The Supreme Court Is About to Display Its Power Imbalance Again

[Vosem]

A military-less, supposedly apolitical institution of philosopher god-kings which only has confidence from one-in-four Americans is not bound to last. If they want to strike down these laws, they can, but that doesn't automatically mean the laws won't be enforced regardless. Andrew Jackson ignored the court and so can Biden, and I hope he does exactly that.

No, Jackson didn't. This is a myth invented decades after the fact by noted weird loser propagandist Horace Greeley; in fact the court's ruling in Worcester was followed to the tee. The court will continue to rule so long as it has the confidence of the Senate (which is elected by Americans), and it seems quite difficult to imagine the court actually losing the Senate's confidence anytime in the near future.

[Vosem]

A military-less, supposedly apolitical institution of philosopher god-kings which only has confidence from one-in-four Americans is not bound to last. If they want to strike down these laws, they can, but that doesn't automatically mean the laws won't be enforced regardless. Andrew Jackson ignored the court and so can Biden, and I hope he does exactly that.

No, Jackson didn't. This is a myth invented decades after the fact by noted weird loser propagandist Horace Greeley; in fact the court's ruling in Worcester was followed to the tee. The court will continue to rule so long as it has the confidence of the Senate (which is elected by Americans), and it seems quite difficult to imagine the court actually losing the Senate's confidence anytime in the near future.

Why the Senate in particular?

New judges are confirmed with the advice and consent of the Senate, so the makeup of the American federal judiciary tends to reflect that of the Senate (with a substantial lag and also some randomness effect mixed in). In the past Senates have usually been successful at pressuring Presidents to nominate someone they would approve of (consider Nixon appointing Blackmun, or Reagan appointing Kennedy, or Bush and Souter -- one could provocatively even say something like "Obama and Gorsuch" here), and at the level of lower courts individual Senators virtually always have a greater interest in who their local federal judge is than the President has, so it is decently common for Senators to negotiate with the White House by offering support for legislative priorities in exchange for friendly judicial nominations.

Court-packing would require an act of Congress, for which the House is also necessary, but ultimately any actual act of court-packing would be installing Justices approved by the Senate.

I think any theory that the current Supreme Court majority is likely to be ineffectual or short-lived rests on a theory of a large and long-lasting liberal Senate advantage coming in the near future, which seems extremely unlikely.

[Vosem]

A military-less, supposedly apolitical institution of philosopher god-kings which only has confidence from one-in-four Americans is not bound to last. If they want to strike down these laws, they can, but that doesn't automatically mean the laws won't be enforced regardless. Andrew Jackson ignored the court and so can Biden, and I hope he does exactly that.

No, Jackson didn't. This is a myth invented decades after the fact by noted weird loser propagandist Horace Greeley; in fact the court's ruling in Worcester was followed to the tee. The court will continue to rule so long as it has the confidence of the Senate (which is elected by Americans), and it seems quite difficult to imagine the court actually losing the Senate's confidence anytime in the near future.

Why the Senate in particular?

New judges are confirmed with the advice and consent of the Senate, so the makeup of the American federal judiciary tends to reflect that of the Senate (with a substantial lag and also some randomness effect mixed in). In the past Senates have usually been successful at pressuring Presidents to nominate someone they would approve of (consider Nixon appointing Blackmun, or Reagan appointing Kennedy, or Bush and Souter -- one could provocatively even say something like "Obama and Gorsuch" here), and at the level of lower courts individual Senators virtually always have a greater interest in who their local federal judge is than the President has, so it is decently common for Senators to negotiate with the White House by offering support for legislative priorities in exchange for friendly judicial nominations.

Court-packing would require an act of Congress, for which the House is also necessary, but ultimately any actual act of court-packing would be installing Justices approved by the Senate.

I think any theory that the current Supreme Court majority is likely to be ineffectual or short-lived rests on a theory of a large and long-lasting liberal Senate advantage coming in the near future, which seems extremely unlikely.

I understand all that and I think so does anybody capable of using this forum, but that's being discussed here is a question of legitimacy rather than formalities within the present system. You'd do well not to get complacent about that, I think.

I am less than convinced that this is a real issue. In US history, the Court has only actually lost legitimacy on two occasions, in the 1850s and 1930s (...arguably only in the 1850s, actually; the 'switch in time' might be counted as an internal shift to preserve legitimacy and also the most significant anti-New Deal case, Schechter, was never overturned). Both of those cases were followed by enormous senatorial majorities (greater than two-thirds) remaking the Court to their liking.

But when the Court has embraced a position which is held by only a minority of public opinion, but the will to fight its decision is not found in the Senate (the seminal decision here being Loving, which was initially considered very extreme relative to public opinion), then normally the rest of the political system ends up eventually following it to its new position.

I think a decades-long fight for control of the Supreme Court, along the lines of the one the Federalist Society waged after 1982, is a possible course of action for progressives, but this would buttress the court's legitimacy, not overturn it. Otherwise the possibilities are either winning a truly enormous majority or (and while I think even the conservatives on the forum would disagree with me here, I think this is the likeliest course of action) accepting significant changes to the small-c constitution in the 2020s as a fait accompli and moving on to other issues, much as the organizations and people that fought the Civil Rights Movement did not actually leave politics -- or even necessarily lose power -- but totally gave up on trying to fight desegregation or equal rights. (Or, if you have a taste for conspiracies, continued doing this covertly, but certainly gave up on positively fighting for racial segregation as an explicit demand).

