Do we still need a legislature?

[superrific]

But the Roberts Court isn’t fighting the Civil Rights Movement anymore.

Correction: it is fighting the Civil Rights movement tooth and nail.

 

[superrific]

If we win 50+1 in the Senate, we should strip the Supreme Court’s jurisdiction over key reforms: voting rights, reproductive freedom, labor, climate. When the court strikes it down, we ignore them.

Yes, the right will squeal. The institutional centrists will squeal. The elite media will squeal. Let them. Our message would be simple: the American people are done letting unelected politicians in robes veto their future.

A similar but slightly better idea would be to create a new court, technically inferior to the Supreme Court but with final appellate jurisdiction. The Supreme Court's original jurisdiction can't be stripped but it is also of little importance.

The new court could be created with quick rotation in mind. The "justices" would be rotations from well-regarded circuit court judges.

 

[superrific]

It seems to me that they’ve already won the fight and are now moving on to others. Not saying they’re not still attacking civil rights.

I was merely using clever word play to highlight what you and everyone already know: the Supreme Court used to be a key enabler of the civil rights movement, and its current iteration is trying to undo most of that.

 

[superrific]

In this setup, Congress gets to posture while the presidency and the courts do the actual work and take the blame. This is the real engine behind what people call the “imperial presidency” or “judicial supremacy.” It’s not just theft of power. It’s a system that rewards lawmakers for letting someone else take the fall.

If this is true, why didn't it happen 25 years ago, or 100 years ago? Why only now?

Ironically, we've flipped roles. You're saying this is structural and not easily remediable. I'm here saying that really it's a function of voters and how they receive and process information.

I think it's in large measure because of the changing nature of religious practice in America. 100 years ago, there were no "conservative Christians" as such, and they weren't out there trying to prescribe behavior. Not that they weren't prescribing it; it was just more or less taken for granted. Homosexuality was wrong and freakish. Transgenderism was especially degenerate (and not medical at all). Abortion was mostly illegal.

But now the conservative Christians assert themselves as such, and the basis of that assertion is opposition to homosexuality (well, one important basis). And that is a political issue of the day. It's also not amenable to compromise for those religious folks, for whom being gay is a sin and abortion murder and end of story. Meanwhile, who wants to compromise with people who think your entire way of life -- or your friends' or family's way of life -- is degenerate and sinful? Thus negative partisanship arose out of this incommensurability.

 

[Calheel]

A similar but slightly better idea would be to create a new court, technically inferior to the Supreme Court but with final appellate jurisdiction. The Supreme Court's original jurisdiction can't be stripped but it is also of little importance.

The new court could be created with quick rotation in mind. The "justices" would be rotations from well-regarded circuit court judges.

I thought some of your ideas would face constitutional challenge. But the court basically just blessed the idea that Congress has the power to limit the court’s power. That same idea could be used to defang the Supreme Court.

 

[rodoheel]

Totally agree that filibuster reform is essential. It’s a core part of the incentive problem; right now Senators get to veto major legislation without even taking public responsibility. That’s anti-democratic and corrosive, no doubt.

I think where we differ is that you still seem to treat filibuster reform as the endgame. To me, it’s just the first step. Say we nuke the filibuster after gaining the majority and pass a sweeping climate bill, labor law reform, or universal childcare. What happens next? This Supreme Court has shown again and again that it’s willing to strike down bold legislation even when Congress does act.

So if we don’t also deal with the Court’s veto power, if we don’t stop letting them treat major legislation like a suggestion, we’ll just be sending good bills to die. That’s why jurisdiction stripping matters. Not as some fringe work-around but as a necessary companion to reforming Congress itself.

Filibuster reform removes the excuse not to pass laws. Jurisdiction stripping removes the excuse that “the Court won’t let us.” Together, they box Congress in to actually govern.

