Joe Biden worries that the “extreme” US supreme court, dominated by rightwing justices, cannot be relied upon to uphold the rule of law.
“I worry,” the president told ProPublica in interview published on Sunday. “Because I know that if the other team, the Maga Republicans, win, they don’t want to uphold the rule of law.”
“Maga” is shorthand for “Make America great again”, Donald Trump’s campaign slogan. Trump faces 91 criminal charges and assorted civil threats but nonetheless dominates Republican polling for the nomination to face Biden in a presidential rematch next year.
In four years in the White House, Trump nominated and saw installed three conservative justices, tilting the court 6-3 to the right. That court has delivered significant victories for conservatives, including the removal of the right to abortion and major rulings on gun control, affirmative action and other issues.
The new court term, which starts on Tuesday, could see further such rulings on matters including government environmental and financial regulation.
A system that appoints supreme constitutional judges for life and without even halfway serious democratic checks and balances seems to me the perfect recipe for disaster and corruption. But hey, I’m from Europe, so what do I know… ¯_(ツ)_/¯
Yes but you fail to consider that some guys wrote on a paper like 250 years ago and we’ve decided that everything needs to be viewed through the lens of either “does this agree with an incredibly pedantic and stilted reading of this document” or “what would those historical dudes think about this” - whichever happens to be more politically expedient for you at the moment, but the second one tends to give you more flexibility.
Hey! How dare you? That piece of paper is so strong that we have people in Canada claiming they have a 2nd amendment right to bear arms!
Stupidity knows no bounds.
Yeah, because making gun ownership harder/illegal is going to stop the fucking American Taliban from continuing terror attacks…
They’d barely even notice and half the cops would be with them.
Yes it would, and yes it does. It’s been shown empirically.
To be fair, they did expect us to modify the constitution from generation to generation.
Ultimately the failure is ours.
It’s amazing to me the way we’ve elevated the constitution to near biblical proportions. And just like the Bible where every church and pastor interprets it in their own way, so too do our 9 oracles in black robes interpret the will of our village elders from ages past.
“So shall it be written, so shall it be done”, eh?
There are parallels in your example because it all comes down to governance of people, but I truly don’t think that people look at the Constitution/Courts like they do at the Bible.
In terms of commandments and how one is expected to follow the rules, I would argue that some do. In terms of attaching spiritual beliefs to it, no, not so much.
But yes, your point is true - it boils down to governance and how people want to be governed.
For better or worse, it’s next to impossible to successfully modify the Constitution without significant support. It has to be ratified by about 38 States (3/4 of the State legislatures or 3/4 of the conventions called in each State). That’s after either 2/3 of both Houses of Congress (2/3 of the House of Representatives and 2/3 of the Senate) propose an amendment or 2/3 of the State legislatures request one via a convention.
In a way, it’s a good thing since it keeps the Constitution from being able to be changed on a whim, and it mostly keeps it from being affected by the political tug-of-war that happens every few years in the US.
It’s also a bad thing, though, as it makes it very difficult to adapt to certain situations that wouldn’t have happened 200+ years ago.
“It’s also a bad thing”
You realise you can change laws? Congress does it regularly. The Constitution primarily restricts the type of laws that can be passed. Congress has huge leeway otherwise.
Laws like the Voting Rights Act or the ones that established the EPA or the CFPB? The problem here is we’ve let a rogue court assume ultimate legislating ability and the only real remedies to that are impractical supermajorities or open conflict between the branches.
“Assume ultimate legislating ability”- Unless you are whining about Marbury v Madison, what on earth are you talking about? SCOTUS doesn’t write laws, they rule on the permissibility of (a small fraction) of them.
“Impractical supermajorities”
Did you just discover what checks and balances are? One should want supermajorities because you don’t want laws based on shaky public support. Do we really think the cycle of each president overturning the previous presidents policy is practical?
The person I was replying to was talking about the Constitution, not other laws.
I would argue though that if it’s something that truly needs to be changed by the majority that it would get done.
The problem is the way our politics are today (those in office care more about gaining money to stay in office than their constituency, etc.), and the population being split almost down the middle and adhearing to that mindset (‘my team is always right’) over the common good, makes getting that type of majority almost impossible.
But again, that’s still on us, not our forefathers.
