[kelseyfrog]

The authors Ashley Gorski and Patrick Toomey seem to think that the rule of law and advocating for consistent ruling on constitutionality will have an effect.

If I’ve learned anything about how the Supreme Court works, it’s that this is a political calculation, not a legal one. The outcomes are decided first, and then jurisprudence is employed to substantiate them — not the other way around.

[philips]

I share your cynicism. Do you see any way out?

I feel the same way about the supreme court justices today as I do about Senators for lightly populated states: people operating with little oversight and with little to no accountability to the people who they hold power over. The bigger problem with the Supreme Court is that, largely, the political calculus is mostly cemented for life of the justice.

The only way out I see for the Supreme Court is a Congress and President who are focused on fixing the issue. But, it still feels general awareness of the Supreme Court issues are still to low and not universally felt- maybe in another 2-4 years.

The cynic in me wishes the Democrat appointed judges would start openly taking such large and egregious bribes too to make judicial term limits a bipartisan issue.

[kelseyfrog]

I fundamentally see this as a consequence of the original sin of Senate. Article I, Section 3, Clause 1 and Article II, Section 2, Clause 2 work together to make the Supreme Court a reflection of state values rather than popular values. Any time the two drift apart - due to changing popular opinion, migration, etc, the difference is reflected in political tension. There's no viable escape hatch for popular grievances against the supreme court (impeachment is non-viable again, because the Senate structure) which puts us in a precarious situation.

I don't see a viable way forward since amendments also follow a state structure given Article Five.

[otterley]

> The only way out I see for the Supreme Court is a Congress and President who are focused on fixing the issue.

This is absolutely true. Not so much about the President, who has no legislative authority, but Congress, to be sure.

Congress seems to have abdicated its duty to ensure legislation is clear and consistent and evolves with the times. Many of the SCOTUS opinions I've read--perhaps a majority--get mired in trying to read the tea leaves about Congressional intent, or are frustrated because the parties are using the Court to solve problems that Congress could and should have solved.

[archagon]

There needs to be critical mass for protest and disruption. Palpable anger out on the streets. Unfortunately, we don’t have that right now.

[thinkingtoilet]

>The outcomes are decided first, and then jurisprudence is employed to substantiate them — not the other way around.

I think this is the thing people don't get. Right or left, Democrat or Republican, it just doesn't matter anymore. You have nine of the best legal minds in the country, supposedly, and they constantly vote along party lines. There is no way that happens if the law is actually being respected.

[_bin_]

This is just not true. If you examine recent terms, many cases are decided unanimously and others have judges voting across the aisle. Roberts has been incredibly cautious to avoid this happening and has managed the docket specifically to avoid it. The majority on Bostock, where Gorsuch wrote the opinion, is a pretty good example of this. A ton of rulings have been very narrowly tailored specifically to avoid setting precedent, favoring standing or juridsiction more than a tough interpretation of con law.

You might appreciate Roberts' '24 year-end report on the federal judiciary: https://www.supremecourt.gov/publicinfo/year-end/2024year-en...

[emmelaich]

Can you give a recent (last 20 years) example of a Supreme Court political not legal decision?

FWIW, I think the Supreme Court will not uphold the ban. But TBH I don't know the details of the 'ban'.

[llamaimperative]

The decision to ban Colorado from making its own decisions for its own election with regard to what "engaged in insurrection" means and therefore disqualifies someone from their own state's ballots.

Purely political. The law says clearly that states run their own elections and it says clearly that insurrection is disqualifying. Would've been politically inconvenient though (for either side of the spectrum, and especially inconvenient for one side).

[ApolloFortyNine]

That's actually one of the ones that shows how the supreme court isn't always party lines. That was an 9-0 opinion to block Colorado from stopping Trump from running for office there.

Also the constitution clearly gives the federal government the ability to conduct federal elections, not states, and that's exactly what they called out in their brief.

[llamaimperative]

The question wasn't about party lines. It's about the distinction between political judgment and legal judgment.

That has nothing to do with partisanship.

> Also the constitution clearly gives the federal government the ability to conduct federal elections

This is literally not true. Please tell me where in the Constitution the federal government is given this authority. You won't find it, which is why all the contortions around federal authority are political in nature and not legal.