Well, to be clear, filibuster reform isn't the endgame, it's the means to the endgame, which is the passing of, hopefully, bold progressive legislation. I honestly just don't think it's quite right that the "Supreme Court has shown again and again that it’s willing to strike down bold legislation even when Congress does act." It has done that on occasion, with negative consequences. It has not done it consistently or frequently. And mostly, there just hasn't been bold legislation for it to strike down. So even as much as I hate the way the current Supreme Court acts, and distrust it to act appropriately, I don't necessarily agree that bold legislation that is carefully crafted to be legal and constitutional will inevitably be struck down.

I do think part of the disagreement here is that you think legislators (and probably centrist Dems in particular) have frequently used "the court won't let us" as an excuse for not acting. I honestly don't think that's been a frequent occurrence. The place where I remember that debate between liberals and leftists being most pronounced in that regard was around student debt relief, when Progressives were frustrated that the Biden admin "accepted" the court's ruling on that. but that was struck down specifically because it was done by executive order and not by Congress. I don't think anyone has ever suggested that Congress can't pass student debt relief/reform.

 

[rodoheel]

Just to clarify, I’m not saying this is some immovable structural destiny. Quite the opposite. I’m saying the system produces predictable outcomes based on the incentives built into it, and those can be changed if we’re willing to confront them. Filibuster reform, jurisdiction stripping, war powers reform; these are tools to restore democratic accountability and re-center Congress as the core of representative government.

I also wouldn’t say we’ve flipped roles. You’re pointing to cultural and religious polarization: real forces, but ones far harder to shift through direct institutional action. I’m focused on the levers of power Congress itself can still pull. The rot didn’t start in voter psychology; it started when institutions stopped rewarding courage and started rewarding deflection.

That’s why I’ve argued in the past that emotional resonance in politics isn’t in tension with structural critique, it’s how structure gets politicized. People don’t experience the filibuster as a rule; they experience it as abandonment. They don’t experience judicial supremacy as a legal theory; they experience it as loss. A healthy democracy doesn’t treat those feelings as irrational, it channels them toward reform. That’s what populists like FDR, Sanders, and AMLO have done.

As for why this didn’t happen 100 years ago: the conditions weren’t yet ripe. Congress was more dominant. The filibuster hadn’t yet metastasized. The presidency hadn’t absorbed the administrative state. Courts weren’t routinely striking down major policy. It took decades of media consolidation, party hollowing, and procedural drift to create a system where Congress can avoid responsibility while letting the other two branches take all the heat.

So the question isn’t whether this is reversible, it’s whether we’ll act before the damage calcifies. Do we keep treating Congress as a stage for moral posturing while real decisions are made elsewhere? Or do we rewire the system so that legislating is not only possible but expected?

FWIW I think you're missing one major factor in what is different now vs 100 years ago, and that's modern mass media. The rise of legislators who spend more time on social media and cable news networks generating sound bytes and red meat for the base than doing anything else (like, say, drafting and debating legislation) was not possible until fairly recently.

 

[superrific]

I think the Court has largely gained power where Congress has lost it by essentially stepping in to make a decisions where Congress hasn't acted, rather than by overruling things Congress has done. There certainly have been cases of the Court weakening or overruling progressive legislation - the biggest and most impactful example, in my opinion, being Citizens United - but mostly, in recent years, it's been either ruling on executive action (i.e., Biden student loan relief) or its own earlier precedents (i.e., Dobbs).

I couldn't disagree more. The current conservative legal movement has been a war on Congress going back 40 years.

1. The first assault was textualism. Textualism isn't necessarily good or bad, or if it, it's complex. But when applying textualist principles to legislation crafted before courts were using textualist methods, the court wasn't trying to effectuate Congress' intent. It was trying to kill legislation it didn't like. So many of the obnoxious textualism cases were pathetically cramped readings of statutes that eviscerated what Congress intended.

2. Congress adjusted and started writing legislation for textualist review. That's when the court invented its "get out of text free card" (Kagan, J.) -- the major questions doctrine. Now the court could invalidate legislation not based on its text, but on a weird hybrid of speculation and ostensible (but bogus) separation of powers concerns.

