Who's more responsible for the decay of democracy in America?

[Vice President Christian Man]

?

[Ferguson97]

Who’s more responsible for house fires, arsonists or firefighters?

[Mad Deadly Worldwide Communist Gangster Computer God]

The party whose SCOTUS justices actually stole a presidential election in such a nakedly partisan way that David Souter didn't even want to bother serving along with those cretins anymore.

[MarkD]

The party whose SCOTUS justices actually stole a presidential election in such a nakedly partisan way that David Souter didn't even want to bother serving along with those cretins anymore.

In terms of quality, the worst Supreme Court decision ever was indeed Bush v. Gore (although that decision did not actually steal the election from Gore, it only stole from Gore his right to find out whether he actually won or lost).  But in terms of quantity, it's the liberal wing of the Supreme Court that has rendered far more activist decisions in the last 60 years. So I blame Supreme Court Justices of all ideological stripes, appointed by Presidents of both parties, for gradually destroying democracy in this country.

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

If you look solely at the judiciary the way MarkD does there's a strong argument for shared blame, but if you're also looking at the elected branches' abdication of their responsibility to seriously steward and govern this country, there's no question that the Republicans, especially in the past fifteen years or so, have done far worse. The only people who dispute this are those who dispute that democratic decline is occurring in America or those who dispute that America was or was supposed to be a democratic country in the first place.

[Mad Deadly Worldwide Communist Gangster Computer God]

The party whose SCOTUS justices actually stole a presidential election in such a nakedly partisan way that David Souter didn't even want to bother serving along with those cretins anymore.

In terms of quality, the worst Supreme Court decision ever was indeed Bush v. Gore (although that decision did not actually steal the election from Gore, it only stole from Gore his right to find out whether he actually won or lost).  But in terms of quantity, it's the liberal wing of the Supreme Court that has rendered far more activist decisions in the last 60 years. So I blame Supreme Court Justices of all ideological stripes, appointed by Presidents of both parties, for gradually destroying democracy in this country.

Nixon, Ford, Reagan, both the Bushes, and even Trump, all nominated justices that displeased the conservative base at one point or another. Earl Warren, who oversaw the greatest expansion of civil rights and liberty protections, was a Republican. Byron White, who dissented in Roe, was appointed by JFK.

Both the Rehnquist and Roberts Court have appeased liberals on occasion to the shock of conservatives, and frankly the only true ideologues on the Supreme Court are Thomas and Alito. But we have also seen cases such as the one (whose name escapes me) which saw Thomas concur with the liberals on police surveillance and Breyer (who often sides with prosecutors and law enforcement) dissenting.

Democratic presidents will predictably appoint liberal-leaning judges just as Republicans will appoint conservatives, but the Court as of late has erred on the side of caution and compromise in order to preserve its legitimacy. This, at least, is John Roberts' main concern. And while that may be a political strategy, it is not for any ideological cause.

[MarkD]

Two of your last three paragraphs have got me to thinking a whole lot, President Scott.

Nixon, Ford, Reagan, both the Bushes, and even Trump, all nominated justices that displeased the conservative base at one point or another. Earl Warren, who oversaw the greatest expansion of civil rights and liberty protections, was a Republican. Byron White, who dissented in Roe, was appointed by JFK.

Going in chronological order, Earl Warren was certainly from the liberal wing of his party. Two of the four times he was elected statewide in California he was the nominee of both the Republican and the Democratic parties, thanks to California's cross-filing law at the time. He despised Richard Nixon, and he certainly didn't vote for Nixon any of the three times he was the GOP nominee for President. It's highly doubtful he would have voted for Goldwater, either. Eisenhower only appointed Warren as political payback: Warren dropped out of the 1952 presidential race and endorsed Eisenhower, and thus Eisenhower owed Warren a huge favor, and giving the Chief Justiceship to him was Eisenhower paying Warren back. Of course, Eisenhower eventually came to strongly regret that appointment, and considered it to be the biggest mistake of his presidency. Warren was certainly a very result-oriented Chief Justice; he may not have ever consciously thought of himself as a "legal realist," but he certainly found William O. Douglas's always-liberal, choose-your-result-first-and-figure-out-the-legal-reasoning-later jurisprudence to be quite attractive. One admirer of Warren said he was "born to act, not to muse," which, decades later, made Robert Bork respond by saying that that was "rather an odd compliment for a man whose job is intellectual." Prof. Alexander Bickel once wrote,

