Year-End SCOTUS Rant

This past year brought us the full flowering of a central project of the filthy rich white people who fund the insurrection party: the takeover of SCOTUS by a gang of hardline fanatics. Big Wallet Boys don’t care about religion, they worship money. They want SCOTUS to screws up any government regulation that slows down their plundering of the American economya and Planet Earth. But they don’t care what SCOTUS does on culture war issues because they are not affected.

Of course SCOTUS has always been politically conservative and a blight on the promises America made to each of us. The few sprinkles of decency we’ve gotten over the centuries were either a) tiny steps towards enabling all Americans to benefit from Constitutional rights enjoyed by white men, or b) grudging reversals of old precedents inflicting the prejudices and hatreds of dead rich white men on we the living. For a detailed look at the disgusting history of SCOTUS on individual rights, see The Case Against The Supreme Court, by Erwin Chermerinsky

The provocateurs supported by the rich use culture war issues to anger up the rubes and while they’re distracted, SCOTUS can work toward the goal set by the rich: enabling their moneymen to steal the country blind and route us to an unlivable future.

We can identify the goals of the longer serving members. John Roberts is dead set against the Voting Rights Act, and has never missed a chance to use a case with a voting-related issue to subvert it. Clarence Thomas and Sam Alito have been stewing in their own bile so long they are fully rotted; they both live to stick it to the libs.

In 2022, though, we got bitch-slapped by the revanchists, including the three religious zealots appoint by Trump and McConnell. The Holy Six imposed their religious views in a number of cases, ruling that women have no right to control their own bodies, that coaches are free to dragoon their players into worshipping the god of the coach’s choice, and that religious leaders are free to spread a pandemic.

The big casualty is rational jurisprudence. In case after case, SCOTUS has ignored the trial record, made up its own facts, reached out to take cases before a record can be made, ignored precedent, including precedent about rejecting precedent, invented new Constitutional “doctrines”, taking faked-up cases for the sole purpose of striking down actions the Holy Six, the rubes, or rich people don’t like, and delaying justice through the shadow docket.

The result of these deviations from normal practice is the utter lack of stability. On Twitter law profs ask what they should teach about Constitutional law. The Fox News Six make it too easy: the Constitution means only whatever five of them say on any given day. The same question can be asked about Administrative law: is there any? And the power of Congress: does it have any? And the power of the Executive: does a Democratic President have any power? Not if SCOTUS doesn’t like it.

We have historically entrusted courts with the task of determining which rights belong to the people, and the extent to which governments at all levels can exercise their Constitutional powers in controlling people. Courts do this by interpreting and applying terms like liberty and due process found in the Constitution. Courts have always lagged behind the consensus of the American People on issues of rights, but change has come, if at a frustrating pace. For example, at least for now, governments don’t execute very many mentally ill people.

SCOTUS doesn’t care about any of this. Read Bruen, where Spouse of Insurrectionist Clarence Thomas says that the only restrictions on guns that are Constitutional are those in place at the time of the adoption of the Second Amendment, 1792. At that time, there was no concept of domestic violence. So, a Texas law prohibiting people subject to domestic abuse protective orders from owning guns is unconstitutional.

In other words, you don’t have the liberty of not being murdered by an abusive spouse. And you don’t have the liberty of going to a school, a place of worship, a concert, a grocery store, or a parade unless you are willing to take a bullet from a person armed by SCOTUS.

We can’t protect ourselves from corporate depredations either. SCOTUS restricts government regulation for years if not forever. It strikes down every law it doesn’t like, by which I mean any law rich people don’t like. In West Virginia v. EPA, it ignored the long-standing rule that SCOTUS doesn’t issue advisory opinions when it struck down a regulation of air pollution that was withdrawn before it ever took effect. And it invented a brand spanking-new doctrine, the major question doctrine, to arm itself further against Congress trying to regulate anything.

In Shelby County v. Holder, the Court announced that Congress hadn’t done enough investigation to justify the reauthorization of the Voting Rights Act. That act offended the Dignity Of The States, another brand new invention. That same logic can be used with the major questions doctrine to argue that Congress hasn’t done enough to justify authorizing agencies to regulate anything SCOTUS doesn’t like. And of course SCOTUS gets to decide whether a question is a major question.

Congress and executive agencies aren’t allowed to make rules to protect us from deadly pandemics. Only SCOTUS is allowed to do that. They killed mask mandates in the workplace, freed up unscrupulous religious leaders to infect their followers, and just recently interfered with international diplomacy by enjoining the Biden Administration from junking a Trump rule barring entry of asylum seekers because Covid is so terrifying. So much for consistency.

Neither Congress nor the President have resisted the hijacking of their power. They didn’t impose any limits on SCOTUS, by restricting its jurisdiction, cutting its funding, publicly attacking decisions as overtly political or poorly reasoned, holding hearings, or even taking the mild step of imposing ethical requirements. They just sit and watch the Holy Six enjoying their self-declared role of Philosopher Kings, the Platonic Ideal. Democracy? That’s not in the Constitution.

