Do we still need a legislature?

[Paine]

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.

I’ve been clear throughout that my argument isn’t a legal structural one; it’s a political structural argument about how institutions shape behavior upstream of legislation. Others can judge the merits for themselves. I’ve made my point.

 

[superrific]

I'm talking about universal injunctions . . . 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.

Sure. The difference is reflected in the name. National injunctions apply to everyone in the United States. Universal injunctions, by contrast, apply to everyone in the universe. That's why SETI broadcasts the content of every universal injunction into outer space. We don't want the aliens to be able to avoid accountability for non-compliance with the injunctions because they lacked notice.

 

[rodoheel]

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.

I get that. And again, there's no way to know. I'm just saying I'm skeptical that all the coalition-building in the world would have been successful in this instance.

 

[superrific]

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.

1. We are not in any way assuming that. We're saying that, to the extent that the Democrats don't "deliver sweeping reforms," fear of an activist Supreme Court overturning the legislation is not a significant factor in most cases. The Supreme Court is one of the most powerful veto points because . . . it so often exercises its veto. Not because legislation is "chilled."

2. Your argument would really be strengthened with, you know, evidence. Or even examples. So far, you provided two examples, both of which were inapt and/or inaccurate. Then I provided you with one good example, but it's also a special case. If your argument was that **sometimes** the fear of Supreme Court review can influence legislation, then the wealth tax would be good enough for at least a draw if not a win. But you've gone way further.

3. It is true that future court actions can influence the fine structure of legislation -- i.e. choosing between different mechanisms toward the goal. For instance, back to the wealth tax: I prefer a realization rule than a wealth tax per se. There are several reasons for that, one of which is that the Supreme Court will be less likely to fuck with it (though the reality is that the Supreme Court will probably strike both down).

And so too with other questions. I would not imagine that future iterations of Obamacare would rely on an insurance mandate, because though the Supreme Court hasn't exactly struck that down, the writing is clearly on the wall. So we'd take the Supreme Court's challenge: if you don't want us working through the private sector, fine we will federalize the whole thing -- the whole thing, here, being the way of guaranteeing universal care.

If this is your point, then it's solid. But I don't think this has been your point.

 

[Paine]

1. We are not in any way assuming that. We're saying that, to the extent that the Democrats don't "deliver sweeping reforms," fear of an activist Supreme Court overturning the legislation is not a significant factor in most cases. The Supreme Court is one of the most powerful veto points because . . . it so often exercises its veto. Not because legislation is "chilled."

2. Your argument would really be strengthened with, you know, evidence. Or even examples. So far, you provided two examples, both of which were inapt and/or inaccurate. Then I provided you with one good example, but it's also a special case. If your argument was that **sometimes** the fear of Supreme Court review can influence legislation, then the wealth tax would be good enough for at least a draw if not a win. But you've gone way further.

3. It is true that future court actions can influence the fine structure of legislation -- i.e. choosing between different mechanisms toward the goal. For instance, back to the wealth tax: I prefer a realization rule than a wealth tax per se. There are several reasons for that, one of which is that the Supreme Court will be less likely to fuck with it (though the reality is that the Supreme Court will probably strike both down).

And so too with other questions. I would not imagine that future iterations of Obamacare would rely on an insurance mandate, because though the Supreme Court hasn't exactly struck that down, the writing is clearly on the wall. So we'd take the Supreme Court's challenge: if you don't want us working through the private sector, fine we will federalize the whole thing -- the whole thing, here, being the way of guaranteeing universal care.

If this is your point, then it's solid. But I don't think this has been your point.

I appreciate the more measured tone here. And yes, if you’re now conceding that Court behavior can influence legislative design, strategy, and prioritization, even if just in the choice between mechanisms, then we’re actually not far apart.

That is my point. I’ve never claimed this chilling effect explains everything or applies universally. But to say it’s not a significant factor unless a law is formally struck down is too narrow. The effect is real, even if hard to quantify, and it’s part of the broader institutional environment lawmakers operate within.

Again: that’s what I meant by a structural political argument; not legal doctrine, but how veto-wielding institutions shape behavior upstream. This kind of analysis isn’t novel. It’s foundational in political science. Whether you agree or not, it’s not some baseless theory, it’s a widely accepted way of understanding how policymaking actually works under constraint.

 

[superrific]

I appreciate the more measured tone here. And yes, if you’re now conceding that Court behavior can influence legislative design, strategy, and prioritization, even if just in the choice between mechanisms, then we’re actually not far apart.