That's merely the most egregious of the clear statement rules. The Planned Parenthood case also involved a clear statement rule imposed on legislation retroactively, with no care as to what Congress actually intended.

3. Most of the court's ad hoc results-oriented ad hoc "reasoning" involves some legislature-defeating fiction. Assumptions like words used in different places in the same statute have the same meaning. A passing familiarity with how legislation is constructed shows that to be false. Congress doesn't pay such close attention to wordsmithing because it doesn't have time. John Manning, a leading textualist, told me that he knows he has unrealistic expectations of Congress but supported textualism because it would "hold Congress' feet to the fire." He had no answer to "To what end?"

Then there's the outright hostility to certain statutes -- in particular the Voting Rights Act and the Bipartisan Campaign Finance Reform Act. In the former, the Supreme Court has just rewritten statutes to bear no resemblance to anything Congress passed. See, e.g., Brnovich v DNC (Alito, J.), one of the very worst statutory interpretation cases I've ever read. And the BCRA was gutted systematically, one idiotic argument at a time. Citizens United was merely the culmination of a line of cases starting with Wisconsin Right To Life v. someone I've forgotten.

4. Biden v. Nebraska (student loan case) was nominally about an executive action, but it was a statutory case after they made an exception in standing doctrine for the state litigants. The administration said that the loan forgiveness was authorized by statute. The Court said, "nah. We don't think Congress would have done that" even though it did. Major questions doctrine, and all.

5. The Court's sustained attack on the APA has been a feature of its recent decisions, and that of course is an attack on a Congressional statute.

 

[superrific]

but that was struck down specifically because it was done by executive order and not by Congress. I don't think anyone has ever suggested that Congress can't pass student debt relief/reform.

Again, not really. The ruling wasn't that the executive couldn't do it (note: it was not an executive order; it was a determination by the Secretary of Education pursuant to the HEROES Act) but that Congress hadn't authorized it despite the text that clearly did.

 

[lawtig02]

Interesting discussion.

Since most of you agree the filibuster needs to go and court reform MUST happen in order to save the country then you support doing it now right?

Or is it just when you don’t get the desired results it is a “constitutional crisis?”

The hypocrisy is duly noted and much expected.

The desire to have absolute power by the Democrat Party is nothing new.

Single party rule has always been the end goal.

The poster that said “permanent minority rule” is false.

Scoreboard showed that Trump won all the swing states, EC and most of all the denocrat’s rallying call of “but… but…. The POPULAR VOTE.”

So how is the GOP in the minority now?

They aren’t.

Keep clamoring for all the changes above. I’ll file that under the ultimate FAFO.

And I would love to see it happen.

 

[farce©]

Free Froggie

 

[superrific]

You say the Court hasn’t struck down that much “because Congress hasn’t passed much.” But that’s not a neutral fact, it’s a symptom of the very chill we’re talking about. The threat of judicial obstruction is already shaping what gets proposed, how bills are drafted, and which fights leaders are willing to pick. That’s a kind of structural veto, whether the Court formally rules or not.

So no, “the Court won’t let us” may not always be said out loud, but it’s baked into the strategic choices being made. That’s why jurisdiction stripping matters. It doesn’t kill the Court; it just prevents five unelected lawyers from tossing out national policy every time entrenched interests feel threatened. It’s the necessary counterpart to filibuster reform: one removes the excuse not to act, the other removes the excuse that action is pointless.

This is a debate with a false premise. The main violence the Court does to statutes isn't to invalidate them. It's to interpret them to mean something different than what they are.

For instance, a section of the Voting Rights Act states:

"No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color."

And this rule is violated, per the statute, when:

it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [a given race] in that[those] members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

This is straightforward enough. The Supreme Court did not invalidate it. But they interpreted it oddly. For instance, is there anything in that statute to carve out a "mere inconvenience" exception? Of course not. "Equally open" is clear: there can't be rules to make it more difficult for one race to vote than another. Well, who cares about that? Not Alito.