One of the more interesting things I saw (on this topic) was a historian stating that George Washington (and his contemporaries) would have been able to relate the world of Julius Cesar more than they would our modern world.
I think about that A LOT whenever I hear some idiot spout nonsense about the “vision and ideals” of the founding fathers
I thought Washington was too busy sending faxes to samurai.
Was this during or after raping all his slaves he owned?
U forgot to toggle your hexbear account
I disagree. That was BC. It’d be like saying people born in the 1930s relate more to colonial times than today. There are some of them who are still alive. While a percentage want nothing to do with modern ways, I think the type to be involved in forming a nation would be lifelong learners akin to the old folks who have little trouble with today’s modernities.
BC is somewhat of an arbitrary line. I’d say that modern society and our relationship to it are radically different from either our forefathers’ or Caesar’s due to the industrial and information revolutions. It’s not the distance in linear time that’s important, but the difference in social and cultural time.
Yup, I see. A bit like with the Bible and other holy books then. Even here in Europe, there are many who see the wording of those as the ultimate truth. No need to adjust anything, they say. It’s all good. It’s god’s will or whatever - if it helps their agenda, that is. Jesus, that must be frustrating.
That’s kind of what it’s devolved into, tbh. The confluence of Christian fundamentalism and politics is a scary fucking thing, because when you’re “doing god’s work”, you can justify literally anything to yourself and your fellow “good Christians”.
Not anymore. They are just making shit up now. The check is congress impeaching them. That will not happen if enough people demand it.
It’ll never happen as long as republicans control either half of congress. People have been sounding the alarm on their power grabs for decades and only now are some people starting to listen.
I expect the American experiment to fail in my lifetime.
I’m not sure that I see the American Collapse happening in my lifetime as a certainty, but I would agree that it’s a very strong possibility if we don’t get our shit together pretty fucking quick.
It’s won’t collapse. We’ll become another authoritarian state.
It’ll be isolationist so only Mexico should be worried.
Yeah if we go that route, I absolutely expect some Christian Nationalist administration to decide that it’s time to take over Mexico, which to be clear is an apocalyptically stupid idea.
Some of the MAGA folks are already saying that we should bomb/invade Mexico to stop the drug cartels and immigrants. Of course, they hand-wave how horrible a war would be. They assume that Mexico would thank the US for such a great bombing and ask for more. Because MAGA.
For anyone who was downvoting the above comment: It’s absolutely a real thing that Republicans have been talking about for a while now.
This should concern you. Only a complete imbecile would think that conducting unilateral military action against Mexico is a good idea. We would rightly be cast in the same light as Russia vis a vis Ukraine. We would destroy any remaining semblance of geopolitical soft power we still have. We would be unambiguously turning away from even trying to be the “good guys”. We would be global pariahs, just like Russia is now, and we would deserve it.
It’s more a symptom of the FPTP voting system
Europe has viable parties outside the two most popular in any given election cycle, so partisan loyalty is less of a threat to the application of removal proceedings or other punitive measures.
Hey. You can’t just use common sense when it comes to our Judicial System. That would be too logical. What next? You gonna ask that our Supreme Court Justices have Ethics Rules!?
What is this world coming to?
Article V of the the Constitution.
https://constitution.congress.gov/browse/essay/artV-1/ALDE_00000507/#
Amending the Constitution was intended to be much more usable, but over half the country doesn’t vote.
I can see how 9 out of 13 colonies (or equivalent votes in congress) might be more plausible than 34/50 states or 357/535 congresspeople (house + senate) considering the state of politics today.
The framers counted on congresspersons being good faith actors that loved America, and on a populace that wasn’t apathetic or incompetent on important matters of state.
To be fair, the farmers “envisioned” a country where a good proportion of the population was literally enslaved. Let’s not get ahead of ourselves
Not wrong to point that out.
I always liked this quote:
Sol Wachtler & David S. Gould, Et Tu Judge Bork?: Will Solipsism Destroy Conservative Ideology?, 15 Touro L. Rev. 1, 15–16 (1998).
This raises an important point, especially as it pertains to the civil war. This country nearly split itself in two because there were two very different ideologies that simply were not compatible.
The US is a fairly large nation geographically with no shared cultural heritage to speak of and greatly differing political beliefs. I don’t know the answer, but we really need to at least think about how we can expect all US citizens from liberal Californians to conservative Texans to ever be satisfied with the state of the national government we share.
