I appreciate Chris reiterating the theme of Steve's book so we are reminded of why this matters, and his asking if this is a natural evolution -- I wonder is this how a handful of judges deal with exponential increase in cases/population without itself growing exponentially? -- and Steve noting that the result looks deeply unprincipled thus not a natural evolution of a valid body. What went wrong? Different world, same Constitution, thus new procedures? Is Robert's willingness to play crooked the reason he is Chief? So, Roberts is unhappy with Obama trying to avoid SCOTUS review, and then Obama is robbed of his final appointment. Connection?
While I agree all rulings should be be accompanied by a written summary (at least), the observation that some cases from the emergency docket appear "unprincipled" does not mean that they are. As Prof V notes, some types of emergency rulings are acceptable and others are not. I for one, am not quite sure where that line is drawn.
I don't know how Steve finds the time to make these appearances, or how SCOTUS can possibly deal with the size of regular docket without fundamental upgrade of the process, and I suspect the reason SCOTUS doesn't organize a solution is that a broken court gives crooks more power.
Seems to me the "end-run" by the EPA was apparent on its face. Based on the regulatory demands on the states and the normal timing of judicial review, it was quite likely this controversy would have effectively sidestepped judicial review (had the emergency stay not been ordered). I see this as a win for the rule of law.
First thought on Roberts' move: I wonder how much his portfolio was stacked w/ fossil fuel companies. Second thought: Aren't the justices required to disclose those kinds of investments? I thought they were. If points of justices' self-interest were given true sunlight, it would be easier to trace or dismiss the conclusions we're drawing.
It's almost like the majority kind of grabs the wheel steering the administrating part to re-orient it, and also grabs the wheel steering the legislating part--like if you put these kinds of rulings together in stop motion somehow, you'd be able to see the vehicle steering toward a very distinctly partisan destination.
Thank you so much. Also, Yikes McYikesAlot, this majority looks more and more captured--we periodically see the strings and can posit who's pulling them.
And of course that isn't the reason. He has a net worth in the high tens of millions his legal reputation and impact are far more valuable to him that a slight stock boost (if he wants money people will pay honorariums).
Just think of yourself or your friends. What gets them really fired up isn't an issue where they have a financial interest it is one where they have an ideological view. To someone like Roberts the order they enjoined was the equivalent of a law banning abortions to the left. You won't agree but he just genuinely believes that this kind of government intervention is deeply harmful and dangerous (ideally that wouldn't impact rulings but justices are human).
Most people have some strong (and often crazy) views about some subject. Otherwise very scientific people will insist they know some dude rose from the dead 2000 years ago. When someone on the courts makes a ruling like this it's way more likely to be that than monetary influence.
That's really true--thanks for helping me think it through. There's an agenda that feels to them larger than--maybe the oath they swore? The institutional norms they're shattering?
I didn't know about Chief's net worth. I was just remembering Clarence Thomas and his reported complaining about money to billionaire bestie Harlan Crow. So a transcendent ideology might require voting first and finding Constitutional justification later if it's an emergency. Doesn't seem like it was--it was *years* before any compliance would've been needed, and in between, courts doing their jobs processing all facts. It was the time that process takes that they refused to countenance.
But also, people are greedy. Stories of Alito and Thomas lapping up whatever goodies the Federalist Society or Leonard Leo or Crow can offer have stood without serious pushback. I remember a conversation btw. Dahlia Lithwick & I think Marc Elias--where she suggested that the balance of the captured majority may be voting for its own portfolios (predicting tariff ruling). I don't remember Roberts himself coming up specifically in that talk, though. And I never saw any report of Roberts accepting questionable gifts. But the other thing that figures into that particular fateful slapdown is that probably Roberts and definitely Alito were cranky about feeling "dissed" by one of Obama's people and maybe the admin. in general. So they were protecting their power and pushing back, it seems.
It's strange trying to reconcile Roberts' instinct to trash precedent and leap to defend his version of the nation with his apparent safeguarding the Court via the ACA vote in 2012. The reporting that I remember reading on that was that he knew where history would come out on health care and didn't want the Court to be dragged down on the wrong side of history.
I appreciate your response. I would just add that while I tend to feel like Vladeck does about the need for an emergency action in this case at the same time I recognize that all the justices seem to feel things are an emergency when the conduct seems horrific/scary/unprecedented to them. They shouldn't but they are human.
Ultimately, I tend to conclude that we can't completely take values out of SCOTUS and ultimately it's a democratic institution that we govern by electing presidents and senators. And while these are absolutely not the justices or values I would have selected I am inclined to praise the court for holding up as well as it has.
In a world witb Trump and MAGA I honestly think it's a fucking miracle the supreme court is as sane as it is. It falls short of the ideal in many ways but we could have had a bunch of natural law justices who just openly read their religious beliefs into the law (abortion violates the constitution). Every other branch had gone batshit crazy, merely being deeply wrong and hasty is pretty damn good by comparison.