That is my point. I’ve never claimed this chilling effect explains everything or applies universally. But to say it’s not a significant factor unless a law is formally struck down is too narrow. The effect is real, even if hard to quantify, and it’s part of the broader institutional environment lawmakers operate within.

Again: that’s what I meant by a structural political argument; not legal doctrine, but how veto-wielding institutions shape behavior upstream. This kind of analysis isn’t novel. It’s foundational in political science. Whether you agree or not, it’s not some baseless theory, it’s a widely accepted way of understanding how policymaking actually works under constraint.

I'm not conceding anything. That has been my position all along. It's why I suggested the wealth tax as illustrative of your point.

There is a universe in which the Supreme Court could substantially chill legislation just by its obvious partisan tendencies and its insensitivity to its destructive power. I just don't think that's our universe at the moment. It might be the universe in the future. Right now, though, it's not. It's an edge case. It's the filibuster that is the main problem.

Now: impoundment could change that. If the Supreme Court were to determine that the executive has an Article II power not to spend money appropriated by Congress, that would be a huge structural issue that would badly impair legislation. We'd have to start imposing unfunded mandates on states and private actors, and some of those unfunded mandates would be extremely unpopular when a funded mandate would be popular. At that point, Supreme Court reform would be absolutely required to maintain any semblance of ordered liberty.

As you know, I'm no coward when it comes to radical solutions, if the radical solutions are called for and justified. In my view, the current Court is irredeemable. Hence it has to be destroyed, which is why I support 100% jurisdiction stripping.

 

[Paine]

I'm not conceding anything. That has been my position all along. It's why I suggested the wealth tax as illustrative of your point.

There is a universe in which the Supreme Court could substantially chill legislation just by its obvious partisan tendencies and its insensitivity to its destructive power. I just don't think that's our universe at the moment. It might be the universe in the future. Right now, though, it's not. It's an edge case. It's the filibuster that is the main problem.

Now: impoundment could change that. If the Supreme Court were to determine that the executive has an Article II power not to spend money appropriated by Congress, that would be a huge structural issue that would badly impair legislation. We'd have to start imposing unfunded mandates on states and private actors, and some of those unfunded mandates would be extremely unpopular when a funded mandate would be popular. At that point, Supreme Court reform would be absolutely required to maintain any semblance of ordered liberty.

As you know, I'm no coward when it comes to radical solutions, if the radical solutions are called for and justified. In my view, the current Court is irredeemable. Hence it has to be destroyed, which is why I support 100% jurisdiction stripping.

Just to be clear for others: you’re treating judicial chilling as an edge case. I’m arguing it’s a more pervasive structural influence, less visible than a ruling, but no less real. I don’t mean in every bill, every time. But in aggregate, the Court’s known hostility to regulation, taxation, and administrative authority has shaped legislative strategy, narrowed ambition, and influenced how ideas are framed or dropped altogether.

That’s not some out-there theory that requires case law as a proof. It’s Political Science 101: institutions shape political feasibility. The judiciary, as a powerful veto player, inevitably influences what’s proposed and how aggressively it’s pursued, even if no ruling ever comes down. That’s what I meant by a structural political argument. We don’t have to agree on the magnitude, but I stand by the logic.

At bottom, I think the disagreement isn’t just about the Court, it’s about how bold we believe today’s Democratic Party really is. If you think they’d pass sweeping reforms and then take the fight directly to the Court, you’re picturing a very different party than the one I’m familiar with.

In the real world, they’ve often pre-trimmed their sails. They’ve absorbed defeat into their instincts; whether the constraint is the filibuster, the Court, or donor pressure. That’s what I mean by structural constraint: it’s not just about rules on paper, but how those rules are internalized into political behavior. You don’t need a ruling to lose a fight you never truly waged

Thanks for the exchange.

 

[rodoheel]

That’s not some out-there theory that requires case law as a proof. It’s Political Science 101: institutions shape political feasibility. The judiciary, as a powerful veto player, inevitably influences what’s proposed and how aggressively it’s pursued, even if no ruling ever comes down. That’s what I meant by a structural political argument. We don’t have to agree on the magnitude, but I stand by the logic.

At bottom, I think the disagreement isn’t just about the Court, it’s about how bold we believe today’s Democratic Party really is. If you think they’d pass sweeping reforms and then take the fight directly to the Court, you’re picturing a very different party than the one I’m familiar with.

