You're making this a lot more complicated than it needs to be Ross. The Democrats can easily regain the presidency and a majority in the house and senate, and therefore, they can appoint future supreme court justices. All they need to do is focus on presenting and implementing policies that promote economic opportunity, education, and healthcare for middle class Americans. Or, they can continue their screeds against Trump, continue their identity politics, continue their infatuation with sanctuary cities, continue to advocate the elimination of ICE, and so on. This will keep them in the political wilderness indefinitely. It doesn't take an evil Republican genius to beat Democrats that keep advocating ideas that most Americans don't like.
17
Yes, the right has devastated our government, as soon as they could - the EPA, the Land Management Bureau, the CFPB, George Bush had already trashed the US Post Office with is ridiculous financial constraints, Homeland Security, the miltary with it's fat fat budget, - yes, the right has devastated the government, they have remade it as they saw it..congratulations, No-One, absolutely no-one was a viciously craven as Scott Pruitt, no one has ignored emoluments like Trump, no wife has been more silent and openly betrayed than Melania ..It is not how we wanted it it, it is how the repubs saw it and made it so, as soon as they could. On your head be it, Douthat - just wait until your young relatives are old enough to understand how you have gaffed democracy, reeled it in and killed it..
11
It appears that part of Mr. Douthat's theme was that liberals complaining about minority rule were being hypocrites. He then goes on to cite exactly zero times when Democrats controlled the Senate, the House or the White House while getting fewer votes than the Republicans. Giving representation to land, rather than people was an undemocratic mistake by the founders and that mistake has caused many of our problems. It will never be undone, but it needs to be.
17
Requiring a super-majority for Senate confirmation helps prevent the Supreme Court from becoming too extreme.
Impeaching a Supreme Court justice would help restore moderation when the Supreme Court has become too extreme.
Today is different from the past examples cited. Wholesale abandonment of the rule of law and the Constitution is new. And steps need to be taken.
And don't forget the elephant in the room: Russian propaganda changing votes before they are cast (already proven) and Russian hacking changing votes after they are cast (likely Mueller probe revelation).
Any talk of our democratic institutions is meaningless if we can't protect them from Russian influence.
11
About 3 decades ago (you know you're old when this is the unit of past rather than mere years) in a used book store I came across a title, "The Most Hated President, Ever" To my surprise it was about FDR.
I thought everyone loved him, my first memory being the announcement of his death. I would say that FDR was the Trump of his era, increasing taxes to distribute it among the poor, which would obviously mean these people would vote for his party.
No one had thought of doing that before, but he had the charisma, and the "social media" of his era, the cheap radio, where his soothing voice could reach into everyone's home. He even went to far as to attempt to pack the Supreme Court in 1937, something even his own party's Senators refused.
Between him and Truman, there were 20 years of Democratic Justices appointed, and then Ike's pick, as he said, his worse mistake ever, Earl Warren. The penumbrae of those selections changed our country in profound ways.
The hatred that had been overt against FDR, turned out to be simmering among many. Our focus on the bizarre character of Donald Trump means we can't even see the nature of the fuel that he ignited, the rage against the direction of our country for the most part of a century now.
2
My little voice unbacked by gobs of money is almost silent . Douthat's voice will be unheard unless he spouts his party's line and those of his rich corporate masters. It is the rustling of money that is heard loud and clear.
Ironically, it was the outgoing voice of the Republican Eisenhower warning us of the military industrial complex the harbinger of the oligarchy that rules us today that is so clearly heard today. The elite conservatives hated FDR as he attempted to lift the drowning masses because it meant that the rich would be made to contribute a little more and the poor and middle class would find a voice.
Since then there has been a battle going on between those who want return us to the gilded age where money meant power and progressive ideas that would give every person an equal voice. Trump says he wants the latter, but does everything in his power to bring back the former. Conservative judges like Gorsuch and now Kavanaugh apologize saying that the Constitution upholds rank and privilege as guiding principles, and things like free speech were only meant for them. Is this a democracy or just an oligarchy authoritarian society on steroids? We are on the verge of losing everything we the little guy have gained. Is this what Douthat wants?
12
There are two types of Conservatives: Trump besotted I could-care-less-about-America-and Americans who refuse to do anything to constrain Donny, and Conservative of another generation who could bargain and pass laws that meant something to both parties.
Conservatism needs to be redefined. It needs to be reminded that it has a country to uphold. Not just the wealthy either. Ryan Congress and McConnell Senate represent a political system that is rotting before our eyes.
12
Has Mr. Douthat overlooked an era of American History? Specifically, the time when slaveowners reigned supreme? And, Chief Justice Roger Taney issued the Supreme Court’s Dred Scott decision?
3
I just want Kavanaugh to keep In mind that we were created as a secular nation by founders who admired reason more than Bronze Age mythology.
9
This is an absurd attempt to create an equivalency where one does not exist. Yes, there have been times when the Court was more liberal and viewed with suspicion by conservatives. But here's the rub: liberal courts have traditionally EXPANDED civil rights and ensured that Americans—regardless of their race, gender, religious beliefs, or sexual orientation—can vote, marry, and be treated fairly in the public sphere and by private businesses open to the general public. Unless you are a bigot, this is a good thing and consistent with our founding principles. Extending basic civil and human rights to minorities and historically marginalized groups does NOT take those rights away from those who have always enjoyed them. It simply makes things fair. But that basic fairness is very much in question with a Supreme Court whose "conservative" members appear to be rather activist when it comes to striking down precedents that protect those who aren't wealthy white men. Their bias and recent rulings do not make things more fair for all; they enable bigotry and threaten to consolidate power in fewer hands than this country has ever seen. To pretend like this is just the other team's turn at the wheel is purely theoretical exercise and one that ignores the regressive and potentially appalling consequences of their rulings. If you're shrugging at the change, I'm willing to wager that you're a straight white male with health insurance.
17
Sorry Ross, but any attempt to normalize what Republicans have done over the past 20 years by stating (essentially) “The Dems did it, too” doesn’t cut it.
The Republican Party has gone completely off the rails and what we have is minority rule by those who wish to cram their world view down our throats. The actions of these clowns gets more alarming by the day.
I’m a Christian, and I’m horrified at the “Christian values” of these people. The Constitution forbids a state religion, but that’s what these disengenuous jerks want, and one bearing little resemblance to the teachings of Jesus.
I agree with you on one point, although you didn’t discuss it much: Gerrymandering. It’s at the heart of our current minority rule. It’s an abomination, and wrong no matter who does it.
There’s got to be a way to evenly distrbute representation across our states, with neither side having a say in it. We need a “demographic blind” method, not the blatantly partisan districts we have.
We’ve become an oligarchy, Ross. Nothing about our current situation is “normal.”
17
Partisan America dislikes opposition, but the liberal left dislikes it even more than the conservative right. When the Democrats have the majority, the Republican's voice their resistance, but they generally just grumble and work on their strategy. When the Republican's gain the majority, its armageddon, by any means necessary, "he's not my president," etc. The Democrats want a "head's I win, tales you lose,' political system where they always have the power, which is why I find it amazing that Democrats accuse the right of fascism. The liberal left refusal to tolerate the majority opposition is textbook fascism.
And most reasonable voters understand that, politicians, like your underwear, should be changed regularly and for the same reason.
The Republican's have to deal with Obamacare, the offspring of the Democratic majority, and Democrats have to deal with an ideological shift in the SCOTUS. If the Democrats want their say, work on their strategy for November.
5
Mr. Douthat reminds us that anyone old enough and with a decent political memory ought to recognize a similarity in left-of-center concerns about the current status of the Supreme Court to those expressed by The Right for the past several decades. But to suggest any equivalence between the two is sophistry.
It's fair to argue that, over the past several decades, The Left has been spineless by leaving it to the courts to decide points of law better left to those elected to make laws. Yet, for one to not recognize that the pre-Roberts Supreme Court, through its rulings, was largely delivering a well reasoned point of law that reflected the sensus communis, rather than a narrow ideological position at odds with the spirit of the whole, is to deny reality itself.
The Right argue that the court lost its way with Roe V Wade; The Left, with Bush V Gore.
What seems clear is, if Kavanaugh is successful, for the first time perhaps since The New Deal, and certainly since The Great Society, this country will have a very "activist" Supreme Court with a jaundiced view of precedent. And this is an argument that is solely one that The Right owns and now wholly abandons in the most raw power grab in modern American politics.
8
Such an odd argument you make Mr. Douthat. You write that it is likely that the Conservative dominated Supreme Court will rule against the wishes of most Americans, yet you cannot hide your glee in their judicial ascent. Your tribalism is destroying this country. You mock "liberals" with a sneer, but don't seem to realize how much your own partisanship endangers this country. How convenient that you focus on the Kavanaugh appointment rather than your President's cozy relationship with Putin and his unique assault on American value, institutions, and legal norms. You, my friend, are lost in the weeds.
12
The Supreme Court has truly become an openly political body, a replacement for a failed legislative branch, capable of and in practice amending the constitution without citizen input
In any dictatorship the first thing the dictator does is abolish or change the Supreme Court. That is happening here with the active support of the Justices. Kennedy retired with the specific goal of moving the court far right for decades.
Such extreme activism should scare both parties
Next step is to dissolve Congress. They won’t be missed
4
It would be interesting to see whether RD would be a single issue thinker, like many voters when they voted Trump because he was supposedly anti-abortion. What if a situation arose whereby Ross could get nearly all of his beloved conservative principles, except that it would validate a woman's choice to continue or not a pregnancy (Yes, you can be a conservative and decide the issue is one a woman should decide). Which would he chose? Would he be the ultimate activist jurist, asking the Supreme Court to decide metaphysical questions like what is life? Or would he be practical and see Nature or God (call it what you will) decided that women can and do make this call all the time.
2
In a climate of intense division, Mitch McConnell refused to allow a vote on Merrick Garland--a relative moderate--and Trump has nominated two ideological hardliners to the court. The Right fully intends to rule by power, not by persuasion. On their heads be it. Eventually, with no other recourse, protesters will put down their signs and pick up bricks.
10
Ranae Gage - Your first point is worth emphasizing. The people who are driving SC appointments now view judges like Merrick Garland as extreme because there IS a great distance between them - but it's the distance between far edge of closed-mindedness on the one hand and the middle, neutral position on the other. This is not a choice between antipoles. Everyone wins (well, except the mob and corporations) with a justice like Merrick Garland. Seating someone like Neil Gorsuch or Brett Kavanaugh is a "win" in the perceived tug-of-war against the imaginary bogeyman called "the "liberal" but it's actually a case of shooting oneself in the foot. Maybe "cutting off one's nose to spite one's face" is the better metaphor.
As for the bricks, not me.
4
Every time conservative politicians defend Trump's toxic spew, or undermine or denigrate the investigation into Russia's attack on our country's election, they have shown what they and their party stand for. They don't stand for our Republic, and they don't for our Constitution. I'm a liberal because the alternative required giving up my patriotism and my conscience; no thank you.
5
Sophistry by a conservative apologist and obfuscator. "First, it would be wise for liberals to recognize that neither a judiciary out of step with democratic majorities nor an electoral advantage for one political apparatus are new things in American history — because when the Democratic Party dominated American politics both were important aspects of liberalism’s rule." When did a Democratic majority leader refuse to bring a Republican presidential nominee to the SCOTUS a chance at confirmation? When did a Democratic-controlled House of Representatives conduct ludicrous hearings comparable to Benghazi and now the Mueller investigation? The latest "hearing" questioning an FBI agent was a partisan disgrace to the Republicans in the House and disgrace to humanity.
2
Mr. Douthat's columns often leave me speechless, much like the Republican reaction to (is he really?) our president Trump. His election to the office is questionable! It's under investigation, with many indictments so far. The Russians played a part (we have yet to know how big) in his "win". It's not too much of a reach to say that Putin has a hand in nominating Supreme Court Justices.
Everyone knows Pres. Trump insults, weakens and alienates our allies, strengthens autocrats around the world, but what is his strategy going forward? To keep those allies in line with his desires, thus making him the strongest of the autocrats? Bending the world to his demands? I know that sounds crazy, but I thought it was crazy that he was even nominated, much less elected.
5
Ah, the master of the false equivalence lands another doozy! So tell us, Ross, all about how the Democrats, when they had legislative majorities, passed all sorts of voter suppression laws to disenfranchise Republican voters, and how they refused to even hold hearings on SCOTUS nominees from Republican presidents.
3
I am so sick of the dups of the Plutocracy/Oligarchy ruling this great Nation.
Yes I am talking about the GOP.
By membership a MINORITY Party buoyed by regressive, reactionary, racist (in some sense), fascist (in some sense), and/or non-secular evangelical forces - a MINORITY of us.
Cleverly but duplicitously the GOP has ceased elections and the narrative.
They've captured them by technical tactics (e.g. redistricting and voter suppression, capturing/controlling propaganda apparatus, etc.).
By exciting the more primal instincts of fear, bigotry, tribalism, and authoritarianism in those prone to such.
By somehow giving tolerance, understanding, compassion, common morality/ethics, and unity/human kinship a bad name.
By not playing by the rules of LOYAL opposition ever.
By sowing apathy and cynicism by lies, distortions, and sophistry so non-GOP voters sit it out thinking its useless.
But I ask this - what do the so-called Conservatives really fear from a "liberal" SCOTUS?
What you do not like? The fact that a so called "liberal" court will take individual freedoms seriously?
Or that is protects the weaker from the more powerful?
Or that it defends social minorities from the prejudices of the majority?
Or that it defends a person's right to modern autonomy over body?
Or that it does not let personal theology set the rules without honest secular logic behind the rule?
What liberal thing is so bad? Medicaid? Medicare? SSI? CIVIL RIGHTS?
5
Ross, you miss the point completely. Liberals don't pine for the days when they were in control of everything (as you mischaracterized previous eras, without any supporting facts). They don't want power just to have power. They want good government implementing good policy that keeps our country operating in ways that benefit the most people. They know that judicial activism to be expected from guys like Kavanaugh will make that impossible for a long time. For now, go ahead and enjoy your thinly-veiled glee at the liberals getting beaten down. Just be careful what you wish for.
6
There is a fundamental fallacy in your argument, Ross. The liberal position was never in the minority -- just silenced and disenfranchised. A quick glance at the history of US jurisprudence will show you that as each 'invisible' and marginalized group fought back for its place at the table they became visible: blacks, women, the downtrodden, the disabled, gays. That's what sticks in your craw -- that we have become visible. What you reveal is my fundamental beef with conservatives: you simply cannot see, leave alone empathize with, the others' viewpoint and are therefore incapable of a basic sense of justice. Even a child is taught the fundamentals of ethics through the question: "How would you feel if ...?" No way are liberals in the minority in this country -- not now, not ever. People steeped in enlightenment thought fought against the authority of a monarch, wrote the Constitution and strengthened this country step by step. That is, until money started talking big time in politics and a small minority of oligarchs gained a chokehold on this country. Now greed and selfishness have become acceptable in civic society along with the dishonesty needed to paper it over. But ultimately, have no fear, the liberals will triumph because the human spirit chafes under control and tyranny and (as HRC implies in the link you provided) human curiosity and science are what lead to lasting prosperity.
4
Your argument Ross in a nutshell:
Liberals play a bit fairer, use nuclear options less often, have national, not partisan, interest a bit more often. Why do they complain? It is their fault, isn’t it?
2
Mr. Douthat underplays the increasing entrenchment of minority rule in the U.S. A. For example, according to the Demographics Research Group, Weldon Cooper Center for Public Service, University of Virginia (one of several institutions studying this trend), in roughly 20 years, 30 percent of the population of the country—mostly midwestern and southern, mostly white, mostly Republican — will control 68 percent of the seats in the U.S. Senate, and thus, the power to shape the Supreme Court and national policy. Put more starkly, a little less than half the population of the country will control 84 percent of those seats. Factor in the framers’ decision to grant each state, regardless of population, 2 senate seats, and you have the political imbalance of a state like Wyoming (population around 500,000) given the same political clout as a state like California (population approaching 40,000,000). Of course, the Democrats are steaming and screaming about minority rule — with good reason.
3
This isn't the first opinion piece I've seen that's premised on a war of "liberal"/"conservative" tit-for-tat Supreme Court nominations. The irony is that by playing tug of war over those labels, people forget that they, too, benefit from decisions like, oh, the Warren Court's. In fact, it would be more accurate to say that a Court loaded with the likes of Neil Gorsuch and Brett Kavanaugh is the opposite of one that defends the rights of the individual against the power of the mob or the corporation, that in general strives to interpret the Constitution as a fundamentally humane document rather than just an ice-cold collection of words. For decades, the meaninglessnessification (begging your pardon) of the term "liberal" has been a tactic to encapsulate and attack the "other side." In the context of the Supreme Court, the self-defeating nature of that strategy is brought into sharp relief. I think "liberal" versus "conservative" is a false dichotomy that serves political gamesmanship but hurts the country. Mr. Douthat skips past "race and segregation" to focus on "the entirety of the culture war." But it bears consideration that a court such as we're about to have would not have produced the same Brown v. Board of Education or Gideon v. Wainwright or Miranda v. Arizona or Griswold v. Connecticut, and on and on. Nominating people like Messrs. Gorsuch and Kavanaugh is ideological in a shoot-yourself-in-the-foot kind of way and its only "advantage" is in that silly tug of war.
1
Douthat's point in the eighth paragraph that the old Democratic coalition enjoyed larger congressional majorities than its share of the popular vote is invalid (as a glance at the Brookings link demonstrates). The Democrats have never had a House majority with less than 50 percent of the popular vote. But today the Republicans have 55 percent of Congressional seats with slightly less than half the popular vote--in other words, a majority of the seats with a minority of the popular vote.
3
Ross, what’s your point here other than the obvious: that we live in a juristocracy; Kavanaugh will intensify it, and conservatism will embrace “voting restrictions and judicial activism at every opportunity”? The “neutral reforms” you suggest are moot in this time of cultural civil war, and their possible effectiveness is mere speculation as they would be vulnerable to partisan manipulation and dilution.
I think your meaning lies between the lines, only hinted at. What the “juristocracy” will likely do is aid and abet your dream of theocracy. It may restore “longstanding features of American life — ecumenical school prayer, Christian-influenced morals legislation” - and more: perhaps drivers’ licenses stamped to prove we have been baptized before we can vote.
Conservatives tend to have mythical, idealized views of history. They presume 1) that everyone in the US was Christian, and 2) that Christian morals were socially effective. But to whatever extent Christian morals were “in place,” they were typically only given lip service and used instead in service of a devil’s list of evils like genocide, slavery, greed and hypocrisy. Ask the slaves, Native Americans, or any non-white about Christian “morals.” Their value was chiefly to mask the tumultuous conflict that was reality – workers v. owners, masters v. slaves etc.
The revival of school prayer and a Christian moral agenda would tear down the fragile wall separating church and state and install Christian fascism.
6
I grew up in conservative, rural New England. We never had prayer of any kind in school. The ten commandants were never displayed anywhere. People went to church or not. It was considered no one else's business. A Jewish friend who lives in Texas had to take her son out of public school a few years ago because his teacher kept urging him to "open his heart to Jesus." Complaints to the teacher, principal, and school board went nowhere. What Douthat seems to want is a Christian theocracy. Considering the importance of the separation of church and state to the founding fathers, actively working to promote such a thing, instead of insisting on the necessity for a civic arena free of religion, strikes me as downright Un-American.
6
Ross : recognize what the Supreme Court is or was - the Constitution doesn’t mention that the court can overrule acts of Congress and the President . The court took this upon themselves in Marbury v Madison . The court is not elected and more often than not makes horrible decisions: Dred Scott, Korematsu, Citizens United .
Restore democracy by either packing the court when a Democratic Senate is achieved or sticking to its original meaning in the constitution
3
Arguing against Marberry v Madison? Are you a Whig?
The Justices who voted for Brown, Roe, etc. were not appointed specifically to accomplish that purpose. They were appointed as generally competent judges and reached those decisions based on the arguments presented to them by the litigants--the decisions were not preordained by the ingrained politics of the court. Kavanaugh and the current crop of mostly conservative Catholic justices appointed in recent times by Republican presidents are chosen for their political views, and their political views (1) largely come from their religious beliefs and (2) predetermine their legal views. Considerably different, wouldn't you say, Mr. Douthat?
7
"They were appointed as generally competent judges and reached those decisions based on the arguments presented to them by the litigants"
Judicial decisions should not flow from the "best" arguments (whatever best may mean). They should derive from LAW. Arguably Brown, but most certainly, Brown's school busing progeny did not flow from law.
As to Roe, no one believes that such a decision could have derived from Constitutional law. Read the decision. Nothing about law. Everything centered on penumbras.
2
While Ross makes some good points, his argument fails to hold water. The activism of the Warren Court made America more majoritarian, not less. It removed barriers to political participation by blacks and other minorities and established the seemingly obvious standard of one man one vote. Ross decries decisions that swept away "Christian moral legislation," but most of those rulings either had or quickly gained strong majority support. Safe and legal abortion, which has consistently enjoyed 60-plus percent public backing since Roe vs. Wade, and the right to birth control (Griswold vs. Connecticut) are two examples.
The GOP-dominated court of recent years, by contrast, is doing the opposite. Its decisions on voting rights, gerrymandering and campaign finance law are making the nation less majoritarian. In doing so, they are cementing in place and even amplifying the electoral power of declining demographic groups, making us steadily less majoritarian. Kavanaugh's confirmation will almost surely accelerate this troubling trend.
4
Legislation from the bench must stop.
How is that a partisan proposition?
1
Douhat's mistake is that he assumes that there is a moral equivalency between a 'liberal' count and today's illiberal court. A left-tilting court would have protected the Voting Rights' Act, ruled away from gerrymandering and corporatist take-over of election finance. Protecting democracy is important, because winning it back has never been a parlor exercise.
We see the same moral-equvalence pouring from the right, and even yet from the free press' attempts to be 'fair minded'.
To re-spin Barry Goldwater, equivocation in the defense of justice is an insideous vice.
4
The article uses the word "liberal" eighteen times, mostly dismissively. I believe that describing every issue in liberal/conservative terms is not productive. Those of us who consider ourselves moderates seem to be invisible at best, despised by both extremes at worst. Like Gen. Colin Powell, I consider myself a fiscal conservative and a social moderate. In the last election, I could not in good conscience vote for either major party candidate, Mr. Trump because of his many unacceptable actions and statements, and Ms. Clinton because of baggage like the Marc Rich pardon (she took major donations from his wife) and exorbitant "speaking fees" from Wall Street firms. (Yes, I did vote for a candidate whose platform I agreed with.) But I respected President Obama and could have seriously considered people like Gen. Powell, Secretary Robert Gates (both Republicans), and similar serious, thoughtful, individuals who put country above party. I suspect people like that are too intelligent to run.
3
Hillary Clinton speaking fees are no worse than any Republican would do.
And so many Republicans complaining about those speaking fees would gladly vote for one of those Republicans.
The venom against Hillary on the right is not about principle. It is about 25 years of Fox News.
I have neighbors who still believe the Clintons had Vince Foster murdered.
Then there is Pizza-gate.
4
Maybe when the Dems win in 2020, they'll just take the position that it's time to overrule Marbury v. Madison, the most activist judicial decision of all time. Nowhere does the Constitution expressly give the Supreme Court the right to have the final decision. Jefferson feared the Court would become a political oligarchy and rightly so.
6
That's quite a stretch. You are basically saying the constitution is useless. That is NOT a position of the Democratic party. Are you a Russian?
I'm a liberal United States Democrat who objects to the stealing of our democracy. President Thomas Jefferson (pretty sure you've heard of him) said:
"You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves"
This author appears to try to use the argument that liberals are doing the same as conservatives. At no point in history of the US did a Senate highjack a nomination by simply refusing to do its constitutionally mandated job (McConnell refusing to allow even a hearing on Obama's nominee), and create a convenient lie to say essentially - "We are in control, so we don't have to do what we don't want to do." This is the key difference now, such that the conservative minority (and make no mistake, very much a minority in this country) has wrested ideological and political power simply because they could do so without political repurcussions. Almost like they were "in on the fix" (remember, McConnell and Ryan had been briefed about the Russian interference in the election during 2016, and threatened the Obama administration to prevent it from being revealed or acted on effectively in real time.) So, enough with the false equivalencies. Hitler lead a small but determined minority in 1930's Germany, and took full advantage of the opportunities that arose, some of them illegally (e.g. the burning of the Reichstag by his followers and declaration of an emergency thereafter, vilification of Jews, Gypsys and others to act as scapegoats for the economic woes of the population, etc.). There is an equivalency that is playing out now under Trump and his ilk in Congress; not one that "the other side does too."
7
where those democratic dominated majorities as nasty or vicious as this bunch of religious zealots and fact free fanatics?
8
oops....were, not where
Celebrate the richest of the rich. We give them all, and promise the Douthat's of the world "freedom". Free, dumb, and broke.
5
Term limits for SCOTUS. Expand the House.
Amazing how flexible liberal Democrats at the NY Times become when they are out of power.
Weren't these ideas around during Obama's 8 years.... oh... then they (the liberals) were in charge and reform was "not needed" (wink wink nudge nudge say no more).
2
And where were you when the GOP staged a coup and denied President Obama his constitutional prerogative?
1
Ah yes, alternative facts, ie. lies.
The swearing in of Kirk finally gave Democrats 60 votes (at least potentially) in the Senate. “Total control” of Congress by Democrats lasted all of 4 months. From September 24, 2009 through February 4, 2010…at which point Scott Brown, a Republican, was sworn in to replace Kennedy’s Massachusetts seat.
The truth….then….is this: Democrats had “total control” of the House of Representatives from 2009-2011, 2 full years. Democrats, and therefore, Obama, had “total control” of the Senate from September 24, 2009 until February 4, 2010. A grand total of 4 months.
Did President Obama have “total control” of Congress? Yes, for 4 entire months. And it was during that very small time window that Obamacare was passed in the Senate with 60 all-Democratic votes.
Did President Obama have “total control’ of Congress during his first two years as president? Absolutely not and any assertions to the contrary…..as you can plainly see in the above chronology….is a lie.
So what is the conservative reason for not putting in term limits now? Wink and nudge all you want, but Monty Python abhorred conservatives.
4
I understand the gist of the article but I would like to raise a point. The Majority does not always win in our Democracy. We have a Constitution that protects our rights in the first Ten Amendments, for example. If the majority seeks through legislation to interfere with Freedom of Religion , for example, we look to the courts for our protection.
Many of us are old enough to remember the same Democratic gnashing of teeth when Reagan was elected, and Justices Souter, O'Connor, and Kennedy were appointed. Listening to this pattern of repetitive crying wolf is becoming exhausting, and the world continues.
2
The Founding Fathers, in contrast to the typical NY Times commenter, recognized the the most important understanding is that the unchecked power to do right is exactly the same power that does great wrong. Their intention was not to try to always elect saints, but to limit the power held by both saints and devils to do wrong. Hopefully people on both sides will get reacquainted with this fundamental principle of our country.
3
....the difference being, obviously, the liberal justices were appointed by legitimate presidents.
9
The Supreme Court is a historical anachronism more appropriate to Roman times, filling a role similar to that of the Oracle of Delphi as the final decider of all things important. The notion that nine old and wise people should serve in perpetuity deciding the laws of the land is absurd on the face of it. FDR saw how ridiculous the notion of a supreme court is and he expanded the number of justices to suit his purposes. It is clearly way past time to look at either getting rid of this judicial craziness, restore the will of the people and the rule of reason and common sense.
2
Democracy is in peril. McConnell hijacked a democratically elected president’s prerogative to appoint Supreme Court justices. Let’s never forget how, under McConnell’s leadership, the eminently qualified Judge Garland never got a hearing or even meetings with GOP Senators. This unprecedented, outrageous, and unconstitutional move is the context within which Judge Kavanaugh’s confirmation occurs. There is no equivalent for this fix we’re in. It’s astonishing that Douthat’s analysis is absolutely silent on that score.
3
Please. Ross. The left is unhappy because the shape of the court is being determined by a stolen SC seat in what probably was a stolen election. The conversation begins and ends there.
7
Once again, a pundit conflates the Democratic Party with liberalism. Surely today it seems perfectly clear that the Republican Party is the one and only home for conservatism. Yet it wasn't always. That "super majority" that the Democrats held in the mid-1970s, and much of the Democratic Party prior to that time frame, contained some of the staunchest social conservatives in American history. The KKK was, indeed, comprised mostly of Democrats. Yet they were all conservatives! Meanwhile the Warren Supreme Court and others since may have been contrary to majority thinking, but they were doing what the highest court was designed to do: bend in the direction of true American ideals: liberty, equality, justice for all, They were rightfully countering the "tyranny of the majority" in its oppression of the poor, women, people of color, people of different or no religious belief, people of different sexual orientations, the environment, etc. While the conservative court built by Reagan, the Bushes and now bolstered by Trump threatens to do the opposite: bend American law back toward discrimination and oppression, back toward oligarchic rule, back toward legalized injustice, back to disdain for the environment, now thwarting the sense and sensibilities of the majority of American citizens to assuage the beliefs and behavior of a tyrannical minority.
2
Exactly. It also should be pointed out that those pre-70's conservative Democrats were largely southerners who due to the civil-rights act of the 60's became and took over the Republican Party to bring us ultimately to where we are today. The writer seems to be making the point indirectly that the conservatives are doing wrong in both cases. In the past they saw "activist judges" moving the country where the overall national majority wanted to go and stop local political majorities imposing Jim Crow injustice on local minorities and they have reacted by "fixing" the Supreme Court with a "stolen" seat and a questionable president that will allow a minority (local majority) view to impose its will on the majority again. That does not sound like two-wrongs but only one big wrong!
1
It seems to me that there is some false equivalency here. it is one thing to talk about liberal vs conservative principles in legal circles, but the assumption is that there is fundamental integrity to the process. The current environment is different. The Republican president is a pathological liar and Republicans have systematically attempted to subvert legal processes in the Department of Justice's investigation of Russian interference in the last election. Add to that the Merrick Garland shenanigans and you have a governing class that dispenses with truth and laws to pursue its agenda. If this type of behavior becomes part of the Supreme Court, an important part of our government loses its legitimacy. On the other hand, many of the people in the Dept of Justice investigating Russia are Republicans and not all congressional Republicans are on board with Trump's dishonesty. As far as I am aware, the spectrum among "liberals"/democrats does not include a fringe group prone to dishonesty and assaults on the legitimacy of law enforcement when it's work is politically inconvenient. Consequently, I think there is real cause for concern about where Kavanaugh is on this spectrum. Regardless of where he is, he is burdened by the track record of the person who appointed him.
4
Sure the party in power should be able to nominate a Supreme Court justice and get her confirmed, anything else would be unconstitutional. But of course this will never happen...
Well it did and as long as judge Gorsuch holds a seat I will consider every opinion and vote he takes null and void.
5
The gist of the conservative argument as explained by Mr Douthat seems to come across as "two wrongs do make a right" and "y'all did it first". Pretty disingenuous of him to advise sober reflection on and penitence for past "injustices" committed against his kindred while acknowledging their bone deep passive-agressiveness at the same time.
4
Once again, the Conservative Republican, Conservative Christian (Roman Catholic?) is gonna tell Liberals what they are thinking...and oh surprise, its wrong!
Mr. "Ironically amused" Douthat...simple question/s. Do you think your soon to be carefully crafted, Conservative SCOTUS is gonna reign in a president that has already demanded the military quickly figure out ways to house (imprison in real terms) a hundred thousand or more people? Do you think they would rule against him, claim he's overreaching, and violating who knows how many rights - in the name of the much abused "National Security" threat. Will you speak up when the incarceration starts spreading to those who voice disagreement and opposition to the President (any Repub Pres)..? When the imprisoning is clearly not about any national security threats, but all about quieting dissent to the Republican POV...? (don't think this is crazy liberal talk, do your job and do better research!)
