Joe Biden worries that the “extreme” US supreme court, dominated by rightwing justices, cannot be relied upon to uphold the rule of law.
“I worry,” the president told ProPublica in interview published on Sunday. “Because I know that if the other team, the Maga Republicans, win, they don’t want to uphold the rule of law.”
“Maga” is shorthand for “Make America great again”, Donald Trump’s campaign slogan. Trump faces 91 criminal charges and assorted civil threats but nonetheless dominates Republican polling for the nomination to face Biden in a presidential rematch next year.
In four years in the White House, Trump nominated and saw installed three conservative justices, tilting the court 6-3 to the right. That court has delivered significant victories for conservatives, including the removal of the right to abortion and major rulings on gun control, affirmative action and other issues.
The new court term, which starts on Tuesday, could see further such rulings on matters including government environmental and financial regulation.
A system that appoints supreme constitutional judges for life and without even halfway serious democratic checks and balances seems to me the perfect recipe for disaster and corruption. But hey, I’m from Europe, so what do I know… ¯_(ツ)_/¯
Yes but you fail to consider that some guys wrote on a paper like 250 years ago and we’ve decided that everything needs to be viewed through the lens of either “does this agree with an incredibly pedantic and stilted reading of this document” or “what would those historical dudes think about this” - whichever happens to be more politically expedient for you at the moment, but the second one tends to give you more flexibility.
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I also love the stars and bars I’ve seen on Canadian trucks or in their front yard.
Makes perfect sense. Canada has a rich tradition of being a southern state during the civil war.
You guys are really taking that whole “America is a continent” thing seriously. Usually it’s just some pedant pointing out the name of the continents as if a Brazilian would ever say “I’m American”. Canada went a whole different direction with it. It’s like the thought process is: Canada is in North America, North America IS America and America is the US. Therefore, Canada is the US. Checkmate! You now have protections under our constitution or something IDK.
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Yeah, because making gun ownership harder/illegal is going to stop the fucking American Taliban from continuing terror attacks…
They’d barely even notice and half the cops would be with them.
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To be fair, they did expect us to modify the constitution from generation to generation.
Ultimately the failure is ours.
It’s amazing to me the way we’ve elevated the constitution to near biblical proportions. And just like the Bible where every church and pastor interprets it in their own way, so too do our 9 oracles in black robes interpret the will of our village elders from ages past.
“So shall it be written, so shall it be done”, eh?
There are parallels in your example because it all comes down to governance of people, but I truly don’t think that people look at the Constitution/Courts like they do at the Bible.
In terms of commandments and how one is expected to follow the rules, I would argue that some do. In terms of attaching spiritual beliefs to it, no, not so much.
But yes, your point is true - it boils down to governance and how people want to be governed.
Yup, I see. A bit like with the Bible and other holy books then. Even here in Europe, there are many who see the wording of those as the ultimate truth. No need to adjust anything, they say. It’s all good. It’s god’s will or whatever - if it helps their agenda, that is. Jesus, that must be frustrating.
They also tend to ignore pretty much all the stuff Jesus actually taught.
You forgot about Supply-Side Jesus.
Yea, some things do not allign particularly well with certain agendas. So best to just leave them out.
“Judge the shit out of everyone, you’re better than them.”
-Jesus probably idfklol
That’s kind of what it’s devolved into, tbh. The confluence of Christian fundamentalism and politics is a scary fucking thing, because when you’re “doing god’s work”, you can justify literally anything to yourself and your fellow “good Christians”.
Europe at least has had the benefit of being able to work country-by-country, whereas the US is one massive tangled morass. Hell, even achieving the kind of restructuring and harmonious cooperation that you see in the EU had to come as a result of two of the most atrocious wars humanity has ever mustered in the span of less than half a century.
Kinda puts it a little more into perspective when you consider the absolute shit-show Europe had to turn into before it was ready to grow up.
