Legal Conservatives Now Want to Move Beyond Originalism

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Sorry, I'd forgotten the details of our prior conversations about Stephenson. He's an interesting guy, definitely one of the most nuanced thinkers in the broader technolibertarian intellectual sphere, and I really need to get around to reading Termination Shock.

I still think it's more than possible, even if you're correct that the wave of generalized anti-state sentiment is still building, that it crests later in the twenty-first century much as, again, pro-totalitarian sentiment crested (thank God) in the twentieth. This could be (again, assuming for the sake of argument that you're correct about the current state of play) because free-market solutions to climate change prove inadequate, or because whatever entities effect them become so powerful and so trusted that they supplant the state Mr. Lee's Greater Hong Kong-style, or some combination of both, but I'd be more surprised if some version if it didn't happen then if it did. I'd consider a friendly wager with you on this if we could set conditions we agreed on.

[politicallefty]

I don't think the anti-statist paradigm is over; I think the long-term effect of COVID has been to strengthen it. The Court as currently composed is likely to bring down a decision similar to Gundy which would massively strengthen a non-delegation doctrine; Trump was the first President in a long time to fight growing regulation semi-successfully (in spite of his own disinterest in doing so, purely as a result of intellectual shifts on the right), and the most successful up-and-coming politicians (of whom DeSantis is the most obvious) are those who made their names fighting actions taken against COVID; "the government's role in protecting public health is broadly illegitimate" is a hugely radical position that would never have occurred to Reagan or GWB, and even 10 years ago was quite fringe.

BBB could've passed; more generally, the polls which forecast a Democratic landslide in 2020 were indeed forecasting a new paradigm. But that just didn't actually happen, and inasmuch as the paradigm feels different, it is in that anti-statist forces keep getting more extreme really quickly.

(I think there was a real paradigm shift between 2009-2010; after this you had politicians explicitly campaigning on cutting their own districts' subsidies, unheard of in earlier years, and you saw an enormous decline in the success of "good government" appeals on the right as a large plurality, or even a majority, started seeing this as not necessarily desirable. This is actually a pretty different paradigm from Reaganism in many ways -- it's tough to fight for school prayer when you think schools should have less say in what children think, or to fight for mandatory seat-belts when you think that the government should not ban things for being dangerous.)

(And I think this paradigm bleeds over onto the left, too: while it is true that the institutional Democratic Party has gotten more pro-spending over the past 15 years -- though this feels substantially like a reaction to a more right-wing court system which is ever less likely to let large reforms happen, NFIB being probably the last case of its type -- most of the grassroots movements seem to be about things like curtailing police powers, weakening drug laws, or weakening social stigma -- itself a form of meta-governance -- against particular minorities, and to source some of its fundamental opinions from the libertarian right.)

I think you're picking and choosing various aspects of anti-statist actions. I'm not saying we're in a pro-state or anti-state paradigm, but something more complex (at least right now). (My main point was that the anti-statist Reagan paradigm is over.)

First of all, I would not use SCOTUS as a proxy for society as a whole. It's well to the right of the general public. In terms of regulations, it's more of a what and where situation. The right is generally opposed to economic regulations. That's been true for a very long time. However, Trump and the right as a whole, have not been afraid of using government regulations to impose their own values under the larger culture war banner. That goes into my second point. DeSantis was part of a very small group of governors in terms of his response (or rather, lack thereof) to COVID. I think any characterization of those individuals as anti-statist is only incidental to their motivation as cultural warriors taking up the mantle as contrarians. Right-wing governors are not afraid of using the powers of the state to achieve their goals.

To this day, I have a hard time figuring out what happened in 2020. Trump's personality and presence loomed so large that I think most of the issues (apart from COVID) were nearly irrelevant. I would largely agree with you that anti-statist forces are getting more extreme on an issue-by-issue basis, but they aren't necessarily increasing in number and on some issues, pro-statist forces are getting more extreme. Look at the abortion debate for an example of the latter (at least in terms of legislators).

The left is certainly more pro-spending than it has been in recent years, probably the most since the 1960s-1970s. I do not think that is a result of the rightward movement of the courts. Apart from Bush v. Gore and Citizens United, the courts were largely an afterthought for the left until the marriage equality debate worked its way there (the passage of Prop 8 changed everything). NFIB was fairly standalone considering the policy implications and the rare major Commerce Clause decision. I do think the past 6-7 years have affected how the left views the courts and the inability to use them to effect change.