The worst part is that they expect you and me to respect them. We “cross a line”, in Alito’s words, when we say they are illegitimate. They are spitting on us and telling us we are powerless to stop them.

Are we?

100 replies
  1. xy xy says:

    Did you really mean “They want a SCOTUS that screws up government regulation because IT SLOWS DOWN their plundering of the American economy and Planet Earth”.

    • Balifar the Lost says:

      3rd paragraph , Second Line “SCOTUS can work toward the goal set by hte rich”

      I wish I could convince myself you were somehow in some way wrong about this, but I can not.

    • Artzen Frankengueuze says:

      Xy- I had to read that twice , because it is a bit unclear.
      But they(the “owners” [see Carlin, George clip]), because it (the government), slows down their( the owners) plunder……

      Oh, long time reader, first post.
      I learn a lot here, always feel like the dumbest person in a room of smart people.
      Better than the other way around. Happy new year.

      • Bombay Troubadour says:

        That George Carlin clip is a favorite, “it’s a big club, and you and I are not in it”.
        Slow down their plunder? Doubtful. It’s not been a ‘trickle down’ economy for at least 40 years. Pretty much since when the phrase was first used. Even extra safety net programs are plundered, like the recent Covid PPP trillion. According to one analysis, 75% of funds went to unintended recipients. (Scammers, usually well-heeled).
        PS, I can relate on the IQ deficiency concern.

        • Ed Walker says:

          This IQ deficiency thing is a common thread in comments here. It isn’t about IQ, though. Mostly we write about stuff you won’t find in any mainstream or secondarystream media. There are a lot of new ideas, different ways of thinking about old ideas, and a gigantic pile of facts which are mostly ignored elsewhere.

          I started reading about Pragmatism in the early 90s with a book by Richard Rorty, Philosophy And Social Hope. It took years for me to get my current understanding of the implications of two short essays. New ideas, different formulations of old ideas, and new facts that seem counterintuitive, all of these come very slowly to most people.

          • Ginevra diBenci says:

            Ed, thank you for not backing off one iota of your righteous and thoroughly informed rage. This is the post I would write if I had the platform and the balls. Having neither, I applaud you for articulating what I presume to be the inevitable deductions from research you and I have done in common.

            We have the Court first dreamed of in the years before Reagan arrived to initiate its inception by tipping the scales inexorably toward the rich. Alito and Roberts were the self-fulfilling prophecy of Bush v. Gore. Leave the rest to racism and ever-larger infusions of ever-darker money that exploited racism, misogyny and whatever other forms of bigotry advanced its purpose–because, as you argue so cogently, it doesn’t touch those with the money.

  2. David T Rickard says:

    “that coaches are free to dragoon their players into worshipping the god of the coach’s choice”
    So long as the coach’s god is the Christian one. I suspect a Muslim coach would be treated less kindly by the Supremes.

  3. Knowatall says:

    In some ways, yes. Like with a brain tumor, the tentacles of the power structure (America is not unique here) are so long and twisted, that it will takes decades/generations to correct, even if we start today. The short time-horizon that faithfully supports contemporary capitalism makes it even harder. Thankfully, I have no children whose future is dire, and no grandchildren to cry crocodile tears over the debt they’ll have to pay. Sadly, like Trump, SCOTUS was, at first, a symptom of the descent of the body politic; now it’s a cause.

  4. Paulka says:

    “SCOTUS doesn’t care about any of this. Read Bruen, where Spouse of Insurrectionist Clarence Thomas says that the only restrictions on guns that are Constitutional are those in place at the time of the adoption of the Second Amendment, 1792. At that time, there was no concept of domestic violence. So, a Texas law prohibiting people subject to domestic abuse protective orders from owning guns is unconstitutional.”

    The concept of Originalism is patently unjust. To dictate the current interpretation of laws based on laws established long before women or PoC had ANY rights or power in establishing those laws is simply wrong and unjust.

    As I have said before, if women were equal partners in the writing of the Constitution, the First Amendment would read: “Congress shall make no law that gets in between the woman and her body, that every single woman (including trans men) shall have sole control over their own bodily autonomy and no government anywhere or anytime will have any say in what she does to his or her own body and if that is not clear enough, abortion shall be now and forever permitted upon the choice of the woman, who shall have sole decision making power, in other words it is her choice and no one else’s, and oh yeah Congress shall also not make any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    And that second amendment would be written a hell of a lot more intelligently.

    • BruceF says:

      If Thomas truly believes that Second Amendment rights are grounded in their existence from the moment of their adoption in 1792 then they should apply only to single shot muskets and pistols and certainly not to modern assault rifles! What a foolish, but convenient, bit of reasoning by the old fool!

