I think it's really important to remember that the Supreme Court doesn't actually have statutory authority, they have reputational authority. It is likely the case that President Biden and Attorney General Merrick Garland continue to (wrongly imo) respect that authority but that's not a given for any future holder of those offices - Democrat or Republican. It's also not a given that state Attorneys General continue to respect that authority - arguably we have been in a nullification crisis since ~2009 and certainly 2011, with the united front of red state AGs consistently challenging every major piece of legislation passed by the Dem trifecta, and SCOTUS in the main allied. SCOTUS has not respected the *statutory* authority of Democratic Presidents or legislative acts for some time; future Democratic office-holders at both the Federal and state level will increasingly return the favor by not respecting its reputational authority, and thus not blessing it with statutory power.
Tl;dr Marbury v. Madison is bullshit and we should act like it.
Biden should become a temporary dictator in the original Roman sense, lock Trump and several other people up until a group of experts can help him figure out how to unwind the mess, even up to USA 2.0, then step down to let democracy resume as it should be. Extraordinary times require extraordinary measures. This is a matter of life and death for too many!
The first thing he should do if he's willing to become an autocrat himself is seize the assets and positions of authority from the oligarchs that have been running US Democracy into the ground since Kennedy and every president after him started lowering taxes on the ultra-wealthy. Put back a progressive tax system that charges a 90+% tax rate to the top income tiers and work with the international community to shut down tax havens. Put some teeth back into Treasury and IRS and DoJ so they can destroy things like Theranos or FTX BEFORE they tank millions or billions.
The only way to cut out the legs from under the autocrats is to cut off their funding.
Biden's appointees have been making decent strides in this direction despite bad wobbles like packing an "AI" advisory council with dot-com grifters.
I think things are going to be a good deal harder to fix than you describe. The Supreme Court is writing law and constitutional guarantees from the bench to benefit the GOP. They have shown there isn’t a limit to how far they’ll go to support Trump (this latest ruling, which is clearly the opposite of the explicit intent of the founders, is breathtakingly sweeping—it’s an *invitation* to Trump to crush his enemies). He’s the commander in chief. He has the military. It doesn’t matter if the Dems hang onto the House—how can they stop him?
But even Biden winning will only forestall the collapse into autocracy. The SC will clearly not let him govern. If the GOP takes back the Senate, it’s hard to see how they’ll let him seat a cabinet, what to speak of judges. Will the country ever pass another budget? This ruling was the beginning of the end for democracy. I can’t muster a single scenario, given the way the GOP has perverted the system in their favor, that the U.S. hangs onto a functioning constitutional democracy more than several years.
Great analysis but the simple truth is Trump must lose in November. SCOTUS made a “conservative” declaration of war on the Constitution by providing a liability free roadmap for a presidential coup in its immunity decision. If Trump wins it’s game over.
I do not think that is the way the US are, but that is what the free expression of money in politics, the media and economics has made the US.
As an outside German onlooker, it feels like the underlying extreme neoliberal ideology of the US is finally taking over the highest lever of power. Thereby exposing it for the world to see more clearly as ever before.
I really feel for the progressive side of the US. Maybe, just maybe, this exposure of the ugly and violent side of the US will get other countries to reconsider their ideology. Or, which might be more likely, they will just, as ever, emulate what comes out of the US. A descend to Barbarism.
The point you make that is echoing from the walls and the rafters is that SCOTUS is corrupt.
No sane person would have said this out loud, even during Trump's reign, when Trump was dismantling the DoJ every week and Bill Barr was lying and misdirecting the media outlets about the Mueller Report, and Michael Cohen was re-arrested in RETALIATION for his plans to publish a book critical of Trump.
The Supreme court was acting more and more biased until like a teeter totter, or a chemical reaction slightly out of balance at first, small reactions, building...
..until...
FULL ON EXPLOSION, Full on Bought and Paid for 6 corrupt SUPREME COURT JUSTICES.
I'm not saying the solution is going to be an easy one, but thank God people are finally acknowledging the problem that as you pointed out started with the Overturning Roe vs Wade, the optimists have left the building, now we just need society to say out loud the Supreme Court with no accountability and no oversight, rules by consensus of the population it governs.
