Is American Democracy Cooked? A Case Study of the Supreme Court vs. Ginsburg, a State of the Art, and the Effect of Voting

Is American democracy cooked? Even for the chronic pessimist, there’s value in voting. Political action isn’t limited to the presidential election and neither is voting exclusive of anything else. You are given the chance each four years to weigh in on the vandalized court system. A vote is an act of desperation and pure spite. A ballot is one way to say no.

Yet, in a sense, none of this matters very much. The case was Dobbs v. Jackson Women’s Health Organization. Even if Ginsburg had not been replaced by a Trump appointee, a 5–4 Supreme Court majority could have toppled Roe v. Wade. The problem is much more than just the Supreme Court. The federal courts are not just a collection of nine famous people in robes, there are hundreds of appeals court and district court judges. They oversee trials, dismiss cases, unseal documents, and block laws and regulations. They can send people to prison. Tech companies can be broken up.

What this all means for you, as a voter in 2024 is largely dependent on your innate temperament. Some see these facts and conclude that voting has a real impact. Regardless of what promises are made, the fact that the candidate has aligned themselves with a national organization can have a major effect on how America is governed. A vote is not an impotent and meaningless non-choice between two figureheads who promise all kinds of things that may or may not happen; a vote does, in fact, convert to political voltage. This assurance is enough for the optimist.

The Incredible Slashing Supreme Court: Defending the U.S. Judiciary Power from the Trump Regulatory Reform Insights

“We might have what I call the incredible shrinking Supreme Court,” he says, adding that “if we have divided government and we have justices naturally retiring or dying and they don’t get replaced, we could go down to eight, to seven, to six and eventually the public might start to notice and complain about it, and then some sort of compromise formation might be reached.” That said, he acknowledges a process like that could take 15 or 20 years.

The Trump judges are younger. They skew white, they skew male, and they skew unqualified, compared to the other federal judiciary. They have tenure for life, as they comprise a third of the appeals courts. Their bullshit will plague us for much of our lives.

Legal observers understood at the time the enormity and lasting impact of what was happening, but few clocked that the problem was about to become exacerbated by a recursive power grab. The power of the federal judiciary has been further enhanced by the SCOTUS majority overturned in the summer. This, in combination with its ruling in West Virginia v. Environmental Protection Agency the previous year (expanding the “major questions” doctrine), gutted the power of the administrative state. Between Trump’s time in office, the agency rulings on carbon emissions, consumer protections, and net neutrality have been subject to second-guessing by hundreds of jackasses in random district courts. The national policy is what squeaks past notice of the Trump judges.

Depending on retirements, deaths and unforeseen events, the U.S. Supreme Court could be altered by the upcoming election. The only certainty is political struggle.

And the clock is ticking. Justice Antonin Scalia died at the age of 79. Former Chief Justice William Rehnquist died at 80. Stephen and Anthony Kennedy retired at the same time. Sitting Supreme Court Justice Clarence Thomas, who is presently 76 years old, is old as shit. (The covid-19 epidemic, among other factors, has dropped average life expectancy in the United States to 76.4 years.) The composition of the Supreme Court will be decided by a vote for president. The composition of the Supreme Court, in turn, determines whether your student loans will be forgiven, whether your ISP can be held to net neutrality, and whether the president is a king unbound by the rule of law.

This is the simplest case to explain why you should vote. A president can set a national agenda by speaking to the country, and they have traditionally had a heavy influence on policy and lawmaking from being the leader of their political party. These are powers that have existed due to tradition and the public imagination. The power to nominate federal judges, on the other hand, is a power that is explicitly enumerated in the US Constitution.

A lesson of longevity and power has been given by Supreme Court justice Clarence Thomas. Justice William O. Douglas had a record of 36 years for length of service on the court. Indeed, even sooner, when the next president is sworn in this January, Thomas will be making decisions that directly effect his 11th presidential administration.

What could the Republicans do at the Supreme Court under Harris and Trump? The case of the 5th Circuit Court of Appeals in the U.S

When there is a split in the party, with a Senate that is controlled by one party and a president that is from the other party, there’s no light at the end of the tunnel. He thinks that it could lead to change eventually.

Other conservatives do not think that is too dire a prediction. They expect that especially in states where both senators are Democrats, there would be horse-trading and a deal that allocates judicial seats — basically, the Democrats get one, for example, for every two or three GOP nominees.

Some conservatives would like to see Thomas and Alito step down for younger conservatives who could serve for many decades more and move conservative needle even further to the right. They think of the ultra-conservative Fifth Circuit Court of Appeals as their farm team, containing former Thomas and Alito clerks whose decisions are often reversed even by the current conservatives on the Supreme Court.

Democrats speak honestly about this, just not for credit. As one put it, “We would largely be left with the politics of personal destruction, investigating every aspect of a nominee’s life to find something that is disqualifying.”

So, what would the Democrats do in that situation? How would they fight a Trump nomination? After all, there is no filibuster anymore to block a vote. Democrats abolished the filibuster for lower court nominations in 2011 in response to Republicans routinely blocking judicial nominations. After the death of Antonin Scalia, GOP leader McConnell held a seat open for Neil Gorsuch on the Supreme Court, but Republicans abolished the filibuster after Donald Trump was elected.

Source: What could happen at the Supreme Court under Harris and Trump

The reversal of the Garland nomination and the role of judicial senate representation in the 21st century: The case for Merrick Garland

The whole notion that “a certain process has to be respected, regardless of the potential impact on one party or another,” he says. “It’s not a norm if it doesn’t command general adherence anymore.”

Bob Bauer was White House counsel for two years in the Obama administration and he noted that institutional norms are not always permanent.

“Given that we’re in a world of…controversial revolutionary decisions, neither party would be likely to give a positive vote to a nominee of the president from the opposite party,” he said.

Republicans “essentially crossed the Rubicon” in 2016 with the Garland nomination, says Harvard law professor Noah Feldman, who has written extensively about the court’s history.

Democrats like to think of themselves as “more responsible” than Republicans, but the pressures would be enormous to do unto the Republicans what they did to the Democrats.

A professor at a Houston college says he will give them the treatment of Merrick Garland. He says that the seat will be open for three or four years.

Depending on which party wins the presidency, the current six-to-three conservative supermajority could stay the same, or be trimmed to five-to-four or even larger.