Yes, absolutely right. However, it is very sad that the Europeans in particular do not seem to have learned much from their history. I am German and here, unfortunately, a blatantly fascist party is on the rise again. That political direction is unfortunately quite popular in many European countries as of late. It might be similar to what is happening in America: the standard of living is falling and so people seem to be longing for a strong leader who will supposedly improve their living situation. The fact that this strong leader has completely different interests is apparently of no concern to many. They simply vote for the party whose rhetoric appeals to them (foreigners are to blame and so on), and that promises a way back to the good old days. It is enough to make you cry.
Yeah. That’s basically what’s happening in the US. Combine that with our two political parties not giving a fuck about the voters belonging to the other party, and you’ve got two, deeply entrenched political parties which can basically do whatever they want because your only real choice is between red or blue.
Then you have the… god I hate this term …privileged… people who vote and donate to team blue and insist on the blue team taking the high road at all costs; because even if the blue team loses you can still claim the moral high ground and that’s all that matters in their eyes; they’re too comfy and financially insulated to truly feel the affect that blue team losing would have because of feel-good morality.
This comes at the cost of civil rights, because it means team blue (the party currently concerned with civil rights) doesn’t really have a reason to expand their voter base outside of the areas they’re already entrenched. That’s where their big donors are, and they might have to sacrifice their righteous morality in order to expand into the hard red areas.
You’ve also got team red voters who’s views actually align more with team blue, but they vote team red because team red is the only one who actually pretends to listen and serve them; because team blue is too eager to take Ls if it means their precious morality and ethics are intact even though it risks allowing team red to destroy marginalized communities. Also, team red is destroying the quality of life of their voters while successfully convincing them that it’s team blue’s fault, because any attempt team blue makes at countering them is half-hearted at best.
My biggest fear is that we’re heading towards a new civil war, and the history books aren’t going to teach how team blue assisted in team red’s bullshit by stubbornly insisting that they mustn’t take any action that might be immoral or unethical while team red runs rampant.
Sorry to hear that, man. It’s definitely a sad situation all around. The apathy of so many is hard to overcome, then there are those like you mentioned who cling to cults of personality or are just looking for a savior. Democracy is still hanging on, but it’s in a rough spot.
One of the more interesting things I saw (on this topic) was a historian stating that George Washington (and his contemporaries) would have been able to relate the world of Julius Cesar more than they would our modern world.
I think about that A LOT whenever I hear some idiot spout nonsense about the “vision and ideals” of the founding fathers
I thought Washington was too busy sending faxes to samurai.
Was this during or after raping all his slaves he owned?
I disagree. That was BC. It’d be like saying people born in the 1930s relate more to colonial times than today. There are some of them who are still alive. While a percentage want nothing to do with modern ways, I think the type to be involved in forming a nation would be lifelong learners akin to the old folks who have little trouble with today’s modernities.
BC is somewhat of an arbitrary line. I’d say that modern society and our relationship to it are radically different from either our forefathers’ or Caesar’s due to the industrial and information revolutions. It’s not the distance in linear time that’s important, but the difference in social and cultural time.
For better or worse, it’s next to impossible to successfully modify the Constitution without significant support. It has to be ratified by about 38 States (3/4 of the State legislatures or 3/4 of the conventions called in each State). That’s after either 2/3 of both Houses of Congress (2/3 of the House of Representatives and 2/3 of the Senate) propose an amendment or 2/3 of the State legislatures request one via a convention.
In a way, it’s a good thing since it keeps the Constitution from being able to be changed on a whim, and it mostly keeps it from being affected by the political tug-of-war that happens every few years in the US.
It’s also a bad thing, though, as it makes it very difficult to adapt to certain situations that wouldn’t have happened 200+ years ago.
“It’s also a bad thing”
You realise you can change laws? Congress does it regularly. The Constitution primarily restricts the type of laws that can be passed. Congress has huge leeway otherwise.
Laws like the Voting Rights Act or the ones that established the EPA or the CFPB? The problem here is we’ve let a rogue court assume ultimate legislating ability and the only real remedies to that are impractical supermajorities or open conflict between the branches.
