Harvard Prof: Abort the Court as a Last Resort

Me: Okay, liberals, you lost on the Kavanaugh thing.  It’s important that you keep your wits about you, regroup and not get too crazy.

Vox:

I reached out to Mark Tushnet, a law professor at Harvard University, to talk about the case for abolishing the Supreme Court.

Tushnet, taking a position I’m absolutely sure he held before Justice Kavanaugh was sworn in, seriously argues against the very idea of judicial review:

…as a matter of basic democratic principle, the people ought to be able to consider policies and then vote on them without having the courts step in and say “no.” So from a democratic point of view, it’s hard to justify allowing the courts to single-handedly overrule popular will whenever they choose.

Here in Canada that’s why we have section 33 of the Canadian Charter of Rights and Freedoms, aka the “notwithstanding clause.”  And in Quebec it’s working out just great for vulnerable, marginalized groups.

I can’t say I’m happy with American politics at the moment.  But please, Democrats, spare me your whining about rules you were perfectly okay with when you were winning.

UPDATE: you will not be remotely surprised to know Tushnet felt differently when he thought Hillary was going to win.

“A really futile and stupid gesture”

It’s Bret Stephens, whose very presence in the New York Times is an affront to Democrats, so they won’t listen to him.  But he argues that rabidly opposing the Supreme Court nomination of Bret Stephens is likely doomed to fail and will probably hurt some Democratic Senators’ re-election chances:

Kavanaugh will almost certainly be confirmed. Democrats who had pinned their hopes on flipping Senators Susan Collins and Lisa Murkowski probably aren’t going to get their wish, since both Republican moderates voted to confirm Kavanaugh to his current judgeship in 2006 and have since spoken approvingly of his nomination. Rand Paul can also be counted on to feign political independence, but he usually falls into line.

Of course it’s possible Kavanaugh will make a bad public impression, like Robert Bork. Or maybe there will be a #MeToo revelation, like with Clarence Thomas. Or maybe Democrats will figure out a way to kick a vote past the midterms. In which case, Democrats can seize their chances. For now, however, the first question Democrats ought to ask themselves is whether they really have political capital to waste on a losing battle.

[…]

A plurality of Americans already want Kavanaugh confirmed, according to a Rasmussen poll. The numbers will likely improve once Americans get a closer look at this temperate, intelligent, decidedly non-scary nominee. And Democrats will again play to type as mindless obstructionists and one-note alarmists — the same overheated opposition that, as the Times’s Jeremy Peters reported last month, only hardens support for Trump.

Stephens also argues that Kavanaugh – like Roberts and Gorsuch, and Ginsburg and Breyer – is undeniably qualified for the job.  Really, aside from Harriet Miers, I can’t remember a SCOTUS nominee who wasn’t qualified.  (Mind you, some Trump nominees for lower federal courts almost make Jim “The Hammer” Shapiro look good.)

Incidentially, the late arch-conservative Antonin Scalia was confirmed 98-0 for his Supreme Court seat by the U.S. Senate, and only three Senators voted against confirming The Notorious RBG.   Imagine that happening with anyone in 2018 America.

After Kennedy

Because of the two defining features of modern American politics – Republican ruthlessness and Democratic strategic blunders – President Trump will almost certainly get to choose a more conservative replacement for retiring Supreme Court Justice Anthony Kennedy.

There is one way the Democrats’ minority in the Senate would prevent a new Justice from being confirmed before the midterm elections, by taking the risky and unprecedented step of simply refusing to show up for work:

Currently, Democrats control 49 Senate seats — two short of the simple majority they would need to filibuster a Trump nominee. So how could they “technically” block the president’s pick? And even with all the outrage on the left, why are they still unlikely to do it?

Earlier this month, University of Miami political scientist Gregory Koger, a specialist in filibustering and legislative obstructionism, explained on Vox.com that, according to Article 1, Section 5 of the U.S. Constitution, “a majority … shall constitute a quorum to do business” in the Senate — meaning that Democrats can basically shut the place down by refusing to vote on anything.

