For those of us who believe the Supreme Court is, at least in part, a political institution, its saving grace is that it moves the law only in increments, is reactive rather than proactive, and must give its reasons and be judged on them. A Court that doesn't do those things isn't worth having.
"judged" with no way to enforce judgement.
Thomas took bribes from right wing oligarchs. Alito bought and raised a MAGA fly on his house. Kavanaugh lied to Congress. Blue state AGs could easily challenge these issues if they wanted to. @democraticags.bsky.social
It's going to take a MIRACLE, an absolute table-run of good luck to EVER change the balance now. And, god forbid what happens in the next 3 years, Trump can actually make it even closer to 9-0.
Anyone can be removed from any governmental body, umm, EXCEPT for Jay Powell.
when he appoints Kevin hassett to a fourteen-year term as member of board of governors ending in 2040, we might want the power to remove
I honestly wonder if appointing a hack to the Fed is going to be a bridge too far for Senate Republicans? Clearly SCOTUS thinks that the Fed is extra super special, and I wouldn't be surprised if the Senate also thinks so...
“…must give its reasons..?‽” Seven grants of emergency relief in the past 10 weeks with nary an explanation!
This SCOTUS is irredeemable.
Are you talking about some other Supreme Court somewhere else? Because the abandonment of precedence is not an incremental approach.
The GOP has worked on what we now call Project 2025 for nearly 70 years. They carefully manufactured the six-traitor SCOTUS majority as an essential element of that effort. Roberts and his pals are earning their pay from their owners!
It’s become corrupted Why fight the court by waiting for the outcome of law if you can buy off the justices outright
It doesn't need to be proactive if it's constantly fed cases by others it would bring if it was proactive.
The legacy of Roberts’s court will be to erase any doubts that it has been fully captured by partisans and that it can no longer pretend to serve the function of an impartial scale weighing merits and evidence on balance in the pursuit of fairness and equity.
' . . . must give its reasons and be judged on them.' Are familiar with the shadow docket, which SCOTUS used yesterday to allow Trump to dismantle the Department of Education, while giving NO reasons for their decision?
also to note- the shadow docket is where 99% of the rulings take place.
“give reasons and be judged on them.” Are we not falling short of realizing these saving graces?
Though to be fair, they haven't been giving reasons in a lot of these decisions lately.
I dunno... ruling presidents can break any law as long as it was an official act is pretty groundbreaking and not incremental.
Roberts Court is proactive, reactionary, partisan, not independent, has stretched judicial review beyond all measures of the founders, is corrupt and illegitimate. Next Democratic president needs to disregard their existence
They haven't provided much for reasoning of late.
Be judged by them? What does that mean when there is no recourse?
It does not have to give its reasons and frequently does not. Reversing Roe was not an incremental move. There is no “saving grace” for this corrupt institution.
You might benefit from re-reading the post you're replying to.
NVM, I see it is habitual.
Why not explain yourself rather than simply dropping a sneering remark, Alex?
This doesn't describe our supreme Court
SCOTUS -> NOTUS
Which sounds very hopeful and patriotic and shit, but have you heard of the shadow docket? This Supreme Court has overturned more legal precedent than any Supreme Court in history, all without argument, giving reasons, or being judged.
This a general, theoretical statement about how SCOTUS is *supposed* or *used* to be, right? Not a comment on the reality of the current Court?
It is, just confusingly phrase by a legal scholar. Social media shrug
This is so unhelpful you know what would help ? concrete specific ideas about what I and others can do to help, to slow Trump
They don’t have to put out a reason for things decided on the shadow docket.
There shouldn’t be a shadow docket in the first place.
Agreed
so how does one get rid of them?
Sir, those words may come back to haunt you, curse you or taint you. 😦
Chief Justice John Roberts has moved this court to authoritarianism; it's my way and I don't have to give you reasons.
So why doesn't some paparazzi follow them around and make their life a living hell?? They did it to any celebrity who got caught being a snake in the grass, these traitors should be world famous....