“Assume ultimate legislating ability”- Unless you are whining about Marbury v Madison, what on earth are you talking about? SCOTUS doesn’t write laws, they rule on the permissibility of (a small fraction) of them.
“Impractical supermajorities”
Did you just discover what checks and balances are? One should want supermajorities because you don’t want laws based on shaky public support. Do we really think the cycle of each president overturning the previous presidents policy is practical?
The person I was replying to was talking about the Constitution, not other laws.
I would argue though that if it’s something that truly needs to be changed by the majority that it would get done.
The problem is the way our politics are today (those in office care more about gaining money to stay in office than their constituency, etc.), and the population being split almost down the middle and adhearing to that mindset (‘my team is always right’) over the common good, makes getting that type of majority almost impossible.
But again, that’s still on us, not our forefathers.
Not anymore. They are just making shit up now. The check is congress impeaching them. That will not happen if enough people demand it.
It’ll never happen as long as republicans control either half of congress. People have been sounding the alarm on their power grabs for decades and only now are some people starting to listen.
I expect the American experiment to fail in my lifetime.
I’m not sure that I see the American Collapse happening in my lifetime as a certainty, but I would agree that it’s a very strong possibility if we don’t get our shit together pretty fucking quick.
It’s won’t collapse. We’ll become another authoritarian state.
It’ll be isolationist so only Mexico should be worried.
Yeah if we go that route, I absolutely expect some Christian Nationalist administration to decide that it’s time to take over Mexico, which to be clear is an apocalyptically stupid idea.
I bet the MAGA base would love the idea of taking over Mexico.
The American boys in blue get to gun down the cartels, as well as the convoys of people who are obviously poor brown terrorists
We could save a lot of money on a really sweet wall if we use the southern part of Mexico as a choke point
Travel more of the world while never leaving the US
Think of the travel, resort, and real estate opportunities!
Some of the MAGA folks are already saying that we should bomb/invade Mexico to stop the drug cartels and immigrants. Of course, they hand-wave how horrible a war would be. They assume that Mexico would thank the US for such a great bombing and ask for more. Because MAGA.
For anyone who was downvoting the above comment: It’s absolutely a real thing that Republicans have been talking about for a while now.
This should concern you. Only a complete imbecile would think that conducting unilateral military action against Mexico is a good idea. We would rightly be cast in the same light as Russia vis a vis Ukraine. We would destroy any remaining semblance of geopolitical soft power we still have. We would be unambiguously turning away from even trying to be the “good guys”. We would be global pariahs, just like Russia is now, and we would deserve it.
Why the fuck would they want Mexico? I think Canada probably has more to worry about, especially as water becomes more scarce
Hey. You can’t just use common sense when it comes to our Judicial System. That would be too logical. What next? You gonna ask that our Supreme Court Justices have Ethics Rules!?
What is this world coming to?
Yes, sorry, that would be too much to ask. I’ll show myself out.
not just a series of Ethics Rules, but ones that were actually followed…
It’s more a symptom of the FPTP voting system
Europe has viable parties outside the two most popular in any given election cycle, so partisan loyalty is less of a threat to the application of removal proceedings or other punitive measures.
Article V of the the Constitution.
https://constitution.congress.gov/browse/essay/artV-1/ALDE_00000507/#
Amending the Constitution was intended to be much more usable, but over half the country doesn’t vote.
I can see how 9 out of 13 colonies (or equivalent votes in congress) might be more plausible than 34/50 states or 357/535 congresspeople (house + senate) considering the state of politics today.
The framers counted on congresspersons being good faith actors that loved America, and on a populace that wasn’t apathetic or incompetent on important matters of state.
To be fair, the farmers “envisioned” a country where a good proportion of the population was literally enslaved. Let’s not get ahead of ourselves
Not wrong to point that out.
I always liked this quote:
Sol Wachtler & David S. Gould, Et Tu Judge Bork?: Will Solipsism Destroy Conservative Ideology?, 15 Touro L. Rev. 1, 15–16 (1998).
