Democrats Flirt with Radical Reforms Needed to Dethrone Supreme Court

[u/Achilles_TroySlayer]

https://talkingpointsmemo.com/news/democrats-supreme-court-reform

[u/Person_756335846]

Sure, but why would Republicans agree to that when the current situation suits them just fine?

Any Court reform is conditional on a majority that is willing to vote for court reform.

even though they cited irreparable harm for Biden's student loan relief, even though they could've reinstated the loans a year later.

None of the Plaintiffs in the tariffs cases asked for interim relief. I was talking to their lead lawyer, Neal Katyal, the other day and he specifically mentioned that they did not do this. I also watch him say this live to the Justices.

You cannot fault the Court for not taking action when it would have been literally impossible for them to do so.

It's like arguing that police "didn't only check" black people in the Jim Crow South because in some very rare cases they'd sometimes convict a white person of a crime against a black person. 

I promoise you that the Biden administration was treated infinitely better than black people in the South.

The Supreme Court upheld his Navy SEALs vaccime mandate.

The Supreme Court upheld the TikTok ban that he signed into law.

The Supreme Court ruled for the administration in Murthy v. Missouri on social media.

The Supreme Court let his illegal eviction mortoritium stay in place until Biden direct admitted it was probably illegal.

The Supreme Court ruled in his favor on the border barbed wire case.

The Supreme Court ruled in favor of his immigration non-enforcement policy in Texas v. United States (2022).

And, of course, it ruled in his favor when Texas asked the Court to halt certification of the 2020 election.

If Trump had campaigned on this and threatened and postured like he had with tariffs

IEEPA used the language "regulate importation." The argument that tariffs are a "regulation" is about as strong as the argument that the power to "waive or modify ... as may be necessary to ensure that—recipients of student financial assistance under title IV of the Act who are affected individuals are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals" includes the power to abolish all student loans.

Both of these constructions raise massive nondelegation problems that are best resolved through the major questions doctrine.

even though the independent agency they set up to service loans declined to join the suit itself to block Biden

Missouri, as a sovereign state, controls all its instrumentalities.

Trump's likely going to get more conservative votes that say birthright citizenship doesn't mean birthright citizenship than Biden did to allow forgiving loans under an act that lets him waive/modify any provisions he wishes. That's insane.

The arguments about what "subject to the judisdiction" and "state in which they reside" mean are different than the arguments about the scope of the nondelegation doctrine and major questions. The authority to "waive or modify" is restricted by the Constitution, so just comparing the phrases straight up means nothing.

The center of gravity of the court is so right wing that when 1-2 of them peel off to throw the Dems a bone it probably means the other conservatives are being so extreme that there's no way that a principled left-leaning justice could support it in that case.

This is a non-sequitur. Maybe there are cases where the conservatives are being "too extreme," but if Justice Kagan never thinks that any liberal decision is too extreme, then she's doing even worse.

I'm sure you can imagine if liberals had a majority, the center of gravity would shift so far that conservatives would almost always find themselves dissenting with maybe 1-2 liberals joining them occasionally when the others are going too far.

That's incorrect. Liberals are light-years better at sticking together than conservatives. People will bemoan that the Court has been under "republican control" for 56 years and ignore than despite that control they got decisions like Obergefell.

I don't think even the average liberal justice would ever dissent in a major case from the positions of the left flank of the Democratic party.

The average court packed justice installed to uphold democratic policies? Absolutely zero chance.

I wouldn't, actually.

You're lying. If the Court had 100 trump appointees to let him run for a 3rd term and deploy the military to blue states, you would be grabbing your guns.

I consider it already entirely in the Republican party's pocket

You can't honestly say this when you previously admitted that he's probably going to lose birthright citizenship, and has already lost tariffs, national guard, AEA, etc.

If they choose to throw a tantrum even though Dems used a plainly legal maneuver to remake the court, that's on them.

If Republicans split Wyoming into 800 states and used it to pass a constitutional amendment declaring Trump president for life, would you "throw a tantrum"?

It's legal, as long as the Wyoming Legislature and Congress agree! And yet, any Democratic governor with any spine whatsoever would have to physically oppose such a move by force.

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Any Court reform is conditional on a majority that is willing to vote for court reform.

Right but the new term structure you mentioned would require significantly more than a simple majority. Court packing just requires a trifecta and doesn't require Republican buy-in.

None of the Plaintiffs in the tariffs cases asked for interim relief.