  5. Zinsky123 says:

    Mr. Walker, I have respected your writing from afar, particularly as it relates to education and Thomas Dewey. I think you have a great wealth of knowledge and thank you for sharing it! I didn’t realize until now, your strong anti-SCOTUS sentiments. I share your concerns about the current court and its increasingly raw, religious orientation and I wanted to just make a sharper point about one thing. With Trump’s three truly horrible choices, we now have a court with a majority who share a Christian Dominionist world view. There is the Protestant Recontructionist flavor and the Catholic Integralist flavor (go to Wikipedia under Dominion Theology for more information), but they share a very narrow, pinched view of the world where life begins at conception, there is a Rapture imminent that will “disappear” all true believers and that anyone who doesn’t share these views is chaff in the eyes of God and whose views do not matter. In short, very nihilistic and dangerous lunatics who really disdain liberal democracy. Thanks for another thought-provoking piece!

    • Ed Walker says:

      Thanks for the kind words. Your description of the religious outlooks of the Holy Six is very helpful.

    • John B. says:

      I tell most folks that The Rapture has already happened. So all those god bothering ninnyhammers are stuck here with the rest of us.

      • jmac says:

        That’s too bad…I hope you are wrong. I have my eye on a tricked out Land rover in the neighborhood.

    • Greg Hunter says:

      Thanks for pointing out that information on Dominion Theology as it does a pretty good job of explaining the different Judeo Christian groups’ interests in working together on common goals, while each really believing they are the chosen path to heaven.

      I come from the Southern Baptist tradition and was a reader of Hal Lindsey, when I read his work at the age of 12, it put me on a bible and current events study to “see the signs” of end times’ rapture. In the end it did not take; however, the problem with Hal Lindsey is that his predictions are still tracking “true enough” to be a motivation for this Protestant wing. This is part of the Dominion group that is pushing to have the Temple in Jerusalem rebuilt which aligns directly with the desires of the new Israeli government.

      The Catholic push for power is not motivated by the Rapture or End Times philosophy. In fact most Catholics are considerably nicer and for a Baptist boy growing up in a teetotaling household those fish frys’ sure seemed like fun.

      However in my lifetime the animosity once displayed by these groups washed away and the conservative religious factions can now be elected like puzzle pieces no matter what Church or Temple they attend. It’s about coalescing interests and funding.

      I think understanding the nuances of what motivates each faction is required to understand what is happening in the world and on the Bench. So you made me realize that we might have a “balanced” discussion amongst the members of the SCOTUS as a Protestant has joined the chorus.

      Can I get an Amen!

  6. Jenny says:

    Thank you Mr. Walker. Happy New Year!

    “I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion.” — Samuel Alito

    “The separation of church and state has been a cornerstone of American democracy for over two hundred years. Getting rid of it was long overdue.” — Samuel Alito

    “I’m not any kind of a bigot, I’m not.” — Samuel Alito

  7. earthworm says:

    i like this declaration about power, from Jose Mujica, revered past president of Uruguay: “it is a mistake to think that power comes from above, when it comes from within the hearts of the masses (…) it has taken me a lifetime to learn this fact”
    P. S. to zinsky123: John Dewey (not Thomas Dewey)?

  8. Silly but True says:

    The broken clock is right twice a day: Covid actually is “so terrifying,” and confirming or ensuring the vaccination status of prospective-immigrants absolutely is a health, not diplomatic, issue that nearly everyone should be in agreement on.

    Regarding administrative law, there is and needs to be limits. There is no issue when the delegated authority to bureaucratic administration is clearly in execution of clear law; things get murkier if administrator is filling in blanks in laws or composing law in that execution.

    • harpie says:

      Ed, I join Savage Librarian in thoroughly appreciating your RANT! I often read your posts, but feel totally lost and out of my league.

      But THIS! This I TOTALLY get! Thanks!

      Also, really love: Spouse of Insurrectionist Clarence Thomas LOL!

  9. Bay State Librul says:

    Maybe you can add two add two letters?

    Supreme Injustice?

    “The three most important Supreme Court Justices before the Civil War―Chief Justices John Marshall and Roger B. Taney and Associate Justice Joseph Story―upheld the institution of slavery in ruling after ruling. These opinions cast a shadow over the Court and the legacies of these men, but historians have rarely delved deeply into the personal and political ideas and motivations they held. In Supreme Injustice, the distinguished legal historian Paul Finkelman establishes an authoritative account of each justice’s proslavery position, the reasoning behind his opposition to black freedom, and the incentives created by circumstances in his private life.” Summary of Book by Paul Finkelman in 2018.

    • Ed Walker says:

      I’ll take up aspects of this when I get to my next book, Kermit Roosevelt’s The Nation That Never Was.

    • Epicurus says:

      BSL, I would recommend two books to you, and to others so interested.

      “Justice Accused: Antislavery and the Judicial Process” by Robert Cover

      After Justice Accused, “Constitutional Fate: Theory of the Constitution” by Philip Bobbitt. This is a book that analyzes the legitimacy and justification of judicial review.