More. How come your side only believes in prescribing the rule of your God in some very narrow areas of our personal lives. (abortion, same sex marriage) But seem wholly unwilling to adhere to your Messiahs rather strict rules about taking care of the poor, sick, elderly and marginalized...and to not wear your faith on your sleeves, but to worship in private?
You/others see a break thru to save the "little babies" once and for all. Where many of us see the threat of a complete destruction of hard-won social justice cases.
8
One of what I believe to be the greatest sins of the main stream media is its failure to inform its clients of truths known to what Gore Vidal once called the crypto-fascists also known as self styled conservatives.
Vladimir Putin is not a godless communist. He is the acknowledged leader of Russia's "Christian" Right. Russia has an official state religion Russian Orthodox and Putin is anti abortion, anti women's rights, anti immigrant, overtly racist and has the same Supreme Court the GOP says it wants.
I understand the truth may energize Trump's base and further divide your country into pro-Russia and anti Russia camps and because the GOP demographic is old enough to still see Russia as hostile to its goals but sunlight is the only disinfectant.
It is the liberal west that hostile to the platform of the GOP and it is the liberal west that sees religion and authoritarianism as an existential threat to freedom and democracy.
Trump is a nothing and will always be a nothing but he is the vehicle America's fascists might well ride to power. The Fascist members of the Supreme Court like their mentor Scalia hold in contempt the enlightenment and everything the First Nation of the enlightenment held sacred.
Here in Quebec post quiet revolution religion is seen as democracies greatest enemy for very good reasons and Jesus on the cross is barred from our courts and state assemblies.
4
I am dumbfounded by the argument it is liberals who want an egalitarian world, but here it is. There is a very simple answer if progressives don’t like conservatives’ desire to turn our country back to The Gilded Age: vote.
4
I am sorry Ross, but you have to learn basic statistics a bit more.
There is a huge difference between 52-48% and between 57-43% votes spread, the more you get away from the 50-50 the more disproportional gain in Congressional sets. Once you get to 65% of popular vote you may likely get 80-90% of seats, and everything is 100% correct. Basic statistics.
Where rigging has the most impact is when the country is split around 50%. Second, with electoral college votes, where the winner takes all, 51% win gets you huge advantage for no reason, particularly that some other states distribute those votes proportionally.
1) The FDR-era Supreme Court finally ENDED 70 years of conservative "judicial activism" in stopping all social reforms, by GETTING OUT OF THE WAY of majorities. The "New Deal court" deferred to legislation.
2) The abandonment of "legislative intent" in statutory interpretation was the next generation of oligarchic ("conservative") "justices" paving the way for more anti-democratic conservative activism. We are in that era.
3) In the interim, yes, "liberals" angered the working class and used the courts to "hang on" to the New Deal instead of doing politics. BUT, we should not equate the "getting out of the way" turn of the court from FDR to the 1990's with "liberal courts." They were "defer to democracy on economics" courts.
1
This piece totally discounts the reality that we are no longer an agricultural society, but an urban one. Our election process needs to address the fact that one vote in Montana is the equivalent of twenty in California. In our current model, there is no such thing anymore as one man, one vote. In fact, it discourages voting.
6
You want skepticism? How about that feeling rumbling under ground, or the undercurrent rip tide that might pull under the establishment who were the ones who decided to costume our judges in black robes?
Skepticism is just the white cap on the surface of a much deeper movement of malcontents that has begun to build energy and force as a direct result of the energy and force that has been applied by the establishment: for every action there is an equal and opposite reaction. Did the establishment forget their physics training or are they really that hubristic?
2
Anything goes where a majority of people believe the whole universe was decreed into existence.
Yes. Liberals do worry that jurists who represent corporations and evangelicals will trash the constitutional rights of citizens to life, liberty, the pursuit of happiness. And voting. Clean air. Equal pay. Access to health care. Autonomy over our own bodies. Privacy. Protection from predatory monopolies. We've already had one POTUS appointed by judges with vested interests. Yes, Ross. Activist judges owned by crazies with money, racists, misogynists, religious zealots scare some of us.
If Kavanaugh is your man.... every Nancy to her Fancy, said the old lady as she kissed the cow.
Clear evidence that Russia, the NRA, billionaire extractors own the GOP. Yes. Liberals are not happy. We'd like our political parties to represent The American People.
4
"Term limits for Supreme Court justices are one obvious example of a neutral reform that might weaken juristocracy."
While we're at it, why not term limits for members of congress? At some point you stop "serving" the public and only serve yourself. Did the founders really mean to have congress members in office for 30-40 years?
We could use a 25th amendment for members of congress too. When senators like John McCain can't perform the duties of their office - he won't vote on the confirmation of Mr. Kavanaugh - we should have a mechanism in place that assures the people are represented.
While we're at it, how about you can't run for office unless you pass a transparent background check, you know, like any other executive. That means birth certificates, college transcripts, tax returns required by law to be listed on a ballot.
How about if you're going to run as a democrat or a republican you actually have to BE a democrat or republican. Sanders was never a democrat. Trump was never a republican.
None of this is going to happen.
Liberals would love to see term limits on conservative judges. They want their judges, however, to stick around as long as they can. Same for conservatives with their judges. Same with term limits for congress. Your guys have to go. My guys are "doing the will of the people..."
When the people most affected by change are the change makers you can count on exactly nothing to change.
3
Our constitutional democracy has been overthrown with the unconstitutional seating of Gorsuch. To borrow a line from the conservative playbook, we need to take our country back in the next election. If we fail, they win, game over. We will be inundated for decades with more dangerous decisions like Heller, Bush vs Gore, Citizens United, etc. etc. etc. We face a dystopian future with the citizenry glued zombie-like to their so-called smart phones connected to huge media conglomerates on an internet that they own and control. Wait, is the game already over?
1
There are two things particularly galling to progressives about Trump now having nominated 2 conservative jurists to the Supreme Court.
First is the reward to McConnel's naked power grab in refusing to consider the nomination of Merrick Garland. It was a purely partisan abandonment of ethics and legal duty.
Second is the hypocrisy of so-called originalist judges, who supposedly merely follow the law, as written using the common meaning of the words at the time drafted. They claim this objective mantle, yet manage to find the words "well regulated militia" have no meaning in the Second Amendment. They manage to find a right of for profit corporations to practice religion and spend without limit on elections without citing language in the constitution providing for this. They manage to look at the words "equal protection" and somehow don't think it means gays or women should be treated equally. They manage to think that the words "due process" and "liberty" don't have anything to do with the right to decide fundamental choices over ones' own life. They think the founding fathers used words like "unreasonable" "liberty" "unusual" "cruel" "
freedom" yet wanted the constitution to have a fixed and frozen and narrow meaning that was somehow clearly decipherable.
It's an unfortunate fact that most people, regardless of ideological stripe, have to be pulled kicking and screaming out of ignorance. That is no more true than in the case of 'conservatives' who rail against no-brainers like a woman's choice to her own body, single-payer health insurance, progressive taxation, et al -- all reflections of the liberal, social democracy that reared its head out of our collective barbarism after WWII. All of those gains we've made -- in wages, in gender equality, in the ENVIRONMENT, for gods-sake -- are under assault by a segment of our population that has always believed their ignorance to be better than your knowledge. I weep for a civilization that seems to think that ignorance and wisdom are equally viable choices.
2
Theft, espionage, Russian hacking, the glaring lack of character of a man who would allow himself to be appointed to a stolen court seat following a stolen election...
There's plenty to complain about if one is interested in the truth.
But there's nothing to complain about if winning at any cost, by hook or crook or Russian intervention, is all that matters to you. In that case, you're just an average Republican.
2
The Republicans complain about the injustice done to Judge Robert Bork and Justice Clarence Thomas. One must note there was injustice done by the Democrats and to date only Prof. Anita Hill has ever come forwad to accuse Justice Clarence Thomas of sexual harassment. As we have seen in the #MeToo movement there are always multiple [women], and it was quite safe for any woman to have come forward then and up to now.
The Democrats complain about Merrick Garland with credibility. President Obama -Was- the President and had every right, and I might add duty to appoint the next nominee to the U.S. Supreme Court. While the Republicans scream about the so-called "Biden Rule" with perhaps some justification, [it's quite believable the Democrats would have held this seat open the same as the Republicans under the same circumstances] the final result was a Republican president did appoint a Justice to the U.S. Supreme Court.
Justice Breyer is 81 and Ginsburg 85, and if a Republican wins the Presidency in 2020 do the Democrats expect them to stay on the Court until they're in their 90's? If public statements are any guide, Justice Ginsburg has shown mental decline in the recent years.
OK, now we've had tit for tat! Let's agree to end this disasterous squabble. The 50% Liberal - Conservative split in the U.S. Supreme Court can't continue over Abortion for the next 50+ years, or at least shouldn't.
Dennis
2
"Congress shall make no law respecting an establishment of religion" says there is nothing but dishonesty and broken oaths in the entire Republican post Roe v. Wade selection of judicial nominees.
1
Your implication that Anita Hill lied because she was the only one belies the absolute degradation she was subjected to by both parties. No other woman would ever come forward in light of that treatment. And your suggestion that Democrats would have done the same thing the Republicans did with Merrick Garland ignores history. Democrats had that opportunity before and didn't use it. Anthony Kennedy was nominated in February 1988, 10 months before the November 1988 election, and the Democrats confirmed his appointment. The hyper-partisanship of the Republicans led by Sen. McConnell has done real damage to our governmental institutions. False equivalencies don't change that fact.
2
Character assassination has been the hottest investment in politics since the Supremely Incompetent Court threw living people under the bus of inanimate and unfeeling corporations in the notorious "Citizens United" decision. No corporation ever feels the sting of shame.
No liberals and progressives are just waiting for conservatives to fall flat on their faces.
You see there is NO solution conservatives offer to solve any of America's problems unless you make Americans robots.
So I will patiently wait, the truth always wins and as that conservative Churchill once said 'You can always count on Americans to do the right thing...after they tried everything else.'
2
Ok, Ross. You want equivalence?
Try these ideas on...
1. We Gerrymander every district in favor of Cities and Liberals. Every one.
2. We tie the Supreme Court size to the census, and it doubles in size. They then elect obvious partisans that provide no logic in their decisions, just political influence (just like Clarence Thomas.)
3. We establish term limits for Senators and Congress.
4. We make Puerto Rico, Guam, DC, and other territories, States. So that they can now vote, and are not under 'taxation without representation'. (If you question this, recall that DC and PR each have many more people than Wyoming.)
5. We abolish the Electoral College, and establish MAJORITY vote for President.
6. We make all elections federally funded, and outlaw ALL soft money. Corporations are no longer people. All violators are prosecuted.
7. We bring back 'Truth and Fairness' acts for news organizations. News is specified as news, entertainment as entertainment.
8. Religion is taken OUT of all public discourse. "Under God" is removed from the Pledge, as it was at the beginning.
9. We remove electronic voting, and go back to paper ballots. ALL votes are verified by a UN panel using citizens from other Democracies.
10. We pass laws that register all citizens to vote, and election days are holidays. Everyone votes.
This is what would happen if Liberals would start behaving more like Republicans.
So you really want things to be fair, do you?
How would ya like them apples?
7
You forgot one: A true separation of church and state. And for Ross: I know you want religion in the courts, but whose? Why do you think it should be yours?
It's astonishing how Ross continues to promote a kind of false equivalence between the parties, between conservatives and liberals, mostly by outlining matters of form rather than substance.
The fact is that we are seeing unprecedented dirty politics, brought to us by one party and one party only. The refusal to even hold hearings for a supreme court pick under Obama. The imprisonment of children and separation of families and inability or unwillingness (or both) to reunite them, even under court order. The unprecedented number of racists running under the GOP banner. The dozens of attempts to rip healthcare coverage from tens of millions of Americans. Unprecedented corruption among cabinet members, the latest being Pruitt. Policies and actions that will ruin the environment, and rob the poor and vulnerable of basic protections and care, and alienate us from our closest allies. And I haven't even gotten to the Russia meddling and increasingly likely collusion on the part of our now president, coupled with congress's utter refusal to challenge what may well be a treasonous attack on our democracy.
This is not just another swing of the pendulum. This is a bully government that has grabbed the pendulum and is proceeding apace to use it as a bludgeon on this country.
3
Yeah, yeah Liberals are freak'n out and Cons are amused. Douthat thinks its ironically amusing. How nice, social justice and the dismantling of decades of ridiculously hard work and in some cases death - is now amusing.
And that's the problem with this current debate over SCOTUS and its sudden too much power swing. Repub/Cons complain and now point to how Dems/Libs used the courts to their own ends, and think it hypocritical that there is any uproar. That Dems should go quietly into the dark night.
But its always been the types of issues at play. Social justice issues on the Dem/Liberal side, versus Corporate interests, their excessive control over our lives, the environment, zero responsibility, compounded by zero social justice rulings on the Repub/Cons side. Its worker safety for the Dems/Libs, versus none for the Repub/Cons. (Kavanaugh is anti-OSHA!) Its a woman's right to control her body, completely, versus allowing men, any male to control them. Its environmental preservation and protections for Dems/Libs, versus the wanton destruction and pillaging of anyplace resources lie, or some recreational businesses can make a claim.
Its protecting individual rights, and promoting social justice for marginalized groups. Versus no such justice that interferes with Corp profits, or gives any member of a denigrated group a lift. Protecting wanton exploitation versus controlling it.
So yeah, many of us are freak'n out, many are out right scared. There's good reason to be so.
5
"And because we are something of a juristocracy, the choices of one man, Brett Kavanaugh, will play an outsize role in determining which scenario we get."
Brett Kavanaugh is a partisan-warrior, ideological zealot. The right doesn't want neutral justices, it wants cheerleaders for its team. Just like the left.
1
Just a thought last night when I saw Kavanaugh's family photo. 2 kids in a family that doesn't practice birth control seems possible, but unlikely. Does Brett Kavanaugh only follow Catholic doctrine that fits his "lifestyle?" A personal choice, for most people, is not a choice for a Catholic. Unless of course, that Catholic picks and chooses which doctrine to follow.
Those "terrible liberals."
They want universal healthcare like all the other first world countries. By the way, those countries spend half per capita that the US spends. And we have parts of the US with infant mortality rates the same as Botswana.
They want to continue public education with two years of trade school or community college. Get people educated and working and paying taxes instead of paying for welfare and prison.
We are the richest industrial country on the planet GDP / capita. But we poverty those other countries don't and we have the highest incarceration rate in the world.
Those terrible liberals want to protect the air and water and stop global warming.
They want to give women birth control so they don't have unwanted pregnancies and don't have to consider having an abortion.
Truly, "terrible liberals."
4
Columns like these underscore the notion that you don't have to be smart or honest to be paid to do this. Examples: 1) Ross: ecumenical school prayer is ok. Um, Ross, ecumenical school prayer is an oxymoron--if it's prayer, it can't be ecumenical by definition. Duh. 2) Christian-influenced morals legislation. If ecumenical school prayer is a good thing, then how can Christian-influenced morals legislation also be a good thing? 3) So, in your mind, something that sweeps "liberal" twitter for a few days now defines Democratic party policy? Give us a break. And 4) You are actually putting Heller on the same plane as Brown? Really? One resulted in better education, the other resulted inmate death. Mike drop.
3
If Trump wins in 2020, which looks probable barring a recession, he will probably get to appoint successors to Ginsberg and Breyer. That means he will have appointed four justices and the conservatives will have a seven - two majority on the court. If Thomas retires in Trump's second term appoint will get to appoint another justice. Although he would be replacing one conservative with another, the replacement will get to serve another forty years, give or take, and the conservative majority will last to the middle of this century. Which party that holds the majority senate in will be crucial in the next few years.
2
The deeper issue is that the American Constitution is over two centuries old and needs to be modernized. Examples of useful reforms, are:
1. To reduce the effect of gerrymandering, a fraction of our representative should be elected state-wide and not only district-wide.
2. Allocating two senators per state, irrespective of the size of the state's population, disempowers the more populous states. Some scaling of the number of senators with the size of the state's population should be constitutionalized.
3. The president should be elected by the popular vote and not by an electoral college which has become obsolete at a time of speed-of-light communication - as compared speed-of-horseback communication when the constitution was written.
4. Supreme Court appointment should be for a limited time only (e.g., a decade, to provide continuity beyond the presidential election cycle). Supreme Court appointment should also require a 60 percent majority in the Senate. If no such majority for the president's pick can be found, the Senate can put forward a more acceptable nominee and overrule a presidential veto by a two-third majority.
5. The rule of law should apply also to the President. Also, all Presidents should be obliged by law to disclose their financial dealing and the IRS should automatically disclose their tax returns over at least the past decade.
5
My trust in the Supreme Court was damaged with the illegitimate Gorsuch appointment. Decisions with his name as the author will always be printed with an asterisk.
How a man who proclaims respect for the Constitution could take that seat was insult to the Constitution
4
Douthat writes, ". . .Republican House gerrymanders like the one attempted in Pennsylvania." This statement is disingenous, if not downright false. The House gerrymander was not "attempted" in Pennsylvania. It succeeded, and it actually existed in reality until the State Supreme Court struck it down.
Douthat uses a tired, old debaters' trick in writing that the gerrymander was "attempted." He implies that the gerrymander failed to occur, even though it did.
Suppose I wrote, "I attemped to write this reader's comment." What I wrote may be true, but it's misleading and therefore false)because I did in fact write this reader's comment. Like the gerrymander, the "attempt" to write this comment succeeded because every successful effort requires an attempt.
Douthat, beware: when you debase language you debase thought. We're on to you.
1
You should have just said it: "The country is full of gun toting, religious reactionaries who show no inclination to believe in anything but fantasy and bigotry, bound to doom us all."
2
So ,shall we salute the President and the tea party’s
Absurdity now.?Maybe wait to see how many children get lost!
Never to see their parents again.
Or we can wait awhile and watch the extreme right in the congress in the White House and in the Supream court
Bring ordinary people who want to live without authoritarian
Rules,to their knees pleading for the Republic we lost when
The sociopath was elected to be ,God help us! President.
Please no more populist,Trumps as popular as cancer with us
Middle class “elites”.
1
Every time I read one of Douthat's articles I leave feeling like Charlie Brown trying to kick the football. Once again, my hopes of some sort of sane reflection on current Trump chaos from Ross are dashed every time by shallow false equivalencies and a willful misrepresentation of history.
Ross, your participation in this propaganda charade are appalling. You're brighter than that, start writing like it.
3
Has it never occurred to the liberal commenters that they might be wrong? At least we fundamentalists know there are people who disagree with us. Christ Jesus came into the world to save people who did not (yet) line up with Him!
2
There are a great number of Christians who oppose Fundamentalism. It's why we are a secular nation. The Founders fled sectarian violence. They saw the danger of theocratic governments' threat to individuals.
1
You mean by "liberal," the ultra-liberal of his time "Christ" Jesus was?
3
None of this anti-liberal screed discusses how the Republicans led by Mitch McConnell busted up our constitutional system by denying a hearing on Obama's pick for the court.
5
I'm glad you are finding the vociferous complaints of the left annoying; one of the few pleasures we have left.
2
I've been calling them the Suckpreme Court since I first heard about what they did to Dred Scott in 1857. If we hadn't had a few good justices like Louis Brandeis, Thurgood Marshall and Ruth Bader Ginsberg, I'd say get rid of the Suckpreme Court; lately they have done everything they can to curtail the rights of working people, and uphold the rights of campaign donors and corporations. Douthat is out of order when he imagines that they have curtailed the power of the church, which grew under Bush Jr.; Obama's administration did not repeal the Faith Based Initiative. The church has more power and money than ever. This is a third world feudal nation, and much of that is thanks to the Suckpreme Court's sucking up to power, and failing to defend the rights of the people. As Brandeis said, "we can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both."
4
"...continue answering Republican House gerrymanders like the one attempted in Pennsylvania with the liberal equivalent that’s operative in Maryland."
Ah yes. The un-gerrymandered Pennsylvania might net Democrats 4 seats while the un-gerrymandered Maryland might net Republicans...1 seat. Equivalent!!
One, whether liberal or conservative, must always fear and oppose power dedicated to greed, hate, stupidity, or ignorance, judicial or otherwise. Surely, Mr. Douthat, you are not saying that we liberals are only now coming to our senses that we must not endorse judicial power that ignores the law, the Constitution, truth, intelligence, humanity, and history. You would not be as parochial, biased, and small minded as that. Would you?
1
Is a liberal court the same as a conservative court? Are Dred Scott and Plessey the same as Brown v. Bd. of Education?
2
I am always interested to read-the views of a professed conservative. I used to be somewhat conservative.
Once.
Mr. Dooley (early 1900's) observed that "even Supreme Court justices read the newspapers."
Oliver Wendell Holmes (1920's) reminded us that laws are made by men. They are not set in stone. They grow--they bend--they change.
Why am I saying all this?
Because I don't see how the Supreme Court--really and truly--can thwart, can obviate our American sense of right and wrong.
How many people nowadays cry out against the "wickedness" or "perversity" of the Warren Court? Those decision are part and parcel of American life.
Compare these with the notorious Dred Scott decision. (Cobbled together, said Lincoln, by "James--Stephen--Roger." That is: Buchanan--Douglas--Taney.)
A decision repugnant to the moral sense of half the country.
A decision meant to settle the slavery question.
It led to the Civil War.
This paper (not long ago) ran a column by two conservative law professors. They made some good points. The gist was. . .
. .. this or that Supreme Court justice. . .this or that ruling handed down by the Supreme Court. . .
. ..cannot arrest the moral decay of a nation. If that nation really IS declining morally.
NOR. . .of itself, can it sap the moral fiber of a righteous and upright nation.
Only WE can do those things, Mr. Douthat.
We, the PEOPLE.
4
This is what happens when a Party does not purge the White Christian Nationalists, but courts their votes.
4
This may be the most disingenuous, simply intellectually dishonest, column that Ross has ever written. We have a president that lost the popular vote by 2.87 million votes, when did any Democrat win the electoral college while losing the popular vote (answer is that it has happened 4 times and all 4 were Republicans). We have a Conservative Court that is soon to be Hard Right and this after the Democratic Candidate for president has won this popular vote in 6 of the last 7 elections and where the GOP Senate blocked consideration of the President's nomination in a clear Constitutional violation. Note that Douthat points out that Democrats have had disproportional majorities and he wants to say that this is comparable to the GOP Senate where 45.2 million Americans voted for the Democratic candidate and only 39.3 million voted for the GOP candidate. We can see how the electoral college has wildly distorted the meaning of "the consent of the governed" by counting each voter in Wyoming ( that has a smaller population than Queens) has 6 times the effect of every voter in California. He means to obscure this by ridiculing the reasonable position that a nation cant be run by it's least functional elements. And why does he write this tripe? Because somewhere inside he understands that an election subverted by are ultimate foreign enemy should not bring about a fundamental change in the nature of society and government that is profoundly opposed by the vast majority.
3
An Obama Supreme Court justice stolen in 2016 by McConnell, et al., a stolen election in 2016 by the Russians colluding with Trump....can you not understand why people are upset?
3
I wonder if Mr. Douthat ever reads the reader comments to his columns.
I have yet to see a single one where his logic, facts, or other major aspects of his analysis are not ripped to shreds—this one being no exception ...
4
By 2040, half the US population will live in 8 states. Douthat can poo poo the problem, but it is an existential one. The Constitution is in need of amending some time in the next decade or we may face an unending series of minority governments and an erosion of faith in the Founder's compact. Unfortunately, the deck is stacked against reform and will only become more so as the power differential between heavily populated states and depopulated ones increases.
Oh, wait, that's right - the solution has already been put in motion: climate change.
https://www.washingtonpost.com/news/politics/wp/2018/07/12/in-about-20-y...
One of Douthat's weakest columns, embracing the "both sides do it" false moral equivalency. Notice how he "yada yada yadas" the civil rights achievements of the Warren court in 1/2 sentence?
8
Only a moron would contend that judges, or any other humans, can be objective, which is why elections matter.
At the end of the day, there is just quasi decent people and full blown deplorable people. So hopefully the former win the day. No one can climb outside of their mind, moreover, there is nothing to climb out or place to climb to.
"Tomorrow, after my death, certain people may decide to establish fascism, and the others may be cowardly or miserable enough to let them get away with it. At that moment, fascism will be the truth of man, and so much the worse for us. In reality, things will be as much as man has decided they are."
J. P. Sartre
1
You are the stalwart of wrong. If we were the same we would have a Justice Garland instead of the reprehensible Justice Gorsuch.
4
Why, Ross, are you wringing your hands over this nominee? He served the GOP during the Clinton impeachment and was on the Bush payroll for the Florida recount.
You should be very, very pleased. The end of Roe is coming. Don’t fret.
1
The Nazi party was not able to take over Germany until enough non-Nazis were convinced that dictatorship was a reasonable price to pay for certain special interests they had. Right now we see an ethically odious Trump being supported by Evangelicals who want a closer connection between Church and State. We see an isolationist Trump being supported by the wealthy who just got a huge tax gift, to be paid for eventually by the rest of us. What were Douthat’s pieces of silver?
4
Douthat filters everything through his christian lens. Here's a shocker- outdated, foolish christian traditions are not in keeping with governing a country. Hence the separation of church vs state. It's unfortunate that these christian zealots are always so quick to jam their beliefs on how others should run their lives down everyones throat. The irony of a conservative christian- let me have my beliefs and let you have my beliefs. What horse pucky.
1
Ross and his Ilk won’t be satisfied until Jim Crow laws are blessed by the Supreme Court and allowed to flourish again across the south.
3
Oh gee, of course you are right, Russ. I feel so much better now that things have flipped and God's people have the advantages once held by the Satanist.
1
Oprah never said that. You are lying. https://www.snopes.com/fact-check/oprah-winfrey-old-white-people-have-to...
1
A packed court does none of us any good. We should be able to look at the Supreme Court as our last hope for a solid, fair decision on any case before it.
However, a liberal court at least helps propel the country FORWARD and leans toward the average citizen, as does a liberal Congress. A conservative Court, and Congress keeps America at a stand still or propels us BACKWARD. Conservatives rarely have the good of the common man in their agenda!
2
"ecumenical school prayer, Christian-influenced morals legislation — overruled or uprooted by fiat." Since when did we abandon the concept of separation of church and state Ross, conservatives may have but the rest of us not.
5
When it comes to the constitution and jurisprudence, a liberal point of view is that our rights and freedoms are absolute unless specially denied in the Constitution, whereas conservatives view is that there are no rights, unless specifically identified in the Constitution.
4
I wish I could give your comment multiple recommendations.
Unless of course that right is incorporated in the 2nd Amendment, then our rights must be strictly construed to prevent people from exercising their 2nd Amendment rights.
On the other hand, if a desire is somehow related to the “emanations” from the “penumbra” of an unexpressed “right to privacy”, then that desire must be interpreted liberally to benefit those interested in exercising that desire.
Got it.
This liberal has long advocated for a limit of 17 years for the supreme court. It's enough time to outlast both potential terms of the president and VP that nominates him or her. It's long enough to make a significant contribution to law. But it's not a lifetime appointment, which is antithetical to every democratic and republican (small d, small r) instinct I have.
1
The court already has a conservative bent with the Citizens united and Heller rulings in particular, the first of which further legalizes bribery and the second, a clear break from previous constitutional considerations - other legal precedents may justify ownership of firearms for personal reasons, but not the 2nd amendment. The fear now is not so much of conservatives but the DEGREE - the most extreme right wing congress in my lifetime, which has become normalized, and an administration strongly influenced by the far right wing: Breitbart, Heritage, Federalist society, all blind ideology.
That said, the 'liberal activism' in the 1950s and 1960s got rid of the Jim Crow laws and made attempts to counter the damage done by such laws and attitudes, to change society into something actually more 'Christian' towards each other.
On religious stuff, the courts did not make it illegal for students to pray, just not to be led by a public school teacher. It must also be remembered that some of the 'religious trappings' that many believe go back to the founding fathers only go back to the 1930s or 1950s - the business community enlisted religion as a counter to unions starting in the 1930s, by tying religion and capitalism together; this was facilitated in the 1950s with the red scare.
On Roe v Wade, that was a compromise.
But, much court 'activism' stems from congress not having the spine to do its job - which takes us back to Citizens United.
2
A conservative court once meant deciding issues narrowly -- incrementally -- with the least possible effect on altering the law or overstepping an established line.
Today, only five percent of American lawyers belong to the Federalist Society -- a very conservative congress of originalists and textualists who operate well outside the mainstream of our jurisprudence. And yet, we will have six of nine Supreme Court justices from that group.
Conservative judges now are political actors, with judicial opinions that equate free speech with money, prefer corporations over employees, deny labor rights, voting rights, civil rights, equal rights to maintain an ever shrinking minority of white men with a dying vision of western culture.
The Court is already among the most right-wing courts we have had in modern history. It's about to lurch over the reactionary edge -- the last gasp of rich old white guys.
3
Not clear where it leads, but there is something unsettling about the fact that Justice Kennedy's son at Deutsche Bank was the only banker who would lend to Trump.
3
One problem with your argument is that while America swings it political leanings on a pendulum, never has a the Senate refused to vote on a POTUS' choice for SCOTUS.
Another problem is that never before has a POTUS exclaimed that his nominee should sit for forty or more years--Kavanaugh is more than qualified, no doubt, but such an exclamation is more about creating adversity than governing.
And that's my main gripe with your glossing over the currency of the current situation. Our government has been turned into a sideshow by a conman-carnival-barker. Issues are irrelevant, governing is irrelevant, it's all about the USA reality TV show and its ratings.
VOTE!
VOTE!
VOTE!
5
The difference is when conservatives get judicial and executive power, it's always used to reduce civil liberties but it's the opposite with progressives. Recall Mr Douthat, it is OUR government, not the leaders. The people's government. Republicans are the political version of an Uncle Tom bowing and scraping to those with power. It is repugnant.
5
I'd love to see Ross define "ecumenical" prayer. Catholic schools arose in large numbers throughout the country because Catholic children were forced to read from Protestant Bible's and recite prayers that were non- and anti-Catholic. Their grievance s were minimal compared to those suffered by Jewish children. Islam, Buddhism, Hinduism and nonbelief were not even included in the public school prayer book.
By the way, families are much more stable in blue stares than red. Liberal values succeed because they value human beings, not money and power. That is the clear, honest difference between left and right in this country.
5
"A conservatism that skips gleefully down the countermajoritarian path, embracing voting restrictions and judicial activism at every opportunity, will inevitably encourage purely partisan countermeasures from liberals."
Really?
Could Ross explain why "embracing voting restrictions and judicial activism at every opportunity" should not "encourage . . . countermeasures" by conservatives? Because this argument explains why this radical element of conservatism is so closely aligned the most corrupt form of politics: the denial of the most fundamental right of American citizens to have a voice in their government.
Explain yourself, Mr. Douthat.
2
Ross, we've been watching the outcome of the Civil War being re-litigated by SCOTUS since the elevation of Rhenquist to Chief Justice, and the Confederacy has won. That's the most important thing to folks on the Right.
Anyone with an ounce of knowledge knew, when W appointed Alito and Roberts, we were on our way to an imperial presidency (aka "strong singular executive") with only, perhaps, Kennedy in the way of that. Then Scalia died and sent the Right into panic mode, leading McConnell to ignore his own Constitutional duties and the rest to support the grotesque fool who was nominated. Now we have a do-nothing Congress prepared to rubber-stamp anything coming from the WH.
Kennedy has bowed out and another lover of Executive power has been nominated. Already, even before his confirmation, the Executive Branch has decided to change the way a few thousand judges are appointed, having them become lifetime appointees of the President, and that's just the beginning.
With Congress impaired and the court stacked, we enter not only a new era of Republican rule, but Chavez' Venezuela on the flip side. Kind of amusing, kind of ironic to end the American Experiment thusly. All else being equal, I think the "Left" will be shocked this year. History turns on generations, not biennial elections.
Scalia was willing to overturn even Marbury, by the way. Don't be surprised if the new Roberts Court gets there.
New Federalism; Abe is spinning in his grave.