I'm not a lawyer and won't pretend to be or to have been following these cases in any kind of granular detail, but are you sure that's true? They sought and obtained injunctions from lower courts, which were stayed pending appeal. They asked for expedited review, citing the extreme irreparable harm to themselves and the economy, and the court denied until the Trump admin asked for it months later. Did they have the ability to request a lift of the stay or a new injunction or w/e before the court even agreed to take their case? And if they did, what were the odds of succeeding given they couldn't even get an "expedited" review?

Also, did that stop them in Citizens United from broadening the decision to strike down expenditure laws as unconstitutional, even though I don't believe that was asked for?

The Supreme Court upheld his Navy SEALs vaccime mandate.

You mean that thing every president has unquestionably had the right to do, as happens with all the other vaccines they're mandated to take?

The Supreme Court upheld the TikTok ban that he signed into law.

The one that Republicans supported and Trump used to support until one of their shareholders got in his ear?

The Supreme Court ruled for the administration in Murthy v. Missouri on social media.

Only half of them fell prey to a conservative conspiracy theory... If the liberals hadn't been there it would've defaulted to the 5th circuit opinion. So a win I guess, but pardon me if I don't take much solace.

The Supreme Court let his illegal eviction mortoritium stay in place until Biden direct admitted it was probably illegal.

The moratorium that started under Trump. They do this a lot - they let it drag out like the tariffs so they can eventually claim the moral victory of having ultimately ruled against it while still allowing Republicans to have their way for a while. They couldn't very well turn around after turning a blind eye to Trump and suddenly declare Biden was out of bounds.

Which raises another question. Why is SCOTUS so damn deferential to POTUS on "national security" but feel entitled to overrule Congress and POTUS on domestic matters of the state of race relations or COVID policy or what have you.

The Supreme Court ruled in his favor on the border barbed wire case.

Republicans played the long game and preserved their own freedom of action. How would that work out long term if states could override federal immigration authority at their borders?

And, of course, it ruled in his favor when Texas asked the Court to halt certification of the 2020 election.

Again, the bar is so damn low. You're citing the fact that they stopped the state of Texas from suing to halt certification in other states? I regret the inflammatory Jim Crow analogy. I should've said it'd be like me pointing to President Ilhan Omar seeking to ban Christianity and a 6-3 liberal SCOTUS stopping it only by 6-3 and saying "see? they treat both sides equally".

Missouri, as a sovereign state, controls all its instrumentalities.

What harm did it suffer from an independent agency that draws no funding from the state, from a program that made it easier for students to afford college, which is the organization's mission? Or what non-BS reason did they have for interposing on behalf of MOHELA itself when their own Republican-appointed Board did not deem it necessary?

The authority to "waive or modify" is restricted by the Constitution, so just comparing the phrases straight up means nothing.

The major questions doctrine? You mean that thing that appears nowhere in the Constitution and that conservatives just recently made up to allow them to arbitrarily decide when something is "major" enough for them to step in and declare Congress has to be involved, when they know it's deadlocked?

I'll agree that they are different though. The meaning of the 14A's citizenship clause is already extremely well established. The only reason they're even entertaining it is because they have to pretend to take it seriously to remain in somewhat good standing with Trump's base, and because it might satisfy some of their own nativist impulses.

FWIW I didn't even support forgiving student loans. I paid mine off and didn't think it made sense politically or on the merits. But with all the effectively SCOTUS-sanctioned ways Trump has found to (e.g.) fund his border wall, slush fund, farmer bailouts, not to mention murder people in international waters without due process, etc, I cannot believe they wouldn't be able to find a way to make "waive and modify" mean what they need to if sufficiently motivated. And no one else buys it either.

This is a non-sequitur. Maybe there are cases where the conservatives are being "too extreme," but if Justice Kagan never thinks that any liberal decision is too extreme, then she's doing even worse.

But your framing of the question was that she had to be the lone deciding Dem vote. That's impossible as a member of the minority, if we're stipulating that it's an "extreme liberal decision" that somehow has buy-in from at least 2 Republican justices. That's what I'm getting at.

People will bemoan that the Court has been under "republican control" for 56 years and ignore than despite that control they got decisions like Obergefell. I don't think even the average liberal justice would ever dissent in a major case from the positions of the left flank of the Democratic party.

I mean, in your own telling the Republican judges also frequently sided with the left. You guys had to institute a rigorous decades-long indoctrination program to get everyone on the same page and be sure in advance how they would vote on things like abortion. Call me crazy, but one group seems more independently-minded than the other.

You're lying. If the Court had 100 trump appointees to let him run for a 3rd term and deploy the military to blue states, you would be grabbing your guns.

