Do we still need a legislature?

[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.

 

[superrific]

Obamacare would have been invalidated by this current Court. Roberts wouldn't have been the 5th vote, but the 4th. And since nobody cared for his "it's a tax" bullshit, the outcome would have been 6-3 that it exceeded commerce clause power.

I don't want to strip the Supreme Court of its jurisdiction over new statutes. I want to strip it of all jurisdiction save its original. It is not a court.

I think you're confusing the lack of progressive legislation for a lack of judicial fuckery. In the last decade or so, the Pubs had a veto power over legislation (through control of at least one chamber) for all but two years. And the legal issues from that legislation wouldn't have percolated yet.

The court has also been invalidating, for no discernable reason, pretty much every statute addressing public corruption. The conservative legal movement has not been fighting a pro-graft agenda until very, very recently. I see that as a pretty good proxy for what it would do to any good governance law.

 

[superrific]

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.

You are generally correct here but I suspect Paine is thinking about a wealth tax and on that specific issue he's right.

 

[superrific]

While you’re right that passing a bill the Court strikes down can be good politics, that only works if a party is willing to fight back, make it a campaign issue, spotlight the obstruction, and build toward a fix. But that’s not how most Democrats operate. Look how quickly the White House moved on after Biden v. Nebraska. There was no serious push for a legislative fix, no sustained effort to make the Court the issue. The story just ended. And that’s exactly the problem.

This is 100% backward. Biden was initially reluctant to do anything via executive action because he thought the Court might strike it down. That's why he wanted a legislative fix. The problem is that student loan forgiveness is very bad politics in swing states. It's unpopular in the Rust Belt states. For whatever reason, this particular issue activates so much grievance that even fucking John Roberts was wondering why it made sense to forgive student loans but not small business loans. You know, John Roberts the preening populist, lol. It is completely irrelevant why Congress would choose one type of loan over the other; it's rational basis review.

It was only after Congress told Biden, we're not going to do it, that Biden decided to act. And what happened was what he feared.

 

[superrific]

Yes, the wealth tax is a perfect case. Polling shows broad support. The idea’s been vetted by top legal scholars. But it’s been largely sidelined, not just because of corporate influence, but because it’s understood that the Roberts Court would gut it.

That avoidance never gets officially acknowledged. There’s no press conference where Schumer or the White House said, “We’re not doing this because five justices would kill it.” But that’s the reality shaping internal strategy.

It's the only case. And the reason why it's different is that it doesn't stand on its own. Taxes are passed as part of a budget, right? That whole edifice crashes if an important funding mechanism is deemed invalid. Let's say Dems are looking at $4T in expenditures and, trying to reduce the deficit, they craft policies to raise revenue to $3.5T. Now, if that $3.5T includes 0.5T of wealth tax receipts, and the Supreme Court were to kill that, it would blow a giant hole in the budget.

The other problem with the wealth tax is that it might not work. Not sure what you mean by the idea having been "vetted" by "top legal scholars." Everyone acknowledges -- including E. Warren -- that it would be administratively difficult to tax private asset values. Perhaps administratively impossible. And if you're going to exempt private assets from the wealth tax, then pretty soon the wealth tax will be hollowed out. And there is a real danger of losing the race to the bottom and decreasing our tax base.

A more prudent idea would be to change the realization rules so that any attempt to pledge an asset as collateral counts as realization.

 

[rodoheel]

Totally agree that Manchin and Sinema were massive obstacles. And I’m also not arguing that every failure of the Biden-era Congress was due to fear of the Court. That would be too simple.

But I do think you’re underestimating how powerfully judicial review shapes the political imagination. Not just what gets passed, but what even gets proposed, how aggressively it’s pursued, and what gets quietly abandoned. Sometimes that chill is visible, like with student loans or the OSHA vaccine mandate. But more often it’s anticipatory and informal. Legal counsels, party leadership, and congressional staffers all operate within a framework shaped by past rulings and worst-case forecasts. You don’t always hear “the Court won’t let us” because it rarely gets that far. The constraint is baked in upstream.

While you’re right that passing a bill the Court strikes down can be good politics, that only works if a party is willing to fight back, make it a campaign issue, spotlight the obstruction, and build toward a fix. But that’s not how most Democrats operate. Look how quickly the White House moved on after Biden v. Nebraska. There was no serious push for a legislative fix, no sustained effort to make the Court the issue. The story just ended. And that’s exactly the problem.

It’s worth contrasting this with the New Deal era. FDR and Congress didn’t write their programs with the Court’s comfort in mind. They passed what they believed the country needed and dared the Court to stop them. When the Court did, they fought back structurally and rhetorically. That’s the posture I’m arguing for. Not passivity, not deference. Assert democratic legitimacy, and if the Court blocks it, make that the issue.