As a matter of political theory, I understand your first point. Like super, I simply don't think we're there in practice. I do not think the Supreme Court exercises as clear and consistent a "veto" as you're suggesting (certainly it should not be viewed as having a veto power on par with, say, the president) and I am not persuaded that fear of judicial overrule has a significant chilling effect on legislation compared to the other factors we've identified, such as the filibuster and/or internal Democratic Party disagreements (i.e., simply not having the votes or political will for certain things).

I certainly agree that at times over the last 15 years the Democratic Party has not acted as boldly as it should, and I think it is entirely reasonable to be skeptical of how boldly it should act in the future. I think there is broad consensus among you, me, and super (and really most of the board) that the Democratic Party needs to be bolder in both its vision and its action, though 'm sure we disagree about the particulars of how that should be implemented and demonstrated. What I do not think, including for the reasons stated above, is that stripping Supreme Court jurisdiction over certain areas of legislation that match progressive political policies (which itself would be a very politically bold move!) will make it materially more likely for future Democrat legislatures to act more boldly. Aby Dem legislature that would be bold enough to consider such jurisdiction-stripping provisions - even assuming you've convinced that's a smart political move, which I am not convinced of - is already willing to consider bold substantive legislation. Solve the filibuster and build enough of a majority that we don't have to rely on "Democrat-in-name-only" votes like Sinema and Manchin, and we'll be where we need to be from that perspective.

 

[superrific]

As a matter of political theory, I understand your first point. Like super, I simply don't think we're there in practice. I do not think the Supreme Court exercises as clear and consistent a "veto" as you're suggesting (certainly it should not be viewed as having a veto power on par with, say, the president) and I am not persuaded that fear of judicial overrule has a significant chilling effect on legislation compared to the other factors we've identified, such as the filibuster and/or internal Democratic Party disagreements (i.e., simply not having the votes or political will for certain things).

I think the Supreme Court's veto is clear and consistent. This court at least. I wonder if you're working off a perspective that has become outdated. There was a time when the conservatives were rat fuckers but were reluctant to overrule longstanding precedents or traditions. Not this court. It has made clear that it will not bless a policy it doesn't like, and it will contort itself and the law beyond recognition if needed.

I also think that the Supreme Court veto is further down the flowchart. I'm not going to try one, but I can describe it. Start with the first decision: Will this policy be able to get 60 votes. If not, skip to the end where it gets canned. I would say 95% of legislative ideas, if not more, follow this path. There could also be a path where it can get 60 votes, and then the next decision comes up: will the Supreme Court overturn it. If yes, skip to the end where it gets canned. This is a road that could be taken, and it might be taken in the future more regularly, but is dwarfed now by the first decision point.

Your point is good that a legislature ready to do radical stuff is likely to be a legislature that will rein in the court if possible, so the bottleneck is really the filibuster. Maybe there are other bottlenecks but the absence of any examples here suggest that they are currently unimportant.

 

[Paine]

As a matter of political theory, I understand your first point. Like super, I simply don't think we're there in practice. I do not think the Supreme Court exercises as clear and consistent a "veto" as you're suggesting (certainly it should not be viewed as having a veto power on par with, say, the president) and I am not persuaded that fear of judicial overrule has a significant chilling effect on legislation compared to the other factors we've identified, such as the filibuster and/or internal Democratic Party disagreements (i.e., simply not having the votes or political will for certain things).

I certainly agree that at times over the last 15 years the Democratic Party has not acted as boldly as it should, and I think it is entirely reasonable to be skeptical of how boldly it should act in the future. I think there is broad consensus among you, me, and super (and really most of the board) that the Democratic Party needs to be bolder in both its vision and its action, though 'm sure we disagree about the particulars of how that should be implemented and demonstrated. What I do not think, including for the reasons stated above, is that stripping Supreme Court jurisdiction over certain areas of legislation that match progressive political policies (which itself would be a very politically bold move!) will make it materially more likely for future Democrat legislatures to act more boldly. Aby Dem legislature that would be bold enough to consider such jurisdiction-stripping provisions - even assuming you've convinced that's a smart political move, which I am not convinced of - is already willing to consider bold substantive legislation. Solve the filibuster and build enough of a majority that we don't have to rely on "Democrat-in-name-only" votes like Sinema and Manchin, and we'll be where we need to be from that perspective.

