Systems always work to justify and perpetuate themselves. It's part of why our jobs can be such BS sometimes.
The right and left are both railing against our justice system. At different levels. For different reasons. But that’s political capital on the floor.
> Same with implementing ranked choice
We have multiple jurisdictions with RCV [1]. Your purported impossibility has happened.
> Systems always work to justify and perpetuate themselves
We have reformed our courts before in pursuit of seeking to perpetuate our American form of government. This is no different. Amending governments to make them more fit is not inherently in conflict with institutional prerogatives.
[1] https://en.m.wikipedia.org/wiki/Ranked-choice_voting_in_the_...
True insofar as it goes… but this elides the detail that the right just won a generational battle for the Supreme Court. There is zero chance that any Republicans back reform here.
Even the minimum viable reform to enact term limits after this lot dies off is dead on arrival.
Sure. Until recently, they were losing. De-politicising the courts could be electorally advantageous for both sides.
> the minimum viable reform to enact term limits after this lot dies off is dead on arrival
Because that’s obviously partisan. There are more Republican-appointed judges. Term limiting them obviously favours one side in a way drawing from appellate judges by lot does not. (The Fifth and Ninth are regarded as crazy by half the country.)
I think you overestimate how much the political apparatus cares about the long-term. It's hard not to agree that de-politicized courts are good, more or less, for everyone. But the right-wing won a generational battle for the Supreme Court. There is no incentive for any right-wing politician currently alive to propose that kind of change today; if anything, the political machine would call them out for proposing that their party loosen its grip on the reins.
We'll see how the right-wing feels after this next election. It's not a secret that whoever wins in 2024 will likely get to appoint several new justices, though the court as a whole will almost certainly remain right-leaning. If that control does start to erode, though, expect to hear much discussion about making the de-politicization of the courts a priority.
How recently are you talking here? It’s been a conservative majority for over 5 decades.
> De-politicising the courts could be electorally advantageous for both sides.
Perhaps in the sense that being more consistently moderate would be advantageous for either party in seeking to win median voters, but I think this is not true in terms of the party base dynamics that actually drive most of policy and candidate selection. The Republican base is _thrilled_ with Trump and Mitchell’s maneuvering to secure a decades-long unshakable majority. Campaigning as a Republican on “I would like to reverse the biggest win in our lifetimes” would be political suicide, and your primary opponents would be the most well-funded in the country.
> Because that’s obviously partisan
The last bill I saw had the change kick in _after_ the existing justices vacated their seats, so as to not be seen to attack the existing majority. Even then it was DoA with zero Republican support. And that should not surprise you.
I like your proposal, but I stand by my claim that it’s politically impossible as a bipartisan policy for this generation. The only way we get Supreme Court reform is if they overreach, moderates get fed up with strong conservative rulings, Dems win a landslide with a mandate, and pass a partisan reform bill.
Typo, McConnell.
From someone most Democrats would consider "on the right" - it's more complicated than that, of course - you're right.
The right had _lost_ that battle for generations, though. I don't recall any serious efforts to reorganize the judiciary as a result of that.
The "Hawaii judge" has been a running meme on the right for _years_. Pretty much everything Trump tried to do that was even a little bit controversial was fought in the courts, and the left tended to practice "judge shopping" to place the cases in Hawaii's district. The Ninth Circuit has been known as the "Ninth Circus" for as long as I can recall.
Of course, the right also practices judge shopping. It's just part of how things are set up today. The difference in this discussion is that we're now talking about changing the system itself because the left feels like they lost.
> Even the minimum viable reform to enact term limits after this lot dies off is dead on arrival.
I wouldn't be opposed to reform of some kind, but keeping the current nomination process and enacting term limits doesn't seem viable. The problem here is that Justices are nominated by the President. As long as that's the case, all term limits will do is make the judiciary less consistent. The biggest impact of changing the makeup of the Supreme Court more often would be to have precedent overturned more frequently.