The Justices should have to accept some full independent assessment of their financials because this is a situation in which they have the position to literally sell America's integrity
Um. In their shadow docket emergency acquiescence to the Fuhrerprinzip rulings they have given no reasons. Only the dissenters who have excoriated the abandonment of Constitutional protections have been heard. And incrementalism is nullified by a rogue felon POTUS and his Cabjnet of goons
A court that doesn’t do those things is a council, a Supreme Council.
*Star Chamber
Does it have to give its reasons? On the shadow docket those rules don't seem to apply.
Except for when it makes a shadow docket ruling without explanation, otherwise, sure…saving grace, etc. Currently, with the exception of a few, this particular bench does not appear to be a court worth having.
The SCOTUS has no saving graces, it must be dismantled and replaced
It doesn’t give reasons when it lets Trump destroy Congressionally mandated institutions, other than "Unitary Executive Daddy"
You need to provide a definition of “things” a court can do. I do not have a jurist doctorate, but I’m fairly certain the SCOTUS is, in total, a political institution now. And they’ve done MUCH…like side with nazi loving MAGAts to destroy women’s healthcare…without any fucking reason!
It's promoting an authoritarian and Christian Nationalist agenda. They are no longer legitimate.
What reason did they give for allowing Trump to move forward with dismantling the Department of Education?
I'll give it one out of four, and that's generous because "reactive" and "has secretly agreed beforehand to find justifications for everything Trump does" look the same from the outside. Big changes. Frequently without explanation. Holding itself unassailable in their lifetime appointments.
I cannot believe how many people are responding to this post seemingly without reading the second sentence
A court in the pocket of special interests isn’t worth having either.
Have you heard about the shadow docket? Because the Supreme Court sure is using it to allow rapid advance of authoritarian authority without having to give any reason or take any arguments.
My friend, that’s the point of his post.
That's what happens when I reply when I'm not fully awake
Not so incremental these days, Dobbs, Pres Immunity, Nationwide injunctions...also no reasons given on many of these shadow docket rulings.
Prof. Helen Norton. scholar.law.colorado.edu/do/search/?q... #US Government lies and the #press clause. By Prof. Helen Norton lawreview.colorado.edu/wp-content/u...
By whom? “and must give its reasons and be judged on them.”
They are politicians in robes.
no explanation means they can rule whichever way they want when a democrat congresses or executive is in power.
This isn’t the time for high-minded rhetoric and I sincerely wish everyone would stop with that. I’m a member of the Supreme Court Bar. The only thing to do with that institution is to tear it down and rebuild a different one in its place. With a different form and new traditions.
Term limits on SCOTUS now.
bsky.app/profile/blue...
The court is illegitimate. It has ceded the legal for the political. The only solution is to rebuild the court, radically.
They must be impeached and the court must be stacked with justices who believe in the constitution.
True enough re "shadow docket" rulings, but does this go far enough? The Supreme Court currently has two sitting justices who have openly accepted bribes from litigants whose cases they were deciding. It is also, at least in part, a criminal organization.
We have 6 rogue justices who overturned Roe. That was not "incremental," it was entirely proactive. You have two justices who should be in jail for openly accepting lavish gifts. You have a chief justice who has granted the president the power to murder his opponents. SCOTUS is corrupt.
No more lifetime appointments to the bench and no stacking allowed
The majority of judges in this SCOTUS are so bought off that the entire Court is useless. It’s just a tool of the regime.
#ReformSCOTUS
It’s rewriting law in its far right image…and screwing all of us in the process.
If the democrats ever regain power. It'll be time to expand the court and bring it back to some assemblance of a normal constitutional court
Each Justice should be required to set down in writing the reasoning behind every single matter that they decide on. No more “without comment”. If they have a hand in decisions that affect us, they need to be accountable on the record as to why every time. And no more lifetime appointments!
The most deadpan comedy ever.
