Tag: SCOTUS

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Commentary Opinion

Spooky Season

pile of human skulls
Photo by Felipe Hueb on Pexels.com

It’s Halloween. Normally the streets would be crawling with ninjas, zombies, Fortnite characters, strollers, and caffeinated parents. But these are not normal times, the roads are empty for the most part, and death pervades the American psyche to a far greater degree than usual. Those that did take to the streets to seek some semblance of normalcy tonight likely did so on heightened alert for the sounds of sniffles and sneezes. Millions of individually wrapped Kit Kat’s, Starbursts, and other treats will be carefully wiped with disinfectant. Any cough that develops over the next 14 days will likely be cause for anxiety.

Yet even now, while we all await the crest of Covid-19’s second wave (or second leg of the first possibly), the endless avalanche of political ads remind us that life continues. The question is just how much life is left in our republic? Just how deeply has the infection of partisanship degraded our nation. There is legitimate concern that the increasing political tit-for-tat has entered a death spiral. It is very possible that the United States as we know it is already dead and shuffling towards crisis.

The perceived political stakes of every issue facing our nation has lead to a situation where both parties are more than comfortable removing any guardrails to outright majority rule. It has reached the point where they issue outright threats to push the envelope further once they assume the reins of power.

Sen. Mitch McConnell warns Senate Democrats will come to regret the removal of the 60 vote threshold on Presidential appointments.

In 2013, when Senate Majority Leader Harry Reid Went executed the so called “nuclear option” and removed the 60 vote threshold for Presidential appointments, Sen. Mitch McConnell warned of the downstream consequences of removing rules that forced bi-partisan action.

Now, is this to say that Harry Reid and the Senate Democrats are solely responsible for the current situation where Senate Republicans are forcing through Judicial appointments at historical rates on simple majority votes? No, clearly the system had degraded past the point of bi-partisanship at the time. Reid was forced into the option due to political stonewalling of any and all of Obama’s Judicial appointees. Yet it can’t be ignored that the floodgates were opened at that point for complete disregard of previously respected Senate rules. The move laid the groundwork for the appointment of three Supreme Court Justices under McConnell’s guidance. Yet we are nowhere near the endgame.

Obama advocates for the removal of the filibuster during his eulogy of Rep. John Lewis.

We have reached the point of no return. When former President Obama used his eulogy of Rep. John Lewis to press for the removal of the filibuster rule on legislation it was clear there was no appetite to restore the checks on simple majority rule. There is little doubt that within the next several years, perhaps as soon as the next year if Democrats gain control of both the Senate and Presidency, the passage of law in this nation will take place on a simple majority vote.

We stand on the precipice of increasing instability. A reality where the nation could potentially be ripped between two extreme political poles with every change of a simple majority. There will be no stabilizing effect maintained by the Senate.

Where does this leave the nation? It is nearly impossible to maintain any sort of societal cohesion when a plurality of voters will be able to force feed their legislative will on their rivals. It is nearly impossible to craft any sort of lasting legislation without bi-partisan buy in. Each law passed would be subject to immediate nullification following each election, this has dire implications downstream for business and financial markets.

We are left facing a complete degradation of social, political, and financial stability should we continue down this path.

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Commentary News

What Now?

To no one’s surprise, Amy Coney Barrett has been elevated by a 52-48 vote to be the nation’s 9th Supreme Court Justice, replacing the iconic Ruth Bader Ginsberg and entrenching what appears to be a firm 6-3 balance in favor of the court’s conservative wing.

While the court’s ideological split is often discussed as mirroring the political concepts of “conservatism” and “liberalism” that currently dominate our current national discourse, in reality the divide is one of jurisprudence and judicial philosophy. It is not uncommon for “conservative” Justices to rule on a given case in a way that favors a politically liberal outcome ( such as newly appointed Neil Gorsuch ruling in Bostock vs. Clayton County that the 1964 Civil Rights Act protections against discrimination rooted in “sex” also extend to LGBTQ Americans) or for “liberal” members of the court to similarly reach decisions that run contrary to their perceived ideologies. This has not stopped the usual suspects from running to their battle stations (although, to be honest, they really never left) to fire off Twitter salvos decrying pre-ordained legal rulings.