I sincerely hope we get the chance to test your theory. But I worry that even with new Democratic majorities in 2028, we’ll just see a new cast of characters reluctant to eliminate the filibuster or pursue structural reform. That’s part of the broader point I’ve been making: these dynamics aren’t just about individual lawmakers but the institutional and political structures they operate within. The “rotating villain” isn’t just strategy; it’s downstream of how power and risk are distributed in our system.

That said, I appreciate the exchange. Always valuable to dig into where the real disagreements lie.

 

[superrific]

Just to be clear for others: you’re treating judicial chilling as an edge case. I’m arguing it’s a more pervasive structural influence, less visible than a ruling, but no less real. I don’t mean in every bill, every time. But in aggregate, the Court’s known hostility to regulation, taxation, and administrative authority has shaped legislative strategy, narrowed ambition, and influenced how ideas are framed or dropped altogether.

That’s not some out-there theory that requires case law as a proof. It’s Political Science 101: institutions shape political feasibility. The judiciary, as a powerful veto player, inevitably influences what’s proposed and how aggressively it’s pursued, even if no ruling ever comes down. That’s what I meant by a structural political argument. We don’t have to agree on the magnitude, but I stand by the logic.

In theory you are right. And maybe we're just disagreeing on the magnitude, as you say. My analogy is this: if I want to build a satellite to communicate with God, I would face quite the challenge in determining whether I have in fact communicated with a divine being. But the more immediate problem is that I can't build a satellite. The God part doesn't even matter if I can't get anything into space.

I would say that, ironically, your argument applies much better to regulatory actions by agencies. There, fear of being overturned by courts was a persistent problem throughout the 1990s and 2000s, back when the DC was arch-conservative. And the frustrating thing was that the agencies would try their hardest to comply with some of the unrealistic bullshit the circuit courts claimed to expect, only to lose on other grounds that the courts made up second time around. That definitely impacted regulatory action. Also, the judicial demand for unrealistic quantities of evidence and process -- such as cost-benefit analysis for shareholder proxy rules -- at a minimum slowed down regulation a lot. It takes the EPA years to craft regulations as a result, and that limits the number of regs it can work on at any given time.

I don't want to imply that it's a problem that has gone away in the past decade and a half, ever since Obama managed to tilt the DC Circuit to the left. It and the Fourth Circuit used to be two of the most conservative courts in the country; now they are liberal or reasonably liberal. It has lessened, but other circuits can fuck things up so some of the same constraints remain.

 

[Paine]

In theory you are right. And maybe we're just disagreeing on the magnitude, as you say. My analogy is this: if I want to build a satellite to communicate with God, I would face quite the challenge in determining whether I have in fact communicated with a divine being. But the more immediate problem is that I can't build a satellite. The God part doesn't even matter if I can't get anything into space.

I would say that, ironically, your argument applies much better to regulatory actions by agencies. There, fear of being overturned by courts was a persistent problem throughout the 1990s and 2000s, back when the DC was arch-conservative. And the frustrating thing was that the agencies would try their hardest to comply with some of the unrealistic bullshit the circuit courts claimed to expect, only to lose on other grounds that the courts made up second time around. That definitely impacted regulatory action. Also, the judicial demand for unrealistic quantities of evidence and process -- such as cost-benefit analysis for shareholder proxy rules -- at a minimum slowed down regulation a lot. It takes the EPA years to craft regulations as a result, and that limits the number of regs it can work on at any given time.

I don't want to imply that it's a problem that has gone away in the past decade and a half, ever since Obama managed to tilt the DC Circuit to the left. It and the Fourth Circuit used to be two of the most conservative courts in the country; now they are liberal or reasonably liberal. It has lessened, but other circuits can fuck things up so some of the same constraints remain.

For what it’s worth, I’m fully on board with abolishing the filibuster as a first-order priority. The jurisdiction-stripping argument I was making wasn’t instead of that, it’s about what comes after. If we ever do get a bold enough majority to pass serious reforms, we’re going to need a plan for when the Court tries to gut them. That’s where this conversation fits in.

 

[superrific]

But I worry that even with new Democratic majorities in 2028, we’ll just see a new cast of characters reluctant to eliminate the filibuster or pursue structural reform.

I think we all worry about this. I don't think it's because of the court. I also think that it might be different this time because it is widely believed by everyone even slightly left of center that we are in the midst of a five-alarm fire. After Watergate there was a huge flurry of legislative activity aimed at preventing more Watergates (this legislation has mostly been gutted by the Supremes) and we might see something similar.

