1. If in two years Trump is President, and as a result the US is no longer a functioning liberal democracy at the federal level, and moreover multiple other former liberal democracies (Taiwan, Ukraine, perhaps the Baltics and/or Poland) have fallen under the tyrant's heel with his acquiescence, will you still think this was the right verdict for democracy?
2. What do you think is the probability of that outcome?
If Trump had won in 2020 and a bunch of liberals directed by Joe Biden had broken into the Capitol to try to violently stop his election from certified by Congress, would the Court have made the same decision today? Of course not. There would've been at least six justices saying the state (probably not Colorado - probably it would be Texas or Florida) was right to bar Biden from running.
Maybe the decision today was good for democracy, but the majority on the Court made the decision for purely partisan reasons.
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.
Noah, I'm in the weird position of agreeing with you about the decision, but disagreeing with the decision. I'm glad, even relieved, that the Supreme Court issued its 9 to 0 ruling, mostly for the same reasons you approve of it. But I also think states should have wide latitude in determining who can be on their ballots, as long as the process is facially fair and really is a process (and not an arbitrary decision).
And to note Nicholas Weininger's question above: I've thought about similar hypotheticals, or at least I hope they're hypotheticals. I suppose that in the case he presents, I would regret the court's decision. My main proviso is that if a second Trump presidency really does happen and really destroys liberal democracy in the US, that will have been something long in coming and not contingent merely on Trump winning election again. The roots would be deeper than merely the accident of an election. I'm not sure how valuable that proviso is. Long term trends matter, but contingency and personalities matter, too.
I guess now I hope that 1) Trump loses and loses decisively or 2) another Trump presidency won't be as bad as I fear.
“ The refusal to see that fact has always been the manifest contradiction at the heart of liberal court-packing fantasies, which imagine that you could destroy the legitimacy of an institution and then still use it to reshape the law and society for their own ideological purposes.”
I think this is a misreading of what liberals want out of court packing. They don’t want to use the court to reshape society for their purposes (what would that even look like? You can’t create a single payer system or build green energy infrastructure with the judicial branch.) They just (correctly) think that their policy goals are significantly more likely to be achieved with a court that has lost its legitimacy and switches back and forth between leaning left and leaning right, than a court that will have a significant rightward lean for the foreseeable future.
I am aware that there are liberals who think destroying the courts would be a good thing, and I've read principled liberal defenses of popular constitutionalism that are less radical than "destroy the courts." But I've rarely if ever met someone who holds those views in person. By contrast, I've had lots of conversations with IRL liberals who have favored packing the court to protect abortion rights, voting rights, affirmative action, gay and trans rights, the rights of felons and undocumented immigrants, etc. They assume, in other words, that the courts will still be respected when they overturn democratically-passed laws and executive decisions that liberals disapprove of even if liberals packed the court in response to rulings *they* disapproved of.
I don't think that's a remotely plausible stance to take. But I've met lots of people who take it, even if they don't fully understand that that's what they're saying.
Two questions:
1. If in two years Trump is President, and as a result the US is no longer a functioning liberal democracy at the federal level, and moreover multiple other former liberal democracies (Taiwan, Ukraine, perhaps the Baltics and/or Poland) have fallen under the tyrant's heel with his acquiescence, will you still think this was the right verdict for democracy?
2. What do you think is the probability of that outcome?
If Trump had won in 2020 and a bunch of liberals directed by Joe Biden had broken into the Capitol to try to violently stop his election from certified by Congress, would the Court have made the same decision today? Of course not. There would've been at least six justices saying the state (probably not Colorado - probably it would be Texas or Florida) was right to bar Biden from running.
Maybe the decision today was good for democracy, but the majority on the Court made the decision for purely partisan reasons.
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.
What if you want to pack the court and you want a weaker court? No contradiction.
Noah, I'm in the weird position of agreeing with you about the decision, but disagreeing with the decision. I'm glad, even relieved, that the Supreme Court issued its 9 to 0 ruling, mostly for the same reasons you approve of it. But I also think states should have wide latitude in determining who can be on their ballots, as long as the process is facially fair and really is a process (and not an arbitrary decision).
And to note Nicholas Weininger's question above: I've thought about similar hypotheticals, or at least I hope they're hypotheticals. I suppose that in the case he presents, I would regret the court's decision. My main proviso is that if a second Trump presidency really does happen and really destroys liberal democracy in the US, that will have been something long in coming and not contingent merely on Trump winning election again. The roots would be deeper than merely the accident of an election. I'm not sure how valuable that proviso is. Long term trends matter, but contingency and personalities matter, too.
I guess now I hope that 1) Trump loses and loses decisively or 2) another Trump presidency won't be as bad as I fear.
“ The refusal to see that fact has always been the manifest contradiction at the heart of liberal court-packing fantasies, which imagine that you could destroy the legitimacy of an institution and then still use it to reshape the law and society for their own ideological purposes.”
I think this is a misreading of what liberals want out of court packing. They don’t want to use the court to reshape society for their purposes (what would that even look like? You can’t create a single payer system or build green energy infrastructure with the judicial branch.) They just (correctly) think that their policy goals are significantly more likely to be achieved with a court that has lost its legitimacy and switches back and forth between leaning left and leaning right, than a court that will have a significant rightward lean for the foreseeable future.
I am aware that there are liberals who think destroying the courts would be a good thing, and I've read principled liberal defenses of popular constitutionalism that are less radical than "destroy the courts." But I've rarely if ever met someone who holds those views in person. By contrast, I've had lots of conversations with IRL liberals who have favored packing the court to protect abortion rights, voting rights, affirmative action, gay and trans rights, the rights of felons and undocumented immigrants, etc. They assume, in other words, that the courts will still be respected when they overturn democratically-passed laws and executive decisions that liberals disapprove of even if liberals packed the court in response to rulings *they* disapproved of.
I don't think that's a remotely plausible stance to take. But I've met lots of people who take it, even if they don't fully understand that that's what they're saying.
Interesting no one you know who wants to pack the court also wants weaker judicial review. That is my position and I am not alone.