When a lawyer stood before [Earl Warren] arguing for his side of a case on the basis of some legal doctrine or other, or making a procedural point, or contending that the Constitution allocated competence over a given issue to another branch of government than the Supreme Court or to the states rather than the federal government, the chief justice would shake him off saying, "Yes, yes, yes, but is it (whatever the case exemplified about law or about the society), is it right? Is it good?" More than once, and in some of its most important actions, the Warren Court got over doctrinal difficulties or issues of the allocation of competences among various institutions by asking what it viewed as a decisive practical question: if the Court did not take a certain action which was right and good, would other institutions do so, given political realities? The Warren Court took the greatest pride in cutting through legal technicalities, in piercing through procedure to substance. (Bickel, The Morality of Consent, (1975), pp 120-121.)

Regarding Byron White, I found a fascinating quote about him in a biographical book about Hugo Black. The quote was attributed to Harvey Poe, who was co-director, with White, of Citizens for Kennedy in 1960. "Jack thought he'd be a great liberal. But Byron has a quirky streak. He likes it that nobody really knows him or his views. He enjoys being individualistic." (Roger Newman, Hugo Black; A Biography, (1994), p. 518.) White did end up becoming a moderate and unpredictable member of the Court. White tended to be most conservative on issues that pertained to the rights of criminal defendants, but he tended to be liberal on several Equal Protection issues, often supporting some of the Warren Court's most innovative ways of using the EP Clause.

Next, when President Nixon appointed Burger, Blackmun, Powell, and Rehnquist, when President Reagan appointed O'Connor, Scalia, and Kennedy, and when President G.H.W. Bush appointed Souter, the common theme running through those eight nominations was that those Presidents were looking for someone who would be "conservative" about the rights of criminal defendants. Nixon, Reagan, and the elder Bush were sick of the Warren Court's expansive treatment of those rights, and they wanted people on the Court who would whittle away at (but not outright overturn, per se) the Warren Court's landmark decisions in that aspect of constitutional law. G.H.W. Bush's appointment of Clarence Thomas was based solely on one consideration: he wanted a black person who was opposed to affirmative action. Nothing else mattered than that one issue. On the other hand, President Ford did not have any political motivation in choosing to appoint John Paul Stevens to the Court; he wanted to find what he could consider to be one of the best jurists in the country, and Ford should be commended for making that choice for that reason. (I tend to think of Stevens as the best Justice in the last fifty years of the Court, and I would rank him among the best of all time if it weren't for the fact that Stevens went along too much with the rest of the Court in rendering interpretations of the Due Process Clause and the Equal Protection Clause that were far beyond what those clauses were intended to mean.) On yet another hand, I am far from clear what was going through G.W. Bush's mind when he chose to appoint Roberts and Alito. GWB claimed he simply wanted to appoint people to the Court who would objectively interpret the law, but his statement about that clearly rings like hypocrisy -- in the classic sense that hypocrisy is an homage that vice pays to virtue. Bush's words were virtuous, but he didn't fulfill what he said.

Democratic presidents will predictably appoint liberal-leaning judges just as Republicans will appoint conservatives, but the Court as of late has erred on the side of caution and compromise in order to preserve its legitimacy. This, at least, is John Roberts' main concern. And while that may be a political strategy, it is not for any ideological cause.

Okay, but any political motive for why someone renders an interpretation of law is likely going to result in a misinterpretation of law, rather than an accurate interpretation. I do have a lot of respect for how Roberts and Kennedy sided with the liberal members of the Court in King v. Burwell, and I'm sure they rendered an interpretation of Obamacare that fulfilled what Congress intended to accomplish, even though that interpretation was not at all based on "textualism." But just last year, Roberts and the liberals sided with Gorsuch in Bostock v. Clayton County, based on legal reasoning that was purely "textualism" and which certainly went beyond what Congress intended. So Roberts and the liberals are fair-weather friends of both originalism and textualism -- correctly using originalism in King v. Burwell and incorrectly using textualism in Bostock. To me, the "legitimacy" of what the Court does ought to be based on the accuracy of their interpretation of law, based on the intent of the law-makers, not with whether or not it pleases the current political atmosphere, and thus keeps up the veneer of ideological moderation.

[Mad Deadly Worldwide Communist Gangster Computer God]

text

This is a very interesting post. I am curious to know your sources for Eisenhower regretting appointing Warren, White being more conservative than JFK wanted, and that there was only one litmus test for Thomas's seat.