 

[superrific]

For what it’s worth, I’m fully on board with abolishing the filibuster as a first-order priority. The jurisdiction-stripping argument I was making wasn’t instead of that, it’s about what comes after. If we ever do get a bold enough majority to pass serious reforms, we’re going to need a plan for when the Court tries to gut them. That’s where this conversation fits in.

I would go further: I would say priority 1 is to eliminate the filibuster so as to enable other priorities, and court reform is priority 1A. Not because of its chilling effect on legislation, but rather because it has destroyed the rule of law and the constitution and cannot be permitted to keep doing so.

 

[ZenMode]

Sure. The difference is reflected in the name. National injunctions apply to everyone in the United States. Universal injunctions, by contrast, apply to everyone in the universe. That's why SETI broadcasts the content of every universal injunction into outer space. We don't want the aliens to be able to avoid accountability for non-compliance with the injunctions because they lacked notice.

Your differentiation between national and universal is not what I've read. National means it applies to the plaintiffs across all states even though the ruling came from a specific state/district court. Universal would basically assume that everyone in the US is plaintiff and apply the ruling to them.

Universal is what SCOTUS ruled against.

 

[rodoheel]

Your differentiation between national and universal is not what I've read. National means it applies to the plaintiffs across all states even though the ruling came from a specific state/district court. Universal would basically assume that everyone in the US is plaintiff and apply the ruling to them.

Universal is what SCOTUS ruled against.

SCOTUS didn't technically "rule against" universal injunctions. It essentially said that a universal injunction would only be appropriate if required to give complete relief to the parties before the court. (Of course no one really has any clue whether and when that will be, because the court didn't really say.)

 

[superrific]

Your differentiation between national and universal is not what I've read. National means it applies to the plaintiffs across all states even though the ruling came from a specific state/district court. Universal would basically assume that everyone in the US is plaintiff and apply the ruling to them.

Universal is what SCOTUS ruled against.

LOL. I was clowning you and you didn't even notice.

The word is nationwide injunction, and a nationwide injunction is the precisely the same as a "universal" injunction because the United States only has jurisdiction over the United States -- i.e. the nation.

What you might be thinking of is the difference between a nationwide injunction issued in a private suit versus a nationwide injunction as applied to a class, in a class action. What you're calling a national injunction is the former. That's what the Supreme Court ruled against, not the latter. It left open the "universal" injunction, LOL.

But don't worry -- we're broadcasting all of them to aliens just in case.

 

[ZenMode]

LOL. I was clowning you and you didn't even notice.

I noticed and gave it appropriate attention: zero

The word is nationwide injunction, and a nationwide injunction is the precisely the same as a "universal" injunction because the United States only has jurisdiction over the United States -- i.e. the nation.

That's not accurate, at least according to James Pearce.

A nationwide injunction and a universal injunction are both court orders that prevent the government from enforcing a policy or law against a broad group of people, not just those directly involved in the case. The terms are often used interchangeably, but "universal injunction" is sometimes preferred as it more clearly emphasizes the injunction's impact on non-parties to the lawsuit.

Here's a breakdown:
Nationwide Injunction:

• Definition:
  A court order that prohibits the government from enforcing a law or policy across the entire country, not just within the specific jurisdiction of the court.
• Focus:
  Primarily emphasizes the geographic reach of the injunction, stopping the policy from being enforced anywhere in the US.

Universal Injunction:

• Definition:
  A court order that prevents the government from enforcing a law or policy against anyone, including those not directly involved in the lawsuit.

 

[superrific]

I noticed and gave it appropriate attention: zero

That's not accurate.

A nationwide injunction and a universal injunction are both court orders that prevent the government from enforcing a policy or law against a broad group of people, not just those directly involved in the case. The terms are often used interchangeably, but "universal injunction" is sometimes preferred as it more clearly emphasizes the injunction's impact on non-parties to the lawsuit.

Footnote 1 in Trump v. CASA

"[universal] injunctions are sometimes called “nationwide injunctions,” reflecting their use by a single district court to bar the enforcement of a law anywhere in the Nation"

 

[ZenMode]

Footnote 1 in Trump v. CASA

"[universal] injunctions are sometimes called “nationwide injunctions,” reflecting their use by a single district court to bar the enforcement of a law anywhere in the Nation"

Correct. Those two terms of often, and incorrectly, used interchangeably.