It could be argued that the entire point of the way things are set up is so that the three branches won't be controlled by the same zeitgeist at the same time. Presidents get four to eight years. Congress can serve as long as they're re-elected, in two or six year terms. SCOTUS serves lifetime terms.
The fact that the branches are at odds isn't a bug; it's a feature.
Ranked choice also has only been implemented in a few cases and generally by a ballot initiative (getting around the party structures somewhat).
To be fair systems do change but in general they use their power to resist it tooth and nail until change is inevitable and they collapse.
So is the constitution. But I think what also matters a lot is things like the Federalist papers. Where these aren't explicit laws but are the motivations and philosophy behind them. Ruling by the letter of the law will always be tyrannical because no thing is perfect.
Federalist 78[0]
> The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
It's also worth mentioning here that this same document specifies that the judicial branch and executive branch are to remain distinct. That all the judicial branch can do is issue judgement, but are not capable of executing such judgement. I mention this because there is another question that arises if the one in charge of the executive branch is judged to have committed a crime by the judicial branch. But of course, this is back to the point that there are no global optima. There is no free lunch.
Good question. Perhaps a separate bench chosen once per session? Have the other circuits vote on it?
There is a reference in the Constitution in the impeachment clause to the “Chief Justice” - which maybe implies justices with some sort of tenure, but I suppose that could be filled randomly as well, much like a jury foreman.
Not that I can find. (It’s already been flagged off the thread, granted.)
> a reference in the Constitution in the impeachment clause to the “Chief Justice”
Ministerial. The most-senior jurist on the appellate court.
The current system seems like it’s designed to aggravate politics in the very branch that’s intended to be beyond them.
The supremes don't always get it right. Dissenting opinions are the mechanism for expressing that reality.
I used it once. Because that’s why ancient democracies used selection by lot. My criticism isn’t of this ruling per se, but of the institution, which has swung from a stabilising branch of government to a constant source of chaos.
What are you talking about? The Supreme Court gutted the constitution in the mid-20th century, and anti-democratically reshaped society down to its foundations.
The supposed "chaos" comes entirely from liberals freaking out at the smallest retrenchment of their destabilizing prior precedents.
In 250 years, for 44 presidents, not one of them has needed immunity from criminal prosecution.
All this does is shield the man who attempted to use violence and a conspiracy to commit election fraud with a fake slate of electors to reverse the result of a legitimate decision.
To call this milquetoast is to continue the gaslighting. This decision has permanently altered the American Experiment.
I.e. their job doesn't depend on them ruling the "right" way.
There are pros and cons to different approaches. There are differences at the state level for judges, being appointed vs elected. Each has problems. In TX, for example, judges are heavily influenced by mob mentality - they're afraid to practice sentencing restraint because next election their rival will run ads saying they love murderers/rapists/whatever because they let someone off lightly in extraordinary circumstances.
His job is safe, but much of his salary--no, not quite the right word--much of his overall reward is dependent on what powerful friends want him to do.
Ultimately, people don't care about keeping their job--who the hell likes their job?--people want to keep their compensation, and for the US Supreme Court, their compensation can easily be controlled by powerful third parties.
Clarence Thomas is notably the least loved justice in a historically hated court
https://thehill.com/homenews/4019788-poll-thomas-has-highest...
And if we are talking about numbers that don’t matter, republicans won the Congressional popular vote four of the last seven times (by three million votes in 2022) and are on pace to in it again.
You can also look at the generic congressional ballot polling, where republicans regularly are ahead.
Well, kind of fair, with that caveat that this means even less Americans are likely to agree with Clarence or this ruling.
I'd say Thomas is to the right about what Ginsberg was to the left - the favorite of the core of their respective parties.
Of all the currently-service Justices, the only one who has deviated from the perspective of the President who appointed them would probably be Roberts - and that statement is mostly based on a single ruling. It's not like he's well-loved by the left.
Why should I believe his decisions are about principle when money is changing hands?
That sounds like an impeachment issue to me.
