Re-Imagining the Court

While at National Review poking around for the sappy farewells and well-wishes to its most prominent Cuckservative, I came across a little diddy about Mayor Booty-grab’s plan to remake the Supreme Court. Apparently the plan is to expand the court to 5 Dems, 5 Reps, and then five chosen by the other ten. This plan on the face of it seems to be a “silver bullet” method of removing all partisanship from the high court, but I don’t think this will have any of the desired effects that either Booty-grab or Conservatives have in mind, in that Conservatives are likely to have their own complaints about the high court.

The writer who brought this to my attention–some three name person I have never heard of–voiced concern that this would shape the Court in the image of the two political parties. That is a valid concern, but one which I think is already a reality. Since the days of Bush the Younger, the environment in Washington D.C. pertaining to the courts were shaping up to be the party in control of the White House and the Senate dictated how the courts looked. This progressed (no pun here) to control of the Senate with filibuster-proof majorities. Then finally, and the way the Constitution was designed, a simple majority of 51. In short, long are the days when you could get a significant number of votes from the opposite party. Sure, Republicans play nice, but that is out of a mentality of Stockholm Syndrome. Democrats on the other hand are never going to allow reason to overcome what the party bosses dictate, just ask Miguel Estrada.

The other problem is that the Supreme Court should not be the attention grabber that it is. I am constantly making the case to those interested that the States are the real driving force to our system of government with few defined exceptions. The issues that are at the root of this country’s division are issues that have no place being decided by the Supreme Court. There is no reason for sweeping, societal changes to come from the legal reasoning of nine people. Had the Court not assumed such a role, I doubt there would be the animosity in this country that there is. It’s the culture of the court that needs to be remade, not the form of the court. Justices need to be educated to understand the proper role of the general government and that requires a change in the ideology that is taught in law schools.

Law students in Constitutional Law classes should be reading St. George Tucker and William Rawles before ever reading a case decided by the Supreme Court, be it the Marshall Court or the Roberts Court. Knowing the proper role of the Court is what is needed and that can only come from people passing the knowledge on to the future generation of lawyers. One of the benefits I had going into law school was the knowledge that these men and other like them were out there. Having read their works, I was able to see the stitches on the fast ball when taking my classes.

If Conservatives are as truly committed to limited government as they claim, they will make the effort to ensure that their fellow citizens know of these books and the others out there. If Conservative lawyers are truly committed, they will ensure that new associates to their firms read them and know them. Changing a culture takes time and it takes changing minds. That is impossible if only half of the information is circulated.

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13 thoughts on “Re-Imagining the Court”

  1. Here’s what you’re dealing with.

    Polarisation in US Congress: 1949 to 2011

    There used to be a centre; there isn’t any more.  The red and the blue are now entirely distinct.  Anybody who aims to be a “centrist” is a fool who will fall into the void between the poles.

    It will not be a mushy fusion which will win.  One of the red or blue will prevail.  The blue understand this and are playing that game.  Far too many of the red still talk about “reaching across the aisle” or “finding a middle ground”.  When confronted with slavers, the only viable strategy is “they lose; we win”.

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  2. Mayor Booty-grab? Love it, tho’ I prefer “Peter Pansy”…

    Robert, I dk  if you are finishing up,law school or already graduated.  Either way I wish my daughter were attending your institution.  Everything I hear from her about her courses convinces me that law students today are just being trained as SJWs .  “Conservative lawyers”?  I don’t think there’ll be any in future, nay, nor judges either.

    But speaking o fthat: Didja see some judge (a Trump appointee,) finally ruled—just hours ago!  that these disputes between Pres and Congress, specifically, the wall funding, are non-justifiable political  questions!  Wow,  I was beginning to think I had dreamed that concept…he refused to block the border wall $$$.

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  3. Hypatia:
    Mayor Booty-grab? Love it, tho’ I prefer “Peter Pansy”…

    Robert, I dk  if you are finishing up,law school or already graduated.  Either way I wish my daughter were attending your institution.  Everything I hear from her about her courses convinces me that law students today are just being trained as SJWs .  “Conservative lawyers”?  I don’t think there’ll be any in future, nay, nor judges either.

    But speaking o fthat: Didja see some judge (a Trump appointee,) finally ruled—just hours ago!  that these disputes between Pres and Congress, specifically, the wall funding, are non-justifiable political  questions!  Wow,  I was beginning to think I had dreamed that concept…he refused to block the border wall $$$.

    I have one more year to go, but yes, they are training the students to be SJWs. I am a night student, so many of my fellow classmates are less susceptible to the SJW crap, but they still are far removed from where I am in terms how I would approach legal questions as a judge. But they are very interested when I talk about this stuff. Why? Because it is information they have never heard before. They like it and a few are even eager to read what I am telling them they should for a better, fuller knowledge of the debates they just read. Like the Hunter’s Lessee is a good example. Left up to the professor’s explanation of what was going on, these kids would be left with the impression that the States were an afterthought and only created by the general government. However, the way I present my questions about the case and the sources I use in my back-and-forth always spark their interest.