Full offense but as you mentioned we’ve already seen what the “southern” ideology does when left to itself and fought a rather bloody war about it. Unfortunately the American military has this historical pattern where they win the initial military campaign and lose the occupation. Imo the south is the ultimate example of this, we simply let the former slavers be and gave them seats in Congress. What we should have done is called a new constitutional convention with representation from freedmen instead of trying to ship them off to Liberia or whatever.
So after the war the social relations in the south changed somewhat in form but not in essence we’re still dealing with the fallout today. In short, I think conservative Texans don’t really deserve to be satisfied with the state of the national government.
The thing, though, is it isn’t so geographically separated. There are more Trump voters in California than in Texas and more Biden voters in Texas than New York. This is simply because there are more people in California than Texas and in Texas than New York, and even the blue states and red states are actually pretty purple.
True, my reason for using those states as examples had more to do with people’s expectations than actual numbers.
I’ve made a very similar point to some of my friends about how the two sides of the political spectrum are no longer geographically separated. A civil war today would be very different from the US Civil War in the 1800s. It won’t be a physical war like the Russia/Ukraine war because it geographically and logistically can’t be. I think we’re likely to see acts of terrorism as the tension continues to grow, but not geographic borders being drawn and guarded.
Always wondered what the legal definition of “several” was, as it applies to that clause.
It’s the adjective form. It just means separate or distinct.
I always took that phrase as expressed in the Constitution to be a quantitative factor? Several as in three to many.
https://thelawdictionary.org/several/
Nice, ty.
Still confused though, quantity wise. Basically, the point being made here:
Yeah, the drafters of our constitution really fucked up in that regard.
I’d attempt to solve the problem by creating an independent judicial review board entirely separate from the US govt. similar to other “professional” professions. Let these judges go up for review every 5 years and if they are found to be in breach of conduct, remove them from the bench.
Also, rework how they get to the bench in the first place. Of course the SC is going to be politically motivated. They only get their seats because one of the two big parties literally puts them there. Impartiality is really hard to claim when you owe your entire existence as a SC judge to a giant money machine.
Lifetime appointments mean they don’t owe anyone shit. They have nothing to gain by being loyal to the party that appointed them. There are better ways to accomplish the same thing, but it’s at least one facet of how the court works that seems to do what it’s supposed to.
So instead they’re loyal to their party’s billionaire donors
Which is why Congress has the power to remove them if they fail to meet “good behavior”. But Congress is also abdicating their responsibility to democracy.
Is there any definition of what good behavior is?
Nope.
No. That’s for Congress to determine in an impeachment.
The corrupt ones are loyal to the people they take bribes from. The fact that those same people tend to be donors to the party isn’t really relevant.
Staying loyal still keeps the (extra) cash flow going.
deleted by creator
The whole point of a lifetime appointment is that they can abandon all political concerns once they’re in the SCOTUS - so they don’t have to be political. And I’ve seen that happen - while they obviously stay conservative or progressive, they tend to drift away from an alignment with the parties - with exceptions, obviously.
But, as with all other branches of the US government, it’s becoming clear that we’ve exited the era of being able to trust our leadership to support the Constitution and represent the people.
(For me, it wasn’t even Trump that snapped me out of that mindset. It was when they were talking about outlawing congressional insider trading. One of the Republicans said, out loud and in public, that the notion of prohibiting congressional sick trading was off the table, because it was a core part of the job. He said something like, “half of us wouldn’t be here” - as though that was a bad thing.)
You should get the same behavior with a single term appointment with no possibility of a second term. There would also have to be limits to what they can do AFTER the appointment too, so they don’t use their single term power to set themselves up when they are done. I guess it would have to be a single term appointment with an extended ban on future employment or investments.
But how long would those appointments be? Many justices have written about how long it took to adjust sitting on Scotus, even if they had plenty of experience on the court of appeals(Sotomayor I think?). So like a 10 year period might work. Scalia and RBG voted together a surprising number of times… So there is something to the experience brought to the table. Thomas’s corruption is just nuts and Alito is frustrating, but the other justices at least have substantiating arguments mostly.
