Tag Archives: supreme court

The Left will rue the day they cheered an activist Court

Summary:  The reactions to the Court’s ruling on Obamacare and same sex marriage divide on predictable partisan grounds, as Americans seek what they want. We care little about Constitutional procedure and less about the work of making the machinery work as the Founders intended. It’s the thinking typical of political regimes’ last days, when belief has gone and people just follow the forms.  {We’re back to one post per day, as I consider winding down this project.}

Justice lying down

The Supreme Court has legalized same-sex marriages. David Fontana at Slate gives some of the typical liberal cheering for the Court’s decision on same-sex marriages: “The Justices’ Justice” — “For years we feared the consequences of pushing social progress through the courts. Obergefell v. Hodges will prove we shouldn’t.”  I suspect he’s cheering prematurely.

For a clearer example of thinking on the Left see Matthew Yglesias’ reaction, exultant and quite daft (red emphasis added)…

What’s more, it’s a huge analytic mistake to assume that striking down some law is an anti-majoritarian action. The way the United States government works is that change is very hard. Given the current state of gridlock in Washington, it’s pretty clear that neither a gay marriage legalization bill nor a gay marriage illegalization bill could pass. On marriage equality, like on virtually every other issue, the status quo is simply likely to prevail. Into the breach steps the Supreme Court — in this case, on the side of the majority according to polls.

All in all, I think the American system of checks-and-balances has a lot of flaws. But unelected judges invalidating unjust laws that a majority of the public wants invalidated is basically the system working at its best.

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Police grow more powerful; the Republic slides another step into darkness. Can cellphone cameras save us?

Summary: Our system is changing; the Republic is dying. Events in Ferguson illustrate some aspects of this the police’s militarization, alienation from the community, and increased use of force. Today we look at the last component of this cycle — their immunity from consequences. It’s not “just happening”. Day by day our elites change the system to better suit their needs; our passivity and apathy allow it to happen. We can still force reform; that might not always be true.

Lady Justice

Becoming an illegal alien


A darkness falls over the Republic, like a shroud. It will deepen so long as we read stories like these below as entertainment — an opportunity for faux-outrage and righteousness. Only anger and resolution can save us, while the clock runs against us.

How the Supreme Court Protects Bad Cops“, Erwin Chemerinskyaug, op-ed in the New York Times, 26 August 2014 — Excerpt:

In recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people, the victims rarely have recourse.

The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with an officer’s request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.

The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. … This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car’s tires, or even taking the license plate number and tracking the driver down later.

The court has also weakened accountability by ruling that a local government can be held liable only if it is proved that the city’s or county’s own policy violated the Constitution. In almost every other area of law, an employer can be held liable if its employees, in the scope of their duties, injure others, even negligently. This encourages employers to control the conduct of their employees and ensures that those injured will be compensated.

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Destroying campaign finance laws, another win for the 1%. Another step to a New America.

Summary: It’s fun to read the shocked, shocked reactions to the Supreme Court’s latest gutting of the campaign finance laws. The 1% have been gathering wealth, income, and political power for 40 years. What did the Left expect the 1% to once they owned the high ground n every aspect of American society? Like Bruce Wayne, dedicate themselves to building a better America for its people — especially the poor and working poor?

Scalia and Roberts

Please with themselves: Supreme Court Justices Antonin Scalia & John Roberts. Reuters/Brendan McDermid; AP/Larry Downing

The 1% are regular people, ambitious and greedy, so of course they’re wielding their power to consolidate their position, to break down the barriers hemming them in, and shifting the tax burden to others. And the sun will rise tomorrow.

They will continue to gain power. The process has passed the point when any easy reforms will slow, let alone stop, the process. Reversing it, restoring the Second Republic (or building a Third), is a goal beyond my sight today.

Doing the least of these things will require us to change ourselves, to again become citizens (not subjects).

Doing the greatest of these will require effort and risk beyond anything we’ve done in generations. Perhaps since the Civil War.

Below are reports about the latest step the Supreme Court has taken to boost the power of the 1%, which for most of American history has been its primary role. These stories, like most political reporting, are read by Americans as entertainment. Opportunities to cheer our side and boo the bad guys.  How sad. If these do not incite you to action, then why read them? Find a more productive or fulfilling way to spend your time — for they have no useful information content except to politicians, political operatives, lobbyists, and reformers.


(a) Roberts Court: Government Must Be By, and For, the Wealthy“, Scott Lemieux (Prof History & Political Science, College of St Rose), The American Prospect, 2 April 2014 — Excerpt:

Everyone who thinks that the rich don’t have enough influence on American politics can rest easier.

In an expected but still depressing decision today, the Supreme Court struck down aggregate limits on how much an individual can donate to politicians and political parties within a 2-year window as a violation of the First Amendment. Having already made it impossible for Congress to place significant restrictions on campaign spending, a bare majority of the Court is now chipping away at the ability of Congress to place limits on donations as well.

