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PaperclipPerfector  7mo ago (text post)   28893 thread views

Culture War Roundup for the week of October 14, 2024

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To set the stage: apparently David French is a progressive liberal, now? I had heard he endorsed Kamala Harris based on his own personal cafeteria Christianity. But on Thursday he also wrote a flagrantly false-consensus-building article for the New York Times, arguing that the Supreme Court needs "reform" in the form of term limits--and furthermore, that this could even be done through legislation without being blatantly unconstitutional.

Dan McLaughlin then took him to task over at National Review, in one of the better discussions I've seen on this issue.

First, to call the Democrats’ proposals “reform” is to take partisan sides by parroting one side’s loaded talking points. . . . Second, these proposals are not “in the air.” They are not emanating from multiple sources in different places on the partisan and ideological spectrum. They are not generated by an impersonal History, before which we must simply stand aside. We would not say that building a wall across the Mexican border is “in the air.” These are the specific ideological demands of one political party. They have been pushed by a particular coterie of activists, all of whom have essentially the same desired policy ends in mind. They arose out of one party’s presidential primaries and its Senate Judiciary Committee members. They were on nobody’s agenda until after Neil Gorsuch and Brett Kavanaugh were appointed to the Supreme Court. We heard a quite different tune in 2016 when Mark Tushnet was arguing for a triumphal march of liberal and progressive ideology through the courts on the premise that “right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents. . . . Those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.”

An honest accounting would be frank about the fact that these proposals came about for only one reason: There’s a conservative majority on the Court for the first time since 1930, and liberals and progressives don’t think it’s legitimate for our side to ever get what their side has enjoyed in the past.

The sole reason we are talking about restructuring the Supreme Court is that liberals and progressives are unhappy with the outcomes of its decisions. That’s the thing. It’s the whole thing. It’s the only thing. It’s the entirety of the thing. It’s 100 percent of the thing. There’s no other thing. And if you are endeavoring now to make a purportedly conservative (or at least non-ideological) case for restructuring, you need to first explain why it is that liberals and progressives being unhappy with outcomes is, in and of itself, a crisis. Why is it not a permissible result of a political process that liberals and progressives get something they dislike? Why is that not legitimate? Why, specifically, does it change the legitimacy of a system that was acceptable when it delivered outcomes that liberals and progressives liked?

French speaks of “instability and anger that harm the court and threaten the rule of law.” Whose anger? Why is the anger of progressives an infallible sign that something must be given to them to assuage it? Do we treat conservatives, let alone MAGA Republicans, as if the mere fact of their anger requires a restructuring of the existing rules to let them win? French typically treats the anger of Donald Trump’s devotees as a problem for the system to resist, not a cause for it to give them more of what they want.

Sorry for the length of that quote, by the way, I'm trying to not just cut-and-past the whole article, but it's really, really great. In particular, something he doesn't say outright but which I noted recently is that Democrats are "doing everything they can to disassemble any part of the system that doesn't guarantee their victory and continued ideological dominance."

Are Republicans doing the same, in reverse? I think I see as much at the state level; state legislatures, (R) and (D), seem to do their damnedest to gerrymander permanent majorities while flying just beneath the radar of watchdog authorities. But something that does not get discussed often enough, concerning the Supreme Court, is that while the Supreme Court has been dominated by progressive justices for almost a hundred years, it has also been overwhelmingly controlled by Republican-appointed justices since Nixon was in office. But for some reason, moving to Washington D.C. and taking a lifetime sinecure tends to shift people's politics leftward. Or, stated a little differently--these people are highly prone to losing what Rudyard Kipling once called "the common touch."

So here's my wonkish take for the morning: The United States of America is drowning in historically unprecedented wealth. This makes governance too easy. Keeping people happy enough to not revolt ("bread and circuses") is trivially achievable. Somehow, you can mismanage cities to the point of transforming San Francisco into an open-air sewer and still maintain total ideological dominance over the voting population. This sort of thing suggests to me that political competition just isn't happening at the object level. Party politics is approaching 100% meta--which could help to explain how a turn-of-the-century Democrat became the darling of Republican populism circa 2024. Politicians no longer offer competing visions from which voters can select--indeed, too clear a vision can be a liability to "big tent" rhetoric! The goal is not to demonstrate one's merits as a leader, a visionary, or an intellect; it is all pure meta.

Here's where someone slaps me with an "Always has been" .jpg, right? But I think that's not quite right, though I'm not sure I have anything original to say about it. I think that, throughout American history, we have had a fair number of politicians of vision and intellect, who established their merit and provided real leadership. Televised debates were probably the beginning of the end of that, but maybe just "mass media generally." We have become a nation in which politics has become the practice of demanding consensus on issues of real disagreement, even when that consensus is flatly contradictory with some other portion of the consensus.

Fake "term limits" where a lifetime appointment becomes "de jure" but not "de facto" justices is not a legitimate Constitutional approach; I suspect it is only being floated because the Constitutional approaches are politically unpopular. While Court packing (or, even more aggressively, Court impeachments) is a legitimate Constitutional approach to reforming the Supreme Court, doing do for nakedly political reasons is politically risky. People may in general be okay with politics at the meta, but if you make it too obvious, people demanding object-level politics start to look less crazy, which threatens to upend the apple cart.

So in an attempt to be the change I wish to see in the world here's an object-level take: I feel bad for David French. I would say he has lost the common touch. I definitely don't go out of my way to read his essays the way I have sometimes done in the past. I think circa 2015 I enjoyed most of what he had to say. His criticism of Trump in 2016 was not unwarranted. But the right-wing meta reacted very strongly against him, and he also gained some wealth and notoriety; he has been on a steady leftward trajectory ever since (not unlike the trajectory of some Republican-appointed Supreme Court justices)--though he maintains that it is others who have changed, not him.

Well, it's possible for two things to be true at the same time.

not unlike the trajectory of some Republican-appointed Supreme Court justices

Let's talk about this.

Thomas and Alito don't seem to be on a leftward trajectory. Roberts, of course, seems to love being the middle, or the counterbalance to the right. Kavanaugh seems cut from the same mold, thus far. Barrett I expect to swing leftward on everything and anything not abortion, and in particular I expect her to undermine any anti-immigration or tough-on-crime policies that come before the court, especially given the makeup of her family.

And then there's Gorsuch. Neil "We will abide by the treaties" Gorsuch. Neil "Butt-for Bostock" Gorsuch. Is he shifting to the left as he moves from Colorado to DC? Or is he simply ornery and stubborn in his own interpretation of the laws? To me, it comes down to his rulings on gun rights. There's no way you can read the Civil Rights Act as guaranteeing protections for transsexuals, but not read "Shall not be infringed" as forbidding pretty much every gun law in the land.

Of course, none of them have tried to take an axe to the FISA courts or curtail the massive surveillance state on third or fourth amendment grounds, so I'm not actually hopeful that I'll see a constitutionalist on the court in my lifetime.

Speaking as a left-leaning social democrat who dislikes all the Republican judges for obvious reaosns, Gorsuch is the only one who actually seemingly has an identifiable philosophy ala Scalia (except actually better) that I can at least respect, even though I think it's personally terrible. Maybe Thomas did 20 years ago, but he's fallen into a FOX News brained duo alongside Alito for basically the entirety of the Trump era.

Man, I've been a Thomas fan since Law School, and I think what we're seeing now is a guy who has almost all the same convictions he did 30 years ago, but he's finally gotten to implement them rather than just writing terse and pithy dissents.

There HAS been an uptick in reporters and other platforms attempting to make Alito and Thomas' conduct off the bench out to seem somehow abberrant and worthy of removal, though.

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