2
This piece falls flat on its face for me. The sins of democrats are not remotely equivalent to what the Republican Party has been giving us over the last 30 years. I’m not even skeptical anymore. Republicans and this current nominee stand for nothing I want. For me now I want a liberal congress to act, change laws to make them more sound and equitable and reverse some of the horrible decisions that were made by a conservative court. First one to go should be Citizens United - The Supreme Court has a rich history of terrible decisions filled with racism and an outdated interpretation of the constitution. The constitution should be treated as a living document that is a framework to be improved and updated as things change. Things are changing rapidly and republicans and ultra conservatives want to slam our country into reverse! Why would it be better for democrats to temper themselves? What has that gotten them lately? They have been trampled by an administration that does not have good intentions that is making ghorrible decisions.
2
Conservatives in favor of judicial restraint? I'm not seeing it. The common good loses while Make America Greedier and Needier wins out.
Issue by issue we're seeing many of the narrow interests of a minority, corporate and religious, win out with Federalist judges. What about the environment, NRA, abortion, school prayer, campaign finance, gerrymandering?
3
Ross: I generally agree yet am left dangling at the end. Since you claim Brett Kavanaugh's choices may play an outsize role, what so you suppose they might be like? Do you see him as a dogmatic conservative or as an open-minded one? I know you are enthusiastic because Mr. Kavenaugh is anti-abortion; is he also thoughtful, fair, and compassionate? Will he be part of the problem or part of the solution?
2
In the modern era, only the Republicans did not allow a President the right to appoint upon death. This was the same as packing the court, which is what the Democrats should do if they ever get in power, Unless there is Constitutional reform in the form of an Amendment to do away with timed retirements and the implementation of an 18 year non-renewable term with it turning over one justice every two years. It also must require a vote of the Senate that if the Senate does not do its job, the appointment stands.
There is no independent judiciary in the United States. The Republicans have made sure that is so.
We don't have a government by and for the people. The US has always been a country intent on protecting the power of White Racists. Some things never change.
2
Democratic majorities elected from 1932 through to 1992 with exceptions in 1946 and 1952 and a brief flip of the Senate in the l980s owed to but one fact Mr. Douthat.
They owed to the virulence of Jim Crow racism in the 11 states of the Confederacy. I looked at the numbers a while ago, even sent a piece called "House Math" to your august publication - not published until this comment.
As I recall. the numbers are exactly or nearly exactly this:
The House of Representatives elected in 1862 from the 11 traitor states - the Congress that with true bipartisan support overcame Dixie to pass the 1964 Civil Rights Act (followed in the next even more Democratic House, elected in 1964's LBJ landslide, by passage of the 1965 Voting Right Act):
In that House the 11Confederate states had 108 seat -- 91 of them occupied by Jim Crow Democrats.
In the House elected in 2012, reflecting the current post-2010 Census, those 11 states had 135 seats in the House, of which 101 were held by Jim Crow Republicans; with Democratic seats held mostly by African Americans elected from districts shaped to prevent diffusion of African American voters into districts that might be in play if they were.
So what up to now locked the House away for the GOP isn't a shift in the nation but a shift of racist Dixie from Democrats to Republicans in reaction to those two 1960s laws.
The rest of it, notably the court, follows from that stark reality.
5
Correction, bad editing of myself. The House elected in 1962 of course, not 1862.
A conservative citing irony to once again engage in false equivalence, ignores the fact that SCOTUS decisions prior to his own "ascendancy" were a reflection of popular rather than fascist will.
4
I’m not really sure what this “liberal dominated past” of the USA was. This country has, since afternoon WWII, been right wing. Even most of our “left wing” is right of European politics.
Is our liberal dominated past the fact that we made it legal for women to have bank accounts even if they weren’t married? Is their access to contraception and abortion “liberal?” I know abortion is a controversial topic in this country, Mr. Douthat. But you try being violently gang raped at 15 and then being forced to have the child.
Is our liberal dominated past the fact that we started to recognize that human beings are not worth more or less depending on the color of their skin or the consenting adult they choose to have sex with? Is our liberal dominated past the fact that we created social security and medicaid because, really, which decent country wants to see their elderly begging in the streets? Would it have been more “conservative” to sneer at them as we callously walk by and claim that they should have gotten themselves better educated and saved more money?
What is this liberal dominated past of which you write Mr Douthat? If you disagree with the social reforms that were made during what you claim to be our “liberal dominated past” it would be better to just admit it. Otherwise, I suggest that you are wrong and what you are referring to is a past that attempted decency that all humane people could agree with.
3
Divided government is good and small d democracy is unworkable.
WaPo had an article last week on how half the people will live in eight states in 20 years (https://www.washingtonpost.com/news/politics/wp/2018/07/12/in-about-20-y....
There’s an unstated assumption that it’s unfair for the depopulated states to have 2 senators each, but if that weren’t the case these states would become like the politically weak, utterly impoverished subdivisions of India, a third world within the borders of the richest country on earth.
2
Actually, I would argue that states like Alabama and Mississippi are poor because of Republican policies.
And liberal states are propping them up.
If liberals had more sway, the poor in those states would probably do better with healthcare and education.
3
Again Bret puts form over substance. By ignoring what the two different groups believe, his "opinion" is reduced to blather. Conservatives substance is predicated upon fear and hate. Thus they exclude others to conserve their place. This, liberals do not do. When Bret just uses the labels of the two groups as his starting point, he dwells in the world of false equivalencies. This is what conservatives do.
I think discrediting the Supreme Court is the objective of this secretive collection of too-rich people who have substituted the $ sign for Christianity as the state religion of the US.
2
There was never a liberal conspiracy to pack the Court with ideologues. The Federalist Society, Heritage Foundation, et al, have, to their credit, spent decades brainwashing lawyers with a-historical, anti-constitutional malarkey. School prayer was struck down because the guvment has no business, per the Founding Fathers, leading a Christian prayer. Kids, of course, pray all the time in school. It's not prohibited. And when are Christians going to finally conduct their prayers where they are supposed to: not in public but in a closet, per your Founder. There's a reason the Founding Fathers broke up with religion in 1790 and got a restraining order against it, the 1st Amendment. In the good ole days, Christians were putting Christians in jail for not following acceptable practice. Soon we'll be putting people in jail for teaching evolution. I say let the Christians have their way for awhile. We'll soon remember why the Founders carved Christianity out of our secular government. The Founders could have created a Christian country in 1776 and 1787 but opted not to for reasons known to everyone. It's that rejection of Christianity that really irks Christians today. Jilted at the altar. People like Mr. Douthat have a rosy memory of a time that was never rosy. Religion and government should never mix, according to the Founders.
5
Your party smashed all conventions of civility in the Senate when it held a Supreme Court seat open for nearly a year without being willing to even consider the then president's nominee. That act alone was a ghastly and unpardonable overreach of the majority's power.
But it turned out to be far more than McConnell poking his thumb in the Democrats' collective eye. Against all odds, counter to all expectations, Trump defeated Hillary in the anti-Democratic Electoral College. McConnell's holding the seat open (in the undemocratic Senate) was not the Hail Mary pass it was once seen to be. He knew the Russians were on the case and the fix was in. He blocked Obama's efforts to counter the 2016 Russian attack.
McConnell is a traitor to his nation and yet a hero to his party, the party that birthed and supported the fabulist allegations of Senator Joseph McCarthy (from Paul Ryan's home state of Wisconsin). On the other hand, at least McCarthy recognized the Russians as a threat. Today's Republican party sees Putin's autocratic Russia as the friend which via espionage successfully torpedoed Hillary and put their guy in office. (Tax cuts for the rich!) And he gave them what must have looked to many like a Christmas miracle, a Republican-appointed reactionary jurist with a term-for-life on the Supreme Court.
Some see a miracle. Others rightly see a Republican party so ethically bereft that it sides with the murderous Putin and helped him punk the American people to win an election.
7
I would add to that, McConnell then got rid of the 60 vote threshold for Supreme Court confirmation.
Without doing that, Gorsuch and Kavanaugh would not be sitting on the Supreme Court.
We will get more Citizens United decisions to benefit the wealthy at the expense of our country.
History will judge McConnell harshly.
But it will be too late for the country.
5
Only in the 2nd paragraph do i get to the spit-take: "But any liberal with an ounce of self-awareness should recognize the resemblance between their sudden fear of juristocracy and the longstanding conservative critique of exactly the same thing. Indeed it’s quite striking, and ironically amusing, to have Trump-era liberals striking the same anti-Supreme Court notes ..."
Ross, there may be a resemblance. Except that the paragraph before this lays out the problem more succinctly: the old "liberal" Supreme Court had the *majority* of Americans behind it, pushing the country to wake up and join the 20th Century. Now? It is as you say: a portion of our country -- made of corporate interests, lobbyists, 1%-ers, and their toadies in Congress, the 30% of the electorate who voted for Trump -- are taking over the country with their "corporations are people, too," money is speech, if-we-can't-win-on-our-policies-let's-gerrymander-and-suppress-the voters-likely-to-go-against-us, and let-the-military-industrial-complex-do-*exactly*-what-Eisenhower-feared-it-would-do *minority*.
They were lead by two crazy notions: a) that government of, by, and for the people was the problem and not the solution (Ronald Reagan); and that b) gov't could be made small enough to drown in the bathtub (Grover Norquist). The corporate sector, now more powerful than the government will do the drowning, with the help of the Supreme Court. The two Trump appointees are solidly behind this agenda.
3
I have to laugh at Douthat's description of school prayer as "ecumenical." The prayer I experienced in public schools in the 1960s was far from ecumenical. It was strictly Christian with a strongly Protestant slant.
Those who want prayer in schools do not want it to ecumenical, allowing equal time to those of all faiths, they want it to be Christian. There is no place in public schools for government support of one particular beliefs system.
5
Within the next 20 years, approximately half of the United States will live in 8 states. The Supreme Court can continue down this partisan path. However, there will be a tipping point at which people will say enough is enough. We can't be the United States of Alabama. The current court trajectory focused primarily on the interests of old, white, wealthy, voters, in less urban states is simply not sustainable.
2
I am under the impression that the Republican did not believe in a litmus test for supreme court nominees. Trump has three: over throw the ACA, Roe v Wade and the cherry on top - a nominee who believes a president is above the law.
2
Finally an adult conversation about our political history and how we view things of a political nature. I'm enjoying these days late in my life after way too many years of the Democratic Party thinking it had all the answers. I'm hoping for a few more good solid years of turmoil to flesh out good alternatives to the constant mommy approach used in so many Democrats thinking. It's going to be fun with the shoe on the other foot.
1
Most people I know are somewhat liberal in some parts of their lives and somewhat conservative on others. And even within politics they are part liberal and part conservative. For instance, they may be in one position on fiscal policy and another social policy.
In difficult times, I find it much more useful to focus on where someone is on a scale of totalitarian to democratic. Is it one person or everyone that ultimately makes decisions.
Very few of us are all the way to either extreme on the scale. Do we ultimately report to government or does government ultimately report to us.
I am solidly on the majority controls using the ballot box side, so my concern is where candidates for any office are on the spectrum. As long as a candidate can convince us they agree on who is boss and how we decide, my level of concern goes down on individual issues.
3
Mr. Douthat conveniently overlooks the fact that during the "liberal-dominated" era of the 1960s and 1970s both parties had liberals and conservatives in Congress. A tally of Rs and Ds misses the nuance of the era. To pass his civil-rights legislation, President Johnson had to overcome fierce resistance from Southern Democrats, and he did so with considerable help from liberal Republicans. Ratification of the 24th and 26th Amendments, abolishing the poll tax (1964) and extending the franchise to 18-year-olds (1971), indicate that liberalism's high-water mark was not simply a matter of majorities in Congress.
6
Very strange column considering that most Americans support overturning Citizens United; also, the majority support marriage equality for gays, access to abortions, end of gerrymandering, and end of the electoral college.
11
I am surprised at how much liberals don't understand that a truly conservative Supreme Court.
If we returned to the Constitution as written, state legislatures would be free to offer gay marriage, or ban it. They could, in fact, ban heterosexual marriage and require everyone to go gay, or absolish marriage completely and prohibit all sexual activity.
They could allow abortion, or ban it. Or, they could make abortion obligatory, and stop the population explosion.
Yes, the power of democracy would be unlimited. This is probably just what the liberal fear, knowing what the voters are like in their state.
1
Could the states also impose tariffs? With the coastal states charging the flyover country very high taxes.
Which was exactly why the Articles of confederation were replaced by the constitution.
TRY AGAIN!
1
@jay - The Constitution specifically states that the states cannot impose tarriffs.
However, it is silent on marriage and abortion. All it says is that the states have to have democratic (small-d) government.
I think it is pretty clear that the writers of the Constitution intended to leave such matters up to the states.
Mitch McConnell has thrown away Americans' respect for the impartial judiciary, all for short-term partisan advantage. Conservatives are now crying out for biased judges who will impose social and corporate policies that do not have the support of the citizenry, to bludgeon through social and business precedents that cannot be legislated even through Republican gerrymandering and voter suppression.
Until Bush v. Gore, the Supreme Court had the respect of the people even when the decisions handed down were unpopular. Laws could and were changed to invalidate Constitutional interpretations which did not reflect the needs and perspectives of modern America. Now, with partisanship and gross opportunism the blatant guiding principles of SC nominations and confirmations, that respect is gone.
Given McConnell's bastardization and outrageous refusal to follow the requirements of the Constitution in the Merrick Garland nomination, the SC is broken and degraded. There should be term limits for justices and means by which to invalidate rulings that are clearly political rather than judicial in nature.
9
Two quick points:
At 61 yrs I associate with a lot of 20 and 30somethings (it's a dog park thing). They all show a remarkable lack of understanding of the very concept of history, even recent events. They simply cannot comprehend the time before they arrived on the scene. I imagine that it's a side effect of the internet age.
So your argument, though interesting, will fall on deaf ears for that whole segment of the voting public.
Also, the Conservative Movement is co-incidental (and maybe causal) with a terrible decline in American social and political life; so much so that the rest of our allies, including many nations that were dismissed as "third world", have pulled ahead of us in terms of infrastructure, healthcare, education, etc. Also know as "the public weal".
Many intelligent, thoughtful people are left to wonder if this Movement isn't the heart of the problem, if Goldwater and the Reagan Gang aren't the villains of this story.
5
I'm 63. I have great hope for our nation due to the passion of the 20- and 30-year age groups. I notice it is my age cohorts who constantly bemoan the changes in our culture. Society is evolving into a more libertarian view of human rights. I'm happy about those changes. I value individual liberty over institutional constraints.
Let me understand this. It is counter majoritarian that (by survey) 60 to 70 percent of the population supports access to abortion. It is counter majoritarian that (again, by survey) 55 to 70 percent of the population support marriage equality. It is counter majoritarian that (again, these darn surveys) 60 to 70 percent of the population think Citizens United is wrongly decided. Oh, and also, we DO have a counter majoritarian in office, President Trump. The hard data shows he lost the popular vote to Clinton in excess of 3 million votes. When including overall voting for 3rd party candidates, the margin is over 10 million votes. Those who screams the loudest do not necessarily speak with the voice of the people. Oh, BTW, I am white, over 65, and raised in Jesuit Catholic traditions, and live in a red state; please stop assuming you speak for me; speak for yourself.
14
Just because both sides have made similar arguments does not mean that both sides are correct. It is very possible, for one side to be correct and the other side to be the Republicans.
12
Sorry, Mr. Douthat, this article is yet another reason that it's hard to take seriously your claim of balance and understanding of anyone to your left. At least you understand the menace to democracy that Brett Kavanaugh represents, but you miss that the guiding principles of modern America are now regarded as liberal in part because the country has been dragged so far to the right by your political brethren. No, sir - they are truly centrist and mainstream. We need a sharp "left " turn back to the middle, a process that includes as close to a Democratic sweep as possible in November, tying Trump's hands by undoing one-party control, and blocking the confirmation of Mr. Kavanaugh by any means necessary. Anything other than "all of the above" spells doom for the America I grew up in, the one that supports full enfranchisement; clean air, water and energy; mutual respect; responsible world citizenship and so much more.
6
Let's try to make sense of this. You seem to have forgotten that the fundamental premise of this nation is that all are created equal, which is the exact opposite of the fundamental premise of your chosen-people Christianity that has supported slavery, heretic-burning, women's subordination, segregation, anti-miscegenation, and LGBTQ demonizing, among other things, and whose Wars of Religion inspired Jefferson's insistence on freedom from religion. You also seem to have forgotten that the writers of the Constitution, in order to secure those rights and establish a more perfect union, were primarily interested in protecting the rights of minorities -- as they said in the Federalist Papers, the majorities can take care of themselves. One unintended outcome of that principle, since "minorities" at that point, when citizenship was not national, were small states, is that we got the Electoral College that is to blame for the current mess. Nevertheless, you seem to think that protecting the rights of straight Christian white men to tell others what to do, which is what the Right does with its power, is the equivalent of protecting the rights of LGBTQ None people of color to liberty and the pursuit of happiness, which is what the Left does with its power. You remind me of Lincoln's observation on the contradictory uses of "liberty" -- to do as you please with yourself vs. to do as you please with others.
11
This column is just more conservative false equivalency. The difference is that liberals don’t set out to harm large constituencies, unless you define “harm” as the rich being denied one more Ferrari, rare bottle of wine or wing on the mansion. Liberals are generally empathetic, compassionate people who want to see everyone uplifted. These are exactly the qualities you want to see in a Supreme Court Justice.
Conservatives are just the opposite, which is why you’ll see these latest justices ruling on behalf of their wealthy patrons, while denying rights to the rest.
We’ll give Douthat a break in that conservatives, who aren’t empathetic, can’t possibly understand what it’s like to be a liberal. Still, they should try it sometime.
11
This article bites off too many issues that can be adequately discussed in the format limits.
1. The constitution is an outdated document that needs a radical overhaul. It was a regional/class preemptive coup against "Jacobin" tendencies. It's aim was to deadlock the majority from stealing the "rights" of the minority. "Minority rights" meant "wealth" - the founders were very explicit about that.
2. Part of the federalist plot was to endow the constitution with near Biblical status as something beyond and untouchable. The result has been to straightjacket political development within the absurd confines of 18th century federalism.
3. Judicial politics is pretty much beyond the grasp of the popular press. It is a type of politics based on (and constrained by) the fair meaning of words. Beginning with Wickard v. Filburn (1940) -- the "out" means "in" case -- liberals did much to destroy the inherent constraints of judicial politics.
4. That said, the "divide" in the court exist more in the popular imagination (with respect to certain totem-issues) than it does in reality. The main determinant of judicial thought is the antiquated document itself. I'd keep the judiciary much as it is, but would abolish the Senate, replace state-federalism with regionalism, and adopt proportional parliamentary democracy.
The Settlement of 1688 in republican garb should have seen its day.
2
My faith in structural reforms has been severely eroded by events in Europe. The British parliamentary system seems so much more flexible than ours, more adaptable to change, but -- Brexit. No system, however well designed, can save us from ourselves.
We need a humanistic "great awakening" that focuses on our common needs across religious, race and class lines.
Preventing an environmental apocalypse shouldn't be a partisan issue. Only right-wing propaganda makes it so.
Healthcare for all has benefits for even the richest; universal healthcare and a properly funded public health system would be our best defense against a pandemic. And a healthy workforce pays taxes and makes us more competitive.
There is no upside to a poorly educated population. Making education a zero-sum game, where if one kid gets into college, another doesn't, is bad for everyone, whether you live in California or Wyoming.
Even church-state controversies might be moderated if conservative Christians could be persuaded that separation of church and state guarantees their freedoms, too; the Christians who gave us a secular constitution were motivated by the need to protect Christians from their fellow Christians. Protection of other groups was mostly a collateral benefit.
Major structural reforms depend on a national consensus that we have not got and have to build. Consensus would make those reforms less critical.
Meanwhile, vote for progressives and: https://www.nationalpopularvote.com
6
The Supreme Court has made both good and bad decisions over the centuries. Eventually, the bad decisions have been reversed or modified out of existence, via., Plessy v. Furguson. Today's Court, however, has been intellectually dishonest, seeking results rather than applying the law, i.e., the absurd notion that corporations have the same rights as natural persons and are capable, as entities, of political and moral thought.
Little consideration, however, is given to legislative cowardice that puts in unelected hands question better left to legislation, i.e., Roe v. Wade. The elected representatives no long represent the people and the people seem powerless to rein them in.
The Supreme Court has forgotten, deliberately, that entities are not people and not equivalent to people.
The Court is blind to the notion that a corporation is a fictional alter-ego with standards and goals ultimate at cross purposes with living beings in that it neither breaths nor eats and so is indifferent to environmental destruction or political oppression.
3
theres about half a dozen instances in American history of where the senate didn’t act on SCOTUS nominations and many, many, many cases where othe nominees were ignored or stalled. So no, it was not unprecedented and had even been suggested by Democrats the last decade as a legitimate maneuver
You really misunderstand the Citizens United case. The decision was based on almost 25 precedents going back 150 years that have outlined what a corporation is. Based on precedent, it was clearly correct even if you don’t like it. There’s a legislative path to address this shouldtyere be enough support by amendment, which was discusssedinthe opinion.thats how the process works
Juristocracy, now there is a new word. The only time there is possibly a "juristocracy" is when voters actually elect judges, like I know for instance, in Wisconsin for state Supreme Court Jstices because I just voted for one, but that is at the State level not the National level. The US Supreme Court is not a "juristocracy." It is two degrees away from such. First, a president has to be elected to appoint, then a Senate has to confirm. The people who wrote our Constitution did not think Democracy was a good idea. But they created the House of Representatives for "democratic" purposes. In terms of the National government, neither the Presidency, the House of Representatives, nor the Senate are elected on a national basis. All elections are State based. So there is no such thing as national politics electorally.
I agree with Ross Douthat that conservative Justices to practice the judicial restraint they so loudly preach. They never have, so why would they start now. Since the 1990s, our politics has become so hyperpartisan that even the judicial branch is now undeniably politicized.
I will also agree with Mr. Douthat that we should rely more on democracy, and less on juristocracy. On the other hand, Douthat seems not to acknowledge that some fundamental rights must be placed beyond the reach of Congress and meddlesome state legislators. Douthat laments the U.S. Supreme Court's rulings ending prayer in public schools and uprooting "Christian-influenced morals legislation." But the Court was correct to do this. So, by all means, let's shrink juristocracy, but not to the point that our basic rights and freedoms are subject to legislative majorties.
3
I repeat myself. Let the Trump worldwide recession begin! His base supporters are the most vulnerable to its effects. The trade war will accelerate the ascendency of Chinese economic power. The founding fathers and the US Constitution failed to foresee the consequences of a one party dominance of executive branch, the house and senate, and the politicians in black robes, a.k.a. Supreme Court, who use the fig leaf of the US Constitution to reach decisions that suit their political party preferences. Increasingly, the imbalance leads to Republican support for our nation's internal and external enemies in order to stay in power. Our nation is in dire straits without sight of lawful solution except through a fair election . . . an increasingly elusive goal.
2
Thank you. I'm always saying, states' rights should have died with the Confederacy, in 1865.
The problem is more simple. The issue at hand is not what liberal and conservatives think but much more of a Kantian categorical imperative to do the right thing. The right for a woman to own her body, universal healthcare, state provided free education, functioning public infrastructure, more equal wealth and income distribution, universal gender equality are all to be givens in a contemporary democratic society. Hiding behind ideological cliches and making everything relative, constantly abusing false equivalence is dishonest. Let’s unite behind a leader who will take us out of the horrible mess created by Reagan, Bush, Bush and Trump. Vote in 2018 and 2020 for the light finally shine through.
5
Ross, How can you simply look as past majorities and the conservative ascendancy to draw conclusions? Remember Merrick Garland? If the Con artists led by Mitch McConnell had done their Constitutional job, we would not be facing the reactionary takeover Kavanaugh represents. And if the GOP had been reasonable instead of nominating the irrational Trump. Past liberalism was a genuine effort to "form a more perfect union" and "promote the general welfare" by extending civil rights and liberties to suppressed groups.
Supreme Court or Super Corruption?
2
Oh please. Enough with the "both sides do it" Ross. Especially since no political party in our nation's history has done anything close to what Trump and the entire GOP have done/are doing here: namely, either directly conspiring with a hostile foreign adversary to install an illegitimate president, or looking the other way to allow that president to continue in power - and thus seed our judiciary with his tainted judges and justices for a generation. Trump should not be allowed to appoint ANY judges or justices until the Mueller investigation is complete. Shame on you for participating in the GOP Party Over Country Power Grab. It is deplorable.
6
Wait a minute, ross. I thought this was a political column. Instead today we get a conservative dystopia from an alternative universe: the Eisenhower 50s were liberal, and Nixon won the 1960 popular vote. That's science fiction.
3
I didn't know about Democrats' advantages of yesteryear, so thank you for that lesson.
To answer your question, what this leftie wants is fundamental fairness that is faithful to our highest democratic (small "d") ideals.
That means House districts that aren't hopelessly gerrymandered in either direction. It means not playing dirty with respect to judicial confirmations, with Merrick Garland demonstrating the dirtiest and most shameful (but far from the only) playing so far. It means not trying to suppress voter turnout for partisan advantage -- a reprehensible tactic.
Whatever has happened in the past (and again, thanks for the lesson), it's clear that the most undemocratic impulses of the present are concentrated on one side. I'd be ashamed to advocate a counter-assault that gave my side similar illegitimate advantages. Can't we find a way to embrace democracy in good faith?
2
Another blatantly false equivalence from the dishonest American White-Right.
Unlike Douthat, I remember the decades of racist "Impeach Earl Warren" signs. Unlike Douthat, whose knowledge of law too often comes from Federalist Society fables of "originalism," I have "read" and practiced real law for more than five decades.
The epithet "activist judges," was created by White-Woing propagandists such as Frank Luntz to slander liberal judges who reached reasoned decisions that challenged authoritarian privileges and abuses, such as Jim Crow laws and laws. Racist Republican losers adopted the epithet "activist judges" because it conformed with their white supremacist, misogynists opinions.
The Republican majority forfeited the court's legitimacy in Bush v. Gore, when it functionally appointed their party's candidate to be president by abandoning their prior hostility to "equal protection" analysis and issuing an decision so utterly devoid of precedent and principle that it commanded that its own opinion never be cited as precedent. Bush judicial appointments were illegitimate.
The Republicans abandoned any pretense of support for a constitutional republic when it contorted the Constitution and common sense to contrive the profoundly anti-democratic decision in Citizens United.
Five to four decisions by that court are not entiled to respect, deference, or even obedience.
9
Professor Aristotle the Peripatetic said that justice is the proper order of events.
The proper order of events did not occur in the Merrick Garland situation. Therefore, it was unjust.
How do you fix injustice on a large, nation-moving scale?
How does the small man defeat the giant? When the whole army of Israel cowered and wrung their hands, David stepped forward and used a paltry sling to defeat Goliath. God was apparently on his side. That's just a myth, of course, but maybe it's a clue to posterity, also. A brave person with right on his side can move mountains.
Where's our person?
2
Well, heck. Those pesky liberals bucking the majority trend to give all citizens the right to vote; to not be kicked out of a diner because the color their skin. How dare they read the law and apply it to everyone.
Whereas, dare I say it, the “rights” version of overriding the majority is to limit voting access, allow bakers to refuse service to gays and deny he people and the president a Supreme Court justice rightfully belonging to them.
No Mr. Douthat, all things being equal, there is an inherent inequality in the perception of how conservatives, such as yourself, view the world.
5
It was once believed by experts -- and is still believed by many Trump supporters -- that the world is flat and the sun revolves around the earth.
Judge Kavanaugh -- having achieved a considerable amount of book-learning -- believes:
-- Women cannot be entrusted with the care of their bodies.
-- Corporations have more rights than people.
-- Every breathing America is entitled to join a Militia and own a machine-gun.
-- The environment is currently doing just fine on its own.
-- U.S. Presidents are too busy to be held accountable for their crimes.
Such alas, are the limits of book-learning as a substitute for common sense.
5
Every breathing American ....
1
Speaking of "nothing new in American history", I suppose you would say the same about what McConnell pulled by not granting Garland a hearing, and then killing the filibuster (which he would have done regardless of what the Democrats did earlier), thereby enabling the republicans to steal the seat vacated by Scalia. Nothing new there, eh? More faux outrage, right? Much ado about nothing? Amusing?
2
Ross, once again, makes an attempt at normalizing the psychosis that has come to permeate his "conservative" movement. We're to believe that level-headed concern over the radical ultra-right theocratic, autocratic, authoritarian, and fascist mutation, that now refers to itself as "Republican," is unfounded.
Answer this, Ross, PLEASE.... when the astute and balance-minded Senate Majority leader decided it would be a good, sound idea to block any appointment of a Supreme Court justice in the final year of the last administration, that shouldn't have been cause for just a little concern among the balanced? A "skeptic" sees things AS THEY ARE, and navigates reality empirically. Maybe when corporations no longer own institutions, politicians, and judges, and elections are fair and equitable again, without outside influence by an arch enemy, and inside influence by congressional fraud, then maybe we can talk about the good ole days again, and how they apply now. Until, you're not even close to be on base with this one.
So no, nice try, but we are not ALL Supreme Court skeptics...only those among us who can decipher an immoral, dishonest hypocrite, of which there are many, from the rest, of which there are fewer and fewer.
2
It's called "payback", Russ. Sadly it is the way of this sordid political world. There was a time when the notion of moderation, openness and negotiation was the norm. Now, it's eye for an eye', "elections have zero sum consequences", game on.....sorry to say.
Tip and Ronnie, where are you?
While lamenting partisan behavior in the past Douthat might want to answer the question of why Mitch McConnell illegally blocked
President Obama from appointing Judge Garland to the Supreme Court. Just a partisan foible? I think not.
3
Is there anyone in this country who cares about the separation of church and state or about the rights of those who wish to practice no religion?
1
And we have a winner. The zenith Of " both sides do it, but liberals do it most ". Ross, you can rest now. You got what you wanted, and maybe next time YOU personally can make the decision. As in my terrible, horrific, very bad nightmares. Seriously.
1
The most popular version of bad-faith trolling online is to appeal to hypocrisy. The technique is, you accuse a person of not living up to a value that you, yourself do not hold, but you presume they do. These arguments are almost always incoherent, of course. You're criticizing someone for not living up to a value you don't actually endorse, you're framing the issue to create a contradiction where there probably isn't one (oh dear, do liberals like it when the supreme court is liberal, but not when the supreme court is conservative? how terrible!), and you're usually not even comparing the same individuals to themselves (what hypocrites, those liberals of today going against... the values of completely different people in the 1970s!).
Worst, it's all surface-level. It's a gotcha. We can talk about actual ideas, or we can throw sophistry at one another. We can do better than this column.
3
In the 40's, 50's and 60's liberals were acting like
Christians...and they still are. If you have heard the Gospel well taught, this is not a surprise to you.
You fail to mention that McConnell stole a Supreme Court seat from Obama. Given that justices seem to sit in the Supreme Court for decades, this act of thievery is what has infuriated the liberal order. There is no way a sixty year old Democrat can come to terms with the underhanded way that Obama was treated. All out war with the Republican establishment is the only sensible response to their criminal antics.
2
57% of the vote resulting in a 2/3rds majority for Dems seems like justice for all the African Americans and other minorities who faced the reality that their attendance at the local voting booth wouldn't be appreciated, at all.
1
This column should be called “fun with false equivalences”. Your party, Ross, stole s Supreme Court seat from a popularly elected president. You fail to mention that in your tit-for-tat list.
Perhaps the biggest problem of minority rule right now is that it seeks to be just that, minority rule. Republicans and their “I’m not president for New York, I’m president for Pittsburgh” president don’t even pretend to govern for the larger public good. Each day the president portrays naked animosity for over half of the country. He has rallies where he smashes the “elites” (I.e. the educated, city dwellers, liberals) and encourages half the population to do the same. ‘Punch em in the face” if you don’t like what they say.