My understanding is that it is indeed true, at least statistically, that by the 1970s Douglas was so far "to the left", or so deep in his own original philosophy, that the difference between him and the other left-wing members was as large or larger than the difference between the left and the right. Martin-Quinn scores suggest that before Rehnquist joined the Court, the difference between Douglas and the next-most-left-wing Justice -- Brennan -- was indeed larger than the difference between Brennan and the rightmost Justice, Burger: in fact substantially so.

My point was that how far left Douglas was has no relevance to how far left Brennan was and it wouldn't make the latter a centrist. You implied that just because Gorsuch is so far to the right that Kavanaugh is a centrist or centre-right. Justice Gorsuch is probably one of the most idiosyncratic Justices we've seen in many years. Bostock is probably the most prominent opinion, but there are quite a few others (opinions, concurrences, and dissents).

Douglas did seem to move further to the left in the 1970s even as the Court shifted right. He outlasted his major allies on the Warren Court (Warren himself, Black, Goldberg, and Fortas). You also have to consider as the composition of a Court changes, so do the cases that are granted cert. That's what makes the current Court especially right-wing. Liberals alone no longer have the ability to join together and exercise the Rule of Four (let alone the times when Justice Kennedy would join the liberals).

[Vosem]

Sorry, I'd forgotten the details of our prior conversations about Stephenson. He's an interesting guy, definitely one of the most nuanced thinkers in the broader technolibertarian intellectual sphere, and I really need to get around to reading Termination Shock.

I still think it's more than possible, even if you're correct that the wave of generalized anti-state sentiment is still building, that it crests later in the twenty-first century much as, again, pro-totalitarian sentiment crested (thank God) in the twentieth. This could be (again, assuming for the sake of argument that you're correct about the current state of play) because free-market solutions to climate change prove inadequate, or because whatever entities effect them become so powerful and so trusted that they supplant the state Mr. Lee's Greater Hong Kong-style, or some combination of both, but I'd be more surprised if some version if it didn't happen then if it did. I'd consider a friendly wager with you on this if we could set conditions we agreed on.

I think I generally agree that the wave of anti-state sentiment will crest at some point; I just think we're nowhere near there yet. The simplest way that this could happen is through the emergence of a crisis which can actually only be solved through very large-scale state action; either a total war, along the lines of the World Wars (I think this is very unlikely over the next century, if only because of the general aging of society, but it is probably inevitable eventually, and cannot actually be ruled out for our times), or a pandemic larger by an order of magnitude than COVID (these only come about once every few centuries -- 1918 was 2x the size of COVID, not 10x -- but I think most of the explanations for COVID's origins suggest they should be getting likelier). I don't think climate change will cause this even under very pessimistic assumptions, though -- by its nature climate change is a slow-moving crisis, and it's difficult to think of natural disasters that have caused lasting impacts to societal trust, even when they have been very severe.

Another possibility -- and this one comes from vaguely right-wing libertarian circles -- is that the contemporary rise in anti-government sentiment is really a covert form of pro-elderly identity politics, which intends to redistribute resources in a low-growth world from younger to older demographics; thus spending cuts that are proposed by politicians are virtually never forms of cuts that would impact older people, and are much more likely to impact the young. In this model, once enough has been redistributed from the young to the old, anti-government sentiment fades away 'naturally'. I think something like this might be happening in certain places (age polarization in the UK seems much stronger than it is in the US, and something like this might be the reason?), but it seems like a poor explanation for what is happening in the US (for example, why should every rise in anti-government sentiment be preceded by a rise in pro-gun sentiment?). Still, it's possible that cuts to certain kinds of social services would cause sharp shocks to anti-government sentiment; at least the late-2000s/early-2010s GOP was cognizant of this risk when considering their SS privatization plans, but I can imagine a more ideological organization losing track of this, as it has lost track of other political pitfalls.

