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20190127 – The Most Dangerous Branch

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MAIN IDEA:

The main idea here is to review history, especially the most recent, of Supreme Court and demonstrate that it had acquired the huge power of final legislative decision maker that was not granted to it by constitution and impact of this circumstance on the American republic. The main point author is making is that cases decided to support leftist ideology should be considered legitimate court interference, even if they are deeply flowed as Roe, but cases decided in support of conservative ideology could not be considered legitimate exercise of court power, so now, when court seems to be moving to reliable conservative majority, its powers should be restricted.

DETAILS:

Introduction: The End of the World as They Knew It

The introduction starts with the story of Justice Kennedy resignation and brief discussion about its meaning as change from 4-1-4 balance of power to 5-4 conservative advantage.

Prologue: Death at the Ranch

Correspondingly prologue uses the story of Scalia’s death to discuss how Supreme Court become supreme branch of power and how it led to highly politicized selection process for justices.

Part I: Characters

Chapter 1: The Marble Temple

This chapter discusses decorum of Supreme Court including the building; justices’ patterns of behavior, their travel, public norms, and refusal allow TV to transmit proceedings. Then author discusses contrast in outlook between some justices.

Chapter 2: No.9

This chapter is about the new justice Gorsuch, who, as conservative, is clearly disapproved by the author.  Helpfully author narrates his fear for the fate of Chevron, which required deference of the courts to unconstitutional administrative state. Another issue author discusses is Gorsuch’s careful avoidance of abortion issue. At the end author reviews in details Gorsuch selection process and role of Federalist society.

Chapter 3: Confirmation World

This chapter probably qualifies as howl of democratic soul hurt by Republican senate rejection of Obama’s appointee Garland. In author’s opinion it was painful for Obama compromise that, nevertheless, was rejected by evil republicans. After that author goes a bit into history of confirmation and how it became so polarized by borking Bork. Author admits that it was not fair and that Teddy Kennedy was disgusting, but somehow justifies it by Bork’s behavior and overall need to have democrats in power.

Chapter 4: Deploying the Warhead

In this chapter author moves to the nature and story of filibuster and how democrats killed it for lower level court, creating opening for republicans to kill it for Supreme Court. All this supplemented by details of Gorsuch confirmation.

Chapter 5: The Institutionalist and the Notorious Chapter

Here author moves to personalities, discussing Roberts as an Institutionalist and Ginsburg as Supreme Court’s rock star. He also mentions left’s attempt to push her out due to the age and health that were unsuccessful. As usual for liberals RBG prefer to do what she believes is best for her despite paying lip service to common goals.

6: The Left Flank

In this chapter author discusses left flank, which includes Breyer, “wise Latina” Sotomyor, and Elena Kagan whom author somewhat accuse of being too smart and not sufficient tolerant to others who are to so much.

Chapter 7: The Right Flank

The right flank is Thomas, who author consider not very influent on the court. As usual author stresses Thomas’ usual reluctance to ask question during hearing and allocates lots of time to confirmation disaster and Anita Hill.

The second man on the right flank is Sam Alito. Author discusses his selection and confirmation then somewhat laments the fact that Alito came as substitute to semi-liberal O’Connor.

Chapter 8: Deus Ex Machina

The Deus here is justice Kennedy who had decisive vote that he used in some cases siding with conservatives and in some cases with liberals, but in all cases becoming key decision maker.

Part II: Cases

Here author moves from personalities of justices to most important cases that practically change laws the way court want it either to the left or to the right.

Chapter 9: Sleeping Giant

This is the story of Supreme Court usurping power not granted to it by the Constitution. It started with Marbury vs. Madison in 1803 then was somewhat subdued with court mainly seeking to mediate power distribution between federal and states powers, mainly siding with federal all the way to the allowing overriding state laws, creating foundation for the future Civil War between North and South. After the war it somewhat retreated, but then came back in force first siding with conservatives at the beginning of XX century with Lochner vs. New York and even stopping Roosevelt excesses of the New Deal in Schechter, only later being forced to move to liberal side where it resided through 1970s.