My son was in the park with a friend and coworker last week when his friend was approached by three threatening white white guys. That’s what happens when you empower hate.
Your court, as you wish to build it, seeks to weaponize the ugliest instincts of your minority party, and to secure minority rule far into the future. Your party won the presidency with the help of a hostile foreign power, and no one in your party in Congress seems to care, or care to stop interference from happening again. Better to win with Putin’s help than loose without?
No, Ross, there’s something new under the sun. Trump, and your party now, break all the rules. No false equivalences. A stolen seat, followed by an election tampered with by Russia. Enough moralizing.
4
I respected Mr Douthat's piece until he brought up the conspiracy theory -- from a Real Clear Politics article, no less -- that JFK lost the popular vote. Several more serious (and less partisan) sources have shown that to be false.
Peddling conspiracy theories is beneath a regular nytimes opinion writer.
1
What would the right wing do without false equivalence? They'd be paralyzed at their keyboards.
5
It's disingenuous or dumb to mock liberals for being concerned about the Supreme Court without mentioning the Republican's flagrant abuse of the constitution that kept Merrick Garland out. That behavior is new and part of a trend that scares me.
4
State what you mean when you describe this countermajoritarian stuff so that we can see you and your countermajoritans for what you are--selfish, heartless and greedy fools.
"The latter is more likely; the former more desirable."
Thanks for throwing us a bone, Douthat.
You and every conservative I read or speak to remain very vague about the details. What exactly happened in the mid-20th century when liberals were the bullies as you describe them? Steps towards racial and gender equality? Social programs to protect the poor, elderly and sick?
1
agreed, Ross.... but the THEFT of a seat is certainly without precedent. And THAT is the problem that makes this time so very, very different.
If the Dems win the Congress, I believe that Gorsuch should be recalled.
1
Too bad the US is so awash in this kind of false equivalency dialogue. It could also be argued that modern Conservatives accuse others of ways of operating because that's who they themselves are....witness DT. He's actually created the very corrupt and moraly repugnant regime he accused the Democrats of being. As long as media uses the vocabulary of this current regime, the more all behaviour becomes relative. The US is already being massaged to accept the Russian interference with false claims about the connection with the Clinton campaign...'everybody's doing it'.
2
There's no point suggesting reforms that the Republicans will not cooperate with. Term limits? Enlarge the house? Seriously, you think we have the votes for that? There's no point descending into silly fantasies.
1
The notion that liberals or Democrats are in the majority is laughable.
1
Then why did Hillary Clinton win the popular vote, or Al Gore, or Obama?
It is long past overdue to appoint an atheist to this court to teach its present collection of superannuated children what an "establishment of religion" is and why the Congress is barred from enacting any law based on one.
8
I’m cringing at this vain attempt to describe the actions of liberal and conservative courts/congresses as a zero sum game. And. OMG, Nixon actually won the election in 1960!! (did I really read that in the NYT?) Ross, Note to self, 45 did not win the popular vote and I pray everyday that when he loses in 2020 that he will vacate the WH peacefully.
Ross Douthat conveniently left out 1 thing that delegitimizes the current court in the eyes of Democrats -- The unconstitutional theft of a Supreme Court seat. We will never forget that.
2
And first we had a high-handed court handing the 2000 election to Bush.
1
If the court represents the views of a minority of Americans it becomes illegitimate. Good luck wit that.
3
Why make it so complicated? It’s the freedom created by liberal policies that stoke fears in conservatives. One way to alleviate these fears of immigrants, choice and cultural diversity is to go back in time as though none of this happened. Trump, MAGA and newly appointed justices are manifestations of these fears.
1
I took Constitutional Law many years ago. The Supreme Court of the 1950s and 1960s was concerned with protecting the rights of the minority, the disadvantaged and the defendants in criminal cases. One can argue that blacks living in the South were treated as second class citizens and denied their constitutional rights. The Supreme Court played a key role in making our society and institutions more democratic. I believe the Founding Fathers envisioned such a role for the Court.
Today the Court is being used by a minority, also religious groups, to impose its views upon the majority. From gun control, abortion, gay marriage, political campaign funding, election laws and funding to religious institutions the minority is seeking to impose its will upon the majority. Also McConnell violated his oath of office by not allowing President Obama to nominate a Supreme Court justice.
9
Ross, as usual, fails to note the obvious difference between the liberal judicial activism of his youth and the conservative judicial activism of today-- popular support. As Ross admits, the liberal judicial acitivism of the past reflected the majority perspective. Conservatives, on the other hand, have not won a majority of votes in any branch of government yet control all three. Ross's colleague David Brooks admitted that conservatives mounted a 30-year campaign to pack the court. A constitutional republic is a form of representative democracy. If the Constitution ceases to yield results representative of the populace, it seems reasonable to use the Constitutional mechanism to change the document, just as the framers intended. Supreme Court term limits and strict apportionment of House seats (rather than giving states like Wyoming and North Dakota a representative windfall compared to California and Texas) are pretty conservative steps to ensure our republic can endure.
1
Ross, you lost me after the 6th mention of liberal. I disagree with what I believe to be your premise that any type of judicial activism is bad. Sorry, if the liberals kept our classrooms from becoming Christian revival meetings but I'll trade that for a liberal activist Supreme Court that protects a woman's right to choose; ensures the continuation of the Civil Rights Act; protects collective bargaining, makes sure consumers can sue a corporation and does what it can to preserve the environment. Will majorities be overridden when the conservative activist Supreme Court undoes these things?
4
A conservative point of view that I can actually appreciate. I want to do some research as to the reasons why Democratic majorities were larger than the congressional popular vote. Was it just gerrymandering?
Of course the Supreme Court has somewhat reflected the nature of the ruling party — elections have consequences, and the losing party needs to acknowledge that. What Mr. Douthat conveniently ignores are two recent facts: 1) the unprecedented theft of the Merrick Garland seat, and 2) the popular vote victories of the Democrats in 6 of the past 7 presidential elections. That the Supreme Court is set to be so out of step with the expressed will of the American public (given those two non-democratic facts) is the outrage. The increasingly partisan nature of their decisions over the past 15 years exacerbates the problem and risks their future legitimacy in the eyes of the public.
6
The nice liberal-conservative symmetry proposed here amounts to the staple of playground arguments, "you did it first", but the facts do not support it. The Warren Court was not meticulously devised over decades to promote a liberal agenda - it simply reflected the fact that the views of the great bulk of the country were evolving.
During the entire existence of the Warren Court and beyond, it was accepted Supreme Court justices should have what we used to call a "judicial temperament", which was code for moderation, and preferably have already-distinguished careers behind them. If the Court shaded left or right, it was in any case not the result of an organized campaign to move it there.
No, the unprecedented and dubious project of seeding the Court with comparatively young, reliable ideologues is a right-wing creation, generously funded by the legitimate heirs of the John Birch society. Literally decades have been devoted to this pursuit, backed up by the false narrative of liberal-conservative symmetry.
They are congratulating themselves now on their victory, but the entire project is flawed for the simple reason that it is not the institutional role of the Court to function as a manifestly partisan entity. The legitimacy of its opinions will be eroded, as will its influence.
Some long-missing judicial restraint could yet pull this Court back from the brink. Otherwise term limits will do the job for them.
7
Yeah, and conservatives call liberals "snowflakes". Ross here thinks he's serving up some "justice desserts" but in fact he is simply pointing to a future of taking away rights based on HIS religious beliefs. I don't have to tell you where I think he should put those beliefs. Conservatives need to be careful. They've been warning us that we need to be careful long enough. Now just go ahead and do whatever you all are going to do but the future is bleak for you. Your advantage is the result of obvious cheating, probably illegal activity. When this is all over and Trump is in jail there will be a sorting out and I for one sincerely hope that voices like yours are removed from these pages since to me you have simply been an arrogant religious twit and this op ed just makes me want to slap you repeatedly like that batman meme and say, "no religion in government, idiot!"
5
Maybe all true........ but the "liberals" never hacked an election with the help of Russia, and seated a moronic and dangerous puppet president, on the tab to Putin.
4
Another tiresome screed against liberals. Really, Ross, you need some fresh material. But I guess you're okay with the Supreme Court turning back the clock on women's rights, voting rights, LGBTQ rights, the rights of non-Christians, and asylum for refuges, because you are the walking, talking poster boy for "white privilege." As long as YOUR rights aren't affected, who cares what happens to everybody else?
"Ecumenical prayer in schools"? Give me a break! School prayer was composed by and focused on Baptists. Catholics and Jews could take a hike. Explain to me how a 21st Century public school classroom filled with Episcopalians, Baptist, Pentecostalists, Presbyterians, Catholics, Greek Orthodox, Russian Orthodox, Jews, Muslims, Buddhists, Shintoists, Hindus, Sikhs, Rastafarians, and atheists could possibly come up with a prayer that would not offend or marginalize at least one of these religious traditions.
School prayer was not meant to ask God for blessing. School prayer was "Christian triumphalism," designed to impress upon those who disagreed with the majority: "We're RIGHT, you're WRONG, and you're all going to hell unless you convert." And that is NOT what America stands for. You should know better.
13
I think discrediting the Supreme Court is the objective of this secretive collection of too-rich people who have substituted the $ sign for Christianity as the sate religion of the US.
The legislation that put "under God" into the Pledge of allegiance was an utterly specious and unconstitutional ploy to inoculate the US against "Godless communism" that handed the nation over to the greediest people on Earth.
1
Another judge to dehumanize and terrorize minorities. Republicans should be proud.
2
as a liberal independent, i agree that the dems need to keep working toward legislative control in 2020. rather than lamenting the conservative supremes, they could clarify existing laws to protect women's rights, environmental protections, health care for all, and voting rights. screw mitch mcconnell.
1
The countermajoritarian concerns that Douhat describes seem cyclical between left and right. I'm more concerned about the countermajoritarian trend that is only rightward, as described in the WaPo report today that by 2040 voters in states with less than a third of the population will be able to elect a filibuster proof Senate. That is a real threat to our democracy.
3
The Liberals what to change the rules as long as it favors their interests/agenda, i.e., ending the filibuster. But now when they're out of power they want the rules changed - see that it was a bad idea after all... This idea about term limits for SCOTUS appointments is akin to trading in your car every year and buying the new model UNTIL the other party is in power, then the trade-in value isn't good enough.
As for the nomination of Kavanaugh during a mid-term election year, is it REASONABLE to ASSUME the POTUS should ONLY nominate a potential Justice to the Court on the 1st and 3rd year whether (D) or (R)?
2
There's one huge difference between the out-sized Democratic advantages in the '50's, '60's and '70's and the Republican advantage today: There was never a president with the gutter-level moral and ethical standards of one Donald J.Trump. Had there been, it's hard to believe Republicans would have calmly sought reforms of the type suggested here. As it was, even without such a low grade president, the conservative response to the progressive agenda of that era was singularly violent: John F. Kennedy, Martin Luther King, Robert Kennedy, Malcolm X. One might argue that it's not definitive that these assassinations were the direct result of conservative backlash, but it is not arguable that the forces of progressive ideas were the central targets.
As long as Donald Trump remains in office, aided and abetted by a disproportionate Republican congress and an ideologically packaged Supreme Court, the entire governmental structure seemingly aimed at destroying 50 years of civil rights advancements, environmental protections and global alliances --- both military and economic --- conservative pleas for calm, reasonable reforms will fall on deaf ears.
The time for calm compromise is when the opposition shows a genuine desire for such compromise. The Republican party is morally and ethically bankrupt, rife with hypocrisy and disingenuousness. Nothing short of a total overthrow of their counter-majoritarian position will resolve this.
9
This is not a liberal/conservative issue - this is the rule of law and the Constitution. Limiting the rights of women, blacks, and human rights in general defies the Constitution. The appointee is “pro-business” really - is that in the Constitution? The man incurred substantial debt in a short time. Let’s not have another Thomas moment. The wife and kids photo does not impress. Our country is verging on an authoritarian regime. Trump’s meddling in the U.K. affairs is an affirmation of his use of external powers to undermine legitimate governments. The mad about face on N Korea and the promotion of Boris Johnson as PM is astonishing in its brazen aggression. A hand picked Court wil enble Trump’s megalomania. And speaking of hands - a gentleman offed his arm / not the date night grasp. PM May do the same.
Since 1952 there have been 20 Supreme Court Justices confirmed under Republican Presidents (Eisenhower – 5; Nixon – 5; Ford – 1; Reagan – 4; George H.W. Bush – 2; George W. Bush – 2; Trump – 1 so far), and only 8 confirmed under Democratic Presidents (Kennedy – 2; Johnson – 2; Carter – 0; Clinton – 2; Obama – 2). Yet since the 1950s it has been the conservatives who have loudly denounced the Court as being the tool of the far left.
I have the imagine that the right wing’s dream bench would have to include Roger B. Taney (Dred Scott), James Clark McReynolds (who refused to speak with Justice Brandeis on the grounds that he would not have any dealings with a Jew), and Rufus Peckham (the author of Lochner v. New York, who wrote that the states had no constitutional power with respect to labor, as that would infringe on the worker’s freedom of contract).
After a brief hiatus I see Ross is back to defending the alt-Right agenda. it is one thing to talk about incremental progress to the right or the left. and another to endorse the destruction of 80 years of social progress because "the Democrats had some advantage in the past, so now it's the Republicans' turn" to undo the social safety net, torpedo social justice, roll back non-discrimination, destroy voting rights, and of course, make abortion illegal again.
This is not a partisan game! Either we move toward our national ideals of liberty and justice for all or we move toward a hierarchical fascist state where a minority has privilege and represses the majority, all based on ideology, wealth and power.
Ross is championing the latter, and I don't want to live in that nation. I hope he likes it, because that is where we are headed.
3
We liberals are an imperfect lot but at least we don't hide behind paternal Christian dogma written a couple thousand years ago to justify denying the rights of women to control their own bodies or to deny those who were born attracted to the same sex, the right to marry & be treated equally as heterosexual couples. Christianity is a learned belief system, not part of one's innate genetic code. Broadly speaking, Republicans believe Christian ideology trumps everything else. Furthermore, conservatives increasingly interpret that Christian dogma more narrowly to fit their own narrative which plays into a white male race fear of becoming an emasculated minority race. No, Ross, this isn't some cyclical Republican swing back to a kinder Christian conservative era. The mockery of the office of the POTUS by the questionable election of the most unqualified & least representative of American values individual in history, along with the equally history-making stolen appointment of Justice Gorsuch, are stark reminders these are historically perilous and not ordinary times. The conservative SCOTUS majority has already given us Citizens United which essentially gives corporations a soul and voting rights. Will a woman's newly fertilized egg be granted more rights than the mother carrying it? The Kavanaugh appointment will all but guarantee an ultra right Supreme Court for a generation or more of near "alt right" rulings. Sorry, Ross, terror expressed by progressives is justified.
5
So many opinions expressed below. So little fact. Good for Mr. Dothat to bring us something to think about.
1
Democrats did not prevent Republican presidents from nominating judges, and those that were nominated had to pass a 60-vote majority.
And yes, I realize conservatives had long been salivating for a court that would sell the country to the highest bidder, take away women's reproductive rights, disenfranchise minorities, impose a state religion, legalize gun mayhem, etc. Such worthy causes.
4
Kavanaugh will not be the swing vote inasmuch as an actual swing vote will be cast anymore. Those, when they occur, will most likely be cast by Justice Roberts.
Roe v Wade gets the headline focus with any new nominee. That's important but the more insidious threats are ever diminishing voting rights, either directly or through dilution via gerrymandering; diminished freedom of autonomy through so-called religious freedom rulings; and elevating corporations to overlord status compared to actual persons.
Think about it. The Supreme Court has already endowed religious organizations and corporations with power over their employees predicated on "strongly held" religious beliefs. It's only a matter of time before they will be granted the legal right to fire anyone who dares worship at the wrong church, or no church at all, or based on the gender of the person you decide to marry. Religious freedom is code for conservative Christians, especially Evangelicals, legally achieving in America what the Taliban and other self-proclaimed guardian sects have achieved in Afghanistan and elsewhere in the less democratized world.
The constitution forbids congress from making any law respecting an establishment of religion. It is completely silent regarding the supreme court doing so and one dominated by far-right christian conservative ideology will certainly take its best shot through interpretive sophistry dressed up as "strict constructionism".
4
When I think of judicial activism I think of Bush v. Gore, where a conservative SCOTUS installed a conservative presidential candidate who received several million fewer votes. Whatever the sins of the Democrats, they pale in light of the damage inflicted by this one decision alone. We are paying, and will continue for many years to pay, for this singular act of judicial arrogance.
In citing the Warren Court as an example of liberal judicial activism, I would remind Ross that Earl Warren was a Republican and nominated by President Eisenhower. That he disappointed conservatives is hardly the fault of Democrats.
Ross is dragging up injuries of decades past, both real and imagined, to justify the un democratic excesses being committed by a rogue Republican Party. In doing so he is beginning to sound like the leader of his party, Donald Trump.
11
You seem to miss the entire point of what’s happening to America today. While it’s true that the pendulum of Liberalism versus Capitalism, Left versus Right, Democrat versus Republican have been around since the beginning of democracy in America started, the actual tone is much more deadly today. The cancer in the Republican Party today is going to destroy our country unless you actually radiate the malignant ideology most Republicans have embraced. Forget trying or hoping that THEY will suddenly realize the train they’re riding on has jumped the track. It already has. The real question is will those disillusioned Republicans attempt to put their wrecked cars back on a broken track, or will they build a new track that has a real destination of Truth, Beauty and Goodness?
1
Ross, something you and your ilk will never understand is that progressives don't vote purely on the basis of self-interest. Some of us--while, reasonably well-off heterosexual men like me, for example--will be relatively unaffected by right-wing policy and legal decisions. But we--and I know this is difficult for you to understand--value the rights and happiness of other people more than our own selfish well-being. We'd gladly pay higher taxes in order that everyone have equal access to healthcare, good schools, quality affordable housing, etc. We can't be happy if our friends and neighbors don't have the right to marry whom they love, or receive equal pay for equal work, or live free from fear of the police.
Republicans thrive on narrow-minded tribalism; Democrats on communitarianism. That's the stark difference between the "activism" that brought us the Civil Rights era, marriage equality, and the like, and the one you envision rolling back liberties and protections for vulnerable members of our society in favor of the selfish beliefs and prerogatives that serve only a few. So you will continue to lecture progressives without having any basic understanding of what motivates us, which sadly reveals only your naked greed, self-interest, and anti-Americanism.
13
The fact that Clinton-voting counties control over two-thirds of US GDP is not"...a mark of the liberal coalition’s virtue, an indicator that those places deserve more representation than their mere share of the popular vote supplies." What it means is that eventually, inevitably, those voters in those counties with those resources will be the victors in the culture war and in a whole bunch of elections. Conservatives have held inordinate sway lately in US politics because they have been very good at coordinating resources. But that is not a difficult trick to learn, and Citizen's United is a double-edged sword -- it can just as quickly turn out that unlimited, unregulated corporate campaign donations hurt conservatives when everyone on the left, living in those rich, rich counties, start to pull the oars in the same direction. And let's not forget that your standard-bearer is a bozo, which will make everything easier in 2018 and 2020, and beyond.
1
This piece would be so much easier to read if Douthat did not have a smirk on his face throughout its entirety. There is only one thing that matters and that is that the Republicans do not have any agenda they can truly pass without being crooked, without maligning huge groups of people, and without circumventing rules and procedure. Refusing Merrick Garland's nomination will always be the CONservative Republicans slimiest and lowest moment. Unless Douthat or any other Republican wants to talk about this and the complete failure of the Republican led Congress to uphold their duties, well then, nothing else will even seep into the mind of a Liberal like myself.
3
Not one solitary word herein about the unconstitutional action of the politically corrupted McConnell in depriving a siting President's Supreme Court nominee of even a Senate confirmation hearing. Revisionist history by omission on full display. Reap what you sow, Father Douthat.
5
The conservatives hate Trump when it is convenient and back him when it serves their agenda, judicial or otherwise. Big mistake, when Trump and the Trumpists bring down the system on their own head as they almost surely will, the Conservatives, along with the Republican Party, will be left holding the bag.
As for Kavanaugh, my guess is that the Right wing majority, whoever is part of it, is going to schism, maybe subtly, maybe profoundly in the wake of the coming Trump disaster, with some running for political cover, and the other side standing on their conservative principles, whatever that means. Then we'll see what happens.
As for the Liberals, every day of this administration, is another day that liberals—and their allies in the media— take precisely, almost mathematically, the wrong line of attack against it, snatching (potential) electoral defeat from the jaws of certain victory. The future is not going to look like the past or the present. It will be, to coin a phrase, another country.
Douthat’s resuscitation of the canard about Nixon receiving more popular votes than did Kennedy’s beyond ironic, in view of the “election” of “Presidents” Trump and Bush the Lesser.
6
The Catholic bishops will rejoice if Kavanaugh is confirmed and Roe is overthrown. They will have sacrificed all of their Catholic
liberal instincts for one issue. So under the guise of abortion Douthat and the Kochs attain what they really want--the destruction of the New Deal--even subway systems.
3
Dems should not show up for the Senate confirmation vote. Not one of them. To play this charade a la McConnell would be the crime, not the absence. Republicans don't have a majority without McCain so Pence can't be utilized.
3
Ross, You are becoming unabashed religiously self righteous as the world changes and more diverse people interact and more opinions need to be exchanged. Minority rights are important and the Senate was created for that purpose. The comments about conservative values in previous posts are very on target. There are so many lies that the humorous look at liberal points of view don’t let you stop and see that the labels of states rights was a lie, the label of freedom of speech and religion is a gross lie, the acceptance of religious informing legislation as a fact of life and school prayer was a way that people imposed their ideas on other people’s children is the main reason school prayer was stopped. The pro life label should be replaced by a pro abortion anti sexual freedom label because if life is foremost it wouldn’t take second place to birth control financial support of young families instead of criminalizing. This Supreme Court acts as the government should fear voters and the citizens’ comprehensive morality when threatened by wealthy powerful Bible thumping hypocrites whose ideas don’t seem to be religious or humble at all. There wouldn’t have needed to be an Oberkfell case if states recognized the decisions of other states. Anti Muslim decisions by the SC were not related to security or presidential power they enabled a hateful law to go through. Take a little longer look at your so called conservative brethren and stop spreading false labels.
Correct me if I am wrong,
but I remember in the late 60's, perhaps 50 years ago
a man in Iowa was stopped by a policemen because his
car had a broken tailight.
The man was acting suspiscious and so the officer asked
the man to open his trunk. The man did not wish to comply but eventually the trunk was opened.
Inside was a young girl wrapped in a blanket.
She had been kidnapped and raped and killed when this
man abducted her from the Iowa State Fair.
He was convicted and sentenced to death.
The man was later given a new trial with that evidence
thrown out by the Supreme Court.
He went back to his ways and killed two more girls or more
before he was caught again.
Yes, we need to have our Constitutional Rights upheld
but not at the expense of Common Sense and the lives
of those who do not have the police protection and guards
that the Supreme Court has around the clock.
1
As Judge Kavanaugh is the jurisprudential twin of Justice Thomas, wouldn't that position Chief Justice Roberts as the new swing-vote? Though, Roberts has sided with the liberal justices in 5-4 rulings just four times, so he won't be swingin' often.
Goodness, Republicans have had a 5 to 4 or better majority for 50 years. Just what are you complaining about?
11
Ross, you miss the point. It's not about some abstract concept of the power of the judiciary. It's about what judges who represent and support and come from the selfish racist corporate power centers that own the United States will DO with their power. You, as a "conservative", are playing the "fair and balanced" game. The reality is that the politics and biases of right-wing judges will lead them to do whatever they can to disadvantage and damage poor people, people of color, the environment, working people, children, those in need of decent health care, and vulnerable people in general. This is not some theoretical issue. It's the reality of WHO these judges are and what they will do.
The rotunda turns. It depends on whose ox be bored with respect to SCOTUS and redistricting.
1
Voter suppression and gerrymandering will extend the Republican tyranny of the majority.
Echoes of Fascism: On Tuesday the President overrode the Administrative Procedure Act, intended to ensure that administrative law judges are well qualified, impartial and experienced, to be replaced by agency hacks.
https://www.whitehouse.gov/presidential-actions/executive-order-exceptin...
So much for Civil Service.
Will SCTUS sanction a return of the spoils system?
The liberals had a great run. From voting rights to civil rights to women's rights to LGBT rights. But along the way, they planted the poisonous seed that would finally bring this era to an end. No liberal will admit that it was Roe vs. Wade that pulled the conservatives out of their long demise and set them on this long search for judicial power. Liberals will never understand the moral affront pro-life people feel because of Roe. Liberals want to see the pro-life movement as an effort to control women's lives. Pro-lifers see it as an effort to protect the weakest of all human beings, something social justice people should understand.
But sooner or later, conservatives will create the moment that turns the tide the other way. Karma rules.
2
I don't agree. "Conservatives" have used the anti-choicers to advance their own agenda for years. This is made clear when you look at their attitude toward birth control and sex education. And when you deny a woman agency over her own body, you deny her humanity. The ability to control reproduction is crucial to women's equality. That is the basis on which laws governing abortion should be based.
2
We need to be skeptical not only of the Supreme Court but our entire one-party Republican dictatorship. They have conducted a right wing coup by corrupting the electoral process with Russian assistance. Trump is not our president- he is a Republican shill. Obama was robbed of his Constitutional right to nominate a Supreme Court Justice.
Stephens is going to cement in place voter suppression, eliminate Roe v. Wade, and back the NRA to the hilt. Like Trump, Stephens is a symptom of the collapse of the governmental foundation of "checks and balances" that were designed to prevent the rise of a fascist state.
Skepticism is justified to the Nth degree across the board, but we are still obliged to give our nation life support by getting out the vote in every election against the Republicans who illegally control our country - it is the CPR required in the face of our dying democracy.
3
It will interesting when Justice Ginsburg retires and then can speak freely. I’m sure she will. She had to apologize for her test run.
As a MODERATE democrat, I have no problem with conservatives when they end up "ruling" (bad word, because that is what Julie Nixon Eisenhower used). Thus, I have no problem when such conservative choose conservative judges, who at least decide upon their belief and interpretation of the law. What I have a problem with is when we end up with an incompetent, mean-spirited, bigoted, blowhard of a President that we have now. I admit I no nothing, but I nonetheless know more than him. Why do we have to have him? As much as I can accept conservatives, I would hope that reasonable conservatives can therefore accept liberals, or at least left-leaning types. But please not let us have to accept total incompetence types.
No mention of how a stolen seat on the Court plays into all of this, I see.
3
You're not patriotic, Mr. Douthat; neither is the Republican Party. You're not conservatives, you're reactionaries. What ever happened to reasoned debate, to consensus, to compromise?
Republicans want to crush democracy. They want a plutocracy, hard and in place forever, free from the fluidity of cyclical elections, free from the recall of those who serve the narrow, monied interests.
They achieved all this incrementally, and, as is usual in American politics, they cranked the handle of racism--its dog-whistles and its innuendoes and its suggestions and is threats--and the unscrewed it from the door and blew it up. I doubt that we, as a country, have the will to try to fashion another to replace it so the internal bleeding can stop.
Consequent with the rise of the "real" reaction that was the election of Ronald Reagan and his disparagement of government. "It doesn't work," he warned, while suggesting no replacement. But, on the quiet, he rigged the Supreme Court with ideologues far to even his own right. Anthony Kennedy, it should be remembered, wrote the deciding 5-4 opinion on Citizens United. That decision's subtext should be interpreted as "government is the problem."
Reagan's elevation of the racist William Rehnquist was no accident. He was a Nixon appointee in 1971 and was always on record as being anti-black and anti-voting rights. John Roberts now follows along, led by a leash, controlled by shadow money.
None of whom I mentioned are patriots, Mr. Douthat.
None.
9
Democracy is in peril. The majority no longer rules; a determined minority has the whip hand. This is not an argument on liberal's lips. It's not an argument at all. Look up argument in the dictionary, Douthat. It's an observation that informed not just liberals, but also most Trump fans. There's a reason they wanted to "shake things up". Our government does not work for us. In fact the republicans fought every decent thing our government has tried to do for us. If you want us to believe that you don't know America has lost the decency vs big money battle, you're lying. And we're tired of lies.
4
More Douthat rookie-itis. He declaims "the entirety of the culture war, where majorities were consistently overriden, legislative debates consistently short-circuited, and longstanding features of American life — ecumenical (?!) school prayer, Christian-influenced morals legislation — overruled or uprooted by fiat." Mr. Douthat seemingly has never heard of constitutional rights and protections. The principle that majoritarian rule is akin to mob rule is merely a central underpinning of the American Experiment.
(Btw, the reason Nixon didn't protest JFK's theft of Cook County votes was that he, Nixon, had stolen the downstate vote and he knew his protest wouldn't withstand the required statewide scrutiny.)
Just be grateful that the new majority of SCOTUS is now fully under the sway of your chosen cultic religion. It's what you want, no? A business-centric theocracy.
3
Douthat is correct in that many of the SCOTUS decisions about race, sex, women's rights to abortion, prayer in public or state property, free speech etc did not have the approval of a large majority of the citizens when they were decided.
And now many of the Scotus decisions will be looked upon as wrong by a majority of the citizens for the cultural war is over and Douthat's side has lost. The Catholic Church has lost all of its previous standing as a regulator of morals by its criminal cover up of sexual abuse of children by it clergy. Even Ireland and now Chili have turned their backs on the church and legalized abortion.
Evangelicals have revealed themselves to be a culture not a religion. A culture of misogyny, racist, xenophobic and homophobic beliefs. Thus they have embraced a POTUS who is morally corrupt because he promotes the same beliefs. Roberts will have to walk tight rope to keep the court from being perceived as merely a wing of the Republican organization.
3
Not just "cover up of sexual abuse of children," but sexual assault of young men by older men. Precise language helps us understand what has happened.
3
Typical Republican obfuscation. Citizens United is the real problem here. The new majority in America is money, not the people.
6
What's to stop our next Democratic President to appoint 2 SCJ's? I mean add two to the SCOTUS. Sounds good to me, since it looks like the rules aren't being recognized anymore.
1
Wow. Even for this guy, this essay is simply silly. The current circumstances are way beyond the pale of anything that preceded them.
1. An utterly illegitimate Supreme appointed to the highest court in the land after the utter abrogation of civic responsibilities from an entire political party in clear violation of the oath they took.
2. Undeniable evidence that a presidential election was fraudulent after direct interference from Russia.
3. An illegitimate president under investigation for colluding with Russia to win the election, who then is allowed to appoint one Supreme and then actively entices another to retire so that he can be replaced with another illegitimate justice.
4. Electronic voting at the state and federal level that evidently is easy to tamper with with no means of confirmation or recount, as there are no paper ballots.
I could go on but one can only stomach so much betrayal and so many bilious lies before becoming ill. I read Douthat regularly, as I try to be informed and maintain some balance in my perspective. Would that Mr. Douthat tried a it harder to maintain some balance in his when things are so obviously and horribly amiss.
3
The threat is not from a conservative-leaning Supreme Court. Instead it is from justices who, like weak-kneed Republican congressmen, may bend to the whims of a president who lacks a moral compass.
1
Lol. It’s amusing when conservatives make the assumption that liberals have only just realised the perils of judicial “activism” - a concept, incidentally that reveals the person uttering it to be completely ignorant of the arcane world of jurisprudence (this writer has an honours degree in law and a faculty prize in jurisprudence).
I have only two words in response: dredd Scott.
3
First paragraph says it all.
The drastic solutions require Constitutional amendments, including: (1) one ten-year term on SCOTUS, (2) statewide elections of representatives, (3) senators apportioned by population, with no state having fewer than one senator, (4) the right of all non-incarcerated citizens to vote in all federal and state elections, (5) equality of all persons under the law regardless of any birthright circumstance or conversion of conscience, (6) definition of only human being as persons under the law (corporations are not people), and (7) definition of speech as only verbal, imagistic, and gestural expression (money is not speech).
