The tyranny of the judiciary

drummerboy said:

I wonder if the founders ever thought of this as a threat?

Anyway, they left a huge hole that makes destroying democracy legal.

I doubt they'd ever considered that such terrible excuses for human beings as Alito, Thomas, Kavanaugh, and Barrett would get lifetime appointments to the SCOTUS.

What the founders thought: Federalist No. 78.

("Good behavior," I've read, should be taken in the historical context to mean just good enough to avoid impeachable actions. And the impeachment battle over one of the earliest justices, Samuel Chase, is a caution against underestimating what the founders had to consider.)

here's a good post about the state of the judiciary today

https://www.lawyersgunsmoneyblog.com/2022/02/the-lawlessness-of-the-supreme-court-and-the-crisis-of-liberalism

here's the close:

U.S. officials who sincerely wish to defend the liberal order will need
to choose sides, both domestically and in the conduct of U.S. foreign
policy. In doing so, they will blur the distinction between liberal and
illiberal practices. They will need to break domestic norms, such as not
modifying the size and jurisdiction of the federal judiciary because of
its ideological disposition. They will also need to back away from
post–Cold War norms, such as limiting favoritism toward political
factions in and among major democratic allies. And they will need to do
so with the clear understanding that these actions could backfire and
provide rhetorical cover for illiberal and antidemocratic practices at
home and abroad.

Here’s the nut:

There are a number of themes running through our article [in Foreign Affairs]. One is that proponents of liberal democracy face a lose-lose situation: we’ve reached the point where we have to compromise some principles and values in order to save liberal democracy, but doing so will create its own dangers – and quite possibly make things worse.

“At the end of the day,” Nexon writes, “we don’t think there’s a real choice here.” The Foreign Affairs article is so ambivalent about norm-breaking and backfire that I can only take that quote literally.

not sure how you can take a statement "literally" when it has two clear meanings.

either choice A and B are so onerous that there is no choice to be had

or

one of the choices is so obviously preferred that there is effectively no choice, as you must choose the preferred one.

drummerboy said:

choice A and B are so onerous that there is no choice to be had

That's the literal meaning.

one of the choices is so obviously preferred that there is effectively no choice, as you must choose the preferred one.

That's the idiomatic (or "effectively") meaning. Given your past advocacy, I took that to be your way of looking at it.

why is that the literal meaning? both require interpretation to get to an actual meaning.

drummerboy said:

why is that the literal meaning? both require interpretation to get to an actual meaning.

When, as you put it, "there is no choice to be had," then there is literally no choice. And when, as you put it, "you must choose the preferred one," then there is in fact a choice.

DaveSchmidt said:

drummerboy said:

why is that the literal meaning? both require interpretation to get to an actual meaning.

When, as you put, "there is no choice to be had," then there is literally no choice. And when, as you put it, "you must choose the preferred one," then there is in fact a choice.

if one choice is forced, there is no choice.

Whew. I was afraid you were going to ask another question that I'd feel obliged to answer. Don't let my rhetorical flourish distract you from more fruitful pursuits, like that Foreign Affairs article.

DaveSchmidt said:

Here’s the nut:

There are a number of themes running through our article [in Foreign Affairs]. One is that proponents of liberal democracy face a lose-lose situation: we’ve reached the point where we have to compromise some principles and values in order to save liberal democracy, but doing so will create its own dangers – and quite possibly make things worse.

“At the end of the day,” Nexon writes, “we don’t think there’s a real choice here.” The Foreign Affairs article is so ambivalent about norm-breaking and backfire that I can only take that quote literally.

I think they are favoring the "save liberal democracy" choices, while admitting that it's not "permanently saved" if you do that.

The other option is to watch liberal democracy die.

I'm not convinced that Democrats losing the House is equivalent to the death of democracy.

PVW said:

I'm not convinced that Democrats losing the House is equivalent to the death of democracy.