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  4. Robert A. McReynolds:
    Why? Because it is information they have never heard before. They like it and a few are even eager to read what I am telling them they should for a better, fuller knowledge of the debates they just read. Like the Hunter’s Lessee is a good example. Left up to the professor’s explanation of what was going on, these kids would be left with the impression that the States were an afterthought and only created by the general government.

    Excellent comment.

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  5. John Walker:
    Here’s what you’re dealing with.

    Polarisation in US Congress: 1949 to 2011

    There used to be a centre; there isn’t any more.  The red and the blue are now entirely distinct.  Anybody who aims to be a “centrist” is a fool who will fall into the void between the poles.

    It will not be a mushy fusion which will win.  One of the red or blue will prevail.  The blue understand this and are playing that game.  Far too many of the red still talk about “reaching across the aisle” or “finding a middle ground”.  When confronted with slavers, the only viable strategy is “they lose; we win”.

    I think the graph is interesting but not necessarily reflective of how the country really is. For instance, I don’t think that there is no middle in terms of actual politics. I think there is no middle when it comes to party  affiliation. To me this is a big distinction. Call it anecdotal, but everyone I have ever talked to about this stuff has always said they align with Conservatives on most of the big issues, although they don’t put it in those terms. They say that there is too much illegal immigration, for instance, or that spending is either too high or misappropriated. Just examples here, nothing exhaustive. But when I get into which party they like, they are vehemently against the GOP. It’s a branding thing. The GOP has allowed itself to be defined in ways that make people who agree with its policy proscriptions completely turn away from it because of branding. I think this is reflected in the polls that come out every other year or so that show the electorate identifying as Conservative to the tune of 45%, or there abouts. Of course this could just be a complete misunderstanding of what these terms actually mean, but if we take it at face value, I think the Red-Blue thing is a reflection of the Red constantly being made fun of in the media/pop-culture and the GOP not fighting back on any front.

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  6. Robert A. McReynolds:
    But when I get into which party they like, they are vehemently against the GOP. It’s a branding thing. The GOP has allowed itself to be defined in ways that make people who agree with its policy proscriptions completely turn away from it because of branding. I think this is reflected in the polls that come out every other year or so that show the electorate identifying as Conservative to the tune of 45%, or there abouts. Of course this could just be a complete misunderstanding of what these terms actually mean, but if we take it at face value, I think the Red-Blue thing is a reflection of the Red constantly being made fun of in the media/pop-culture and the GOP not fighting back on any front.

    Yes.   The Establishment RINOs are more interested in being centrists and in being liked and are less interested in being conservative or winning political battles.    They failed to defend their own reputations because a vigorous defense might have bruised some tender feelings.

    Polls that ask generalized questions show a conservative America.   But there are very few polls like that.   For every poll that asks generalized attitude questions there are twenty push-polls asking about specific bills or candidates.   No wonder conservative Americans have quit talking to pollsters.

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  7. MJBubba:
    No wonder conservative Americans have quit talking to pollsters.

    I have more to say on this subject of pollsters!

    1. As my husband loves to remind me, no pollster has ever called us and we are very politically active.

    2. The Trump team asked the right question in 2016. They asked “Who is your neighbor voting for?” People are often afraid to admit who they support but are perfectly comfortable discussing the views of others.

    3. Fun story: That is how Trump knew he was going to win WI, MI, and PA. Nobody polled would admit their preferences but were quite vocal about their next door neighbors.

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  8. Understanding our system of government, I think, must include an understanding of these following:

    1) The Declaration of Independence–not the stupid first paragraph either, but the whole damned thing. The last paragraph is actually far more important than the first.

    2) The Articles of Confederation

    3) The Philadelphia Debates on the Constitution

    4) The Constitution.

    5) The Ratifying Debates. (go here. Folks are awestruck when I show them this. Resources they never knew existed!)

    6) St. George Tucker’s View of the Constitution.

    7) William Rawles’ A View of the Constitution. (Rawles gives the Federalist view of the Constitution. Note, not the Hamiltonian view, but the Federalist view.)

    8) (When I am really feeling lucky) John C. Calhoun’s A Disquisition on Government.

    9) Abel Upshur’s A Brief Enquiry. (This is a response to Joseph Story’s Commentaries.)

    These are all in chronological order in terms of the point in time the thoughts addressed. Elliot’s notes on the debates were from the 1820s, but the timeframe is 1787 to 1788. If I were teaching Constitutional law, these are the only books I would pull from. I would hardly have the students read cases, except to demonstrate how far off the legal reasoning is when viewed through the foundation of our system. I would, for instance, have the students read what Hamilton and Marshall said in the NY and VA ratifying debates and then have them read Marshall’s drivel in McColough v. Maryland. I would have them read Upshur’s A Brief Enquiry and then have them read Story’s fairy tale in Hunter’s Lessee. I would encourage a real discussion about our system of government and then probe the student’s to get them to think like the Founders and not like SJWs.

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