463 Comments

One cannot overemphasize the extent to which the civil rights era legitimized judicial review. For most of American history, judicial review was profoundly conservative. Federal courts issued hundreds of rulings voiding wage and hour laws and busting unions. In the depths of the great depression, they ruled that the National Recovery Act overstepped Congressional authority. Brown made normal Americans forget about how judges had acted for the past seventy years.

This century, the Supreme Court kept Florida from recounting votes, sealing a Republican presidential victory, ruled that rich people can spend as much as they like on political advocacy, and kept millions of poor people from getting Medicaid.

Now that Roe is gone, I hope progressives will see judicial review is generally at odds with effective governance.

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The Supreme court also gave us gay marriage, civil rights for trans people, and expanded speech protections.

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Thank you. I know the legend of Citizens United (which I assume is what is being referenced in the 'rich people can spend as muchb as they like' component) has greatly outgrown the facts of the case in people's imaginations, but it's worth mentioning that the government conceded in oral argument that McCain-Feingold could be used to suppress the publication of books.

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I think net neutrality is the only issue that has a bigger ratio of "people who are mad about this" / "people who understand this" than Citizens United.

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The CU opinion itself is also actually a pretty good one as opinions go—it pretty clearly lays out why, regardless of the normative implications of the ruling itself, it’s a natural corollary of the (much earlier) Buckely v. Valeo decision.

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That's the thing, it was wholly consistent with Buckley v. Valeo. You can think that decision was bad too (Stevens certainly did!), but it wasn't some groundshaking change in precedent.

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Citizens United was a well chosen test case. The idea that one can’t market a movie criticizing a candidate within 60 days of an election is problematic. And yes, the law was very poorly and broadly drafted.

Of course the SCOTUS could have just issued a narrow ruling saying that the First Amendment protects the right of film makers to make political films and deferred ruling on other forms of political advocacy to future rulings.

It’s hardly absurd to think that popular entertainments like books, theater and movies might enjoy greater first amendment protections than 30 second TV ads.

There could also be a distinction between money losing activities (eg buying ads that aren’t even intended to generate revenues) and activities that are either non-commercial (unpaid writing or speaking) or undertaken for a profit (publishing, movie distribution).

Fair minded jurists could craft rules to let people express political ideas while discouraging rich people from paying to amplify their message.

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By rich people do you include owners of newspapers, magazines, and broadcasting entities? If not, why not? I stand with the jurist who said no means no.

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The Sulzberger family controls the NYTimes through super-majority voting shares. They are rich and they quite definitely express political ideas.

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Media moguls will inevitably have outsized influence. There will always be someone making editorial decisions and that person will have cultural power in line with their platform’s reach.

The question, in my mind, is how much influence rich amateurs should be able to buy. The fact that editorial decisions are an inevitable expression of power does not mean that everyone with nine figures should be able to rent a megaphone come election time.

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And they often own for-profit enterprises, whereas Citizens United is a non-profit organization.

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The other side of the issue of not putting out a movie “criticizing” a candidate within 60 days of an election is that the US protects freedom of speech even when that speech is false and defamatory, if the subject is a political candidate. Allowing such unlimited “criticism” has brought us to a point where most people regard most political candidates as hopelessly dishonest and corrupt, which is one of the things that makes it so hard to have a functioning representative democracy.

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I still am in awe that there wasn't anyone that concurred in the judgment by saying that the restriction of Hillary: The Movie was clearly an as-applied First Amendment violation, while declining to answer the broader facial challenges immediately. My guess has been that Stevens, who along with Byron White back in the day when Buckley v. Valeo was decided, was one of the justices thought pretty much any regulation in this regard could fly, and he was passionately able to keep the other three dissenters in dissent instead in concurrence in the judgment. We'll see if I'm right or wrong when Stevens's papers from that term get released.

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Eh, the SCOTUS gutted Civil Rights legislation & constitutional amendments post-Civil War. The damage they did there fighting the democratic branches outweighs basically everything.