  10. Spencer Dawkins says:

    Tl;dr — Thank you, Ed Walker, for this well-justified rant. I hope it’s circulated widely, to everyone who NEEDS to see it, consider it, discuss it with others, and act on it. Speaking for myself, I’m forwarding it now, and with discuss it with at least three people today and tomorrow.

    Other stuff I want to tell Ed Walker –

    I read almost every post on this site, because I treasure the insights from both authors and commenters. Even if the topic is new to me because it has been underreported (“Vault7”, being the best example), I do my best to dig through and learn as much as I can.

    Having said that – this is one of the most useful posts I’ve seen, here or anywhere, because the scope is broader than one investigation or one court case – or one conspiracy.

    Ed, If you are tempted to post other rants, or to post anything like a catalog of New and Exciting Legal Doctrines that have descended upon the Holy Six from heaven – please do!

  11. Jay says:

    Let’s be clear- for what you say to be true, you necessarily need a court that makes stuff up to fit whatever your policy preferences are. You offer no guiding principles. I don’t know if you’ve really thought this through. If there’s no court and no constitution, you think things will improve?

    America is in decline, but blaming the court seems a tad silly.

    [Welcome back to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

    • bmaz says:

      Hi there. Ed has indeed thought this through long and well. And, yes, the Court does, and increasingly frequently so, try to fit their political policy preferences. I don’t know where you are coming from with your comment, but no one but you is mentioning there being “no court and no constitution”. And it is not only fine to blame the Court when they behave badly, it is appropriate that citizens do just that.

    • earlofhuntingdon says:

      LOL. Your comment is not remotely clear or informed by Ed’s critique. It reads as if we did not already have what you describe and to which Ed is opposed.

      Assigning causation – blame – to the correct bad actors is essential in any campaign to oppose their acts. The current Supreme Court majority is definitely among the bad actors corrupting the already imperfect American legal system. It does so resolutely and consistently in favor of the American wealth elite. It would be beyond a tad silly not to blame its members individually and collectively and to oppose their conduct.

    • Rayne says:

      Unf. That does sound good right now, along with a cold Modelo. Guess you know what I’m having for an aperitif. :-)

      • harpie says:

        Yum! :-)
        [I thought people might want to join me in preparing for the responses I just knew were coming to Jay’s comment, above. :-)]

  12. gmoke says:

    From Neil Postman’s Technopoly: “As our first systemic fascist, Plato wished education to produce philosopher kings.”

    IF Stone’s The Trial of Socrates is also a good antidote to the uncritical worship of that old troublemaker.

  13. earlofhuntingdon says:

    Glad you mentioned Chemerinsky’s book on the Supremes. Provides badly needed context for our hopes and dreams – and organizing – for a better S.Ct.

    • bmaz says:

      People should also check out the work of Eric Segall on this. Both he and Erwin are friends to us here, and will appreciate the coverage.

      • Ed Walker says:

        Amen to Eric Segal. I’ve listened to a number of his podcasts, Supreme Myths, and always learn something. He also blogs at

  14. Attygmgm says:

    Let us amuse ourselves for a moment by imagining political will.

    Under the Court’s recent 2nd Amendment decisions, it seems the 1792 Militia Act offers opportunity to use the Militia Powers in Art 1 Sections 8.15 and 8.16 to create a wide range of ways to inventory, monitor and disincentivize guns, as well as to scrutinize gun owners for both mental stability and firearm competency.

    The 1792 Act REQUIRED certain citizens (meaning white males of certain ages) to purchase guns and other equipment, for use when they served in their state’s militia. The extent to which the 1792 Act imposed is surprising.

    The Bill of Rights was ratified December 15, 1791. The intrusive 1792 Act was passed May 8, 1792, within six months of the Second Amendment’s adoption. So plainly, Congress saw such burdens and intrusions as acceptable under the Second Amendment.

    The 1792 Act was not an historic success. Its requirements lacked enforcement mechanisms and were mostly ignored. Eventually militias gave way to the National Guard. But as an expression of what sorts of burdens and intrusions as to guns were contemplated in 1792, the thing the Court now claims is required, a modern version of the 1792 Act could justify enormous impositions of registration, tracking, and other burdens to show competence or social responsibility built on this simple idea: if you possess a gun you have volunteered for a new kind of militia — a militia consisting of those who have one or more guns. Don’t want the burdens, whatever they may be? Simply remove yourself from the reach of a modern militia act by surrendering the gun through a buy-back provision.

    For the first time, what the court says is our fundamental right to keep and bear could be linked by law with some responsibilities, the nature and extent of which Congress would define. The opportunities for gun safety incentives and disincentives seem ample.

    Not that the court wouldn’t try to invent some new distinction or concept to compete with such a plan, the way the court now invents concepts to dismiss whatever it is they don’t like (like the Voting Rights Act). But when the inevitable Second Amendment challenge would come, it would be more of a fair fight to pit against that challenge (a) the Necessary and Proper Clause, (b) an explicit grant of Constitutional power to organize and call out the militia, and (c) an example from 1792 of deep intrusion and burdens imposed on EVERY citizen within its reach, to compare to a modern version of a militia act that would apply to only those who chose to possess a gun.

