Monday, April 01, 2019
How FDR’s Court-Packing Plan Set Progressive Policies Back by 25 Years
As Democrats imagine what they might do with political power should
they gain control of the White House and Congress after 2020, some progressives
have been arguing that Democrats are justified in expanding the size of the Supreme
Court. A recent Washington Post piece discusses
the politics emerging in the Democratic primary campaigns around this issue. Other liberals have pushed back against the
idea (for some examples, see here
and here). In light of this emerging debate, I want to
highlight certain less-familiar aspects of the law and politics surrounding
FDR’s failed Court-packing proposal of 1937. The circumstances favoring FDR’s
Court-packing plan would seem to be about as favorable as might be imagined,
yet FDR not only lost the Court-packing battle, that loss was politically
devastating for the New Deal overall.
I'm inclined to think that needing to keep together a coalition with a strong conservative bloc was a lot more important (and some progressive policies did come down in those years).
When LBJ did lead the way there, it helped to break apart that coalition to some degree and we have the beginning of over 40 years of Republicans appointing most of the justices.
The whole story needs to be factored in when deciding how to handle judicial matters here (such as pushing for term limits or stronger ethical rules for justices or something else), but this blog has had piece after piece against packing that leave something to be desired.
Perhaps, we can have at least one person provide the strongest case for packing, factoring all the matters at hand. Mark Field, perhaps, can step in if no one else is available. I am wary, and even many who support it agree it is the least bad option, but with respect, many of these takes leave something to be desired.
As I've remarked before, the biggest problem with Court packing is that it's so obvious that doing so would set off a cycle of retaliation, that anybody packing the Court would reasonably be suspected of planning to rig the whole system, not just the courts. So as to prevent retaliation by preventing the other side from ever being in a position to retaliate.
Court packing isn't the end of it, Court packing is just an opening move.
Why was FDR’s decision to engage Court-packing so destructive politically for him and the rest of his domestic agenda? The next major item on FDR’s agenda had been national health-care; after the Court-packing fight, FDR felt forced to drop the issue...The Republican Party had been declared virtually dead in the wake of the 1936 elections. But in the 1938 mid-terms, the Democratic Party lost 71 House seats, 6 Senate seats, and 12 governorships; nationwide, the two parties divided the congressional vote almost evenly (all the more remarkable because the Democratic Party had a near monopoly in the South).
Not seeing the causation.
The 1938 election occurred during a recession within a depression. The Wagner Act led to mass labor unrest and new Social Security taxes reduced pay checks further. I suspect FDR did not consider another round of even larger tax increases funding socialist health care to be politically or economically feasible.
Progressives, I think, need to be creative.
Don't just add a few justices, institute one of the rotational systems that have been discussed, wherein Supremes rotate back to the appellate bench after (x) years (very arguably constitutional) ensuring every president gets to appoint two per term. That removes the urgency of tit-for-tat in the future since a president can just get his two new ones on the court without going to extremes.
So, add two at the same time? Yes, I think so...one immediately and one scheduled to be brought on in the next rotation during the 2nd two years of the president's term when three will be appointed while two are retired for one time only. That satisfies the Merrick Garland issue right off the bat and gives Progressives a taste of the blood they have been wanting (me included).
Then, it comes down to winning elections for either party.
Package this with a needed expansion of the entire federal judiciary and give it all a reform-sounding name, something about adapting the courts to the modern era when people live much longer than in the past. Of course the Conservatives will cry foul, but they are going to do that anyway no matter what Progressives do.
If a justice retires or dies, they can be immediately replaced outside of the rotation. Current justices draw lots for when they must retire...so some chance that liberal judges will get the boot first, which makes the system all that much more fair. Still, with adding two, the math should work out to Progressives advantage in the first presidential term no matter what.
People keep talking about this move likes it has to be a singular, moment-in-time event. Unimaginatively, they can't think about ways to do it beyond what FDR tried. Set up a system that will benefit whatever part is in power over the long-term, add a pinch of retribution up front to satisfy Progressive's fury, name it well, then sell it.
"wherein Supremes rotate back to the appellate bench after (x) years"
Couldn't be done by statute: You can shuffle judges around the inferior courts all you like by statute, because the Constitution doesn't distinguish between them, but Justices of the Supreme court are nominated and confirmed specifically to the Supreme court, a Constitutional entity, not the judiciary in general. Removing them against their will requires impeachment.
It would be like suggesting that Congress could demote a President to VP by statute.
Didn't I say creative thinking? I'm not the only one to be discussing various approaches that arguably fall within the constitution.
A quick Google search will reveal others, promulgated by people much smarter on Constitutional law than me.
And a President is elected, not appointed, which is a difference.
It's "a" difference, but not a terribly relevant one. I'm pretty sure that suggestion wouldn't pass scrutiny, the Justices enjoy their job security.
Of course, "arguably fall within the Constitution" can be for very small values of "arguably", and still happen if there's the political will to just run roughshod over the opposition.
But that's where my point comes in: Packing the Court, no matter the rationale used to justify it, is a declaration of political war. You only do it if you're planning on following it up with other blows the packing will clear the way for.
We shouldn't pretend that it would ever be done in isolation.
"the judiciary in general"
Which is overall a constitutional entity. Art. III:
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."
We now think of these as separate but once upon a time justices also "rode circuit." Inferior court judges aren't guaranteed to be in the same district or circuit as they were confirmed to fill (e.g., the 11th Cir. split off from the Fifth). So, the proposal -- signed on by some familiar names to blog readers (see also, Dorf on Law) -- very well might work. Note "supreme and inferior" courts are put together. Assumptions aren't law. For instance, it seems fine if the seat of "Chief Justice" rotated or was chosen by lot.
I think Scott W. is on the right track here. Anyway, I'm not going to assume anything here on what will happen. Great changes do occur over time and a stasis does develop. Thinking big picture here is helpful. As is having people pushing and thus the eventual approach can be deemed a "reasonable compromise." Likewise, there will always be some who complain.
The proposal provides consistency that doesn't just benefit one side.
Carter nominated no justices. Bush43 nominated none in his first term.
The "political war" here can help both parties. Such is why presuppositions are perilous.
It would not reliably benefit either side if implemented after a substantial delay. Scott was quite clear about how it would benefit the party that implemented it immediately.
In the current environment, immediate implementation would certainly be to gain that advantage, being seen as motivated by that desire by both parties.
Now, if they enacted it with delayed implementation, it would be less certain who would benefit. But I'd still see it as constitutionally dubious.
The very name of the proposal speaks of "regularization" of appointments.
This will benefit both sides. Thus, the reference to "which incorporates the ideas of both conservative and liberal legal scholars."
Yes, Scott spoke of some immediate benefit to one side.
