I know this is a stale thread, but the idea that people who want to pack the court also want a strong court kept tickling my brain, I was sure I read solid people arguing the opposite.
I know this is a stale thread, but the idea that people who want to pack the court also want a strong court kept tickling my brain, I was sure I read solid people arguing the opposite.
I did not take the time to search, but I'm pretty sure Jamelle Bouie has written along the same lines.
If you have rarely or never met a person who holds both views in person, that is a strange argument. Both views are persuasively argued together by prominent writers. When I read your comment I did a double take, I hold both views and I have met myself! You have now, in a limited way, met me.
If you want to point out that many liberals are nostalgic for an activist liberal court and have not fully faced the logical consequences I would agree, and point out that the project of being a thought leader is to persuade people over time.
If you're taking the view "we should pack the courts (or otherwise rebuke them) so that they can no longer strike down economic regulations of various kinds, and I accept that then the courts will also not be able to protect various rights that liberals think are fundamental (because conservatives will do precisely the same things that liberal do)" then you are indeed a rarity.
The people I meet in real life who argue for popular constitutionalism not just as a philosophical matter (on that I agree) but as a radical political program generally assume that there is a durable popular majority for a liberal program, and therefore they don't need to worry about being on the receiving end of radical right-wing countermoves. I have no such confidence.
If, on the other hand, liberals do come to understand that popular support is their only real basis for power -- that the courts are unlikely to be a force for radical change, but are more likely to be either a force for reaction or a force for moderation -- then, rationally, they'd focus all their energies on building and preserving popular majorities. That would be salutary -- and would be a prerequisite to any strategy to actually enact popular constitutionalism anyhow.
Anyway, I've been arguing for years -- decades, maybe -- for a court that is modest and deferential in principle and in practice. I don't seem to have convinced a lot of people.
There are liberals who read the history of the Supreme Court as a history of conservatism and reaction and believe that is its structural tendency. They try to disabuse other liberals of their fondness for using the courts to effect change on grounds that a liberal and progressive court is historically rare, and that weaker courts with limited jurisdiction are better for progressives in the long run.
None of this relies on a belief the public favors a liberal program, although it does rely on a belief the courts sit to the right of the population more often than not. As far as blithe confidence we needn't worry about radical right-wing countermoves my experience is the opposite of yours, that worry is ever-present, there is no safe path.
You mention the tendency of the current court to strike down economic regulations. For myself and like-minded people the worst recent decisions are Rucho v. Common Cause, Shelby County v. Holder, Citizens United v. FEC, and Bush v. Gore. Disliking those decisions comes naturally to those who believe democracy is the least bad form of government. Those decisions undermine democracy, those decisions remind us this court is not democracy's friend.
A court that is modest and deferential would be wonderful, your words brought to mind "Of the gods we believe, and of men we know, that by a necessary law of their nature they rule wherever they can." The court tends to grab power as it is allowed, they will not defer, they must be curtailed. For all its many flaws our constitution empowers the congress to reign in the courts.
It is a bitter truth courts cannot protect rights against sustained public opinion. Yet liberal constitutional democracy is premised on the idea that formally enshrined rights are often less subject to temporary public passion.
A conviction I have that might be rare (nothing up to now is a rare view, I think) is that a root cause for our particular judicial problems is the difficulty of amending our constitution. With revision and clarification effectively impossible the fight moves to an abstract war of constitutional interpretation. Let's move from fights over what the constitution says to fights about what it should say.
I know this is a stale thread, but the idea that people who want to pack the court also want a strong court kept tickling my brain, I was sure I read solid people arguing the opposite.
Check Ian Milhiser
https://www.vox.com/23186373/supreme-court-packing-roe-wade-voting-rights-jurisdiction-stripping
I did not take the time to search, but I'm pretty sure Jamelle Bouie has written along the same lines.
If you have rarely or never met a person who holds both views in person, that is a strange argument. Both views are persuasively argued together by prominent writers. When I read your comment I did a double take, I hold both views and I have met myself! You have now, in a limited way, met me.
If you want to point out that many liberals are nostalgic for an activist liberal court and have not fully faced the logical consequences I would agree, and point out that the project of being a thought leader is to persuade people over time.
If you're taking the view "we should pack the courts (or otherwise rebuke them) so that they can no longer strike down economic regulations of various kinds, and I accept that then the courts will also not be able to protect various rights that liberals think are fundamental (because conservatives will do precisely the same things that liberal do)" then you are indeed a rarity.
The people I meet in real life who argue for popular constitutionalism not just as a philosophical matter (on that I agree) but as a radical political program generally assume that there is a durable popular majority for a liberal program, and therefore they don't need to worry about being on the receiving end of radical right-wing countermoves. I have no such confidence.
If, on the other hand, liberals do come to understand that popular support is their only real basis for power -- that the courts are unlikely to be a force for radical change, but are more likely to be either a force for reaction or a force for moderation -- then, rationally, they'd focus all their energies on building and preserving popular majorities. That would be salutary -- and would be a prerequisite to any strategy to actually enact popular constitutionalism anyhow.
Anyway, I've been arguing for years -- decades, maybe -- for a court that is modest and deferential in principle and in practice. I don't seem to have convinced a lot of people.
There are liberals who read the history of the Supreme Court as a history of conservatism and reaction and believe that is its structural tendency. They try to disabuse other liberals of their fondness for using the courts to effect change on grounds that a liberal and progressive court is historically rare, and that weaker courts with limited jurisdiction are better for progressives in the long run.
None of this relies on a belief the public favors a liberal program, although it does rely on a belief the courts sit to the right of the population more often than not. As far as blithe confidence we needn't worry about radical right-wing countermoves my experience is the opposite of yours, that worry is ever-present, there is no safe path.
You mention the tendency of the current court to strike down economic regulations. For myself and like-minded people the worst recent decisions are Rucho v. Common Cause, Shelby County v. Holder, Citizens United v. FEC, and Bush v. Gore. Disliking those decisions comes naturally to those who believe democracy is the least bad form of government. Those decisions undermine democracy, those decisions remind us this court is not democracy's friend.
A court that is modest and deferential would be wonderful, your words brought to mind "Of the gods we believe, and of men we know, that by a necessary law of their nature they rule wherever they can." The court tends to grab power as it is allowed, they will not defer, they must be curtailed. For all its many flaws our constitution empowers the congress to reign in the courts.
It is a bitter truth courts cannot protect rights against sustained public opinion. Yet liberal constitutional democracy is premised on the idea that formally enshrined rights are often less subject to temporary public passion.
A conviction I have that might be rare (nothing up to now is a rare view, I think) is that a root cause for our particular judicial problems is the difficulty of amending our constitution. With revision and clarification effectively impossible the fight moves to an abstract war of constitutional interpretation. Let's move from fights over what the constitution says to fights about what it should say.