1
The difference, Ross, is that conservatives hewed to a principal of opposing “judicial activism,” which was an obvious fraud then and proven so now. The purveyors of that fraud now seek to equivalize it with liberal warnings of anti-democratic minority rule, a kind which has a stronger name. Who are these venal lackeys? A question for pondering in the shaving mirror?
https://www.nytimes.com/2009/06/02/opinion/02douthat.html?_r=1
Yeah Ross, Brown v. Board was “countermajoritarian” (sic)(it’s not a word).
I guess we should still have “separate but equal” under your rubric because the “majority” of the country in 1954 was just fine with the racist society Plessy enabled and encouraged.
And Roe v. Wade was counter majority opinion too.
So I guess you would have it women should not have control over their reproductive destiny but politicians governed by the will of the “majority” should.
Margaret Atwood wrote about the logical extreme of that approach.
There’s a “UGE” difference between interpreting the Constitution as an organic living document, as was intended by the Founders, consistent with evolving notions of the guarantee of “life, liberty and pursuit of happiness” as SCOTUS did in Brown and Roe, and perverting those values in favor of the rich and powerful, the xenophobic, and the benighted “majority” they represent, as SCOTUS did in cases like Citizens United, Shelby County and now Trump v Hawaii.
Expect more of the latter from Kavanaugh.
There’s absolutely no irony in “liberals” complaining about the rigging of the Court through Mcconnell’s theft of Garland’s seat and the prospect of another alt right person sitting on the Court for a generation or two perverting the meaning of federal laws and the Constitution.
The complaints are called patriotism Ross.
And apple and orange comparisons are the touchstone of specious arguments.
Notch another one for Mr. Douthat.
2
Oh, Ross, not again...
You ignore a fundamental difference between the "liberal" SCOTUS of yore and today's gerrymandered, stolen, litmus tested bag of radical conservatives.
In days of yore the Supreme Court took seriously its primary function of ruling according to its interpretation of the Constitution and the law.
Disputes arose, most often, when those interpretations varied by Justice.
Another consideration was to safeguard against tyranny of the majority; to assure that if one person had a certain right under the law, everyone did. You may not have liked the result but only a deeply cynical person could quibble with the overriding motivation.
Speaking of deeply cynical, this where the Republicans come in.
Spin it, twist, wrap it in gala paper, whatever you do, you can't deny the Garland affair was un-American, unpatriotic, self-serving in the extreme.
Based, as the duplicitous McConnell jovially admits, upon an outrageous lie, it makes clear today's SCOTUS is not your father's SCOTUS.
It is a team of be-robed political hacks, selected because politicians have assured themselves they know what their decisions will be before the question is ever brought before the Court.
You can "Well Liberals did it first, nyah nyah..." yourself to death, it doesn't change the reality that you and your beloved Right substantially and intentionally changed the game to the detriment of your country and your fellow (said advisedly) citizens.
Not that any of you care.
3
Ross bemoans the loss of what he calls “ecumenical school prayer”. In Scranton, PA, the public school day began with the Protestant version of the Lord’s Prayer. Exactly what is ecumenical about that?
"Judicial restraint." Is that what you call it when women can't control their own bodies and religious zealots are free to exercise their bigotry?
4
Much of these comments are sheer paranoia! These are brilliant, honorable men who have no reason to act in the way the lunatic left appears to fear. I look forward to their mea culpas down the road when they realize none of their panicked fears have, in fact, materialized. Meanwhile, I'll continue enjoying the schadenfreude engendered by their flailing for a solution they cannot achieve!
1
It is the Republicans in the House that are now trying to interfere with special counsel Mueller by trying to impeach Rosenstein. What next, fire Mueller? The Republican Party is trying to destroy democracy and the rule of law in America.
2
Ross, your wasting ink - liberals don't care if the tables were tilted in their favor in the past - they only care that they are not in charge today. And if you want to add another undemocratic-standard, how about congressional districts determined by general population instead of the number of citizens? We have urban districts with significantly less legal voters than suburban ones yet I don't hear any cries of "unfair" from the democrat peanut gallery. I wonder why?
1
Great article.
Hypocrisy is the foundation for both political parties. Democrats rejoices when the Supreme Court “discovered” a right to abortion within the “penumbra” of the newly revealed “emanations” associated with the just created “right to privacy.”
Obviously, no rational person believes that Supreme Court analysis is constitutionally sound. It’s obviously silliness
Republicans rejoiced when the Supreme Court discovered that corporations are not actually legal fictions created by legislatures to minimize liability and take advantage of federal tax law, rather corporations are “people”, entitled to donate as much money as necessary to purchase politicians, because after all money isn’t money, money is speech.
Watching the Democrats whine now that the Supreme Court isn’t ruling its way is at least amusing.
1
Liberals are afraid of fundamentalism, literalism, textualism and originalism. Conservatives are afraid of contextualism, relativism, principle and the larger meaning. Jesus (equated religious dogma to dead man's bones) and Einstein (General Relativity) proved the conservatives’ fears were wrong.
1
This may be the most off base editorial column I have seen in quite some time. I usually read Mr. Douthat with some curiosity. This is terribly disappointing, because it seems like it is written by today’s Republican Party.
The unbridled hypocrisy that this column, and the Republican Party regularly regurgitate is offensive and totally illogical. Like a child, the Republican Party sees no harm in taking two cookies when mom allows one. The sibling (Democrats) complain. Seeing that it does not impact the thief, Democrats might take a second. The childlike Republicans then complain about hypocrisy.
This scene plays out over and over. Republicans tried to make the election of Clinton about his personal life. When Democrats argue this point (bemoaning the hypocrisy of supporting Trump), they are called hypocrites. Republicans steal a Supreme Court appointment, and then suggest, when Democrats might contemplate the same, that they are hypocrites. Republicans investigate Mrs. Clinton for anything and everything, but call for an end to Mueller’s investigation.
Let’s face some facts, Democrats, you are dealing with a Party that has no standards for decency. There is no reality with them, as it is only about getting that cookie.
4
We were fine until Citizens United came along.
Ross, if it were just liberal fears of a right-wing Supreme Court, you make fair points. The problem is that the stacking of courts (and let’s not forget Merrick Garland) is all of a piece with the Republicans going whole hog with Trump in trashing democracy. We see that Congressional oversight must not displease Trump’s base. White supremacists must be treated with kid gloves. The free press is fake news. A hostile foreign power hacking into the election process isn’t a bit deal. Any effort to look into this is a witch hunt. Give allies in liberal democracies a hard time. So what if Putin is rubbing his hands with glee.
If you want an America that would have horrified the Founding Fathers, this is the way to go about it.
3
Nonsense, Ross. Liberal countermajoritarianism pushed to open up American society and limit the power of the WASP status quo; the current conservative countermajoritarianism is reactionary, an attempt to restore that outdated and unjust status quo. MAGA, but for whom?
Great article until Douthat started offering solutions to the problems. We don't need to change the Constitution. We need to change our behavior.
The Republicans, with Trump leading the way, are pursuing the only goal that makes sense to a party with an increasingly narrow base: a one-party state brought about through disenfranchisement of non-supporters-- restrictive voting laws, voting roll purges, using the federal census to assist state voter roll purges. Trump sees a lot to admire in Putin and Kim Fatty the Third, most of all their tight grip on power, and Congressional Republicans seem to see him as a mean to end, to secure power into the foreseeable future, despite a narrowing base and a poorer, less white electorate whose interests are not represented by the GOP. Will Kavanaugh play a part in this plan? Hard to say, though he was likely chosen because he has lengthy Washington experience, a factor that seems to correlate with a Supreme Court justice maintaining his or her conservative views (despite pressure to please a more moderate DC establishment.)
6
So … when you dream of a better alternate history for the US, you wonder longingly "What if Richard Nixon had won in 1960?"
There's so much wrong with this column, I'll just let that one point speak for the whole.
10
I agree. The so-called liberal reforms he speaks of aren't that liberal. They were founding ideas that were ignored, or overridden by a small faction.
The issue of privacy that Roe rested on is riddled clearly in the constitution and they chose that because the justices did not want to veer into the dangerous idea that women had equal rights to bodily integrity (the stronger case). So hardly a contrarian view at the time. As for marriage equality only a minority is served by denying it.
Originalism is self-contradictory in light of the 9th Amendment, which clearly and plainly states that there are indeed other rights that aren't explicitly enumerated in the rest of the Constitution.
7
Yes, exactly, these blatantly dishonest "originalists" refuse to accept the reality that limitation of the powers of the majority is the protection the Constitution gives to the rights of minorities. There isn't an honest person in the whole plutocrat-funded "Federalist Society" acting out the charade that the Congress can exercise powers we never delegated to any layer of government.
1
Your point is well-taken. Most people, liberals included, are less interested in creating a just system and more interested in flipping injustice to their own advantage.
However, your analysis relies on massive myth. That counter-majoritarian sweep of liberalism following World War II? Conservative played a central role in that,
In truth, the dominant conservative leaders split with the conservative masses. The latter was mostly concerned with Communism and socialism here at home. The former prioritized fighting Comintern, and thus concerned themselves with countering anti-American propaganda. Thus, Jim Crow needed to be squelched. Social injustice had to be addressed.
American conservatives being tactically superior... Legislation was allowed to pass. Justices were named who would enforce the Reconstruction Amendments. Majority opinion was overridden, with covert conservative aid. With the result that America was less vulnerable in the propaganda war... and conservatives could run against this violation of majority will. Read up on Nixon's career, if you doubt this. Right up until the Tea Partiers caught them, the conservative leader MO was to betray the majority, then run on a platform of representing the anger of the majority.
So Mr. Douthat, I agree with your bottom line. However, since you admit that you are pinning your hopes upon conservative support for majoritarianism, you must realize that you have very little hope at all.
1
If, after the 2000 election in Florida, the count had put Gore up by 500 votes, the decision of the Supreme Court would have gone the other way. Does anyone doubt that? In most cases today, tell me the parties and the issue, and I will tell who is going to win. The legal reasoning is just fluff. It will get worse with the addition of Justice Kavanaugh. Anyone who thinks this has been an equal opportunity abuse of judicial power over the years has not been paying attention. The use of the courts to advance a political agenda is basically a Republican tactic.
7
The Florida count was never completed, because a nakedly partisan right-wing majority on the Supreme Court stopped it. When all the ballots were examined, years later, it was determined that Gore would have won.
So the right-wingers on the Supreme Court were right to fear a complete vote count. So they shut it down.
So there was no way the right-wingers on the Supreme Court would have found for Gore. Under any circumstances whatsoever. And you know it.
What you don't know is that we know it too.
And don't think we've forgotten all that the despicable Jeb Bush did to rig the Florida election; purging Democrats from the voting rolls, eliminating voting sites in Democratic areas, too-few voting machines to Democratic areas, and old & broken ones at that, so the lines of Democrats trying to vote went out the door and around the block.
And all that was just fine with the crooked right-wingers on the Supreme Court. Because only Republicans have rights.
2
Clinton got 3 MILLION more votes than Trump. That's a majority. And if all the ethnic-minority-voters purged by the Republicans had been able to vote, Trump would have lost the electoral vote by a landslide, just as he lost the popular vote. And who enabled that purge? The corrupt Republican majority on the USSC, when they gutted theVoting Rights Act.
Clinton got 3 MILLION more votes than Trump. That's a majority. And if all the ethnic-minority-voters purged by the Republicans had been able to vote, Trump would have lost the electoral vote by a landslide, just as he lost the popular vote. And who enabled that purge? The corrupt Republican majority on the USSC, when they gutted theVoting Rights Act.
1
The difference is between a liberal supreme court and a conservative one is that the liberals used the power to expand freedom while the conservatives want to use it to take it away.
Unless we're talking about the freedom of corporations to abuse their workers and the environment, which conservatives are all for.
16
It is nice for all the starry-eyed reformers here, including Ross, to blithely suggest Constitutional amendments to fix this or that. The truth is that the Constitution is very hard to amend even when most citizens agree on a change. In our current and projected hyperpartisan times, it's probably impossible to amend.
5
When liberals ran the Supreme Court they helped Democrats gerrymander voting districts so more Democrats could be elected? I thought Douthat had come to the table ready to look at reality - not so.
4
Supreme Court judges should have to retire at 75 (or earlier if they choose).
Mr. Douthat
Those "counter-majoritarian" liberal justices all either got 60 or more confirmation votes in the Senate or were broadly acceptable enough not face a filibuster from the minority.
Now thanks to McConnell, with his love of intricate maneuvering and his hatred of democracy, we have justices endorsed only by the cult-like, Koch-owned Federalist Society and confirmed almost entirely on party-line votes.
Dan Kravitz
11
Hmm. I think I have seen this movie before. The activist judges are legislating from the bench. The activist judges are taking away our rights. The activist judges blah, blah, blah.
Much of that screeching came from the Republicans and their hard right extremists for the eight years Obama was President.
Those conservatives, which may include Ross, have always been silent when a court opinion or ruling satisfies their sense of what is right, you know, Citizens United or the recount for example.
That road of discontent and angst with the courts goes both ways and is dependent on who is in the majority.
Ross again has succumbed to the gaslighting as practiced by Trump's favorite entertainment channel along with the chief gaslighter on that network.
3
Again, Douthat plays like he is fair-minded but makes false historical statements to buttress his case. Nixon did not win the popular vote, say most histories, although of the far right. Most of the South were Dixiecrats who make sure that no one trod on their segregationist rules. Does he remember that racism was embedded in every level of society? It was liberal Republicans and Democrats that made the first moves. These so-called "originalists" are using their interpretation to deprive people of their rights. The framers made compromises, but their hope and meaning are clear as day. Everyone is to be treated equally. One person- one vote. Republicans to my view are perverting the constitution by allowing gerrymandering, allowing immigrant bans, increasing presidential power, etc
2
We can blame anyone we want, but the fact remains under our rules this situation as all others which preceded it came about as a result of our votes. If we don't take this only guarantee of freedom to heart we will get whatever plate of slop the politicians and their toadies dish out.
If any people are to be held accountable for the present situation and that which may haunt our nation for decades it is the American non-voter. No one is forced to stay home in any election and all the present gnashing of teeth is meaningless.
Regardless the party affiliation those of us who are not in the upper strata of wealth will all suffer equally. Why much of our electorate are deaf and blind to this is as inexplicable as this columnist's willingness to excuse the reality of where we as a nation are headed.
This is not a matter for laughter, gloating or "I told you so"
Our President is shamelessly colluding with our enemies, our Congress is colluding with their donors and our Supreme Court is colluding with both.
This is serious. We can lose our nation; we are already on a slippery slope, watching our quality of life slip away and sitting on our hands while our once great democracy is being bled dry.
We may be uncomfortable, but even more important our children's lives will be forever burdened if we again stay home
Vote while we still have the opportunity.
November 6, 2018.
1
Poor Ross had to reach back to Chicago in 1960 to underline the injustice of Richard Nixon not being elected. The country really lost out that time.
1
Respectfully, Mr D, the piece seems to this old lawyer/man-in- the- street, to call - at a minimum - for an elaboration on its/your principal contention that the identical shoe worn long-sufferingly by genuine conservatives, has been donned by liberals.
That's not to imply such elaboration, or more, is not possible or even self-evidently correct to other of your readers, but to me the piece depends on it.
More, I do not resist the conclusion that even the fair-minded too often do not recognize the ease with which they unembarrassingly do a 180 without so much as a by your leave. But before I eat crow of any temperature, though born in Brooklyn, Missouri is my second spiritual home: you gotta show me.
There's one big flaw in your logic:
Republicans now control the political branches.
How is a right-skewed Supreme Court counter-majoritarian?
2
The only problem with this analysis is that, In typical right-wing style, it falsely equates progressives and radical authoritarian Republicans. They’re not the same. Notably, John Roberts is not Earl Warren. If Warren were alive Roberts wouldn’t be fit to polish his shoes. Brett Kavanagh isn’t fit to be in the same room where Warren sat at the center of the bench. The days when giants sat on that bench are over, and the country with it.
3
Democrats are neither "progressive" or "liberal". If they actually lived up to either of those two labels there would have been (and could be) a lot more elections won.
Don't hold your breath.
3
When Douthat mentions the Warren court he ignores the simple fact the Warren was a Republican appointment. In the last 40 years the GOP has become far more ideological than it ever was. He also ignore that fact that the Democratic party during the 'liberal' era he seems to be talking about, had a strong conservative wing.
The modern GOP isn't a mirror image of the old Democrats it is something new and destructive. It is headed by a crook (the president) and there isn't any Democratic equivalent.
13
Indeed, what is quite striking and ironically amusing to me is that Trump era conservatives strike the same anti-Supreme Court notes as the shade tree constitutional scholars of my distant youth. And they were all Democrats!
Thanks for the lecture on how liberals should play fairly. But playing fairly only works when both sides make an honest effort to do so. And to that point, I have 2 words: Merrick Garland. Please deliver your lectures to the Republican Party, as this is clearly the audience that needs to hear the message most.
4
I also have two words: Harry Reid. No one played a bigger role in today's environment than Harry. McConnell told him he'd regret the decision to end the filibuster option of lower court nominees. Harry was too arrogant to listen. Not sure how all of the liberals writing here forget to mention that.
Ross Douthat, you are tying yourself in knots trying to find a complicated solution to solve a people representation problem. How about starting with something that everyone can understand. Why not take anonymous big money out of politics for a start, can we agree Citizens United is an abomination?
For that we need a Supreme Court that is not ossified, out of touch. That ruling could have only happened with judges who know they have tenure and went to sleep after become supreme court judges and stopped listening to the great unwashed.
As I have written before cut to the chase and have limited time a Supreme court judge can serve. Serve once and move on, maybe a n 6/8/10 year term and have the ABA have a deciding voice and the President has to agree. There are enough judges in our Justice System that still seems to work who can take over ably, these people are not gods. And btw, can we end the Harvard/Yale cabal?
Then, why have States that are so small their population is the size of a small city, we have too many of them? and yet they get to have two senators? Why not consolidate a whole bunch of small contiguous states into a decent sized electorate, how about 2/3/4/5 million people? Why are we paying homage to something the founders had to do to establish a country ages ago.
We have to evolve. Maybe this will get us going in the right direction?
6
Alabama in 1960 was corrupt and inefficient, and racist. Most counties had black majorities and most of those counties allowed no black to vote. If you to change the official way to estimate popular vote and translate it into electoral college votes, the US Constitution's 14th Amendment has requirements that were not followed.
Certainly voter fraud by the Democratic Party Machine in Cook County inflated Kennedy's 1960 vote by thousands, maybe tens of thousands. However, careful studies have shown that there was massive Republican Party fraud downstate. Like here in Indiana more recently, control of lots and lots of rural precincts adds up and some estimate it was greater than Cook County fraud.
In Texas I think there was more net cheating on the Democratic side but not enough to swing the state Republican.
Every "Nixon actually won the popular vote in 1960" claim that I have ever read, including this one, ignores Hawaii, where Republican cheating was massive, and was officially reversed. Hawaii had just become a state. The Republican appointed colonial officials in 1960 reported official election results for the entire state. They simply made the figures up, claiming a Nixon victory when Kennedy had a big popular margin. They neglected to destroy the ballots. So the US Congress met just before the inauguration in 1961 and nullified the fake figures. Nixon presided over the Senate. Those claiming Nixon won the popular vote use the nullified 1960 numbers.
2
The right wing, and its lackeys on the Court will take us back to the plutocracy that existed before the reforms of the New Deal and Johnson/Kennedy. That is where the country is headed. The Koch Brothers will become the JP Morgan clique.
The irony is that the Korean War generation and the Boomers who created this mess will largely be gone when the worst hits.
1
Concerning representational issues, you don't even mention the Senate. Two Senators from Wyoming vs two Senators from New York? If we strive to be a country where each person's voice is equal to every other, can you justify that for me, please?
I was raised in a corn growing state, and saw Republican Senators ramming through huge subsidies for farmers. I was shocked, shocked that the Republican Party would support such as obviously socialistic program. If Democrats from say, California, had tried to pass legislation subsidizing alternative energy, the loud scream (Socialism!) from "free marketers" and rich oilmen would hurt your eardrums.
And concerning SCOTUS, the special interests reign supreme, even if the court itself does not. This will be as radical a Supreme Court as we have ever had.
6
Democracy is in peril because BOTH political parties could not produce qualified candidates. Trump is the resulting dysfunction. And no more whining please. If the Democrats are as forward thinking as they claim, the electoral college voting system should have been amended during the first years of the Obama administration after what happened to Al Gore.
4
Ross completely overlooks a salient fact: one side is fighting to free oppressed people, including women and people of color, and the other is trying to oppress them.
One side is struggling to move forward, and yes it has majority support.
There's a vast difference between working for civil rights and economic justice and its opposite.
And that's what is at stake today. It isn't just a matter of democracy, it's a matter of justice.
Women, gay people and people of color, workers, unions, people of minority religions, people of no religion - we're not going to accept being forced backward into the Dark Ages by a stolen Court.
And yes that's the other issue: the only reason we're having this particular discussion is that we've had two stolen presidencies since 2000 and now the second stolen SCOTUS seat since Mitch McConnell pulled that little stunt and kicked the people right in the teeth.
Bush v Gore unleashed great horrors: wars, depression, floods of dark money, entire countries destroyed, and now - Trump.
We want our America back, America the sane, America the beautiful, where refugees weren't "vermin" and where extreme right wingers in thrall to Russia weren't hijacking the nation, when democracy was good thing, not something to be subverted.
17
Checks and balances are not liberal ideas; they are essential to democracy. And it is only that - appropriate checks and balances - which "liberals" ask now. You avoid mentioning any substantive way in which our country has been too liberal back to the 40's, or any facts suggesting that you represent the majority (you put that idea in liberals' mouths, though it is not there). Moreover, the destructive politicization of the Supreme Court was not "liberals'" doing - that was "conservatives." So this is no more than an intellectualized reiteration of Trump's lie: that he won by popular vote.
Not one word, unless I missed it, of the shameful stonewalling of the nomination of Merrick Garland. In the normal course of events, each President gets to nominate and, in most cases, see confirmed by the Senate, the nominees for Supreme Court vacancies as they arise. In the normal course of events, Garland would have replaced Justice Scalia, and Kavanaugh will replace Justice Kennedy.
Yes, both of our political parties have engaged forever in trying to get Justices appointed that may lean their way on the issues of the day. But the shameful and shameless actions by McConnell and Friends during 2016 to stop the Garland nomination did inestimable damage to the Supreme Court.
15
We could be a bit reassured if today's "conservatives" actually resembled classic conservatism. That is, moving cautiously to not disrupt what is good, but still wanting a better society. Regulating carefully, but regulating for the greater good. Having consideration for the needs of others. Today's "conservatives" go beyond even reactionaries. Their past is a mythical one that exists only in their collective (and Fox News) imagination. The only term I can use is right wing extremists.
3
The Conservative complaint about "liberal federal judges" has always been a myth and a bit of a joke to those who practice before them. I've practiced in federal court for 30 years and I'm still looking for that "liberal federal judge." By their very nature, the people who become federal judges are conservative. I would say that truly liberal courts are, by far, the exception and that Conservatives should stop whining.
8
@RFP
Agreed that the court is conservative by nature, in particular this court. The major cases over the last several years have all been conservatives pushing reactionary and activist positions, often reversing decades of jurisprudence. Heller, Citizens United and the recent Janus case all involve the conservative court reversing what had been well established. In the case of Heller, never in history had the court recognized an individual's right to own a gun. Scalia invented it out of whole cloth. the gift of the century for the gun and ammo companies.
1
The whole US judicial system does not actually want to decide anything.
With paid plaintiffs to assert standing for these cases, no less.
There is no such thing as honesty at the right wing end of the US political spectrum.
I can appreciate a walk down memory lane from a conservative about how he/republicans were out in the political wilderness once upon a time.
However ... if we are to look at one of the worst decisions of the Supreme Court (Dred Scott), then this court over the last decade has made some remarkably terrible decisions that have accumulated to challenge that decision.
This is not hyperbole, when corporations are considered people. money is now free speech, and merely religious conviction can usurp human rights.
Now the court is poised to go even radically further right by taking away a woman's sole dominion over her own body, locking in more rights for the rich, corporations and the religiously circumspect, and the possible coup de gras - locking in more executive power to allow a President (this President) to ignore the laws/subpoenas and/or pardon himself. (if it comes to that - which is likely)
So muse all you want Mr. Douthat, but the comparisons to conservatives being ''out in the wilderness'' versus Liberals are wildly dis-associative and false equivalencies at best.
At worst, you are looking through your own rose colored glasses which in reality, are blinders Sir.
11
"A conservatism that skips gleefully down the countermajoritarian path, embracing voting restrictions and judicial activism..." But isn't that really the point? Conservatism doesn't NEED to embrace activism; it is perfectly content with the moral and legal constructs of the Constitution, and rightly so.
I am getting very tired of progressives misunderstanding the "originalist" argument. "Originalism" is basically negative. Its fundamental idea is that judges should not be allowed to invent new "constitutional" principles to carry out their agendas. Changing the law to match new conditions would be much better served by constitutional amendments, which in turn implies that the amendment process should be made much easier.
2
"Originalism" is a fancy name for necromancing.
Once people claim to know what God thinks, nothing limits their ridiculous projections. The rights of minorities are protected by limiting the powers of the majority. The Supreme Court has assumed the power to nullify legislation that does not derive from or rest on the enumerated constitutional powers of government. Nullification is all it can do.
2
thats a good response to 'progressives' and conservatives like Scalia - an " originalist " - always honed religiously to the constitution - except when he didn't
https://www.newyorker.com/news/news-desk/scalias-contradictory-originalism
There are no true originalists - only those that use it as cudgel to protect their position
1
To be honest, if that is the level of your understanding of originalism, I think you are the one who doesn't understand it. It is a canard designed to beguile and for the most part refers to 14th amendment cases that protect minority rights. Section 1 states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The amendment was purposely left open ended in its description of who was protected since its intent was to prevent states from making laws to explicitly or implicitly deny the rights of the majority to other citizens. The so-called "originalists" would argue it applies only to African-Americans. Does it say that?
The places that Deserve equal representation are the places that have more population, and yes create the highest proportion of GDP. The Senate is not representative of the people, and totally ruled by minority. Why should every voter in WY have the same voting power of 4 NYers? Each resident of the US should have equal voting power to avoid minority rule. Abolishing the electoral college is the only way to achieve this else we are destined for a minority rule country forever.
5
I remember reading a book in the 1980s about the conservative "attacks" on the liberal court of the time, which the author considered the legitimate American government. The author couldn't understand why Republican victory at the ballot box should be reflected by any change in the court. His opinion of democracy was "a majoritarian form of government where minorities lose."
No attitudes have changed, except the parties have switched places.
I am trying to remember what countermajoritarian horrors the Democratic congress of 1974-1976 inflicted. Seriously: the liberal peak had long since passed, major issues like full employment legislation did not pass (e.g., the drive for legislating full employment), even campaign finance reform came earlier, and that Congress merely amended into in the wake of the Supreme Court's Buckley v. Valeo.
If you have evidence Democrats abused their supermajority those years, please share. Or were conservatives THAT opposed to the Education for All Handicapped Children Act?
5
Extremely bad research.
Regarding his "not-so-distant youth," since the date of his birth Republican presidents have appointed eight Supreme Court justices. Democrats have appointed just four. Go a little deeper to Richard Nixon and the distortion climbs to 13 to 4. The first justice to be roundly vilified by conservatives was Earl Warren, a Republican appointed by a Republican.
In short, conservative appointments have dominated the Supreme Court in the lifespans of most living Americans.
What's more, the notorious Cook County political machine was one city compared to the many states where Republican majorities have use unprecedented gerrymandering and vote denial to dominate.
Finally, when did a Senate majority refuse to even consider an appointment to replace a deceased justice while awaiting the election of one of their own?
Look within, Mr. Douthat.
43
There is no doubt that the Supreme Court is partisan. The members clothe the explanation of their partisan decisions using legalistic language, but the decisions are relatively predictable based on the party of the president who nominated them. The problem with a partisan Supreme Court is that its members are granted lifetime tenures. This is a particular problem for conservative "originalist" jurists, who somehow believe that their contemporary interpretation of a document created more than two centuries ago has more clarity and therefore greater validity than a contemporary interpretation that realizes that 21st century America is not the same nation as 18th century America. The Founders made mistakes in a document that the so-called liberal or progressive Supreme Courts rectified, but that originalist courts likely would have let stand.
7
The US Constitution contains well-thought-out and strong checks and balances. Even so, it seems to me that the founders did expect a certain degree of honor among those running the country. Honor..., well do I even need to say what has happened to that?
As to comparing today's R behavior to past D behavior, 't'weren't right then; 't'ain't right now.
5
Well reasoned analysis here met, by much of the liberal response in the comments, with more of the perpetual denial by the Left that they have ever done anything wrong. If the lack of self-awareness were fatal, the Left would have disappeared a while back. Alas, it merely fuels there self-righteousness. Truly inspiring to watch their delusion play out the way it has. Ironically, if they actually cared about the constitution and the Republic, they would be happy to hear appointees say "I will interpret the law and leave the making of it to the legislators". Perhaps they fear they can't win elections anymore outside their coastal redoubts.
7
Trenchant!
The suggestion of a kind of moral equivalency between the "countermajoritarian" congressional tendencies of Democrats and Republicans ignores a salient point:
Even with Democratic majorities in the '40s, '50s, '60s (and periodically thereafter), bipartisan legislation was routinely introduced, debated and passed. Moreover, much of that legislation (e.g., the various civil rights acts, the Voting Rights Act) actually advanced the interests of democracy. Unless Mr. Douthat sees activities like the forced separation of children and parents, the theft (in practical if not legal terms) of a Supreme Court seat or decidedly inequitable tax legislation as advancing democracy, the same can't be said of the current Republican majority.
21
According to Mr. Douthat, the loss of prayer in public school that he laments in his piece is equivalent to the loss of the right to an abortion that thousands of (poor) women will likely suffer under our about to be current court. The point of the Constitution and the Judiciary is to protect the rights of minorities from the majority, whose rights and desires are represented in the other two branches of government that are democratically (sort of) elected. If we want pure majority rule, with no attention paid to the rights of minorities, there is no need for a Supreme Court, only criminal and civil courts to uphold the laws the majority passes. Mr Douthat prefers that we return to the regional majority rule days of Jim Crow in the South, prayer in school, creationism and not evolution taught in public schools, etc. Activist Liberals never forced Christians to pray to Satan, have an abortion, participate in a gay marriage against their will or attend their preferred Church. What we do not need are Catholic Justices (as most of the conservative Justices and Mr. Douthat are) imposing Catholic morality on us all through the guise of 'originalism'. The comparison, sir, is absurd.
18
A Juristocracy, not subject to rules based on the evidence and the truth, may become a breath of fresh air...or a malevolent move based on prejudices (religious or not), and it may change things dramatically in a short time, counter to the generational cultural inclinations born out of pragmatism (a woman owning her own body and able to decide what to do with it, even where abortion comes in, a product of unintended consequences brought about by a man and a woman...but only the latter the one to blame, especially if the jury is made up of cavemen). A Supreme Court Justice, being appointed for-life, needs a healthy counter-balance in a sane legislative branch; trouble is, as demonstrated by the present republican control congress, looking the other way has become the preferred method to let untethered power of the judiciary decide what the rule of law shall be. Something is amiss here, a balance of powers being just one of them. Educating ourselves may be a good start to understand the issues before it becomes a Gordian knot; and 'Civics' must be an integral part of it. And voting at the booth made obligatory, a good start for a democracy worth it's name.
2
The biggest, most troublesome issue for the Court is abortion. We live in a society today that's sensitive to the needs of the weak and the powerless: human fetus unable to protect itself from an unwanting mother. It's time to end the burgeoning Roe-Wade and create more ways to help mothers through a pregnancy before, during and after. On the horizon is the newly invented womb. Destroying our own kind is not the answer to an unwanted pregnancy. The Court needs to remove Roe and point us to a more humane solution. There are no skeptics when it comes to saving our own kind.