In Germany it’s one 12-year term, generous pension afterwards. Minimum age 40, maximum age 68 or their terms ends prematurely once their successor is appointed. They have to be actual jurists (passed 2nd state exam and/or are a professor of law). Half are elected by the Bundestag (Parliament), half by the Bundesrat (representing the states), in both cases with 2/3rd majority. Ultimately appointed by the Federal President but not in a deciding role but acting as notary of the state.
That 2/3rd majority rule has, because no party can reach it on their own, led to bench seats being allocated proportionally to electoral results, parties picking their favourite out of the possible candidates (the ministry of justice draws up a list of all eligible) and other parties adding the rest of the necessary votes unless there’s an actually important reason to veto a candidate, say, for being an ideologue instead of jurist.
That part would be very hard to transplant over to the US. The rest is the culture of the court itself, they’re notorious for being, well, jurists, not giving a rat’s arse about politics leading to decisions like this, blindsiding everyone on either side of the controversy. A judge may come in with political leanings but they’re going to get beaten into shape by the rest of the judges very quickly.
There’s also other structural differences, e.g. the constitutional court pretty much only doing constitutional review, they’re not part of the ordinary instance chain. They have other prerogatives (e.g. banning parties, deciding cases where constitutional organs sue each other) but constitutional review is pretty much their sole bread and butter.
Thanks for writing all of that, it’s very interesting! I can see how that would be an effective system, but as you said, very difficult to implement in the U.S. anytime soon. Even making some incremental changes would help, as I would think there would be good evidence from systems like yours. We shall see I guess!
I don’t necessarily think the founders fucked up. It’s important that the court be free from political influence when deciding cases so I think they had the right idea. I’m not necessarily opposed to lifetime appointments. Where I think there’s a lot of room for improvement is the nomination and confirmation process. It’s entirely political, contentious, and has produced a few lousy justices in recent years.
This idea of one party only appointing conservatives and the other only appointing liberals and both sides hating the other’s appointments is what’s fucked up. What could be interesting is a bipartisan Congressional nominating committee that produces candidates that are at least palatable to both sides. Let’s say there’s a 2/3 majority requirement for the committee to nominate someone. They could produce a list of several candidates and the president nominates one of them. Basically take this process away from partisan NGOs and give it to a bipartisan group of elected representatives.
The thing is, the drafters of the constitution didnt mean for the supreme Court to be as powerful as it is today. There is nothing in the constitution that even grants them the power of judicial review. They just interpreted that they inherently had that power, and we’ve gone along with it for the last hundred years.
According to the drafters, separating the judicial branch from the executive was a way to inhibit veto power and to prevent the executive from reshaping laws that have been passed by Congress. There only other function was to handle cases between two states, and to oversee an impeachment trial in the Senate.
It wasn’t entirely about the rights to review, but also about their impotence to do more than just talk. The balance of powers isn’t just that Congress can impeach, but also that they can write laws that address the Court’s arguments directly and the executive can just tell them “no”. But we’ve let them just be the final arbiter of law with no response from either other body, so they’re now just unelected super-legislators.
When the court is embroiled in corruption scandals and abandoning precedent to strip rights from citizens, the other executive institutions in the country shouldn’t just be acquiescing to their demands. Instead we get “you may be unethical and corrupt, and firing off society shaking reinterpretations to settled law, but thems the breaks”.
Tiptoeing into calling their adherence to the rule of law into question is moving in the right direction, but very slowly. Maybe that’s the right way to do it, but I don’t really trust that it’s not just a misplaced belief in the system to work itself out so moderates don’t have to actually do anything that might be scary.
It’s really a shame that so many seem to be clinging to a constitution that is close to 250 years old. You would think that some things would need to be updated over that period of time, but as I said, I’m from Europe…
I find it interesting that there are so many Europeans that have such strong opinions on the US, yet they don’t keep themselves informed on the same.
The US Constitution has been updated many, many times since it was written.
They probably never expected anyone in government to be so openly corrupt and incorrigible. At the time they wrote the declaration they probably viewed democracy like the roman Republic did and thought the people would categorically reject anyone willfully stealing their rights and freedoms for their own political or personal gain. Of course they couldn’t foresee a political party so openly hypocritical that they would literally lie on mass to a public brainwashed by unchecked “news” publications that only regurgitate what they want to hear. Democracy is f*cked, blame the murdochs.