Ruth Bader Ginsburg, Voice of Reason


Andrew Donaldson

Born and raised in West Virginia, Andrew has since lived and traveled around the world several times over. Though frequently writing about politics out of a sense of duty and love of country, most of the time he would prefer discussions on history, culture, occasionally nerding on aviation, and his amateur foodie tendencies. He can usually be found misspelling/misusing words on Twitter @four4thefire and his writing website

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39 Responses

  1. Avatar Oscar Gordon says:

    Good to hear she’s not a fan of court packing. I’d rather we reform the SCOTUS with fixed term limits (something like 20 year terms) than trying to pack it.Report

    • Avatar Dark Matter says:

      I’d rather we reform the SCOTUS with fixed term limits (something like 20 year terms) than trying to pack it.

      This would require amending the Constitution.

      The Constitution provides that judges “shall hold their Offices during good Behavior.” The term “good behavior” is interpreted to mean that judges may serve for the remainder of their lives, although they may resign or retire voluntarily.

      • Avatar Aaron David says:

        I actually like the lifetime appointment aspect of SCOTUS. It gives them the ability (in theory) to be able to make their decisions without regard to the time they have on the bench. In that, once they are on it, they are beholden to no one. In there was a term limit, so to speak, would that not indicate that they might rule in such a way as to ensure employment in the post judicial life? Would they feel beholden to the members of the party that nominated them? Life-time appointments remove any need for that. And give us the aspect of the court being a lagging indicator for the law.Report

        • Avatar Dark Matter says:

          If memory serves, people have studied this and decided Supremes tend to lean more and more left as they get older. Presumably that’s part of the “something must be done” approach but whatever.

          My expectation is that Conservative justices would stay Conservative if the knew they’d face re-election. The implication is this is a really good way to turn Supremes into arms of their parties.Report

          • Avatar Mike Schilling says:

            Centrist or moderately conservative judges tend to move somewhat left. Avowedly right-wing ones like Scalia or Thomas don’t budge.Report

  2. Avatar Saul Degraw says:

    So what happens when a 6-3 Trump Supreme Court filled with relatively young reactionary firebrands keeps on striking down every piece of legislation to come out of a Democratic congress? Trump’s last success is going to be a fully Federalist Society Judiciary filled with judges young enough to be there for decades. Welcome back to Lochner and absurd claims about freedom of contract.Report

    • Avatar Aaron David says:

      A few of FDR’s appointees served for over 30 years each and another couple for around 20 years. I am sure they stymied more than a few conservative presidents and congresses. Legal theories are like the weather, they change over time. The long-tails of SCOTUS provide the counterbalance to the (supposedly) quick turnover of the House and POTUS.

      You aren’t going to get what you want each and every time. Kagan is only 59 as of writing this and I am pretty sure that she will stay into her eighties. The whole point of the lifetime appointment is to provide a sense of continuity, as smoothing factor if you will, to the legal system. Those long-tails are a feature, not a bug.Report

    • Avatar North says:

      If the legislation is really popular than one of two things will happen Saul; the court won’t strike it down because it knows better (especially as long as Roberts is running the show- he seems pretty keenly concerned about the courts public legitimacy); or they strike it down and the public blames Republicans which will keep them out of power for a longer stretch of time and leads to more Democratic appointments to the court.

      Court packing is an insane idea and I’m with RGB in thinking it’s a bad idea to even talk about it.Report

      • Avatar Saul Degraw says:

        I think you are way too Pollyanna on this. So far lots of very popular things have been struck down on 5-4 majorities. Certainly plenty of legislation that was meant to protect voting rights (Shelby County), consumer rights and employee rights (every arbitration decision), etc? This can only get worse as Trump fills the judiciary with Federalist Society fanatics.

        What the hell has to happen before you realize that this is serious?Report

        • Avatar greginak says:

          I think you are correct that there will be seriously bad things (from a liberal pov) to come from the court with all of Trump’s picks and if he gets another supreme. However court packing is not remotely an answer to that. Some of the bad court rulings may be squelched by a friendly congress. Though of court conservative judicial activists will take it right to the court. Still court packing is a non answer so why bother?Report

          • Avatar Saul Degraw says:

            From a practical prospective, I think the chances of court packing happening are slim especially because Senate Democrats seem willing to shoot themselves in the foot and talk about bringing back blue-slips and other things that McConnell disposed of without mercy.

            But I think it is good as a looming threat because of the “switch in time that saved nine.”Report

        • Avatar Chip Daniels says:

          The foundation of liberal democracy hangs by the slender thread of John Roberts’ fear of embarrassment.Report

        • Avatar North says:

          I think it’s serious. As a liberal I don’t like the direction a lot of those decisions are going. But to get as overwrought as you are on the matter would take something more terrible than the needle getting edged in a more conservative direction by 5-4 majorities for me personally.