Given the process for appointing justices the SCOTUS is now basically a permanent anti-democratic institution. Both parties see using the courts as a primary tool, as Matt explained, for passing the agenda they can't get through the elected branches.

This is bad on multiple fronts. First, it reduces pressure to actually reform the non-democratic elected branches (Senate). Second, democratic accountability is a good in and of itself. Third, there isn't much reason to think government via SCOTUS will lead to better outcomes (even if you don't place much value on democracy), instead it will work to enact the preferences of the highly educated conservatives/libertarians with GOP SCOTUS (war on New Deal) and preferences of the highly educated liberals with DEM SCOTUS (if we ever get one).

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Do you think gay marriage would have been legalized anyway through the legislative process even without the court ruling?

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eventually but not right away. Same for similarly great rulings like Bostok and Janus.

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Maybe but only because of the non-democratic Senate. The solution isn't government by the non-democratic SCOTUS/civil litigation but destroying the non-democratic Senate.

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I think 2022 should make people's senate model adjust a bit, by 2015 Gay marriage is a 60-40 issue according to most opinion polling. I'm skeptical it'd take us longer than Germany, which is also a democracy.

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That is a very serious and realistic idea that's certainly likely to happen.

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Much more serious and realistic than government via the completely non-democratic courts.

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Heh, I imagine there aren't many people with you in the Venn diagram overlap that think both Bostock and Janus are great.

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Two justices joined both (Gorsuch and Roberts) but Bostock, Janus, *and* Obergefell is a lot harder

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To state my priors, I think strong judicial review is popular with people who place low priority if any on democracy (meaning, policy should be set by elected officials).

I think you're wrong that not many people liked all three. Those three cases are all compatible with a form of libertarianism that has appeal in both parties. A lot of highly educated Americans really like Civil Rights and dislike labor unions.

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*raises hand*

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10 years later, and you really think congress is de facto getting more likely to have legalized gay marriage or any other anti-gay discrimination laws instead? They can't even manage to legalize abortion, let alone the variety of other ways people should have the liberty to make their own families, as they choose.

If the supreme court is so forward thinking, let's see what happens with this Creative 303 v Elenis ruling.

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Creative 303 v Elenis is a complicated case between artistic freedom and public accomodation laws that could have unintended consequences if Creative 303 loses. I don't envy the court on threading the needle here.

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Reading the summary you posted below on FirstThings I think:

1) The web designer, like the baker, is in the wrong here.

2) If I had to decide narrowly what to do in this one case I'd be inclined to say the web designer should not do wedding announcements at all if she must discriminate against couples like mine.

3) I don't know how to draw a clean line here - what is "right" on a case-by-case basis isn't always able to make a clean ruling.

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You're really going to repeat the rhetoric of "artistic freedom" of a commercial service, and the vague and spooky "unintended consequences" line of if this business is allowed to discriminate against gay marriage in a hypothetical injunction?

If it's really such a hard needle to thread, what artistic choices are restricted in a gay marriage?

And if there's unintended consequences to this ruling, how do you know all of these unintended consequences to the negative outweigh the unintended consequences to the positive?

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Not in every state and not so fast. In the meantime a significant minority of Americans were denied basic rights. Obergefell was a landmark ruling to be celebrated. It made a very tangible very dramatic very positive impact.

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The big obstacle to this was one-party states and the entrenchment of the Bush II era hostility to same-sex marriage through state-level constitutional amendments. It's an interesting question what role judicial review would have in an ideal constitutional system (I think the answer is "not none" but probably a lot less than what it has now) but in the US system it's a corrective for other constitutional defects too.

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My mind immediately jumps to the ERA here

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Yes. It was already in a number of states.

