The New York Times tells us today about a new bit of research showing that Donald Trump had the worst record in front of the Supreme Court of any modern president. That's interesting, and it says something about the lunacy of the Trump presidency, but it buries the lead. When I took a look at the paper, I discovered that one of the things the authors measure is partisanship. That is, do justices typically rule for or against presidents of their own party?
The answer, it turns out, is that historically justices have been surprisingly nonpartisan. But there's one huge exception:
The current Supreme Court is wildly partisan, far more than other postwar court. A key point here is that this isn't related to ideological compatibility between the justices and the sitting president. It's purely partisan.
The authors don't break things down by justice, so presumably this applies to both liberal and conservative justices. Our nation's tribalism is now complete.
Presumably why? I don't really buy it.
But yes, tribalism is now complete. Particularly among the conservatives, where it's been complete for your entire lifetime.
Your second sentence might have something to do with it...
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What do the units on the y-axis mean exactly? As “Votes for/against president” they seem rather low relative to what I would think the totals are, and they don’t seem to be ratios.
Why of course it's the "Logistic regression of votes in favor of the president in high-stakes cases" looking at "Partisan Compatibility between the Sitting President and the Justice"
Yeah, I don't know what that is either and not sure how they deal with the different Presidents in office during one Chief Justice's tenure.
One of the unique things about Trump is how many times he personally has had cases before the Supreme Court. As the article shows, the executive gets judicially reviewed a lot; actual presidential actions, as opposed to executive actions more broadly, get reviewed less often, and aside from Trump and Nixon presidents almost never have their personal matters heard by SCOTUS.
President Trump has a poor record before SCOTUS; Mr. Trump has a terrible record. I don't believe he has ever won a case in which he was involved in his own person rather than as president.
Who knew that not being a fascist means being a tribal partisan.
That was my reaction, too.
Try going to an elite college today and expressing some conservative views, even if you are not a Trump supporter. You'll quickly get a taste of tribal politics, the kind coming from the left.
I congratulate Gavin Newsom for helping Bush win re-election in 2004, after which he appointed Roberts and Alito. It was wise to promote a divisive issue in a presidential election year, triggering initiatives in 11 states that boosted turnout for Bush. Karl Rove liked that. The upside for all of us is that Newsom got a huge ego boost, so it was worth it.
Bush was likely to win reelection anyway, and blaming it on Gavin Newsome is silly. We were doing it here in NJ, too.
And, not for nothing, it resulted in marriage equality for tens of thousands of couples and better lives for them, their children, and their communities.
The idea that we shouldn't do the right thing because they might have a temporary backlash even as we will win them is ridiculous.
It wasn't Newsome - equal marriage would have been on the ballot even w/o his actions in SF.
The main "thank / f" you has to go to the Green Party, who gave the 2000 and 2016 elections to Rs. If they had actually followed through on Nader's initial promise not to be on the ballot in swing states, our country would be unimaginably better.
The line between engaging in pointless counterfactuals and trying to learn from history is admittedly gray, but to all the progressives out there who criticize aging baby boomer liberals (like me) it is worthwhile to consider how much better the world - not just the US - would be if Gore and Hillary Clinton had won. How much would the US had led the world toward addressing climate change ? Would we have invaded Iraq and engaged in a 20 year war in Afghanistan ? Would 9/11 even have happened ? Would Roe still be in effect ? Would Voting rights be under the same kind of attack ? The list is long.
But let's not dwell on this too long. There's work do be done . Liberals and progressives and actual moderates and yes, maybe even sane conservatives should all work to make sure Joe Biden is re-elected with majorities n the House and Senate.
👍👍👍👍👍👍👍
So right. I'm a liberal boomer and refuse to give up. That's what the conservatives are counting on. Not gonna happen.
🙋🏼♂️
Another boomer on board!
Oh for Pete's sake just stop it. Gore lost more Dem voters to Bush than to Nadar, in FLA. And Gore couldn't even win his home state of Tennessee. Gore wins Tennessee's 5 votes, and he's in.