[Vosem]

A military-less, supposedly apolitical institution of philosopher god-kings which only has confidence from one-in-four Americans is not bound to last. If they want to strike down these laws, they can, but that doesn't automatically mean the laws won't be enforced regardless. Andrew Jackson ignored the court and so can Biden, and I hope he does exactly that.

No, Jackson didn't. This is a myth invented decades after the fact by noted weird loser propagandist Horace Greeley; in fact the court's ruling in Worcester was followed to the tee. The court will continue to rule so long as it has the confidence of the Senate (which is elected by Americans), and it seems quite difficult to imagine the court actually losing the Senate's confidence anytime in the near future.

Why the Senate in particular?

New judges are confirmed with the advice and consent of the Senate, so the makeup of the American federal judiciary tends to reflect that of the Senate (with a substantial lag and also some randomness effect mixed in). In the past Senates have usually been successful at pressuring Presidents to nominate someone they would approve of (consider Nixon appointing Blackmun, or Reagan appointing Kennedy, or Bush and Souter -- one could provocatively even say something like "Obama and Gorsuch" here), and at the level of lower courts individual Senators virtually always have a greater interest in who their local federal judge is than the President has, so it is decently common for Senators to negotiate with the White House by offering support for legislative priorities in exchange for friendly judicial nominations.

Court-packing would require an act of Congress, for which the House is also necessary, but ultimately any actual act of court-packing would be installing Justices approved by the Senate.

I think any theory that the current Supreme Court majority is likely to be ineffectual or short-lived rests on a theory of a large and long-lasting liberal Senate advantage coming in the near future, which seems extremely unlikely.

I understand all that and I think so does anybody capable of using this forum, but that's being discussed here is a question of legitimacy rather than formalities within the present system. You'd do well not to get complacent about that, I think.

I am less than convinced that this is a real issue. In US history, the Court has only actually lost legitimacy on two occasions, in the 1850s and 1930s (...arguably only in the 1850s, actually; the 'switch in time' might be counted as an internal shift to preserve legitimacy and also the most significant anti-New Deal case, Schechter, was never overturned). Both of those cases were followed by enormous senatorial majorities (greater than two-thirds) remaking the Court to their liking.

But when the Court has embraced a position which is held by only a minority of public opinion, but the will to fight its decision is not found in the Senate (the seminal decision here being Loving, which was initially considered very extreme relative to public opinion), then normally the rest of the political system ends up eventually following it to its new position.

I think a decades-long fight for control of the Supreme Court, along the lines of the one the Federalist Society waged after 1982, is a possible course of action for progressives, but this would buttress the court's legitimacy, not overturn it. Otherwise the possibilities are either winning a truly enormous majority or (and while I think even the conservatives on the forum would disagree with me here, I think this is the likeliest course of action) accepting significant changes to the small-c constitution in the 2020s as a fait accompli and moving on to other issues, much as the organizations and people that fought the Civil Rights Movement did not actually leave politics -- or even necessarily lose power -- but totally gave up on trying to fight desegregation or equal rights. (Or, if you have a taste for conspiracies, continued doing this covertly, but certainly gave up on positively fighting for racial segregation as an explicit demand).

What do you mean here?  Everyone eventually accepting local control of abortion?  Gun control going away as a partisan issue?  The strong form of the independent state legislature stuff is practically an existential threat to the modern left, so I can't see them just moving on from that.

Abortion and guns are actually two of the issue areas I find Vosem's prediction LEAST implausible on. Conversely I think the Court's hostility to federal regulation concerning the environment is going to become more and more salient going forward. (The IRA basically already overturned West Virginia v. EPA or, at least, codified Massachusetts.)

What I mean is almost the reverse of this. I can't imagine Democrats giving up on abortion given the present state of, and trends in, public opinion. (Guns are an issue where they're really out-of-step with public opinion, but at the same time I think it's an issue that plays well in their heartlands and with their megadonors, such that I don't see it ever being outright abandoned. Also, I don't think I'm very confident as to why Americans have rapidly become so much more pro-gun since the 1990s, in defiance to everywhere else in the world, and without understanding that phenomenon well I'm hesitant to say the trend could never reverse, although I don't think it will in the immediate future).

What I mean is that a federal 'small-government' philosophy in which the power to regulate is significantly curtailed and handed over to Congress, along with whatever changes are enacted to the electoral system itself (like reapportionment by CVAP) are likely to ultimately be accepted by the Democrats as a fait accompli. It's really difficult for me to imagine "bring back the administrative state" as a policy tenet for however many decades it would take progressives to bring back the Supreme Court, and I think one of the likely effects of being forced to compete in red states for Senate control (...and, if it is enacted, measures like reapportionment by CVAP) will be to force the Democratic Party rightwards to compete for power. (This seems similar to the fate of pro-segregationist politics in the late 1960s: progressives themselves will remain in office/power, as many segregationists did, and perhaps maintain some of the same goals, but a very particular kind of progressivism will die unless the Court can be turned to a different path relatively quickly.

(Put another way, I think Democrats will continue arguing for greater protections for the environment, but I think at some point they'll stop saying "give more power to the EPA". I've written about this extensively before, but I also kind of pessimistically think that a viable alternative to administrative-state-ism is militarism, since the military is likely to be given much more leeway by the contemporary right and it will ultimately be noticed that it can be made a useful tool for regulating society.)