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Thoughts on the Balance of the Supreme Court.

With a Republican-packed court, what are the power dynamics to look like? Where is the new center of gravity?

It’s important to note that most decisions by the court will probably still be unanimous or joined by liberals and conservatives alike. The contentious cases are typically only a handful or fewer per annum. But those cases are the ones with the biggest risks for all concerned.

Right now the court looks not so much 3-6 (because of the left-right axis of the court, its balanced will be listed left-to-right), but 3-1-5. At the moment Chief Justice Roberts looks more poised to be a moderate that is not fully aligned with the rest of the conservatives.

If the five right-fielders stick together, it will be their court for good or ill. That’s math. But on some cases, some issues, at least one of the five won’t want the same result. Those cases will be the ones that shape the court and the politics of the judiciary, not the ones where all five decide to plow under the crops of American law.

It is those cases where Justice Gorsuch or Justice Kavanaugh split that will matter most, in two ways. First, whether the chief justice plugs the hole in those instances, and if not, how much leverage the liberals have in shaping the opinion of their occasional majority.

The dynamics of having Roberts and one of the five join the liberals are unpredictable in terms of leverage. Roberts might be able to seek moderate opinions, depending on how greedy the five get in their majority cases. But the moderate-left members of the court, with fewer opportunities to balance the scales of justice, may actually have more leverage in those rare cases.

But the court may not prove to be 3-1-5. It could be 3-6, but that seems less likely as Roberts isn’t just trying to be a moderating voice, but is largely just that. More likely than 3-6, but perhaps less than 3-1-5 are the 3-2-4 or even 3-1-2-3 or 3-1-3-2 courts. These represent a clearer spectrum that might develop, as the prism of cases separates out the conservatives into their truer colors.

Already we have seen the likes of Justice Alito and Justice Thomas being boldly sectional in their rhetoric, and it seems likely that at least one more will slip into their bed, but perhaps not two or three. The power position would be to join Roberts in the middle, but it’s not clear that any of the five are candidates for that.

So, in terms of ranking, the likeliest to least seem to be:

  1. 3-1-5
  2. 3-1-2-3
  3. 3-2-4
  4. 3-1-3-2
  5. 3-6

The fourth possibility is interesting, for what it represents in terms of outcomes. In it, the three judges seated during this administration would be a bloc unto themselves, not agreeing to go as far as the Hun bloc in trying to tattoo Lady Liberty with a Federalist Society tramp-stamp, but trying to find some right-of-Roberts ground. They would need to either pull in Roberts and a Hun or else pull in both Huns or Roberts and a liberal.

But it will take at least a few terms to see where things lead. In the meantime, the inauguration is in seven-ish weeks.

The Sieving Process in the Press and the SCOTUS.

They are very different things, but they do share some interesting features.

Merry Halloween.

In thinking recently about the SCOTUS, there are several extra levels of decision making available to them:

  1. they cases they consider taking
  2. the cases they take
  3. the issues they allow argument on in those cases
  4. the issues they decide in issuing opinions
  5. the breadth of their rulings on those issues

These several levels are filters. They can occur both in their normal caseload and in the shadow docket. There is no originalist philosophy or textual basis for them. These decisions are largely unreported and the court is mostly unaccountable for them.

And over in the press:

  1. the stories they consider covering
  2. the stories they cover
  3. the issues they research in that coverage
  4. the issues they actually publish in the coverage
  5. the breadth or specificity of that coverage

There are other types of judgment relevant to both, including errors, relied upon from their sources but overlooked, or introduced by the press or the SCOTUS. These errors include factual errors and errors of interpretation. For example, an originalist jurist might be relying on a faulty understanding of the law circa the 18th century. Baking an error into our law because of some long-dead person’s error seems to be exactly contrary to the claimed aim of that philosophy: to be consistent with the actual meaning of the law as enacted. Similarly, if the press finds a flaw in their reporting, it may be uncorrectable if they no longer have access to the source to seek clarification.