Further, he let James Baker swoop in and lie incessantly about the situation in FLA. His campaign should have challenged the results in all FLA counties, not just four.
Gore should up to play cricket in FLA, and James Baker showed up to play rugby. How'd that work out?
It's irrelevant whether Gore lost TN or more D votes to Bush. As you indicate, he won more votes in FL and therefore should have won the election. Blaming him for not pursuing a better (in retrospect) legal strategy doesn't alter that fact.
Gore had a lot going against him: a net-negative media, the brother of his opponent overseeing the vote count operation, a GOP partisan SC making up rules out of thin air. Yet you find one party to blame -- Gore, for not playing his hand perfectly.
I do think Gore and Dems in general today would not do as they did then. That is, go gracefully. Gore's case for a "stolen election" would have been a thousand times stronger than Trump's.
None of that changes history. It is what it is. But the past 23 years may not have been anything close to what they were if the actual winner of Florida's pop vote in 2000 had become president.
Mike Lofgren on why Dems shouldn't be "good losers":
https://www.commondreams.org/opinion/did-al-gore-lose-200-election
Justice Sandra Day O'Connor was very honest in interviews after she retired. The Supreme Court shut down the recount in FL because Jeb already said he wouldn't honor the results if his brother lost. The Supreme Court feared that outcome would have hurt the country more than them just shutting down the recount.
"The Supreme Court feared that outcome would have hurt the country more than them just shutting down the recount."
IOW, they caved to the threat of GOP sabotage and conservative anger. But the harm from shutting down the recount was massively greater. As the Mike Lofgren piece shows, what the country got with Bush:
--a complete failure to protect the country from the 9/11 attack, despite US intel warnings
--a xenophobic war on Iraq, on trumped-up claims, a tragic nightmare and one of the biggest fuckups in US history
--negligence in Wall St. regulation leading to the GFC, the worst economic crisis since the Depression
--the terror state, Katrina, etc., etc., etc.
It wasn't just a bad decision, but arguably the most consequential decision in SC history.
“…arguably the most consequential decision in SC history.”
No, it wasn’t. Clearly the writer let his dog use his computer.
But still, quite consequential.
Sure, there are multiple lessons from the 2000 election but one of them is in a close election showing your purity by voting for a vain self righteous outsider like Nader is not "progressive", it's worse than stupid. 97,000 Nader votes gave us Bush. The political lesson for progressives for 2024 is to get behind Biden who has been far more effectively progressive than most could imagine in 2020.
Amen.
+10
The underlying problem is that too much authority is in the hands of very few people who are appointed for life. That is just broken.
The right solution is to enlarge the SCOTUS to several tens of jugdes, so the significance of each one of them is much smaller. These judges would also be senior judges in appeal courts. The hearings would be done by some small subset of them (different for each case), and then they all vote.
"The right solution is to enlarge the SCOTUS to several tens of jugdes, so the significance of each one of them is much smaller. "
There are only 179 Circuit Court judges (and just 667 district court judges); "several tens" of justices is overkill. And having them sit on the appeals courts as well doesn't solve anything.
Further, having "the hearings" done by a "small subset" and then requiring all of the "several tens" of them to vote doesn't solve much of anything, since (a) the oral arguments are not nearly as important as the briefs, and (b) at the SCOTUS level, the main difficulty is not the result but the *written opinion* and good luck getting "several tens" of justices to all agree on a written opinion via a vote.
Finally, what you are describing is not a court, but instead an appointed super-legislature. It would make a worse mockery of democracy than the Court already does.
If you are concerned with a rogue Court with "too much authority" the simple answer is to take away some of that authority. Right now, the Supreme Court has almost unlimited authority to pick and choose which cases it wants to hear--it doesn't even have to wait for a case to come to them on appeal! So removing a lot of that cert. authority would go a long way.
Another reform would be to remove life tenure and instead have appointments to the Court be for set terms such that at least one justice is replaced each presidential term. That would lessen the likelihood of having a 6-3 partisan majority, which is the real and very serious issue facing us now.