But, big picture, it doesn't merely benefit one side. Such is the point of big picture compromises. It very well is possible to imagine something else is offered to accept a new normal as happens. For instance, some deal involving appointments of lower court judges that will provide consistency. Or, some non-judicial matter tossed in.
We simply don't know what will happen there especially if the political status quo now doesn't simply hold indefinitely.
In the big picture, it benefits the party that does it immediately, and then the nominal benefit to the other party down the road is subject to being snatched back by some subsequent action.
If the immediate benefit weren't the purpose, you'd enact it with delayed effect.
A couple notes concerning creative congressional solutions to a relatively conservative Supreme Court:
1. Democrats should not assume they will be taking the White House and Congress with a filibuster proof majority any time soon. The last time they got close the country was in the second worst post-WWII recession and they quickly lost the 60th Senate seat.
2. Any Democrat attempt to rewrite the Constitution to impose a rotation system on the Court will likely be received the same way as FDR's court packing scheme. However, it would be fascinating to see how the Supremes ruling on such a law would deal with their obvious conflict of interest.
Oh, come on, Bart: If the Democrats take the White House, and Congress with even the barest majority in the Senate, they'll have a "filibuster proof" majority, because the filibuster will be gone the instant it gets in their way. "Defection proof" majority might be more of an issue, if they only had 51 Senators, and the vote was on something really outrageous.
As in, more outrageous than taking over a seventh of the economy proved to be... The Democrats' party discipline is pretty amazing.
...of course, the filibuster is a whole other topic, but one that will likely have to be addressed if Progressives want to implement ANY policies. As with the Supreme Court, one can't assume that what always was will forever be.
There do come times in a nation's history when an event, or closely-spaced series of events, divide "before" and "after." Are we arriving at a time when history will justify a significant course correction? Eye of the beholder, of course, and hindsight is 20/20 but...escalating inequality, rise of the oligarchs, environmental changes, and more...perhaps these are significant enough to justify in the public's mind a need for a course correction. And at such times, reasoned boldness, akin to what the founder's demonstrated, is called for.
Of course there will be some "We're currently on top, so the deal will best advantage us." When has politics ever not worked that way? That part evens out over time.
I think that momentous historical events that call for change are harder to recognize than they were in the past. Before our modern monetary system evolved to smooth out banking crises, before automatic payment transfers were established to moderate recessions, before civil rights laws, before the entire apparatus that has been built to cushion the populace from the vicissitudes of the market and the swirl of a world constantly going slightly crazy, crisis moments could be felt and seen in stark relief. Think lines outside soup kitchens in the Great Depression. Or slave markets. Or redcoats marching toward Concorde.
Are things really bad right now, with income disparity at extreme levels and automation taking over manufacturing...or is it not? Is the system seemingly OK on the surface, but actually being hollowed out and on the verge of collapse? It's much harder to say than it used to be, certainly for the average person on the street.
So, perhaps we are in a crisis right now that calls for a bold course correction. Many argue that we are and I count myself among them. Will there be a time in the not-so-distant future when people look back at 2020 as the year that the archaic, not-in-the-constitution, filibuster was finally killed, and good riddance? When the Supreme Court was finally "fixed" to be a balanced institution forevermore?
Stare decisis doesn't mean nothing ever changes.
Exciting times, to be discussing such things when they might actually be coming to pass.
The Donkey Senate leadership does not want to nuke the filibuster any more than do the Elephants. They both prefer the power to stop what they dislike more than enacting what they like. The Donkeys certainly are not going to give up that power to enact plainly unconstitutional legislation which would not survive judicial review.
Obamacare is actually a great example of this reluctance at work. The Donkeys did not nuke the filibuster to pass Obamacare, but instead treated it like a spending bill. I don't see how the Donkeys can call a Supreme Court rotation bill a spending measure.
FWIW, I don't see the 2020 Donkeys coming close to gaining the White House and a simple majority in Congress.
Contrary to Donkey wishful thinking, Trump is likely to win reelection. Absent a recession, every POTUS seeking reelection over the past century has won it. Even those like Clinton and Obama who sustained epic wipeouts during the prior midterm elections won reelection. Furthermore, no open socialist has come close to winning election as POTUS. This cycle, the Donkeys are running a herd of them.
In 2018, with the traditional midterm turnout advantage, the Donkeys won a narrow majority of the House by winning red and Trump-leaning districts by a razor thin margins. When Trump's people turn out to vote for him in 2020, how do the Donkeys hold onto those red-leaning districts?
Despite the Donkey midterm turnout advantage in 2018, the Elephants gained Senate seats because the map favored them. In 2020, the Donkeys are not likely to enjoy the same turnout advantage and the map again favors the Elephants.
Not seeing it. This is all an academic exercise.
1. The filibuster is dead on judiciary issues. Brett is right and Bart is wrong on that.
2. Court packing is a terrible idea, both for the reasons stated in OP and because it will be a tit for tat.
3. 18 year term limits are a good idea. I don't know how we get there though.
The OP is what I would call the "old" interpretation. Later studies have shown that the "court packing" had little or no impact on the elections of 1938. Far more important was FDR's premature decision to tighten the economy. This set back the recovery, which didn't revive entirely until WWII spending solved the Depression.
Scott W.'s suggestion strikes me as quite reasonable. The District Courts and Courts of Appeal have desperately needed expansion for quite some time. The Supreme Court's case load has dropped pretty much every year; expansion to 11 or even 13 Justices would be fully justified on the merits. Whether the rotation system is Constitutional or not is impossible to say, though it's good policy and neutral in the long run. Whether it gets upheld or not probably depends on the composition of the Court. What I'd probably do is implement the rotation with a provision expanding the Court with confirmed new names if the rotation gets struck down.
As for the tit-for-tat problem, I'm not that worried about it. There's no need for it in a rotation system. If the Court gets expanded, I'd expect the now-legitimate Court to ban gerrymandering and assure a one person one vote system. This will make R control over the House unlikely in the foreseeable future, just as Dem control over the Senate is. Divided government will block any tit-for-tat response for many years. If, 20 years from now, 1 party gains undivided control, it can of course pass other legislation, but that's a problem for the relatively distant future.
Note thatSPAM, the ultimate Mule, seems to have a Donkey fetish. Perhaps it's based upon the fact that SPAM will not pass on his genes, SPAM's only redeeming feature, for which humanity is grateful. SPAM's rant at 5:45 PM puts his sniffing on display.
I should add that the "traditional" story about the supposed impact of the Court reform plan never actually made much sense. Roosevelt announced the plan in late January 1937. It was dead by Spring 1937. The evidence of popular sentiment at the time does not support the idea that it was generally unpopular. It seems to have had plurality popular support, though evidence from that time has to be considered very carefully. It was unpopular with Rs, of course, and some newspapers came out against it.