So this isn’t about pretending Democrats have magic powers. It’s about recognizing how structural vetoes—judicial and procedural—shape outcomes long before the public sees them. If we want Congress to lead again, we have to clear the excuses that allow lawmakers to dodge responsibility. The filibuster is one. The Court’s unchecked review power is another. If we don’t tackle both, we’re just rerouting gridlock

I hear you. And as I said, it's not like we can prove this one way or another. But I really don't think fear of Court striking something down was chilling legislative solutions to student loan debt relief. Dems simply did not have the votes in Congress for that policy. The Biden admin had no real choice to move on after Biden v. Nebraska because they the Court foreclosed executive action did not have the votes for legislation. Plain and simple. I do not think there was any legitimate reason to fear that a student loan debt relief bill passed by Congress would be struck down by the Court. I do not think that entered into anyone's thinking. Dems just did not have the votes. Because of Manchin and Sinema, at the very least.

I agree that lawmakers should never have or make the excuse that they didn't pass legislation at all because they feared it would be struck down. But we as the public don't have to allow them that excuse. (And honestly I don't think I've ever heard that excuse given for not acting, legislatively, on something.) And in any event, as I said, stripping jurisdiction from the Supreme Court won't foreclose judicial review entirely; it will just end up making either state courts or lower federal courts the final authority on such challenges, with some sort of patchwork results inevitably occurring, leaving us in some form of chaos.

 

[superrific]

But I do think you’re underestimating how powerfully judicial review shapes the political imagination. Not just what gets passed, but what even gets proposed, how aggressively it’s pursued, and what gets quietly abandoned.

This board is filled with lawyers, academics and even a legal academic or two. Why are you lecturing us about judicial review and its effects? If you want to make an argument, then bring an argument with facts, citations, etc. Don't stand up here and tell us that we're underestimating the power of judicial review, when for some of us, that judicial review is an integral part of a long career. That's just hubris.

 

[rodoheel]

Yes, the wealth tax is a perfect case. Polling shows broad support. The idea’s been vetted by top legal scholars. But it’s been largely sidelined, not just because of corporate influence, but because it’s understood that the Roberts Court would gut it.

That avoidance never gets officially acknowledged. There’s no press conference where Schumer or the White House said, “We’re not doing this because five justices would kill it.” But that’s the reality shaping internal strategy.

Can you honestly tell me that at some point Dems had 51 (or 50+1) votes in favor of a wealth tax in the Senate? When?

 

[superrific]

I hear you. And as I said, it's not like we can prove this one way or another. But I really don't think fear of Court striking something down was chilling legislative solutions to student loan debt relief. Dems simply did not have the votes in Congress for that policy.

We can prove it one way or another. Maybe not beyond a reasonable doubt, but it's not a particularly close case either. Fear of judicial fuckery is not remotely one of the top issues motivating legislative agendas.

The problem is that the Court has been attacking pre-08 statutes knowing that they can't be amended. There was a time before the perma-filibuster, and legislation was passed in that environment. Campaign finance and higher education acts in particular were passed by majority vote. Well, those days are done. So we can't fix it, because now we need 60 votes. In other words, it's not really the court that is the primary obstacle, nor any lack of energy, messaging, pushups or dietary fiber among democrats. It's 60 votes.

 

[superrific]

Can you honestly tell me that at some point Dems had 51 (or 50+1) votes in favor of a wealth tax in the Senate? When?

The wealth tax is an example to support Paine's point. He's saying that fear of judicial fuckery has functioned to prevent the Senate from even giving it real consideration. That there haven't been 51 votes for it doesn't negate his point.

This is the only example I can think of to support his point, and it's unusual for the reasons that I discussed.

 

[rodoheel]

The wealth tax is an example to support Paine's point. He's saying that fear of judicial fuckery has functioned to prevent the Senate from even giving it real consideration. That there haven't been 51 votes for it doesn't negate his point.

This is the only example I can think of to support his point, and it's unusual for the reasons that I discussed.

I hear that argument. And there's no real way for us to decide this argument because no real way to know. Let's just say I'm skeptical that even if any obstacle of judicial review were removed, there would have ever been a real way to pass a wealth tax. It would have been a flat no from every Republican, no matter how much public debate or consideration you wanted to have. And I can't see how it wouldn't have been a flat no for Manchin, and likely Sinema as well. The current rules basically make it impossible for anything that doesn't have at least 50 votes to get real debate and consideration in the Senate anyway (to our other discussion about the Senate's idiotic rules).

 

[rodoheel]

We can prove it one way or another. Maybe not beyond a reasonable doubt, but it's not a particularly close case either. Fear of judicial fuckery is not remotely one of the top issues motivating legislative agendas.

The problem is that the Court has been attacking pre-08 statutes knowing that they can't be amended. There was a time before the perma-filibuster, and legislation was passed in that environment. Campaign finance and higher education acts in particular were passed by majority vote. Well, those days are done. So we can't fix it, because now we need 60 votes. In other words, it's not really the court that is the primary obstacle, nor any lack of energy, messaging, pushups or dietary fiber among democrats. It's 60 votes.

Yes, I agree with this.