Like most relatively aware political junkies, I have a make-believe law degree, a distinction that lends great weight and authority to my statements on Supreme Court decisions. In that vein, I would like to pronounce the just-ended Supreme Court term a smashing success.
I've wondered if we aren't approaching one of the causes of our revolution -- taxation without representation.
From Lincoln's first inaugural:
"Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. But such is not our case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guaranties and prohibitions, in the Constitution that controversies never arise concerning them. "
"Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left."
The origins of minority rule: "At the 1787 Constitutional Convention in Philadelphia, Delaware's delegates included Richard Bassett, Gunning Bedford Jr., Jacob Broom, John Dickinson and George Read......While the Great Compromise — establishing a two-chamber legislature with equal weight for state votes in one — kept Delaware involved in the Constitutional Convention, Bedford was shouted down for threatening to locate foreign allies who could assist small states."
"the small states were opposed to any change that decreased their own influence. Delaware's delegation threatened to leave the Convention if proportional representation replaced equal representation, so debate on apportionment was postponed"
".. it is remarkable how applicable Lincoln’s condemnation of secession is now to the party he helped establish. Secession, the 16th president explained in his first inaugural address, was “the essence of anarchy.” A majority, restrained by the constitutional rights of minorities, was “the only true sovereign of a free people.” Those who reject the will of the majority invite chaos and tyranny. Unanimity is impossible, Lincoln concluded, and “the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy, or despotism in some form, is all that is left.”
They didn't see a constitutional problem with institutionalizing racism either. And the majority decision in 1973 is exceeded only by Dred Scot in its universally understood position as a terribly reasoned decision.
Well written and thoughtful as always. There has always been an emotional outpouring following SCOTUS decisions which were painted as "drastic" before the outcome was decided, but after emotions cool the dire predictions typically fail to materialize. What is more likely, as society shifts often in unexpected ways is a new path around...it simulates the carnival game of WACK-A-MOLE more than we would like.
Your point about reading decisions, both, is important. Steven Breyer wrote a great book showing how dissenting opinions affected legal shifts often as much as the majority and Ruth Bader Ginsburg relished the task of educating in her opinions. But, what I enjoy the most is watching a justice mature in the job as they learn how to influence from the bench. In some cases they become grumpy and inflexible, but in most cases they become deeper thinkers in their opinions and how they act from the bench.
I can't even begin to understand the statement "what we have today was never envisioned by the Founders" coming directly after "two Senators regardless of population". That was the intent then, and it is the intent now.
I'm not sure we're going to see a huge outcry on the affirmative action case, other than perhaps more scrutiny on "legacy" college admissions. I do think we need to do more to make college affordable, if for no other reason than other countries we compete with do this.
The Colorado case is baffling and would seem to open the door to denying service at restaurants and other businesses to those the proprietors don't approve of --- blacks? Jews? red-heads? If decided on free speech grounds, then a sign in the front window or blurb in a menu stating groups that will not be served is their "free speech" attempting to discriminate against protected groups.
Now we hear that the "web designer" hasn't designed any websites yet and that the single "customer" never actually asked for service. If I provide speech-writing services via a web site, I'm providing a service for a fee. There's no presumption that I subscribe to the ideas being presented in the speech ( reminds me of defense attorneys). Most wedding design websites are free and even if paid, why would the designer's name need to appear in the wedding announcement?
Overall, the conservatives on the court are out of step with where this country is going ( demographically and otherwise.) Whether they can continue to insist on interpreting things as if it's still 1776 remains to be seen.
I've wondered if we aren't approaching one of the causes of our revolution -- taxation without representation.