1
Actually, the biggest issue isn't abortion, per say. It's about a woman being wholly, and unconditionally in charge of her own body. PERIOD. Republicans get their knickers in a wad, if, God forbid, has to sell a wedding cake to a gay couple - because it somehow tramples on that baker's rights. Imagine how women feel, being told that the government has the right to tell her what to do with her body. The Republicans, and particularly the religious right wants liberals to keep talking about abortion... it helps them keep their grip on our bodies and freedoms. For shame
2
Of course there aren't, although there are more than a few skeptics as to whether the pre-viable fetus is "our own kind."
Look, T3, it has to be our own kind, Watch it develop. It's humankind all the way....
Wise words from Mr. Douthat. The power of what should be the most democratic of the branches -- Congress -- is at an all-time low. And it is primarily self-inflicted. It's like the prisoners' dilemma game: By each party's refusal to cooperate with the other on any legislation, the reduced power of each party is ensured.
4
You are using the term "counter-majoritarian" to equate earlier Courts' protection of minorities vulnerable to right wing legislative bias with the present Court's endorsement of right wing legislative bias against minorities? An important function of the mature Court has been to guard the rights of those who don't have recourse to legislative remedy through the 14th amendment.
That was termed "judicial activism" by the right who, using the terms "originalism" and "strict construction" to deny the scope of the 14th amendment, sought to make their version somehow more "pure" in the minds of those majorities who were outraged that their will had been overridden. They have succeed very well and now "originalism" and "judicial activism" are understood by many of the unsophisticated as antonyms and function as a rallying cries for the right. I would have assumed that you would have a better handle on that false distinction.
Actually I think you do and what this amounts to is a disingenuous effort to equate 14th amendment protection of minority rights with the right's effort to erode the 1st amendment's wall between church and state.
23
It will be interesting as to how far the conservative court will go to take away constitutional rights, civil rights, personal freedoms, safety regulations, worker protection and environmental conservation. On the flip side, it will be interesting to see how long it takes the voting public to realize how much they lost.
18
I think Mr Douthat makes a point--and not a new one--about term limits. But this should apply to all federal judges. For all the noise about "originalism," however impossible that might be on intellectual grounds, none of the framers of our Constitution anticipated average modern life expectancies. Use of an upper age (80 years?) makes more sense than limiting the number of years on the bench.
Almost all of us experience some cognitive decline by 75 or 80 years of age (often sooner): https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4015335/ ("Normal Cognitive Aging," 2013). And everyone can cite their favorite exception--a poor way to set standards.
Neither party likes this idea when their party is in control of appointments. It is perhaps too much to expect that the US Congress would do something that would benefit future generations. One does wonder whether the SCOTUS itself would uphold any such future legislation.
1
I wish somewhere in your editorial you had mentioned that republicans withheld nomination of a Supreme Court candidate from President Obama...the first and only time this has ever been done in our nation's history.
Sure, both parties have participated in leveraging advantages to control government. But there's something uniquely radical and egregious happening now. In our national dialogue about justice and political fairness, we can't just gloss over the republicans' refusal to consider Obama's choice for a vacant Supreme Court seat.
36
I am old enough to remember when there were moderate and liberal Republicans in Congress and that Congress actually got things done, and, together with Supreme Court decisions, expanded Equality, Rights, Freedoms, and Liberties once denied. It was an eye-opening experience, at a young age, to realize our country was not the democracy it pretended to be prior to Acts of Congress and SCOTUS rulings. Let’s not fall into the trap of well-liberals-did-the-same-thing to justify the destructive anti-democratic fervor of conservative extremes today in politics and in the Supreme Court. Some Americans have completely lost all common sense, whether through fear-mongering or a distorted view of what a democracy is, or through made-up methods to interpret the Constitution that elevate anti-democratic and absurd ideas, like threatening to take away Rights and Freedoms or that corporations are “people” and money is “free speech”. As a reminder that should not be necessary, the alternative to a democracy is a system of government that discriminates, that oppresses, that suppresses, that causes suffering, a system under which people are expendable. We see such indications today in the treatment of people at our southern border and in “travel bans” originally discriminating against a religion.
18
The US wrote a far more advanced constitution for post WW II West Germany than it could ever negotiate and enact for itself.
2
I for one hope that simple changes like no more gerrymandering, no more voter repression laws, term limits for all of Congress and the Judiciary might serve the public better. In addition, banish the Electoral College, so that the popular vote prevails. Also shorten the election cycle and get rid of Citizens United.
If we truly want a Democracy to work then those elected officials who claim to be for a fair and representative government should have no problem voting for these changes, whether or not they are Moderate, Conservative or Liberal.
This is what truly Representative Government requires.
21
Douthat himself tweeted yesterday, "... Democratic campaign analytics would have pretty much required collusion to be effectively deployed. So that's ... interesting."
Mueller's new indictments make public even stronger allegations that Trump and his campaign collaborated with a foreign adversary to undermine our democracy. This has enabled a president who quite potentially only won the election because of foreign interference to select a second Supreme Court justice, thereby tilting the Court far to the right for generations, impacting every part of our society and especially our elections. This is on top of two other Justices who were nominated by George W Bush, who also lost the popular vote and who only became president after a 5-4 Supreme Court decision that could have overturned the actual popular vote in Florida.
Equating this subversion of our democracy with decisions by judges appointed by presidents of both parties who cleanly won their elections is extremely misleading.
18
Wow. The new Mueller indictments concerned activity which took place on Obama's watch...whose response was a mere, "cut it out." None of the activity cited in the indictments involved candidate Trump or his election staff. Indeed, it's not even clear why Mueller--appointed as Special Counsel to investigation Trump collusion--is investigating these cases, rather than the appropriate national security division US Attorney. Mueller won't in fact even pursue these cases, because there is no extradition treaty with Russia. In fact, in the last round of Russian indictments, Mueller's prosecutors were stunned when the federal judge presiding over the cases actually asked them for supporting evidence for the charges. These indictments are for show...to keep the Trump collusion story alive.
I have been a skeptic of the supreme court ever since they installed George W Bush as the president of the USA in 2001 over Albert Gore. Since then the supreme court has been divided between those appointed by Democratic presidents versus those appointed by Republican presidents.
Rarely have there been independent opinions in this century. Retiring judge Kennedy was the only judge who was truly independent and also the chief justice. Hopefully judge Kavanaugh if appointed will be more like judge Kennedy.
5
I’m hoping the blue wave will bring democracy,add a couple of seats to the court,and take measures to keep majority rule of law.
8
The most glaring omission in this grotesque enablement of endless lies and liars is the fact that the Constitution limits what the majority can legislate to protect the rights and liberties of minorities.
If we had assurances that the nominee to the Supreme Court would not be just another politician in judicial robes, the political party of a judge should not matter. We had that in the past with nominees by Republican presidents--e.g., Earl Warren, William Brennan, Potter Stewart, John Paul Stevens, Harry Blackmun, Sandra Day O'Connor.
Those days are long gone, and we are not a better country because of that.
12
Let us forget party affiliation and discuss election fairness.
the unfairness comes in the form of rural versus urban,
the most populated states get 2 senators, the least populated states get 2 senators. Consider California and Wyoming. Now consider congress with each state guaranteeing 1 congressperson . Again a tremendous advantage to voters in rural states, Perhaps the largest area of politics disadvantage comes in the electoral college. based on the same rules. Mr. Douthat is right , in the 40' and 50's the advantage was with the Dems from this system but since the late 60's the advantage switched to the Republicans with their southern strategy.
So why don't we fix the inequality to one person one vote?
10
Actually you can choose the scenario you get simply by voting. We have a congress that has done almost nothing led by a majority that doesn’t legislate. In that vacuum you get courts doing the legislating. So, for the dems the easiest way to blunt the courts is to win and legislate. In other words, congress must do its job.
7
Mr. Douthat's argument, valid as far as it goes, still amounts to another example of false equivalence. While our political system needs reforms to make it more democratic, it matters how each party has used its periods of dominance.
Starting with the era of the New Deal, Democrats restructured the economy to make it less volatile (through government intervention); created a social safety net that mitigated the impact on citizens of recessions; dismantled the jim crow system in the south; cooperated with President Nixon to begin the clean-up of the environment; and crafted a foreign policy that helped the world recover from the devastation of the Depression and WWII. The SC, influenced by Democratic appointees, attacked racial discrimination and reformed the criminal justice system in ways that eliminated many abuses.
The Republicans, for their part, worked with the Dems on some of the above achievements, but since the Reagan administration, they have focused narrowly on tax cuts for the rich and on deregulation of the economy. With the exception of Bush's expansion of Medicare, they have also sought to shred the social safety net. The SC influenced by GOP appointments has also stripped the heart out of the voting rights act, curtailed abortion rights and weakened labor unions.
Democratic policies, on the whole, have aided vulnerable Americans, while the GOP has helped the powerful. That is not a record conservatives should celebrate.
67
The author ignores the fact that Republicans (i refuse to use the indecipherable term conservatives) have plotted the demise of liberal democracy since at least the aftermath of the 1964 Goldwater defeat. In contrast Democrats have never been organized enough to protect their own interests, because fundamentally, they are just trying to have a government, which Republicans would really rather not have. So yes, it is different from the 1940s.
27
What you're not mentioning is that a nomination, a federal judge who had been confirmed to his US Court of Appeals seat by a majority of Republican senators, was stolen from President Obama. If that didn't happen the court wouldn't be swaying so heavily in one direction. Until that loathsome maneuver the balance has only shifted slightly one way or the other, giving us a fairly reasonable outcome, even when a conservative president replaced a very liberal justice, Thurgood Marshal, with an extremely conservative one, Clarence Thomas. I know you're talking about fear of "juristocracy" - but that fear didn't arise when Bush replaced Brennan with Souter, followed by the Thomas assignment, which seemingly gave the conservatives a clear majority. The fear of "juristocracy" now has risen from the action of a party that has completely derailed our democracy.
38
Merrick Garland's seat was not "stolen", although that term does get thrown around quite loosely whenever liberals don't get their way. His non-confirmation was the result of a simple exercise of the majority power in the Senate. Had the Democrats controlled the Senate he would have been confirmed. If the roles were reversed and a Republican President was trying to get a confirmation through a Democratic Senate it would have just as surely been defeated.
3
Garland was not defeated in a vote. McConnnell refused to bring his nomination to the floor. There y stealing the right of the people’s representatives from voting, yes or no, for him. History must seem so pleasant to those who forget the facts.
4
Yes, but let's remember Bork was defeated, not denied a vote. That's a very big difference.
I seriously doubt that the Dems would have denied a nominee a vote, but we'll never know will we??
Gorsuch, and now Kavanaugh, would not have been confirmed if McConnell had not gotten rid of the 60 vote threshold.
Garland is much more of a centrist and there would have been enough Republicans to get to 60 votes.
And with Gorsuch and Kavanaugh, we will continue with giving more to the billionaire class at the expense of the country.
History will not look kindly on McConnell.
But for the country, it will be too late.
45
The liberal order reigned over the unparalled expansion of the middle class during the 20th century, as well as the fight for environmentalism, equal rights, civil rights, etc. The court stacking we see now is counter to the well-being of the huge majority of Americans. This seems a very different type of advantage than what the left had.
29
In reality, the Supreme Court is the supreme branch of government in the sense that it has the final word on disputes between the other two branches of government. But it is stripped of any ability to execute its decisions, or to even answer questions on its decisions. That is what keeps it from turning into a council of ayatollahs.
The fact that much of the country condemns the Court all of the time without fear of being clamped in irons is precisely the feature of the SCOTUS we should most appreciate. It is also the most consistent, unrelenting feature of US government throughout history.
4
Liberals are acting the way conservatives acted during the Obama and Clinton years, yet not without good reason. Under Obama, Conservatives said that America was dying and that there was a crisis around every corner. That is how Fox News made money. Much of it was made up and insignificant. On the contrary, it is hard to argue against liberal concerns. Other than the obvious Roe decision being overturned, the basic premise of America, voting, is being attacked by the right. The GOP will not acknowledge that Russia stole the election and the GOP continues to pursue illegal voter suppression efforts, even to the point of lunacy (see Kobach’s last trial). How are these concerns about the destruction of the basic function of American democracy not legitimate?
34
Maybe what's needed is to propose some changes to take effect far in the future (e.g. 2040) when we cannot really predict who will be in power, and so we can make a wise choice based on what's best for everyone - the equivalent of the philosophical idea of creating the laws that you would choose if you didn't know if you'd be born rich or poor, black or white, male or female ...
In such a scenario, maybe both sides would realise that anything that gets rid of the current partisanship would be an improvement.
6
"Indeed it’s quite striking, and ironically amusing, to have Trump-era liberals striking the same anti-Supreme Court notes as the talk-show populists and religious-conservative intellectuals of my own not-so-distant youth."
The difference is that the talk-show populists (who, by the way, were not populists) and the religious-conservative intellectuals (who, by the way, were not intellectual) had opinions based on conspiracy theories, whereas the Trump-era liberals (and moderates and thinking conservatives and non-ideologues) have opinions based on fact.
30
There is always a tendency to oversimplify political trends and leanings through the use of convenient labels such as "liberal," "conservative," "progressive," and "moderate." It's all too easy to liken our politics to the arc of the proverbial pendulum, resorting to sound bites, bromides and symbolism.
It is also intellectually lazy to do so. The issues faced by our country and the world are often complex. In fact, they generally defy easy solutions and blithe definition.
All that said, nominations to the Supreme Court carry extra weight, because the tenure of its occupants is designed to function as a bulwark, ostensibly at least, against easy political influence by elections and polls. The design point for the court is to focus on the proper application of law through interpretation of the Constitution.
This works as long as there is philosophical balance on the court, but it breaks down when lifetime appointments of litmus-test approved nominees focus on a narrow band of issues guided by political leanings, particularly because the impact of Court decisions is so lengthy in their duration.
It is a balance of competing interests, albeit tenuous, that we should strive for. Instead, we've become a winner take all society, and because of the nature of the Court, the losers lose for a very long time.
16
It is long past overdue to appoint an atheist to this court to teach its present collection of superannuated children what an "establishment of religion" is, and why the Congress is barred from enacting any law based on one.
The so called activist courts of Earl Warren was doing something that should have been obvious. It was in essence saying that the people possess the rights that have been spelled out, so it granted the rights that should have been granted 90 years earlier with the civil rights amendments. It also mandated that the police respect rights.
The conservative majority wants to destroy the national laws that have been enacted to limit the abuses of industrialization, abuses that the progressive era and the environmental movement worked against.
The Warren Court was just enforcing rights, rights that conservatives construed as judicial activism. But the conservative court is full of men who have gathered a series of set piece battles that they are now ready to use to further empower business over the average person.
There is no equivalence.
44
The Constitution doesn't spell out any right or power reserved by the people. It is strictly a definition of a limited set of powers deemed sufficient to govern a democracy, and an administrative structure to exercise them. The present Republican Party just does not get this. It is utterly incompetent.
Beauty is in the eye of the beholder. Where the Democrat majority sought to destroy the traditional police powers of the state, some for good and some coercive and totalitarian in nature, the conservatives reeled against the federal state. Now with the conservatives in power, the sanctuary cities and state govts of the leftists claim powers reserved to them that they once destroyed. And the leftists employ mobs in the streets, not with the peaceful demonstrations of the 60s that brought about moral change leading to legislation, but disrupters, rioters, burners and bludgeoners (who are rarely criticized by the left wing press). The same press that attacked the Tea Party for shouting. They suppress free speech on campus. And the left thinks that this will attract middle America and bring them to power. I think not.
1
Once more Ross you throw out the words "Liberalism" and "Conservatism" arrive at a perspective that is muddled. The current malaise in our politics and legal system is rooted in an overemphasis across the culture these last 70 years toward individualism. The Left and Right both use individual choice as the central reality of freedom and to promote their causes. Neither include in their rhetoric a balancing view of duty, community, and common good. While the tribal lines harden, the moral reasoning on both sides is remarkably similar. The Court and Legal System will reflect this to the great consternation of both Right when the content of the case goes against their view.
5
James Madison's, "Notes on the Debates in the Federal Convention" make it clear that the Constitution was premised on the reality that government is an exercise in self interest susceptible being co-opted by political factions.
In, "The Federalist No. 10" he expanded those observations by identifying some of the diverse economic, social and cultural outlooks that drove political factions which, if not susceptible of control would could result in a permanent usurpation of power.
His and his cohort's view of the qualities of politicians was expressed: "It is vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole."
Their prescience was admirable, and the fact that we will be going to the polls in 2018, 2020 and frequently thereafter attests to their brilliance.
5
First, Ross' suggestion that today's politicization of SCOTUS is a contest between liberals and "conservatives" is simply and obviously false, because there is nothing "conservative" about the current power grab and its tactics by the political right.
Second, beyond terminology and procedure, the content of policies currently favored by the right are not about the Constitution, the rights of all citizens, and the future of the environment as they were in the liberal era, but only about power and its recapture by small groups of self-interested constituencies who have felt their oxen gored by the progressive trends of the past 50 years.
Finally, this explains why the contest has been taken over by polarized politics, and the Congressional votes for confirmation of Justices no longer a matter of consensus but of bitter partisan animosities that are corrosive of national values.
25
This article would have more weight if he could acknowledge the pain of having both the president (and Congress too, I believe) elected by a minority of voters due to Red States being over-represented in the electoral college, Senate and House. This is NOT the situation of Republicans in the mid 20th century and it is particularly disempowering.
19
From my european perspective, the problem seems not to be politics but economy.
One might suggest a change like moving the appointing of members to SCOTUS from the President to the Judiciary, in some form or other, but no matter how, it will in the end come down to consequenses of the Holy Grail of The Bottom Line, since politics in the US seems not to come from social thinking or religious thinking, but from purely economical interests; the deep and ingrained consideration of #1.
13
Through the fog of intellectual gymnastics, something these Conservative thinkers rarely do, let's look at results. Liberal jurists have brought about freedoms protected under the bill of rights and the 14th amendment for minorities and the poor. Conservative judicial advocacy has buttressed the donor class, corporations, and is trying to give more voice to fundamentalist religious fanatics from whom we all need freedom. As much as I respect the intelligence of some of the Conservative thinkers like Brooks, Stephens, Douthat etc, they can see the trees but have yet to find the forest. Thus they become mouthpieces for Koch and Mercer families and abject inequality.
38
"...ecumenical school prayer, Christian-influenced morals legislation — overruled or uprooted by fiat."
Yes, like that anti-democratic Griswold v. Connecticut decision, which declared unconstitutional the Connecticut law (which reflected the religious beliefs of a majority of Connecticut citizens) that made illegal "any drug, medicinal article or instrument for the purpose of preventing conception." Lots of religion-based legislation was so declared, and quite properly. Not because the judges were Democrats, but because the laws were offensive to the Constitution. When states legislate a constraint on individual liberty, under the influence of religion but no separate rational purpose, they absolutely should be stopped, "by fiat," by the Supreme Court.
27
The Supreme Court has been letting Americans down at least since the 1850s. It has kowtowed to slaveowners, to corporations, to the wealthy.
15
What will happen when stump is convicted in a court of law, or maybe just the court of public opinion, of knowingly being complicit with the Russian attacks on our country, whether from fear of blackmail, financial ruin, or misplaced admiration? Can we expect that all of the nations court judicial appointments made during his time in office will be rescinded? When a prosecutor is found to have been involved with evidence tampering it is normal to reverse all cases where a conviction was made under the prosecutor's purview. It would seem that this precedent should hold under this circumstance as well. And all congressional enablers should be held as co-conspirators, with all enacted legislation during this administration voided as illegitimately enacted by a criminally complicit congress.
14
President Trump is developing a sensible middle ground where conservatives and liberals can live in relative peace and, accordingly, reunify the Country.
The primary aim of such politics is to return as much power to the lower levels of governments as possible, i.e, States and Cities. Power must be returned to the people and removed from the elites.
4
MD: Surely you jest! I'm not sure that anything you've said is true. Trump, who continually supports the policies of the hard-right, has certainly not taken a "sensible middle ground" in anything. He absolutely hates liberals and has no desire for them to "live in relative peace."
Perhaps the biggest fallacy in your comment is that his aim is to "return as much power to the lower levels of government as possible." He is an authoritarian through and through and has mounted one of the most aggressive power grabs for executive power by any president in history.
1
My suggestion for judicial reform in the U.S.:
- Appointments to the Supreme Court and the appellate courts are made by an electoral committee which consists of each of the state level chief justices and an elected political representative for each state for a number of one hundred members of that committee.
- A judge is appointed when two thirds of the members of the electoral committee vote for the candidate.
- A judge must retire at the age of 70.
3
Mr. Douthat,
Nice try.
Now that 12 Russian intelligence agents were indicted Friday for interfering in our 2016 election, we now understand that the current president was elected with he assistance of a foreign, enemy government.
Given that 3 million more people voted for the opponent of the current president, given that Jill Stein managed to make inroads in key states in the 2016 election (Jill Stein, who was invited to a special dinner in Moscow in 2015 with Flynn and Putin), given that the intelligence community wanted Republicans and Obama to make a joint statement about the Russian interference and Republicans refused, given that the FBI made an announcement before November 2016 that they were investigating one presidential candidate, but not mentioning that they were investigating the other presidential candidate, even though they were.
Nothing like this has ever occurred, led by a traitor in chief.
Given all these facts, you need to stop with your false equivocating, Mr. Douthat, and your snarky amusement.
48
When the majority of the country is in favor of abortion, gay marriage, and affordable health care for all -- are those still "liberal" ideas? Perhaps they were "liberal" twenty or thirty years ago, but the country has changed, its thinking has evolved, and those ideas have become absorbed into the mainstream. Continuing to refer to them as "liberal" is not constructive.
47
I’m surprised that a few commenters actually remark on what Mr. Douthat is saying. I can barely grasp a lucid thought. His sentences barely begin at dawn, then they suddenly die at dusk with hardly any light between. I’ve often suspected that if conservative intellectuals were to write intelligibly, even the hard-core of the President's "base" would fathom the poverty of their views.
33
The history of the Supreme Court is really no different than that of the rest of the country - bias, discrimination, and exploitation of labor and the masses to do the bidding of the well heeled. Plessy vs. Ferguson, Bush vs. Gore, Citizens United, Shelby County, etc. Victories for the fair minded have often been watered down or defeated through lack of implementation of fair rulings - the gerrymandering situation in this country is by and large the latest example of a ruling that means nothing in terms of restoring representative government to this country. Then there was the unlawful refusal of the GOP to hold hearings on Obama's selected appointee and other politicial machinations to arrive at today's court make-up. A secret deal between Trump and Kennedy - it surprises no one now.
Sadly, it didn't have to be so, but the will of the people in this country committed to justice is being eulogized now, primarily due to the mean spirited, strident tactics of the powerful. Is it any wonder that educated people who now have access to news that is truly informative have made their conclusions.
Douhat may try to put the best face on a woeful situation, but the false equivalencies and bringing up Hillary Clinton aren't fooling those of us who know that the idea of justice is a lost cause under this President.
34
While it is possible for people to function without their biases effecting their decisions, it is not easy. But if this is not possible for most, then we can have no legal body or court system free of such bias. In that case, the supreme court is an extension of their majority political leanings. This makes the highest court in the land a joke and leaves us without legal appeal. The same can be said for lesser courts as well. Why does court stacking work so well? Because politicians know the courts are a mere extension of political domination. Again power and the control of all "legal" decisions are the objective.
7
By 2040, 68% of Americans will be living in 15 states. That means that 32% of Americans will get to elect 70 senators.
The electoral college desperately needs to be reformed to avert this crisis in democracy. One way to do it is to amalgamate sparsely populated states. States like North Dakota and South Dakota do not need two senators each.
43
Texas, on the other hand would need 10 senators. It’s the only state that has the legally constitutional power to divide into five states.
Legal and informal segregation were a central part of the culture, as were culturally enforced gender roles and letting the police do their job their way. Abortion became a central issue in the culture war because conservatives had lost on racial issues and needed to change the subject; having to face and answer the question of why they had fought so hard for so long on the racial question started a process that often ate away at their self-image and made them think about questions that weakened their conservatism.
This reflection had to be stopped, and abortion was the issue to do it. People who supported abortion could be pictured as having no moral sense and therefore no moral authority on any area of morality. Abortion could be pictured as overriding in importance all other moral issues, so that questions about the treatment of women or gays or war protestors could be ignored. The issue of abortion sucked the moral air from the room, allowing other immoralities to continue to flourish unexamined.
10
"I imagine one of the reasons people cling to their hates so stubbornly is because they sense, once hate is gone, they will be forced to deal with pain." - James Baldwin
14
Agreed. Trump received just 31 E.C. votes more than Clinton; barely making it into office due to a small percentage of voters and under 80,000 votes in 3 states, two gerrymandered beyond recognition and 1 where suspicious activities occurred and votes were tossed out.
According to University of Wisconsin-Madison political scientist Kenneth Mayer between 12,000 and 23,000 registered voters in Madison and Milwaukee—and as many as 45,000 statewide—were **deterred from voting by the new ID law. In Michigan, 80 voting machines in Detroit magically didn't work and 37% of the votes cast were thrown out. Pennsylvania has not paper trail and Trump/GOP made sure a petition for a recount was shut down there and in MI and WI.
https://www.detroitnews.com/story/news/politics/2016/12/12/records-many-...
http://nymag.com/daily/intelligencer/2017/10/voter-suppression-may-have-...
1
The dishonesty and evasion swirling around "Congress shall make no law respecting an establishment of religion" belies the Court's very understanding of how minority rights are protected by the Constitution: by denying powers to the majority. "Separation of church and state" doesn't specify anything. The Establishment Clause establishes that no faith based belief is lawful for Congress to treat as real in legislation.
12
Ross argues that turnabout is only fair play, but that is an argument for stasis, paralysis, and stubborn refusal to countenance human social and moral evolution. The capacity of our planet to feed and support the huge population increases of the last century were due to advances in social democracy and science, not cowardly reversion to the faulty backward thinking of the past.
23
The major flaw in this is Douthat's concept of "liberalism."
The coastal elites were not and are not liberal. They are less conservative than the current Republicans, but not by all that much. That is not enough to be liberal.
LBJ was liberal. The Warren Court was liberal. Richard Nixon was not liberal, but he was left of both Clintons.
Bill Clinton's promise was to undo "welfare as we know it" done by LBJ, and impose criminal laws the Warren Court would have fought.
I have a high opinion of Obama the man, but his actual term of office was a deep disappointment for all liberals. Maybe that was not his fault, but his Administration was not a time of liberalism.
So no, this is not a contest with liberals. They are outside the Democratic Party, trying to overthrow Republican Lite to create a real liberalism.
Republican Lite would have been good enough? But She PROMISED. Yeah, sure. Not even a T-shirt for that.
24
The real way to solve the problem is to take nominations to the Supreme Court out of the hands of politicians. The framers of the constitution assumed that the presidency and congress would be populated by thoughtful people who would do what's best for the country and their constituents. By extension they would then populate the court with similarly thoughtful people. If they could see the present state of things they would be appalled.
20
The Senate was not originally elected, they were appointed by state legislatures.
Framers would have been appalled by the actions of Obama, in his autocracy.
2
The lack of accountability of the Supreme Court is scandalous. Outside of a major crime documented on camera do they have any accountability at all? Of course when the constitution was framed the average lifespan was under 50. A subpar justice would have passed the baton within say 20 years of less with those numbers. Now you can tack on an extra 3 decades or so. Perhaps it's time to increase the size of the court to make political collusion more difficult. The best number of judges in 1869 might not be the best number now...and set term limits while rotating the members of the court. I don't expect this to happen in my lifetime but it does put into sharp focus how the best intentions of the framers of the constitution have gone awry. Neither the Democratic or Republican Party should be able to hold the decisions of the court hostage for 3 decades or more. It only takes 5 like minded Supreme Court Justices to write our country's history for a very long time.
17
It's hard to decide which liberal comment is most in need of correcting, but this column wins the prize. Contrary to the wild imaginings of this comment, the Constitution never says that Senators have a duty to meet with a judicial nominee. At no time did Mitch McConnell pretend that Obama lacked the power to appoint justices. What Mitch McConnell understood was that a president's power to appoint is circumscribed by the requirement that any appointment must receive the advice and consent of the Senate. The Senate can dispose of that advise and consent any way it sees fit, including by refusing to act on the nomination. Nothing in the Constitution forbids McConnell's approach. The Senate may even refuse a nominee a vote due to a filibuster, a practice that the Democrats invented for the purposes of preventing Miguel Estrada from being appointed to a Circuit Court and then made standard practice for preventing appointments by George W. Bush.
4
"Judicial restaint"? How can any conservative even dare to speak those words or "originalism" or "strict constuctionism" when you have conservatives overturning McCain-Feingold which was passed by both houses of congress and signed by a Republican president? The Citizens United ruling and the "corporations are people" ruling laid bare the conservatives argument that the courts are not there to legislate but to play "umpire".
20
Can you say 1st amendment? Slavery was once legal too. The court is there to protect against majoritarianism..
Gotta wonder how Obama won in 2008 and had a super-majority in the Senate and a majority in the House-never could happen based on the rantings of this paranoid...
1
Richard Nixon did win the popular vote. Any objective counting of the votes gives Nixon the majority. Since 1960, there has been an unspoken conspiracy to suppress this truth. The slight of hand used to give J.F.K. the lead in the national popular vote relies on a dishonest count of the votes in Alabama. Technically, J.F.K. did not receive a single popular vote in Alabama, because votes were cast for electors, but even if you attributed votes based on electors, J.F.K. was represented by only 6 of the 11 electors. The other 5 were uncommitted and voted for Harry Flood Byrd for president. Kennedy should only have been credited with 6/11 of the voters who case votes for Democratic electors, but "official" counts credit him with votes that should be credited to either Harry Flood or no one. If the votes in Alabama are honestly allocated based on how the uncommitted electors voted, the correction completely wipes out Kennedy's popular vote margin and Nixon wins. Until dishonest Democrats start bemoaning the injustice done to Nixon, please spare me the hypocrisy over their crying about the Electoral College.
5
The fix is easy, but hard to do--get rid of the electoral college. The winner of the popular vote is the president.
13
I am a liberal who is Not Getting Hysterical about the Court. Rather I am being realistic and pragmatic. The left has no chance of keeping the Court from turning right, since we don't have a Dem majority in the Senate, to state the obvious. And I doubt even moderates Repubs will vote with the minority. We can turn the Senate and House blue in November, to have that check on the court, and that's about it. And all of that being said, I agree with Mr. Douthat on term limits and more than one rep per district. I think these would be other good checks, even as the Constution would need to be amendend, but that's a fight for another day. Until then vote, and let's see what happens with the Court.
7
Ross is right to decry excessive partisanship on both sides.
On the other hand, the GOP has gone off the deep end in a way that the Democrats never have. The "violation of norms" falls almost entirely on the side of power-hungry GOP leaders in Congress.
Yes, let's consider proportional representation. Let's consider term limits for Supreme Court (and other Federal) justices - with a President getting a certain allocation for each four year term, and the Senate actually advising and consenting.
When I was taught about America in the 1950s and 1960s, the things we learned about our country's founding - the right to free speech and religious tolerance - were true for all of us white Protestants. We didn't get that African-Americans encountered obstacles that we didn't, or that Jews and Moslems might face discrimination. The Supreme Court rulings of that era that Ross seems to decry renewed the promise of equality for all. As far as I can tell, that liberal "judicial activism" that confronted a discrimination-loving majority embraced the Constitution.
By contrast, today's conservative Supreme Court justices practice their own judicial activism in favor of new rights for corporations and the wealthy, while limiting the freedom of women, and religious and "racial" minorities. Those Constitutional literalists embrace the worst of our Founders (government for rich, white men) at the expense of their noblest ambitions.
