"It is Time for Ruthless Aggression"

[UNCMSinLS]

I enjoyed a good read in the Bulwark this morning from an author whose work I typically enjoy, but who I think wrote a piece yesterday deserving of its own discussion (that, and I had no idea which thread to put it on. Feel totally free to merge with another one, mods).

Jonathan Last is, like myself and several members of this community, a former Republican and still maintains *some* conservative bonafides. But similar to many of us, he is completely disenfranchised with the illiberal mania which has fully engulfed and completely consumed our former political party. His piece linked below makes the case for "ruthless aggression" from the Democrats, with the major victory in the redistricting fight being the blueprint to further success. In this piece he argues for the expansion of the Supreme Court, a notion at which I admittedly would have balked and summarily dismissed as a non-starter for about the 99.99% of my political life prior to now. Since there are so many brilliant folks in this community from whom I enjoy learning- especially so many folks with deep knowledge of the law and legal system- I'd love to get thoughts on this piece.

Personally, I've had my mind changed. I think that the Democratic Party (and inclusive of any pro-democracy independents and conservatives) should absolutely continue to fight fire with fire, and perhaps even with a blowtorch. I philosophically disagree with gerrymandering but fully support what Virginia and California did in response to Texas, and I think that the only plausible way to one day have federal legislation enacted that bans partisan gerrymandering is to aggressively and ruthlessly bring to heel the singular political party that steadfastly refuses to allow such legislation to pass. The current Republican Party doesn't respect rules and norms, and they don't respect the fecklessness or feigned powerlessness that has been the calling card of the Democratic Party over the last decade of Trumpism. I am heartened that it seems that Democrats are finally ready to do whatever it takes to give the GOP a taste of its own medicine, in hopes that at some point they will have no choice but to seek bi-partisan compromise or risk continued beatings. As I like to say, it ain't no fun when the rabbit's got the gun, and right now after the win in the redistricting fight coupled with the abysmal political climate for Republicans, the Democratic Party has a unique and extremely rare opportunity to wield a proverbial bazooka.

Would love to get others' thoughts on this piece.

It Is Time for Ruthless Aggression

The national battle over gerrymandering should be just the first step. Next up: expanding SCOTUS.

www.thebulwark.com

JVL can be out there from time to time. He frequently comes off as a Debbie Downer. But he does think outside the box and has been remarkably prescient in the time of Trump. He's a good read and/or listen. I generally like and appreciate his work.

 

[rodoheel]

Yeah, the Constitution is silent on the court’s size. Itscurrent size of 9 is only set by the Judiciary Act of 1869.

The Judiciary Act of 1789 had originally made it 6. By the 1850’s it was 10, reduced to 8 immediately after the Civil War before the 1869 act set it at 9.

There is historical precedent for the court fluctuating in size (including being larger than 9) and 2029 is the time to increase it to 13 to align with the circuit courts, and assigning a justice to ride each circuit.

In theory, I have no problem with that. I agree that a 13-justice court would make a lot of sense. In practice, I feel pretty confident that it will kick off a round of further court expansions as power swings back and forth between parties.

 

[superrific]

I don't entirely disagree but what's the alternative? Almost every modern democracy over the last 250 years or so has followed our lead in some respect, with some version of an executive body, legislative body, and judicial body that serve distinct functions and are meant to check each other in some way.

This is not true. Most European democracies do not have a separate executive branch. Indeed, the PM is usually a member of the Parliament, and anyway Parliament can declare no confidence and schedule early elections. Executive and legislative branches are more or less politically fused.

 

[Centerpiece]

 

[rodoheel]

This is not true. Most European democracies do not have a separate executive branch. Indeed, the PM is usually a member of the Parliament, and anyway Parliament can declare no confidence and schedule early elections. Executive and legislative branches are more or less politically fused.

The prime minister may start as a member of parliament, but aren't they essentially elected by parliament to exercise executive power, including through lower "executive" officials who answer directly to the PM?