What actually killed the plan was the death of House Speaker Joe Robinson not long after Roosevelt announced it. It's not at all clear that Congress would have passed it anyway, but Robinson's death disrupted the Dems and made passage unlikely.
So the argument had to be that the Dems lost seats in November 1938, a year and a half later, despite the facts that (a) it was a 6th year election and a loss of seats by the majority would be expected anyway; (b) a lot happened in 1937-8, especially tightening of the economy which drove unemployment back up; and (c) the voters chose to punish Members of Congress who didn't vote for the plan, while re-electing FDR in 1940 despite his advocacy of it.
The tit-for-tat argument may or may not be true (I think it depends on a lot of other factors), but there's no real historical support for the claim.
Regarding the elections of 1938, should mention be made of what was going on in Europe and the isolationism here in America, like America First? The distinct possibility that America might at some point have to go beyond supporting England, and perhaps having to defend itself? Wasn't it a tad different in 1938 than just court-packing? I was there in Boston, 8 years old, knowing of Father Coughlin. My mother was seamstress and when her mother came to live with us, my mother could take a good paying job sewing uniforms for our military. America would have to gear up militarily in a hurry in the event America had to enter the war and not be limited to providing our allies in Europe with supplies. I don't recall if I was aware of Japan at the time, but even kids in Boston knew of Hitler and Mussolini and what they were up to. FDR had to do a lot of planning. And America First was there to thwart him domestically. Military spending started well before Pearl Harbor.
Quick correction: Robinson was Senate Majority Leader, not Speaker. He died on July 14, 1937. The bill effectively died when he did, but the Senate did vote on it and sent it back to committee by a 70-20 vote two weeks later.
"As for the tit-for-tat problem, I'm not that worried about it. There's no need for it in a rotation system. If the Court gets expanded, I'd expect the now-legitimate Court to ban gerrymandering and assure a one person one vote system. This will make R control over the House unlikely in the foreseeable future,"
My "It's only the opening move" thesis. Nobody JUST packs the Court. Knowing that otherwise they're in for retaliation, they then move to make sure the other guy can never get the upper hand again. Mandating pro-Democrat gerrymandering under the guise of banning it would be just one of the steps that would follow a Court packing plan.
" just as Dem control over the Senate is."
Making D.C. a state, and admitting several of the territories as states could pack the Senate to assure Democratic control of that chamber, too.
"Reid raised the filibuster on judicial selections, not the design of the judiciary."
Bart, what can be done once, can be done again. The filibuster is dead for appointments, it will be dead for legislation, too, as soon as the Democrats control both Congress and the White house. Democratic leaders were publicly discussing abolishing it for legislation, back in 2016.
The only thing that preserved it through the first two years of the Trump administration was McConnell wanting an excuse to avoid holding up/down votes on a litany of issues where doing so would expose Republican Senators who would vote contrary to their campaign promises. Republicans treasure the filibuster because it provides cover when they take a dive.
Democrats don't treasure it, because they have no interest in taking a dive on anything.
Making DC and, say, Puerto Rico states might even out the Senate a bit, but the Rs will continue to have an advantage for the foreseeable future. They're more likely than not to control that chamber even with 2 new Dem states (and PR is not guaranteed to be Dem).
As for gerrymandering, it's of course possible for Dems to gerrymander (see MD), but it's fairly easy to adopt rules such as proportional representation which preclude it entirely.
I will pop the cork on some fine champagne if the Senate under any majority eliminates the filibuster. Not holding my breath until it happens, though.
As the majority leader, McConnel decides what does and does not come up for a vote. He does not need the filibuster to accomplish this. When the Elephants took the Senate during the Obama administration, Reid simply ignored all the non-funding bills they sent over.
Puerto Rico has no reason to become a state. They currently enjoy all the benefits of citizenship with few of the taxes.
If they became a state, PR is an automatic Democrat vote. The island is massively dependent on the federal welfare state and infrastructure spending.
"I will pop the cork on some fine champagne if the Senate under any majority eliminates the filibuster. Not holding my breath until it happens, though."
I wouldn't advise holding your breath, the earliest they could do it would be 2021, and 2025 is more likely. (I'm cautiously optimistic about Trump's prospects next year.)
But it might not be a bad idea to pick out a bottle and stash it away for the occasion.
Interesting insights from the Hasen post concerning the Devins and Baum book about Supreme Court partisanship:
As Devins and Baum argue, today’s politically polarized elite world both shapes and reflects how Justices view their jobs and decide how to vote....
Adam Bonica and Maya Sen’s work confirms that the leftward drift of lawyers overall is accelerating, giving plenty of affirmation for the liberal Justices on the Court.
True! Someone finally acknowledged this reality.
At the same time, the ascendancy of conservatives and libertarians in the Federalist Society has created an alternative set of elite actors to whom conservative Justices on the Supreme Court can look for ideas, law clerks, and social affirmation.
This divide means fewer “evolving” Justices and greater division on the Court over time
False. The legal guild is overwhelmingly progressive. The progressive elite is is far larger and more influential than our band of merry Federalists.
This is why progressive justices remain rubber stamps for progressive policy, but rule of law justices often "evolve" away from the law over time to rubber stamp progressive policies. See. most recently, Kennedy and Roberts.
Still, three out of four points is not bad.
If you take Puerto Rico's federal taxes paid from 1990-2009 and subtract federal spending to the state (all in billions) you get -182.4. Please note that that number is less bad than the same for New Mexico (-201), Alabama (-290.6), Kentucky (-207.5), South Carolina (-192.4) and other 'Red' states (in fairness, some Blue states have whopping big numbers as well [Virginia and Maryland both over -500], though the top state in the plus is Blue New York (at +956).
Of course none of that is relevant. What's relevant is that people should not be ruled over without representation. Blocking Puerto Rico statehood because it may in the short term produce 'Democrat' (or as a troll would put it, 'Donkey') elected officials is to embrace partisanship over principle.
I like Scott and Mark's ideas on changing the Court. Anything to make it less political and stop this game of trying to get younger and younger persons of your party on the court is worth thinking about.
"I will pop the cork on some fine champagne if the Senate under any majority eliminates the filibuster."
Bart only likes his countermajoritarian elements of our government when they work (at the time) to his partisan favor. Who would of guessed?
"See. most recently, Kennedy and Roberts."
Roberts has no more deviated from conservative principle than Breyer and Kagan have from 'progressive' principle. Robert's one sin is voting to uphold the ACA rather than embracing a radical, politicized a-textual theory. What he did was really the conservative thing to do.
In the same case Breyer and Kagan joined him in handing a dagger to hyper-partisan states to better avoid the Medicaid expansion under the also a-textual 'coercion' theory concocted out of thin air by conservative radicals.