Do you see any exception stating that "equal opportunity" should be measured against the voting practices in effect in 1982 when the VRA extension was first passed? This is maybe the most egregious statutory bullshit since the 19th century. Equal opportunity means equal opportunity. It doesn't mean that the state has to have the same rules for in-person voting, but allows white people to cast their votes via a mind-machine interface that registers their votes without them having to leave their couch. It means if the state loosens absentee ballot requirements for some, it has to do so for all.

How about anything in the text indicating that the number of voting options is relevant? If a state used to have one voting option, and it expanded it to three, but white people get a fourth -- yeah, that's illegal. It doesn't matter that minorities have more options than they used to. What matters is whether the options are equal.

So the Court didn't exactly "strike it down" per se, but in practice that's exactly what they did. They replaced the statute Congress wrote with another one they invented out of thin air.

Lots of statutes get nerfed into oblivion in this manner. The Clean Water Act, for instance, is now interpreted to apply only to wetlands that have a surface connection to navigable waterways. Nothing in the statute suggests that, and it's nonsense to assume that Congress was so idiotic as to pass a statute that would make no sense since most of the important chemistry happens underneath the surface. It didn't count as invalidation but again it was an invalidation in effect.

 

[superrific]

I thought some of your ideas would face constitutional challenge. But the court basically just blessed the idea that Congress has the power to limit the court’s power. That same idea could be used to defang the Supreme Court.

It's in Article III. But there's another hammer that could be brought to bear: the poison pill.

For instance, Biden could have had Treasury sell bonds at $100 face value with a rider requiring a payment of $10,000 each in the event that any judicial ruling invalidated the student loan forgiveness. Or, with respect to my idea of a super-circuit court, a large lump sum payment in the event THAT court was ever stripped of jurisdiction. If the Pubs wanted to get rid of it, it would cost $10T.

This would work especially well for the super-circuit court, because the $10T would be payable the moment the Supreme Court even examined the issue.

 

[superrific]

For the record, every Supreme Court Justice in 2022 and 2024 and 2025 (and 2035) agrees that "it can't be right that one district court judge can stop any policy in its tracks." That is, everyone agreed that universal injunctions can be misused. That's not what the fight was about. It was whether the solution to that problem was to ban universal injunctions entirely in all circumstances.

The majority said that the universal injunction was a workaround of the class action, and suggested class actions could substitute for universal injunctions. If the Supreme Court stands by that and doesn't erect weird and unnecessarily class action "requirements" to selectively defeat district court jurisdiction, nobody is going to have a problem with that. It's that the dissenters have seen this story many times before: the conservative majority outlaws X because it's not needed given Y, and then they say Y is illegal. That's what happened in Shelby County. This Supreme Court majority cannot be trusted. They just can't.

My personal approach would have been to say universal injunctions must be allowed if the rule of law depends on them. That would mean no more bullshit universal injunctions against abortion drugs that have been used safely and effectively for two decades. But it would mean that blatant constitutional violations could still be stopped. That is, the executive has to be enjoined from actions that would undermine rule of law. That includes military on the streets, prohibitions on birthright citizenship, unequal ballot access, etc. It doesn't include a border wall (except as to specific plaintiffs who have takings objections); but it does include the executive's use of funds appropriated for other purposes.

I would also allow universal injunctions to preserve the court's jurisdiction, as the Supreme Court has given that power to itself and thus by extension all other federal courts. For instance, if the district court wants to review whether notice-less deportations are illegal or not, the court can order the executive to cease all such deportations because a delay extinguishes the case.

 

[superrific]

AOC, Bernie, Crockett, Jeffries, Pocahontas being the face of the party is a blessing.

Every single one of these people is either a minority or being mocked as a minority. Kinda reveals your outlook on the world.

 

[superrific]

Bernie is Jewish. You're mocking Warren because of a race-related claim she made (which was not a lie; it was at most a mistake. Those are different things even if your side has done its best to eradicate the distinction). Why did you include Crockett? What leadership position does she have? Oh. You're just listing black people. Now, when you are banned, I urge you to GFY with extreme abandon.