"the oral arguments are not nearly as important as the briefs"
So what?
" and good luck getting "several tens" of justices to all agree "
That is just stupid. Judges are intelligent people, and know when there is not much point is just arguing.
"Finally, what you are describing is not a court, but instead an appointed super-legislature."
And another one. They have to follow the consitution and an unbiased way, and are much more likely to do it than the smaller court, because they are much more likely to represent the political balance of the country.
It is true that it is more acurately described as "constitutional council", which is what the US really need.
"That is just stupid. Judges are intelligent people, and know when there is not much point is just arguing."
Have you read a SCOTUS opinion? Different justices concuring and dissenting as to different parts, concuring in the result but not in the opinion, with the Chief Justice often switching which side they are on so that they can direct who it is that writes what. That's with *nine* people on the court; with nineteen or ninety, that problem gets much worse (and that's setting aside _how_ they get written, with initial votes, decisions as to who is writing which parts, and then positions switching as those parts are written).
And to the extent it doesn't (because maybe in your proposal only a core number of justices actually write opinions, and the rest just vote?), you engender the lovely situation whereby a multitudinous unelected mass of people can vote however they want without any accountability.
The problem with the Court is that it is skewed very, very badly out of step with the country as a whole, which is the result of lifetime appointments, meaning that accidents of history (who dies when which party controls the whitehouse and senate) can cause non-representative clumps and/or impose a sort of "dead hand" by making the court change only but slowly (example: in all likelihood, it will be *decades* before the court swings to a liberal majority, becuase we would have to wait for at least two conservative members to die/resign _and_ be replaced by liberals without any of the liberals dying/resigning and being replaced by conservatives). Increasing the number of justices by a factor of five or so may solve that, but it's loopy way of going about it, and it creates enormous problems in the process.
By analogy, it's as if you are complaining about the Senate, and proposing as a solution that we have a thousand senators.
" Different justices concuring and dissenting as to different parts"
That happens because there are small number of them, so it matter what each one of them is saying. With a large number, the motivation for that goes down. There will be less of this stuff, rather than more.
"you engender the lovely situation whereby a multitudinous unelected mass of people can vote however they want without any accountability. "
They can be impeached, and with large number of them that becomes a resonable threat.
If it is regarded as not enough, it can be added that each one them needs to be re-confirmed each X years. With large number of them, that is more workable than with small number.
"Increasing the number of justices by a factor of five or so may solve that [skewedness],"
It also reduce the significance of each individual judge, and hence the motivation for bribing them and the effect of such bribes.
These two points together look to me the most important ones, and with small number you wil never solve them.
"By analogy, it's as if you are complaining about the Senate,"
The problem with the senate that it is extremely skewed with its current state. There are two posisble fixes:
1) Make the number of senators more related to the number of people in each state.
2) Limit the range of state sizes in term of populations. That is pretty radical operation, but it actaully quite good in several respects.
We already have an appointed super-legislature. And a super-Executive, as the Court hacks away at Chevron deference.
Each president gets two appointees, one every 2 years.
Trickier...set up an "emeritus" status, so after, say 24 years on the court, they can stay on without a vote--not sure about Constitutionality....
No accountability. Fix that.
"The authors don't break things down by justice, so presumably this applies to both liberal and conservative justices. Our nation's tribalism is now complete."
So essentially you're saying the report didn't give you all the info, so you're going to go with your assumptions as fact? Seriously?
It's entirely possible that the Democratically appointed justices were voting along the same lines as their predecessors, but that their voting fits this pattern because 1) they have been in the minority the whole time; 2) the majority is selecting the cases they heard; and 3) the insanity of the 4 years of Trump that their voting.
The partisanship and tribalism is primarily on the right, not the left. The left has a huge tent that has conflicts (look at Israel/Palestine, climate change, etc.) within itself. The right is either MAGA, or so afraid of MAGA it ejects anyone who doesn't bow to MAGA.