When those laws no longer protect, but serve only to imprison and better control the population the consensus of governing by the governed should be withdrawn. The Supreme Court Rules by consensus. They are Corrupt. They no longer hide it. Consensus withdrawn. Trust in the Court withdrawn.
In the US it was legal to own slaves until 1865 you guys fought a war about it.
In the US abortion was legal for 50 years until 2022. Two years later the Supreme Court has proven itself to be in the thrall of Big Moneyed Donors and the Far Right Christian Ideology pushed by Billionaires to better control the population, an ideology that applies only to the non-Ruling Class.
No one believes a Republican mistress will not get an abortion upon request, but at the same time a 13 yr old rape victim in the US must have and raise a child of rape. The Supreme Court is slow walking the US back to complete control of its citizens, not fair, not unbiased, not humane, Complete.
The haves have never had more, the have-nots, the homeless are being made more and more illegal on paper, and the prisons in the US are for profit organizations.
At what point are you back at slavery?
The Supreme Court acting without accountability, and without compassion, is taking the US back in time, a little at first, then much much further. And the land owners, are eager to donate to the cause, because the plantation owners, sorry the Billionaires, always do well, because their money is in the stock market (also rigged), and the Stock Market always multiplies their personal wealth, every time the economy tries to correct itself, corrupt housing bubble pops, Covid crisis, and coming soon the when the fake Tech bubble finally pops) The Stock Market is always artificially manipulated so that whatever happens to smaller investors, the wealthiest are always protected against losses.
When SCOTUS, the kingmakers, continue to rewrite the Laws nothing immoral is illegal. Dump your chemicals untreated into the environment, anything to keep profits rising. If the rivers become too polluted on the mainland, the richest will simply move to Hawaii or some such less polluted place to live.
SCOTUS is preparing the White House for whomever the Republicans will eventually send to RULE. And I'm glad no one is pretending that the corruption on the Supreme Court is anything other than what it is, a tool to remove the rights from all but the wealthiest. If the Supreme Court wants to travel back in time 1789 had some real interesting happenings in and around the Bastille.
Hypothetically - if Congress were to magically align and find the will and moral focus to legislate in such a way - could they create laws that would effectively supersede the court’s decision, and return the presidency to criminal accountability?
Of course this is about as likely as a sudden appearance by the Flying Spaghetti Monster. But I’m curious all the same.
The answer to this under our institutions as currently constructed is no. Under Marbury v. Madison, the Court is given broad leeway to veto laws passed by Congress. At times that leeway has been restrained by a sense of judicial responsibility but today that's not the case; the modern Court is engaged in pure power politics.
The only real solution is for Congress and the Presidency to meet that kind of politics with power politics of its own. This is of course the Andrew Jackson route: that's their decision, now let's see them enforce it. That could of course take various forms: POTUS could simply declare Marbury v. Madison to be wrongly decided and direct the federal government to ignore the Court. A better route would probably be Congress passing a law that POTUS signs that clarifies the Court's scope for decision making.
FDR's court packing attempt is instructive here: it's widely viewed as a failure because a) it didn't happen and b) there was a popular backlash, but my understanding is that it's also the case that the Court--which up until that point had been pretty aggressively rolling back the New Deal--really did back down when its power was threatened.
> Hypothetically - if Congress were to magically align and find the will and moral focus to legislate in such a way - could they create laws that would effectively supersede the court’s decision, and return the presidency to criminal accountability?
I believe the decision says “no they can’t”. Immunity means immunity.
I think it's really important to remember that the Supreme Court doesn't actually have statutory authority, they have reputational authority. It is likely the case that President Biden and Attorney General Merrick Garland continue to (wrongly imo) respect that authority but that's not a given for any future holder of those offices - Democrat or Republican. It's also not a given that state Attorneys General continue to respect that authority - arguably we have been in a nullification crisis since ~2009 and certainly 2011, with the united front of red state AGs consistently challenging every major piece of legislation passed by the Dem trifecta, and SCOTUS in the main allied. SCOTUS has not respected the *statutory* authority of Democratic Presidents or legislative acts for some time; future Democratic office-holders at both the Federal and state level will increasingly return the favor by not respecting its reputational authority, and thus not blessing it with statutory power.