…and therein lies the danger of the “shadow docket” the Conservative supermajority is using so much.
The Supreme Court isn't doing those things now.
Excellent paper on why what is happening at OUR SC is so dangerous. Cynthia Fountaine, Complicity in the Perversion of Justice; SC discussion starts @ p.209. "Hitler did not have to change the law; he just had to get the judges to interpret it in a manner that would further his agenda."
The Supreme Court is defunct. A court that is just following Republican demands
Please stop with the high-minded, coded criticism and say what you actually mean in plain terms.
resistancedirectory.com/links/resist...
But none of that is actually true of the Supreme Court. Is this sarcasm?
It's my understanding that they didn't provide reason when approving Trumps move to dismantle the department of education.
And that's a really low bar. And them "being judged on them" makes absolutely ZERO difference as they are lifetime appointed and answer to no one. There is NOT a saving grace here. However, there IS a DISGRACED supreme court now...period. They've pretty much lost all credibility.
Time to shutter the doors on the current Supreme Court. Bought and paid for by the oligarchs
Maybe there’s still time to delete this post?
Time to democratize Court. How? Sortition is the key: open.substack.com/pub/drpaulze...
Smash the Supreme Court
If the Democratic Party ever hopes to implement policy it first needs to fix America’s tricameral legislature.
In Hamilton's terms: If judging isn't distinct from willing, there is no point to a judiciary. I think we have to say, at least at the moment, there is no point to having a Supreme Court in America today.
There are no reasons given on all of these shadow docket cases though
Yes, at least Congress has legislative history.
Saving grace? Fuck SCOTUS!
you just posted nothing
Justice Jackson is showing us the way
She showed us what, words?
A Supreme Court that enables fascism is worthless.
Rule by executive fiat with rubber-stamp judiciary is just autocracy as told through superfluous interpretive dance.
turns out the constitution sucks ass actually
There have not been explanations
Except it’s making way too many very important decisions on their shadow docket with no explanations at all…
As long as courts remain a political institution, they will suffer from the same nutritional deficit as the legislative and executive branches of government, and amplify existing social prejudices. Courts need to be depoliticized, and follow a binding Code of Ethics, or they serve no purpose.
Like Congress as of late SCOTUS has ceded its power as an independent branch of government to the president. Sadly the Founders assumed these institutions and their people would perform in good faith and uphold the law, but that turned out not to be true.
Their oaths mean nothing
it isnt judged on them meaningfully tho the impeachment threshold makes accountability a pipe dream hence the billionaire luxury trips out and the open
out in the open* jesus lol
OFF WITH THEIR ROBES!!!
"..and must give its reasons and be judged on them." Seriously? Are you not aware that JUST YESTERDAY the majority handed down a decision allowing Trump to eradicate the Department of Education on a whim with literally no explanation whatsoever? I fear for your students. 🤦♂️
Wait, what? I guess I should read my own posts about Supreme Court decisions more carefully.
or I'd say more specifically that court justices which don't do those things aren't worth having
The Chief Justice attempts to maintain the Court's legitimacy by asking Associate Justices to be more collegial. Associate Justices attempt to maintain the Courts legitimacy by calling out when the Court majority is acting politically. These things are related
I taught a chapter of your book today, at ANU in Australia. Saddening (as an expat American) to watch this from afar, wondering whether that Court remains worth having. Students really enjoyed the chapter, but scratch their heads at the sheer madness ... when other models abound.
Thanks! And yes, it's a real question. A certain kind of formalism doesn't know when to stop eating.
The 9 Supreme Court Justices are the most replaceable people in government. The don't have special knowledge or wisdom. Their understanding of precedent is shallow (whether by design?) I know dozens of smarter, more learned, and temperate lawyers who would suffice. But they have lifetime tenure.
I'm down for expanding beyond lawyers, much less Ivy trained lawyers. They have clerks to help with the law, but most of them have no idea how the world works and it shows. Get some folks with other experiences on SCOTUS!