    Especially if, as in the 1792 Act, such legislation protected gun ownership from creditors. Imagine a congressional or Senate campaign built on the argument of PROTECTING gun possession even as it imposed substantial reporting and service obligations on those of us with guns. And imagine the present-day cosplay “militias” having to actually show up periodically in an actual militia run by their state. Imagine law enforcement being able to know that someone with a gun has had to go through such periodic screenings, which law enforcement could be empowered to enforce on anyone who has not complied

    Assuming political will, the horizon of such possibilities is broad.

    • Greg Hunter says:

      Thanks for that history lesson on the 1792 MA and as I read your explanation of the process this Act is really attempting to define the phrase “well regulated” with respect to a militia/arms ownership and the responsibilities of the Citizens, Federal Government and the States. I went down the rabbit hole and read the abstract written by Patrick J. Charles that analyzed the legal and historical perspective of the 1792 Act. Mr. Charles indicates that the thinking of the time on well regulated is not what we hear from the gun owners today. Link to paper

      To link in Ed Walkers wonderful rant about the SCOTUS and the current war over the Second Amendment I think I can find the spark that lite that flame. It seems pretty clear that the American populace went to war on its own government with the passage of Prohibition.

      As a result the administrative state was being out gunned and instead saying hey maybe making something illegal that everybody wants was a bad idea, old J. Edgar Hoover went to war on guns with the passage of the National Fire Arms Act of 1934. In spite of Prohibition ending in 1933. This law was affirmed by the SCOTUS in Miller and that is where the modern war on the #2A began.

      Could you argue the SCOTUS got lazy under Miller by not looking at the MA 1792 when they reached their decision?

      • Attygmgm says:

        Thanks for the link to that law review article.

        The court seems unreceptive to the argument that the 2nd Amendment refers to militias. Heller in 2008 decided it was an individual’s fundamental right. Approaching the problems of gun proliferation and gun safety from a new direction seems worth considering as a supplemental strategy. If having a gun imposed obligations . . . well, Americans don’t have a high tolerance for inconvenience.

    • John Lehman says:

      We could set it up like Switzerland and have all men between 18 and 45 be in an armed militia with training two weeks every year. Their law requires them to own weapons but the ammunition is tightly regulated. That and the mountains kept that mustachioed crazy man from even thinking about invading.

  15. John Lehman says:

    Thanks for your eloquent rant.

    Reminded of Richard Pryor’s joke…”I was sent to Joliet and saw justice…lots of us black guys there…yep…just us.”

    Seems the title, Supreme Court ‘Justice’ is oxymoron on some of the member’s shoulders.

  16. rattlemullet says:

    Thank you Ed Walker, eloquently stated. The arc of history has been cruel to America in that trump got to appoint three Supreme Court justices. The arc of this history has been calculated and planned in great degree by the hatred of republicans and conservatives starting with Gore v Bush 5-4 decision and came into full force when Obama was elected president by withholding his right to appoint an SC justice. With the Federalist Society guidance the SC has become nothing more than a bought and sold institution. It will take decades to remove the rot. Conservative thought is anathema to progressive enlightenment.

    • bmaz says:

      Sure. But elections matter, maybe Dems should have done a little better in 2016. Decades is what it takes, and Dems never pay attention to judicial policy, but the GOP always does. Quit fucking it off and start now with more attention to the judiciary. Because they are.

      • rattlemullet says:

        I completely agree with those statements. As always “should haves” never work. Going forward the Dems need to better with focusing on judiciary. You will know far better than I, but didn’t they do pretty good with appointment of Federal judges the past two years? How would you assess their most recent judicial appointment record? Obviously any progress in that area will most likely come to a complete halt now. Top of the New Year to you and all the authors here at EW.

        • bmaz says:

          The Dems and Biden have done okay. But not great. With the Senate, there is still time. But Team Biden needs to get on with it. And thank you and Happy New Years to you as well.

  17. jaango1 says:

    Since the decision to eliminate our Roe-v. Wade from the rule of law, a new age of opportunity for Chicano politics, can and will commence with the following legislation. Take for example…
    “Governments–federal, state, county, and municipal–shall be prohibited from interfering in women’s reproductive rights.”

    And as an indigenous-oriented Chicano, my looking forward into our collective future, the subject matter of national security and defense comes at us through the prism of “demographics” and followed by “immigration reform.”

    Consequently, our view of progressive politics is in establishing a new feature that is to be fully realized as the Prohibition Alliance. And as an afterthought, Biden should have gotten off his butt and called for the public resignations of all members of SCOTUS, Republicans and Democrats alike.

    • bmaz says:

      This is a load of crap. For starters, not everything revolves around “Chicano politics” as you relentlessly and solely, focus on. Calling for the the “resignation” of all SCOTUS is absurd and stupid.