Nexon brings much more to the table than the 2022 elections, including that blog post on the Supreme Court, but it’s true that one doesn’t have to accept all or any of it, which would make whatever he thinks about choices moot. That is, if you don’t believe that liberal democracy is on the brink of death, there’s no need to consider illiberal changes that could backfire.

PVW said:

I'm not convinced that Democrats losing the House is equivalent to the death of democracy.

if they lose only the House, probably not.  But if the Republicans control both houses and the presidency in 2025, I think we know what's going to happen regarding "election integrity" legislation.  They will effectively legislate the Democrats into the minority for the foreseeable future if it's at all possible.

I don't think it's all or nothing -- I do think our democracy is in grave danger, but I don't think that provides a blanket allowance for all counteractions. If the position is simply "illiberal actions and changes may be necessary to defend liberal democracy," that far too vague to agree or disagree with.

In my response, I was thinking specifically about the challenge posed by gerrymanders, given that this thread's current posts seem to be coinciding with discussions in other threads around that topic. And so I can say that, specifically, I do not support partisan gerrymanders by Democrats to offset partisan gerrymanders by Republicans. But on some other issue, would I support "illiberal" actions? I mean, maybe? Throw out a concrete scenario and I can respond, but as a vague "may be necessary," what can one offer beyond a shrug?

In the piece, they note that the situation calls for major reforms of the court. I agree. They also note that this is almost certainly not going to happen. Also agree. They then say that the alternative is defying the court. Maybe? For instance, should Trump lose the 2024 election but, with the assistance of state legislatures and allies on the courts, have himself declared the winner, should the majority come out in the streets and refuse to accept the outcome? I think the answer is yes, but perhaps that's the sort of thing Nexon is driving at. That would essentially be a revolution, as the courts and legislators would technically still be acting within their constitutional authority and the response would be a rejection of that.

The most dangerous scenario is if Trump wins in 2024 legitimately.

PVW said:

I don't think it's all or nothing -- I do think our democracy is in grave danger, but I don't think that provides a blanket allowance for all counteractions. If the position is simply "illiberal actions and changes may be necessary to defend liberal democracy," that far too vague to agree or disagree with.

In my response, I was thinking specifically about the challenge posed by gerrymanders, given that this thread's current posts seem to be coinciding with discussions in other threads around that topic. And so I can say that, specifically, I do not support partisan gerrymanders by Democrats to offset partisan gerrymanders by Republicans. But on some other issue, would I support "illiberal" actions? I mean, maybe? Throw out a concrete scenario and I can respond, but as a vague "may be necessary," what can one offer beyond a shrug?

In the piece, they note that the situation calls for major reforms of the court. I agree. They also note that this is almost certainly not going to happen. Also agree. They then say that the alternative is defying the court. Maybe? For instance, should Trump lose the 2024 election but, with the assistance of state legislatures and allies on the courts, have himself declared the winner, should the majority come out in the streets and refuse to accept the outcome? I think the answer is yes, but perhaps that's the sort of thing Nexon is driving at. That would essentially be a revolution, as the courts and legislators would technically still be acting within their constitutional authority and the response would be a rejection of that.

gerrymandering is specifically a way in which the GOP has been trying to legislate the Democrats into a permanent House minority.  I fully support aggressive gerrymandering by Democrats as a potential means of forcing the Republicans to vote for federal legislation taking the parties out of redistricting.  And if Republicans won't do that, I don't see what sense it makes for Democrats to unilaterally disarm on that issue.  In fact, it seems incredibly stupid and reckless for them to that.

if I may make a crude analogy, it's like someone keeps coming up to you punching you in the face.  And of course that's wrong. I strongly believe it's wrong, and under normal circumstances I would never punch someone in the face.  But at some point if you get punched in the face a half dozen or so times without retaliating, it doesn't make you brave and principled.   It makes you a punching bag.

PVW said:

... but as a vague "may be necessary," what can one offer beyond a shrug?

That was pretty much my takeaway from Nexon and Cooley’s Foreign Affairs article.

ml1 said:

But at some point if you get punched in the face a half dozen or so times without retaliating, it doesn't make you brave. and principled. It makes you a punching bag.