Thanks for that—it’s important to acknowledge where they *haven’t* gone. I admit I have not kept score of the opportunities they’ve had to drive the truck right off the cliff and didn’t. A parallel scorecard with other democratically deteriorated states might be helpful. We have built a growing resistance in fairly short order—not where it needs to be but still growing.
I do have a hard time with the idea of citizens governing lifetime appointees. I mean, time governs us all, but the setup relies on respect for democratic norms that we assumed for too long (looking at you, Mitch McConnell). And I’m super nervous of how the SCOTUS majority has been scooting toward a type of competitive authoritarianism that permits a Justice to countenance just *a little* racial profiling for *very brief* arrests to check papers we should not have to carry in the first place.
So in my head, that kind of shit has been piling up. Feels like 60-70% of rulings, and more like80-90% on the shadow docket, have been squeezing the democratic oxygen out of the process. I really want to take a big breath and be patiently grateful for the other rulings, but I feel kind of suffocated.
Again, it’s more a sense than an analysis, so it’s good to have that balanced out
I disagree with some of those SCOTUS opinions but there are genuine tradeoffs involved that reasonable people can disagree about. We all agree race can be used in some circumstances, eg the fbi gets chatter that a group of ethnically swedish terrorists is in the area of course the police looking for then shouldn't waste time with black people. The question is when can it be used (how much particularity) and even if I disagree you don't have to be evil or authoritarian to draw that line at a different place -- and I don't want their deciscions being driven by the politics of the moment or the particular application no matter how horrible.
--
I'm really worried about this because there will always be conservatives. There will always be a range of views on racial justice and equality and on government authority vs liberty vs safety (though what that range is changes over time). If we want to keep a democracy there has to be a place for people with those views within our democratic system without it being called authoritarian or seen as deeply dangerous.
What Trump is doing shows us what authoritarian actions really look like and they are incredibly norm breaking. If we want a healthy democracy it needs to be possible for people to have more conservative views on a wide range of these issues without that resulting in them being called authoritarians or treated as if they were somehow on Trump's side. If it just becomes us vs them democracy goes poof.
There will always be conservatives. At the moment there are none in the regime and few acting like it in Congress. No self-respecting conservative would blow up our deficit and double and triple down on enlarging our debt into default bc we can't pay the interest. I was a small gov. conservative for most of my adult life. These guys are not that. What they are conserving is power for the very few by taking it from the very many. That is fascism. Eventually, fascists come for all of us.
Jen Rubin. Miles Taylor. Olivia Troye. Steve Schmidt. Tim Miller & all the Bulwark guys. Lincoln Square. These are conservatives using their voices in service of the Constitution, a flawed document coming out of the flawed birth of a flawed nation. Interpretations vary, but Trump, et. al. are openly pissing all over it. Openly grifting, self-dealing, shorting the markets, probably selling state secrets. No confusing that w/ conservatism.
Authoritarian actions are only norm breaking if the norms are ones that secure our freedom. Orban did his takeover legally at first by changing the Constitution. He started w/ with a bit of captured power, and then accrued more and more over time w/ captured institutions. That is my point. The Court's majority is using power to retain power, dismissing lower courts before even hearing them. That's not conservatism. It's Court capture. Norms have eroded. Roe fell bc. nominees lied, too many chose to believe them, and the majority grabbed their chance out of turn.
The foundational struggle is the very top $$$ and the rest of us, imo. And the majority decided that corporations are people and billionaires have more equality than the rest of us.
There always will be conservatives, but we could do with more political parties that require coalitions. And term limits. And a code of ethics. Meanwhile we do the best we can with diligence, kindness, political action, & common sense. And we listen to people like Steve Vladeck to help us understand.
I’m not fascinated by Roberts. He is a horrible Chief Justice. Speak to Citizen’s United and other bad decisions. Follow the money, isn’t it a good idea to do that?
Are you both kidding?? Of course John Roberts knew exactly what he was doing by reaching down to take the Clean Powers Act case. He knew it was going to set a new precedent that would eventually increase the power of HIS court. That's why he was elevated to the Supreme Court. His goal was to capture the Court, by hook and crook. He knew, he knew.
Thank you!
Shorter questions would be better.
I read the NYT article and it is great reporting that no other news sources seems to care about.
My obly questionis how do we change the practice?
If they finish rolling back the VRA, then what’s next? Brown v . Board of Education?
I appreciate Chris reiterating the theme of Steve's book so we are reminded of why this matters, and his asking if this is a natural evolution -- I wonder is this how a handful of judges deal with exponential increase in cases/population without itself growing exponentially? -- and Steve noting that the result looks deeply unprincipled thus not a natural evolution of a valid body. What went wrong? Different world, same Constitution, thus new procedures? Is Robert's willingness to play crooked the reason he is Chief? So, Roberts is unhappy with Obama trying to avoid SCOTUS review, and then Obama is robbed of his final appointment. Connection?