(Lastly, while a consistent anti-state ideology would also oppose other entities coming to behave like a state, in practice it seems kind of obvious that a society in which corporations -- or religious congregations, which I think might be underrated in their tendency to evolve in this direction -- start behaving in state-like ways you could see a shift in public sentiment towards pro-state visions to counter this. I think this is really far away in the US, though one could create an argument that the tendency of certain kinds of elite conservatives towards a statist form of 'populism' is a reaction to universities behaving in more state-like ways and exerting more direct control over students -- which above a certain socioeconomic level means everyone for at least 4 years of their life, and often longer).

I guess I'd consider a friendly wager, but I think we've both been talking in terms of decades, which makes it difficult to maintain something like this and opens the possibility of both of us being 'not even wrong'. I'd be interested in hearing suggestions for what the terms of such a bet might be.

[Vosem]

I think you're picking and choosing various aspects of anti-statist actions. I'm not saying we're in a pro-state or anti-state paradigm, but something more complex (at least right now). (My main point was that the anti-statist Reagan paradigm is over.)

Right. I don't really think it is. I don't think future historiography will see us as currently being in a meaningfully different political economy than the Reagan era. (I could see 2009-2010, with the passage of the ACA and a huge shift in public opinion away from things like passing the ACA, being seen as a turning point, but I doubt that it'll be seen as the turning point). I think, in the near future, public policy shifts at the federal level in an anti-statist direction are far likelier than the reverse.

Moreover, the reason a large shift hasn't happened yet is Alito defecting from the conservative block in Gundy, and his own reasoning was simply that that case being the one that hugely changes the federal government would be a bad look, because it would've involved a sex offender winning a lighter punishment under a technicality. The normal moderates, Roberts/Kavanaugh, were quite willing to do so even in a 'bad look' case.

First of all, I would not use SCOTUS as a proxy for society as a whole. It's well to the right of the general public. In terms of regulations, it's more of a what and where situation. The right is generally opposed to economic regulations. That's been true for a very long time. However, Trump and the right as a whole, have not been afraid of using government regulations to impose their own values under the larger culture war banner. That goes into my second point. DeSantis was part of a very small group of governors in terms of his response (or rather, lack thereof) to COVID. I think any characterization of those individuals as anti-statist is only incidental to their motivation as cultural warriors taking up the mantle as contrarians. Right-wing governors are not afraid of using the powers of the state to achieve their goals.

This whole paragraph has causation going in the opposite direction from my point. I know that the Supreme Court is well to the right of public opinion; my point is that public opinion tends to move to match the Supreme Court, and not the other way around. The classic example here is that Loving, the decision legalizing interracial marriage, was poisonously unpopular when handed down, but that the public eventually agreed with the Court on it; moreover, while opposition to civil rights decisions was often regional in nature, it pretty much always melted away.

(This is because advocacy organizations often end up tailoring their language to what will do best at the Supreme Court, resulting in accidental constant propaganda in favor of the correctness of Supreme Court logic, even if specific decisions might get demonized by name.)

Lastly, yes, DeSantis of course wanted to be seen as a 'culture warrior', but the positions required for culture warriors keep getting more and more anti-statist over time. You are suggesting that he accidentally came off as anti-statist in his desire to be seen as a culture warrior, but I think the latter directly flows from the former and that their separation borders on impossible.

To this day, I have a hard time figuring out what happened in 2020. Trump's personality and presence loomed so large that I think most of the issues (apart from COVID) were nearly irrelevant. I would largely agree with you that anti-statist forces are getting more extreme on an issue-by-issue basis, but they aren't necessarily increasing in number and on some issues, pro-statist forces are getting more extreme. Look at the abortion debate for an example of the latter (at least in terms of legislators).

The left is certainly more pro-spending than it has been in recent years, probably the most since the 1960s-1970s. I do not think that is a result of the rightward movement of the courts. Apart from Bush v. Gore and Citizens United, the courts were largely an afterthought for the left until the marriage equality debate worked its way there (the passage of Prop 8 changed everything). NFIB was fairly standalone considering the policy implications and the rare major Commerce Clause decision. I do think the past 6-7 years have affected how the left views the courts and the inability to use them to effect change.

I think NFIB was an extremely weird stand-alone decision whose logic -- both legal logic and extra-legal practical logic -- are both very unlikely to be repeated. Even in the context of 2012 it feels like a very strange throwback. I think one of the ways that courts have gradually grown more powerful over the course of the 2010s involves greater willingness to stop particular executive actions on the basis of technicalities, it being possible to find a technicality on which to stop decisions for a really large array of actions. Trump's citizenship question case set a precedent here that was actually pretty bad for...well...statists, and you're seeing an increase in cases (for example, having to do with Biden's border security policies) that don't directly cite it but maintain its logic, and which would've been unlikely to be heard several decades ago.