The recent controversy around Thomas's behavior did not spring up because his opinions on governance date back to his appointment, but because--to the outside observer--it looks like he is perfectly comfortable with selling his opinion to the highest bidder. Lifetime appointments are supposed to keep judges aloof from external influences, but it seems like that logic failed in this case.
Just because a crazy mob attacked congress at the behest of Trump does not mean official institutions would do so even if so ordered.
[0] https://www.foxnews.com/media/trump-vows-fire-generals-push-...
It's fundamentally dishonest - and also somewhat delusional - to discount threats even if they didn't come to pass one time. People doubted Trump would try to hold onto office, until he did.
As an aside, I also have doubts that a chimpanzee would be able to successfully disable the safety an AK47. But it would be idiotic to leave that to chance and give one a loaded AK47 anyway.
https://en.m.wikipedia.org/w/index.php?title=Formal_fallacy&...
Bodies that 'descend from the constitution' are certainly constitutionally intended to uphold checks and balances. However this has manifestly failed to happen.
You have a congress deadlocked for decades, 'unitary executive' legal philosophy centralising power in the presidency in order to temporarily pass this legislative deadlock, a senate readily obeisant to the majority party, and a supreme court stacked by the ultra right rolling back civil rights and checks and balances apace. Leading to decision like Citizens United and now presidential immunity.
You have the most recently defeated president still, four years on refusing to accept the results of the last election. A president with a significant base of religious, anti-state and rural poor devastated by decades of drug war and manufacturing decline. A president who openly called for insurrection. He called too on his vice president to overthrow the decision of the electoral college and defended calls to hang him when he did not - https://www.theguardian.com/us-news/2021/nov/12/trump-capito....
The thing tank behind the dominant wing of one of the two political parties in the duopoly has consistently pushed the line that the country is not in fact a democracy at all - https://www.heritage.org/american-founders/report/america-re...
All this against a background of a small class the most wealthy plutocrats vying for power, apparently beyond the reach of legal censure. Plutocrats who between them own all the social networks, newspapers and television stations.
Lets not forget the immense power of the total surveillance state revealed by Assange and Snowdon.
Finally you have the vast disregarded body of the American underclass, sleeping in their millions on the streets. Invisible in Americas view of itself, but inescapable in the tent cities and skid rows that seem now to populate every large American city. The nearly two million imprisoned. An underclass that can be victimised and stigmatised, mobilised and made a boogyman for middle classes all to aware of their own vulnerability in the absence of a welfare state.
As a non-American it seems incredibly clear that the path has been laid for a seizure of power within one to two election cycles. Further, I no longer see a way this can be avoided. Trump if victorious - as he seems likely to be against a clearly senescent party machine president - will likely use every power afforded him by the supreme court to remain in power. I'd expect this to follow the pattern it has followed in every other democracy which has swung to authoritarianism. The rooting out of non existent 'conspiracies' of journalists and political opponents, stigmatisation of immigrants and other minority groups, mass deportations, voter deregistration and the use of external threats to justify controls on movement in and out of the country. The rapid stacking and delegitimisation of the lower courts. The use of an enormous network of mega churches to lend the leader the imprimatur of God. Ultimately paramilitary violence and provoked insurrections leading to a state of emergency and some kind of declaration of a temporary presidency of national unity or similar.
Doubtless this sounds histrionic - but I see no institution strong enough or even truly motivated to prevent it. The only hope I see is that such regimes are almost inevitably unstable and tend to topple within a couple of generations. Eaten from the inside out by ambition and betrayal.
This quickly becomes a standard ritual at the changing of each administration, and an accepted job hazard for incoming justices.
E.g. from the court's opinion:
> Whenever the President and Vice President discuss their official re- sponsibilities, they engage in official conduct.
It's not a huge leap to infer that the President, as Commander in Chief, is engaging in official conduct any time they ask the army (or its many contractors) to do something.