 

[superrific]

A bond issuance that includes terms that are intended to coerce or prevent future legislation is pretty clearly violative of the long-standing legal framework legislative authority. A current Congress can't bind the hands of a future Congress by forbidding it from acting, it It would be like Congress passing laws and putting at the end of every law "and if a future Congress repeals this law there will be a $500 billion penalty payable to China." You can't use obviously coercive financial provisions to prevent laws from being changed any more than you could simply say in the statute "this law may never be repealed or amended,"

Also, to be clear, I have not decided there is "no solution." Earlier today in this thread I posted about the things that I thought would be helpful. None of them are going to solve everything, or even close to everything, because (1) as a nation of 350 million people living in a rapidly changing and unpredictable world our problems are deep and complex and evade easy solutions, and (2) human beings are human beings and there is no perfect system of government you can create that human beings can't destroy, degrade, or corrupt through violence, greed, ambition, or some combination or those things. What I will push back against are what are (to me) obvious pie-in-the-sky fantasy solutions that seem ignorant of reality and how other people are likely to react. Passing a law with the bond-issuance trigger like you suggest is not going to help restore legitimacy and proper functioning to our government; it will only further degrade it.

1. The reason that a Congress cannot bind the hands of a future Congress is that any law doing so can be repealed, and the repeal will become active before the trigger. There is no prohibition on Congress saying, "this legislation cannot be repealed." It's just ineffective.

2. The provision in question here wouldn't be legislatively determined. It would be an executive branch action. According to current doctrine, it would be a political question that is non-reviewable by any court.

3. I used to think as you do. I mean, I still do think that way -- both in terms of how things should be and also how things are in most courts. But the bounty law changed my mind. Remember: the bounty law only works because of state sovereign immunity, which is nowhere in the constitution. It's the overriding of an actual amendment by a concept that exists nowhere.

If that's how things are going to be, then this is the proper response. What I propose is not different in substance than a bounty law.

4. I agree that there is no perfect system and that bad faith actors can undermine a lot of things. But that doesn't mean we should stop making it hard for them to do so.

5. The poison pill idea here is but one of many possible ideas. The point is that we cannot protect our country without stiffer prophylactics. Norms are gone. So we need hard law measures.

You don't like my idea of making 100 states in order to pass a new constitution either. It seems to me that you are resigned to our current system where blocks of insignificant states that have 20x as much voting power per person than other states drive national policy. I find that result patently intolerable and the country cannot survive it. It's a huge reason why the government is completely dysfunctional.

 

[superrific]

The prime minister may start as a member of parliament, but aren't they essentially elected by parliament to exercise executive power, including through lower "executive" officials who answer directly to the PM?

But all of them ultimately answer to the parliament. And to my knowledge there are no types of executive actions that Parliament cannot influence.

 

[superrific]

Of course, the Supreme Court could rule against you on that. It’s not like they have problems inventing doctrines. Then you have the problem of what you do if the Court says you can’t demote justices. Do you use the Army to escort them out? How would that play out if the law was passed very narrowly with the removal of the filibuster?

US Marshals but yes.

 

[superrific]

In practice, I feel pretty confident that it will kick off a round of further court expansions as power swings back and forth between parties.

Yes, that will happen and that's why further measures are needed. What I see from you is "yes the current system is bad but there's nothing we can do about it to make it better" and I just do not believe that.

We have a constitution that is more or less incapable of substantive amendment. And yet it must be amended for our political system to work. My ideas are all about bridging that chasm. The problem isn't that we don't know what should be done. It's that we can't get there. There's a kettle lake in the way. I want to build a bridge.

The only alternative is a world in which a) the GOP will continue to destroy America with Trumpism or b) the Dems have to continuously resort to Trumpist tricks to fight fire with fire.

We should not have to live in a country in which every political election is about whether we fall into fascism. I consider that intolerable.

They aren't going to get better, by the way. The appeals court judges who are short listed for GOP Supreme Court are even more radical and extreme than the current Justices. If we don't fix this problem it will gobble us up and the government will become basically Iran. A government with a nominally secular president that exercises administrative authority but all power ultimately concentrated in a council of clerics.

That is where we are headed without reform. Iran.

 

[sunnyheel]

Yes, but as long as Chuck Schumer is the Democratic leader in the Senate that will never happen. Chuck just ain't a political warrior or crusader and never will be. If you want real change from the party leadership, guys like Schumer are going to have to step aside, or be forced to.