I was a classmate’s punching bag. It didn’t make me brave or principled. It made me see a bigger picture.

DaveSchmidt said:

ml1 said:

But at some point if you get punched in the face a half dozen or so times without retaliating, it doesn't make you brave. and principled. It makes you a punching bag.

I was a classmate’s punching bag. It didn’t make me brave or principled. It made me see a bigger picture.

and what was that?

Gerrymanders don't reliably deliver a consistent partisan advantage, though. People move into and out of communities. Town, cities, and counties grow or lose population. There are notable exampls in places like TX and GA where lines originally drawn to benefit Republicans have become blue districts.

I don't want to wave the problem of gerrymandering way. It truly is a problem. But put me in the "maybe Democrats should be trying harder to expand their base" camp. For better or worse (mostly worse, IMO), we're structured as a two-party system, which means that so long as the Democratic party is the democratic party, it's going to have to do that very tricky act of catering to an ideologically broad coalition. I think the biggest challenge currently facing the country is that, all things being equal, the party of democracy isn't winning enough elections. All things are not equal -- gerrymanders being one example -- but if I had to choose between "defensively gerrymander where they can to offset Republican gerrymanders" or "push hard to expand the number and geographical diversity of people likely to vote for Democrats," I think the latter is more important.

PVW said:

Gerrymanders don't reliably deliver a consistent partisan advantage, though. People move into and out of communities. Town, cities, and counties grow or lose population. There are notable exampls in places like TX and GA where lines originally drawn to benefit Republicans have become blue districts.

I don't want to wave the problem of gerrymandering way. It truly is a problem. But put me in the "maybe Democrats should be trying harder to expand their base" camp. For better or worse (mostly worse, IMO), we're structured as a two-party system, which means that so long as the Democratic party is the democratic party, it's going to have to do that very tricky act of catering to an ideologically broad coalition. I think the biggest challenge currently facing the country is that, all things being equal, the party of democracy isn't winning enough elections. All things are not equal -- gerrymanders being one example -- but if I had to choose between "defensively gerrymander where they can to offset Republican gerrymanders" or "push hard to expand the number and geographical diversity of people likely to vote for Democrats," I think the latter is more important.

of course these aren't permanent advantages.  but they are typically persistent enough to last the decade until the next redistricting.  

The problem we have now is that the higher authority whose place is to prevent partisan chicanery claim they have no say.

Supreme Court Rules Partisan Gerrymandering Is Beyond The Reach Of Federal Courts

If we want an end to gerrymandering, the only path I see to get there is to force the Republicans to give up because they no longer see an advantage to it.  Maybe then they'll vote to end it forever.  But if Democrats take a unilateral principled stand against gerrymanders, Republicans will press their advantage.  They play a different game of political hardball, and I'm glad to see Democrats finally fighting back.

ml1 said:

and what was that?

That he probably had some issues at home, that my resistance was ineffective, and that I could get through it. Which may or may not be applicable to our political parties and the fate of liberal democracy.

What’s for sure is that my experience didn’t have larger implications for the citizenry, the way gerrymandering decisions do. So I agree it’s a crude analogy.

just to be clear, I didn't start this thread because of gerrymandering.

I'm talking about having a lawless court, overturning legislation and executive action, and answerable to no one.

Here's a goodie

At this moment, the United States Navy is preparing to deploy a 10,000-ton warship carrying 320 officers and sailors, along with missiles, torpedoes, and a mounted artillery gun. This ship, known as a guided-missile destroyer, defends the United States and its allies on the seas. Although its next mission remains secret, it may bolster American military presence in Europe as Russian aggression pushes the continent into war. But the Navy cannot currently deploy this warship, because it has lost trust in its commanding officer, an anti-vaxxer who has repeatedly disobeyed lawful orders, misled superiors, and allegedly exposed dozens of his crew to COVID-19 due to a refusal to get tested.