With only the barest 51-vote majority — and one of their own, Arizona Sen. John McCain, on extended leave in Arizona as he grapples with what is likely to be terminal brain cancer — Republicans would have difficultly mustering a quorum without at least some Democratic help. “In the month of June, there have been an average of 1.8 Republican absences across 18 roll call votes,” Koger wrote, “so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority.” If McCain doesn’t return, and all 49 Democrats refuse to participate, the 50 Republican senators left in Washington would fall one short of a quorum. (The Senate precedents on quorums do not mention whether Vice President Mike Pence could contribute a 51st vote.)

In that case, “the Senate can do nothing,” Koger concluded. “No bill can pass, no amendment can be decided on, no nominations can get approved.” The Senate would screech to a halt for lack of a quorum — and Democrats could conceivably delay a confirmation vote until a new Senate, perhaps with a narrow Democratic majority, is seated next January.

[…]

The fact that Democrats can shut down the Senate, however, doesn’t mean they will. “This would be a confrontational tactic,” Koger explained. “Confrontational” is probably too gentle a word for it. Obstructing a president’s Supreme Court pick by completely shutting down the Senate would require political winds that were blowing strongly in Senate Democrats’ favor. It’s not clear they are.

For one thing, 10 Democratic senators are running for reelection in states that Trump won in 2016, and Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana all voted to confirm Gorsuch. Would every one of these at-risk senators be willing to imperil their reelection chances by striking over Trump’s next nominee? Democrats can’t afford a single defection.

Politico has a short list from whom Kennedy’s likely replacement will be appointed – most of whom certainly appear qualified, though we all know this has much more to do with partisan politics than it does with legal qualifications.

One further point for despairing liberals, from conservative Marc Thiessen: it is by no means guaranteed that a Republican appointee will be as doctrinaire as they think.

…Trump will have to break the mold of his Republican predecessors. Over the past three decades, presidents from his party have picked seven justices, and several have turned out to be disappointments to conservatives. President Ronald Reagan picked three justices (Sandra Day O’Connor, Scalia and Kennedy), but only one, Scalia, was a consistent conservative. President George H.W. Bush picked one solid conservative (Clarence Thomas) and one (David Souter) who was not. George W. Bush did better, appointing two conservatives, Samuel A. Alito Jr. and John G. Roberts Jr. But even Roberts disappointed conservatives when he cast the deciding vote to uphold the Affordable Care Act in a stroke of judicial activism. If Trump picks not one, but two reliable conservative justices, he will secure the best record of Supreme Court appointments by any modern Republican president.

The new guy, like Gorsuch, likely will not be a Souter.  But I wouldn’t be surprised if Roberts provides Republicans with some unpleasant surprises in the coming years.

What the “Masterpiece” decision said – and what it didn’t

The Supreme Court of the United States today handed down its decision in the case involving Masterpiece Cakeshop, a Colorado bakery whose owner refused to prepare a wedding cake for a same-sex wedding.  The baker won – but on the relatively narrow grounds that the Colorado Civil Rights Commission did not give him a fair hearing:

The Supreme Court ruled narrowly Monday for a Colorado baker who wouldn’t make a wedding cake for a same-sex couple. But the court is not deciding the big issue in the case, whether a business can invoke religious objections to refuse service to gay and lesbian people.

The justices’ limited ruling turned on what the court described as anti-religious bias on the Colorado Civil Rights Commission when it ruled against baker Jack Phillips. The justices voted 7-2 that the commission violated Phillips’ rights under the First Amendment.

Justice Anthony Kennedy said in his majority opinion that the larger issue “must await further elaboration” in the courts. Appeals in similar cases are pending, including one at the Supreme Court from a florist who didn’t want to provide flowers for a same-sex wedding.