We need to get rid of Ivy trained most things running institutions in our society. These institutions supposedly teaches ethics as a core part of their education and none of them seem to have any.
I think understanding the law is critical and we vet that quality by licensing -- lawyers. But YES to a broader pool of Justices. What happened to *State* Supreme Court Judges? I think Justice Brennan, nominated by Eisenhower (!) was the last State Supreme Court Judge (NJ) elevated to the SCOTUS.
If we can setup a SCOTUS that returns to judging, maybe it's ok to only have lawyers. This SCOTUS pretends they are the experts on science, history, elections, and the list goes on to infinity. Just 1 example but if history guides our law, then we need historians on the court too.
I think this is a critical point, thank you. The system is supposed to allow the District Courts to vet questions such as history, science, etc. through the adversarial process. We especially used that for fact rich and consensus-based sciences like medicine. Now, in SCOTUS it is all YOLO!
the 6 fedsoc Trump-humping justices need to go. The other 3 can stay.
I'm pretty happy with a few of them...
Me too. But still utterly replaceable. Many lawyers and law professors still want to believe that "the law" is what wevimagined it should be rather than what it is. And partisan support of the Republican President vs. Democratic Presidents is what it is. (Biden v. NE vs the McMahon decision)
Supreme Court is a Laughing stock to America. Supreme Court has become Slaves of a Crazy person. They are traitors to Our Constitution. NO KING, NO trumpE would be better off.
*Is dangerously to have.
they are crooks that first got bent from securing Florida for Dubya.
Dodd
"...must give reasons and be judged on them"? are we talking about the U.S. Supreme Court or a hypothetical Supreme Court somewhere in time?
Just put all that in the past tense and you might be on to something.
Well it sounds like you are saying, or at least rhyming with, a notion it's a good thing our Constitution is So Perfect, no matter how bad things may seem right now. Lots of propaganda like that. After Nixon's Pardon some SOB said "The System Works!"
Nope, not in the same universe as my views.
They used to say Slavery would be untenable without the wisdom + restraint of the Southern Gentleman, who they Adver-Stroked into a kind of Moral Superman. Some people talk about the Constitution that way. "Things might suck if the Founders in their wisdom hadn't made sucking Illegal, or required."
Except for the times it gives no reasons for its decisions.
I'm not a judicial scholar, but since there is no opinion wouldn't it be acceptable for lower court judges to essentially ignore those rulings and cite the dissent? Essentially treat it as a ruling with the only party that appears being the dissent and handing out a default judgement.
I don’t think the lower courts can. The hierarchy doesn’t allow it.
I’m no Constitutional lawyer but didn’t Sotomayor give a dissent in the latest ruling? Can’t they at least give the general construct of the reasoning for the majority within the dissent, especially given there is no formal opinion? Maybe it would force them to at least release a counter-opinion?
yes she did. but the majority didn't bother to give any reason why they think allowing Trump to destroy our intuitions was a good idea or even legal.
Why should the burden of explaining the majority's reasoning fall on the dissenters?
I’m not suggestion it *should*, but given they are clearly not doing their jobs, we need someone to step up and make their purpose plain to we citizens.
I’m not a Constitutional lawyer either. All I know is rulings delivered without explanation aren’t reinforcing law or legitimizing judgement—it’s a “this is what we want—deal with it” way of deciding issues.
Agreed. It’s almost as if they just vote without any discussion whatsoever. What is the point of a judicial body if there is no deliberation? I’d love to hear from Breyer whether this sort of process was ever standard practice, back in his day.
Amen
Wow these responses are racist. Pro tip: just like how women can make jokes, Black people can raise counterfactuals as a rhetorical point. Jesus Christ.
Except for the increasingly used "shadow docket" where explanations are almost nonexistent.
Shadow Docket, anyone? Major law decisions with no explanation of their interpretation of law.
In case you haven’t noticed, SCOTUS is making some important decisions these days and not telling us why it made a decision.