This raises an important point, especially as it pertains to the civil war. This country nearly split itself in two because there were two very different ideologies that simply were not compatible.
The US is a fairly large nation geographically with no shared cultural heritage to speak of and greatly differing political beliefs. I don’t know the answer, but we really need to at least think about how we can expect all US citizens from liberal Californians to conservative Texans to ever be satisfied with the state of the national government we share.
The thing, though, is it isn’t so geographically separated. There are more Trump voters in California than in Texas and more Biden voters in Texas than New York. This is simply because there are more people in California than Texas and in Texas than New York, and even the blue states and red states are actually pretty purple.
True, my reason for using those states as examples had more to do with people’s expectations than actual numbers.
I’ve made a very similar point to some of my friends about how the two sides of the political spectrum are no longer geographically separated. A civil war today would be very different from the US Civil War in the 1800s. It won’t be a physical war like the Russia/Ukraine war because it geographically and logistically can’t be. I think we’re likely to see acts of terrorism as the tension continues to grow, but not geographic borders being drawn and guarded.
Always wondered what the legal definition of “several” was, as it applies to that clause.
It’s the adjective form. It just means separate or distinct.
I always took that phrase as expressed in the Constitution to be a quantitative factor? Several as in three to many.
https://thelawdictionary.org/several/
Nice, ty.
Still confused though, quantity wise. Basically, the point being made here:
Yeah, the drafters of our constitution really fucked up in that regard.
I’d attempt to solve the problem by creating an independent judicial review board entirely separate from the US govt. similar to other “professional” professions. Let these judges go up for review every 5 years and if they are found to be in breach of conduct, remove them from the bench.
Also, rework how they get to the bench in the first place. Of course the SC is going to be politically motivated. They only get their seats because one of the two big parties literally puts them there. Impartiality is really hard to claim when you owe your entire existence as a SC judge to a giant money machine.
The whole point of a lifetime appointment is that they can abandon all political concerns once they’re in the SCOTUS - so they don’t have to be political. And I’ve seen that happen - while they obviously stay conservative or progressive, they tend to drift away from an alignment with the parties - with exceptions, obviously.
But, as with all other branches of the US government, it’s becoming clear that we’ve exited the era of being able to trust our leadership to support the Constitution and represent the people.
(For me, it wasn’t even Trump that snapped me out of that mindset. It was when they were talking about outlawing congressional insider trading. One of the Republicans said, out loud and in public, that the notion of prohibiting congressional sick trading was off the table, because it was a core part of the job. He said something like, “half of us wouldn’t be here” - as though that was a bad thing.)
You should get the same behavior with a single term appointment with no possibility of a second term. There would also have to be limits to what they can do AFTER the appointment too, so they don’t use their single term power to set themselves up when they are done. I guess it would have to be a single term appointment with an extended ban on future employment or investments.
But how long would those appointments be? Many justices have written about how long it took to adjust sitting on Scotus, even if they had plenty of experience on the court of appeals(Sotomayor I think?). So like a 10 year period might work. Scalia and RBG voted together a surprising number of times… So there is something to the experience brought to the table. Thomas’s corruption is just nuts and Alito is frustrating, but the other justices at least have substantiating arguments mostly.
In Germany it’s one 12-year term, generous pension afterwards. Minimum age 40, maximum age 68 or their terms ends prematurely once their successor is appointed. They have to be actual jurists (passed 2nd state exam and/or are a professor of law). Half are elected by the Bundestag (Parliament), half by the Bundesrat (representing the states), in both cases with 2/3rd majority. Ultimately appointed by the Federal President but not in a deciding role but acting as notary of the state.
That 2/3rd majority rule has, because no party can reach it on their own, led to bench seats being allocated proportionally to electoral results, parties picking their favourite out of the possible candidates (the ministry of justice draws up a list of all eligible) and other parties adding the rest of the necessary votes unless there’s an actually important reason to veto a candidate, say, for being an ideologue instead of jurist.