SPAM can't be so ignorant as to be unaware of the rubber stamping of the merry Federalists (reminiscent of anti-federalists of the Founding) Thomas, Alito, Gorsuch and Kavanaugh, plus the frequent rubber stamping of the Chief.
The concept of an independent judiciary is noble for a government of laws, not of men (now women as well). Should such ideal of independence be subject to the politics of members of the judiciary? CJ Marshall showed his politics with Marbury v. Madison (1803). Political science has focused on the politics of the judiciary over the years and especially with the political polarization of the past several decades. While we're a government of laws, they are effected by men, and how women as well. If such judicial politics is the problem with achieving an independent judiciary, how can it be avoided? Judicial politics is de facto baked into the Constitution, as demonstrated by the lame duck nomination and approval of CJ Marshall.
Mr. W: What's relevant is that people should not be ruled over without representation.
Agreed. We should grant PR its independence immediately.
Bart only likes his countermajoritarian elements of our government when they work (at the time) to his partisan favor.
So, you believe that the GOP will control the Senate in perpetuity?
Roberts has no more deviated from conservative principle than Breyer and Kagan have from 'progressive' principle.
I already corrected you on this. Obamacare held one progressive policy (federal funding for Medicaid) hostage to another progressive policy (expanding Medicaid). There was no rule of law alternative to a progressive policy.
"Of course none of that is relevant. What's relevant is that people should not be ruled over without representation. Blocking Puerto Rico statehood because it may in the short term produce 'Democrat' (or as a troll would put it, 'Donkey') elected officials is to embrace partisanship over principle."
I agree with DePalma on this: We should cut all those territories free.
What's been blocking Puerto Rico statehood so far is Puerto Ricans, who seem to prefer the status quo to either statehood or independence.
"We should grant PR its independence immediately"
Forcibly taking and ruling a place for decades into destitution and then granting it 'independence' to wash one's hands of it is terrible of course. It's like mis-raising a child and then at the age of 18 saying 'I know I've mis-raised you, so now I'm going to get totally out of your life.'
"you believe that the GOP will control the Senate in perpetuity?"
The current GOP thrives on the anti-democratic structure of the Senate, yes.
"Obamacare held one progressive policy (federal funding for Medicaid) hostage to another progressive policy (expanding Medicaid)"
As I noted this argument loses in two ways: 1. everyone knows the expansion of Medicaid was much, much more likely by holding the federal funding in general 'hostage' to it, and 2. even if this nutty revisionism of what was going on here is to be accepted, then the Sotomayer and Ginsburg's vote, according to this logic, prove my point and disprove Bart's.
"We should cut all those territories free."
Once you've adopted a kid you can't just 'cut them free' because you don't like what you're raising of the kid has produced.
There are various signatories to the proposal linked by Scott including this blog's own Sandy Levinson and Eric Segall (Dorf of Law), who is a liberal but also disagrees with various of his fellow travelers on court power issues from time to time.
I asked ES on Twitter and he said he still strongly supports the proposal. He also has pushed an idea of an eight person Supreme Court, split by ideology. He argued for it well in articles but I myself am not really supportive both pragmatically and on principle. This proposal seems more intriguing. I think there is a good case to be made that some sort of significant change should occur in the courts & again I'm open to options.
And, as with other changes over the years, including even in this very century, change does occur. At times, in ways we don't expect. One way change comes is by building coalitions that address various sides and this to me is the way it can occur HERE for the long term. A raw majority vote isn't the way to get success long term. "Tit for tat" can be prevented or tempered in various respects. Mark Field points to how structural changes can help. See also, talk about changing the Electoral College. Again, this might seem impossible now. See Trump/2015.
The issue about statehood should be about popular sovereignty. If the people of Puerto Rico, fellow American citizens, clearly want statehood, they should get it. It would be the easiest way also to correct the injustice of them not having the right to vote for POTUS. A place like Guam population-wise alone is less state-worthy. Other than "but Wyoming" honestly so is D.C. I do think justice does require better protecting their rights.
Adding four senators is offered by some on purely partisan power grounds but that isn't how I look at it. Plus, long term, that's a limited view of things anyways. Not only because the politics of Puerto Rico alone is complex. A big picture look at the immediate issue would look toward things like H.R. 1
But, concerns behind supporters of court packing [including the felt illegitimacy of one or more justices] remain and mistaken history or lame comparisons (I reference a previous post on this blog) does not help clarify matters too much.
"We should cut all those territories free"
I'm curious about the answer to this question: why? There's a long history of acquiring territories and then making them states. Why not here? It can't be 'they're dependent on us,' so is a lot of Red states. It can't be 'cultural differences,' as Hawaii, or heck, Louisiana were also.
"Forcibly taking and ruling a place for decades into destitution"
Constant GDP per capita for Puerto Rico
Currently almost 6 times what it was back in 1960, when the data begins. That's some awful ruling into destitution there.
Joe, why should population matter at all? To me the principle re Guam or whatever is, are these people under US rule? If so, do they have representation? If yes and no then the conclusion is this must change. The DOI demands no less, and unlike our resident conservatives I take the principles in that document as important.
Also re Guam and statehood, to build on what Whiskas said, I look at it as a two-part analysis. The second part being, "Does the population of this area that wishes full representation constitute a group that feels they have a unique perspective for which they want to advocate?"
This argues for them to become a state, regardless of population. (Alternatively, in theory, maybe[?] a territory could petition to join an existing state that may match their viewpoint, such as Samoa joining the possibly-future state of Guam.)
Also, and now I'm REALLY diverging from the topic of this thread, we could stand to expand the House of Representatives, too, to give citizens more access to their rep and cut the cost of running for office.
So, the issue of states with more senators than representatives could be ameliorated, and the "population per unit of representation" be made to fit within similar ranges regardless of a state's population. In other words, this reinforces the notion that total population shouldn't matter, as per Whiskas.
Plus, trend-wise, there are a few rural states headed toward Guam-sized population over time, and they certainly aren't going to give up their two senators.
As for size, cube root of the population makes sense to me:
I agree, no rule without representation. I'd just end the rule part, not the no representation part.
Why cut them free? Because they're not culturally part of the US, and they have no prospect of being financially self-sufficient so long as they're yoked to us.
The last thing we need is to add states that are permanent welfare cases, and thus permanent votes for more federal government spending. (Which is why Democrats want them to become states.)
And we shouldn't have conquered Hawaii, either.
I've got no problem with increasing the size of the House, particularly if it were coupled to introducing a reasonable form of PR. Let the members meet by teleconference.
"Because they're not culturally part of the US, and they have no prospect of being financially self-sufficient so long as they're yoked to us"
Hawaii is 'culturally part of the US' (and what does that mean given the culturally diverse nature of the US, my wife from the North and me from the South come from 'culturally different' worlds) but PR is not?