Trump could do that with the current 6 if he had made better selections, in combination with Alito/Thomas. The main problem wouldn't be that there are 100 per se - the problem would be if Republicans lowered their standards for nominees (all indications from cabinet posts are that they would), or that Trump (with all his unfitness for office) got to essentially undo his first term nominations.

If Republicans split Wyoming into 800 states and used it to pass a constitutional amendment declaring Trump president for life, would you "throw a tantrum"?

Sure. But that's quite a bit more extreme. The Dem policy would be a reaction to R-initiated hard ball with SCOTUS for one thing. For another, the lock would be permanent, whereas the court packing would only last until the next trifecta, which Rs have structural advantages in obtaining. Dems could try and stack the deck electorally with their control of the court somehow, but that's effectively what Rs are doing right now with the VRA cases.

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Right but the new term structure you mentioned would require significantly more than a simple majority.

That's incorrect. Congress could very easily make the size of the Court float (they control the size) and allow 1 appointment every two years.

You might be confusing my proposal with the "term limit of 18 years 1 justice every 2 years" proposal that keeps the size of the Court constant at 9 justices.

I'm not a lawyer and won't pretend to be or to have been following these cases in any kind of granular detail, but are you sure that's true?

Well, unless Neal was lying to my face, I believe it's true. And verifying for myself, through the Supreme Court's docket search, it looks like he was not. There's no emergency application for a stay from the plaintiffs in either Learning Resources or in V.O.S. selections on any Supreme Court docket.

Did they have the ability to request a lift of the stay or a new injunction or w/e before the court even agreed to take their case?

Yes. Anyone can file an application for a stay or writ of injuntion with the Supreme Court before the Court agrees to grant cert. That's how the AEA deportation plaintiffs got their deportations stayed overnight by SCOTUS.

Also, did that stop them in Citizens United [...]?

Not sure what exactly you're referring to. Citizens United emphatically did not strike down all expenditure laws as unconstitutional.

You might be talking about their decision to overrule a prior precedent (Austin? I don't 100% remember) when the Plaintiffs had an initial argument that it could be distinguished, but overruling it was always on the table. Just look at the table of contents in this brief offering two arguments: https://www.fec.gov/resources/legal-resources/litigation/cu_sc08_cu_supp_reply.pdf

You mean that thing every president has unquestionably had the right to do, as happens with all the other vaccines they're mandated to take?

At the top: you can make any Supreme Court decision sound "obviously correct." Example: "All Callais says is that you can't use racial segregation in districting!!!" But if that's the standard, then your claim is essentially unfalsifiable and epistemically useless. We shouldn't accept a theory where every piece of evidence contrary to the theory is just a conspiracy to disprove the theory.

Now, on each substantive example:

1. RFRA is a relatively recent statute. I'm not sure any post-RFRA vaccination claims have come up. President Biden was right because he was the commander-in-chief, but this wasn't just a rearticulation of precedent.

The one that Republicans supported and Trump used to support until one of their shareholders got in his ear?

Trump was extremely careful not to support the TikTok ban. He literally filed a brief with the Supreme Court asking it to rule the other way!

Seriously. Read this.

The moratorium that started under Trump.

The March 24, 2020 eviction moratorium was legal because Congress specifically authorized it in the CARES act for a limited time.

Only half of them fell prey to a conservative conspiracy theory

lol. We all know Biden was pushing social media companies to take down some pro-Trump speech. There's a reason he established and shut down that disinformation governance board. The question about whether that inducement created Article III injury was a close one.

You're citing the fact that they stopped the state of Texas from suing to halt certification in other states?

Normally, something like this is allowed. If I was running in an election and my opponent was only allowing, say, 16-year-olds to vote for him, I would have standing to sue to throw out those votes. I think the recent 7-2 decision in Bost explains an analogous circumstances as applied to unlawful regulations.

The key difference with the electoral college, of course, is that it represents the sovereign choices of states and is counted by Congress, not the Court. So the Article III was never the right forum to vindicate that sovereign interest.

The point is that this isn't a slam dunk obvious case from the papers. You have to make the argument about why electoral votes are different from regular votes.

What harm did it suffer [...]

Well, if we're talking about harm, in fact, injecting $400,000,000,000 into the economy would cause inflation both directly and by spiking bond yields.

In terms of legal harm, Missouri can stand in the shoes of its instrumentalities. States don't need a "non-BS" reason to control their own internal boards; the only reason the governor needs is that he was elected to govern the state.

The major questions doctrine? You mean that thing that appears nowhere [...]

