Not So Supreme
Added 2020-09-25 19:07:11 +0000 UTCMatt and Sam do a deep dive on the proposals being discussed about the ways that Democrats can take on the Supreme Court. Should a Democratic President and Senate pack the Court, or seek to disempower it in other ways? Or can they just ignore the Court altogether? Along the way they reflect on Ruth Bader Ginsburg, answer questions about Amy Coney Barrett, who is on Trump's short list to replace Ginsburg, and lament that Matt is getting old.
Sources Cited:
Linda Greenhouse, "Ruth Bader Ginsburg, Supreme Court's Feminist Icon, is Dead at 87" (New York Times)
Jamelle Bouie, "Mad about Kavanaugh and Gorsuch? The Best Way to Get Even is to Pack the Court" (New York Times)
Jamelle Bouie, "Down with Judicial Supremacy!" (New York Times)
Ryan Cooper, "Democrats Have a Better Option Than Packing the Court" (The Week)
Matt Karp, "How Abraham Lincoln Fought the Supreme Court" (Jacobin)
Samuel Moyn and Ryan D. Doerfler, "Reform the Court, but Don't Pack It" (The Atlantic)
Interview with Samuel Moyn, "Socialists Have Long Fought to Disempower the Court. That's More Urgent than Ever Now" (Jacobin)
Comments
It happens! Thanks for listening.
Know Your Enemy
2020-10-13 14:23:30 +0000 UTC(I should have listened to the entire show before commenting. Right after hitting enter, Matt and Sam made all of the points in my comment). :)
Robin Lindheimer
2020-10-10 23:48:41 +0000 UTCI really don’t feel comfortable with the idea of just ignoring the court. Since the current ingrained understanding of the Supreme court by most citizens is what it is, a significant portion of the population will feel that ignoring would truly be a constitutional crisis. They would view the actions as anti democratic. Think how many of us would have reacted had Trump “ignored the court” when it decided against his original Muslim ban. If he just moved forward with the ban with the aid of the Republican senate. It would’ve felt tantamount to an authoritarian usurpation of power. (In his case it would likely have led to one). If there is a desire to go against M vs M and state that the Supreme Court does not have the role it has given itself, there really needs to be a concerted effort to prepare the population for it rather than doing it reaction to a specific unpopular decision. Set the stage. To start a popular movement first. And decide what it’s role should be. What checks the other two branches and how? And I hate to use the slippery slope argument, but if you can ignore one check on power what is next. I’d rather see a slightly packed court (to address the theft of Obama’s right to choose a justice and the set term limits.
Robin Lindheimer
2020-10-10 23:35:10 +0000 UTCThank you!
Joel Campbell
2020-10-03 02:36:46 +0000 UTCGreat discussion! You wondered why the right-wing did not challenge the institution of the Supreme Court, even as they were objecting to some of its decisions. I think that they were not that unhappy with the court as an institution because the Supreme Court has upheld the right to property consistently. Don't you think this is at least part of the reason?
Catherine M Stanford
2020-09-26 21:16:00 +0000 UTCFor those asking, I'm sure we'll eventually do an episode on originalism. There are a lot of topics like that that we intend to get to at some point. (Matt)
Know Your Enemy
2020-09-26 21:03:28 +0000 UTCThanks so much for this! I agree that an ep on originalism would be great!
Joel
2020-09-26 15:45:18 +0000 UTCOne more thought. By ordinary legislative process, the House and Senate could pass a bill removing the power of judicial review from the federal courts. Congress could include language that act is not reviewable by courts, for which there is precedent. If they do that, I think it would be the end of judicial review.