Chapter 10: The Runaway Court

This chapter is clearly painful for author who as liberal hates it, but as reasonably thoughtful person had to admit legal, intellectual, and even logical deficiencies of super liberal court of early 1970s that brought usRoe vs. Wade and following abortion laws. Author believes that it was a mistake that turned country to support republicans and eventually led to the Court that was mainly appointed by republican presidents, who actually did extremely lousy job selecting justices who whether were or became later of liberal persuasion.

Chapter 11: Revenge of the Right

Here author discusses one of the most painful for the left case – Gore vs. Bush. He does it in relatively honest way, noting that Gore demanded recount only in democratic precincts.  However his sympathy is shown very clearly.

Chapter 12: James Madison Made Us Do It

Here author discusses 2ndAmendment starting with Roosevelt National Firearms Act – the first massive intervention of government against right to be armed.  Author refers to Miller, which in 1938 confirmed government ability to limit firearms, claiming that the main point of amendment was militia, not individual right. The author jumps to 60s Gun Control Act, and finally brings in Reagan as the initiator of fight for individual right to be armed. The balance of chapter dedicated to discussion of Hellerand political fight around it.

Chapter 13: For the Love of Money

This is about another case of semi conservative majority of the court deciding important issue related to the 1stamendment – Citizens United which rejected attempt to regulate political speech under disguise of limiting role of money in politics. The decisive vote again was Kennedy who believed that this is an attempt to establish censorship.

Chapter 14: A Disdain for Democracy

Here author moves to voting rights, affirmative actions, and other issues related to left efforts to “stop discrimination” by implementing more discrimination and creating special and superior rights for democratic constituencies. The latest case in this prolonged saga is Shelby County decision of 2013 that rejected entitlements based on race.

Chapter 15: Roe by Any Other Name:

The final chapter is about fight for or against homosexuality and elevation of gay sexual relationships institutionally to the same status as heterosexual marriage. Author reviews decades of this struggle, first for legalization of homosexuality and then for its equalization. It was decided in Obergefellwith Kennedy voting with liberals with non-existing constitutional reasoning similarly to Roe.

Epilogue: A Less Dangerous Branch

Here author reviews the current state of Supreme Court and concludes that with advance of conservative majority, it should be limited and become less dangerous branch of government. He specifically states that after Kennedy leaving the best hope of left is John Roberts who in his decisions about Obamacare indicated that he maybe in process of maintaining tradition of justices appointed by the weak republican presidents converting to liberal persuasion.

MY TAKE ON IT:

I think that idea of court being supreme decision maker in the country is so deeply flowed that it becoming more and more untenable. Even if it is becoming conservative, meaning more inclined to comply with constitution, it is still not good enough, especially when it has such judges as “wise Latina” who are capable discuss limitation of presidential constitutional power based on whether justices consider motivation of presidential actions good or bad. Somehow such people fail to understand that government, which is always based on violence and coercion, can do it peacefully only if overwhelming majority of population believes that these coercive actions are based on established rules (laws). Moving coercive action away from rules common for everybody would inevitably lead losing party to respond with violence as soon a its aggravation coincides with support of at least significant part of individuals who control means of violence: army and police. The idea that democratic president Obama has legal rights to issue executive order that republican president Trump has no legal right to cancel moves country to the state of lawlessness that cannot be resolved by any way other than one side violently suppressing the other. Unlike 1860 it is not conflict between states that led to incorrectly named Civil War, but rather the true conflict within society between ideologies of individuals. One should hope that country remains in the state of relative lawfulness, so ideological conflict could be resolved peacefully, but current leftist movement acts daily in such way that this hope is diminishing.

As to Supreme Court I think that USA needs constitutional Amendment, which would remove legislative power of the court, limiting it to expressing technical legal opinion. With top legal experts of both main ideological persuasions on the court, the decision on constitutionality of the issue should be decided with overwhelming majority of the court. However, if justices split on decision, either because they are driven by ideologies or due to any other reason, each side should provide suggestion for constitutional amendment clarifying and confirming their opinion, which then should go to amendment process on condition of necessity to accept either one or another interpretation of constitution. This way any ridiculous and unreasonable change to constitution will be applied with transparency and discussion and, if proved untenable, as for example was prohibition, quickly change using the same process, without long struggle for change of personalities on the court.

 


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