Of course, Mr. Blumenthal is in the thick of things and slinging emotional bombs in all directions.

Now it is clearly not a surprise that Democratic lawmakers are up in arms and decrying the impending death of American society. In their narrative Amy Coney Barrett and the Supreme Court are gearing up, as we speak, to turn America into A Handmaid’s Tale by the end of the next court term.

This is not to say that the country does not stand on the precipice of monumental change, some likely to be brought forth by the new dynamics on the court. It does. But the reason we are on edge is not simply because Donald Trump got lucky or the fact that Mitch McConnell would sell his soul for this very result (he would). It is again a direct result of what has not happened over the last several decades. It is a direct result of the slow atrophy of the Legislative branch, which is quickly becoming the gallbladder of our American democracy.

The Supreme Court is one, of three, coequal branches. It does not lord over our society, crafting America as it sees fit. Does the court wield monumental influence? Yes. Yet the influence of the court can be tempered by a robust Congress. The members of both chambers do themselves, their offices, and America a disservice with everyday spent fundraising in lieu of legislating. Everyday spent turning the gears of the partisan spin machine in lieu of meaningful debate, is a day spent allowing America slip farther from being a functioning democratic Republic by choice and closer to a Kritarchy by necessity.

The Legislative branch needs to make a deliberate effort to turn away from the temptations of partisanship and work to legislate in a comprehensive, bi-partisan manner to keep “Kritarchy” a form of government that requires a Google search, not the reality in America.

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Commentary News Opinion

Posturing, Pandering, and The Supremes

The SCOTUS confirmation hearing exposes just how broken our political institutions have become.

For one week in October Amy Comey Barret took center stage in the ongoing Kabuki theater that grips the nation. We heard gloom, we heard doom. We heard plaudits and praise. And we heard it all in alternating 20 minute soapbox speeches.

The hearings to consider the elevation of Judge Barrett to the Supreme Court are over and gone, receding into the rear view mirror and out of the social consciousness. Yet we have learned absolutely nothing of substance in regards to Judge Barrett’s judicial philosophy. We learned nothing about her suitability to assume a position to the court. We did learn, however, how many different ways one human being can decline to speculate on the same succession of hypothetical legal scenarios.

We have reached a point in this nation in which our descent into hyper-partisanship has rendered the political process almost impossible. Although it would be wonderful to have a series of hearings in which Senators could ask probing legal questions and receive a candid answer from a nominee, the political environment makes this impossible. Any utterance is subject to extreme vetting. Any opinion rendered would be quickly subjected to the Right/Left spin cycle and plastered across the social media landscape. These were not hearings, they were depositions.

Any vacancy to the highest court in the land has now become an existential battle. The Supreme Court was not envisioned as an omnipotent council of elders set in place to rule on and sway policy in the United States. Yet, due to the slow and steady abdication of responsibility by the Legislative branch, this is exactly the position we find ourselves in. The legislative process no longer exists for the most contentious policy questions facing the nation. Gun control, healthcare, immigration. All of these issues have become partisan weapons, issues to stir the base and drive fundraising for the next election cycle. There can be no compromise because there is no reasoned debate. Neither side can be seen to even acknowledge the feasibility of a rival policy proposal so we are left with an endless cycle of political brinksmanship where policy poison pills are tacked on the budgets, or defense authorization acts.

Now, while the legislative process has ground to a halt, the problems facing America do not simply disappear. They linger. So now, in lieu of a robust and collaborative legislative process, the most feasible way to address policy questions is to force a tailored lawsuit through the Judicial system to the Supreme Court. Chief Justice John Roberts, to his credit, has bent himself into legal knots to avoid the court being used as a blunt instrument to circumvent the proper legislative process but this balancing act becomes more and more perilous with each successive vacancy.

In theory, any given ruling by the Supreme Court is not the final verdict on any given policy. The court rules on legality. In a properly functioning legislative body a Supreme Court ruling would be seen as a impetus to craft a law that would pass judicial challenge. Compromise would be made, legal issues resolved. The hearings show just how far we are from that utopian reality.