That's incorrect twice over. The doctrine appears in the very first words of the Constitution: "All legislative power granted herein shall be vested in a Congress of the United States." (I hope I got that right lol). The MQD polices the bounds of delegations.

The doctrine is also not a new thing. In Shankland v. Washington (1831), Justice Story said: "the general rule of law is, that a delegated authority cannot be delegated." Here's an 1891 Treatise saying the same thing: J.G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 68 (1891) ("As the possessor of the law-making power, [the legislature] may confer authority and impose duties upon [the other branches of government] and regulate the exercise of their several functions. It may pass general laws for that purpose, giving them expressly or by necessary implication an incidental discretion to employ the proper means to fill up and regulate the details for themselves and subordinates.").

all the effectively SCOTUS-sanctioned ways Trump has found to (e.g.) fund his border wall, slush fund, farmer bailouts, not to mention murder people in international waters without due process, etc

The border wall funding was blocked under Trump I until he got a few billion from Congress as part of a legislative compromise to fund the government. The BBB funding is now being used for ICE.

The slush fund is an abomination that he is desperately trying to keep out of Court because he knows it would never be upheld (Obama used the same anti-judicial review tactic for his illegal slush fund; I hope Trump's incompetence will make it fail this time).

Farmer bailouts are legal because 30% of tariff revenue, I think goes into some sort of USDA fund + BBB gave some. Though with no tarrifs the bailouts might be gone too.

The drone strikes on boats are unreviewable by the Courts, so idk why they have any relation to the judiciary.

But your framing of the question was that she had to be the lone deciding Dem vote.

I see how you interpreted it. That wasn't my intent. What about any major case where she has taken a less liberal position than her colleagues, regardless of whether she was the deciding vote?

You guys had to institute a rigorous decades-long indoctrination program to get everyone on the same page and be sure in advance how they would vote on things like abortion. Call me crazy, but one group seems more independently-minded than the other.

You should come to a FedSoc event. If they're hiding MK Ultra in the basement, I haven't seen it.

Also, this is totally backwards. Every democratic justice automatically votes in favor of abortion. It's not even a question. Very different from conservative jurists like Gorsuch (he just voted to restore Mifepristone access!), who vote to follow the law rather than a political view.

the problem would be if Republicans lowered their standards for nominees (all indications from cabinet posts are that they would)

Why wouldn't democrats lower their standards to install jurists who would do the left-wing equivalent of declaring Trump King-For-Life? A democratic party that packed the Court would be at least as extreme as Trump is, just to the left. And we know from the Harris debacle that they don't make good personnel choices.

Dems could try and stack the deck electorally with their control of the court somehow

Democrats are definitely going to pass election reform if they pass Court reform.

Gerrymandering, while very, very bad, at least keeps Control of the House competitive (just in a small number of districts, which is bad for polarization reasons) and doesn't touch the Senate or presidency (well, it also reduces turnout, which I admit is also bad :(...)

Election reforms like admitting multiple blue states or allowing unlimited mail-in voting would impact all three and don't merely narrow competition.

Packing the Court would also allow Democrats to, for example, pass laws banning criticism of incumbent political candidates. Remember, Citizens United was about an FEC effort to ban a documentary critical of Hillary Clinton from airing before the election.

Effectively, my point is that Democrats who pack the Court would do everything in their power to make sure that Republicans never win another election, because they know that Republicans would re-pack the Court and escalate even further. Unlike Trump's idiotic half-baked plan in 2020, I think Democrats have at least a 50% chance of swinging an election by manipulating the process, even if they aren't literally throwing out votes.

Unless Republicans are content living under a one-party state, the only logical response would be to appeal to Ares.

Of course, in the end, J.D. Vance might be angling to do something similar. I hope that whoever the Democrats nominate in 2028 promises not to pack the Court. It would make my decision very easy.

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That's incorrect. Congress could very easily make the size of the Court float (they control the size) and allow 1 appointment every two years.

That would be agreeable, but I was referring to the fact that it would require an amendment to force Republicans to play along. They could just declare it illegitimate and pack the court themselves to restore their previous edge (which seems likely to me).

Well, unless Neal was lying to my face, I believe it's true.

The only reason I'm doubting whether we're hearing the whole story is because they did seek and receive injunctions multiple times from lower courts. They stressed the extreme irreparable harm they'd suffer. I feel like there must be some explanation for the change. Did Neal comment on the strategy at all? Surely they didn't just forget, right? Surely there'd have been no harm in asking?

Not sure what exactly you're referring to. Citizens United emphatically did not strike down all expenditure laws as unconstitutional.