From Lincoln's first inaugural:
"Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. But such is not our case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guaranties and prohibitions, in the Constitution that controversies never arise concerning them. "
"Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left."
https://avalon.law.yale.edu/19th_century/lincoln1.asp
The origins of minority rule: "At the 1787 Constitutional Convention in Philadelphia, Delaware's delegates included Richard Bassett, Gunning Bedford Jr., Jacob Broom, John Dickinson and George Read......While the Great Compromise — establishing a two-chamber legislature with equal weight for state votes in one — kept Delaware involved in the Constitutional Convention, Bedford was shouted down for threatening to locate foreign allies who could assist small states."
https://www.delawareonline.com/story/opinion/2019/12/05/delawares-unanimous-ratification-constitution-masks-real-story-opinion/2601516001/
"the small states were opposed to any change that decreased their own influence. Delaware's delegation threatened to leave the Convention if proportional representation replaced equal representation, so debate on apportionment was postponed"
https://en.wikipedia.org/wiki/Constitutional_Convention_(United_States)
".. it is remarkable how applicable Lincoln’s condemnation of secession is now to the party he helped establish. Secession, the 16th president explained in his first inaugural address, was “the essence of anarchy.” A majority, restrained by the constitutional rights of minorities, was “the only true sovereign of a free people.” Those who reject the will of the majority invite chaos and tyranny. Unanimity is impossible, Lincoln concluded, and “the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy, or despotism in some form, is all that is left.”
https://www.washingtonpost.com/outlook/2020/12/16/republican-party-now-has-more-common-with-southern-minority-1860/
https://oll.libertyfund.org/quote/thomas-jefferson-on-whether-the-american-constitution-is-binding-on-those-who-were-not-born-at-the-time-it-was-signed-and-agreed-to-1789
Having recently spent decade in NE Kansas (Sunflower State),
I recalibrated my #TrueNorth moral gyro compass:
>>
The sunflower plant has given people joy for tens of thousands of years, by virtue of its beauty,
but also for all the cool things it gives us.
<<
https://mygardenandgreenhouse.com/food-crops-edibles/how-sunflowers-bring-joy-to-your-life/
Re: Gorsuch’s “man out of the West” perspective:
>>
Gorsuch's background primed him to break from the other conservatives on Native law and defend tribal sovereignty.
In a recent dissent, Justice Neil Gorsuch blasted his conservative colleagues' ruling on Native law.
As a judge in the West, Gorsuch was exposed to many cases involving tribes and Native people.
Experts told Insider that background helped Gorsuch develop a deep understanding of Native law.
<<
https://www.businessinsider.com/why-neil-gorsuch-clashes-conservative-justices-native-law-tribal-sovereignty-2022-7
They didn't see a constitutional problem with institutionalizing racism either. And the majority decision in 1973 is exceeded only by Dred Scot in its universally understood position as a terribly reasoned decision.
Well written and thoughtful as always. There has always been an emotional outpouring following SCOTUS decisions which were painted as "drastic" before the outcome was decided, but after emotions cool the dire predictions typically fail to materialize. What is more likely, as society shifts often in unexpected ways is a new path around...it simulates the carnival game of WACK-A-MOLE more than we would like.
Your point about reading decisions, both, is important. Steven Breyer wrote a great book showing how dissenting opinions affected legal shifts often as much as the majority and Ruth Bader Ginsburg relished the task of educating in her opinions. But, what I enjoy the most is watching a justice mature in the job as they learn how to influence from the bench. In some cases they become grumpy and inflexible, but in most cases they become deeper thinkers in their opinions and how they act from the bench.
I can't even begin to understand the statement "what we have today was never envisioned by the Founders" coming directly after "two Senators regardless of population". That was the intent then, and it is the intent now.
When precedents are clearly unconstitutional acts, they should be reversed.
I'm not sure we're going to see a huge outcry on the affirmative action case, other than perhaps more scrutiny on "legacy" college admissions. I do think we need to do more to make college affordable, if for no other reason than other countries we compete with do this.
The Colorado case is baffling and would seem to open the door to denying service at restaurants and other businesses to those the proprietors don't approve of --- blacks? Jews? red-heads? If decided on free speech grounds, then a sign in the front window or blurb in a menu stating groups that will not be served is their "free speech" attempting to discriminate against protected groups.
Now we hear that the "web designer" hasn't designed any websites yet and that the single "customer" never actually asked for service. If I provide speech-writing services via a web site, I'm providing a service for a fee. There's no presumption that I subscribe to the ideas being presented in the speech ( reminds me of defense attorneys). Most wedding design websites are free and even if paid, why would the designer's name need to appear in the wedding announcement?
Overall, the conservatives on the court are out of step with where this country is going ( demographically and otherwise.) Whether they can continue to insist on interpreting things as if it's still 1776 remains to be seen.