30
Wouldn't term limits for Supreme Court justices tend to make every impending retirement an issue in presidential elections? "Justice So-and-So will be retiring next year, so elect the Democrat!" For that matter, one could imagine a president taking a presumed retirement date into consideration when nominating a justice: "His term will end in July 2036, just before the election." No, until the ill-assorted "issues" that tend to define "liberalism" and - even more randomly - "conservatism", like cosmic dust come together to form some sort of coherent entities, we might as well keep the devilish system we know.
8
The liberal-leaning courts never:
(1) interfered in an presidential election, taking pains to excuse its unprecedented act by saying it was not setting precedent but was acting in a one-time manner; the prevailing votes by justices appointed by Republican presidents; Bush v. Gore.
(2) required the parties to an appeal to argue an issue not brought before them and which the parties had specifically declined to bring, the majority claiming that they could not otherwise decide the appeal as brought before them, rather than simply declining to grant certiorari because the issue was not ripe, which is what previous courts would have done; Citizens United v. FEC.
(3) substituted itself as trier of fact, saying Congress was wrong when Congress by huge majorities had reauthorized federal pre-clearance under the Voting Rights Act; Shelby County v. Holder.
Voting rights being the common thread of these anti-democratic decisions.
The liberal-leaning courts never did these things. This is not "what goes around comes around."
74
I kinda agree with Mr.Douthat's conclusion, but differ in his characterization of "liberals." I would characterize Democrats as those believing in truth, fairness and good government. Not corruption of the Constitutional process as when Mitch McConnell, in what Alan Dershowitz called unconstitutional, witheld and denied the advise and consent obligation of the U.S. Senate, and the Democrats laid down.
Mr. Douthat fails to address the first sentence of the First Admendment when he expresses dismay at jurisprudence that overruled school prayer and "Christian-influenced morals legislation." In a wonderfully diverse nation is that not just?
It's hard to determine if Mr. Douthat is writing as an analyst or a partisian with his recommendations for "liberals" -- all of which are political losers. How about fair districts -- not gerrymandered districts? How about fair voting registration and voting procedures that encourage participation not suppress it?
The Republicans had a vision, organized and worked for decades to put this court in place. The Demorcrats need the same commitment. They can start only by gaining power. For that they need unity.
28
When it came to an issue like same-sex marriage, proponents did not seek a 38-state-ratified constitutional amendment but took the SCOTUS short-cut. Where was the skepticism then? Our Supreme Court has seldom let Americans down.
3
Whether one looks at the Supreme Court from the right or the left, a single ten-year term for all Justices would go a long way toward reining the Court in. The Times has asserted that that would require a constitutional amendment, but the text of the Constitution does not require life tenure.
11
The reason liberals and other thoughtful people are worried about the Supreme Court now is it is the only remaining functioning branch of government. Congress, though in the hands of one party can only approve Supreme Court justices and the president doesn’t understand what are the responsibilities of his job. I know he isn’t a politician and is still “learning” but his teachers seem to be autocrats. The I have this job for life Supreme Court, are now our rulers. If in a democracy this isn’t a little frightening, the democracy is already gone.
9
Establishing term limits for the Supreme Court would be similar in effect to abolishing tenure in universities.
Otherwise, Mr. Douthat argues excellently for an honest, introspective approach to correcting the course of our government.
It's extremely important that we not confuse being temporarily out of power as evincing some fundamental flaw in our system of government.
Not only would the other side rightfully seize upon it as self-serving, but it would threaten unintended consequences that could be our unmaking.
5
"The politics of the 1940s and ’50s and ’60s would have still been generally liberal without judicial activism..."
Really? From what I've read, that era was basically defined by legislative resistance to extending the benefits of America to every citizen. Remember Trump's father? The things he's done? And that guy was a New Yorker - the more liberal version of what was going on down South.
It wasn't until 1964 (!) that you had sufficient support for something as wide ranging as the Civil Rights Act. Do you really think the country would have gotten to that point without the Court recognizing that things like segregated buses, racial real estate covenants, and preventing African-Americans from voting in primaries were inherently unconstitutional?
This list of grievances the right has about what the court has done in the past is always notable to me for its focus on saying that minority groups (i.e. groups not in power) should have pursued what they rightfully deserved some other way. A way that has purposefully and continuously been blocked.
And, so, we arrive at the right's moment of glory. One stolen nomination later and they now control the court. Whatever the court was is dead. What it is now is political. But, liberals should realize that demographics and polls show they don't need the court anymore. It's perceived legitimacy should be secondary to actually implementing their agenda. So, pack the court when you need to in order to protect or expand your power.
27
As a moderate in most things, I am much less worried about an ideologically more conservative court, than I am about the chief 'qualification' for judges, supreme ct or other, becoming 'loyalty'. That sound like a path to true kangaroo-ism.
19
When democrats are in power we push for equal rights for all, Health care. Clean air and water. Quality education. Workers rights.
When republicans are in power they push for war, prisons, class warfare, increased benefits for the rich.
Both sides make mistakes and programs fail.
When democrats fail, they fail with a noble purpose, and a clear heart.
When republicans fail, they leave a scorched earth and lost souls.
200
Douthat: "Democracy is in peril. The majority no longer rules.."
Ross, that was evident in the 2016 election, when the vote of the majority did not give us a president. Instead, the minority of voters elected a president via the electorial college. Yes,democracy is in peril, and in more ways than one.
33
Of course you realize that was the purpose the Founding Fathers incorporated the Electoral College in place.
Don’t liberals hate the Constitution when it performs exactly as intended.
1
Mr Douhat, you are a century off in your analysis. Today's America resembles not the 1950's, but the 1850's.
I think you fail to grasp the gravity of the political conflict in which we are engaged. The decision by the Republican Party, and by millions of Americans, to support and empower Trump will have lasting political implications.
When Democrats attain any power, at any level, in any branch of government, the goal will be to use that power to destroy the Republican party, as they should. No holds barred, this is a war to the finish.
You don't seem to understand that Conservatism has crossed it's Rubicon. There is no going back. There will be no compromise.
49
The Supreme Court has always been a political institution, but lost its integrity and its credibility as an impartial arbiter of the Constitution in 2000 with its execrable decision in Bush v. Gore. It has never recovered; indeed it appears to be getting worse.
44
And since the installation of Neil Gorsuch*, the Supreme Court is quite simply illegitimate.
2
Judges are tasked with making decisions. When they make decisions people like, they are said to be acting with judicial restraint. When they make decision people dislike, they are said to be practicing judicial activism. In both cases, they are simply doing their jobs.
Can we please stop with using politically charged terms that are actually lacking in real meaning? Every judge actively interprets the law. It's what we pay them to do.
6
So Douthat wants to go down the GOP rabbit hole on the 1960 Presidential,election again? He purports to show that, if Alabama's popular votes (cast for electors, not the Presidential candidates themselves) were counted 'properly,' Nixon should have won the national popular vote by some 60,000 votes. (He concedes through gritted teeth that JFK won the Electoral College).
But, if you want to unpeel this old onion, why is there no mention of the very strange and suspicious case of Nixon's home State of California?
On Election Night, all the networks called California for JFK and put its 32 electoral votes in his column. JFK had held a modest but steady lead all night. JFK continued to hold that same lead for ... nine long days AFTER the election!
Then, poof, a dump of absentee ballots suddenly emerged (many notably from Republican Orange County) which purportedly swung the State to Nixon by just 35,000 votes.
California law provided that absentee ballots ONLY could be submitted with a voter certification of medical disability or that he/she would be out of the State on Election Day. What's more, all absentee ballots had to be received by Election Day.
An investigation may well have shown that NONE of these ballots were timely received (which the Republican Secretary of State conveniently ignored), or that many of the voter certifications themselves were wrong or flawed.
But no inquiry was conducted because JFK already had won the election.
20
I am a liberal for one reason. I grew up in the South. The conservatives did everything they could to prevent integration. That taught me once and for all that they did not deserve my support. They also, in its time, opposed the vote for women. And the equal opportunities for women in the workplace. And protection of workers from dangerous working conditions. I could go on. But if it were ONLY conservative support for segregation, that alone would be enough. (I am white.)
55
Presidents are limited to two terms. Congressman seek reelection on a regular basis. The Supreme Court is nothing more than politicians with lifetime tenure. We would never accept for this in the other branches. Something needs to be done to limit their power, perhaps a single ten year term and O U T.
17
Let's see how the Democratic majorities after WWII served the country. Well from 1946 to 1973, GDP growth averaged 3.8% and, more importantly, real median household income surged 74%. Inequality was much lower. After WWII the richest 1% owned between 25% and 30% of the wealth of the country. Today they own about 40%.
Let's look at wages vs productivity.
From 1948 to 1979, worker productivity rose 108%, and hourly worker compensation increased 93%.
From 1979 to 2013, worker productivity rose 64%, and hourly compensation rose just 8%.
The difference?
From 1978 to 2013, CEO compensation increased 937% while worker pay increased just 10%. There are similar figures for other executives.
And there are a lot more figures like these that show that liberals have been a lot better for the country than conservatives.
PS. If you want to raise the "Europe was Rubble Myth,". look at http://piketty.pse.ens.fr/files/capital21c/en/pdf/F1.1.pdf which shows that the output of Europe was about the same as the US during the Great Prosperity of 1946 - 1973.
37
Douthat is absolutely correct in saying that major constitutional revision is needed in how our laws are made, our president elected, and how frequently Surpreme Court Justices need to be replaced. We do need a means to eliminate the possibility of gerrymandering. We do need an end to the electoral college farce, to be replaced by national popular vote choice of the President. We do need to curb the law blocking power of our Senate, which allows only two votes per state regardless of population. Insisting that the Senate and House vote in joint session might help. We also should set term limits on Supreme Court Justices. The question is whether the entrenced political bosses will allow it. I have little confidence that they would.
12
Mr. Douthat's remarks are not entirely ill conceived; in fact, they have a certain appeal, on the surface. Once one delves below, however, his comparisons of the neo-con and liberal electoral advantages over the decades -- indeed, his argument for equivalency -- fails, as it omits mention of several of the factors that makes the conservative's recent (20-30 years) successes so unpalatable to so many.
First, voter suppression and manipulation: this renders the conservative electoral successes not simply unpalatable, but illegal. GOP trends were not due to hard work and voter turn out, but cheating. Similarly, it is becoming clear that the Russians tampered with and affected the outcome of the election. When Trump's occupancy of the White House is considered in the light of Russian meddling, which is not only galling but illegal, the effect on democrats and liberals is far worse even than the appointment of George W. Bush by the SCOTUS.
Taken as a whole, the fury of the left is righteous and justified, based as it is in part at least on objections to the cheating of the right, whereas the GOP anger directed to Mr. Obama was based on racism and race hatred.
VERY different notions.....
112
An excellent demolition of Douthat's political poppycock and sophistry, William.
Well done.
20
So basically, Democrats are voted into office by popular majorities and Republicans are either put into office by SCOTUS or by the electorical college. And, let's remember that the EC was developed in order to placate the slave states. So.....the false equivalency doesn't work...again.
Republicans on the Supreme Court are so disappointing. Alito lied about Roe. Thomas is a non-entity. Gorsuch’s legal reasoning is superficial and often wrong. And now we are about to have an adolescent who can’t handle a credit card in Kavanaugh. Scalia was brilliant. These guys discredit the institution.
23
Amazing...An entire op-ed and not one word on how the GOP stood the Constitution on its head to 'hold a seat open' until after the election. Mitch and Chuck staged a minor coup in prematurely curtailing Obama's valid authority to name Antonin Scalia's successor. They stole the seat by quoting a made up rule and want to be patted on the back for having disregarded their constitutional mandate ("...and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,...") and their oaths of office.
Should Judge Kavanaugh be elevated to SCOTUS will he and Justice Gorsuch recuse themselves on any case having to do with Donald Trump and the Mueller investigation or will they insist that they can rule without bias despite their seats being fruits of the poisoned tree?
The skepticism that imperils our justice system is not born from nothing. The Conservatives have shown themselves to fracture any rules of comity to get what they think they need. A court that is stacked with men who think like them.
86
Well, Ross, I don't know what Liberals want, because I am not one. I just look like one, because while a whole lot of people took a step to the right, I stood in place. Then got labeled "Liberal."
What *I* want from a judge is that he maintain the status quo, and not take part in the great undoing of America. You view that undoing as stemming from the Liberal era that expanded social welfare in the political sphere and loosened cultural and religious restrictions on personal behavior.
The status quo *I* see being overturned goes back beyond Johnson, beyond FDR to the other Roosevelt. To Robber Barons, to a lack of personal power of the individual, to a lack of protections for the least in society. And to a really big increase in the number of leasts.
I have listened for years to the right complain of activist judges, bring up Roe v Wade as the nadir, but ignore that we have HAD a conservative activist court for years now, with Kennedy as the arbiter. But Heller, Citizens United were certainly not originalist interpretations.
You talk as if Conservatives never had an activist Court and Liberals are finally figuring out how bad they are. Where have you been the last few decades?
85
You misleadingly confound countermajoritarian outcomes with a lack of proportional representation. No matter how fairly boundaries are drawn, a single member electoral system will tend to give the winning party a disproportionate number of seats. Indeed, if voting support was evenly distributed, 51% of the vote would yield 100% of the seats. However, a lack of proportional representation is a minor matter in comparison with the problem of a party winning an election with a minority of the votes and it is not countermajoritarian at all.
You also misleadingly imply that Hillary Clinton suggested that votes should be weighted by contributions to GDP. She made no such suggestion. Her point was simply that Trump voters are backward.
19
@ John Evan
"Trump voters are backward." Indeed they are, and they are deplorable, too. That wretched cartoon of a leader we are now saddled with, presently shaming our country in Europe, still has approval numbers of 40% plus. 90% of Republicans approve of him.
Backward is an understatement.
The court is no longer legitimate. One seat was stolen, and a second is about to be filled by a president who is looking increasingly illegitimate, if not treasonous.
Despite the fact that 64% of Americans would oppose overturning Roe v. Wade according to this week’s Gallup poll, it is an open secret that Gorsuch was appointed and Kavanaugh is being considered specifically because they are likely to try. All five of the court’s conservatives will have been appointed with that in mind.
Kavanaugh and Gorsuch are not alone in being tainted. Both Roberts and Alito were appointed by Bush, not long after a conservative court got tired of the tedium of counting votes (no time for this in a democracy, I guess) and handed the presidency to Bush.
And while the remaining conservative Justice was credibly accused of sexually harassing his female subordinates, a Senate of 98 men and 2 women decided to give him a mulligan.
Add that Kavanaugh’s expansive view of the presidency suggests that he would immunize our president from the rule of law while he is in office, increasing the chances of another justice or two for Trump.
This is the story of the GOP in 2018: illegitimacy. The country will not recover in my lifetime. Unlike my own experience, my grandchildren will be raised knowing that of the three branches of government, the court is one that cannot be trusted.
38
It’s absurd to think that anyone should accept a Supreme Court nomination while the country is reeling from the latest indictments of Russians for meddling in the 2016 election. The President, Mitch McConnel and Paul Ryan have not done a darn thing to address the Russian involvement in our elections. The country should not accept any Supreme Court nominations until the Mueller investigation is complete.
34
Mr. Douthat makes what would be good points, if only the positions of our two major parties had actually stayed the same over the past four decades. In truth, the Dems, while staying socially liberal, have drifted rightward on economics; meanwhile, the GOP has gone full right-wing crazy. If the Republican party was no more extreme than Mr. Douthat, then we might be able to "go back to normal." But the nutjobs really do need to be driven from power before that happens.
25
Oh Ross...
I guess you're here for contrarian arguments that some think liberal readers of the Times need to hear. But really now.
Those Democratic majorities in the past that dominated Congress? That was the result of actually delivering something to the American public. Starting with the New Deal and Social Security and so on. The current Republican majorities? They are the inflated outcomes from gerrymandering and voter suppression, not to mention systemic in-balances. The sort that deny the presidential popular vote winner the office.
The liberal court that defied popular opinion in the past? That was mostly due to going against the white racism that had been institutionalized, primarily (though not exclusively) in the South. Care to take the "populist" side in those cases? However, now we have the courts going against the popular sentiment of a majority of Americans in regards to things that really effect their lives- like unions and healthcare- in the name of serving an extreme minority of oligarchs and their helpers. Quite a different situation.
Oh, reaffirming America's secular tradition is not an "attack" on anyone's religion. But trying to enshrine the doctrines of a far right version of one religion is certainly an attack on our civil society.
92
The democrats controlled congress in the 50,60s and 70s but only had liberal majorities for short times during this period. They depended on the solid south for their majorities and they never supported liberal social polices like civil rights. His whole analysis is flawed by his ignorance or deliberate misreporting of the facts regarding democratic majorities in congress in the period he cites.
20
Mr. Douthat,
Other than the wealthy taxes-are-all-I-care-about crowd and the knuckle-draggers spending their waking hours watching Fox News and listening to Rush and Alex Jones, the evidence of populist support for progressive causes is overwhelming:
--“a federally funded healthcare system providing insurance for all Americans.” Supported by 58% of all Americans in a 2016 Gallup poll.
--Fifty-eight percent of respondents to a 2015 Gallup survey said they “approve of” labor unions—and 72 percent said unions should have either more influence than they now have, or at least the same amount.
--Seventy-seven percent of the public supports limits on campaign spending, according to a 2015 Pew poll.
--Reproductive rights: Fifty-six percent of Americans believe abortion should be legal in “all or most cases.”
And so forth on issues as diverse as LGBT rights, minimum wage, child health care, and immigration rights.
Here's the reference:
http://inthesetimes.com/article/19816/progressives-are-the-new-silent-ma...
To say that the Right has some pre-ordained authorization to return us to 19th-century laws, based on the specious reasoning that "They did it to Us, so now We'll do it to Them" is patently ridiculous, and I'm dismayed that you would use that as an excuse for advocating for Kavanaugh's appointment.
Time moves on; so should you.
26
The concept that Republican justices are originalists while Democratic judges legislate from the bench is nonsense.
Supreme Court decisions are not based on the Constitution but on expediency.
One of the most unfortunate parts of Scalia's Heller opinion was his striking down the requirement that guns in the home be stored safely.
Too many times a child has picked up an unattended loaded gun and killed.
As Adam Winkler describes in his book , Gunfight, page 117, a law in Boston forbade having a loaded gun in the home.
Justice Hugo Black voted in the minority to uphold the obscenity conviction of a young man who expressed his disapproval of the draft with a very obscene word written on his jacket.
So much for "no law" means no law.
Black also voted in favor of the WW2 Japanese internment arguing "We were at war"
Again not a constitutional argument but one based on expediency.
I would ask the originalists the following. Electronic communication was unknown when the 4th amendment was adopted. How would present day originalists know what the founding fathers would have said about warrantless searches of electronic communications today.
16
I should have mentioned the Boston law dates from 1783.
7
The first sentences were right: "Democracy is in peril. the majority no longer rules." The majority stopped ruling when Donald Trump became President of the United States having won 3 million fewer votes than Hillary Clinton, but securing victory in that Constitutional malapropism called the Electoral College. After that, nothing done in this Presidency is legitimate.
26
Mr.. Douthat, this is not an intellectual game. Real people get hurt by these nominees. Real people as in not White, not Male, not Straight. Real people who sometimes take their own lives because Gorsuch or Kavanaugh deems them less than real people. So have fun with your column. But as a high Catholic who is a believer it must somehow give you some trepidation that you will be held accountable for your beliefs. That, in the end, in the final analysis, in that moment of judgement in which I am sure you believe, the question will be very simply: in your life did you use your influence to make the oppressed feel more accepted? And I am sorry but straight White folks in Indiana, Iowa, and Montana don't count as the oppressed. For God's sake, the ball's been comfortably in their court for more one hundred years!
39
This is the most confusing op-ed I've read in a long time. I don't see any point to what Douthat is writing here. What I saw on television was a spectacle designed to make Trump look good. What I saw when Obama nominated Merrick Garland was a GOP dominated Congress refusing to do their job and preventing a duly elected president from doing his by invoking false claims about how little time Obama had left in office.
SCOTUS nominations have become photo ops, propaganda, and lies. In other words they are like every other nomination in America. The conservatives claim that they don't want judicial activism yet that is exactly what they want when it comes to their agenda. If it concerns abortion, Affirmative Action, or any discrimination (except that which favors white males), they want it changed to reflect their views regardless of who gets hurt.
And, in case Douthat has forgotten, Trump LOST the popular vote. Clinton won it. Kennedy didn't do what Trump has been doing even before he won the nomination: lying about everything possible. I won't say that JFK would have been a great president. His term was cut short. But JFK didn't go looking for problems the way Trump has been. And the country, while it was still not responsive to minorities, was working on it until Reagan took office.
A lot of our current problems begin with Reagan's 8 years in office. He was our acting president. Trump is something much worse.
34
Perhaps "conservatives," if such a group still exists in Mr. Trump's Republican Party should consider this... If long-simmering anger about "judicial activism" results in Mr. Trump's nomination and election, where does the liberal countermeasure to the current era land us in 30 years? Nominating Mr. Trump turns out to be great for the right in terms of filling all those judicial vacancies right now, and it will shape the judiciary for a generation. My guess is the nomination of Trump and stacking the courts with rihgt-wing judicial activists will turn out to be a long-term very bad move for Republicans.
9
Remember the last "liberal" g judge nomination was a proven middle of the road guy that at one time all agreed was the guy. Then, the repubs decided no way they would go the middle of the road but were all in for a ideology they could depend on to do all the things they want. This nominee chosen by right wing think tanks for their loyalty not to the law but to the party. Despite that Trump lost the popular vote by over 3 million and only squeezed by in the electoral college they are refusing to even consider the majority of Americans who voted against them.
15
First, that Ross Douthat feels the need to repeat the now ancient myth about Nixon, Cook County and the popular vote in 1960 is incredibly disingenuous in this Trump age of alternative facts and fake news. If Douthat wants to a be truthful historian or political scientist, he needs to keep up with the scholarly literature. He can start with Edmund Kallina's definitive analysis, Kennedy v. Nixon: The Presidential Election of 1960 (University of Florida press, 2010), which settles the Cook county vote issue, even as it points to serious problems and likely fraud in Texas (not yet a red state).
Second, stop pretending that the Merrick Garland travesty didn't happen. Republicans didn't simply block Obama's nominee. They deliberately circumvented the entire constitutional process when they refused to even consider the appointment. What we're witnessing isn't hyper- partisanship. It's the breakdown of our constitutional system. Whether Douthat understands it or not, that's as much bad news for conservatives as it is for liberals.
36
The Constitutional system does not mandate anything other than a nomination and an approved confirmation. If the confirmation does not happen, by action or omission, there is no confirmation and there is no Constitutional illegitimacy.
4
What Dr. Douthat ignores about Democratic SCOTUS anxiety is that in general "conservative" courts refuse or strike down civil rights awarded by "liberal" courts or laws.
For example, prayer in public schools supported by taxation from all of us [except huge corporations and individuals who pay nothing] is not enshrined in the US social contract.
Dr. Douthat's yearning for a return to public "call to prayer" in schools and public life, as in Moslem theocracies, could be granted by a Roberts Court where bizarre as it might seem, Roberts could become a swing vote, crushing his hope.
But the good news for Dr. Douthat is that Republicans have little to fear from "liberal" courts granting him the civil rights that he wants to strike from the poor and the weak.
9
The article mentions several possible changes that would require amending the constitution such as "term limits for Supreme Court justices". However, any proposed amendment to the constitution has to be ratified by three-quarters of the states. That is, it has to be approved by the legislatures of 38 states. Due to the way public opinion has become divided along regional lines, it is presently virtually impossible to get 38 states to agree on anything that is not already the law of the land. Therefore I would claim that, for all practical purposes the constitution is frozen in its present form for the foreseeable future and proposals that require it to be amended are not worthy of consideration.
10
The "tyranny" of the Supreme Court itself is not the only one to fear. What about how individuals on the High Court are being seated, or not?
Gorsuch holds a seat stolen by Senate Republicans from President Obama, who was constitutionally entrusted with nominating Justices.
Now, Trump, who mightily lost the popular vote, is going to place another person for lifetime tenure on the Supreme Court, thanks to Electoral College's gimmickry. That Judge will hold power long after Trump will.
The Supreme Court is being shaped by deeply anti-democratic forces.
22
Ecumenical school prayer? I was in elementary school in the years prior to the Supreme Court decision to forbid school prayer. Every student -- whether Protestant, Catholic or Jewish -- was meant to recite the Lord's Prayer. My school used the Presbyterian version (debts/debtors). In contemporary America, what would qualify as "ecumenical" prayer? I imagine Douthat's version of an ecumenical prayer would not garner ecumenical agreement.
53
As a liberal, I'm fairly copacetic about the loss of the Supreme Court to some of the conservative positions that we know are coming. What really ticks me off, though, is that both left and right courts and politicians care more about the rights of corporate people than the rights of real people. The further loss of the judiciary's top court is just one more knife in the back of this country. Plenty of Democrats have played along for 30 years in the demise of our middle class. What's one more knife in the corpse....
37
Hear, hear. "Name" has nailed it. A core element of our democracy and economic stability has been a healthy middle class. Both parties have overseen the destruction of the middle class though I would tend to place more of the blame on corporation hugging Republicans who have allowed the myth of "trickle down" to stand in for an enlightened social policy. And with seemingly unlimited corporate campaign contributions permitted by SCOTUS in Citizens United, the 10% who now control 90% of the nation's wealth have put the last nail in the middle class coffin.
Trumps's support comes in part from his attempts to turn back the clock to an earlier time in our history when we had a strong middle class and the sense that the American Dream was there for anyone to attain it if they worked hard enough. That opportunity is now a distant memory; the resulting frustration has given us Trump and his false promises of relief plus his SCOTUS picks to make the pain last even longer.
4
To me, the whole process can be boiled down to two belief systems which have eternally been at odds.
Liberals see the world as continuously changing. They strive to seer change in a way that makes the world a better place.
Conservatives don’t accept that life is continuous change. The more extreme (those who have it good right now) refuse to accept any change at all.
Of course the world does change, and it does so in a direction most of us call progress. To be a conservative consigns one to an unhappy life of resentment, railing against changes like civil rights, women’s rights, and LGBT rights.
The Supreme court is a mirror, not a cause. All conservatives will one day be dragged, kicking and screaming, into accepting those aforementioned rights for all. At about that time, a new set of rights will appear for the conservatives to rail against.
Life goes on.
22
What in human nature has changed from what it was 5K years ago ? Not much. No more slavery and women are more equal to men. But murder and all kinds crimes are regular features of daily life in every society.
1
Let's replace conservatives for liberals in this sentence:
"...if liberals genuinely want to permanently reduce the power of unelected justices and make the House more democratically responsive, they’ll seek reforms that don’t just attempt to grab back liberalism’s lost advantages."
Mr Douthat, while I agree wholeheartedly with this sentiment, where are current conservatives on this goal? Have you been pushing conservatives to use their current majority to push for this kind of reform? Did you complain when McConnell refused to allow Garland's nomination to proceed?
30
Republicans have been making these arguments for decades. I’ve been making them here for over 11 years, usually in response to an op-ed by Linda Greenhouse. But it’s now too late for liberals to make them in any way that matters a hill of beans to reality.
When liberals couldn’t get what they wanted legislatively, they aggressively sought to get it through the federal courts. Republicans now have given up on trying to convince Democrats that it is profoundly unwise to hand such power as they regard to be tactically convenient to nine unelected jurists who serve for life during “good behavior”. We’ve now resolved to scotch excessively and too-rapid attempts to transform us along liberal lines by making sure that if it happens at all it won’t be by the courts – by making sure we determine who SERVES on those courts. That has serious drawbacks and risks, since in empowering jurists who believe that their proper role is to serve as umpire and not legislator we find that along with that view often comes a belief that religious precepts should bear excessively on our jurisprudence.
Tough. It was liberal excess that compelled the counter, and no counter is perfect.
Ross makes this case in his column. Good advice to Democrats: think hard about the implications of changing our federal court system for partisan reasons. Even if you get the opportunity anytime soon, which is highly doubtful, the outcomes of such efforts could be profound, and not at all what you expect.
12
Ross, The real irony here is how many Trump supporters will suffer from the decisions this ultra conservative majority will make against their best interests. It seems that these voters have been so busy drinking the kool-aid that they (still) don't realize that Conservatives are no fan of Labor in general and organized Labor in particular.
9
In short, we stole this fair and square, so let us have our victory. Yeah, right.
3
Really!!?? You think Dems should stand down?? Mitch baby refused to even bring up Obama’s SCOTUS choice because of an upcoming election. He stalled or flat out refused to bring up other judicial appointments. Republicans fell in line. Well, when the Dems are back in power, a little bit of hard ball is in order.
1
Mr. Douthat riddle me this. Why will it be necessary to garner 7% more votes than Republicans in the upcoming election to have a chance at retaking the House of Representatives? Isn't is supposed to be the chamber of the people? If so, why do conservative people count so much more than liberal people?
70
Neither presidential candidate won the majority of the popular vote in 2016. Hillary Clinton won 48.2 percent while Donald Trump won 46.1 percent. But there is no contest for the popular vote in presidential elections. To say Clinton won the popular vote is to say the she won a contest that never took place. The contest in presidential elections is for the Electoral College vote. Trump became president because the majority of electors (306 of 538) voted for him. He won 56.8 percent of the vote that counts. This makes the Trump presidency as majoritarian presidency.
According to a 2017 Gallup poll, 36 percent of Americans are conservative and 25 percent ae liberal. While neither conservatives nor liberals represent a majority of Americans, the poll results shows that the conservative tilt of the Executive Branch, the Judicial Branch and the Legislative Branch fairly accurately reflects American political views.
https://news.gallup.com/poll/201152/conservative-liberal-gap-continues-n...
8
I respectfully disagree.
• 58% of Americans support a single payer health insurance system. The number climbs when people are told more about the way it would work.
• 90% of gun owners support some sort of background checks for purchasing a gun.
• 83% of people would have a “favorable” reaction to their representative in Congress taking “a strong stand in support of policies to protect and strengthen national parks."
• 70% strongly support protecting public lands like monuments and wildlife refuge areas.
• 72% of people support stronger controls on pollution.
• 66% support the expansion of wind, solar, and renewable energy development.
• 65% of voters back increased taxes for Americans making more than $250,000 a year.
• 67% of the top one percent of American earners support higher income taxes.
• 65% of people support giving illegal immigrants a path to citizenship.
The majority of Americans actually support moderately liberal positions, whatever they call themselves.
128
"Trump became president because the majority of electors (306 of 538) voted for him. He won 56.8 percent of the vote that counts. This makes the Trump presidency as majoritarian presidency. "
-------
The Preamble to the Constitution begins with the words: "We the People," not "We the Electors."
4
So why do such a large percentage of voters vote so stupidly?
Brother Douthat, right-wing America has been assassinating democracies at home and abroad for a good sixty years now.
You can take your pick from the 1953 Iranian coup d'état, the CIA-mafia murder of JFK, Nixon's assistance in overthrowing Chile's Allende, the Bush-Cheney overthrow of American democracy in 2000, the Russian-Republican 2016 coup d'etat or the Mitch McConnell hijacked Supreme Court.
Douthat's shameless false equivalence fails to admit a basic tenet of modern right-wing Republicanism:
Republicans do not subscribe to democracy or representative government.
They don't believe in representative democracy; they don't support it and they work night and day to defeat the will and the vote of the people to deny democracy.
That's unAmerican.
The reason we have the greatest 'free-market' healthcare disgrace rip-off in the world is because of Republican hijacking and the abandonment of the majority of Americans by Greed Over People.
The reason we have Congressional fundraisers instead of Congressional representatives is because Republicans think 0.1% 'speech' and 99.9% silence sounds just about right.
The reason Republicans control the Senate, the House, the Presidency and the Supreme Court is because they are masters at rigging elections, disenfranchising voters and creating an oligarchic state that only the Kremlin could love.
Stop making excuses for Russian-Republicanism already, and move to Russia where you can experience your political heart's desires.
529
Matthew,
I do find fault with Brown vs. Topeka
in that it failed to mandate equal funding for
all public schools in each state.
