as a Mirror: 

Amy Coney Barrett as a Mirror

Judge Laurence Silberman, for whom Barrett first clerked after law school, swearing her in at her investiture for the Seventh Circuit.  https://en.wikipedia.org/wiki/Amy_Coney_Barrett#/media/File:20180223_185543_NDD_5533.jpg  CC BY-SA 4.0view termsFile:20180223 185543 NDD 5533.jpg Created: 23 February 2018

Yesterday we published this item about long term demographic trends in the U.S.

The Conservative Tide?

Um, correction, we published those about long term demographic trends on Earth, and how that will, and already is, impacting culture..

Following that news, Amy Coney Barrett was confirmed to the United States Supreme Court.

This is interesting in the context of itself, as well as the context of what we were writing about.  Barrett is, in some ways, a mirror on where we are now, and where we're going.

She's also a mirror on how we view democracy itself, at an existential level.  Are we for it, or against it?

Barrett's nomination angered and upset the old order liberal establishment.  She appeared to be what liberals have really feared over the years but never had to really fully face, at least since the death of Scalia.  A legal genius who is a textualist.  And here, in a Twitter exchange between two U.S. Senators, who can see the upset distilled and refined.

First, Senator Ed Markey, a semi freshman Senator (he started finishing John Kerry's term in 2013 before being elected to his own first full term and had a long stint in Congress) from Massachusetts and then the reply from Nebraska Senator Ben Sasse.

Markey, who made it to Congress for his freshman at age 67 (he's now in his 70s) although he did have a prior term as a Congressman from Massachusetts from 1976 until 2013.

Ed Markey@SenMarkeyOriginalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.1:22 PM · Oct 26, 2020·Twitter for iPhone

Sasse, on his second term and still in his forties.

Senator Ben Sasse@SenSasseReplying to u/SenSasseActually, “originalism” is another way of saying that texts and words have meaning. That's not to claim that all texts and words from 1789 were correct – but that when they need to be changed, they should be changed by elected legislators, not unelected judges.4:55 PM · Oct 26, 2020·Twitter Web App

First of all, it must be stated that Markey' statement is so blisteringly ignorant that it should disqualify him from voting for dog catcher.  This is dumb beyond belief.  It's not only partisan, it's just outright stupid.  The fact that Markey has a law degree from the Boston College of Law is proof, as if any is needed, that you really don't need to know anything about anything in order to graduate from law school.

You also apparently don't need to know the Constitution or care about the truth of it.  Markey has been in Congress since 2013

It also shows that the oath of office that Senators take is regarded as a complete joke by some. The oath states:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God. 

I know that it's hoping against hope, but there should be a point at which the violation of your oath of office has an implication, with that properly being that the Senate should refuse to continue to seat you.  You're an oath breaker in your office.  You should go. 

Sasse isn't a lawyer, and is a PhD, so there's apparently some hope for other disciplines yet remaining.

Of interest, Markey, who joined the National Guard while in college, which he says wasn't to avoid service in Vietnam, and who made it to Specialist E4 after five years of National Guard service, was born in 1946.  Sasse in 1972.  Markey is a reliably left wing politician who just made it to the US Senate, after a long career in the House. Sasse is a very independent Republican who is on his second term.*

In other words, here we see the prefect example of what we wrote about yesterday.  An aged, and now nearly irrelevant, East Coast Boomer politician is stating absolute idiocies about the Constitution, and being corrected by a post boomer respected, and more experienced at the Senatorial level, Mid American politician.

In the reaction to Barrett we're seeing a lot of this, although savvy politicians of all generations avoided it.  Long term political survivor, for example, Dianne Feinstein just flat out didn't go there, and for good reason.  She's taking a lot of whiny heat for her decision not to, but given her long history in politics, she's adept at reading the Washington tea leaves and avoided committing forced errors in the second Barrett confirmation she participated in.

The real complaint on the left, to the extent they've been able to express it, is expressed in terms of "she's going to take away our rights", ignoring the fact that it takes five Supreme Court justices to do anything and if Barrett is reliably a textualist there's only one other actually on the Court.  But beyond that, what the real fear is that the Justices will stop making stuff up and send things back to the states to be voted on.

That fear is based on something we all know to be true. The Constitution doesn't cover all that much.  If it isn't in there, it really is left up to the states.  Liberals fear that the American people simply aren't as liberal as they are.  So they don't want these things voted on.  Its not the Courts taking away their rights that they fear, but rather a declaration that they aren't rights and therefore they aren't protected by the Constitution, and are free for legislative address.  

