Sunday, December 13, 2020

Supreme Irony


One more time: the conservatives on the Supreme Court are not our friends, but that doesn't mean they won't rule the right way when it serves their purposes. They have a good idea how to do it, for one thing: nominations master and Federalist Society Dark Lord Leonard Leo doesn't want to put people without a certain level of formal competence in these jobs, and he was never going to give us Rudy Giuliani or Judge Jeannine or Scott Baio, as might have happened if Trump himself were allowed to be in charge, or for that matter the kinds of clueless tyros Leo himself sometimes nominates as circuit judges.

And they were never going to overturn this election, because (1) there was nothing wrong with the election, and Trump's lawyers could give them no material to work with (Bush v. Gore was pretty terrible, but compared to this it was ready-mix concrete); (2) they don't owe Trump anything, as he seems to think they do, because it was Leonard Leo and Mitch McConnell that gave them the jobs, and any Republican president, as Steve was saying, would have complied; and (3) they don't have any particular reason to want him to keep being president, as there's not much he can do beyond embarrassing them with his continual hints that he bribed them—he hasn't done anything they want but nominate Federalist Society judges, to the point where they're down to about 23 vacancies in the federal judiciary out of a total of maybe 890 judgeships, so that while it may not be quite true that Trump has totally remade the judiciary, there isn't much more he'd be able to do in another four years. And they have little to fear from a Biden presidency, hobbled as he is likely to be by a difficult Congress (even if the miracle in Georgia happens). He certainly won't be pushing through a federal abortion rights statute, or taxing churches, or expanding the Court itself.

Which I incidentally think he should do in a much bigger way, by the way, and the Court ought to favor it, for a very simple and nonpartisan reason: they have too much work to do. Out of around 7000 cases they're asked to decide each year, they get to hear maybe 150 in a very lively season, and they're supposed to supervise 94 judicial districts and 13 appeals courts. If there were 29 justices (that's how many judges in the largest appeals court, for the Ninth Circuit in California), they could be supervising 29 circuits, each with a much smaller workload, and clearing ten times as many of their own cases with three-justice panels, only a few of them taken to the whole bench for a final-final review, and they'd be able to do a much better job with much less stress. The use of panels would help them avoid accusations of partisanship, too. Just saying.

Since I am on an "I was proved fucking right" roll in my SCOTUS predictions, I should add I'm still very optimistic about the fate of the Affordable Care Act—we don't have a decision yet, but after the way the justices dealt with the oral arguments on 10 November it looks to experts like a done deal—and the Court seems certain to stall on the grotesque idea of leaving the undocumented out of the census, which (between the Trumpery and the Covid) won't be able to get its work done until Biden is president, so that plan is dead until 2030 at the earliest.

For other matters I wouldn't be so optimistic. The new Court is surely going to be bad for voting rights, bad for campaign finance reform, bad for the regulation of corporations, and bad for the old-fashioned idea of freedom of religion as extending to people who don't own businesses. I don't suppose they'll want to come right out and reverse Roe v. Wade, but whatever happens to it isn't going to be good for women living in Red states. It might be a good time for Democrats to focus on defending reproductive rights in some of those progressivizing states like Georgia, Texas, and North Carolina, I mean good in the sense of picking up votes.

Still, this decision was fun. When you think about it, the reason he was so ridiculously proud of his achievement in naming three Supreme Court justices must have been, like a king boasting about a new castle, that he'd thought he'd built himself an impregnable defense there, as suggested by the real bitterness of his initial response:

I thought for a while he must have made Gorsuch and Kavanaugh and Barrett swear him loyalty oaths when he interviewed them, the way we know he tried to do with Comey and McCabe, and I still think Leo may have made him a promise.

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