As to financial dependency I don't think you can point to a time when your state paid more taxes than it took in federal expenditures.
"and thus permanent votes for more federal government spending"
Ah, here's the *real* answer.
Mark Field and others have supported expanding the size of the House of Representatives & apparently we have broad support here on the matter.
And we shouldn't have conquered Hawaii, either.
We conquered Hawaii because we wanted the economic benefits and Pacific Ocean naval presence it offered. It was done unjustly, but it was done. "If you break it, you own it."
How would this "being financially self-sufficient" test be met by many current states? The West was one big federal subsidization affair and that region still relies on the federal government in various ways. The same applies to various poor red states.
As to not "culturally" being part of the U.S., not sure how that test is met either. I reckon Puerto Ricans in general consider themselves Americans. They have American institutions and so forth. "Culturally" many residents of the continental U.S. feel very isolated from current norms. Brett himself at times tbh seems that way on various things.
The people there don't from my understanding want independence though its unclear there is a clear stance on anything. I get the idea that a loose majority might favor commonwealth status over statehood but that still would warrant, as long as they are American citizens, such things like the right to vote for POTUS>
Hawaii is culturally part of the US NOW. Not when it was an independent country we conquered back in the 1890's.
And, yes, I do find the left's desperation to create more votes for ever larger government disgusting.
"How would this "being financially self-sufficient" test be met by many current states?"
Not one of the states is remotely in as sad of economic shape as the territories.
And the extent of federal dependence of many states is exaggerated by counting spending on military bases or national parks inside their borders as spending on them.
Yes, they should have some sort of "representation," but statehood means more than that.
Statehood in our system brings with it two senators and a certain special degree of power pursuant to constitutional federalism. I think too of Native American tribes. There are lots of them -- some with under one thousand people. Making each their own sovereign area equal to a state would to me not be a good idea. So, we have a mixed system in place.
Guam has about 165K people. Let's round U.S. population off to 330M. Even 1000 members of Congress (which is probably too large) would give Guam an unbalanced representation pursuant to one person, one vote principles. OTOH, surely, Guam should be able to vote for POTUS.
Or, take the Northern Mariana Islands. 55K. Full statehood seems off. Historically, from the times of the Northwest Ordinance, statehood was understood to require some baseline of population. This seems appropriate to me.
There might be a way to combine the territories somehow (like they are currently broken up among courts of appeals) to address this. I think, e.g., if possible, the people of D.C. could be part of Maryland or Virginia in the House of Representatives.
"And the extent of federal dependence of many states is exaggerated by counting spending on military bases or national parks inside their borders as spending on them"
Self-sufficiency matters ... except for my artificial exceptions.
I am simply not aware of the state of Guam or the Virgin Islands or whatever to adequately compare it to the poorer states of the Union (including the numbers of people involved) but if I selectively skip certain things like that, it might help me out. Regardless, we as a nation has a duty to our citizens, including problems that are a result of our own history.
"And, yes, I do find the left's desperation to create more votes for ever larger government disgusting."
Mr. W. et. al. support popular sovereignty here. Your disgust at the basic values of republican government are duly noted. But, not only "the left" supports it. If you are against something, it's best to be fully aware of the alleged problem.
Puerto Rico is culturally and lingusitically a foreign country, far more impoverished than our poorest states and is more corrupt than Chicago.
As a state, PR would bring nothing to the United States and would represent a net drain on the economy. As a commonwealth, their welfare state benefits are block granted and capped. As a state, a heavy majority of the population would qualify for one or more open ended welfare state benefits including EITC.
My patience with PR vanished after the hurricane. Despite heroic efforts by our military and civilian agencies to bring assistance to the island, the corrupt wannabe Democrats running PR whined about the slowness of the assiatnce, demanded we rebuild their third world infrastructure, including the power grid they ran into the ground before the storm, and provide them with welfare increases until the rebuild was complete.
Give them immediate independence.
"There might be a way to combine the territories somehow (like they are currently broken up among courts of appeals) to address this. I think, e.g., if possible, the people of D.C. could be part of Maryland or Virginia in the House of Representatives."
I'm in favor of retrocession myself, but it might take some persuading to get Maryland or Virginia to take the populated parts of DC back, given how poor and high crime parts of them are.
" I do find the left's desperation to create more votes for ever larger government disgusting."
This reason for rejecting PR statehood is bogus because:
1. Many red states are federal recipients
2. It assumes the state is permanant (to the extent it doesn't it shows a commitment to current partisan concerns over principles)
Also, the 'but that's military or parks spending argument' is irrelevant, why should I as a taxpayer care that S Carolina is more of a suckler on the federal teat than PR because they suckle for military largesse?
"As a state, PR would bring nothing to the United States and would represent a net drain on the economy. "
This can be said of several red states, as I've shown. And those states don't even have the excuse of long time exclusion from the polity!
"Despite heroic efforts by our military and civilian agencies to bring assistance to the island, the corrupt wannabe Democrats running PR"
Let's remember that it was only TWO GOP conventions ago that the Republican First Lady of PR addressed the convention. PR is Democratic leaning because of its ill treatment by the GOP. Assume some responsibility, conservatives (physician heal thyself!)
"Also, the 'but that's military or parks spending argument' is irrelevant, why should I as a taxpayer care that S Carolina is more of a suckler on the federal teat than PR because they suckle for military largesse?"
Maybe because the soldiers training at military bases in S.C. are for the common defense, not just the defense of S.C.?
The postmen who deliver the mail in SC deliver in and out of state mail. And the military in SC tend to use my tax money on SC laundries, restaurants, retail, etc
Sorry, no real difference to Joe Taxpayer
A bit of historical irony for you: Before they alienated most of the heartland and become an urban rump party, Democrat Congresses picked the locations for nearly all of our current military bases.
It is ironic that so many of these dependent states now want to bite the hand that fed (and feeds) them, yes.
"The 1938 election occurred during a recession within a depression. The Wagner Act led to mass labor unrest and new Social Security taxes reduced pay checks further."
Lol, the biggest thing that happened was that FDR cut spending around this time.
Economic issues are likely the most important for electoral purposes (that's what the poli sci research says), and regardless of which economic issues those were, it means that "court packing" was not a significant factor.
The Democrats are now an urban party. Pray tell, where in DC, Boston NYC, Chicago or LA would you propose we set up military training areas, especially firing ranges, to even up the military spending benefits between local partisans? Artillery practice would give a new meaning to the term urban blight removal.
BD: "The 1938 election occurred during a recession within a depression. The Wagner Act led to mass labor unrest and new Social Security taxes reduced pay checks further."
Mr. W: Lol, the biggest thing that happened was that FDR cut spending around this time.