Liberals have real reason to fear that, to be sure, because the evidence is pretty good a lot of state legislatures would in fact not recognize a lot of things that the Supreme Court has said are rights over the years.  But that's the thing about democracy.  People don't always see things the same way you do.

Indeed, they often don't.

Indeed, the recognition of this by humorist and social commentator Garrison Keillor, who is openly left wing also brought a firestorm of criticism from his own fellow travelers.  Keillor made a comment about some things just not worth ripping the country apart for anymore, and included abortion among them, and then was subject to aggressively negative comments.  Keillor's suggestion was that the country could tolerate the states deciding their own way.   That brought the classic argument used when somebody can't think of something to argue about from some on the left, which was to turn on accusations that Keillor acted inappropriately to women on his staff.**

Garrison Keillor was accused of bullying and humiliating women on his staff and no one should be shocked that he continues to be anti-women. . . 

Lyz Lenz, former columnist for the Cedar Rapids Gazette. 

I don't know the details of the arguments about Keillor, but that reply is just weird.  What Keillor stated isn't anti woman, and what we'll note below here should be obvious, Barrett is a woman.

Anyhow, at the same time, this also means that Liberals have become acclimated to an elitist view of government over the years, with the Supreme Court serving as a Platonic council of elders.  They liked the idea of the wise, symbolized by the late Justice Ginsburg, declaring things for the less benighted.  

The problem with that is that if you accept it, you have to accept it Soviet style.  I.e., if the Politburo says one day that we're friends of the Third Reich, we are, and if later it says they're our enemy, they are. No asking questions.

So you really can't ask a legislative body to appoint only benighted elders who are enemies of legislators. That makes no sense.

Indeed, in order for the Court to really work the way the left would have it work, the Court would have to be appointed by itself, something nobody is really willing to do.

Which is in part why court packing, as backed by AOC, is such a dumb idea.  Some upset Democrats would have the next Senate pack the Court.  This presumes that the next Senate will be Democratic, which is looking increasingly unlikely late in the election, but if that comes to pass, some future Republican Senate would just pack it more.  There's be no reason not to, once that was established, and at that point the Court would be nothing more than an arm of the national legislature, the very thing the left wing fears the most.  

Indeed, if it's packed, why not paced, why not pack it with jurisprudential conservatives, that would approach the law the same way that judicial liberals do.  The results of that would be to rule from the bench in a way that conservatives have never done in the U.S., but which there could easily be found people who would do.  Right now, a liberal focus is on abortion, for example.  Judicial conservatives might, at the very most, say that there's no right protecting it to be found in the Constitution, which is actually quite unlikely at this point, and send it back to the states.  But jurisprudential conservatives could take the same approach to the law that judicial liberals have and find that abortion is contrary to the natural law and therefore contrary and hence illegal due to factors that underlie the Constitution and which are beyond it.  People like AOC who would pack the Court, if they have any intellectual honesty, which is doubtful as it would require reasoning beyond politics, would have to accept that even if they are in the highly liberal camp.

In Ginsburgh, Barrett, Sasse, and Markey, we have the reflection of what we noted  yesterday. Ginsburg was a symbol of her times, and a hero of them for legitimate reasons. But those times have passed.  The geriatric nature of the national government makes this something that, for those in it, that is hard to appreciate, and the unusual domination of a single generation, the Baby Boomers, in the culture of the Western World further obfuscated it.  But the oldest departing recent Supreme Court justices, Kennedy and Ginsburg, were well past their eras when the departed the bench, one voluntarily and one through death.

In her life, Ginsburg very much reflected her times. She was a pioneer in the law and in the life of women at the time, becoming a lawyer when it was hard just for women to enter the profession, and raising two children while having a career, the oldest of which, also a lawyer, is now 65 years old herself.  She was a political liberal in a liberal era, and lead a pioneering life.

Barrett, in her 40s, is by contrast younger than both of Justice Ginsburg's children and is a pioneer in her own right, but the kind that many of the left don't care for and fear, just as in the 70s Ginsburg was the same for some on the right.  Also a career women, she is the mother of a large family of seven, for which it is always noted that two were adopted.*** She's outwardly religiously devout where as it seems Ginsburg was secular, at least to appearances.  And Ginsburg quietly endorsed an activist judicial approach which accepted, in essence, that the populace would not go where it needed to on its own and had to be lead there, while Barrett takes the approach that the populace goes where it goes, and should be restrained only where it clearly has been structurally provided that it can't go there.