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I think this needs to come with the huge caveat that most cases that come to the Court are about economics not social issues (is this regulation constitutional, rights of labor unions, is this environmental law about protecting watersheds constitutional to pick a recent example). Most are about pretty arcane issues that don’t necessarily have any real partisan aspect to them (at least not directly) and so are often decided 9-0 or a split that cuts across usual partisan divides on the court. But in general yes, the Supreme Court has been pretty profoundly conservative in its more economics based decisions.

I’ve beaten this drum many times but the Federalist society project is much more about Lochner than it is about Roe. Also, just further indicates that the Op-Ed Alito wrote in WSJ is comically absurd. It’s like he’s trying to gaslight us that the only issues that come to the court are front page social issues and that Paul Singer had no direct interest in any court cases which is just manifestly false.

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If anything, when you consider the number of rulings about intellectual property, the supreme court has not given us expanded free speech protections.

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I'm not remotely a progressive. But either you have an organ empowered to enforce the Constitution or you don't have a Constitution. I get that for some this is a feature rather than a bug, but not for me.

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There are several other countries that don't have judicial review, they don't all look like lawless hellscapes to me?

https://en.wikipedia.org/wiki/Judicial_review#By_country

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The Netherlands is the only country that I noticed on that list of no judicial review for which I have a favorable mental association with their governance (In some cases I just don't know - is Vietnam well governed?)

The Netherlands is in the EU - does it have defacto judicial review from EU membership? (At least for EU laws)

Or did you mean some column there other than the "no judicial review" column?

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My mind is drawn to the court case "State of the Netherlands v. Urgenda Foundation" where a court effectively forced the Dutch government to meet a specific carbon reduction target, as an interpretation of much more broad national and EU laws regarding "a clean environment", "human rights" etc.

It struck me as pretty extreme judicial activism, even by American standards.

I guess the government could have repealed those laws, but that doesn't seem very likely/practical, not to mention the EU laws also cited by the court case.

My conclusion is that even in countries that may not have judicial review in the sense of blatantly striking down laws passed by the elected representatives, courts often still have a large role in setting government policy.

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All of Europe is subject to the EU Court of Human Rights, which is not reflected in your link- their judicial review is super-national instead. Even Britain's still subject to the court, just because they're afraid of how angry the EU would get if they decided to ditch it

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It’s a little more complicated than that. As just one example, the Good Friday Agreement requires that the European Convention on Human Rights (the treaty that creates and empowers the Court of Human Rights) to be part of the law of Northern Ireland. It’s not just that the EU would be mad.

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Strong constitutional law review is justifiable if amending the constitution was much easier. If you could pass an amendment to the constitution with 55% of the house vote I wouldn't have any issues. But you can't. Instead you need basically 90% consensus.

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Hi, genuinely curious: why the negative statement of identity? Perhaps I’m missing something, but your statement stands, to my thinking, quite well on its own.

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"I hope progressives will see judicial review is generally at odds with effective governance." In the comment I replied to.

I'm not trying to change that commenter's mind. Progressives have never particularly cared about the Constitution, seeing it as an obstacle rather than a lodestone. Rather, everyone else.

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That’s not true--during the era when the judiciary was mostly appointed by Democrats, there was great respect for the Constitution and the courts among progressives. The Constitution has features that appeal to liberals and others that appeal to conservatives, and people who claim to believe in the Constitution usually have a very selective reading of it, or great faith in the current judiciary being on their side.

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Why can’t Congress enforce the constitution?

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Congress is most concerned with their reelections a few years down the line.

SCOTUS is one of the ways we are a constitutional republic rather than a pure democracy, which I see as a very good thing.

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Because that's what the executive branch is for?

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Yaser Hamdi would like a word about that...

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Because one of the key things the Constitution does is limit the power of Congress. Those limits would be basically worthless if Congress was the one who was responsible for deciding whether they mattered in any given situation.

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“…they ruled that the National Recovery Act overstepped Congressional authority”

They ruled correctly. And perhaps one day soon we’ll get the Supreme Court to rectify that and return to a more proper understanding of the Commerce Clause.