Yes. It’s time for pitchforks.

 

[rodoheel]

5. The poison pill idea here is but one of many possible ideas. The point is that we cannot protect our country without stiffer prophylactics. Norms are gone. So we need hard law measures.

You don't like my idea of making 100 states in order to pass a new constitution either. It seems to me that you are resigned to our current system where blocks of insignificant states that have 20x as much voting power per person than other states drive national policy. I find that result patently intolerable and the country cannot survive it. It's a huge reason why the government is completely dysfunctional.

I understand the severity of the situation. I don't think there is nothing we can do; I don't think we shouldn't be coming up with solutions. As I said, I listed things on the last page that I'm confident will help, like filibuster reform, more robust anti-corruption laws, and DC/PR statehood. I just think most of the solutions I've seen you propose would likely put us in a worse place than we are today. They are such violent and radical shocks to the current political system that the response from people who feel aggrieved by them will be even more radical and violent shocks - and ones that are probably aimed at further destroying democracy rather than saving it. I just do not think, fundamentally, that actions as drastic as what you propose will never save a democracy, no matter how well-intentioned, because they will simply allow bad actors to engage in similar conduct. I suspect that you think such radical actions are justified because we've already seen actions that you perceive as equally radical from the other side. But I do not think the general American populace will share your opinion on the matter. Going from 50 states to 100 will seem much more radical to the average American than anything we have seen over the last few years in terms of destruction of political norms, many of which the general public barely understood or cared about.

Part of the issue is also that while I detest the Roberts court I don't see its power and influence as being to the absolute level you seem to think I don't think, on our current road, we are guaranteed to be lorded over by an ever more fascist-leaning and ever more all-powerful court. Public opinion changes. Political affiliations and philosophies and alliances change. Leonard Leo and Co. are surely going to do everything they can to lock in an arch-conservative supreme court for the foreseeable future. But they are not guaranteed to succeed, even in the current depressing political framework. Political opinion is turning sharply against the MAGA version of conservatism, and that matters a lot, especially if it keeps happening. Hungary is the recent example that even extremely aggressive and wide-ranging efforts to promote "illiberal democracy" are not guaranteed to continue succeeding,

 

[rodoheel]

We should not have to live in a country in which every political election is about whether we fall into fascism. I consider that intolerable.

I completely agree. We simply disagree about the best way to get out of that loop. I think there are more incremental solutions that can work us out of that loop that have a better chance of being successful than the solutions you have proposed, which are far more radical attempts to immediately fix all the problems with drastic change that I think are doomed to failure.

If we don't fix this problem it will gobble us up and the government will become basically Iran. A government with a nominally secular president that exercises administrative authority but all power ultimately concentrated in a council of clerics.

That is where we are headed without reform. Iran.

I understand the fear but I don't agree that this is inevitable, or even likely.

 

[superrific]

Part of the issue is also that while I detest the Roberts court I don't see its power and influence as being to the absolute level you seem to think I don't think, on our current road, we are guaranteed to be lorded over by an ever more fascist-leaning and ever more all-powerful court. Public opinion changes. Political affiliations and philosophies and alliances change. Leonard Leo and Co. are surely going to do everything they can to lock in an arch-conservative supreme court for the foreseeable future. But they are not guaranteed to succeed, even in the current depressing political framework. Political opinion is turning sharply against the MAGA version of conservatism, and that matters a lot, especially if it keeps happening. Hungary is the recent example that even extremely aggressive and wide-ranging efforts to promote "illiberal democracy" are not guaranteed to continue succeeding,

1. I'm pretty sure I follow the Supreme Court more closely than anyone here. Not because I want to; rather, I find myself doing it despite myself. LOL.

Anyway, that doesn't make my prognostications correct, but I'll tell you what I have been seeing in oral arguments and opinions these days. The conservative justices are leaning so hard into "history and tradition" that it is soon going to become a will without a face. They have already largely dropped originalism, as even that was a bit too constraining for them. History and tradition allows them to cherry pick sources across a whole century.