Have you ever looked past the progressive propaganda you were fed in school to the actual data? The Democrats sought to buy the 1938 election by raising spending by about 20%. They only slowed slightly by 1938 to a level which was still substantially higher than in 1935 with a far worse economic outcome. In contrast, Truman literally cut federal spending in half by 1946, despite progressive claims this would plunge the country back into a depression. Instead, the economy boomed.
What progressive texts studiously ignore was the rampant union strikes and violence following the Wagner Act which slowed or shut down businesses across the country. While the film Hoffa is unabashedly pro-union, its labor riot scenes are generally accurate. The Democrats had to strong arm the unions to stop this thuggery during WWII and the Republicans ended it entirely with the Taft Hartley Act of 1947.
"The OP is what I would call the "old" interpretation. Later studies have shown that the "court packing" had little or no impact on the elections of 1938. Far more important was FDR's premature decision to tighten the economy. This set back the recovery, which didn't revive entirely until WWII spending solved the Depression"
I have discussed court packing with several people who lived through it and every one of them thought that the revisionism is complete BS. It's what Democrats want to believe. The reality is that FDR was still popular on economics and the New Deal and court packing was a terrible own goal.
And Mark's claim that it will make the Court "legitimate" is pure partisan hackery. It is legitimate NOW. Successful court packing will make it ILLEGITIMATE among the majority of Americans who are not Extremely Online dishonest Democratic partisans.
"should add that the "traditional" story about the supposed impact of the Court reform plan never actually made much sense."
Are you seriously this big a spinning partisan?????
I want to say about this whole notion of legitimacy, and the supposed reason for court packing. In both 1938 and now.
In my lifetime, there has been only one time when the Supreme Court ever really came close to facing a "legitimacy" crisis. That was Bush v. Gore. The Court took on an issue it really wasn't institutionally capable of deciding, and then decided it in an obviously partisan and hackish way which almost nobody believed was based on any sort of real legal reasoning, to achieve an obvious political result, split along party lines. And it took a hit for doing this.
But even with Bush v. Gore, it was, in a sense, "harmless error". First, it was a one-off, and Bush won reelection on his own merits (such as they were) anyway. Second, had legitimate constitutional mechanisms been followed, Bush would have been President anyway. The recount Gore asked for was going to end up going in Bush's favor (a broader media recount showed a Gore victory, but he never asked for that and wasn't going to get it even from the Florida Supreme Court); the Florida legislature was going to sign off on Bush's winning the state; and had the matter gone to Congress, Congress would have certified Bush's victory. So the Court's intervention did nothing but prematurely end a process that was going to inevitably end in a Bush victory. (to be continued)
Other than that, the Court has always, in my lifetime, been completely legitimate. It is legitimate now. Nobody is seriously talking about disobeying SCOTUS decisions, nobody is seriously talking about stripping the Court of jurisdiction to hear cases, everyone continues to consider its decisions final and binding, etc. It's poll numbers go up and down, but it still is consistently the most respected branch of government. It certainly kills Congress, and nobody claims Congress is illegitimate.
What has happened, instead, is that partisan Democrats have gotten really upset about losing cases and about not attaining a majority of justices. But that has nothing to do with legitimacy. As for the first part of that (losing cases), this is simply whining. Indeed, Republicans whine about losing cases too. The Obamacare decision didn't upset most rank and file Republicans that much, but the gay rights cases did and the abortion cases did and continue to. This is, however, not an issue of legitimacy. As I tell Republicans who argue that anything other than originalism/textualism is "disobediance of the law", the Constitution creates the mechanism to fill Supreme Court vacancies and reposes the "judicial power" in the Court. The Court, in other words, gets to say what the law means, ultimately, and if you do not agree with it, that doesn't mean it isn't legitimate. It means that at times a President and a Senate majority didn't agree with your criteria for selection of justices and, ultimately, your preferred judicial philosophy. You don't get to win all the cases, because sometimes the other side wins elections and puts their justices on the Court. (to be continued)
Well, the same thing applies to Democrats. We don't get to win all the cases either. There are cases that I profoundly hate, such as Shelby County v. Holder. There are also cases where I think the criticism of conservative courts is overblown, such as Citizens United, and cases that I think would actually come out the same way in other contexts with different justices, such as Trump v. Hawaii, and cases that I don't think are really right but which follow precedent and are issues upon which reasonable people can disagree, like yesterday's decision on method of execution. But lets say they are all wrongly decided. Even so, that doesn't mean the Court is illegitimate. Liberals have lost plenty of times and plenty of arguments. A quarter century ago, the "right to die" was a big liberal priority. The Court decided Washington v. Glucksberg. A crushing loss! But we moved on, and indeed, there isn't even very much agitation to overturn it. Nor are liberals out there trying to overturn San Antonio School District v. Rodriguez or Hudgens v. NLRB, or to revive "The New Property". The conservative victories on those issues have become settled law, just like Griswold and Miranda and Mapp v. Ohio and Katz v. United States have become settled law on the liberal side. That's what happens. Sometimes you don't win. That doesn't make the Court illegitimate.
Nor does liberals not attaining a majority of justices make the Court illegitimate. Let's be clear here-- the Merrick Garland thing was a procedural shortcut. That's all. Republicans had every right under the Constitution to decide not to confirm a politically important nominee before a Presidential election. Indeed, it has even happened before. Abe Fortas! Not only that, this is exactly what the Democrats would have done if Anthony Kennedy or Ruth Ginsburg had died in 2008. Some of them even said it publicly.
Now, of course, in practice, they didn't give him a hearing rather than just voice-voting his nomination down. But that's a distinction without a difference. Essentially we are complaining that our bloviating Senators weren't afforded the opportunity to bloviate on television about how great our nominee was before he inevitably was voted down. Nor are hearings some sacred cow-- for a century, we didn't even have judicial hearings. Somehow the Republic survived.
The point is- Merrick Garland's defeat does not make Neil Gorsuch illegitimate. The issue was teed up for the election, our nominee made a decision as to how much she wanted to emphasize it, and we lost. Yes, we won the popular vote, but we lost. And while some of the reasons we lost were out of control, others were within our control. For instance, we didn't really have to spend the last couple of decades trashing the Rust Belt and all the people who lived there while elevating prosperous liberal city-dwellers on the coasts who were comparably wealthy and whose votes didn't matter in the electoral college. Nor did we have to nominate a presidential nominee with a decades long record of public dishonesty and misfeasance, just because it was her "turn". Those were our choices, and we paid for them. Winning the popular vote is like having more yards of total offense than your opponent-- it may mean that in a just universe, you should have won the game, but under the rules of the game, it means nothing. (to be continued)
So there's no "legitimacy" issue with the Supreme Court and thus no justification for court packing. Nor was there any justification in 1938, either. Yes, the Roosevelt Administration was losing in court fairly often. It's true. And some of THOSE decisions were bad, too. (Economic substantive due process as it was applied prior to the switch in time was both incoherent and inconsistent, for instance.) Other decisions weren't bad at all; they just blocked popular programs. (Schechter Poultry was unanimous, and rightfully so.) But, again, you don't get to win all your cases in court. And the reality is, switch in time or no switch in time, the Democrats ended up winning five elections in a row, which allowed them, ultimately, to get justices onto the Court, which is exactly how the system should work if the Court is blocking legislation that the public believes should not be blocked.