That this would create fights on the left is telling.  It makes sense that justices like Ginsburg were opposed on the right, as they accepted imposing changes from above and irrespective of democratic feelings on them.  It would seem that everyone would be more tolerant of the concept of imposing changes from below, except for the basic distrust that most people don't want to go some places.

But the acceptance of the imposition of change on the left is mostly because the right has never attempted that in the United States.  It most definitely has in other countries.  Indeed, while its often argued by some that the American Revolution was a "conservative revolution", the disproof of that is that we've never really had one.  Other countries most definitely have had conservative revolutions which imposed conservative ideals from the top.  The Spanish Civil War was a species of conservative revolution in its impact, for example.  It could be likewise argued that Petain's premiership from 1940 to 1945 in France likewise was.

This is not to argue that those are really fully analogous examples, and certainly not admirable ones.  Franco and Petain were definitely anti democratic, where as the American conservatives most definitely are pro democratic.  As noted, it's ironically the American left that tends to be somewhat anti democratic with that impulse existing even somewhat in the mainstream, although recently the hard alt right has flirted with being anti democratic as well.  Rather, the point is American conservatism has always limited its efforts to argument, in the mainstream.****Indeed, American conservatives have not argued for jurisprudentially conservative justices at any point, and don't even seem to know what that would mean.

So the question now becomes, in the short term, how society might deal with increased legislative activity being licensed and licensed at the local level, something that reverses a 90 year trend.  And the added question is how American liberalism, which even in conservative administrations has basically been either been in the driver's seat or right besides the driver with a hand on the wheel, reacts when this is no longer true.  Conservatives in most places are used to the idea of being "strangers in a strange land", i.e., at least somewhat outside of their own societies.  Liberals are not.

Added to that we're just beginning to see the very first reactions of the Cosmo Girl meeting the Twitter Girl.  That may seem to be superficial, but seeing what's gong on out there shows its not.  One hip, young, cool female Twitter figure defines herself as:

real. raw. bold. brave. Marian devotion to apocalyptic proportions. in the pursuit of corn juice.

No hip, cool, Boomer, when young, or ever, defined herself that way.

Changings of the guard are only smooth transitions in organizations that are designed for that.  Cultures, don't design for that.  And as we've noted before, cultures are sticky, yet plastic.  The times, turly, are a changin'

___________________________________________________________________________________

*Markey's South Boston unit contained at least two other then young future notable political figures and his two brothers.  Service in the Guard and Reserve was an honorable Vietnam War option and I'm not claiming the opposite.

**One of the weird ironies of the Me Too movement is that men should have been acting like Christian gentlemen, even though the movement has been grounded in a camp and industry that declared its animosity towards Christian values eons ago.  

This doesn't endorse male wolfish behavior, but so far none of the real backers of the movement have been able to state why men shouldn't act the way that they've been complaining about, even though everyone knows why they shouldn't.  Be that as it may, a society that was raised on a diet of the evolved products of Playboy and Cosmopolitan has taught the very horrific lessons that brought about the behavior now complained of.  In seeking to revive the old standard, in the guise of it being the new woke one, some argument has to be created to back it.  Just "you shouldn't" is an anemic argument and fails on its face.  Nobody makes the argument, however, as "you shouldn't" as it wrong, and its wrong because. . . well nobody wants to go there and discuss what else might be wrong.

***She was oddly accused of racism for adopting orphans from Haiti and criticized simply for having a large family, the latter an example of prejudice of varying types, some religious, but some generational.  The new woman, as viewed from the 60s and 70s, isn't supposed to have a large family.  The problem is, that some of the younger ones now do, as we noted yesterday.

****In the American South, however, this isn't always true by any means.  And there's no denying that Southern conservatism backed racism and went beyond arguments to back it.

Experts tout proposals for Supreme Court term limits

 Experts tout proposals for Supreme Court term limits

Lex Anteinternet: Limiting Supreme Court terms

Lex Anteinternet: Limiting Supreme Court terms: An interesting proposal is being floated to limit Supreme Court terms to 18  years, with those terms being staggered so that one comes up e...

Lex Anteinternet: Antonin Scalia passes on.

Lex Anteinternet: Antonin Scalia passes on.: By the time this goes up here, this will hardly be in the category of really new "news", as it was already widely discussed an...