Tl;dr Marbury v. Madison is bullshit and we should act like it.
Biden should become a temporary dictator in the original Roman sense, lock Trump and several other people up until a group of experts can help him figure out how to unwind the mess, even up to USA 2.0, then step down to let democracy resume as it should be. Extraordinary times require extraordinary measures. This is a matter of life and death for too many!
The first thing he should do if he's willing to become an autocrat himself is seize the assets and positions of authority from the oligarchs that have been running US Democracy into the ground since Kennedy and every president after him started lowering taxes on the ultra-wealthy. Put back a progressive tax system that charges a 90+% tax rate to the top income tiers and work with the international community to shut down tax havens. Put some teeth back into Treasury and IRS and DoJ so they can destroy things like Theranos or FTX BEFORE they tank millions or billions.
The only way to cut out the legs from under the autocrats is to cut off their funding.
Biden's appointees have been making decent strides in this direction despite bad wobbles like packing an "AI" advisory council with dot-com grifters.
I think things are going to be a good deal harder to fix than you describe. The Supreme Court is writing law and constitutional guarantees from the bench to benefit the GOP. They have shown there isn’t a limit to how far they’ll go to support Trump (this latest ruling, which is clearly the opposite of the explicit intent of the founders, is breathtakingly sweeping—it’s an *invitation* to Trump to crush his enemies). He’s the commander in chief. He has the military. It doesn’t matter if the Dems hang onto the House—how can they stop him?
But even Biden winning will only forestall the collapse into autocracy. The SC will clearly not let him govern. If the GOP takes back the Senate, it’s hard to see how they’ll let him seat a cabinet, what to speak of judges. Will the country ever pass another budget? This ruling was the beginning of the end for democracy. I can’t muster a single scenario, given the way the GOP has perverted the system in their favor, that the U.S. hangs onto a functioning constitutional democracy more than several years.
Just really well said. Thank you.
Great analysis but the simple truth is Trump must lose in November. SCOTUS made a “conservative” declaration of war on the Constitution by providing a liability free roadmap for a presidential coup in its immunity decision. If Trump wins it’s game over.
Meh, hope is overrated. I suspect that Trump will win, and that this is really what we are as Americans.
When Sotomayor or Thomas resigns (or shuffles off their last mortal coil) we will be treated to Associate Justice Aileen Canon.
Because that is who we are.
No, hope is deceased.
Maaaaan that makes you more pessimistic than me.
And that's against the rules. As a society, we are supposed to have a broad, collective agreement that Dave-should-be-the-biggest-bummer-in-the-room.
[I sorely wish you are wrong and fear you are right. All I can do in the meantime is make dumb jokes.]
I like your dumb jokes
I do not think that is the way the US are, but that is what the free expression of money in politics, the media and economics has made the US.
As an outside German onlooker, it feels like the underlying extreme neoliberal ideology of the US is finally taking over the highest lever of power. Thereby exposing it for the world to see more clearly as ever before.
I really feel for the progressive side of the US. Maybe, just maybe, this exposure of the ugly and violent side of the US will get other countries to reconsider their ideology. Or, which might be more likely, they will just, as ever, emulate what comes out of the US. A descend to Barbarism.
The point you make that is echoing from the walls and the rafters is that SCOTUS is corrupt.
No sane person would have said this out loud, even during Trump's reign, when Trump was dismantling the DoJ every week and Bill Barr was lying and misdirecting the media outlets about the Mueller Report, and Michael Cohen was re-arrested in RETALIATION for his plans to publish a book critical of Trump.
The Supreme court was acting more and more biased until like a teeter totter, or a chemical reaction slightly out of balance at first, small reactions, building...
..until...
FULL ON EXPLOSION, Full on Bought and Paid for 6 corrupt SUPREME COURT JUSTICES.