I think the left's turn in favor of greater spending is basically likely to come to nothing, and that under the influence of a right-wing judiciary and low-trust body politic it will end up moving right on regulatory/spending questions because there won't be room where it currently is to exist at all.

My understanding is that it is indeed true, at least statistically, that by the 1970s Douglas was so far "to the left", or so deep in his own original philosophy, that the difference between him and the other left-wing members was as large or larger than the difference between the left and the right. Martin-Quinn scores suggest that before Rehnquist joined the Court, the difference between Douglas and the next-most-left-wing Justice -- Brennan -- was indeed larger than the difference between Brennan and the rightmost Justice, Burger: in fact substantially so.

My point was that how far left Douglas was has no relevance to how far left Brennan was and it wouldn't make the latter a centrist. You implied that just because Gorsuch is so far to the right that Kavanaugh is a centrist or centre-right. Justice Gorsuch is probably one of the most idiosyncratic Justices we've seen in many years. Bostock is probably the most prominent opinion, but there are quite a few others (opinions, concurrences, and dissents).

Douglas did seem to move further to the left in the 1970s even as the Court shifted right. He outlasted his major allies on the Warren Court (Warren himself, Black, Goldberg, and Fortas). You also have to consider as the composition of a Court changes, so do the cases that are granted cert. That's what makes the current Court especially right-wing. Liberals alone no longer have the ability to join together and exercise the Rule of Four (let alone the times when Justice Kennedy would join the liberals).

No. Gorsuch and Kavanaugh are about equally right-wing as measured by things like Martin-Quinn scores (or at least they were back in 2019), but my point is that the kinds of cases they defect from the right on are incredibly different and basically non-overlapping, to the point that -- although I think it's shrunk a lot since the left has been unable to execute Rule of Four -- when Ginsburg was on the Court the difference between them was as large as between a left-wing Justice and a right-wing Justice. This is because the kinds of right-wing that they are are really different.

Douglas being where he was did not make Brennan a centrist. There is no reason that the biggest ideological fracture on the Court could not be between one member and all of the others. Suppose for a moment that two of the current liberals are replaced by conservatives, leaving just one liberal standing. Surely the gap between that judge and the most moderate conservative would be the biggest gap on the Court, right -- even without making that person a centrist? Similarly, the biggest gap being between Douglas and Brennan wouldn't make Brennan a centrist. This is pretty elementary stuff.

[Skill and Chance]

I think you're picking and choosing various aspects of anti-statist actions. I'm not saying we're in a pro-state or anti-state paradigm, but something more complex (at least right now). (My main point was that the anti-statist Reagan paradigm is over.)

Right. I don't really think it is. I don't think future historiography will see us as currently being in a meaningfully different political economy than the Reagan era. (I could see 2009-2010, with the passage of the ACA and a huge shift in public opinion away from things like passing the ACA, being seen as a turning point, but I doubt that it'll be seen as the turning point). I think, in the near future, public policy shifts at the federal level in an anti-statist direction are far likelier than the reverse.

Moreover, the reason a large shift hasn't happened yet is Alito defecting from the conservative block in Gundy, and his own reasoning was simply that that case being the one that hugely changes the federal government would be a bad look, because it would've involved a sex offender winning a lighter punishment under a technicality. The normal moderates, Roberts/Kavanaugh, were quite willing to do so even in a 'bad look' case.

First of all, I would not use SCOTUS as a proxy for society as a whole. It's well to the right of the general public. In terms of regulations, it's more of a what and where situation. The right is generally opposed to economic regulations. That's been true for a very long time. However, Trump and the right as a whole, have not been afraid of using government regulations to impose their own values under the larger culture war banner. That goes into my second point. DeSantis was part of a very small group of governors in terms of his response (or rather, lack thereof) to COVID. I think any characterization of those individuals as anti-statist is only incidental to their motivation as cultural warriors taking up the mantle as contrarians. Right-wing governors are not afraid of using the powers of the state to achieve their goals.