The Navy wants to remove this officer, whom I’ll call John Doe, from command of the destroyer. But it can’t, because a single federal judge in Tampa has forbidden it. This judge has overruled multiple admirals and captains who assert, under oath, that deploying the ship with Doe in charge would imperil national security. He instead ordered the Navy, under threat of sanction, to keep this disobedient officer in charge of a $1.8 billion warship. The federal judiciary is quite literally preventing the nation from defending itself at sea.

That judge, Steven Douglas Merryday, is a George H.W. Bush nominee who sits on a federal trial court in Florida. He gained notoriety in 2021 after blocking a CDC order that limited cruise ship operations due to the pandemic. So, when the far-right Liberty Counsel sought to halt President Joe Biden’s COVID-19 vaccine mandate for the armed forces, they took their case to Merryday’s court. Predictably, they prevailed: In February, Merryday ruled that the mandate violated the Religious Freedom Restoration Act, siding with the plaintiffs, Navy Commander John Doe and Lieutenant Colonel Jane Smith. (I’ve applied these pseudonyms to the officers because the court granted them anonymity.)

But Merryday did not merely exempt Doe and Smith from the mandate. Rather, he handed down a sweeping restraining order that prohibited the Navy from taking any “adverse action” against the plaintiffs because of their unvaccinated status. Specifically, he barred the Navy from reassigning them for any reason whatsoever.

This order created immediate problems. An active-duty member of the Marine Corps, Smith is slated to take command of a Combat Logistics Battalion later this year. As Lieutenant General W.M. Jurney attested, this commander must disembark at ally nations all over the world. Many of these countries require all U.S. service members to be vaccinated against COVID before stepping on their shores. Because she is unvaccinated, Smith is not “worldwide deployable,” in Jurney’s words. And yet Merryday has forced the Navy to deploy her.

But Doe poses the bigger threat. He is currently the commanding officer of a warship that may soon set sail. If he falls seriously ill at sea—which is more likely because he refuses the vaccine—he may thwart the entire mission. The issue, however, goes deeper than that. In declarations, Vice Admiral D.W. Dwyer and Captain Frank Brandon explained that Doe’s anti-vax beliefs are part of a broader pattern of insubordination. Brandon testified that last November, he spoke with Doe on Doe’s ship one day before its scheduled departure. Doe was experiencing multiple symptoms of COVID, and appeared to have a relatively severe case; he could, Brandon recalled, “barely speak.” Yet Doe refused to get tested—a clear violation of protocol—and attended a briefing in a cramped room with about 60 other people. Brandon ordered Doe to get a test, which revealed that he did, indeed, have COVID, and exposed dozens of others to the virus.

Doe engaged in other deceptive behavior. For instance, when requesting leave, he concealed the fact that he was flying to another state, which would have triggered a mandatory risk assessment. After Brandon discovered this subterfuge, he learned that Doe had traveled to a high-risk area, requiring five days’ quarantine upon return. Doe did not inform his Executive Officer of this extended absence, creating a “significant and very rare” disruption “across the waterfront” during a crucial phase of ship preparation. Brandon concluded that Doe “intentionally deceived me,” “put his crew at risk,” “failed to comply with the Navy’s COVID-19 policies,” and engaged in “negligent behavior” in “performance of his duties.”

The story about the Navy is very odd. How can a Federal Court interfere with Military Command orders?

What if a high ranking Naval Officer has a religious conversion to pacifism. Does he have a Constitutional right to refuse to go into combat but still keep his command?

Yikes!

Something in the last few years -- the pandemic for sure, maybe the arrival of Trump even before then -- seems to have really unmoored a sizeable segment of the American right. IANAL, but as STANV notes, this seems to very clearly violate the separation of powers here, inserting the judiciary into an area the constitution would seem to quite explicitly place under the executive. Similarly, I was taken aback by the courts' acceptance of Texas' abortion vigilante bill, which seems to blow up the concept of judicial review. It all feels so lawless.