And that's exactly why-- despite the revisionist lies we are now hearing-- FDR's court packing scheme was destined to defeat and was such an own goal. FDR was trying to cheat. He wasn't willing to wait for the appointment of justices through the legitimate political process. He simply wanted to throw bodies onto the court to reverse decisions. Never mind if the reasoning was any good. Never mind if established doctrines are thrown away. Never mind how it might effect the operation of the Court or how the Republicans might eventually retaliate. He wanted to CAUSE the illegitimacy of the Court. Because a PACKED Court WOULD be seen as illegitimate. Every decision he won after packing went through would be seen, correctly, as the product of a cheating scheme. The solution to a Court that sometimes acts as an unfortunately politicized institution is not to turn it into a fully politicized one. We might as well just go all the way to judicial elections, like states have. Or maybe turn the Court into a Parliament, with all the justices appointed by whichever party wins the election.
And this, by the way, is why nobody other than a blind partisan ever refers to FDR's court packing proposal as a "reform". It wasn't a reform. It wasn't some mechanism to overhaul the Court's operations, to add efficiency or fairness to the process, or anything else. It was just a cheat. We are losing the cases now, let's do this and then we get to win all the cases instead.
We simply don't have any legitimacy crisis with the Supreme Court. The Court is legitimate, and it will continue to be legitimate. My side isn't going to win all the cases going forward, but conservatives took some big losses in the past too and some of them (like gay marriage and especially the Warren Court's decisions on criminal procedure) are locked in. And my side will win some elections in the future and we will get appointments too, including possibly an appointment of a replacement of a conservative.
However, the 18 year term limit proposal addresses another thing that really is a problem-- in a hyper-partisan environment, you can take advantage of modern extensions of lifespans to lock people into the court for many decades. Imagine if the Democrats win the 2020 election and the Senate and nominate and confirm AOC to the Supreme Court. They could have a seat for 60 or more years! The 40-somethings often nominated nowadays could stay on the Court for 50 if they stay healthy.
And in that situation, you really could have a situation come about where the political system has no check against an out of touch Supreme Court with justices who cannot be replaced, and the framers assumed this wouldn't have happened because life expectancies were so much lower back at the time of the founding. An 18 year term limit would solve this problem and would also be fair to both parties, because as long as you win enough elections, you will have court majorities. I just don't see how it gets enacted short of a constitutional amendment.
I might disagree with some of the particulars, but that's kind of agreeing with your point. The Court doesn't have the kind of legitimacy problem that requires some reform for it to be seen as "legitimate", it's actually about the best situated branch of government in that regard.
But I will quibble: The Court's legitimacy numbers are high compared to Congress, but that doesn't mean there isn't a hard core of people who don't accept it as legitimate. Chiefly because they don't accept any institution they don't control as legitimate!
These are the same people who still say of Bush that he was "selected, not elected", (Nice analysis there, only part I'd disagree with is that it was a bipartisan decision that the state supreme court was doing wrong, they disagreed on the remedy.) who want Trump impeached and don't care what pretext is used, who in the government are the "resistance".
There's a large faction on the left who simply judge the legitimacy of institutions and office holders based on whether or not THEY control that institution or office, and nothing more.
It's a bit different on the right, which tends to regard the office or institution as legitimate, and attribute illegitimacy to particular acts. So that the Supreme court can be regarded as a legitimate institution even as Roe v Wade or Obergefell are seen as illegitimate decisions.
The ump is still really the ump even if he occasionally makes a biased call.
Necessity may demand certain types of military sites be in rural areas but it doesn't demand the levels of spending. The fact remains these Red states are as dependent as Puerto Rico, sucking more on the federal teat.
So, your position is that it's welfare payments to the states because, while the bases might be rationally sited in those particular states, you think the level of military spending is too high?
That we have too much military spending in order to divert money to these particular states?
I find that a bit of a stretch. Oh, not that military spending isn't used as state welfare payments, it certainly is. But that's mostly on the procurement side of things, not the bases.
But I'd be glad to test the proposition by reducing that spending.
Federal spending is federal spending, whether it's paying for the soldier's milk and haircut, the defense contractor's milk and haircut, the social security or the welfare recipient's food and haircut. Both involve you taking money from me and giving it to someone else.
And yes, of course Congresspersons were very much motivated to bring military bases to their rural areas because they knew it 'primed the pump' of the local economies there. It's pork.
Correction to my last post. The Dems sought to buy the 1936 (not 1938) election by spiking spending.
Mr. W: Necessity may demand certain types of military sites be in rural areas but it doesn't demand the levels of spending. The fact remains these Red states are as dependent as Puerto Rico, sucking more on the federal teat.
So your position is the US should disarm to break red state "dependence" on military spending?
Here is a clue which you will willfully ignore:
Democrats have alienated the voters who reside in the supermajority of the national geography.
This geography is less populated than the blue megalopolises, but contains the vast majority of federal highways and military facilities which supply and defend those cities.
This geography has a lower cost of living than than the blue megalopolises, thus qualifies for more of the progressive nationally means tested welfare state.
Past Donkey congresses placed nearly all of this infrastructure and enacted this welfare state before they alienated the proximate voters.
Just one comment* on all of that:
But even with Bush v. Gore, it was, in a sense, "harmless error". First, it was a one-off, and Bush won reelection on his own merits (such as they were) anyway. Second, had legitimate constitutional mechanisms been followed, Bush would have been President anyway.
Bush v. Gore was a result of the Supreme Court's growing, on both ideological sides, view of itself and its role. It was not really a "one-off" but a basic symbol of its belief in its power and role. This to me is an example of needing to look at this in a big picture sort of way and experts (DE is one for expertise) who studied the matter looked at it that way too. It was troubling on that level and in no way was a "one-off" given how they later decided on a range of very important issues.
The conclusion that he would have won anyway is probably on point though how things happen matter a lot. If a great ball team would have "won anyway" but did so by cheating (as many think happened there), handwaving the cheating is wrong. The Marlins manager, e.g., made a reference recently how he felt the umpires made various bad calls in a game and tossed in "I know people figure we won't do well this year anyways."