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And let's not forget Dred Scott

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>Now that Roe is gone, I hope progressives will see judicial review is generally at odds with effective governance<

I long have.

We can't jettison judicial review, I think, in a polity that maintains separate, coequal branches (and eschews legislative supremacy). But we might consider a supermajority requirement for judges to strike down or alter congressional enactments. This in not unknown in America at the state level, and would also be in keeping with Marbury v. Madison,, which was a 4-2 decision.

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The branches are not coequal in terms of their formal "hardball" power under the structure of the Constitution; that is a myth, although it may be in the interest of some to repeat it, to the point that it has taken on a life of its own and become a certain practical reality.

If you read the Constitution with eye towards which branch has the formal last word on any given issue, their power pretty reliably tracks the order in which they appear in the document, and that's no accident: Article 1-Congress, the most democratically chosen branch, has the power to unilaterally remove from office any member of the other two branches, and so has the final say on everything if push comes to shove. Article 2-the President, has first pick on choosing members of the judiciary, but subject ultimately to what Congress wants, as with legislation. Article 3-the unelected, life-tenured judiciary, is last and least democratic, and as much as possible really should try to leave the policymaking to the elected branches and see itself as the umpire or referee with no policy preference other than the being the institution tasked with enforcing the structural design and rules of the road of our government.

People don't scoff at the very idea of an impartial basketball referee, as the article earlier this week illustrated, even the perfect impartiality is not possible. Why should the expectation and aspiration be different when it comes to other kinds of judging?

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I'd say that the reason the Court has accrued such power is that the written Constitution is so incredibly difficult to amend, and so dated in the context of a modern society with instant communication, near-instant movement of people and goods, and impossibly monolithic cultural and social trends, that the Court has become the vehicle through which each coalition attempts to informally change it.

That's a problem, or at least a potential problem. The document has served us well, yes, but that is in part because the Court has just fundamentally changed the way in which it's understood many, many times over the last two and a half centuries. I am not sure if that will continue to serve well in the future, though a close reading of the history of our party politics suggests that the current era is not really an outlier when viewed against our whole history, only against the history of the last fifty years (itself an outlier really).

I'm not sure *how* to appropriately respond to the Court's current role, but understanding why it has that role is important.

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Full agreement. SCOTUS power really depends on the impossibility of Constitutional Amendments.

The impossibility of amending our constitution is under-appreciated. Excluding the Bill of Rights, whose passage was required for the Constitution to be adopted, we've only amended 17 times in over 200 yrs.

Of those 17, 4 were non-partisan, procedural changes (12, 20, 25, 27). 3 only passed because the Civil War (13-15).

We've only passed 1 amendment in the last 50 years.

The bar to amending the constitution is just to high. Which is why, as you said, neither party even bothers with constitutional amendments anymore. It is just understood that the way you amend the constitution is for the Supreme Court.

Conservatives genuinely hated Roe in a way racial progressives hated the civil rights cases (19th Century). Both sides knew amending was impossible and the only way was getting a new court.

Long-term, the US has to find a way to make our institutions more democratic rather than rely on workarounds.

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Beyond the outsized power of the Court due to difficulty of amendment there is the Elephant- in- the -Room problem of the unamendable part of the Constitution-namely the last sentence of Article V (equal suffrage of states in the Senate), which dooms us to a very undemocratic reality for the forseable future.

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You realize that Democrats have held the Senate more than Republicans have over the last 20 years and have held the only 60 seat majority during that time period?

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I do often think that Democratic supporters can get too apocalyptic on their future Senate prospects.

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Yes- the structural advantage of rural states in the Senate suffrage is finite. For many decades, small vs. large and rural vs. urban divides in US politics did not allign with partisan interests- but now they clearly do, and this makes the structural advantage of small states in the Senate more salient. But I agree, it's not everything.