The states run 100% of 100% of the elections within their states, including the elections of the electors in the Electoral College who ultimately elect the President.

The entire opinion (and the misconception that it produces, and you relay here) is a handwavy way to say: it sure would be politically inconvenient if the legal structure actually produced this outcome. If it were a legal decision, the political considerations would be irrelevant: the law says what the law says.

[ApolloFortyNine]

>This is literally not true. Please tell me where in the Constitution the federal government is given this authority. You won't find it, which is why all the contortions around federal authority are political in nature and not legal.

https://constitution.congress.gov/browse/amendment-14/sectio...

https://constitution.congress.gov/browse/amendment-14/sectio...

Section 5 gives congress the power, not the state, to enforce section 3.

If you want to say you were right that it's an amendment, ok.

[llamaimperative]

Whoa whoa, what you said is "the constitution clearly gives the federal government the ability to conduct federal elections, not states." This is blatantly false. I presume you discovered that when you looked it up and now you're switching gears.

Now you're mounting a totally different argument which is that Congress has the power to enforce Section 3. This is true, but that does not strip states of power to run their own elections how they see fit. This merely grants power to Congress to enforce Section 3.

You just misunderstand how the Constitution works.

Here's proof: The Constitution does not give states the power to pass laws. It does give Congress the power to pass laws. It giving Congress the power to pass laws obviously does not strip states of their power to pass their own laws.

[emmelaich]

OK I'll have a read of "23-719 Trump v. Anderson (03/04/2024)"

[llamaimperative]

Cool! Be sure to pay attention to this part:

> "Finally, state enforcement of Section 3 with respect to the Presidency would raise heightened concerns... state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer"

That's a political consideration, not a legal one.

> "In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up."

That's a political consideration, not a legal one.

[emmelaich]

Good points. Reading the whole thing is more involved than I expected though! Not surprisingly really.

You might like this commentary: https://www.cato.org/blog/agree-it-or-not-colorado-supreme-c...

[llamaimperative]

Yes that is an excellent endorsement of Colorado’s Supreme Court decision to remove Trump from the ballot. Essentially all the incredible things about CO’s decision (as the author says, even if you disagree with their conclusion) are notably absent from SCOTUS’s.

For example, SCOTUS took literally every escape hatch possible NOT to decide the case on its merits, which they transparently say is because it would be politically undesirable.

That’s an excellent read though, thank you for sharing.

[qingcharles]

All courts are, sadly, political because judges are human.

[Barrin92]

It highly depends on the design of the judicial system. As individual people obviously everyone has political opinions, but you can shield the judicial system from being politized. Systems like in Israel where judges or judicial committees have a major say in appointment of judges removes a lot of politics from the equation.

That's how the Prussian/German bureaucracy was designed too. Lifetime civil service and merit based selection basically means the bureaucracy manages itself removed from the political process. The US system is extremely personalized with elections and appointments so it's uniquely nepotistic in a lot of ways.

[qingcharles]

I'd definitely love to learn about better designed justice systems. A lot of the systems in the USA work to an extent, but there are better solutions. The fed judges often speak about how the 50-state system in the USA should allow experiments in different areas of law and allow the best ones to win, but it doesn't work as effectively as it should.

[femiagbabiaka]

I mean there's an irony inherent in the way the Supreme Court works in the modern American era: judicial review is not present anywhere in the Constitution, and yet the Supreme Court uses it to uphold or strike down law according to the Constitution. It's inherently a broken branch of government and it was a mistake for the Democrats to base the last 50-70 years of social progress on leveraging it.

[psunavy03]

This is patently false. Marbury vs. Madison based the principle of judicial review on English common law inherited at the founding.

Just because you say something with enough conviction does not make it true.

[femiagbabiaka]

> Marbury vs. Madison based the principle of judicial review on English common law inherited at the founding.

I wasn't aware that the Constitution, the document, was English common law. Again, judicial review as a power of the court is not defined within the body of the Constitution. If it is, quote it please, I'll be happy to acquiesce.

Oh wait.. https://www.uscourts.gov/about-federal-courts/educational-re....

> Just because you say something with enough conviction does not make it true.

Indeed.