SCOTUS news and opinions

[Lexicus]

In my opinion, for checks and balances between branches to work, they would need to be composed by people who are more loyal to the institution than they are to their politics.

Elite consensus, or at least a certain kind of elite consensus, is exactly the condition for this. That is "politics" as it worked in the Roman Republic, with no coherent ideological factions but ever-shifting alliances among a relatively small number of elite families who are all interrelated by marriage and whose members are at the same time part of a web of mutual obligations structured primarily by patron-client relationships.

This is roughly also how the gentry-dominated society of the English colonies in North America worked prior to the war of independence. That is how the Constitution's framers envisioned the new republic would work.

 

[uppi]

Elite consensus, or at least a certain kind of elite consensus, is exactly the condition for this. That is "politics" as it worked in the Roman Republic, with no coherent ideological factions but ever-shifting alliances among a relatively small number of elite families who are all interrelated by marriage and whose members are at the same time part of a web of mutual obligations structured primarily by patron-client relationships.

This is roughly also how the gentry-dominated society of the English colonies in North America worked prior to the war of independence. That is how the Constitution's framers envisioned the new republic would work.

If they truly believed that this kind of politics was viable, they could have just went with a Senate, in which the elite can make deals with themselves - just like the Roman Senate.

Instead, they went with multiple branches which can block each other. Probably because they were aware that there were factions (like free states vs slave states) and they intentionally made it hard for one faction to gain the upper hand.

 

[Lexicus]

If they truly believed that this kind of politics was viable, they could have just went with a Senate, in which the elite can make deals with themselves - just like the Roman Senate.

Instead, they went with multiple branches which can block each other. Probably because they were aware that there were factions (like free states vs slave states) and they intentionally made it hard for one faction to gain the upper hand.

The Roman government was much more than just the Senate, which technically had no legislative power at all. In Rome the popular assemblies were sovereign and had all legislative power, while you also had the elected magistrates (consuls, praetors, tribunes) with different powers. The American republic was loosely modeled on the Roman republic with some changes to fix what the American framers saw as the problems that had led Rome to its civil wars and ultimately to autocracy.

Honestly, I am not sure why you are arguing this with me, you can go read the federalist papers yourself easily enough. It is true the framers understood that the republic would have factions, but they argued that there would be so many different factions pulling in so many different directions that majority control by a single faction would be implausible.

 

[Hygro]

Elite consensus, or at least a certain kind of elite consensus, is exactly the condition for this. That is "politics" as it worked in the Roman Republic, with no coherent ideological factions but ever-shifting alliances among a relatively small number of elite families who are all interrelated by marriage and whose members are at the same time part of a web of mutual obligations structured primarily by patron-client relationships.

This is roughly also how the gentry-dominated society of the English colonies in North America worked prior to the war of independence. That is how the Constitution's framers envisioned the new republic would work.

I suppose this is also what the Republicans want, and once its all their party, it can keep being sub-parties all the way down.

 

[Farm Boy]

Aldermanic privilege.

 

[Hygro]

You say "reform", I just see it as Biden trying to reverse decisions he doesn't like. The proposals for 18 year limits are fairly obviously aimed at certain individuals: Thomas (confirmed 1991), Alito (2005), Roberts (2006), they being the first to already reach the term limit and also the "conservative" justices. The next would've been Sotomayor (2009 to 2027).
I guess you like that. That's fine; I don't care.

But the way this could've been done is compulsory retirement at a certain age (maybe at 65-70). That would've put Thomas first (b. 1948), then Alito (b.1950), then Sotomayor (b.1954).
That is, assuming any of Biden's proposals are for active members, which he isn't really clear on...


No this example doesn't really work because these two don't represent a huge swath of people.
A politician like Biden simply changed jobs from senator to VP in 2009 and again to President in 2021.
I presume you don't think that's a problem. Legally no. But to me it is still within the same profession of vote-getting, and is just kind of scummy that someone like that doesn't just move on.

You think there should be term limits shared at power scope levels? Like 6 years as president, senator, vice president, ceo of fortune 500 company, governor, rich investor, and then you're termed out of all the others?

 

[Klaus Hergersheimer]

I get the sense that you're generally indignant about what I said and that's fine. Otherwise I don't understand these comparisons you're making, so I'm not belaboring the point any more: I don't think someone should be in politics well past most people's retirement age. That's just my opinion.

Maybe to help answer you:

So, would you approve of removing Grassley and McConnell because they are too old?

First up, I'm not in favor of "removing" anyone without some sort of due process; it's not their fault their old. But I would consider these two to be too old to run again, same as Biden, same as Trump, and I don't particularly care how many staffers any of them have.
But I think crafting a law essentially kicking them (or any USSC judge) out is just mean-spirited. Rather it should go into effect with an outlook towards the future.