Chad Bailey
2020-09-26 15:32:53 +0000 UTCIn the spirit of KYE, knowing the philosophical underpinning of originalism is important, and may be worth an episode. In a nutshell, originalists claim that the passage of the constitution itself was a supermajoritarian act, requiring the legislatures of nine of the original 13 states and a majority of the legislatures to be passed. The inclusion of the Bill of Rights as a condition of ratification serves as the example par excellence of this process working correctly. I have tried understanding originalism and back in 2017, brought my attention to the process of ratifying the 14th Amendment to the U.S. Constitution. It was an anything-but-ordinary and truly "supermajoritarian" process. Below's a post I wrote in a Facebook group of which I'm a part on the issue and my challenge thereto. Among the options Sam and Matt pointed out, I would favor the one involving challenge to Marbury v. Madison. It's strictly convention that the nation's gone along with it since the decision. However, I think it's also important to raise the issue of how the 14th Amendment was decided, and how legal change can happen outside the framework claimed by originalists. ---- Question for my conservative friends, particularly those with legal training. As I understand it, “Originalism” is the approach to legal interpretation that asserts that the meanings of laws, including the U.S. Constitution, are fixed at the time of their enactment. I have always had a large degree of skepticism of originalism, mostly on historical grounds. In particular, I believe that the 14th amendments to the U.S. Constitution, introduced radical changes to the underlying Constitution that (1) cannot be squared with the intentions of the original authors and ratification voters, and have never been adequately resolved due to Southern states (2) rejecting its democratic legitimacy as a result of the conditions its passage and the conditions under which they were forced to accept it. First, when it was first enacted, the U.S. Constitution (together with the original Bill of Rights) was a compromise document intended to enable the perpetuation of slavery. The relative power of the federal government and the states, the 3/5 Compromise, the Electoral College, and many of its other clauses were enacted with the idea that slavery would be allowed to continue indefinitely. When the 13th-15th amendment were enacted, the authority of the federal government to protect the individual rights of every native-born American came into effect, in such a way that the Founders did not obviously envision. After the passage of these amendments, it has taken much time to “shake out” how the original and amended Constitutions differed. I don’t see how the intentions of either the Founders or the 1866 Congress can be used to clearly discern the meaning of the law. Second, Bruce Ackerman notes that, “[e]very student of the period recognizes that, were in not for the purge of Southern Senators and Representatives, the ‘Congress’ meeting in June [of 1866] would never have mustered the two-third majorities required to propose the Fourteenth Amendment.” Beyond that, the Amendment would not have been ratified by three fourths of the states (=28/37 states) without Federal coercion. Among the 11 former Confederate states, only Tennessee ratified it initially, with the other 10 rejecting it (37-10=27, less than the requirement to pass it). Southern legislatures were ferociously opposed to the 14th Amendment, on the basis of (1) their legislators being excluded from writing and approving it, (2) its establishment of legal equality of whites and blacks, (3) its transferring authority to the federal government, and (4) its apportionment of Congressional representatives proportional to the population only if universal male suffrage was granted. Southerners referred to it as the “negro equalization amendment.” The governor of Georgia that it was stupid to give the vote to blacks, “nearly all of whom are notoriously unqualified for it.” In early 1867, the Republican Congress passed (over presidential veto) the Military Reconstruction Act, declaring that “no legal State governments” existed in the 10 former Confederate states. Military rule was imposed on the Southern states, and held elections, registered voters (including blacks, but excluding many former confederates), and supervised the process of drafting and ratifying new state constitutions. The new state legislatures were then responsible with voting again on the 14th Amendment as a condition of ending military rule. There is nothing within originalism that can answer the question of whether the ratification of the 14th amendment was constitutional and legal. Blacks had been excluded from voting for the legislatures that held the first round of ratification votes. The Federal government used military coercion to ensure that they were able to vote for the new state constitutions and legislatures. It seems very odd to me that we would now pretend as if there were not federal involvement in the ratification of the 14th amendment. From my perspective, that involvement was required to ensure the franchise of black voters in the post-war South. After the Civil War, Southern political culture was dedicated to a white supremacist rule, which was no longer acceptable in the new. The problem is that the new elections took place under the Reconstruction Act, which disfranchised former Confederate soldiers. So it was still not a representative vote. Even after the ratification, White Southerners rejected its validity. Many of the hot political debates of the 20th century were based on similar racial programs. Federal troops enforcing school desegregation after Brown v. Board of Education sounds like the younger cousin of the process. I have read crackpot web sites arguing that the 14thamendment is actually invalid altogether, but to me, that makes a fundamental mistake in the understanding of government. Originalists insist that the basis of American constitutional law is a supermajoritarian approval of the constitution and its amendments.