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I always argue that this clause still allows for the abolition of the Senate: equal suffrage still is maintained, that equal suffrage just happens to be zero.

And although my Googling skills are eluding me on this right now, I seem to recall someone asking Antonin Scalia what would happen if an amendment created unequal suffrage in the Senate, and that he said that if it got that far (obviously highly unlikely), there's no way that SCOTUS could practically stand in the way.

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So, your argument is that, rather than changing the senate state suffrage ratio, the senate could just be-abolished, or turned into a House of Lords powerless body? How would/could that even happen within the structure mandated by the Constitution?

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Mostly disagreed. The nature of party coalitions has proven so changeable that attempts by one side or the other to ensure a permanent advantage based on the selective admission and division of states have been futile.

Either that will again be the case, or the Democrats will briefly take a trifecta after a long period of GOP misrule and end up admitting DC, PR, North, South, and Central California, and Pacifica to address the issue.

I expect the former outcome, not the latter.

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Completely agree they're not in reality coequal by design. I was repeating it in the "it's become reality" sense you indicate.

I personally wouldn't have a problem with jettisoning US-style judicial review altogether if it came to it. On the other hand, it's hard not be impressed (and even moved) by Justice Marshall words on the topic. How, indeed, is a Congress run amok to be checked? So I could live with merely curbing or regulating this power.

I think the use of J.R. has become too frequent. It should be a rare occurrence. If anything, my sense is judicial review is a "natural" place for a supermajority requirement, in keeping with other examples of the highest "powers" held by the other branches (impeachment, veto override, foreign treaties, etc). It's the ultimate power: a nondemocratic tribunal deciding it knows better than Congress on grave matters of public policy. It should be exercised, uh, judiciously.

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Very good post. And SCOTUS should exercise it judiciously for another reason: self-interest.

The risk of a constitutional breakdown is under-appreciated. If SCOTUS tries to block Congress/POTUS on a high salience/high popularity issue they really could run into just being ignored.

That hasn't happened in the modern era. But if it does happen I think it will result in SCOTUS being ignored everywhere.

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Yep, and I think there's a reasonable chance in the near future that a Democratic administration may feel that it has no choice but to ignore SCOTUS.

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Lifetime appointments are a major part of the problem. If you get an ideological court, given modern life expectancy, it can have power for decades.

A big thing that helped the Supreme Court maintain popularity in the 20th Century was this:

1. GOP POTUS(s) made most appointments; &

2. GOP appointed Justices were much more likely to either drift left (Souter) or just be members of the liberal coalition (Brennan/Blackmun to a much lesser extent Stevens).

That isn't true anymore. After Souter the GOP really fixed point 1. They don't allow their POTUS to appoint secret liberals or justices who will drift).

Given that we have a Court well to the right of the median voter. And going forward I expect the court will always be out of alignment with median voter.

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I think your read on the priority of power among the branches is correct, but I'm having a tough time discerning which of Congress or the President is more democratically chosen.

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The House of Representatives was originally the only directly elected part of the federal apparatus, note. Not sure how to compare the old Senate system to the idea of an electoral college.

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wouldn’t legislative supremacy be better? i keep thinking the uk has done better relative to its resource base and geographic location than we have, and that this may be because their institutions are a bit better

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The UK has been subject to the EU Court of Human Rights for like 50 or 60 years now. It still is to this day, even post-Brexit!

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Maybe. But both Canada and Australia maintain forms of judicial review, and they seem to have done ok (Australia's is stronger IIRC because of the lack of a carve out). I should add: I'd like to see root and branch form of the Supreme Court beyond the supermajority idea, so, the less politicized court we'd have if it were up to me would be a more dependably reasonable wielder of this awesome power.

I would take pure, UK-style legislative supremacy over our current status quo, though, yes.

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Might also be worthwhile to hear what Israelis think about judicial review right now.

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My loose impression is that the Canadian Supreme Court is activist in ways that would not be tolerated in the American political system, e.g., it forced the government to legalize euthanasia.