While I agree all rulings should be be accompanied by a written summary (at least), the observation that some cases from the emergency docket appear "unprincipled" does not mean that they are. As Prof V notes, some types of emergency rulings are acceptable and others are not. I for one, am not quite sure where that line is drawn.
Alarm from inside the Supreme Court
https://smbwhitney233757.substack.com/p/alarm-sounded-from-inside-the-supreme?utm_source=share&utm_medium=android&r=4gg4b
I don't know how Steve finds the time to make these appearances, or how SCOTUS can possibly deal with the size of regular docket without fundamental upgrade of the process, and I suspect the reason SCOTUS doesn't organize a solution is that a broken court gives crooks more power.
Go, Cubs, go!
Remember: Roberts, in his Senate testimony, said he honored precedent.
From that lie has been built the Cath-Con reversal of modern Amercan government.
Seems to me the "end-run" by the EPA was apparent on its face. Based on the regulatory demands on the states and the normal timing of judicial review, it was quite likely this controversy would have effectively sidestepped judicial review (had the emergency stay not been ordered). I see this as a win for the rule of law.
Whoa.
First thought on Roberts' move: I wonder how much his portfolio was stacked w/ fossil fuel companies. Second thought: Aren't the justices required to disclose those kinds of investments? I thought they were. If points of justices' self-interest were given true sunlight, it would be easier to trace or dismiss the conclusions we're drawing.
It's almost like the majority kind of grabs the wheel steering the administrating part to re-orient it, and also grabs the wheel steering the legislating part--like if you put these kinds of rulings together in stop motion somehow, you'd be able to see the vehicle steering toward a very distinctly partisan destination.
Thank you so much. Also, Yikes McYikesAlot, this majority looks more and more captured--we periodically see the strings and can posit who's pulling them.
I wondered the same thing about Roberts’ portfolio.
They are and you can look yourself. Here is his 2016 disclosure: https://fixthecourt.com/wp-content/uploads/2017/06/Roberts-2016-Financial-Disclosure-Report.pdf
And of course that isn't the reason. He has a net worth in the high tens of millions his legal reputation and impact are far more valuable to him that a slight stock boost (if he wants money people will pay honorariums).
Just think of yourself or your friends. What gets them really fired up isn't an issue where they have a financial interest it is one where they have an ideological view. To someone like Roberts the order they enjoined was the equivalent of a law banning abortions to the left. You won't agree but he just genuinely believes that this kind of government intervention is deeply harmful and dangerous (ideally that wouldn't impact rulings but justices are human).
Most people have some strong (and often crazy) views about some subject. Otherwise very scientific people will insist they know some dude rose from the dead 2000 years ago. When someone on the courts makes a ruling like this it's way more likely to be that than monetary influence.
That's really true--thanks for helping me think it through. There's an agenda that feels to them larger than--maybe the oath they swore? The institutional norms they're shattering?
I didn't know about Chief's net worth. I was just remembering Clarence Thomas and his reported complaining about money to billionaire bestie Harlan Crow. So a transcendent ideology might require voting first and finding Constitutional justification later if it's an emergency. Doesn't seem like it was--it was *years* before any compliance would've been needed, and in between, courts doing their jobs processing all facts. It was the time that process takes that they refused to countenance.
But also, people are greedy. Stories of Alito and Thomas lapping up whatever goodies the Federalist Society or Leonard Leo or Crow can offer have stood without serious pushback. I remember a conversation btw. Dahlia Lithwick & I think Marc Elias--where she suggested that the balance of the captured majority may be voting for its own portfolios (predicting tariff ruling). I don't remember Roberts himself coming up specifically in that talk, though. And I never saw any report of Roberts accepting questionable gifts. But the other thing that figures into that particular fateful slapdown is that probably Roberts and definitely Alito were cranky about feeling "dissed" by one of Obama's people and maybe the admin. in general. So they were protecting their power and pushing back, it seems.
It's strange trying to reconcile Roberts' instinct to trash precedent and leap to defend his version of the nation with his apparent safeguarding the Court via the ACA vote in 2012. The reporting that I remember reading on that was that he knew where history would come out on health care and didn't want the Court to be dragged down on the wrong side of history.
Well huh.
I appreciate your response. I would just add that while I tend to feel like Vladeck does about the need for an emergency action in this case at the same time I recognize that all the justices seem to feel things are an emergency when the conduct seems horrific/scary/unprecedented to them. They shouldn't but they are human.
Ultimately, I tend to conclude that we can't completely take values out of SCOTUS and ultimately it's a democratic institution that we govern by electing presidents and senators. And while these are absolutely not the justices or values I would have selected I am inclined to praise the court for holding up as well as it has.