I'm not saying the solution is going to be an easy one, but thank God people are finally acknowledging the problem that as you pointed out started with the Overturning Roe vs Wade, the optimists have left the building, now we just need society to say out loud the Supreme Court with no accountability and no oversight, rules by consensus of the population it governs.
When those laws no longer protect, but serve only to imprison and better control the population the consensus of governing by the governed should be withdrawn. The Supreme Court Rules by consensus. They are Corrupt. They no longer hide it. Consensus withdrawn. Trust in the Court withdrawn.
In the US it was legal to own slaves until 1865 you guys fought a war about it.
In the US abortion was legal for 50 years until 2022. Two years later the Supreme Court has proven itself to be in the thrall of Big Moneyed Donors and the Far Right Christian Ideology pushed by Billionaires to better control the population, an ideology that applies only to the non-Ruling Class.
No one believes a Republican mistress will not get an abortion upon request, but at the same time a 13 yr old rape victim in the US must have and raise a child of rape. The Supreme Court is slow walking the US back to complete control of its citizens, not fair, not unbiased, not humane, Complete.
The haves have never had more, the have-nots, the homeless are being made more and more illegal on paper, and the prisons in the US are for profit organizations.
At what point are you back at slavery?
The Supreme Court acting without accountability, and without compassion, is taking the US back in time, a little at first, then much much further. And the land owners, are eager to donate to the cause, because the plantation owners, sorry the Billionaires, always do well, because their money is in the stock market (also rigged), and the Stock Market always multiplies their personal wealth, every time the economy tries to correct itself, corrupt housing bubble pops, Covid crisis, and coming soon the when the fake Tech bubble finally pops) The Stock Market is always artificially manipulated so that whatever happens to smaller investors, the wealthiest are always protected against losses.
When SCOTUS, the kingmakers, continue to rewrite the Laws nothing immoral is illegal. Dump your chemicals untreated into the environment, anything to keep profits rising. If the rivers become too polluted on the mainland, the richest will simply move to Hawaii or some such less polluted place to live.
SCOTUS is preparing the White House for whomever the Republicans will eventually send to RULE. And I'm glad no one is pretending that the corruption on the Supreme Court is anything other than what it is, a tool to remove the rights from all but the wealthiest. If the Supreme Court wants to travel back in time 1789 had some real interesting happenings in and around the Bastille.
Hypothetically - if Congress were to magically align and find the will and moral focus to legislate in such a way - could they create laws that would effectively supersede the court’s decision, and return the presidency to criminal accountability?
Of course this is about as likely as a sudden appearance by the Flying Spaghetti Monster. But I’m curious all the same.
The answer to this under our institutions as currently constructed is no. Under Marbury v. Madison, the Court is given broad leeway to veto laws passed by Congress. At times that leeway has been restrained by a sense of judicial responsibility but today that's not the case; the modern Court is engaged in pure power politics.
The only real solution is for Congress and the Presidency to meet that kind of politics with power politics of its own. This is of course the Andrew Jackson route: that's their decision, now let's see them enforce it. That could of course take various forms: POTUS could simply declare Marbury v. Madison to be wrongly decided and direct the federal government to ignore the Court. A better route would probably be Congress passing a law that POTUS signs that clarifies the Court's scope for decision making.
FDR's court packing attempt is instructive here: it's widely viewed as a failure because a) it didn't happen and b) there was a popular backlash, but my understanding is that it's also the case that the Court--which up until that point had been pretty aggressively rolling back the New Deal--really did back down when its power was threatened.
> Hypothetically - if Congress were to magically align and find the will and moral focus to legislate in such a way - could they create laws that would effectively supersede the court’s decision, and return the presidency to criminal accountability?
I believe the decision says “no they can’t”. Immunity means immunity.
So the only way to correct this would be for a future SCOTUS to reverse the decision, correct?
No, Congress can regulate by legislation.
Yep. In about 2 generations when the MAGA wing retires or dies off. This is the law of the land until then
Or there’s always a constitutional amendment. Though again….. Flying Spaghetti Monster.
Shirley, you jest
Yeah. I don’t expect pigs to sprout wings anytime soon.