[CEO Mindset]

democracy has unfortunately gotten healthier and healthier

if there was "decay" we wouldn't be having either the ongoing drama or various authoritarian policies done to try controlling speech/thought

[progressive85]

The party that has a Senator (John Barrasso) who just refused to defend Cheeto's Vice President, Mike Pence, and say that it was wrong to want to kill him because he wouldn't destroy the country's democratic norms by fighting to cheat and lie about the election in 2020.  When you have literal U.S. Senators that cannot break from a man when he is threatening murder against his own vice president, then you have a party that deserves to be swept up into the dustbin of history.  I firmly believe that the Republican Party as it exists now is simply a coalition to restore Donald Trump to power.  Somehow the party became about extreme loyalty to one man.

[MarkD]

It's been nearly a week since Scott asked me this, and I replied to him directly via PM, but I also should post a reply here.

This is a very interesting post. I am curious to know your sources for Eisenhower regretting appointing Warren, White being more conservative than JFK wanted, and that there was only one litmus test for Thomas's seat.

The info that Eisenhower regretted appointing Warren was something I first heard of decades ago - and I have read about that in John Hart Ely's famous book Democracy and Distrust - and it is available on the internet now. I already quoted the book Hugo Black: A Biography for the info that JFK expected Byron White to be "a great liberal," but the latter has a quirky side. I confess that I have no particular source for my belief that George H.W. Bush had a litmus test in terms of choosing to appoint Clarence Thomas. It's just my interpretation of the circumstances that were going on in 1991: the first and only black member of the Supreme Court had retired, and Bush chose to appoint another black man to be the replacement; Bush repeated what LBJ had said when the latter chose Thurgood Marshall in 1967. Clarence Thomas was most famous for being an opponent of affirmative action.

[Big Abraham]

The decay of democracy began in the 1970s with the neoliberal onslaught

[Schiff for Senate]

If you look solely at the judiciary the way MarkD does there's a strong argument for shared blame, but if you're also looking at the elected branches' abdication of their responsibility to seriously steward and govern this country, there's no question that the Republicans, especially in the past fifteen years or so, have done far worse. The only people who dispute this are those who dispute that democratic decline is occurring in America or those who dispute that America was or was supposed to be a democratic country in the first place.

This. Having said that I wasn't a fan of the antics that Democrats did with OH after Kerry legitimately lost, either: some voted against certifying OH. Overall, though, the GOP is obviously much more (see: the entire presidency of Donald Trump, particularly after his loss, and its aftermath, as well as McConnell holding blatant double-standards for SCOTUS confirmations).

[OSR stands with Israel]

The party whose SCOTUS justices actually stole a presidential election in such a nakedly partisan way that David Souter didn't even want to bother serving along with those cretins anymore.

2000 was not stolen : https://www.cnn.com/2015/10/31/politics/bush-gore-2000-election-results-studies/index.html

Bush and Gore each could win depending on the method chosen. In fact you could argue if the court didnt make the decision either the Florida Legislature would have to appoint the electoral votes(which would be for Bush) or the election would be thrown to the house where Bush still wins

[Mad Deadly Worldwide Communist Gangster Computer God]

The party whose SCOTUS justices actually stole a presidential election in such a nakedly partisan way that David Souter didn't even want to bother serving along with those cretins anymore.

2000 was not stolen : https://www.cnn.com/2015/10/31/politics/bush-gore-2000-election-results-studies/index.html

Bush and Gore each could win depending on the method chosen. In fact you could argue if the court didnt make the decision either the Florida Legislature would have to appoint the electoral votes(which would be for Bush) or the election would be thrown to the house where Bush still wins

The FLSC ordered a statewide recount that can never be legitimately verified because SCOTUS chose to intervene, when Bush so conveniently happened to be ahead, and even went as far to block the case from ever being used as precedent. That is a steal. And this of course doesn't even bother to account for Buchanan votes that were meant for Gore. SCOTUS had no right to interfere whatsoever and the fact that Republicans are against federal election regulations unless it benefits them is very revealing. But that's to be expected at this point, and you just admitted that Republicans would never accept a non-Bush win in Florida.

[OSR stands with Israel]

The party whose SCOTUS justices actually stole a presidential election in such a nakedly partisan way that David Souter didn't even want to bother serving along with those cretins anymore.