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I dunno. Bush vs. Gore was a pretty activist decision. So was Heller. So was Roe. So was Obergefell. So was Dobbs. And these decisions were "tolerated" in the US, because, what's the alternative? The black robes are like a government unto themselves.

Also, Canada's constitution provides the famous "Notwithstanding Clause" carve-out.

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Your last sentence is really key. As this current SCOTUS churns on, lefties are going to see judicial review much more negatively, particularly the younger ones.

But I agree (I think?) with Wendigo and Jasper in that judicial review is a needed tool if we're going to have a Constitution that limits governments from restricting certain rights. It's a tool, and it can be wielded for good or evil.

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What would have changed if Florida had recounted the votes?

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Nothing, but don't believe that was clear at the time and it wasn't great to have such a partisan 5/4 split.

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It was 7-2 that what the Florida Court did was wrong. 5-2 on the remedy.

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You mean 5-4 on the remedy... to stop counting votes. Not 5-2.

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Yeah. Breyer and Souter thought FL screwed up (which it did).

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I'm back on my "Marbury v. Madison was wrongly decided" BS

in 12th grade government class I was immediately struck by how unsympathetic John Marshall's ruling seemed to me. a total invented fiction that created powers *ex nihilo* but which was very cleverly deployed so that its opponents couldn't politically challenge it is an absurd thing to celebrate

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Gordon Wood's "Empire of Liberty" has a whole chapter about how Judicial Review didn't emerge ex nihilo out of that one ruling. Rather, many implied it from the text of Constitution from the very beginning, and over the decades between then and Marbury, courts gradually amassed powers that looked increasingly like judicial review until Marbury struck the final blow.

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Marbury was clearly right on judicial review, whether or not it was good policy. The idea that it made up judicial review is a widespread myth that is also obviously wrong--look at Article III itself ("arising under this Constitution") or Federalist 78. Marbury wasn't even the first judicial review case. The real controversy is between "judicial supremacist" and "departmentalist" theories understandings of judicial review.

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Long time listener, first time caller. Great essay, as usual. One beef. This "illegitimate" language is incorrect and is analogous to Trumpers and "Stop the Steal" nonsense. Legitimacy in the US is determined by legality, full stop. In your scenario, if the elections were conducted legally, contested issues were resolved by courts, and so on, then the R majority "regime" would be in fact "legitimate" under the Constitution/laws of the US. That may be unfair, unrepresentative, morally wrong, whatever, but it would be legitimate.

"The American Constitution embeds a fairly undemocratic set of institutional practices. It is quite possible that in 2024, Republicans could get 49% of the two-party vote and based on that, secure the White House and a bicameral majority in Congress. If that comes to pass, I think peaceful protest will become a crucial part of political resistance to a fundamentally illegitimate regime."

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Matt, like most people, has strong normative commitments about how democracy should work, and thinks that constitutionally-prescribed outcomes are legitimate to the extent that they conform to those norms. Legitimacy is a question of justice, not law, and despite what some Inspector Javert-like procedure fetishists think, those aren’t the same thing.

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Agreed. Had the maneuvering after the 2020 election led to state legislatures disregarding their state's actual voting in favor of giving their electoral votes to Trump, I would have considered that illegitimate, even had all the maneuvers been technically legal. In that scenario, I would have considered it a "legal coup" and would have taken part and supported street protests, even up to and including violent action directed at those leading the coup. And I say that as someone who strongly opposed the looting and street violence that took place during the summer of 2020.

There is an important difference between "legal" and "legitimate"; and woe to those who don't understand that distinction and go too far in leveraging legal loopholes to achieve their goals. The electoral college is already stretching that distinction to the limit (and some might argue beyond). Anything further than that and there will be a break.