…when the justices heard arguments in December, Kennedy was plainly bothered by comments by a commission member. The commissioner seemed “neither tolerant nor respectful of Mr. Phillips’ religious beliefs,” Kennedy said in December.

That same sentiment suffused his opinion on Monday. “The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” he wrote.

Liberal justices Stephen Breyer and Elena Kagan joined the conservative justices in the outcome. Kagan wrote separately to emphasize the limited ruling.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

The really thorny question, whether one’s religious convictions trump anti-discrimination laws, remains to be determined.   Conservative Rod Dreher, for one, thinks the decision may have gone the other way had the Civil Rights Commission not been so openly hostile:

The language of the ruling suggests that if the Colorado commission had given the appearance of fair dealing with the Christian baker, it could have ruled the same way and avoided today’s SCOTUS ruling. Or maybe not: the Court would have still had to deal with the question of why a Colorado cake baker can refuse to bake a cake with an anti gay marriage message, but not do what Jack Phillips did. If I’m reading this ruling correctly — and I invite critique — SCOTUS gave no direction for how that dilemma should be decided in the future. It only mandated that religious people should be given fair consideration, without indicating what kind of outcome would be fair.

What if a gay couple went to Masterpiece Cakeshop tomorrow and asked for a wedding cake, and Jack Phillips turned them down, and they go to the Colorado Civil Rights Commission to complain? Could the Commission deliver the same verdict against Masterpiece, but do so in apparently neutral language, and therefore be on the right side of today’s ruling?

If not, why not? What’s to stop gay activists, who have tied this small business owner up in court for five years, from doing it again to him — and this time, expecting the Colorado Civil Rights Commission to be more careful to conceal its hostility to him?

I don’t mean to be ungrateful for this ruling, which I did not expect. (“Take the win, Debbie Downer,” teased a friend.) I do, however, want to caution against reading too much into this. The Court punted more fundamental conflicts down the road. This means that for religious liberty advocates, the future composition of the Supreme Court is massively important. We knew that anyway, but the narrowness of this decision proves it.

The ACLU, coming at this decision from the other side, appears to agree:

In reversing the lower court’s ruling, the Supreme Court focused on how this particular case was handled by the commission, which decides cases under Colorado’s nondiscrimination law. The court raised concerns about comments from some of the Colorado commissioners that they believed revealed anti-religion bias. Because of that bias, the court held that the bakery wasn’t treated fairly when the commission decided the discrimination claim.

But — despite arguments from the Trump administration and other opponents of LGBT equality — the court didn’t decide that any business has a right to discriminate against customers because of who they are. Instead, the court’s decision affirms again and again that our nation’s laws against discrimination are essential to maintaining America’s open society and that states can pass and enforce those laws, including in the context of LGBT people.

[…]

The court on Monday ruled for the bakery because it “was entitled to the neutral and respectful consideration of [its] claims in all the circumstances of the case,” and the justices in the majority believed the bakery didn’t receive that basic fairness. The court said that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

All of us deserve a dispassionate evaluation of our claims, either when we face discrimination or are accused of it. Those are principles we can all agree on.

Monday’s decision gives a very narrow victory to the bakery. But the court has clearly signaled that the broader rule the bakery was seeking here — a constitutional right to discriminate and turn customers away because of who they are — is not in keeping with American constitutional tradition.

There are many other cases in the pipeline that may soon give the court the opportunities to sort through the legal issues at the center of the Masterpiece Cakeshop case. One is Ingersoll v. Arlene’s Flowers, in which a florist shop refused to sell flowers to a gay couple for their wedding. The Washington state Supreme Court ruled unanimously that the shop had no constitutional right to turn the couple away, and a petition for review by the U.S. Supreme Court remains pending.

For now, the main takeaway from the Masterpiece Cakeshop ruling is that everyone, regardless of their beliefs, is entitled to a fair hearing by the state.

(I’d say everyone should be able to agree with that, but I’ve spent enough time on Twitter to know otherwise.)