Saturday, September 26, 2020

Trump to Nominate Judge Barrett to Supreme Court: Is it Time to Ignore the Supreme Court?

Many people were upset that thanks to McConnell and crew changing their minds about when Presidents should be able to appoint Supreme Court Justices in election years that it now appears that President Trump will be able to make a third appointment to the U.S. Supreme Court. 
There's almost nothing that the Democrats can do to stop this. There is no longer any Senate filibuster for Supreme Court nominations. The Democrats don't have the votes.
The latest news confirms that President Trump will nominate Judge Amy Coney Barrett, a current judge for the Court of Appeals for the Seventh Circuit to take the empty seat on the Supreme Court. Barrett is obviously a right-winger. 
Although she's not all that different from any run of the mill right wing justice that would be considered under this administration, as this Vox article pointed out, because of some inappropriate comments by California Democratic Senator Feinstein, some social conservatives consider Barrett something of a martyr. 
So they will presumably be excited to "own the libs" by getting Barrett nominated and confirmed to the Supreme Court, particularly if they do it before election day.
That's actually not all that interesting to me. Whatever a judge's politics may be everyone on the other side always says that if so-n-so gets confirmed to the Supreme Court that the skies will fall and the dead will rise from their graves to eat the living. Sometimes doomsayers are correct.
But I was very interested to see that many people who are, very broadly speaking, along the same (left) political spectrum as I am, called for changes to how courts are shaped and populated and how the Senate is constructed. From what I can tell plenty of people in California and New York just hate that Wyoming and Montana have the same number of Senators as California and New York.
Those are all valid, if quixotic, ideas to consider. But a recent piece in the NYT by Jamelle Bouie went beyond those limits to urge that we (presumably the right thinking people reading his words) recognize that the Supreme Court is not the final word on what is constitutional and that we be ready to curb the Supreme Court's "judicial supremacy".

I take a different perspective. If Democrats are willing to treat a Republican-dominated Supreme Court as a partisan and ideological foe, if they’re willing to change or transform it rather than accede to its view of the Constitution — two very big ifs — then they’re one important step along the path to challenging judicial supremacy, the idea that the courts, and the courts alone, determine constitutional meaning.

The Supreme Court has the power to interpret the Constitution and establish its meaning for federal, state and local government alike. But this power wasn’t enumerated in the Constitution and isn’t inherent in the court as an institution. 

Instead, the court’s power to interpret and bind others to that interpretation was constructed over time by political and legal actors throughout the system, from presidents and lawmakers to the judges and justices themselves.

The United States may not be a “pure democracy,” but it’s not a judgeocracy either, and if protecting the right of the people to govern for themselves means curbing judicial power and the Supreme Court’s claim to judicial supremacy, then Democrats should act without hesitation. If anything, they’ll be in good historical company.

The problems with this argument, though Bouie doesn't want to apply it beyond the cases where he thinks most decent people would agree, are that (1) If the Supreme Court is not final than who is (2) courts are not supposed to be majoritarian institutions and (3) this is and has been the preferred argument of modern conservatives, reactionaries, and right wingers since at least Brown v. Board of Education and arguably even before that. 

Virtually any progress that took place in the courts for Black Americans, white women, LGBTQ, immigrants, Hispanics, civil libertarians, etc, happened in the face of an overwhelming majority opposition who could not countenance a court telling them that they had to behave in a different way when they had sizable majorities in the relevant legislative and executive branches.
We have separation of powers in order to maximize freedom and institutional stability. Just because Congress has a majority, even a permanent majority, doesn't mean it can pass any law it likes. And Congress doesn't get to make law AND interpret it. I feel like this is basic civics. And that's ignoring the fact that Bouie would not have had a problem with judicial supremacy if Clinton had won in 2016 and was preferring to place her third person on the Supreme Court. Hypocrisy much?
The concept that Congress and everyone else can and should just ignore rulings that they don't like is an open invitation to people on the other side to do the same, as they certainly wanted to do for Brown v. Board of Education, other civil rights cases, Roe v. Wade and so on. You're upset that conservatives think they will have a 6-3 court majority? You want to ignore upcoming bad Supreme Court decisions? 
Fine. Just don't get upset when Alabama or Texas decides they won't be abiding by any gay marriage or anti-discrimination court decisions. 
What Bouie is calling for is like a basketball team, having gotten a new (and less friendly) referee in the second half, deciding that from now on they won't recognize the ref's authority to make calls against them, but that the ref's authority to make calls against the other team should be unchallenged. Not how any of this works. I don't see how it could work. Kant's Categorical Imperative comes to mind.
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