In a world witb Trump and MAGA I honestly think it's a fucking miracle the supreme court is as sane as it is. It falls short of the ideal in many ways but we could have had a bunch of natural law justices who just openly read their religious beliefs into the law (abortion violates the constitution). Every other branch had gone batshit crazy, merely being deeply wrong and hasty is pretty damn good by comparison.
Thanks for that—it’s important to acknowledge where they *haven’t* gone. I admit I have not kept score of the opportunities they’ve had to drive the truck right off the cliff and didn’t. A parallel scorecard with other democratically deteriorated states might be helpful. We have built a growing resistance in fairly short order—not where it needs to be but still growing.
I do have a hard time with the idea of citizens governing lifetime appointees. I mean, time governs us all, but the setup relies on respect for democratic norms that we assumed for too long (looking at you, Mitch McConnell). And I’m super nervous of how the SCOTUS majority has been scooting toward a type of competitive authoritarianism that permits a Justice to countenance just *a little* racial profiling for *very brief* arrests to check papers we should not have to carry in the first place.
So in my head, that kind of shit has been piling up. Feels like 60-70% of rulings, and more like80-90% on the shadow docket, have been squeezing the democratic oxygen out of the process. I really want to take a big breath and be patiently grateful for the other rulings, but I feel kind of suffocated.
Again, it’s more a sense than an analysis, so it’s good to have that balanced out
I disagree with some of those SCOTUS opinions but there are genuine tradeoffs involved that reasonable people can disagree about. We all agree race can be used in some circumstances, eg the fbi gets chatter that a group of ethnically swedish terrorists is in the area of course the police looking for then shouldn't waste time with black people. The question is when can it be used (how much particularity) and even if I disagree you don't have to be evil or authoritarian to draw that line at a different place -- and I don't want their deciscions being driven by the politics of the moment or the particular application no matter how horrible.
--
I'm really worried about this because there will always be conservatives. There will always be a range of views on racial justice and equality and on government authority vs liberty vs safety (though what that range is changes over time). If we want to keep a democracy there has to be a place for people with those views within our democratic system without it being called authoritarian or seen as deeply dangerous.
What Trump is doing shows us what authoritarian actions really look like and they are incredibly norm breaking. If we want a healthy democracy it needs to be possible for people to have more conservative views on a wide range of these issues without that resulting in them being called authoritarians or treated as if they were somehow on Trump's side. If it just becomes us vs them democracy goes poof.
There will always be conservatives. At the moment there are none in the regime and few acting like it in Congress. No self-respecting conservative would blow up our deficit and double and triple down on enlarging our debt into default bc we can't pay the interest. I was a small gov. conservative for most of my adult life. These guys are not that. What they are conserving is power for the very few by taking it from the very many. That is fascism. Eventually, fascists come for all of us.
Jen Rubin. Miles Taylor. Olivia Troye. Steve Schmidt. Tim Miller & all the Bulwark guys. Lincoln Square. These are conservatives using their voices in service of the Constitution, a flawed document coming out of the flawed birth of a flawed nation. Interpretations vary, but Trump, et. al. are openly pissing all over it. Openly grifting, self-dealing, shorting the markets, probably selling state secrets. No confusing that w/ conservatism.
Authoritarian actions are only norm breaking if the norms are ones that secure our freedom. Orban did his takeover legally at first by changing the Constitution. He started w/ with a bit of captured power, and then accrued more and more over time w/ captured institutions. That is my point. The Court's majority is using power to retain power, dismissing lower courts before even hearing them. That's not conservatism. It's Court capture. Norms have eroded. Roe fell bc. nominees lied, too many chose to believe them, and the majority grabbed their chance out of turn.
The foundational struggle is the very top $$$ and the rest of us, imo. And the majority decided that corporations are people and billionaires have more equality than the rest of us.
There always will be conservatives, but we could do with more political parties that require coalitions. And term limits. And a code of ethics. Meanwhile we do the best we can with diligence, kindness, political action, & common sense. And we listen to people like Steve Vladeck to help us understand.
So good to see you in “person”. Read your book, Shadow Docket. Great read!!
I’m not fascinated by Roberts. He is a horrible Chief Justice. Speak to Citizen’s United and other bad decisions. Follow the money, isn’t it a good idea to do that?
Are you both kidding?? Of course John Roberts knew exactly what he was doing by reaching down to take the Clean Powers Act case. He knew it was going to set a new precedent that would eventually increase the power of HIS court. That's why he was elevated to the Supreme Court. His goal was to capture the Court, by hook and crook. He knew, he knew.
Excellent discussion and a harbinger of the peril we are in.
Hypocrisy always wins out with the Roberts Court and you are right one First today was excellent