 

[rodoheel]

I guess this froggie character got banned too quickly for me to respond to the bait. But for the record, yes, I would support filibuster reform happening right now, right this second, with Republicans in power.

 

[ZenMode]

For the record, every Supreme Court Justice in 2022 and 2024 and 2025 (and 2035) agrees that "it can't be right that one district court judge can stop any policy in its tracks." That is, everyone agreed that universal injunctions can be misused. That's not what the fight was about. It was whether the solution to that problem was to ban universal injunctions entirely in all circumstances.

The majority said that the universal injunction was a workaround of the class action, and suggested class actions could substitute for universal injunctions. If the Supreme Court stands by that and doesn't erect weird and unnecessarily class action "requirements" to selectively defeat district court jurisdiction, nobody is going to have a problem with that. It's that the dissenters have seen this story many times before: the conservative majority outlaws X because it's not needed given Y, and then they say Y is illegal. That's what happened in Shelby County. This Supreme Court majority cannot be trusted. They just can't.

My personal approach would have been to say universal injunctions must be allowed if the rule of law depends on them. That would mean no more bullshit universal injunctions against abortion drugs that have been used safely and effectively for two decades. But it would mean that blatant constitutional violations could still be stopped. That is, the executive has to be enjoined from actions that would undermine rule of law. That includes military on the streets, prohibitions on birthright citizenship, unequal ballot access, etc. It doesn't include a border wall (except as to specific plaintiffs who have takings objections); but it does include the executive's use of funds appropriated for other purposes.

I would also allow universal injunctions to preserve the court's jurisdiction, as the Supreme Court has given that power to itself and thus by extension all other federal courts. For instance, if the district court wants to review whether notice-less deportations are illegal or not, the court can order the executive to cease all such deportations because a delay extinguishes the case.

"But it would mean that blatant constitutional violations could still be stopped."

As it relates to birthright citizenship, the "jurisdiction thereof" certainly seems raise enough questions to be make "blatant constitutional violation" an inaccurate label.

I'd also note that allowing district courts to implement nationwide injunctions basically makes them SCOTUS.

 

[rodoheel]

"But it would mean that blatant constitutional violations could still be stopped."

As it relates to birthright citizenship, the "jurisdiction thereof" certainly seems raise enough questions to be make "blatant constitutional violation" an inaccurate label.

I'd also note that allowing district courts to implement nationwide injunctions basically makes them SCOTUS.

The first part of the post is somewhat debatable, though only a tiny minority of (usually ideologically focused) legal scholars even entertain the position, which finds no support in existing Supreme Court precedent.

The last line is simply hogwash. That's like saying that "allowing district courts to rule on the constitutionality of a statute basically makes them SCOTUS." In other words, the district court is generally entitled to enter the same scope of relief that SCOTUS is. The thing that makes the district court not SCOTUS is that any time they enter an injunction, such entry can be appealed to a federal circuit court, and then from there to the Supreme Court, who can overrule and reverse the District Court's decision.

 

[ZenMode]

The first part of the post is somewhat debatable, though only a tiny minority of (usually ideologically focused) legal scholars even entertain the position, which finds no support in existing Supreme Court precedent.

The interpretation much of the Constitution is debatable and up for interpretation, which is why SCOTUS is so important.

The last line is simply hogwash. That's like saying that "allowing district courts to rule on the constitutionality of a statute basically makes them SCOTUS." In other words, the district court is generally entitled to enter the same scope of relief that SCOTUS is. The thing that makes the district court not SCOTUS is that any time they enter an injunction, such entry can be appealed to a federal circuit court, and then from there to the Supreme Court, who can overrule and reverse the District Court's decision.

Simply ruling isn't the problem. Taking an individual case, with an individual plaintiff and, based on the district judge's opinion of that case, implementating a nationwide injunction.

The argument against that besides effectively giving district courts the power of SCOTUS, is that there really isn't an basis for district courts having that type of power. Nationwide injunctions didn't exist until the 1960s and we're rarely used until fairly recently.