This whole paragraph has causation going in the opposite direction from my point. I know that the Supreme Court is well to the right of public opinion; my point is that public opinion tends to move to match the Supreme Court, and not the other way around. The classic example here is that Loving, the decision legalizing interracial marriage, was poisonously unpopular when handed down, but that the public eventually agreed with the Court on it; moreover, while opposition to civil rights decisions was often regional in nature, it pretty much always melted away.

(This is because advocacy organizations often end up tailoring their language to what will do best at the Supreme Court, resulting in accidental constant propaganda in favor of the correctness of Supreme Court logic, even if specific decisions might get demonized by name.)

Lastly, yes, DeSantis of course wanted to be seen as a 'culture warrior', but the positions required for culture warriors keep getting more and more anti-statist over time. You are suggesting that he accidentally came off as anti-statist in his desire to be seen as a culture warrior, but I think the latter directly flows from the former and that their separation borders on impossible.

To this day, I have a hard time figuring out what happened in 2020. Trump's personality and presence loomed so large that I think most of the issues (apart from COVID) were nearly irrelevant. I would largely agree with you that anti-statist forces are getting more extreme on an issue-by-issue basis, but they aren't necessarily increasing in number and on some issues, pro-statist forces are getting more extreme. Look at the abortion debate for an example of the latter (at least in terms of legislators).

The left is certainly more pro-spending than it has been in recent years, probably the most since the 1960s-1970s. I do not think that is a result of the rightward movement of the courts. Apart from Bush v. Gore and Citizens United, the courts were largely an afterthought for the left until the marriage equality debate worked its way there (the passage of Prop 8 changed everything). NFIB was fairly standalone considering the policy implications and the rare major Commerce Clause decision. I do think the past 6-7 years have affected how the left views the courts and the inability to use them to effect change.

I think NFIB was an extremely weird stand-alone decision whose logic -- both legal logic and extra-legal practical logic -- are both very unlikely to be repeated. Even in the context of 2012 it feels like a very strange throwback. I think one of the ways that courts have gradually grown more powerful over the course of the 2010s involves greater willingness to stop particular executive actions on the basis of technicalities, it being possible to find a technicality on which to stop decisions for a really large array of actions. Trump's citizenship question case set a precedent here that was actually pretty bad for...well...statists, and you're seeing an increase in cases (for example, having to do with Biden's border security policies) that don't directly cite it but maintain its logic, and which would've been unlikely to be heard several decades ago.

I think the left's turn in favor of greater spending is basically likely to come to nothing, and that under the influence of a right-wing judiciary and low-trust body politic it will end up moving right on regulatory/spending questions because there won't be room where it currently is to exist at all.

My understanding is that it is indeed true, at least statistically, that by the 1970s Douglas was so far "to the left", or so deep in his own original philosophy, that the difference between him and the other left-wing members was as large or larger than the difference between the left and the right. Martin-Quinn scores suggest that before Rehnquist joined the Court, the difference between Douglas and the next-most-left-wing Justice -- Brennan -- was indeed larger than the difference between Brennan and the rightmost Justice, Burger: in fact substantially so.

My point was that how far left Douglas was has no relevance to how far left Brennan was and it wouldn't make the latter a centrist. You implied that just because Gorsuch is so far to the right that Kavanaugh is a centrist or centre-right. Justice Gorsuch is probably one of the most idiosyncratic Justices we've seen in many years. Bostock is probably the most prominent opinion, but there are quite a few others (opinions, concurrences, and dissents).

Douglas did seem to move further to the left in the 1970s even as the Court shifted right. He outlasted his major allies on the Warren Court (Warren himself, Black, Goldberg, and Fortas). You also have to consider as the composition of a Court changes, so do the cases that are granted cert. That's what makes the current Court especially right-wing. Liberals alone no longer have the ability to join together and exercise the Rule of Four (let alone the times when Justice Kennedy would join the liberals).

No. Gorsuch and Kavanaugh are about equally right-wing as measured by things like Martin-Quinn scores (or at least they were back in 2019), but my point is that the kinds of cases they defect from the right on are incredibly different and basically non-overlapping, to the point that -- although I think it's shrunk a lot since the left has been unable to execute Rule of Four -- when Ginsburg was on the Court the difference between them was as large as between a left-wing Justice and a right-wing Justice. This is because the kinds of right-wing that they are are really different.