The actual actions and attitudes of the politicians, including those on the Supreme Court, are not the same distance from the "center" if that is defined either by where the center is in other advanced countries, or by poll responses in this country. US Democrats could be center-right in many countries, many of which have actual socialist and other leftist parties.
Because of the alliance between big-money interests and White Christian Supremacists in the Republican party, outcomes get pushed well to the right of where they would otherwise be. If poll questions on economics can be separated from partisanship, the Democratic positions are usually preferred.
It's been said that Alito's vote is entirely predictable: all you have to do is figure out who benefits.
"Today’s Supreme Court is the most partisan in modern history"
Both likely true and also not surprising given current US politics.
As an aside, IF the Supreme Court members had been nominated by recent Democratic Presidents ,(imagine Obama had three selections, and we now had a 6 - 3 Democratic majority ) do you think the court would be materially less partisan?
Or would the court just be similarly partisan, just in the other direction? For both parties, the days of nominating a centrist judge are long gone.
Given Obama's love of centrism, SCOTUS would absolutely be less partisan. Does anyone think Garland would be a far left as Alito is right?
fair insight Elctrk.
However, I believe Obama went to Garland BECAUSE he didn't control the Senate rather than out of a desire for a centrist.
I suspect that Obama, had he had the numbers in the Senate/had enough Democratic votes, would have preferred a much more progressive option. Maybe you read the political circumstances differently....
We don't have to base this on what we might "suspect," as we have his other appointments to go by. Neither Kagan nor Sotomayor are Alito-opposites.
Obama believed in good government, which meant he was far more inclined to appoint technocrats than ideologues.
+1
There is really nothing to suggest that Obama would have acted differently in this regard than in other matters. There's really not much progressive about him. Tim Geitner, rejecting a public option, offering virtually nothing to Labor. You've really got nothing to hang your hat on in that respect, other than wishful thinking. The best is that Obama might have appointed someone a bit to the left of Garland, and looking at his tepid performance at the DOJ, why it's really just wishful thinking.
I'm still stuck on the idea that voting against the current president is the definition of "partisan."
Ranked-choice voting eliminates that dilemma.
I think there should be modified term limits for justices, where they have to be re-certified by Congress after 22 years --because 20 years seems arbitrary and 25 years seems too long.
At 20 years in a job a person will still be thinking about carrying on and creating a legacy, but at 22 they will be seriously thinking of doing something else anyway, and at 25 they're apt to be dead.
Will they want to defend themselves in front of a committee after 22 years? They might, or maybe not.
I wouldn't give 'em 22 years plus. A flat term, non-renewable, for 10 seems more than adequate. Then think of all the fees they'll be able to command in private practice! Or lobbying!
If you do that they'll all be nuts to make their mark and 'prove' something or other.
"The authors don't break things down by justice, so presumably [partisanship] applies to both liberal and conservative justices."
The authors' conclusions apply to the Court's votes, so they apply to the majority in each case, which has usually been Republican. They did not consider concurrence or dissent.
Actually the main conclusion of the study is that the Roberts court may be most interested in aggrandizing its own power. I am not sure of that - its main interests may be in increasing the powers of the Republican party and those of rich people and big business. The direct influence of these things were not actually included among the variables in the study.
Justices gotta make a living. How can they live in the style to which they have been accustomed if they don't please the people who have the money?
Mitch McConnel looks at this headline and says, "Mission accomplished."
And apropos, this just in:
"The Supreme Court said Friday it will not immediately take up a plea by special counsel Jack Smith to rule on whether former President Donald Trump can be prosecuted for his actions to overturn the 2020 election results."
Sigh.
This ought to be a no-brainer. But if the Court should happen to decide that a President has absolute immunity, Biden should immediately arrest Justice Thomas and detain him without trial. Revoke Alito’s citizenship just for the hell of it.
Biden pardons all Americans for any personal marijuana use, voiding convictions,
https://www.usatoday.com/story/news/nation/2023/12/22/biden-marijuana-possession-conviction-pardon/72009644007/