The only thing the Constitution says is:
> The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
There's nothing in there that says they can't be used domestically, or for what purposes the President can control them. There could be some quibbling about what "actual Service" means, but I suspect it becomes recursive to "whatever the president says actual Service is".
The specific reason that everyone is freaking out is this part of the opinion:
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to ju- dicial examination on the mere allegation of improper purpose.
I.e. the president's motive is unquestionable, the only question is whether the action was taken via some power granted to the President. If it is, the President has immunity, and the president has _very_ broad powers.
This is a misleading partial quotation. In the context of what they were saying, the president has the presumption of immunity, but it is not guaranteed. They specifically remanded the issue of Trump trying to get Pence to break the law to the lower courts to decide whether there was immunity. They did not say there was blanket immunity.
The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of in- trusion on the authority and functions of the Executive Branch.
Sure, but take a look at what I posted, and then the proceeding sentences:
> Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification pro- ceeding thus involve official conduct, and Trump is at least presump- tively immune from prosecution for such conduct.
I don't see any reading from that where Trump doesn't have blanket immunity. They stopped just barely short of saying so, with a clear implication of what they believe.
Certifying the vote is an official responsibility of the VP, and Trump was talking about that responsibility. They are not allowed to consider motives, only whether Trump talking to Pence about certification is within his official powers.
I would be very, very surprised if a lower court was able to find that the conduct was not in an official function. There's not a lot of room here once you take out whether the motives align with a presidential function.
I don't understand, just read the next two paragraphs. They say he doesn't have blanket immunity, and his presumptive immunity can be pierced, and explicitly sent the case back to the lower court to gather facts and decide whether he has immunity in this instance. All three of those points are not blanket immunity.
If you can't enter private comms into evidence, all a president need do is privately communicate the disappearance of someone, domestic or foreign, and that evidence would be barred from any possible court cases.
Of course, you could still impeach, but no criminal prosecution could occur. If you're 35, at worst (legally) you'd lose out on your remaining term.
The implications of this ruling are absurd, and rife for abuse, should one decide to go rouge.
"Distinguishing the President’s official actions from his unofficial ones can be difficult."
-SCOTUS
Good on you!
I’m not saying it should be done, but that’s the reductio ad absurdium this decision leaves us with. The aspiring despot’s toolbox has been converted into a full-blown machine shop.
I'm sure that's there's a handful, but it's not what I'd consider even a miniscule population doing so.
But what would be more fun is for the current Supreme Court to adopt the “emanations from penumbras” philosophy of judging, and do that for a couple of decades.
With how things shaped up, the innate de jure power struggle should have been "The People <> Legislative <> Judicial <> Executive <> Corporations"
We're still paying the price, as the Lochner era was incredibly myopic.
> But what would be more fun is for the current Supreme Court to adopt the “emanations from penumbras” philosophy of judging, and do that for a couple of decades.
Let’s see what “emanations from penumbras” we can find in the contract clause, second amendment, tenth amendment, etc. If only conservatives had the sense to use Roe as a template for how to judging should work.
Since you've been doing it repeatedly, as well as breaking the site guidelines many other threads, as well as using HN primarily for political battle, I've banned the account.
For clarity: no, that's not because of your views—it's because you're expressing your views in ways that are egregiously breaking HN's rules. Many other users who share your views have no problem expressing them within the site guidelines, and that's completely fine.
If you don't want to be banned, you're welcome to email [email protected] and give us reason to believe that you'll follow the rules in the future. They're here: https://news.ycombinator.com/newsguidelines.html.
I propose the Supreme Court be reconstituted such that for each case a panel of judges from the appellate courts is chosen by lot. They hear that case, write their opinion, and then go back to that work. New case, new lot.
Having a permanent bench of judicial oligarchs made sense before telecommunication. It doesn’t anymore. Every ancient democracy used randomness to control corruption. I think it’s time we took a lesson from them.
(Note: this could be done by statute. How the supreme Court is constituted is entirely left to Congress.)
[1] https://constitution.congress.gov/constitution/article-3/