Douglas being where he was did not make Brennan a centrist. There is no reason that the biggest ideological fracture on the Court could not be between one member and all of the others. Suppose for a moment that two of the current liberals are replaced by conservatives, leaving just one liberal standing. Surely the gap between that judge and the most moderate conservative would be the biggest gap on the Court, right -- even without making that person a centrist? Similarly, the biggest gap being between Douglas and Brennan wouldn't make Brennan a centrist. This is pretty elementary stuff.

I agree about Gorsuch being almost as different from the other conservatives as he is from the liberals and I do think legal conservatives will win the argument against the administrative state decisively as that is where they are most united. 

However, I think you may be significantly overestimating how long the conservative supermajority SCOTUS will last.  Given recent senate results, the likelihood that Dems get a seat back by the end of the decade is reasonably high.  The Class I Dem Senate apocalypse has been delayed long enough that they can reasonably make up the seats elsewhere in the next Republican midterm.  As it stands, they are only down to 48 if they lose all of their remaining 2X Trump seats and gain nothing.  Then Collins, Tillis and the weaker R incumbent in Alaska all come up in 2026.  Control could reasonably be won back in just 2 years.  So unless there is a mass SCOTUS retirement for a Republican president in 2025, the long term is very up in the air. 

It's also unclear that Roberts even wants to retire when Republicans control the process, particularly if Trump is going to be president again.  However, if Roberts' seat is the one Dems pick up in the medium run, I doubt much would change on core scope of the federal government questions.  It would be huge for Native Americans and criminal defendants, though.     

[Donerail]

Vosem also significantly overstating the likelihood of a blockbuster nondelegation ruling — last couple years have shown things are moving in another direction. Court is using MQD to accomplish the same ends on a case-by-case basis, which helpfully avoids the need to actually spell out what nondel requires. Gorsuch will keep writing concurrences insisting that MQD = nondel by another name, but the core group on the Court seems to have adopted MQD as its preferred method to invalidate executive actions it doesn't like.

[politicallefty]

Right. I don't really think it is. I don't think future historiography will see us as currently being in a meaningfully different political economy than the Reagan era. (I could see 2009-2010, with the passage of the ACA and a huge shift in public opinion away from things like passing the ACA, being seen as a turning point, but I doubt that it'll be seen as the turning point). I think, in the near future, public policy shifts at the federal level in an anti-statist direction are far likelier than the reverse.

Moreover, the reason a large shift hasn't happened yet is Alito defecting from the conservative block in Gundy, and his own reasoning was simply that that case being the one that hugely changes the federal government would be a bad look, because it would've involved a sex offender winning a lighter punishment under a technicality. The normal moderates, Roberts/Kavanaugh, were quite willing to do so even in a 'bad look' case.

As I said before, I think you can judge a political era based on how both sides play the game. The first two years of Clinton's term were largely an extension of the pre-Reagan era. Upon losing Congress in 1994, Clinton was very much playing the game on their terms. Clinton's 1996 SOTU and welfare reform were major concessions to that point. That's similar to Nixon and the New Deal Era still dictating the terms. I think whatever we have now is closer to some form of trench warfare in terms of the bigger issues.

This whole paragraph has causation going in the opposite direction from my point. I know that the Supreme Court is well to the right of public opinion; my point is that public opinion tends to move to match the Supreme Court, and not the other way around. The classic example here is that Loving, the decision legalizing interracial marriage, was poisonously unpopular when handed down, but that the public eventually agreed with the Court on it; moreover, while opposition to civil rights decisions was often regional in nature, it pretty much always melted away.

(This is because advocacy organizations often end up tailoring their language to what will do best at the Supreme Court, resulting in accidental constant propaganda in favor of the correctness of Supreme Court logic, even if specific decisions might get demonized by name.)

Lastly, yes, DeSantis of course wanted to be seen as a 'culture warrior', but the positions required for culture warriors keep getting more and more anti-statist over time. You are suggesting that he accidentally came off as anti-statist in his desire to be seen as a culture warrior, but I think the latter directly flows from the former and that their separation borders on impossible.