The next domino to fall is tiered scrutiny. That is, they are going to Bruenize everything. There will be no strict scrutiny or intermediate scrutiny or rational basis review. It will be a binary test: is there a history/tradition of doing X. If yes, then X is permitted; if not, X is not permitted. Essentially they want to trap the 19th century in amber and make it the determinant for all of the power of the federal government. This is, of course, somewhat speculative but let's see what this term's opinions will look like. I fear that history and tradition is going to swallow the whole constitution.

2. Also strengthening anti-corruption laws will be meaningless since the Court will just undo them. That's the real problem here and why I go for radical solutions. They have become so emboldened and drunk on power and unmoored from principle that they will just invalidate any reform efforts. They have to be coerced or eviscerated.

3. BTW, on the going to 100 states idea: it wouldn't actually have to be implemented. It just has to be there as a forcing agent. Basically the idea would be to have the states do a constitutional convention and draft a new document suited for modern needs. The problem is that the GOP states will never participate. And that's where the 100 states idea comes in. Texas, you want to sit it out? Fine, we're going to pass it whether or not you are involved, so probably you should pull up a seat and talk with us. The idea would be to have a backup plan to force cooperation.

4. Because cooperation really is the problem, right? So much in our government requires supermajorities. Even after eliminating the filibuster, you can't remove the president or judges without a super majority. You can't amend the constitution. So obstruction usually dominates as a strategy over cooperation. With two factions in the country pursuing completely different agenda, we've already seen how compromise is impossible. Obstruction strictly dominates and it will continue to do so unless we change the incentives.

My ideas are cudgels to get everyone to sit down and cooperate. If we can get Texas and other states to the table, we might be able to extract quite a lot of concessions, but only if we make the alternative to cooperating worse. It has to be, "you can participate, or you can be left behind. Your choice." Then, in the new constitution, we patch the holes that allowed this stuff to happen. No new states added without 2/3 majority. No state sovereign immunity or bounty laws. So on and so forth.

Because ultimately that is the problem. We have to force action. We don't need to dictate it. Maybe once to demonstrate that we are serious. I've thought about this issue for a long time and I really don't see much alternative. As you said, there is no more reliance on norms and our existing doctrine is inadequate.

 

[05C40]

I read all the above and think nothing listed will work. That's because I think the fundamental problem in America is that there are--as of January 2026--989 US citizens that are billionaires. Until a big majority of these 989 individuals decide that it is in their best interests and their children's best interests to have a functioning government that meets the needs of as many people as possible--not just the 989 that are worth more than $1B--then there are no workable solutions for our current problems. Think about it, there are less than 1,000 people in the United States who, combined, are so powerful that nothing can be accomplished without their approval. Whatever that is, it's not a democracy.

Also, I think, but don't know that a majority, perhaps a super-majority of these 989 are self-made billionaires whose wealth lies not in tangible assets worth over $1B, but in stock worth $1B. And as such, their status as billionaires is greatly dependent on the stock prices, not tangible asset valuations.

 

[rodoheel]

The next domino to fall is tiered scrutiny. That is, they are going to Bruenize everything. There will be no strict scrutiny or intermediate scrutiny or rational basis review. It will be a binary test: is there a history/tradition of doing X. If yes, then X is permitted; if not, X is not permitted. Essentially they want to trap the 19th century in amber and make it the determinant for all of the power of the federal government. This is, of course, somewhat speculative but let's see what this term's opinions will look like. I fear that history and tradition is going to swallow the whole constitution.

You may not be wrong about this. But You can look back at the history of the Supreme Court and see the rise and fall of judicial philosophies over time. This is not the first time that the court has gone down a bad doctrinal road, and won't be the last. I find the "history and tradition" stuff to be utter bullshit, both substantively and as an all-encompassing philosophy, but we have gotten through bad judicial philosophy before without having to do anything drastic.

2. Also strengthening anti-corruption laws will be meaningless since the Court will just undo them. That's the real problem here and why I go for radical solutions. They have become so emboldened and drunk on power and unmoored from principle that they will just invalidate any reform efforts. They have to be coerced or eviscerated.

Most (but I will concede, not all) of the reform efforts the Court has invalidated have been because they have been awkward solutions and/or done through executive actions because Congress wouldn't or couldn't act. If we can return to a robust and functioning Congress that actually passes laws and doesn't have to resort to Obamacare-esque procedural awkwardness in the pursuit of compromise, it will be much harder for the Court to simply trash reform efforts that have been duly enacted by Congress. That is one of the reasons why filibuster reform is so important.