… To the Roberts Court, money should talk as loudly as possible while ordinary voters can take a walk.

(b) The Supreme Court’s Ideology: More Money, Less Voting“, Ari Berman, The Nation, 2 April 2014

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Why the 1% is winning and we are not.

Summary: A cold clear look at the tactics and order of battle of us vs the 1%, plus some thoughts what we must do to win.

Motto of the 1%

Motto of the 1%.


What distinguishes the 1% from the rest of us? Many things, such as their fantastic wealth, income, and power. But perhaps the most important differences are that they have a clear view of the America, plus rational well-funded plans to reshape it into a form that better meets to their needs. It’s why they are winning.

(a) The Powell Memorandum.

Sent by Lewis F. Powell, Jr. on 23 August 1971 (2 months before his nomination to Supreme Court) to Eugene B. Sydnor, Jr., Chairman of the Education Committee of the U.S. Chamber of Commerce. Titled “Attack On American Free Enterprise System“, it outlined a strategy for large corporations to rollback much of the New Deal reforms on business.

(b) Creating the mythology of tax-cuts as the magic elixir

Taxes and a Two-Santa Theory
by Jude Wanniski, National Observer, 6 March 1976.

“The only thing wrong with the U.S. economy is the failure of the Republican Party to play Santa Claus. The only thing wrong with President Ford is that he is still too much a Hoover Republican when what the country needs is a Coolidge Republican.

“These statements, seemingly absurd, follow naturally from the Two-Santa Claus Theory of the political economy. Simply stated, the Two Santa Claus Theory is this: For the U.S. economy to be healthy and growing, there must be a division of labor between Democrats and Republicans; each must be a different kind of Santa Claus.

“The Democrats, the party of income redistribution, are best suited for the role of Spending Santa Claus. The Republicans, traditionally the party of income growth, should be the Santa Claus of Tax Reduction. …”

(c)  Slash essential funding for the government

In his 14 July 1978 testimony to Congress (9 years before becoming Fed Chairman), Alan Greenspan first described the “starve the beast” strategy.

“Let us remember that the basic purpose of any tax cut program in today’s environment is to reduce the momentum of expenditure growth by restraining the amount of revenue available and trust that there is a political limit to deficit spending.”

(d)  Building the infrastructure to win

As always, the people are more important than the actions. The 1% find, fund, and nurture the careers of people like Powell, Wanniski, and Greenspan. The Shame Project unknowingly documents this patient, well-funded construction of a counter-revolutionary movement. Find promising young people, fund and direct their careers. With them they built organizations to promulgate your ideological goals. This is patient investment, intelligently planned, of the kind that reshapes nations.

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The Court overturns two laws passed by Congress. Everybody cheers!

Summary:  This was a bad week for the Republic. No matter what your opinions about Same Sex Marriage and the Voting Rights Act, these decisions weaken us. As we become more accustomed to undemocratic solutions, our ruling elites become stronger. We become weaker.

Oracles, ruling on the basis of a document in which few people believe.

Oracles of a document in which many of us no longer believe

It {is} an axiom of eternal truth in politics that whatever power in any government is independent, is absolute also; in theory only at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people. They are inherently independent of all but moral law …
— Jefferson in a letter to Judge Spencer Roane, November 1819

The Supreme Court overturned two laws passed by Congress and signed by the President: the Voting Rights Act (VRA) and the Defense of Marriage Act (DOMA, signed by Clinton in 1996). Being bystanders and sheep, Americans cheered their teams’ wins and boo’d their defeat. A profoundly undemocratic institution has gained a greater role over our elected representatives no longer matters to us.

Being fools we do not realize that there are not two teams, just two factions of our ruling elites. This week the Court did their will on both verdicts. Gutting the VRA allows the GOP to continue its voter suppression projects, to keep the more unstable lower orders in line (having no property, nothing to lose, oligarchs always worry they might be mobilized against the regime).

As for the victory for gay rights, it is politically inconsequential. Our plutocrats have relearned ancient wisdom: it’s best to leave the proles to their own lives. Who they screw, their family structures, how they organize their communities — none of these things matter. Our rulers focus on the essentials of concentrating income, wealth, and power.

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Should we thank the Court as it rescues us from our bad laws? Or just bow?

Summary:  America remains locked in a battle between Left and Right. Each fights to protect the Constitution — or the pieces of it they value. Neither cares for the it as other than a tool to advance their interests. The Constitution, torn between them, slowly withers. The American people mildly, intermittently cheer both sides — wanting what they want, ignorant and uncaring of the political processes that constitute the Republic. Today we see this tragedy play out over same sex marriage.

Oracles, ruling on the basis of a document in which few people believe.

Oracles ruling about a document in which many (most?) Americans no longer believe.


Americans have voted for laws not allowing same sex marriage. Now opinions have changed (for the better IMO), and we can change those laws.  Acts of collective action like this,  working through our elected representatives, strengthen the Republic. We shape America, making our history, showing our power to govern ourselves. This is the natural course of evolution in a democracy.