This too mattered. First, it is true enough the nation as a whole (Justice Breyer repeatedly cited this as a sign of our political equilibrium -- he strongly dissented but noted how the opinion was accepted, including by Democratic leaders) accepted the result. But, first off, there were those who very well did not. Their lingering disgust and distrust mattered though perhaps they don't matter to some as an emotional-filled dissenting minority. This group basically continues often to basically scornfully distrust the Supreme Court. This matters and causes various problems.
(Saying no other opinion really was a threat to the 'legitimacy' of the Court ... let's say Citizens United or something ... is questionable. It is a matter of saying too few people cared. How do we judge that? Take Lochner v. NY. That was a controversial moment. Even Theodore Roosevelt used it as a political symbol. But, the Supreme Court wasn't really in thread of losing its legitimacy on some mega level even then. We don't need a Dred Scott to be concerned about the legitimacy of the Court.)
Second, actually following ideal constitutional practices would have worked better. That is why they are there after all. It was a failure of basic responsibility as well though as I noted in the past that isn't always enforced by lawsuits or something. And, again, not following that practice had lingering effects on how the government worked. It was not really a "one-off" in that regard. We are told that we should let's states have more discretion. Suddenly that wasn't allowed. We are told we should let the political processes do their job. Suddenly that wasn't to be.
Forcing people and institutions in hard cases to follow a certain path is a special test and provides a precedent for the future. We handwave the failures there at our peril in my view. Obviously, me and Mark strongly disagree with DE on various matters, with DE repeatedly challenging our basic integrity more than once. So, this disagreement is not surprising. I also won't add more on the point but wanted to toss that in.
"So your position is the US should disarm to break red state "dependence" on military spending?"
You argued against statehood for Puerto Rico on the grounds that they are dependent. I blew that argument out of the sky by introducing the fact that many Red states are as much, if not more, dependent. You then wanted to argue that Red state dependency is somehow special or ok and I blew that one out of the sky too.
For what it's worth though I would like to see military spending significantly cut.
"Democrats have alienated the voters who reside in the supermajority of the national geography."
The GOP certainly does well in a democracy of dirt even if not as well with a democracy of people.
"Bush v. Gore was a result of the Supreme Court's growing, on both ideological sides, view of itself and its role."
It was a ridiculous opinion and a transparent partisan power grab.
In Bush v Gore, the ruling was 7-2 on the merits. It only split on partisan lines on the remedy.
I agree with Dilan on the fundamental issue: While the state supreme court was acting unconstitutionally, the proper remedy was not the Supreme court deciding the issue of which slate of electors would be sent to the House. The House itself is the judge of that matter.
They should have contented themselves with slapping down the state supreme court, and let the House decide the matter of which electors would be counted. But they don't have a good sense of the limits of their own jurisdiction.
"The GOP certainly does well in a democracy of dirt even if not as well with a democracy of people."
In a pure democracy of people, ignoring dirt, China would control half the world. They'd be perfectly entitled to rule all of Asia.
Despite having all those people, their power is confined to their borders, because dirt, where the people are, matters, too. There's just a fundamental difference between the majority of people ruling the area where they live, and that same majority ruling an area where they DON'T live, simply on the basis of outnumbering the people who do live there.
The US system was set up from the start as a federation, and in federations, dirt matters.
"It only split on partisan lines on the remedy."
Which was to send it back to the state involved. The fact that the 'state's rights' group voted against this remedy once again demonstrates the paucity of the claim of being for 'state's rights.'
"Despite having all those people, their power is confined to their borders, because dirt, where the people are, matters, too."
The problem with this argument is that we are talking about federal elections where everyone lives within the same border.
Only if you ignore most of the relevant borders, and insist that only the borders of the federation, not the states that make it up, count.
By the same standard, China rules Asia, because only the borders of the continent count.
Bush v Gore, the ruling was 7-2 on the merits
I will continue not to add to my general remarks as a whole but will note this is wrong.
It was 5-4. Breyer and Souter did not "concur in judgment in part," which occurs repeatedly. In fact, Breyer joined Stevens' dissent. Given their druthers, Souter and Breyer would have accepted a compromise. But, that didn't happen.
"Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting."
"Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join as to Part I, dissenting."
"Justice Souter, with whom Justice Breyer joins and with whom Justice Stevens and Justice Ginsburg join with regard to all but Part C, dissenting."
"Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part I—A—1, and with whom Justice Souter joins as to Part I, dissenting."
That "Asia Constitution" is quite the document, establishing a common border like that. One wonders what other marvels it holds.
Brett is using an analogy of across polities in a discussion about how a polity itself should be governed.
Additionally, we tried an Articles of Confederation, but gave it up for an establishment of a *United* States of America, a *Union* with a *common* defense and *general* welfare.
When it comes to the selection and application of *federal* officials and policy democracy is in order. It's telling that no state selects and applies its officials and policy on the grounds of dirt being more important than the will of the *people.*
The 7-2 decision, on the Equal Protection clause, was the one I was referring to. All the Justices except Stevens and Ginsberg agreed that the count as it was ordered conducted by the state supreme court was unconstitutional as an equal protection violation.
The 5-4 decision was that there wasn't enough remaining time for a constitutional recount to be conducted. That's a remedy vote, not a merit vote.
"Brett is using an analogy of across polities in a discussion about how a polity itself should be governed"
The US is a federation, a collection of polities.
"When it comes to the selection and application of *federal* officials and policy democracy is in order. It's telling that no state selects and applies its officials and policy on the grounds of dirt being more important than the will of the *people.*
Most states did exactly that, until Reynolds v. Sims ruled that states could not, constitutionally, design their legislatures in the exact same way the federal legislature was designed. So, all it's telling of, is what the Supreme court wanted.
"The US is a federation, a collection of polities."
Not at the federal level. At that level it is a Union whose laws are expressly the supreme law of the land.
"until Reynolds v. Sims ruled that states could not, constitutionally, design their legislatures in the exact same way the federal legislature was designed"
Because it wass palpably unfair and in violation of the Constitutional protection of equal protection of the law and the right to vote. The same is true for the federal government's system.
"That's a remedy vote, not a merit vote."
And a person who actually believed in state's rights would have left the remedy to the state in question.
"The 7-2 decision, on the Equal Protection clause, was the one I was referring to."Post a Comment
There was one decision.
Many decisions involve many parts and at various times justices don't agree with all of them. They then say they "concur in part" and usually say why.
That didn't happen here. Each justice merely DISSENTED and (this is rarely noted for some reason) Breyer even joined Stevens' dissent. Breyer didn't (this too repeatedly happens -- it just did in the dissent he wrote on Monday) "concur except as to section" or something either.
Souter and Breyer in their dissents (sic) somewhat differently viewed the equal protection argument with Souter taking it more seriously. Even he didn't merely go along with it. The per curiam's claims as to what they believed doesn't change this either.