  18. Bay State Librul says:


    All the members of the Supreme Court?
    That is quite a Bruce Willis action thriller proposal

    • Tom-1812 says:

      On another movie theme, the conservative Justices all seem fond of wining and dining with the rich and famous, so perhaps invitations to “Hawthorne”, that fancy island restaurant, are in order.

  19. Bay State Librul says:

    Compared to Keith Olbermann’s podcast today, Ed’s rant is like a tiny incision into the bowels of the Supreme Court

  20. Bay State Librul says:

    Will 2023 shed light on the mysterious SCOTUS leaker? To date, only a few breadcrumbs have been scattered along the trail.

    • Ginevra diBenci says:

      Hey Bay State from here in Nutmeg State, aren’t we all assuming by now that Alito himself leaked it through his clerks? Roberts must know the truth, and since he’s not telling I’m guessing it reflects badly (like so much else) on the philospher-king wing that Ed wrote about.

      I’m wondering if 2023 will reveal the J6 pipe bomber. The silence around that one is boxing-my-ears deafening.

      • bmaz says:

        Yes. I have no idea here where the proverbial truth lies, but maybe they just do not know definitely as to the pipe bombers.

        Remember when they “knew” as to the Centennial Olympic Park bombing? But then turned out they did not?

  21. Epicurus says:

    “They are spitting on us and telling us we are powerless to stop them. Are we?”

    Functionally we are not powerless as voters can amend the Constitution. Practically, we are powerless given the difficulty in amending and time to amend the Constitution, the polarization within our society that would greatly complicate the ability to get to amendment levels of acceptance, and the win/lose, either/or internalization within the population of how the law and the Constitution should work.

    As much as I disagree with the direction of the current court, there is a wide swath of Americans that believe in that direction. The illegitimacy I feel toward the court is the legitimacy felt by others: the opposite would happen were the court’s direction reversed.
    In a democracy, which I feel the US is not, but most others do, the power to change always arises out of the people. That change applied here is massively difficult given our polarization and emotions about constitutes legitimacy.

    The Constitution has several fatal flaws. One crucial one is the belief/expectation that representatives in government, elected or chosen by other representatives, will follow their oaths of office and place their loyalty to their duties of office and to the people (the SC oath says without regard to persons so no obligation there) first. That runs against human nature in many situations. The Constitution gamed that situation, in part, by creating a balance of powers (rock-paper-scissors) offset. Crucially, it created a judicial branch where Supreme Court membership is appointed by other representatives, for life, and without any responsibility to the people: it is a completely autocratic branch of government, what we fought against in our revolution and the antithesis of democracy and of how we want our government to function. Put agenda first people on that court and you have what you have now.

    Were I to have two dreams for application to the SC:

    First, I would increase the number of judges (I don’t think of them as “justices”) to the number of district courts to get to some democratically based number, perhaps even having each justice selected, over time, from the empty/vacated district seat.

    Second, I would relegate 20% (raised to the next highest whole number) of the court membership to a lower court by voters in each Presidential election. Relegated judges cannot be reappointed by the newly elected President during his four year term in office. Give the voters a voice that the SC membership can hear.

    I hope everyone has the best in a new year!

    • Rayne says:

      The “wide swath of Americans that believe in that direction” are a minority in this country. The Electoral College assures this minority’s opinions are given excess weight. Address that excess weighting and a part of the problem resolves itself over time.

      I note you don’t mention statehood for Puerto Rico, DC, and other territories. If the issue of excessive weighting of a minority’s opinions are to be equitably addressed, so, too, should the lack of representation for these American citizens whose lives are affected by these same jurists.

      • Epicurus says:

        Because we are not a democracy, we have an electoral college. It is a form of philospher-king governance that Mr. Walker notes. There is nothing that prevents states from allocating electoral votes according to popular vote (the problem of unfaithful electors aside). Resolve that issue with popular vote allocation, and I don’t know how one does it given the power it gives political minorities under the current system (why would they give that power up?), and you solve the excess weighting issue immediately.

        i don’t know how one addresses lack of representation for territories, especially if they don’t wish to be states but have that power.

        The Constitution has fatal flaws.

        • Rayne says:

          The Electoral College ensures these lightly-populated states home to a white “conservative” minority maintains overweight grip on the executive and judicial branches. Fixing the Electoral College only remedies overweighting in two branches.

          We have Congress because we’re a republic — a form of representative democracy. The weighting of control by lightly populated states which are not uncoincidentally majority white is already ensured by the Senate. Territories should be given the opportunity to choose statehood on a regular basis, particularly since they are majority non-white and remain more or less captive colonies. Their full representation could remedy at least part of the problem with the legislative branch.

          The Constitution has flaws which were deliberately inculcated to serve white capital holders. Fatal? That’s yet to be seen given how fantastically these flaws have continued to assure white supremacy and its control of governance since this nation’s inception.