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Great, let's empower every individual in the nation to form their own personal opinion of legitimacy and take violent action based on what they come up with

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Agreed Wigan about the dangers here. I don't say this stuff lightly. But I think it's important to understand that there are tensions here, and if the legal bubble is pushed too far, it will pop.

To take your example above, I'm not happy about the electoral college, nor the way the Senate empowers the voters of small states at the expense of big ones.

Having said that, as unhappy as I was about Trump's election in 2016 with far less votes than Hillary, I accepted it as legitimate. And would have accepted his reelection in 2020 if he had gotten just enough votes in Georgia/Pennsylvania/Nevada to win those states. And while I'm not happy about the unrepresentative nature of the Senate leading to the current composition of the Supreme Court, I'm not going to violently protest it either.

Having said that, we're not too far from the point where these systems will go too far in empowering minority rule. And if the current system keeps moving in that direction, it will break.

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Fair enough, but the example MY invokes -- minority rule by 49% -- hardly seems horrific. Any coalition with that much support would begin more popular than Biden is today.

Also, as long as there is a next election, politicians will care deeply about public opinion.

State legislatures overturning clear majorities might, however, justify armed resistance.

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Unless we want to live in an Athenian democracy where every issue is decided by a 50%+1 vote, there will always be ‘undemocratic’ results. Sometimes it’s a bug, other times a feature

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You make this sound extremist, when in reality in such a situation it is precisely what the Founding Fathers expected of us and what they did themselves!

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If the FF had rebelled because they were 10% of the voting population but only receiving 9% of the vote then I would consider them the extremists.

But what we're talking about is a scenario where all the Democrats have to do is either a) get 1-2% more of the popular vote in an era where 15% of prior voters switch votes and almost 10% are new voters b) figure out how to be competitive in the states they were competitive in 10 years ago.

This isn't oppression.

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Forgive me, but... Did you actually read the post to which you replied at all?

I agree that the current electoral system, while stupid, is not oppressive and the challenges it poses can be met within the system.

The post to which you replied outlined a very, very different scenario.

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fwiw:

the Founders had a "a decent respect for the opinion of mankind", if the Declaration of Independence is any indication. And their case for rebellion was made on the basis of notions they believed were valid for all ("we hold these *truths* to be self-evident"), not "their own personal opinion of legitimacy".

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The Founders effectively dressed up the opinion of perhaps 40% of the elite of the Colonies as "self-evident truths" and rebelled on that basis.

There is very little evidence that it was an overwhelming majority opinion at the time. It was only afterward, when they'd won and their conception of people's right to representation and legal protections was the norm that the "truths" enumerated in the Declaration of Independence truly became near-universal in first the US and eventually much of the world.

It's profoundly ahistorical to imagine that the Founders were speaking in a language everyone understood and agreed with *while they were doing it.*

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The “truths” in the Declaration of Independence were value judgments which were widely disputed at the time that Jefferson wrote it. They’re only self-evident within the ideological framework of Enlightenment liberalism, which was incredibly controversial in the 1770s.

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You present this as a reductio ad absurdism, but the sort of activity you’re describing is what creates democracies in the first place, and the implicit threat of violent rebellion is a big part of what keeps them alive. If you like democracy, you have to accept that law-breaking political violence is the correct course of action at least some of the time.

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What violence would remedy the situation?

If the GOP got 30% of the 2-way vote, I guess I could imagine some sort of violent response where the 70% would make sure they weren't trampled on. But 49%? 48% and the win coming from EC votes within the previously agreed and established and accepted framework we've all been operating within? How could violence achieve anything other than inviting like responses?

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I actually agree with you about violent rebellion not being a pragmatic course of action in the situation that you describe— if you can’t win, you’ll just be getting a bunch of people killed.

But I’ll bite the bullet and say that widespread civil disobedience and nonviolent protest would be a reasonable response to the situation you describe. And I don’t think that the EC is “something we all agreed to”— it’s a weird legacy procedural artifact imposed on us by long-dead people and maintained by a faction that actively wants minority rule.

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