That part would be very hard to transplant over to the US. The rest is the culture of the court itself, they’re notorious for being, well, jurists, not giving a rat’s arse about politics leading to decisions like this, blindsiding everyone on either side of the controversy. A judge may come in with political leanings but they’re going to get beaten into shape by the rest of the judges very quickly.
There’s also other structural differences, e.g. the constitutional court pretty much only doing constitutional review, they’re not part of the ordinary instance chain. They have other prerogatives (e.g. banning parties, deciding cases where constitutional organs sue each other) but constitutional review is pretty much their sole bread and butter.
Thanks for writing all of that, it’s very interesting! I can see how that would be an effective system, but as you said, very difficult to implement in the U.S. anytime soon. Even making some incremental changes would help, as I would think there would be good evidence from systems like yours. We shall see I guess!
Lifetime appointments mean they don’t owe anyone shit. They have nothing to gain by being loyal to the party that appointed them. There are better ways to accomplish the same thing, but it’s at least one facet of how the court works that seems to do what it’s supposed to.
So instead they’re loyal to their party’s billionaire donors
Which is why Congress has the power to remove them if they fail to meet “good behavior”. But Congress is also abdicating their responsibility to democracy.
Is there any definition of what good behavior is?
Nope.
No. That’s for Congress to determine in an impeachment.
For some, but what we’ve seen is them moving to appointing committed ideologues. If you want someone who agrees with your theocratic beliefs you appoint a young theocratic nutjob like Justice Barrett. They also established a feeding program to ensure mildly conservative law students would be rabidly conservative by the time they’re judges and using the fact that this program feeds you into judgeship as the way to get people into it.
The corrupt ones are loyal to the people they take bribes from. The fact that those same people tend to be donors to the party isn’t really relevant.
Staying loyal still keeps the (extra) cash flow going.
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I don’t necessarily think the founders fucked up. It’s important that the court be free from political influence when deciding cases so I think they had the right idea. I’m not necessarily opposed to lifetime appointments. Where I think there’s a lot of room for improvement is the nomination and confirmation process. It’s entirely political, contentious, and has produced a few lousy justices in recent years.
This idea of one party only appointing conservatives and the other only appointing liberals and both sides hating the other’s appointments is what’s fucked up. What could be interesting is a bipartisan Congressional nominating committee that produces candidates that are at least palatable to both sides. Let’s say there’s a 2/3 majority requirement for the committee to nominate someone. They could produce a list of several candidates and the president nominates one of them. Basically take this process away from partisan NGOs and give it to a bipartisan group of elected representatives.
The thing is, the drafters of the constitution didnt mean for the supreme Court to be as powerful as it is today. There is nothing in the constitution that even grants them the power of judicial review. They just interpreted that they inherently had that power, and we’ve gone along with it for the last hundred years.
According to the drafters, separating the judicial branch from the executive was a way to inhibit veto power and to prevent the executive from reshaping laws that have been passed by Congress. There only other function was to handle cases between two states, and to oversee an impeachment trial in the Senate.
It wasn’t entirely about the rights to review, but also about their impotence to do more than just talk. The balance of powers isn’t just that Congress can impeach, but also that they can write laws that address the Court’s arguments directly and the executive can just tell them “no”. But we’ve let them just be the final arbiter of law with no response from either other body, so they’re now just unelected super-legislators.
When the court is embroiled in corruption scandals and abandoning precedent to strip rights from citizens, the other executive institutions in the country shouldn’t just be acquiescing to their demands. Instead we get “you may be unethical and corrupt, and firing off society shaking reinterpretations to settled law, but thems the breaks”.
Tiptoeing into calling their adherence to the rule of law into question is moving in the right direction, but very slowly. Maybe that’s the right way to do it, but I don’t really trust that it’s not just a misplaced belief in the system to work itself out so moderates don’t have to actually do anything that might be scary.
They probably never expected anyone in government to be so openly corrupt and incorrigible. At the time they wrote the declaration they probably viewed democracy like the roman Republic did and thought the people would categorically reject anyone willfully stealing their rights and freedoms for their own political or personal gain. Of course they couldn’t foresee a political party so openly hypocritical that they would literally lie on mass to a public brainwashed by unchecked “news” publications that only regurgitate what they want to hear. Democracy is f*cked, blame the murdochs.