I know your response will include reference to the VRA. I'm not under any illusion that the Roberts court can't find a way to strike down legislative actions too. But saying "we shouldn't even bother with reform legislation because the court will just strike it down" is simply giving the court power we don't have to give. Make them do it! Make them stand up and invalidate broadly popular legislation! Public opinion still has real and important power and the Court is not immune to it or able to act with complete impunity otherwise.

4. Because cooperation really is the problem, right? So much in our government requires supermajorities. Even after eliminating the filibuster, you can't remove the president or judges without a super majority. You can't amend the constitution. So obstruction usually dominates as a strategy over cooperation. With two factions in the country pursuing completely different agenda, we've already seen how compromise is impossible. Obstruction strictly dominates and it will continue to do so unless we change the incentives.

My ideas are cudgels to get everyone to sit down and cooperate. If we can get Texas and other states to the table, we might be able to extract quite a lot of concessions, but only if we make the alternative to cooperating worse. It has to be, "you can participate, or you can be left behind. Your choice." Then, in the new constitution, we patch the holes that allowed this stuff to happen. No new states added without 2/3 majority. No state sovereign immunity or bounty laws. So on and so forth.

This is one of the "game theory" topics where I just entirely, fundamentally disagree with you. You think the liberal states can use coercion to force the conservative states to the bargaining table. I really do not think that's ever how it will play out. It is far more likely to lead to mass violence, if not open civil war. I do not think it is remotely realistic to think there is a scenario where the liberal states (even assuming they can first accumulate the necessary political power and leverage - by no means guaranteed) can force the conservative states to meekly come to the bargaining table, tail tucked between their legs, to be obedient good little boys and girls. You are just fundamentally misreading what the incentives would be for the conservative hardliners in that scenario.

 

[rodoheel]

I read all the above and think nothing listed will work. That's because I think the fundamental problem in America is that there are--as of January 2026--989 US citizens that are billionaires. Until a big majority of these 989 individuals decide that it is in their best interests and their children's best interests to have a functioning government that meets the needs of as many people as possible--not just the 989 that are worth more than $1B--then there are no workable solutions for our current problems. Think about it, there are less than 1,000 people in the United States who, combined, are so powerful that nothing can be accomplished without their approval. Whatever that is, it's not a democracy.

Also, I think, but don't know that a majority, perhaps a super-majority of these 989 are self-made billionaires whose wealth lies not in tangible assets worth over $1B, but in stock worth $1B. And as such, their status as billionaires is greatly dependent on the stock prices, not tangible asset valuations.

The good news is that your post actually makes clear why those people are not as all-powerful as you suggest they are: their wealth is tied up in the value of their companies. Whether they are smart enough to realize it or not, their wealth is entirely dependent on a government that is functional enough to hold together a large and complex economy, and a population that is wealthy and secure enough to buy and need the products and services they sell. If the government continues to decline in how it functions, or the economy tanks, their power goes with it. So while the situation is very much not ideal and needs to be fixed in lots of ways, the interests of at least most of those billionaires are more tied up in a functioning government than you (and probably they) acknowledge.

 

[Bigs23]

re: Cena

Why is James crying?

 

[sringwal]

The good news is that your post actually makes clear why those people are not as all-powerful as you suggest they are: their wealth is tied up in the value of their companies. Whether they are smart enough to realize it or not, their wealth is entirely dependent on a government that is functional enough to hold together a large and complex economy, and a population that is wealthy and secure enough to buy and need the products and services they sell. If the government continues to decline in how it functions, or the economy tanks, their power goes with it. So while the situation is very much not ideal and needs to be fixed in lots of ways, the interests of at least most of those billionaires are more tied up in a functioning government than you (and probably they) acknowledge.

Sure, but Elon Musk currently has a networth higher than the annual gdp of over 170 countries. At the point he is at, more wealth is immaterial. His family can live off of what he has earned comfortably for a million years by simply leaving most of it in stocks. At this point, more wealth acquisition is about two things: power and his weird obsession that he is Zarathustra introduction AI as the ubermensch.