          • Epicurus says:

            Mr. Walker is ranting about the Supreme Court and asked if we are powerless to respond to some of the Justices (?) metaphorically spitting on us. I replied that functionally voters can amend the Constitution but practically it, changing the way power is wielded constitutionally, is a different matter.

            I don’t think a court that is nominated and appointed by other polarized representatives for life and formally, i.e. constitutionally, accountable to no one other than the individual justice her/himself is democratic in any sense of the word and not representative of the people it allegedly is serving.

            For a country people view as democratic whether through representatives or directly, I think that is a fatal flaw. Without amending the Constitution there is no current constitutional way for voters to make the Supreme Court justices accountable to them. We are left to rely on the goodwill of, e.g., people like Clarence Thomas.

            Perhaps Mr. Walker can chime in and tell us his beliefs about whether we are indeed powerless to the perceived metaphorical hydrant pissing by and territorial imperatives of the Justices (?) with the people as the hydrants. If we are powerless, then what are his suggestions for resolution. I would only note we are so polarized as a country people on the conservative side of things perceive liberal justices as equal pissers on them as Mr. Walker feels certain justices are pissing on him.

            I have no answer. The only approach I think that could work is one suggested by Jamal Greene in his book about our Obsession with Rights and how that obsession is destroying us. Still, one would have to overcome entrenched polarization in the country to even attempt his suggestion(s).

            • earlofhuntingdon says:

              There are mechanisms within the Constitution – the basic law that creates. empowers, and limits the bodies of government – to change it. Whether they can be used is a function of politics. Currently, they cannot, because the Republican Party refuses to be bound by the Constitution.

              That’s a political problem and only partly a legal one. Many Democrats and much of the MSM refuse to acknowledge those facts, which further limits responding to a systemic power grab by a party no longer rewarded at the ballot box.

              • Epicurus says:

                I agree with you. Most people forget that all government is politics. Many want to pretend that the Supreme Court is above politics, especially its justices, which it isn’t. By definition it is one of three interrelated three branches of government – politics or literally the business of the polis.

                When we created the Constitution the framers sought to dilute the powers of the King of England (the executive branch) most importantly by giving the power to declare war and to raise taxes to the legislative branch, and by removing judicial fiat from the province of the king/executive branch and granting to a third, judicial, branch.

                Mr. Walker is ranting about our judicial branch ruling by fiat. My major issue is there is not a systematic way within the Constitutional process to make justices accountable to the people. We are solely dependent on their goodwill.

        • earlofhuntingdon says:

          Any fatality is not in our stars, but in ourselves. That is, in the body politic, not just the governing basic law, but a refusal by one party to abide by its terms.

  22. Willis Warren says:

    Roberts’ comments that SCOTUS (judges) shouldn’t have to live in fear is asinine when one considers that the social contract has been broken.

    • earlofhuntingdon says:

      He doesn’t seem too concerned with the fear his majority’s decisions force on others, though.

      • ChicagoDD says:

        Agreed, I am hoping someone who is a better writer than myself and with national visibility teases that exact thread out, puts it in perspective for Roberts to have to see, and deal with, and who knows, even literally ANSWER to – and spreads it far and wide. The fear of 9 people vs that of the ramifications of Dobbs and anti-LGBT decisions, for example on countless millions of lives.

        • Willis Warren says:

          You can’t dictate people’s morality and threaten them with prison and pretend you’re not exerting force. It’s simply nonsensical. We’ve been extremely lucky that no one has crossed this line yet, and Roberts knows this.

  23. e.a. foster says:

    Happy New Year ! Good article. Enjoyed the read.

    Yes, the American supreme court does appear to have some problems. Its shocking how often they make game rules or over turn them to the detrement of citizens.

    Unfortunately Supreme Court Justices in the U.S.A don’t have a mandatory retirement age. In Canada they are mandated to retire at 75 as do senators. Appointing judges for life may have been a good thing back in the 1700s, when people didn’t live so long. Now not so much.

    The rules in Canada mandate 3 Supreme Court Justices must come from Quebec, yes they have to be fluent in French. One must have a Marine Law back ground. In practise 3 come from Onatrio, 2 from Western Canada and 1 from Atlantic Canada. I like the system because the various parts of the country are represented,

    The American Judges are appointed by the President, so usually the Judge is in line with the President’s thinking. That does not bode well for the law. This organization named the Federal Society, does seem to have a tad too much clout when it comes to naming judges. They weren’t elected by anyone. They look like some sort of club or lobbying group.

    It would appear the problem is the U.S.A. has only two political parties and most Americans belong to one or the other. It boggles the mind that a Surpeme Court Justice’s spousal unit goes around being very political or that the Judges go off to enjoy the hospitality of major political figures. Perhaps it is time that there is some sort of code of conduct for American Supreme Court Justices. In the past some of the American Supreme Court justices changed how the U.S.A. operated, for the better. These days, it just looks like a group of people who give the party which “annointed” them what they want.

