Do we still need a legislature?

[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.

 

[Paine]

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.

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

 

[Paine]

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

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.

 

[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.

 

[Paine]

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.

I think you’re misreading my point. I’m not “lecturing” anyone about judicial review, I’m offering a structural argument about how its political effects shape legislative behavior. That’s a different register than legal scholarship. I’m fully aware that many people on this board have legal expertise. That’s all the more reason to engage the substance rather than swatting at tone.

What I said wasn’t about whether you or rodo understand judicial review. It was about whether its effects are sufficiently recognized outside the legal world, in the realm of political strategy, campaign messaging, and legislative planning. That’s where I think the left often underestimates the damage.

You yourself have laid out how the Court has gutted statutes through warped interpretation. I’m saying: if we know that, then the political arm of the party needs to treat it as a fight, not a shrug. That’s an argument about political strategy.

 

[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.

 

[superrific]

I think you’re misreading my point. I’m not “lecturing” anyone about judicial review, I’m offering a structural argument about how its political effects shape legislative behavior. That’s a different register than legal scholarship. I’m fully aware that many people on this board have legal expertise. That’s all the more reason to engage the substance rather than swatting at tone.

I'm not swatting at tone. I'm swatting at the lack of an actual structural argument.

"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" is not an argument. It's ipse dixit, one where the ipse has no standing to correct others on the dixit.

 

[superrific]

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).

Does your view conflict with mine? I'm also skeptical that the Senate could have passed a wealth tax. But it's also true that the idea has never gotten onto the legislative wish lists of most legislators, largely because of concerns that it would prove to be a legal boondoggle.

In my view, the wealth tax is the one situation where we are all right!

 

[Paine]

I'm not swatting at tone. I'm swatting at the lack of an actual structural argument.

"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" is not an argument. It's ipse dixit, one where the ipse has no standing to correct others on the dixit.

I think we’re just coming at this from different angles. I’m focused on how political actors, especially in Congress, internalize the Court’s power and adjust their behavior accordingly. That’s not a legal argument, it’s a structural one in the political sense: about how institutions shape incentives and constrain action, often before anything reaches a courtroom.

You don’t have to agree with the analysis, but it’s not “ipse dixit” to observe that anticipated judicial obstruction influences what gets proposed. That’s just how strategy works in a system designed with multiple veto points.

 

[Paine]

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?

You’re right that there was never a clear 51-vote path for a wealth tax. That’s precisely what I’m trying to highlight: we didn’t get to that point not only because of corporate influence, but because the idea was preemptively deemed dead on arrival, in part due to the expected reaction from the Court.

Legislators don’t only count votes; they also assess viability. And in this case, the assumption that the Roberts Court would strike it down shaped that assessment early. So the idea gets soft-pedaled, shelved, or wrapped in vaguer “billionaire minimum tax” language. That’s just a rational calculation based on how the Court has treated economic regulation, taxation, and administrative authority.

I’m not saying we had the votes and failed to act. I’m saying we never built the coalition because powerful institutional actors, including the judiciary, had already boxed the idea in.

 

[Paine]

My final point is this:

We’ve reached the heart of the disagreement. You’re both assuming that if Democrats had 60 Senate votes, they’d deliver sweeping reforms, that the only real obstacle is the filibuster. I can’t prove the counterfactual, but neither can you. What I am saying is this: the filibuster isn’t the only structural constraint at work. There are multiple veto points baked into the system, and the Supreme Court is one of the most powerful.

That judicial veto doesn’t just show up when a law is struck down; it’s anticipated, internalized, and shapes what gets proposed in the first place. That’s why I’ve been calling this a structural argument. Not in the legal sense but in the political sense. It’s not about case law. It’s about how institutions channel political behavior. And if we want to understand why Democrats so often fall short, we have to look beyond Manchin, Sinema, or even the filibuster. We have to look at the full architecture of constraint.

 

[superrific]

I think we’re just coming at this from different angles. I’m focused on how political actors, especially in Congress, internalize the Court’s power and adjust their behavior accordingly. That’s not a legal argument, it’s a structural one in the political sense: about how institutions shape incentives and constrain action, often before anything reaches a courtroom.

You don’t have to agree with the analysis, but it’s not “ipse dixit” to observe that anticipated judicial obstruction influences what gets proposed. That’s just how strategy works in a system designed with multiple veto points.

This is ipse dixit:

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.

The example you gave of student loans or the OSHA vaccine mandate don't support your point. So your position comes down to the underlined sentence and there is simply no way for you to know how "legal counsels, party leadership, and congressional staffers" "operate" "within a framework shaped by past rulings." You're making that up. And come on, dude. Counsel is always singular when referring to attorneys. And "past rulings" are also known by another name: "law."

I'm an equal opportunity scold when it comes to people talking out of their asses. You're not nearly as bad as our infamous poseurs, but still. There's a way to engage in conversations via questioning when you're not an expert. If you're just raising ideas, then raise them. Don't try to talk authoritatively about that which you don't know. You maybe think you can hide it, but ignorance is a crusty bread that leaves quite the trail. Even little things like "counsels" gives it away.