It’s really a shame that so many seem to be clinging to a constitution that is close to 250 years old. You would think that some things would need to be updated over that period of time, but as I said, I’m from Europe…
Our constitution has been updated. Our current constitution is from the 90s. It’s just we update it in pain in the ass bits and pieces
Of course, I am aware that the U.S. Constitution has been updated several times and that any changes are a difficult political process (this is the case in every democratic country). From a European point of view, it is just difficult to understand why, for example, majority voting has still not been introduced and so on. In our system, it is unthinkable that votes are effectively devalued because the majority in one state disagrees. I understand, of course, that that was necessary some 250 years ago, so that electors could be sent to Washington to represent the will of the people of their particular state. But is that still in keeping with the times? To me, it seems antiquated - as does the attempt to guarantee independent constitutional judges by appointing them for life and thus - in theory - making them independent of political influence. I think that reality has shown that this is nothing but wishful thinking. Otherwise, a supreme justice like Clarence Thomas, who is obviously not only bound by his conscience, would probably no longer be in office. I just think that self-regulation has never really been effective - not in politics, law, or business.
One single office is elected with the Electoral College.
The president? Isn’t that the most important office that comes with a lot of power?
Keep moving those goalposts.
The president is in charge of managing the country, but he is beholden to the legislative and judicial branches. The president can’t unilaterally do much.
How does the prime minister get elected in most countries? It’s typically because the population elects a representative body, and that body elects a PM. Most countries do not directly elect a PM.
How do laws get passed in most countries. You elect a legislative branch and that legislative branch votes on laws.
The vast majority of even the most democratic countries do not directly vote on much, because nobody wants that.
That’s true. But no votes are lost in the election of a prime minister. People usually elect a party and the parties with the most votes in turn elect the prime minister (via various detours depending on the country). The prime minister is thus elected through a majority system: The party with the most votes usually provides the prime minister. Gerrymandering or something like that is therefore not necessary. In the U.S., however, the president is not elected by majority (how many votes a candidate got in total), but by electoral college, which votes according to how the majority in a state voted. This results in your vote being devalued if it does not match the majority in the state you live in. Here’s the difference: if you voted for a party to represent you, your vote would be counted even if you were in the minority in your home state. Under an electoral college system, that’s not the case: your vote is irrelevant if you’re in the minority in your home state. I can’t make sense of this other than on historical grounds: I think it used to be that elections would be held in a state and then a representative of the state, an electoral college, would ride into Washington and vote in the presidential election as the majority in the state from which he came. That doesn’t seem contemporary to me.
And? What’s your point? We’ve had several presidents in the last, what 30-40 years, who lost the popular vote but got to be president anyway because we decided some states matter more than others.
I find it interesting that there are so many Europeans that have such strong opinions on the US, yet they don’t keep themselves informed on the same.
The US Constitution has been updated many, many times since it was written.
I am aware of that. But essential things were obviously not changed at all. For example, in terms of majority voting. What speaks against it? Is there still a need for electors who have to ride to Washington on horseback?
The whole thing? Has the whole thing been looked at and revised? Or are you counting each and every amendment as an “update”? That’s not an update to me. It’s an addition that ignored the many flaws with the way we run our country.
It’s literally how the constitution is changed. You make an amendment that changes the constitution. If you wanted to change the whole thing in a single amendment, you can do just that.
If you wanted to start from scratch and do the whole constitution over, you’d have the exact same set of steps to do that, unless it was done with an armed overthrow of the government. Then what you would have is a small group of people who ran that revolution would write a new constitution. And that would be unlikely to be any better than what is currently there.
How exactly do you think we would get a new constitution otherwise?
Sure, you’re not wrong. That is a change. But I don’t think that many people would call each and every amendment an update. If that’s your argument, though, the constitution hasn’t been updated in over fifty years. I’d say it’s due for a change.