    People ought to have listened to Anita Hill.
    The number of times the other candidate kept saying, “I like beer”, should have been a tip off.

    Again Mr. Walker, thank you for the article

  24. Bay State Librul says:

    I remember when Roberts said he just calls balls and strikes. Let’s remind him that in 2023 we will be instituting the Robot Umpire Strike Zone.

    • Tsawyer8 says:

      About 15 years after the constitution was adopted, the Supreme Court decided, in Marbury v Madison, that a simple majority of the Court could overrule the majority of the Congress on the question of whether the laws adopted under Article 1 were valid. This is a stunning example of an activist Court applying what is now called the living constitution method of interpretation.
      There is no power under Article 3 for the court to invalidate legislation. In fact the powers of the court are quite limited and the Court is subject to Congress in its makeup and rules.
      No great revolution occurred and the power was little used in the following 50 some years until Dredd Scot v Illinois. That case is probably the first and most extensive original intent case. While the case is reviled for the statement that a black man has no rights that the court is bound to resect, the ful opinions are worth much more careful analysis. Dredd Scot, a slave, was taken by his master to Illinois for a time and then back to, I think, Missouri. Illinois had a law that freed any slave brought into that state and so Mr Scott sued in federal court for his freedom under Illinois law.
      The majority authors showed quite plainly and in great detail, that the original intent of the founders as expressed in the plain language of several sections of the constitution, was indeed that Dredd Scott had no rights and that slave holders could take their servants any where they wanted to. In fact, the Court questioned the whole process of legislative compromises that limited slavery in the new territories and states, and which had kept the lid on the ongoing disputes and bloodshed over the issue. The Civil War came shortly thereafter.
      I used to love this stuff. .After 3 years of intense study, I was on board with that government of laws, not men bs. The present court has ripped the mask off the whole system, but in retrospect, it has been ever thus

      • earlofhuntingdon says:

        Marbury decided whether an act of Congress was Constitutional, a much narrower standard than mere validity. The decision has been settled law – accepted by all three branches of government – for quite some time.

  25. Rugger_9 says:

    OT, but related because anti-vaxx bozos like Charlie Kirk do influence SCOTUS justices with junk science (looking at the Faux News Five). Kirk is going off on the vaccine being the source of the problem, but the short video (< 3 mins) from Dr. Sutterer explains it quite well, and FWIW it was posted last night at around 7-8 PST. So, no excuses for Charlie K, and I will also observer every five years or so we hear about a kid getting hit in exactly the same way as Hamlin was (sharp, heavy blow to the chest) by a baseball at the worst time and the same thing resulted.

    It's a question of how quickly CPR was started, remember the pads and helmet have to be removed and this has to be done while still thinking about a potential a head injury was present which would delay the decision to strip the upper body (not for long, without a pulse).

    Also, LGM has Kirk's 'input' and a better evisceration about it than I can do.

  26. earlofhuntingdon says:

    American President-elect, Speaker, and Supreme Court nominee, Sir George Santos, has decided not to return to Brasil to accept its presidency, pending resolution of his criminal case(s). His press office has indicated, however, that he will shortly return to Balmoral to accept the resignation of Rishi Sunak.

    For some politicians, every day is Trump Day, April 1st.

  27. mospeck says:

    One great rant, Ed. Meanwhile, over the hills and far away
    Makiivka BBC — President Vladimir Putin has so far said nothing about the attack, but did sign a decree on Tuesday for families of National Guard soldiers killed in service to be paid 5m roubles (£57,000; $69,000).
    No criticism was reported at the Samara rally, where main remarks came from Yekaterina Kolotovkina, who said “neither we nor our husbands wanted war; the entire West united against us to eliminate us and our children as her husband, Lt Gen Andrei Kolotovkin, commands the 2nd Guards Combined Arms Army based in Samara .. prompted anger on social media with independent journalist Dmitry Kolezev pointing out that her husband did not die in Makiivka.”Could we have at least some evidence?” he asked. Meanwhile Governor of Samara met defence ministry officials in Moscow on Tuesday and was expected to visit some of the wounded in hospital city of Rostov-on-Don next day.
    NYT– O’Brien argued that weapons like the HIMARS will likely be important as the war enters its second year. “The first step of any Ukrainian road to victory will be the continuation of this great wasting stage we are in .. Ukraine will rely mostly on ranged weapons to methodically dismantle the Russian forces facing them.”
    you look like a good joe and you’re worth five million rubles

    [HEADS UP: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. PLEASE ALSO spell your name the same way each time you comment. Your username has had to be corrected over your last four comments from “mspeck” to “mospeck” (which you’ve used for +290 comments) and then cleared from moderation. /~Rayne]

      • Rayne says:

        So are community members who manage to spell their name the same damned way each time they comment.

        This is mospeck’s third fourth comment I’ve had to fix in the last 48 hours. I am NOT happy.

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