I don't agree with your first point at all. Loving was unique for a multitude of reasons. Most states never had or no longer had active anti-miscegenation statutes in 1967 and it was also a 9-0 decision uniting all ideologies on the Court during the Civil Rights Era. A decision like that is generally in line with MLK's quote regarding the arc of the moral universe. The Lochner era is the reason the Child Labor Amendment is still pending before the states. Furman was met with a rather quick response by the states and Roe speaks for itself. Congress also attempted to overturn Miranda through a statute. If you think we're going to see widespread acceptance of Dobbs, I'm willing to take that bet. You also should not confuse patience with inaction or complacency.

With respect to DeSantis, no, not accidentally anti-statist. He knows the game he is playing. Part of it is to be intentionally outrageous to garner attention and support, a necessary trait for culture warriors. I do not believe for a moment that he is anti-statist by nature. Florida isn't exactly some libertarian paradise. There are countless examples displaying his use of the powers of government to achieve policy ends. A small government conservative, he is not.

I think NFIB was an extremely weird stand-alone decision whose logic -- both legal logic and extra-legal practical logic -- are both very unlikely to be repeated. Even in the context of 2012 it feels like a very strange throwback. I think one of the ways that courts have gradually grown more powerful over the course of the 2010s involves greater willingness to stop particular executive actions on the basis of technicalities, it being possible to find a technicality on which to stop decisions for a really large array of actions. Trump's citizenship question case set a precedent here that was actually pretty bad for...well...statists, and you're seeing an increase in cases (for example, having to do with Biden's border security policies) that don't directly cite it but maintain its logic, and which would've been unlikely to be heard several decades ago.

I think the left's turn in favor of greater spending is basically likely to come to nothing, and that under the influence of a right-wing judiciary and low-trust body politic it will end up moving right on regulatory/spending questions because there won't be room where it currently is to exist at all.

I don't think you're wrong with respect to NFIB. The variable you mentioned without actually mentioning by name is Chief Justice Roberts. His colleagues to his right had very little issue with Trump's executive actions. Even then, Roberts was still far more deferential to Trump's executive actions compared to Biden's. That does not suggest a coherent legal thought. That suggests rank partisanship.

You seem to suggest that the left wants spending for its own sake. I think some of the major priorities of the left were contained within the initial BBB proposal (expansion of healthcare, paid leave, free college, etc). The left certainly isn't going to roll over and accept giving up on using government in the economic realm. Legislation may have to adapt, but that's all, unless you're suggesting you think the Court will attempt more extreme rulings. For example, do you think Americans as a whole would just roll over and accept it if the Supreme Court struck down Social Security, Medicare, and Medicaid?

No. Gorsuch and Kavanaugh are about equally right-wing as measured by things like Martin-Quinn scores (or at least they were back in 2019), but my point is that the kinds of cases they defect from the right on are incredibly different and basically non-overlapping, to the point that -- although I think it's shrunk a lot since the left has been unable to execute Rule of Four -- when Ginsburg was on the Court the difference between them was as large as between a left-wing Justice and a right-wing Justice. This is because the kinds of right-wing that they are are really different.

Douglas being where he was did not make Brennan a centrist. There is no reason that the biggest ideological fracture on the Court could not be between one member and all of the others. Suppose for a moment that two of the current liberals are replaced by conservatives, leaving just one liberal standing. Surely the gap between that judge and the most moderate conservative would be the biggest gap on the Court, right -- even without making that person a centrist? Similarly, the biggest gap being between Douglas and Brennan wouldn't make Brennan a centrist. This is pretty elementary stuff.

I totally agree with your first paragraph. We certainly agree that a reduced liberal minority has affected the Rule of Four and the overall caseload (and hence the direction of the Court). On the other hand though, consider the kinds of cases where Scalia and/or Thomas would join with the left for a bare majority. They were mostly criminal law and procedural cases, but the effects were certainly profound.

I think we might have lost track of each other with respect to your second paragraph. I think my point on that was in response to you mentioning Kavanaugh being a moderate and also with respect to ideological diversity. Kavanaugh is not a moderate. The ideological diversity of the Court is nothing compared to what we had during the Warren or Burger Courts. In some ways, Gorsuch almost seems like a much more conservative version of Justice Black. (Keep in mind that Justice Black was a First Amendment absolutist, yet was in dissent in Griswold.) A strict judicial philosophy appears more pronounced when one defies their typical ideological leanings.