But this sieving process is just as activist (for SCOTUS) and just as biased (for the press) as the actual decision making processes that they try to dress up in fancy clothes and teach to speak well. We usually hear the complaints from fringe media, whether on the right wing (e.g., that there isn’t enough mainstream coverage of campus censorship or immigrant-perpetrated crime) or environmentalists (e.g., there are major polluted areas that get overlooked, to the devastation of health of typically minority communities) or immigrants (e.g., there isn’t enough mainstream coverage of immigrant-victim crimes, including by corporate-perpetrators (like federal contractors)).

The sifting isn’t bad or good, per se. It is necessary in both cases, due to the complex social, political, and business environments that the press and SCOTUS operate within. But the processes deserve recognition for what they are, and if we can develop formal frameworks to judge their efficacy, we should. (One way it is bad: inconsistency. Pitches for fluff get greenlighted when from a useful source and squished by anyone else, just as serious pitches get killed when about or damaging or frowned upon by the powerful, but are snatched up otherwise.)

Transparency is an issue as well. We know what cases SCOTUS rejects, but unless a scandal results (e.g., the failure to report on Harvey Weinstein by NBC) we typically do not know when a story was killed (much less the stories that were nixed as pitches).

Finally, the courts and their decisions receive coverage by the press, which leads to certain decisions by courts on how to frame their decisions in order to influence how their decisions are covered by the press. In that aspect, there is no division or difference between courts and the press. In that limited behavior they are identical in action, though not in tone or substance, having different goals in propagandizing.

Anyway, election’s Tuesday. Do vote.

Justice Ginsburg’s Vacant Seat

The remedy for Republican court-packing is electoral: vote.

As I wrote back in 2016, I believe the Constitution requires a president to nominate (not just for SCOTUS, but for all appointed positions) within some period of time. Congress should designate that period, but 90 days seems appropriate barring statutory guidance. Donald John Trump has repeatedly failed to fill positions in our government, or to fill them through the constitutionally-required process.

But this one he will not fail to fill. And the Senate, by the same shared shall in the Constitution, is required to offer its say on any nominee. They, again after some reasonable time, have a duty that they failed to undertake, that they were derelict and contumacious in failing to perform, to vote up or down any nominee for any appointed office. As such, I believe that calls to not hold a vote, or to obstruct, are misguided.

The call should be to vote down any nominee until the results of the election are known, and if there be a change in officeholders, whether in the Senate or the Presidency, then the new members should bout it out to finality and confirmation of whoever is fit to fill the seat.

I make that call: vote down whomever Donald John Trump nominates, until such time as we know what the people say.

More generally, the bulk of Republican leaders, certainly nationally, and in some states, seem to not care what the people say. They work to suppress the vote. They work to hide the truth. They put themselves forth as foes of the right and good, as degenerates. And so, we may have a six–three court, a Republican-packed court. For a time, anyway.

And women’s rights may suffer. And minority rights, voting rights, the rights of those suffering in the penal systems, speech rights, human rights… God knows. And those of us who do not support the lowest star shall do what? Route around the damage. Vote with our wallets, our feet, our raised cries against it. And vote with our ballots.

The cooling saucer has become an icebox, with no COVID bill of any worth. The icebox will not renew the Voting Rights Act. They will not act on any matter of justice, and instead priority for them is to place a padlock on the Judiciary, their last, best hope to maintain power and supremacy over a people who deserve better.

But Americans have long fought off masterdom by anyone. In time, Americans have bested every tyrant before it. And so we, the people, will fight off these latest mutants to claim mastery of our lands and of our people. Of that I have no doubt.

The matter at hand is not if, but as always when? And right now, you can help make that when be very soon, by registering, and by voting.

Do it for Justice Ginsburg. Do it for the dead. Do it for your mothers, your sisters, your daughters, your gal-pals, your female manager, coworker, customer. But also do it for your homeboys, fathers, brothers, sons. The government runs on elections, it is the fuel of that engine. Every citizen who votes fills up that tank so it can run better.