This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
(Mods, let me know if I need to delete this and repost in Small Questions Sunday.)
The US Supreme Court (SCOTUS) hears Moore v United States today. According to SCOTUSBlog, at issue is "Whether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states". Since that's not very helpful, I'll quote The Atlantic's summary instead:
Mother Jones, NPR, CBS, and Foreign Policy (of all the friggin' places) are running articles breathlessly proclaiming DOOM! for the US tax code, or at least the ability of Democrats to pass wealth tax laws. This Forbes article seems to be a pretty good explanation of what's at issue but I'll admit that I'm not well-versed enough in tax law to understand the full ramifications of what a Moore victory would mean for the ability of the federal government to raise revenue. On the other hand, I can't say I'm sad about the idea of a wealth taxes getting a bullet to the head. What am I missing or not considering as I read about this from the various outlets?
I'll come out with a prediction that Gorsuch will bite the bullet and be willing to simply follow the letter of the amendment clearly and obstinately. He is, after all, the originator of the buttfore test from Bostock, and the preeminent justice who actually thinks the federal government has to follow the treaties it has signed to the letter. If anyone will read the amendment and declare unrealized gains obviously not income and therefore not taxable, it's him.
Roberts will squish and try to legislate from the bench, saving the way congress currently taxes despite it being clearly unconstitutional and Neil saying so, but that's an easy prediction. It's in his nature, it's what he's there to do, and it's why Bush put him on the bench. Maybe he'll try to steal the opinion from Gorsuch, who would absolutely savage any existing structures if they counteract the letter of the law.
I'm sure all three opposition women will join Roberts in allowing a wealth tax, but I'm at least hopeful Kagan will have a clever excuse. I never expect cleverness from Sotomayor or Jackson, just party-line votes as a good foot soldier.
However, the rest of the conservative wing is up in the air. Kavanaugh is another squish like Roberts, and Barrett seems to be leaning the same way on anything not abortion. You'd figure Alito and Thomas would be pleased to prevent Congress from reaching its tentacles into another pot of gold, but they're also most amenable to business interests, and if the tax code would be flipped on its head due to a decision, I can see either of them ruling to delay disruption somehow in a narrower ruling.
Anyone else care to personally prognosticate?
My typical court-model is pretty consistent with what you laid out there, with the typical shape being:
So, basically, I model the court as three left-votes, two-three centrist votes, two-three right votes, and one true wildcard (that does tend right). This is a very different model in practice than the 6-3 "conservative majority" that is treated as a stylized fact; the actual balance prevents originalist and textualist understanding from obliterating stare decisis altogether, even when the precedent is garbage.
With that model, I will guess that Roberts will guide a 5-4 or 6-3 majority that carves out a narrow decision that prevents expansion of taxation powers in the most egregious fashion while not rolling much back. Gorsuch may well pen a concurrence that's much more strident and Thomas may join him with a "yeah, and also we should burn all this shit down" opinion. Sotomayor or Jackson will pen a leftist screed that amounts to, "but if the conservatives are right, this would stop a lot of taxes that we like!" opinion. Kagan will dutifully concur, but decline to write an opinion because the reasoning is too sketchy.
Is there anything that can be done to prevent such perfidy from the Chief Justice? Is it possible that we have six votes that these people don't owe taxes, but only Kavanaugh and Roberts in the narrow decision while still writing for the majority? I'll admit I don't know the specifics of determining opinions and which opinions are legally relevant and which are just eloquent essays.
While I am not an expert and am under the impression that this is all determined by tradition rather than statute, my impression is that the answer with the current system is that Roberts just has complete (and formally legitimate) power to select the author of the controlling opinion:
Given the fragile nature of Supreme Court composition, this may not even be a bad thing. I personally find it incredibly frustrating that we wind up with rulings that expound on various implausible theories for why only the tiniest change is legitimate, but I acknowledge that an aggressive handling of such matters could lead to court packing or an outright Constitutional crisis. Roberts apparently evincing cowardice may well reflect him being unwilling to throw away long-run advancement of his preferences for the sake of short-run correctness.
So, the members of the Court vote at conference, and the senior member of the majority side gets to assign the opinion (Roberts, as Chief, automatically has seniority, which is relevant if he's in the majority). The justice so assigned then writes an opinion, and so does any other justice that wishes to. Those opinions are circulated, and each other justice signs on to whichever opinion they choose, in whole or in part. Often, these opinions--especially the assigned-majority opinion--go through multiple drafts, which generally affect how much the other justices are willing to endorse. Once the process works its way out, you get final drafts of the various opinions, each with a holding (A wins/B wins) on the outcome of the case, and with the full or partial endorsements of the other justices.
After all of this is done, you can evaluate which side won, and which opinion holds the authority of the Court. If a majority of the participating members of the Court vote that side A wins, then that side wins. If there's a tie (possible with recusals or other absent votes), then the lower court decision stands. In terms of reasoning that holds precedential effect, look for any section in any opinion that is endorsed by a majority of the Court voting in the case. In particularly split cases, there may not be a reasoning that commands a majority at all, in which case the precedent is "side A wins, no specific reasoning controls."
Hypothetical: a case is heard, and at conference the vote is 6-3, with the three liberal women in the minority. Roberts assigns the opinion to himself. Following the drafting process, the Chief's opinion (A wins) is joined by Kavanaugh; Sotomayor writes for herself, Kagan, and Jackson that B should win; and Gorsuch writes for himself, Thomas, Alito, and Barrett that A wins, but on a different rationale than Roberts. In this case, A wins; there is no controlling rationale; but lower courts would give the most weight to Gorsuch's opinion as it has the most support, even if it isn't binding precedent on them.
The justices usually try to make sure that the hypothetical above doesn't happen, because it's not very useful guidance to the lower courts. It can happen, though, if the split between Roberts/Kavanaugh and Gorsuch et al. is sharp enough. In most cases, you'd at least get (for instance) Kavanaugh endorsing Section IIIA of Gorsuch's opinion, in which case you'd read "GORSUCH delivers the opinion of the Court as to Section IIIA, joined by THOMAS, ALITO, KAVANAUGH, and BARRETT, and an opinion as to sections I, II, IIIB, IIIC, and IV, joined by THOMAS, ALITO, and BARRETT...etc." The key phrasing is "the opinion of the Court" vs. "an opinion."
It's true that all of the detail above is the product of centuries of tradition, but the core is rock solid--the Court is a body made of equal-voting members. A simple majority speaks for the whole. If the Chief cannot get four supporters, he's just another guy with an opinion, but if any member of the Court gets four others to agree, they speak for the Court itself.
(Roberts is rather famous for his Obamacare decision in which zero members of the Court joined his opinion in full. Four members joined part of it, and the other four joined the rest, so his full opinion had five votes in each part, but they weren't the same five votes.)
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link