But many prefer quicker extra-legal measures, wanting results NOW — not caring about the means. Or the consequences.  The Courts, often ready to act as priest-kings — deciders — provide a fast track for social change. As with Roe vs Wade in 1973, the likely result of Supreme Court voiding the Defense of Marriage Act (1996) will be to extend and embitter the debate and further weaken the legitimacy of the courts.

The Republic — and hence us, the people — grow weaker with each exercise of extra-constitutional power by the Courts and the Executive, no matter how well-intentioned. Eventually our leaders will take bold action, promising to give us what we want — security, prosperity, whatever — without bothering to pretend to follow the Constitution. At that point the Constitution will have died.

My guess most of us will live to see that day.

Some people on the Right look at the Courts. Today they cherish the Constitution

I agree with the following views. But the core fact of American politics today is that neither Left nor Right value the Constitution as anything other an instrument to advance their policies. Tomorrow — when looking at government oppression of Muslims, extra-legal assassination of Americans, or illegal surveillance — they might show less concern about old documents.

Gay marriage and the Supreme Court’s empire“, Paul Mirengoff, Powerline, 4 March 2013:

{N}ine glorified lawyers are about to tell us whether the traditional definition of marriage as requiring members of the opposite sex is rational and/or useful (whether the standard is “rationality” or “utility” is up for grabs in the case). By “traditional definition of marriage” in this context, I really mean the universal definition — one that, as far as I know, prevailed until very recently in all societies since the beginning of recorded time. Isn’t it odd that as few as five judges could determine that the traditional definition of this fundamental institution is irrational (or not useful), and make this judgment stick?

Supremacist Courts“, Mark Steyn, National Review, 4 March 2013:

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Looking ahead to the next step of the quiet coup, and a new America

Summary: We can look ahead to the next steps in the quiet coup overthrowing the Second Republic, that’s forging a new America. Here are some insightful articles about what to expect.


Excerpts appear below; please read these articles in full.

  1. “Is this 1936?” by David Bernstein (Prof Law, George Mason U, bio)
  2. “Conservative Southern Values Revived: How a Brutal Strain of American Aristocrats Have Come to Rule America” by Sara Robinson
  3. For more information

But first, some words about the social contract that is America:


(1)  Preparing for the next phase of the Court shaping America like a pot on the wheel.

The left is applauding its victory with ACA, probably a last hurrah.  For explanation see “Is this 1936?“, David Bernstein (Prof Law, George Mason U, bio), SCOTUSblog, 29 June 2012 — Excerpt:

Now that the Court has voted 5-4 to uphold the ACA, I want to suggest a different historical analogy, also focusing on 1936. What if the Court’s ACA decision, like the Court’s controversial 1936 ruling invalidating a state minimum wage law, turns out to the last gasp of a dying constitutional regime?

In the early part of the 20th century, traditional views of legislative authority gave way to more statist Progressive assumptions. While Progressives thought of themselves as under siege, in retrospect we can say that the pre-New Deal era was one of Progressive dominance. The problem legal Progressives faced, however, was they were never able to achieve a strong majority on the Supreme Court. Disappointing appointees (McReynolds by Wilson), bad luck in the timing of vacancies (Harding’s 4 nominees), and an unwillingness by most of the Justices with a long pre-Court Progressive record to reconsider constitutional verities stymied Progressive reform on the Supreme Court. The Court, nevertheless, did gradually & grudgingly uphold most of the novel regulations that came before it, but failed to relinquish the underlying ideological underpinnings of traditional constitutional doctrine.

The old Warren Court regime is not as thoroughly discredited as the Gilded Age Court was by the 1930s, and the modern era is perhaps not as thoroughly conservative as the early twentieth century was Progressive. But conservative jurists have made remarkable strides in persuading legal elites that originalism & textualism are first rather than last resorts. Conservatives have controlled the Executive Branch for the majority of time since Reagan was elected, but a combination of disappointing appointments (Souter), inopportune timing on the loss of the Senate (Bork), and a reluctance by various of the conservative Justices, save Thomas, to question the underpinnings of the preexisting constitutional regime has stymied radical change.

But what if Mitt Romney gets elected, and what if the current 5-4 conservative majority ultimately becomes a 7-2 majority, as Breyer & Ginsburg leave the Court? The Harriet Miers debacle suggests that conservative constituencies will no longer tolerate a Republican nominee who is not a “sure thing.”

As important, the ACA litigation shows that ideas once deemed beyond the pale in “respectable” legal circles have now become mainstream among elite conservative lawyers. Indeed, though the individual mandate was upheld, the 5 conservative Justices expressed a willingness to put real, substantive limits on the scope of the Commerce power (Lopez and Morrison were easily evaded). The 5 conservatives, plus 2 liberal Justices, also endorsed substantive limits on the Spending power, the first time such limits were applied to Congress since the 1930s.

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