          Roe v Wade getting overturned or (heaven for-fend) inverted, for example.Report

          • Avatar Chip Daniels says:

            I see all the pieces connected.

            The way the Republican party/ conservative movement is now openly white supremacist;

            The way conservatives are attacking the concept of liberal democracy and tolerance for minority views;

            The way they applaud the arbitrary displays of government and executive power;

            None of these things can even be discussed in normal political terms because the terms of normal politics starts from the premise that all people are equal citizens and entitled to share in power.

            The Republicans don’t hold to this view any more. There isn’t any “too far” or “too conservative”, because they view liberals as illegitimate participants in the process.Report

            • Avatar George Turner says:

              The white supremacism started under Obama, who had the white supremacist Betsy Ross flag flying behind him at his inauguration as a signal to all his followers. He also repeatedly made the white supremacist “okay” hand sign to them as he drove black employment to new lows.

              He hardly made an appearance for Hillary during 2016, had Comey go ahead and deliver the press conference that put her campaign out of its misery, and green-lighted Russian interference because he wanted to pass the reigns to his chosen successor and sub-Kleagle, Donald Trump.

              The greatest trick white supremacists ever made was making you think they were white, but judging by groups like “Proud Boys”, almost all of them are actually Asians, Hispanics, and Pacific islanders.

              Why is that, you ask? If you saw Jordan Peele’s Get Out (2017) you’d know what white supremacists have been transplanting white brains into minority bodies for a long time now. At this point there aren’t even many white supremacists remaining in white bodies. They all jumped ship. You’ll notice that Trump himself isn’t even white. He’s orange.Report

            • Avatar North says:

              I decline to endorse the idea of becoming a left wing mirror of the GOP. They’re rotting out from the inside like a hollow log and are utterly failing to transmit their ideals to the younger voters or immigrants. If their poison can be contained for much longer the whole wretched outfit could implode.Report

              • Avatar Chip Daniels says:

                I agree, since liberal democracy won’t be saved by abandoning it.

                And I agree court packing is a bad precedent because a future Republican would enlarge it to whatever they wanted.

                However I don’t think we should flinch from impeaching and removing Kavanaugh, and even any other judge who rules in a strictly partisan manner.

                Their terms aren’t “for life” but for “good behavior”.Report

              • Avatar North says:

                If liberals control the Senate and the presidency and some judge, Kavanaugh or otherwise, issues some utterly insane ruling I wouldn’t rule out impeachment either. Getting to that first part, though, is the heavy lift part.Report

              • Avatar Jesse says:

                No Republican is ever going to vote to impeach a Republican appointed Supreme Court justice, for a decision they basically agree with.

                That’s not even getting into the fact that almost every major conservative Supreme Court decision from basically Bush v Gore onward has been “utterly insane”, but that hasn’t stopped them at all.

                Hell, now they’re basically getting ready to basically destroy the ability of the administrative state to do much of anything –



              • Avatar North says:

                Well then the Dems will need 2/3rds of the Senate then.

                We have different definitions of insane.Report

              • Avatar Mike Schilling says:

                I decline to endorse the idea of becoming a left wing mirror of the GOP.

                Yeah, winning isn’t worth giving up feeling morally superior.Report

          • Avatar Saul Degraw says:

            Plenty of the Obamacare arguments used recently are straight-up right wing hack points. Sometimes there are things that are so bad that Roberts can’t join them (the Citizenship case) but othertimes he is perfectly capable of destroying democracy (he basically took the courts out of gerrymandering via the political question doctrine).

            If Trump gets another Supreme court justice or two, they will not be with the occasional embarrassment of Roberts to do the right thing for the sake of maintaining the judiciaries reputation.Report

            • Avatar North says:

              All the more reason to diminish the window for Trump to get another Supreme court pick from 5 to 1 year; and yowling about how the Dems should countenance court packing* sure as hell doesn’t help with that.

              *Which elides the point that court packing is useless because then next time the GOP got control they’d just court pack as well.Report

              • Avatar Jesse says:

                I hate to break this to you North, but the Republicans are going to court pack anyway, if they think they’re going to lose in the long term. Do you honestly think Dan Crenshaw in 2028 isn’t going to add judges, if we get lucky, and have a liberal majority somehow?

                Also, if court packing on both sides happens, that’s a quicker run to the Supreme Court being largely irrelevant and cutting the power out what has largely been a conservative branch of the government, outside of a period of about 20-30 years.Report

              • Avatar North says:

                If the GOP were going to “court pack anyway” they’d have done it when they had total control of the government and they didn’t.

                And if they go on like they are now then in 2028 *knocks on wood* they’ll be struggling to get governors elected outside the south; let alone harboring hopes of winning the presidency again.Report

  3. Avatar Chip Daniels says:

    A democracy is where the people get what they want (good and hard).