This is why the Courts can rule but should
not attempt to legislate from the bench ala
"Boston School Busing".
We have a more segregated Public school system
today than we had in 1954, look at NY City and Washington D.C., public schools.
4
Matthew,
Brown vs Topeka illustrates why the Supreme Court should not assume that its intrusion into what is properly left up to Legislatures is always for the best.
The court should have ruled that not only does a child have the right to attend any school in their district but that all schools is the state be equally funded.
Just as the Judge in the "Boston Busing" fiasco
tried to legislate from the bench, the Supreme Court decision led to Public Schools being more
segregated now, yes New York City and Washington, D.C. are the most segregated, even though are clamied to bastions of Progressivenism.
The duty of the Supreme Court is to adjudicate, and if need be over-rule laws that are Un-Constitutional. It fails in its duy if it becomes
overtly political - no matter which party claims
its fickle favour.
3
Douthat's "equivalency" argument just doesn't hold here. For one, it is the conservatives who want to take away people's freedoms. Take away the right of gays to marry, take away the rights of woman to have control over their own bodies, take away the rights of non whites to vote, take away the rights of the blue states to block open carry laws from overriding their own gun laws. The Democrats' liberal dominated past is usually their attempt at fighting back against the conservative forces that would ram down their throats a right wing agenda.
And it is ironic that Douthat goes back to Richard Nixon to say that the Democrats have not been truly pro democratic. He could have gone back the the George W. Bush 2000 election (appointment) by the Supreme Court. Now wouldn't that have been more to the point?
1
Justices increasingly vote in an entirely predictable partisan manner no longer appearing to be independent and considering the merits of each case; that was once not true of Kennedy and others; that is my concern about Kavanaugh's nomination.
18
I have absolutely no faith in democracy or better put rule by the mob. What I put my faith in and it's not really faith its just me watching to make sure what keeps us Americans free stays intact and that is the Bill of Rights. What is this obsession with democracy? It is only the way we elect a government. But that government is constrained by the Bill of Rights. That is why we Americans are free
6
One can argue conservative vs. liberal all day without advancing our understanding of what is happening to America this very minute one single iota.
To argue that Trump and the denizens of the deep who elected him and continue to support him are conservative in any way is farcical.
If your main thesis is that over-reach by the majority party results in a temporary and balancing backlash, I might agree.
However, when republicans slavishly worship at the clay feet of Mr. Trump and successfully game our democracy for pure partisan advantage, I believe the backlash, when it arrives, will be immense.
99
While there are ways in which I agree with the general principle of this--and I am not remotely conservative--it could only have been written by a straight white religious man who experiences equal rights and treatment as incursions into what he sees as HIS rights.
It reminds me of the study of children years ago that found that when girls and boys were called on to answer scrupulously equally, boys experienced it as unfair. Douthat experiences others' decisions about their bodies, their place in society, their rights, as unfair to him.
153
The Court doesn’t exist in a political vacuum. The decision by Mitch McConnell and his GOP cohorts to deny a consensus candidate in Merrick Garland a seat was a demonstration to Democrats that they need to play hardball too.
The writings by Kavanaugh regarding investigation of a president should, at the very least, make Democrats and at least three Republicans demand a recusal of Kavanaugh when it comes time for Robert Mueller to subpoena Trump investigating the president’s ties to Russia
59
If Mr. Douthat were to be honest, he would note that the judicial activism and states’ rights are just convenient excuses for the conservative Justices to overrule Democratic legislation. The silence when it is a.Republican initiative being considered is interesting.
26
Ross, you wrote:
"But the countermajoritarian sweep of liberal jurisprudence in that era was still dramatic..."
Ross, quick quiz: was Earl Warren a Republican or a Democrat?
Answer: he was a former Republican governor of California, nominated by Eisenhower - a recess appointment and pragmatist, who upon taking up the awesome responsibility of a Chief Justice of the Supreme Court experienced his own "road to Damascus" moment, and thus changed America for the better (unless you find fault with Brown v. Board of Education).
The majority opinion in Roe v. Wade was written by Harry Blackmun, a jurist nominated to the Federal court by Eisenhower, and later added to the Supreme Court by Nixon.
The Republican Party of 2018 no longer seeks to promote judges like Warren who put the better angels of our nature front and center in any examination of an issue; it instead seeks to bar the admissibility of these angels altogether, while simultaneously seeking to subject the rest of us to the whims and dictates of economic vampires and religious reactionaries, as required by our deeply flawed original Constitution.
We need Justices who will remember, now more than ever, precisely how the 13th, 14th, and 15th Amendments were arrived at - the awesome toll in blood and treasure they entailed - and who thus always take Lincoln's benedictions far more seriously than those of narrow technocrats.
That's what missing from this Court and the reason why it is increasingly mistrusted.
293
We need justices who will not actively undermine the 13th, 14th, and 15th Amendments.
1
The role of the Supreme Court is to interpret the laws, not to make laws.
Whatever its composition, if the Supreme Court renders a decision that people disagree with, answer is for Congress to enact a new or revised law.
The purpose of opinion pieces like this, which denigrate and cast doubt on the Supreme Court, is to agitate the Democratic Party base so they will vote for Democrats in November and in 2020.
Because the Supreme Court will almost certainly move to the right when Brett Kavanaugh is almost certainly confirmed, those who would like the Court to move to the left need to stop moaning and tearing their hair and work to get out the vote in November.
12
I for one certainly hope most Americans grasp that the "current conservative coalition" is at this point defined by its ongoing support for Donald J. Trump. Ergo, I suspect the typical reasons given for why it should be beaten and buried are well-understood by a majority of Americans of voting age. I just hope the anti-Trump vote is huge and pervasive in November.
31
Same old ‘formal’ fallacy. Logic and the structure of an argument are important, but even more important is the substantial, the experiential, interpretation of the formal terms in the real world. And that has always been the asymmetry: the conservative mindset favors a pinched, narrow view favoring the privileged and against human flourishing, and the progressive view is the opposite - an expansive view of rights, autonomy, liberty, and an ever more inclusive polity. This real distinction, of course, escapes the cognitive capacities of the likes of Douthat.
19
What this conservative court means for future generations is "He who has the gold makes the rules." It's been an unspoken rule among conservative judges for decades. Now it will be right in your face. I don't know many and certainly no one my daughters age that are clamoring for more destruction to the environment, less healthcare, more guns, more dirty money in politics, less civil rights, voting rights and women's rights and more corporate control over government. This court is wildly out of step with most Americans. And the thing is, even if we turned the entire country blue tomorrow, as long as a Republican billionaire or corporation has a nickel in their pocket to sue over any new law or regulation, those five conservative judges will serve as the last firewall against progress for the citizens of this country.
60
The big difference is the more liberal courts wanted to expand the blessings of liberty and the franchise to more Americans and the conservative courts want to argue how many angels can dance on the head of pin by parsing a single word in a 240 year old document that we now see, thanks to Trump, is woefully inadequate for the modern times we live in.
When Mitch McConnell said he would not give Merrick Garland a hearing until the "will of the people" has been heard, a move so extreme no Senate tried it in 150 years, he admitted that the Supreme Court is not a judicial body but, indirectly, a third branch of the legislature.
Douthat forgets that the definition of an activist judge is one who over turns laws passed by a duly constituted legislature.
By that true and correct definition Thomas and Scalia are/were the most activist judges of our time.
Oh, and BTW, Ross, even if Nixon won Illinois's electoral votes in 1960, he still would not have reached enough for a majority.
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I often wonder if Mr. Douthat understands the implications of his arguments. He is correct that the civil rights of African Americans were recognized by the Courts against the wishes of the majority of Americans. And, by implication, he is correct again when he points to "liberal" concern that the current court is supporting state legislation to take those rights away (and the future court is certainly likely to inflict even more damage on minority communities). My question: in what moral universe are these symmetrical positions of the court? The stance of the "liberal" court was that rights of minorities are by definition not subject to the whims of the majority. The current court holds the opposite view. How is that symmetrical?
57
My skepticism of the Supreme Court is its departure from being a Council of the Wise to a politicized organism, where important decisions are made by a majority of one vote, 5:4. Unhealthy is the Court's division into two blocks of conservative traditionalists and leftist radical troublemakers. Besides, the religious composition of the Court until now -- 5 Roman Catholics, 3 Judaics (probably Reform), and one undefined either Episcopalian, or Catholic -- gives food for reflection on the inner ties of religious affiliation and political-legal views.
6
"5 Roman Catholics, 3 Judaics (probably Reform), and one undefined either Episcopalian, or Catholic -- gives food for reflection on the inner ties of religious affiliation and political-legal views."
It certainly does not. There are more Catholics registered as Democrats than there are registered as Republicans, and likely more progressive than conservative legal minds among them. Republicans keep appointing conservative Catholics to the bench because of the paucity of conservative Protestant evangelicals qualified for the position.
4
Ross: you begin by saying that the angst liberals feel about ultraconservative judicial activism now is "amusing" to you, given your and other conservatives' angst over past liberal SCOTUS decisions.
When women finally got control of our reproductive choices and committed gay couples could finally marry, and you were upset, we liberals were not "amused" at your negative feelings. We were sad that you felt that way because there is a resounding difference in these two sets of circumstances.
Roe and Obergefell acknowledged women's right to privacy in whatever decisions they need to make regarding reproduction and gay people's right to enjoy the same social, emotional, spiritual, practical and financial benefits of marriage as everyone else does, and they settled situations wherein people were being denied their rights. No pregnant women or gay couple seeks to impose their religious beliefs on you and other conservatives. They just want their rights unburdened by any religious beliefs of yours which they do not share. Your angst derived from a belief that it was impossible for you to bear it that people now had the right to live by their own values and not to be restrained by your religion.
When conservative judicial activism takes hold, rights go down the toilet. Voting rights, reproductive rights, gay marriage rights, workers' rights, etc. Our landmark decisions were for freedom to live, love, raise our kids and help people beyond the reach of your religious tentacles.
482
You have said it all. Liberals expand democracy and human rights, and conservative diminish them.
3
Beautiful, Joanna Stasia.
2
The Dems never pulled the McConnell power-play regarding Merrick Garland.
The Dems also never extinguished the filibuster rule for S.C. nominees, either.
My prediction---predicated on the GOP maintaining control of the Senate---is the resignation next June of Justice Thomas and the nomination and confirmation of Judge Amy Coney Barrett.
What we are facing in America is nothing short of a silent coup by an unholy alliance of corporate consorts and Christian fascists.
261
I am appalled at what McConnell did.
But in my opinion, the extinguishing of the filibuster for SCOTUS judges is the inevitable consequence of Harry Reid's decision to end the filibuster for lower Federal judges. I thought it was a mistake at the time, precisely because I feared what happened when Gorsuch was nominated. Unfortunately, I was right.
1
No, SC is not Federal judge.
Again, false equivalency, so typical on conservative side. And blame Democrats, of course.
No, SC is not Federal judge.
Again, false equivalency, so typical on conservative side. And blame Democrats, of course.
England has moved away from life appointment for judges. Judges have now to retire at 70.
29
Although not alone in doing so, Douthat takes false equivalence to historic highs.
Equating the surges of liberalism and conservatism over time is either cluelessness or disingenuousness on steroids.
Liberals actual press to advance the values and promises of democracy.
Equality under the law for women, people of color and LGBTQ citizens is not "activism." it is justice - albeit delayed and incomplete.
Fighting for voting rights is not a partisan game. It is fighting for the rights guaranteed by the Constitution.
Attempting to protect the rights to reproductive health autonomy against an onslaught of religious objections is not a "liberal" position. It is an effort to honor the founding of our pluralistic republic by keeping the hands of theology off the bodies of women.
It is dangerous to see this nomination or the broader issues as just equally valid points of view.
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@Barking Doggerel
"an onslaught of religious objections"
If opposition to third-trimester abortion, the demonstrable and selective aborting of Down syndrome babies, and Americans leaning in to early experiments with eugenics is a "religious" issue, then it might be the only hope to save America's soul and respect for the dignity of every human being.
1
Excellent comment!
Ross is inveterately disingenuous. It's his cleverest and least impressive thing; if he could just QUIT IT he would be a lot more readable. Also he uses a lot of loaded adjectives, sometimes in places where adjectives are suspiciously superfluous. Oh, and he likes big words. Platitudinous words are inherently impressive.
Republicans should be as skeptical as Democrats, when it comes to anything Trump and his party are doing. Good, well-informed, intelligent, critically-thinking Republicans, if such a thing even exists anymore, should be alarmed at the depths of corruption the party has fallen into. I write if there are any left because people of George Will's bona fides have finally left. He's the latest among a long list of Republicans who've left the party since 2012 when it became clear to the moderate wing that they no longer had a place in the party.
The GOP is not even a shadow of its former self. It has become the reincarnation of the monstrosity of Jim Crow, with a dubious coat of governmental legitimacy,
We learned last week that Justice Kennedy was worked on by the Trump administration to retire. We learned last week that Kennedy's son gave away billions in loans to the Trump family through Deutsche Bank. We've known for over a year that Deutsche Bank is under investigation by Robert Mueller. Judge Kavanaugh's tenure as Justice Kennedy's clerk is on the record. Kavanaugh's strange spending habits and miraculous ability to cover huge debts of a man of his means also came to light, as has his rethinking of a position he formulated, quite forcefully, when he worked with Ken Starr on the impeachment of Bill Clinton.
1+1= 2. Think, people!
---
What Trump Did... https://www.rimaregas.com/2018/01/07/politicos-running-list-of-what-trum...
136
The country is in trouble because GOP'ers under McConnell abrogated their Oaths, refusing to even meet with the SCOTUS nominee of a Dem POTUS, pretending a POTUS's Constitutional powers of appointment are non-existent past the 85th month of his two-term 96 months in office.
And, this was an historic Dem POTUS elected, then re-elected with 50%+ vote margins each time, beating the GOP'ers worse than they had been beaten since before the Civil War - over 150 years, 6 or 7 generations of Americans - excluding only FDR, and LBJ's election following JFK's assassination:
https://en.wikipedia.org/wiki/List_of_United_States_presidential_electio...
Now, the Orange Jabberwock is further corrupting the nation's judicial processes with his Executive Order converting 1,900 Administrative Law Judges into toady political appointees:
https://www.npr.org/2018/07/10/627826602/trump-changes-how-federal-agenc...
If any of this had happened under a Dem POTUS, we'd be peeling GOP'ers off the ceilings, and an endless conga line of EMT's would be hauling apoplectic GOP'er legislators from Capitol Hill.
"The state of our union is lawless" - Rep. Eric Swalwell (D-Ca), Jan. 30 2018
"If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy." - David Frum, Dubya speechwriter
294
With the indictment of 12 Russian officers whose objective was to secure the election of Trump, and perhaps the involvement of Trump himself or those close to him with the Russians, this brings into question whether Trump's election was even valid. McConnell (if he were not the hypocrite he is), should postpone any vote on Kavanaugh not only until after the election, but until after the findings of Mueller's investigation. There is a possibility that Trump and/or those close to him created high crimes and misdemeanors in order to secure his election. If that is found to be the case, then Kavanaugh's nomination should be withdrawn, in my humble opinion.
Conservatives have worked to control the Judiciary for many years, and now if Kavanaugh is seated, they will have control of the lower courts and SCOTUS. Not only is this unfair (mostly to women, people of color, and those who are LGBTQ), it is a clear and present danger to our democracy, which is hanging by a thread.
206
May I mention, as an example, that Roe v Wade, the decision most often cited by Republicans as demonstrating judicial liberal overreach, was a decision in which 5 Republican judges joined 2 Democrats in the majority, with the 2 dissenters came 1 from each party? It seemed to many of us that the positions of the post war era that we now call "liberal" became dominant not by gerrymandering, voter suppression & partisan propaganda, but by reasoned argument. And it has always struck me that the "conservative" reaction against those positions over the last 40 years has used identity politics, partisan media, and political power not to engage a debate on the issues, but to obtain a pre-determined result by exercising economic & political power.
713
It's really impossible to compare the politics of the 1930s-1980s to today. In that former era, both parties were made up of coalitions representing what we would now call both liberals and conservatives. Neither party had a straight line ideology.
It meant coalitions and problem solving. Roe v Wade was written by a Republican appointee w/o it being a betrayal of Republican orthodoxy. Nor was it hailed as a triumph of the Democratic party b/c the Democrats hadn't yet adopted the right to choose as a political goal; they didn't need to.
At the time, liberal and conservative as words even meant different things than they do now. And both sides contributed to triumphs of democracy like the 1964 and 1965 Civil Rights Acts.
Neither party was perfect and both parties contained detestable elements that were an impediment and a threat to democracy: the Republicans had McCarthyites and anti-communist paranoids, the Democrats had Southern segregationists and racists. In these things, the parties had balance.
But things have shifted and the Republican party now contains the McCarthyites, the paranoids, the Southern Segregationists, and a new white nationalist element that's as ugly as anything our politics has produced in post-Civil War America.
It's a dark and dangerous road we're on and where it leads isn't to judicial tyranny, but to chaos that only Vladimir Putin has foreseen. God help us.
18
The role of the Supreme Court is to interpret the laws, not to make laws.
Whatever its composition, if the Supreme Court renders a decision that people disagree with, the answer is for Congress to enact a new or revised law.
The purpose of opinion pieces like this, which denigrate and cast doubt on the Supreme Court, is to agitate the Democratic Party base so they will vote for Democrats in November and in 2020.
Because the Supreme Court will almost certainly move to the right when Brett Kavanaugh is almost certainly confirmed, those who would like the Court to move to the left need to stop moaning and tearing their hair and work to get out the vote in November.
1
dk:
I mostly agree with you. But it isn't just that the party coalitions have changed. It's that politics now is purely a power game, driven by money. The goal is power, not the common good. The Republicans absorbed the various racists, xenophobes, moralists & paranoids not because of ideology, but because they're easily manipulated as voting blocks. The Democrats try to fight on the same terms by courting racial, sexual & religious minorities. But both parties are basically competing ad agencies for financial power. Political tyranny is already here--only we all have a hand in it.
Small d democratic values are at risk. Overturning the Voter Rights Act, passing Citizens United & allowing political gerrymandering are all counter to values that the USA is supposed to be based on. There are no valid philosophical or jurisprudential reasons for any of that: it's simply partisanship. (And I'm not even bringing up Bush vs. Gore.)
344
And don't forget the utter refusal to give Judge Garland even a hearing.
2
I call false equivalence.
The Supreme Court was never packed by liberals; the "judicial activism " (read decisions we don't like) decried by conservatives, came from a Court that had appointees from Democratic and Republican presidents, not the result of a Republican Congress led by a Senate majority leader whose purpose in life was to block the Democratic president, Barack Obama, at every turn. The refusal to even consider Merrick Garland's nomination was a naked partisan ploy in which the Senate deliberately failed to do its Constitutional duty, again for nakedly partisan purposes.
Mitch McConnell changed the Supreme Court nomination process to Republican advantage, and now conservatives want liberals to go back to the way things were, again for conservatives' advantage.
Sorry, conservatives; you broke it - *you* fix it.
264
You need to spend a little more time with American history. FDR was President for over 12 years and it's widely agreed that for decades afterwards, the court was "his" because he was able to select the majority of judges. It's one of the reasons we have a two-term limit for Presidents now.
That's right. When I was a child in the 40s and the 50s, rural Republican states had full representation in Congress, and there was plenty of legislation that supported them, such as price-supports for farmers. Districts may have been somewhat misapportioned, but there was never an effort to cram one party or the other into 'safe' districts so as to give the other party an automatic overwhelming advantage.
Members of Congress were amicable both on and off the floor. A majority leader would never have refused to conduct hearings on a SCOTUS nominee--but then, we have never had a majority leader as mean and vindictive as McConnell. And no SCOTUS nominee, to my knowledge, was ever nominated with the near certainty that he will vote to overturn abortion rights while also voting for increased corporate power, reduced union power, and less government safety regulation in industry and agriculture. Check, check, check, and check.
3
We’ve already watched the Republicans usurp one Supreme Court appointment by refusing to consider Merrick Garland’s nomination. Now they’ll try to power through another religious conservative.
Meh, who cares, some say. So it’s a solidly conservative court for the foreseeable future. What’s the big deal?
But we should look back on what the world was like a few decades ago. Back-alley abortions were rampant. Civil rights were pretty uncivil. “Reefer Madness” informed our drug policy. We would choke at the cigarette ads on TV. Health care was for those who could afford it. Gay people had to hide or pretend, or risk their lives if they couldn’t. Workplace safety was an afterthought, if it was thought of at all. Free speech wasn’t so free, and consumers had to protect themselves.
The things conservatives decry today are what made America a country worth living in. Even they take advantage of rights that arose from liberal or moderate court decisions. But now, a Republican majority, fueled by spite and greed, wants to turn back the clock.
Ironically, it’s the blue-collar, heartland and evangelical crowd that will be hit the hardest by rolling back protections and safeguards that they take advantage of, probably without realizing it.
It’s not the people of the United States that conservatives work for. It’s to line their own pockets and get their own way. That's why liberals care about this so much, and why we'll fight for these rights with our last breath.
481
God how I hate it when Ross tells me what liberals are thinking. Let me tell you what liberals want from a liberal standpoint. We want fairness, a level playing field. Normal order, not abnormal gerrymandering favoring Republicans. Normal order, like advice and consent for Supreme Court justices instead of unconstitutional new rules for Democratic presidents. Normal order for passing laws instead of obstruction via an unprecedented use of the filibuster and the extra constitutional Hastert rule. Normal order, not a complete reversal of every long held Republican concern or argument simply to hold on to power. I wake up appalled every day and it's not because things aren't going my way, it's the fact that your party has stolen, warped and degraded the Democratic way we used to do America's business. We don't want the pendulum to swing back to the liberal side as much as we want to go back to normal.
312
@ Rick Cage: No sir! I don’t want the pendulum to go back to normal because what “normal” has become abnormal in this country. Normal is universal healthcare, woman’s right to own her body, universal gender equality, bell shaped wealth and income distribution, free public high education, welfare for the unemployed, no corporate money in elections, and much else along the same vein. We are attempting to change the physics that govern the pendulum by providing lenses of false equivalence to people. Let’s stop that please.
3
@Rick Gage
So, too, do all of us hate being told what we are thinking by Liberals.
And I will refrain from using the term "Conservative", because everyone who is not a Leftist is a Conservative among NY Times readers.
I voted for Obama. Surrounded by attacks that I am "racist", I will still state that his Presidency will be regarded as inconsequential in one hundred years. It would be ironic that I, as a father of non-White kids, could earn the title "racist" from a Liberal, but that's beside the point.
I weigh in here periodically, because it is a Leftist echo chamber. Two or three commenters garner 80% of Recommend votes and their material appears to come from a "COPY-PASTE" section of a single, favorite comment, so identical and repetitive are their attacks on Brooks or Douthat or Wehner or Stephens or any other non-Liberal brave enough to expend ink on this Op-Ed Section.
Some have said that self-awareness is the beginning of wisdom. We are in a bit of a fix, and what Douthat points to is absolutely spot-on: years of brinkmanship have made the country ungovernable, and we will have to go through a real trial before it recovers. I think we should all buckle up, because it is going to get rougher.
Conservatives have all the same rights under law as Liberals; and, in fact, so do right-leaning Moderates, probably the largest cohort of Americans.
The road to healing is not racist, religious, gender-based or class-based.
See if you can pull that off.
2
Spot on....thank you!
1
When I watch the ways and methods used by Democratic leaders to deal with the Trump candidacy that was effectively "stolen" from them (he is a Democrat, after all, and his core voters are working class Whites), I have to shake my head.
The Democrats believe that the country wants ethno-focused Socialism and, in the words of Oprah, "wait for the Whites to die". I am not sure it is a winning strategy, and there is early evidence that even the Hispanics and Asians who have come to America are finding their relationship with Democrats to be a Devil's wager and, ultimately, a straitjacket with real downside (having your kids denied college admission and finding America is hostile to your Catholic faith are good places to start).
Democrats are a little full of themselves right now, ascending to the moral high ground that they alone have built and promising free health care, hyper-progressive taxation, and possible universal income programs and, oh, pay no attention to that man in the women's restroom. Setting aside the financial challenges of these proposals, most voters are not buying if Bernie's candidacy is any indication of sentiment.
Trump, like Reagan before him, understood that simple fact. He, too, was considered a scary lunatic by Democrats.
13
I was just thinking the other day how much Trump is like a tough union leader from the 40s and 50s. He is really no more than a throwback to the blue-collar, lunchbucket days when the Democrats championed the working man.
Where to begin? Oprah holds no position in the Democratic party, and I’m pretty sure any fair reading of her personal beliefs does not include “waiting for whites to die.” Also, Democrats are offering “free health care”? I must have missed the memo. I thought it was something more along the lines of guaranteed access to affordable health care - since, as anyone in the world can tell you, there is no such thing as free healthcare.
It’d be great if people in the “conservative” movement could drop the hyperbole for just a few moments so we could have an adult conversation about important issues. Screaming “socialist baby killers” every time someone even remotely left leaning opens their mouth doesn’t count.
Does it matter to you that Oprah never said that?
Here is the difference between liberal and conservative feelings about jurisprudence and other such things:
A "liberal" wants a world where all can practice their own faiths freely - religious or otherwise. I am a sectarian. I am an open minded person who is interested in the welfare of all - to include housing, healthcare, education. I do not wish to impose my religious opinions on others. Live and let live. Golden Rule. I want an eagalitarian society where my vote is as important as that of the Mercers and Kochs. And yet they rule in darkness.
A "conservative" knows what's best for everyone. He wants his "god" present in schools and government. He wants his "morals" to prevail. He would be more comfortable in a totalitarian society where women are held in their place and racism is just the way it is. He is a direct product of the Puritan lineage. The rich are rich because they are smarter. The "others" are evil. He is a puppet of the oligarchs.
That is why the current nomination of Kavanaugh is such a threat to our society. He is an example of a tool for the rich...tossing philosophical bones to the base. He is the perfect public face of the oligarchs. He is an enemy of freedom, democracy and equal opportunity.
259
Excellent analysis !! Its not the "policy choices" that "conservatives" espouse but their view of the best type of government, autocratic, which is why we see Trump so admiring Vladimir Putin. Conservatives strike fear in liberals that they seek to overturn governmental institutions so that liberal policy choices never have a chance at implementation. Its not just that the pendulum of history may be swing right before it swings back to the left but that the system will change so that it never swings back.
A lot of Conservatives will read this and think: "yes, and what's your point?"
Of course, they mightn't agree with your comments about racism or sexism, but in general their position, as the literal definition of "conservative" suggests, would be that there is a lot right about America, and we should be very careful about changing things too fast without thinking through the consequences. And among the things they would be hesitant to change are the role of God, "American morals" and the notion that usually success comes to those who deserve it.
So, while I (as a liberal, Obama-fan, disgusted by Trump in so many ways) share your fears about another conservative justice, I do not agree that there is a tangible difference between this and the real fear many Conservatives had during the Obama years, that if Obama got to load the court, it could wreak havoc on "America".
In other words, we liberals often think "we are so open-minded and fair and reasonable, how can anyone disagree with us?" - but this is wrong, because those who disagree are not bad people, they are people who think that we'd all be better served by laws which put more limits on all of us.
It sometimes feels to us that one could logically prove that the liberals are right, but actually it's not true - we all want limits, we just disagree on the extent.
I write this comment because I think too often we liberals fail to communicate well to conservatives because we don't understand where they come from!
2
I can only say that when liberal jurists exert their power they typically do it to protect our freedom to choose: whether to terminate a pregnancy, whether to marry a person we love regardless of race or gender, whether to pray at school, etc. In other words, to protect our inalianable right to pursue happiness. For that they are derogatorily called “activist” judges. When conservative jurists exert their power, they typically uphold laws that tend to subjugate people to the whims of those who want to impose their worldview on the rest of us. And for that the are exalted as “strict constructionists” and “restrained.” Of course, they are as “activist” as liberal ones because otherwise there is no way to explain rulings finding that corporations are “persons” with religious freedom concerns! I say this because no one is forced to have an abortion, or to have a gay or interracial wedding, or not to pray in school. Those opposed can continue to live their lives as they wish, even if lamenting those who choose to do so.
193
We need to move into an era of post-partisanship where government is by truth and fairness, not lying, ignorance, and manipulation. Over the past 20 years or more the Republican party has proven itself to be overwhelmingly the party of lying, ignorance and manipulation. The Democrats hands are certainly not clean either. But politics need to be guided more by virtuous principles than by those which the Republicans and Trumpists are now basing their politics on. Kavanaugh's record indicates that he, like so many of his ilk, is an enemy of truth and justice. It's not about Democrat or Republican anymore. It's about truth and honesty vs. lying and deceit. Douthat needs to get over his attempts to polarize by dividing his readers into "bad' Democrats and "good" Republicans. Democrats need to avoid this false dichotomy too.
95
I see little more to the recent decades of "conservatism" than a collection of drips lining up in a kiss up kick down pecking order.
If Douhat's premise is correct--that judicial activism which pulled the country left (Roe, Obergefell, Sevensky--Obamacare, to name a few)--reflected the majority of Americans' views--then why have Democrats abandoned legislation which is the constitutionally-proscribed and most democratic means for changing such life-changing and culture-shifting policies? Why, if these are majority views--do liberals seek out perfect plaintiffs to put test cases in the judicial pipeline--like they did in the Roe case and many others--so that they perculate up through the system to SCOTUS, where ONE swing vote by an unelected, unaccountable judge-for-life changes the law for the entire country? They do this in place of representative legislation. This has not only caused great national turmoil, but diminished the Court and created the ludicrous situtation we now have in which ANY nominee is objected to by the out-of-power minority party.
Ruth Bader Ginsberg herself stated that Roe was decided 20 years too early....the country wasn't ready for it, and that has resulted in great national angst. Many would argue that the problem with Roe wasn't its ripeness for review, but that it was entirely out of the mainstream, springing from political ideology, not the law. If the majority of Americans now support early-stage abortion, the VAST majority do not support abortion-on-demand for late-term abortions. Roe is one of the worst cases of judicial activism ever inflicted.
19
Representation is so unequal in the US that it lacks basic credibility.
2
Abortion "on demand" for late term abortions simply does NOT exist. This false concept is pushed -- like all of the other anti-abortion falsities (ie, causes breast cancer, clinical depression etc) put forth as "fact" by right wing Republicans and evangelical fundamentalists. Late term abortions are, first, exceedingly rare; second, done because of horrid, and very sad, fetal deformities or because the life of the mother, including her right to want to have other children, is at stake. You are a man. You have no idea how insulting the vast majority of the anti-abortion folks are to all women....waiting periods (like we never thought about it until then), "must read" false "medical" information, invasive ultrasound requirements etc etc. That you talk about late term abortions "on demand" as if they actually exist is but a perfect example of that insulting behavior.
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Now the GOP are poised to do exactly the same thing. Test cases will perculate up to SCOTUS, designed to curtail liberty for those who most need it.
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Most people I know think the Supreme Court has become a bad reality TV show with central casting actors from Marx Brothers Productions about bumbling self-important professors. They reached that conclusion after the absurdity of Bush v. Gore, Citizens United, Mitch McConnell making a mockery of the selection process, and watching several of the nominees obfuscate and lie straight to everyone's faces during their confirmation hearings, including that of the recent sickeningly earnest and righteous Neil Gorsuch. The Republican "Justices" put forth by the Heritage Foundation and Federalist Society are there to decide cases based on the tenets of those two groups, not the Constitution. They are the "Freedom Caucus" in robes.
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Nothing is more dishonest than a court that issues an opinion with the injunction not to cite it in any other matter. That is a mark of Cain on court of law-killers.
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And Gorsuch and now Kavanaugh would not be on the Supreme Court except McConnell got rid of the 60 vote threshold for confirmation.
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The filibuster was the only real band-aid on the monstrous malapportionment of the sole body responsible for vetting federal appointees and treaties. At least all senators were equal in veto power.
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