The Supreme Court could be affected by the policies of Harris and Trump
Is Democracy Cooked? The Value of Voting in the Age of Varsity and Institutional Defections: The Case of the Republican Party
Is American democracy being cooked? Even for the chronic pessimist, there’s value in voting. Political action is not limited to the presidential election, and neither is voting mutually exclusive of anything else. Every four years, you get to weigh in on a court system that has been vandalised. A vote can be a hopeful affirmation, an act of desperation, an expression of pure spite. A ballot can be one way to say I disagree.
And others — like myself — see this as a vast and intractable problem that will never be solved in our lifetimes. The Republican Party has been captured by a pack of religious zealots and head-measuring weirdos that can’t be trusted to appoint a normal-brained judge. Every judicial appointment made by a Democratic president has been done to bail out the sinking ship. The judges have redefined themselves as arbiters of agency regulation, they have become the referees in disputed elections, and they continue to blow up voting rights that were established by the Constitution.
What this means for you as a voter in 24 years depends on your temperament. Some people thinkvoting has a real impact. Regardless of what promises are made, the mere fact that the candidate has aligned themselves with a left- or right-leaning national apparatus will have a direct effect on how America is governed. A vote changes to political voltage when it’s used for choosing between two figures who each promise different things and who don’t know what will happen. For the optimist, this assurance is enough.
The Trump Bullshit of the U.S. Supreme Court: The Implications of the Covid-19 Epidemic on Social and Economic Issues
There are proposals to pack the Supreme Court and impose term limits on judges. The political feasibility of these options is nonzero. But they are completely dependent on electoral victories for politicians who themselves have not publicly committed to fixing the judge problem.
The Trump judges are younger. They skew white, male and unqualified compared to the rest of the judiciary. They comprise about a third of the appeals courts, and they have tenure for life. For a long time, their bullshit will plague us.
At the time, legal observers were aware of the enormity of what was happening and that it was about to get worse but they had no idea how bad it was going to get. Earlier this summer, a SCOTUS majority stacked with Trump judges overturned Chevron v. Natural Resources Defense Council, expanding the power of the federal judiciary more than ever. This, in combination with its ruling in West Virginia v. Environmental Protection Agency the previous year (expanding the “major questions” doctrine), gutted the power of the administrative state. Agency rulings such as carbon emissions, consumer protections, net neutrality, and hundreds of other cases were now subject to second-guessing by any of the hundreds of jackasses in random middle-of-fucked-nowhere district courts that were plopped in by Trump between the years of Insofar as national policy exists, it is whatever squeaks past the notice of the Trump judges.
The upcoming election, less than a week away, could reshape the U.S. Supreme Court — or not, depending on retirements, deaths, or other unforeseen events. The only certainty is political struggle.
The clock is going to hit something. Justice Antonin Scalia died at the age of 79. Rehnquist was the former Chief Justice. Justice Stephen Buckley retired at 84, and Justice Anthony Kennedy retired at 81. Sitting Supreme Court Justice Clarence Thomas, who is presently 76 years old, is old as shit. (The covid-19 epidemic, among other factors, has dropped average life expectancy in the United States to 76.4 years.) A vote for president is a vote for the Supreme Court. The composition of the Supreme Court, in turn, determines whether your student loans will be forgiven, whether your ISP can be held to net neutrality, and whether the president is a king unbound by the rule of law.
It’s the easiest case for why you should vote. A president can make a huge impact on national policy, as the de facto leader of their political party, and by speaking to the country they can set a national agenda. These powers exist due to tradition, creativity, and the public imagination. The power to nominate federal judges, on the other hand, is a power that is explicitly enumerated in the US Constitution.
In the meantime, Justice Clarence Thomas, the most senior and seasoned Supreme Court justice, provides a lesson of longevity and power. Justice William O. Douglas held the record for longest service on the court for 36 years. Indeed, even sooner, when the next president is sworn in this January, Thomas will be making decisions that directly effect his 11th presidential administration.
What Could Happen at the Supreme Court Under Harris and Trump? An Analysis based on a Post-Newtonian Research Article by Feldman
Harvard’s Feldman says he sees no light at the end of the tunnel when the parties are split, with a president of one party, and a Senate controlled by the other party. He thinks that a change could come eventually.
Some conservatives think it’s too dire a prediction. They expect that especially in states where both senators are Democrats, there would be horse-trading and a deal that allocates judicial seats — basically, the Democrats get one, for example, for every two or three GOP nominees.
Some of the most politically active conservative thinking would like to see Thomas and Alito step down for younger conservative judges who can continue to serve for many decades longer. The ultra-conservative Fifth Circuit Court of Appeals has a lot of former Thomas and Alito clerks, who are often reversed even by the current conservatives on the Supreme Court.
Democrats are only candid about this when speaking not for attribution. As one put it, “We would largely be left with the politics of personal destruction, investigating every aspect of a nominee’s life to find something that is disqualifying.”
So what if Trump is elected, and the Senate flips, as expected, to Republican control? The only thing left to do is to confirm a new justice, which would be done by two moderate Republicans, Lisa Murkowski of Alaska and Susan Collins of Maine. If the Republican margin in the Senate is 52-48, their votes aren’t needed; JD Vance would cast the tie-breaking vote as vice president even if Murkowski and Collins voted against the nominee.
The Electoral Case for Merrick Garland: The Case for a Republican Candidate in the 2020 Democratic Causal Leadership Challenge
He says that a process has to be respected regardless of the impact on one party or another. If it doesn’t command general adherence anymore, it’s not a norm.
NYU law professor Bob Bauer, who served as White House counsel for two years in the Obama administration, notes that institutional norms aren’t necessarily permanent.
He stated that neither party would be likely to give a positive vote to a nominee from the other party.
Republicans “essentially crossed the Rubicon” in 2016 with the Garland nomination, says Harvard law professor Noah Feldman, who has written extensively about the court’s history.
Democrats like to think of themselves as less responsible than Republicans, but the pressure would be enormous if they did what Republicans did to the Democrats.
South Texas College of Law professor Josh Blackman says they will give you the treatment of Merrick Garland. The seat will be open for three or four years.
Conservatives are determined to keep their majority on the Supreme Court. The Senate may flip to Republican control if Kamala Harris is elected president.