    What about 40% of the country wants is a politicized judiciary, which has as its primary function to implement the political program of the party.
    And this isn’t a recent development.

    We saw it in the GWB term where they purged the DOJ of anyone who wasn’t a loyal Bushie. It stretches back to the campaign to impeach Earl Warren for daring to block Jim Crow.

    It stems from the conservative premise that there is a rightful order to society and anything that defies it is presumptively illegitimate.Report

    • Avatar Philip H says:

      It also stems from Republicans being willing to adopt a strategy and stick to it over decades no matter what. Democrats should be so lucky.Report

      • Avatar Chip Daniels says:

        I am reading a book about the fall of the Roman Republic (Rubicon by Tom Holland) and what it illustrates is that the republic fell because the citizens themselves lost faith in it, and accepted repeated violations of norms which were thought to be sacred and inviolable.

        We are Seeing a lot of that now, where even ordinary Americans are shrugging off things that would have been shocking in earlier times.Report

        • Avatar Burt Likko says:

          I too have read and enjoyed Rubicon. Holland’s argument is not new, nor is that book the first time he’s made it. But it is as clear an articulation of that claim as will be found. I recommend the book to any and all. Its modern analogues speak for themselves, in my opinion, but if you want to see Holland play the full academic party game, go straight to “Are We Rome?”

          I’d add to your summary that the erosion of norms had been underway for a century, and in each major instance of open defiance of those political understandings, they were catalyzed and led by political leaders who a) exploited their personal wealth, b) posed as representatives of the common people, c) cultivated cults of personality around themselves, and d) winked at and used ambiguous code phrases in public communications to encourage political violence, sometimes rewarding the leaders of those efforts with pardons or plum jobs.

          Though to circle around to the politicized courts issue, we have NOTHING on the Republican Romans when it comes to partisan judgeships and use of political corruption to sway the outcomes of individual cases. Even Cicero would mock us for being a bunch of naïve Boy Scouts about that.Report

          • Avatar Chip Daniels says:

            One of the themes I keep thinking of, is how radical change is always a gradual series of decisions and steps that themselves seem insignificant.

            Like, how does one get to a point in life where it seems like a reasonable idea to inject heroin into one’s veins? Or murder someone, or to observe a corrupt and brutal government and shrug in apathy?

            Its not like there is some Eden of peace and freedom which suddenly is shattered with a thunderclap.
            From the very start, the American republic has been under assault from those who would pervert it into some form of aristocracy and authoritarianism.

            Our history has really been a constant series of battles- against the Royalists, the Jacksonians, the Confederacy, the Fascists.

            The thought has occurred to me that a government isn’t corrupted until the people themselves are corrupted. When the people passively abdicate their responsibility to be engaged citizens, when they shrug off corruption and graft, when they turn their eyes away from injustice and brutality.Report

    • Avatar Brandon Berg says:

      It stretches back a lot further than that. Recall that the original court-packing scheme was part of the temper tantrum Roosevelt threw when the Supreme Court insisted in noticing the Constitutional problems with his policies.

      And long before that, Jackson proclaimed, “John Marshall has made his decision, now let him enforce it.”

      Don’t pretend this is a game only one side plays.Report

      • Avatar Mike Schilling says:

        Court-packing as in asking Congress to pass a law that was entirely within its powers? Yeah, pretty evil stuff.Report

        • Avatar George Turner says:

          Well, eventually you end up with a court so packed that their decisions are national referendums because everybody is a justice.Report

        • Avatar Dark Matter says:

          Court-packing as in asking Congress passing a law that was entirely within its powers? Yeah, pretty evil stuff.

          It’s like passing a $50 min wage law. Yes, they can technically do it, but it’s such a bad idea they really shouldn’t. The GOP needed to win a lot of elections to get to where we are. Trying to undo that with one election’s magic move that can be trivially copied at the expense of the republic won’t end well.Report

        • Avatar Brandon Berg says:

          Yes, court-packing is technically legal, but it’s an exploitation of a clear loophole that would have effectively neutralized a key Constitutional check on the power of the President and Congress. And the reason Roosevelt wanted to do it was to install cronies who would turn a blind eye to him and Congress passing laws that they were not legally allowed to do.

          That aside, you seem to have lost the thread of conversation. The things Chip mentioned were also legal. Here’s his description of the general phenomenon:

          What about 40% of the country wants is a politicized judiciary, which has as its primary function to implement the political program of the party.

          The Roosevelt administration was a textbook case of this. He decided that the Court’s refusal to rubber stamp the unconstitutional laws passed by Congress and signed into law by him was proof of its illegitimacy, and wanted to add additional justices until he got one that recognized that its primary function was not to uphold the Constitution, but to implement the political program of the Democratic Party.Report

          • Avatar Mike Schilling says:

            Congress gets to determine the size of the Court. That’s not a loop hole; it’s an explicitly assigned power.Report