[Vosem]

Vosem also significantly overstating the likelihood of a blockbuster nondelegation ruling — last couple years have shown things are moving in another direction. Court is using MQD to accomplish the same ends on a case-by-case basis, which helpfully avoids the need to actually spell out what nondel requires. Gorsuch will keep writing concurrences insisting that MQD = nondel by another name, but the core group on the Court seems to have adopted MQD as its preferred method to invalidate executive actions it doesn't like.

I don't think this contradicts what I was saying; since 2019 we've had 5 judges consistently in favor of a blockbuster non-delegation ruling, but I think there are substantial disagreements on specific details, and it often takes years for an appropriate case to filter up. It was four years between Clarence Thomas joining the Court and Lopez; three between Alito and Heller; and it's going to end up being at least four between Kavanaugh and an affirmative action decision (and I think there's no doubt we're getting one of those). Since there are more things the court has recently shifted on, we can expect a longer wait, probably.

MQD, which is movement towards a weak form of non-delegation, doesn't really contradict what I was saying.

I agree about Gorsuch being almost as different from the other conservatives as he is from the liberals and I do think legal conservatives will win the argument against the administrative state decisively as that is where they are most united.

You're overstating my point -- Gorsuch is very different from Kavanaugh/Roberts (especially the former). He isn't incredibly far from Thomas/Alito, who are themselves not incredibly far from Kavanaugh/Roberts -- but the differences add up.

However, I think you may be significantly overestimating how long the conservative supermajority SCOTUS will last.  Given recent senate results, the likelihood that Dems get a seat back by the end of the decade is reasonably high.  The Class I Dem Senate apocalypse has been delayed long enough that they can reasonably make up the seats elsewhere in the next Republican midterm.  As it stands, they are only down to 48 if they lose all of their remaining 2X Trump seats and gain nothing.  Then Collins, Tillis and the weaker R incumbent in Alaska all come up in 2026.  Control could reasonably be won back in just 2 years.  So unless there is a mass SCOTUS retirement for a Republican president in 2025, the long term is very up in the air.

You're understating my point, here! My argument is that Republicans typically control more states than Democrats (for example, 2020 was maybe a 1-out-of-3 election for Democrats, statistically, but they won only 25 states, and had more close calls than the GOP), so over time I think we can expect the court system to continue getting more conservative, not just stagnating, unless there is some kind of realignment (which can never be ruled out). More generally, without reform, the Supreme Court will reflect the usual Senate majority coalition.

(I think Republicans would gain a minimum of 4 seats, and probably more if they win the Presidency in 2024, such that Democrats would struggle to retake the Senate unless 2024 is a very narrow GOP victory and 2026/2028 are both Democratic landslides. That is a very specific sequence of events! Conversely, I think R+3 is near-guaranteed even with a Democratic victory, and it's difficult to imagine Democrats making net gains in 2026, at least, if 2024 is a victory).

I agree that 2022 throws such a narrative into question! It was a very good year for Democratic campaigning and competent targeting. I'd be surprised if that was sustainable enough to consistently overcome 'most states favor the GOP', though. Maybe it is if you want to argue that 2022 was a fundamentally new paradigm, but conventional wisdom is that many states had weird outcomes that are not terribly likely to hold.

It's also unclear that Roberts even wants to retire when Republicans control the process, particularly if Trump is going to be president again.  However, if Roberts' seat is the one Dems pick up in the medium run, I doubt much would change on core scope of the federal government questions.  It would be huge for Native Americans and criminal defendants, though.     

This part I agree with, though; Roberts seems kind of RBG-ish in that he's likely to be very picky in who he wants as POTUS when he retires and plausibly the sort of person he wants will never come. (Along these lines, Thomas has semi-seriously suggested he intends to die in office, as Scalia did before him).

I think the likeliest scenario is that the Senate will be GOP-controlled the overwhelming majority of the time, except after large Democratic landslides, and so if this happens while a Democrat is President the seat will simply be held open, perhaps for many years, until a Republican wins the Presidency. (And I think the second-likeliest scenario isn't 'Democrats figure out how to hold the Senate' -- much as 2022 made this seem likelier it still seems tough to believe in the medium- much less long-run -- but rather 'our current coalitions collapse and are replaced by something very different'. I wouldn't bet on that but I think the odds of it are underestimated.)