To that end, I'm not entirely sympathetic to the discussion of "term limits" as is because, as I said, people can just run for other positions and be bribed and/or live off tax money all the same. I think we need to look at things form the angle of fair compensation so that no one is getting rich offering what is (or should be) a public service.

Obviously there are some who feel that being an elected official is basically a "profession" and we need to pay them well so they produce well. I don't think so.
But this is sort-of getting off-topic re: the Supreme Court and has been for several posts now...

 

[Hygro]

So we go back to your original statement, that it's hypocritical of Biden, the guy stepping down after one term out of an allowed two, for wanting term limits for the supreme court.

And your problem is that he is saying it, rather than the court justices have unlimited terms.

 

[Klaus Hergersheimer]

That's just misconstruing what I've been saying. See, I don't particularly care that Biden stepped down after 1 term when he shouldn't have had a first to begin with.
But I see this argument has run its course.

 

[JollyRoger]

Just add 1 seat every two years with an 18 year term (until you have 9 appointed by this method) and let the current Justices serve as long as they like and not be replaced when they step down/die (so we will likely have more than 9 justices until all the legacy justices leave). Set a timeline for nomination and Senate hearing and use the Republican 2005ish standard of an up or down majority vote. If a nominee isn't approved, then the President can select any Federal appellate judge with at least 10 years experience. If a term-limited Justice resigns or dies before their term expires, then the President can choose a replacement from the Federal appellate judge/10 years experience pool to serve out the remainder of the term. One full or partial term for any one person. Any nominee has to be young enough to not reach 80 prior to the end of the term.

 

[Hygro]

That's just misconstruing what I've been saying. See, I don't particularly care that Biden stepped down after 1 term when he shouldn't have had a first to begin with.

Which, with combined with your "long time lawyers shouldn't be judges isn't a valid analogy because of power scope" leads us back to this question:

You think there should be term limits shared at power scope levels? Like 6 years as president, senator, vice president, ceo of fortune 500 company, governor, rich investor, and then you're termed out of all the others?

 

[Hygro]

Just add 1 seat every two years with an 18 year term (until you have 9 appointed by this method) and let the current Justices serve as long as they like and not be replaced when they step down/die (so we will likely have more than 9 justices until all the legacy justices leave). Set a timeline for nomination and Senate hearing and use the Republican 2005ish standard of an up or down majority vote. If a nominee isn't approved, then the President can select any Federal appellate judge with at least 10 years experience. If a term-limited Justice resigns or dies before their term expires, then the President can choose a replacement from the Federal appellate judge/10 years experience pool to serve out the remainder of the term. One full or partial term for any one person. Any nominee has to be young enough to not reach 80 prior to the end of the term.

That's not bad, it's pretty good. But Republicans already stacked the lower courts, right?

 

[JollyRoger]

That's not bad, it's pretty good. But Republicans already stacked the lower courts, right?

They are fairly stacked in the GOP favor given the affirmative action of the electoral college and the distribution of Senate seats that let Mitch McConnell conduct his bad faith shenanigans, but perhaps we should enact similar rules for the lower courts to get some realistic balance over time.

 

[Farm Boy]

That would leave the legislature with really only the check of refusing to fund the courts until they collapse.

 

[JollyRoger]

As opposed to refusing to hold hearings until we divide the Dakota's into 8 states based on directions instead of just 2

 

[Farm Boy]

I call north by northwest Dakota.

But seriously, they should just take pity on eastern Oregon and let them be Idaho.

 

[Sommerswerd]

That same pity would let DC be their own state.

But seriously, they've been calling them Ore(gon)Ida(ho) fries my whole life... it was already exactly as you say the whole time... right under our noses... literally deliciously, deliciously under our noses.

 

[Kaitzilla]

18 year term limits with one new justice every 2 years sounds like a good idea.
Do Congress too

 

[SemiLazyGamer]

This is not a SCOTUS thing right now, but expect it in the near future: conservative state Attorney Generals going after established SCOTUS cases in order to reduce federal oversight by claiming state's rights, up to and including Brown v Board of Education.

Conservative AGs hope to upend 70 years of law going back to Brown v Board of Education with Texas case

A 13-year fight between a judge and Texas over how the state runs its foster care system is back in court on Monday. Texas wants the judge off the case and her stiff fines canceled. The case is also part of a nationwide push back on judges who force states to take specific actions — decisions...

www.tpr.org

The article specifically mentions Texas's foster children system and Louisiana with prisons, police, and voting.

Louisiana argued in its brief that Brown v Board of Education gave the courts too much power.

 

[Velegon]

If the Supreme Court continues to overrule stare decisis cases over and over, a Democratic controlled Congress could threaten to overrule the ultimate stare decisis case by proposing a law to overrule or limit Marbury vs Madison - which would crush the Supreme Court's power so the Supreme Court might be forced to back down like they were forced to with FDR's court packing plan after they kept overruling New Deal court cases.