2000 was not stolen : https://www.cnn.com/2015/10/31/politics/bush-gore-2000-election-results-studies/index.html

Bush and Gore each could win depending on the method chosen. In fact you could argue if the court didnt make the decision either the Florida Legislature would have to appoint the electoral votes(which would be for Bush) or the election would be thrown to the house where Bush still wins

The FLSC ordered a statewide recount that can never be legitimately verified because SCOTUS chose to intervene, when Bush so conveniently happened to be ahead, and even went as far to block the case from ever being used as precedent. That is a steal. And this of course doesn't even bother to account for Buchanan votes that were meant for Gore. SCOTUS had no right to interfere whatsoever and the fact that Republicans are against federal election laws unless it benefits them is very revealing. But that's to be expected at this point, and you just admitted that Republicans would never accept a non-Bush win in Florida.

Look at that CNN article which shows different methods used in the recount would result in different winners in Florida. So what would you say the solution is to one type of recount method showing a Bush win and another a Gore win.

Keep in mind that the ruling to declare The Florida recount unconstitutional was 7-2, while it was the remedy that stopped any other recount from taking place a 5-4. So if a recount was done there would be yet another fight over the method as different methods produce different results which would drag out again forcing the Florida Legislature to appoint a set of electoral votes which then congress would vote on to see whether they should be accepted or thrown out.


Even if they were thrown out though, Bush wins as the House elects him so I dont see how you can say it was stolen. The only thing that maybe would have changed is the Senate would have elected Lieberman as VP instead of Cheney so you can argue the Vice Presidency was Stolen from Lieberman  but not that the Presidency was Stolen from Gore.


Lastly , those Buchanan votes even if they were meant to be cast for Gore were legally cast for Buchanan so while you can make an argument that those votes could be invalidated, I dont see a legal argument to be made that they should be counted for Gore.

[Mad Deadly Worldwide Communist Gangster Computer God]

The party whose SCOTUS justices actually stole a presidential election in such a nakedly partisan way that David Souter didn't even want to bother serving along with those cretins anymore.

2000 was not stolen : https://www.cnn.com/2015/10/31/politics/bush-gore-2000-election-results-studies/index.html

Bush and Gore each could win depending on the method chosen. In fact you could argue if the court didnt make the decision either the Florida Legislature would have to appoint the electoral votes(which would be for Bush) or the election would be thrown to the house where Bush still wins

The FLSC ordered a statewide recount that can never be legitimately verified because SCOTUS chose to intervene, when Bush so conveniently happened to be ahead, and even went as far to block the case from ever being used as precedent. That is a steal. And this of course doesn't even bother to account for Buchanan votes that were meant for Gore. SCOTUS had no right to interfere whatsoever and the fact that Republicans are against federal election laws unless it benefits them is very revealing. But that's to be expected at this point, and you just admitted that Republicans would never accept a non-Bush win in Florida.

Look at that CNN article which shows different methods used in the recount would result in different winners in Florida. So what would you say the solution is to one type of recount method showing a Bush win and another a Gore win.

Keep in mind that the ruling to declare The Florida recount unconstitutional was 7-2, while it was the remedy that stopped any other recount from taking place a 5-4. So if a recount was done there would be yet another fight over the method as different methods produce different results which would drag out again forcing the Florida Legislature to appoint a set of electoral votes which then congress would vote on to see whether they should be accepted or thrown out.


Even if they were thrown out though, Bush wins as the House elects him so I dont see how you can say it was stolen. The only thing that maybe would have changed is the Senate would have elected Lieberman as VP instead of Cheney so you can argue the Vice Presidency was Stolen from Lieberman  but not that the Presidency was Stolen from Gore.


Lastly , those Buchanan votes even if they were meant to be cast for Gore were legally cast for Buchanan so while you can make an argument that those votes could be invalidated, I dont see a legal argument to be made that they should be counted for Gore.

Counting all the votes by who they were intended for - undervotes and overvotes, which I'll even blame Gore and his legal team for never requesting - would have clearly reflected the will of the voters best. But which method "should have" been used is moot because SCOTUS arbitrarily decided that there wasn't enough time to settle it.

[progressive85]

This:

[🐒Gods of Prosperity🔱🐲💸]

Both parties have for decades increasingly consolidated power - in congressional leadership, the Presidency, bureaucratic agencies, the courts - to diminish the importance of individual Congressional representatives, the key democratic body of our federal Constitution.  Meanwhile both parties design gerrymandered districts in order to maximize party influence & hit racial quotas, further reducing the democratic role in selecting our representatives.   And both parties do whatever they can to make it difficult for other parties to break through or even make it on the ballot.