Chad Bailey
2020-09-26 13:00:09 +0000 UTCThat’s included in the Moyn view, as I understand it! I didn’t say the phrase “strip of jurisdiction” but saying “limiting its purview” etc meant the same thing (Matt)
mjs
2020-09-26 12:32:37 +0000 UTCInteresting conversation, but I just want to point out that everyone is missing the probably least "violent" method of overcoming a conservative court: jurisdiction stripping! The Constitution explicitly allows Congress to limit jurisdiction of the federal courts, for the most part. It just is not something done very often. https://en.wikipedia.org/wiki/Jurisdiction_stripping https://newrepublic.com/article/158992/biden-trump-supreme-court-2020-jurisdiction-stripping
Ben
2020-09-26 02:01:13 +0000 UTCMatt: I agree. As does Massimo Faggioli, whom I would love to have a discussion with you guys in KYE! https://www.politico.com/amp/news/magazine/2020/09/24/supreme-courtreligious-beliefs-420863?__twitter_impression=true
Chad Bailey
2020-09-25 22:09:16 +0000 UTCThanks for this, Chad. What you note strikes me as fair-minded, and I hope my comments came across as having a similar spirit. I tried to express what some of the concerns might be about her (and the People of Praise) since they'll be discussed, but also that what really matters is the relationship between her religious commitments and her jurisprudence—that those questions are fair game. I specifically say I regret comments like Feinstein's in 2017 and that I don't think focusing on the ins and outs of the People of Praise is helpful or a good idea. (Matt)
Know Your Enemy
2020-09-25 22:05:10 +0000 UTCHi Joel, it turns out I quoted it slightly wrong—and, as I meant to note, that the line is from a draft of "For the Time Being," which means it actually wasn't published. I learned about it from Arthur Kirsch's book Auden and Christianity. The full lines are: "Whenever there is a gift there is a guilty secret, / A thorn in the flesh, both are given together / And the nature of one depends on the other." Perhaps my gloss on it was a bit loose, but I think you can see the basic idea of gifts and weaknesses being related to each other. Hope this helps! (Matt)
Know Your Enemy
2020-09-25 21:43:00 +0000 UTCI am married into a Charismatic Catholic family. My wife’s parents took covenants to be part of their charismatic community. Her dad is an officer of the group. They raised their children within the community, taking them to a community-run summer camp every summer. My in-laws are conservative, but very good people. Others in the family are lefties and unapologetic about it. My wife told me that any member can be freed from their covenants at any time just by asking. Seems to me that it isn’t the covenants that make people stay. It’s their faith and (very strong) sense of community that keeps people there. I have experience with another group of Charismatic Catholics down the street from me, now centered around Christ the King (CTK) Catholic Church in Ann Arbor. They are also generally conservative, but I know members that are quite liberal. I will say that there is a dark history of that community. In the 1980s, the community from which CTK was founded, the Word of God (WoG), was investigated— and I’ve only heard this by word of mouth, so consider it hearsay — for RICO-type activities. Back then, the group had extremely rigid and retrograde rules for family life, including men leading the home and (possibly) women not working outside the home. My own office in that time had some adverse experience with the Word of God community members. Our management had to intervene because WoG members within my office were only inviting to meetings and including in teams other Catholics, particularly WoG members. The CTK community today has definitely learned from that experience, and it continues to be a vibrant and still charismatic parish. I’m giving this testimony as a lefty Catholic because I think it’s important not to categorize all charismatics as backassward and tyrannical. They are ecumenical in a way that pushes against the ecclesiastical bounds of Catholicism — the Vatican had a special panel specifically intended to determine the proper role of the Catholic Charismatic Renewal within the broader Church. I know members of that panel — not well. Bottom line: it’s not people’s membership in these groups that defines them. It’s their beliefs that bring them and the community that binds them together and makes them stay.
Chad Bailey
2020-09-25 21:22:40 +0000 UTCWhere's the quote, "The wound and the gift are given together" from?
Joel Campbell
2020-09-25 20:17:42 +0000 UTC
