Do we still need a legislature?

[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.

 

[superrific]

"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.

Again, you're doing that thing where you argue with someone infinitely more knowledgeable than you.

I read the oral argument transcript. Did you? In oral argument, there was general agreement among the justices that the birthright citizenship EO was blatantly constitutional. They kept asking the parties, how will you get this case to us expeditiously? They wouldn't do that if they thought there might be merit.

 

[superrific]

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

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.

It is axiomatic that all federal courts have the same authority with respect to other branches and the population. There is none of this, "oh the district courts are inferior so their orders are lesser." Nope. The district court orders are entitled to the same respect as any other court order and the scope of their power is the same. The only difference is that a) they don't set precedent and b) they can be overruled on appeal.

 

[ZenMode]

It is axiomatic that all federal courts have the same authority with respect to other branches and the population.

There doesn't seem to be much of a historical or Constitutional case for that assumption.

There is none of this, "oh the district courts are inferior so their orders are lesser." Nope. The district court orders are entitled to the same respect as any other court order and the scope of their power is the same. The only difference is that a) they don't set precedent and b) they can be overruled on appeal.

Same respect as it relates to all plaintiffs in that specific case, with that cases specific circumstances involving the federal government.

That is the crux of the issue. SCOTUS is the final source for "universal injunctions". Before that, courts are ruling on the specific circumstances of specific plaintiffs in a specific case, right?

 

[Healing]

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.

Yep. Would force responsibility for their inaction and actions. Can’t blame Dems for not voting on legislation when you have a majority and only need a majority.

 

[superrific]

There doesn't seem to be much of a historical or Constitutional case for that assumption.

You mean other than the operations of courts every single day of the country's existence?

I'm not aware of a single case in which a higher court countenanced the intentional defiance of a lower court ruling, where the lower court is a court of general jurisdiction. I'm not well studied in the law of all 50 states, but I am pretty well studied in federal law and I can't think of an example -- until the year of our lord 2025.

Maybe you'd like to cite one?

Read the first sentence of Article III and tell me where you can find any hint of a distinction in the judicial power of lower courts versus the Supreme Court. Here it is: knock yourself out.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

 

[ZenMode]

You mean other than the operations of courts every single day of the country's existence?

I'm not aware of a single case in which a higher court countenanced the intentional defiance of a lower court ruling, where the lower court is a court of general jurisdiction. I'm not well studied in the law of all 50 states, but I am pretty well studied in federal law and I can't think of an example -- until the year of our lord 2025.

Maybe you'd like to cite one?

Read the first sentence of Article III and tell me where you can find any hint of a distinction in the judicial power of lower courts versus the Supreme Court. Here it is: knock yourself out.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

I'm talking about universal injunctions, which was the topic of the supreme Court case. I'm not saying that lower courts don't have authority over those involved in the specific case being heard. The question was whether or not lower courts have the authority to basically make everyone in the country a plaintiff, whether they want to be or not, in the case they're hearing. That's what a universal injunction does. If you're talking about a national injunction, that's something different. If a lower court, pick the district court of your choice, says that person A, B and C can't be deported, a national injunction would basically make that ruling true across every district/state.

A universal injunction says that the lower courts ruling applies to every person in the country and that power is what is in question and, I believe, rightfully ruled on by the majority.

 

[Calheel]

I'm talking about universal injunctions, which was the topic of the supreme Court case. I'm not saying that lower courts don't have authority over those involved in the specific case being heard. The question was whether or not lower course have the authority to basically make everyone in the country a plaintiff, whether they want to be or not, in the case they're hearing. That's what a universal injunction does. If you're talking about a national injunction, that's something different. If a lower court, pick the district court of your choice, says that person A, b and c can't be deported, a national injunction would basically make that ruling true across every district/state.

A universal injunction says that the lower courts ruling applies to every person in the country and that power is what is in question and, I believe, rightfully ruled on by the majority.

Just stop. I’m not sure there is even one correct word in what you wrote.

 

[rodoheel]

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.

This is pretty much all fair (I mean, I guess you can change my comment about the student loan stuff to be "executive action" rather than "executive order," though I don't really think it makes much of a difference; the point is that based on the decision itself, Congress could have clearly fixed the issue if it wanted to) and to be clear I absolutely share your distaste for the Scalia tree of "textualists" and their reverse-engineering of outcomes that they want. But let me try to refine my point a little.

The APA and VRA are decades-old statutes that have been targets of the conservative legal movement for decades (much like the decision in Roe itself). I don't mean to dismiss the importance of the current Supreme Court fecklessly gutting those statutes, but I see that as a different situation from new legislation. It may well be that any new progressive statutes would become targets themselves and be strangled by the court in their cribs before they could even go anywhere, on some manufactured basis or another. But that is not necessarily what has happened in the last decade or so. The Court left Obamacare mostly intact despite expectations that it would be struck down; the Court has not invalidated (or really, as far as I'm aware, seen any significant challenge to) the Infrastructure Investment and Jobs Act. So I just think the idea that "no new progressive legislation will be allowed to stand by the current Supreme Court" is overstating things. Am I being overly optimistic in that? Maybe. I just don't think it is absolutely necessary that in any future progressive legislation that is passed, the Supreme Court be stripped of its jurisdiction to hear challenges to the statutes. And in fact, as I've said above, I think it may ultimately be harmful to do that.

 

[rodoheel]

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.

I suppose there's not really any way to prove this one way or another, but I honestly don't believe this is right. I don't think I can think of any obvious instance of Democratic leaders not advancing popular legislation that they believed could be successfully passed through Congress because they thought the Court would ultimately strike it down. If there is truly a popular and passable reform, Dems have every incentive to pass it even if the Court is going to strike it down, because that is simply good politics. It makes far more sense to pass something popular and get to blame the other side for striking it down than never doing it in the first place.

I think a far more important factor in the Biden years than Dems fearing the Court would strike down legislation is that Dems didn't actually have the votes to get progressive legislation passed. That's because Sinema and Manchin were not really Democrats - and certainly not progressives - in any sense of the word. They were bought-and-paid-for captives of corporate interests who had no intention of allowing progressive legislation to move forward, whether by getting rid of the filibuster or otherwise. Like Thom Tillis (who just praised them specifically in his statement announcing he wouldn't run again) they championed the filibuster as an important part of the legislative picture that is necessary to encourage bipartisan cooperation, when in fact it's obvious in practice that the opposite is true, and it encourages the minority party to obstruct, not to cooperate. I honestly doubt that folks like Manchin, Sinema, and Tillis are really dumb enough to believe that logic - what they realized instead was that the presence of the filibuster increased their own power and influence as the perceived "swing votes."

Now, there may have been other centrist Dems who were secretly pleased that they could point at Manchin and Sinema as the impediments while not having to bring progressive legislation to an actual vote. But in general, you can't blame Dems all that much for not passing legislation that didn't have the support of a majority of Senators. You can absolutely blame Manchin and Sinema for being corrupt, two-faced hypocrites.