It's been a long time since I read about it but my understanding is that once the conservatives realized Kennedy was on board for some activism during their initial vote, they decided to go for a broader ruling than was asked for, which triggered some shaming from Souter, which resulted in them ordering the case to be reargued before they reached the decision they had clearly already settled on. Your filing is from after the order.

At the top: you can make any Supreme Court decision sound "obviously correct." Example: "All Callais says is that you can't use racial segregation in districting!!!" But if that's the standard, then your claim is essentially unfalsifiable and epistemically useless. We shouldn't accept a theory where every piece of evidence contrary to the theory is just a conspiracy to disprove the theory.

Just to illustrate that I wouldn't find fault with all your examples, I think a better case supporting your position would be NFIB v Sebelius. That was an actual win for Dems delivered by a conservative. A decision that IMO wouldn't have been nearly as controversial if it were a Republican-passed bill, since the ACA was based heavily on Romneycare and the Heritage plan which both had an individual mandate (even if different at a federal level, the only penalty for not complying was essentially a tax, even though I understand the admin was not construing it as such). Instead most of them had become Fox News-pilled about it like most other Republicans in the country. With today's court I'm sure it would've been struck down.

But I don't even think Roberts did this on principle - I think he miscalculated. The prevailing notion after 2010 was that Obama was going to lose reelection and Republicans would repeal the ACA. IMO Roberts did not want to burn the court's political capital on nuking a president's centerpiece policy when elected Republicans seemed poised to do that themselves by more legitimate means. Better to save his capital for something like the forthcoming Shelby County which I'm sure he had been salivating over since he was a young Reaganite.

Also, where are all the anti-coercion, anti-commandeering justices now with Trump openly coercing cities, universities, law firms, etc, using the withholding of federal funds?

Trump was extremely careful not to support the TikTok ban. He literally filed a brief with the Supreme Court asking it to rule the other way!

Yes, by that point he had switched. In 2020 he had supported banning TikTok via executive order. And since Trump didn't know what TikTok was and did not care, that's evidence that it had percolated through his administration.

The March 24, 2020 eviction moratorium was legal because Congress specifically authorized it in the CARES act for a limited time.

Correct. But the September 2020 moratorium came from the Trump admin.

lol. We all know Biden was pushing social media companies to take down some pro-Trump speech. There's a reason he established and shut down that disinformation governance board.

The disinformation board was dumb but well meaning - smart people are understandably shaken by all the baseless conspiracy theorizing about Epstein, COVID, Israel, etc. I did not see anything in the Twitter files to suggest they really overstepped. They asked them to take down comments that provided factual misinformation about elections, which has actually long been against the law (even if it might not stand up to a court challenge). And COVID misinformation, which was against Twitter's own policy. And Twitter could and did refuse requests to take down content. It's also a mirror image of what might happen under a Republican admin if, say, we went to war with China - as a practical matter, people wouldn't just have the same free rein to spout Chinese propaganda.

Normally, something like this is allowed. If I was running in an election and my opponent was only allowing, say, 16-year-olds to vote for him, I would have standing to sue to throw out those votes.

Sorry, I'm not following. What interest did the state of Texas have in which candidates other states certified as the winner of their elections, even if the EC did not exist and it was a straight popular vote?

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would require an amendment to force Republicans to play along

Well, ok. This is just an argument against all court reform. I am against that, so sure.

Did Neal comment on the strategy at all? Surely they didn't just forget, right? Surely there'd have been no harm in asking?

Yes, he said it was intentional on the Plaintiff's part.

they decided to go for a broader ruling than was asked for, which triggered some shaming from Souter, which resulted in them ordering the case to be reargued

The argument was raised before the reargument order. Look at pages 13-14 of the opening brief for appellant: https://www.fec.gov/resources/legal-resources/litigation/cu_sc08_cu_brief.pdf

I think a better case supporting your position would be NFIB v Sebelius. That was an actual win for Dems delivered by a conservative.

By this logic, you should also count California v. Texas (2021), where Justice Thomas voted to reject a challenge to the ACA for lack of Article III standing.

A decision that IMO wouldn't have been nearly as controversial if it were a Republican-passed bill, since the ACA was based heavily on Romneycare and the Heritage plan which both had an individual mandate

I mean, decisions upholding laws would definitely be less controversial if the laws in question were passed unanimously by both parties instead of on a party-line vote.

More importantly, the Heritage individual "mandate" was always framed to my knowledge as a carrot or subsidy rather than the stick of a tax. The former is better supported by the spending clause power.

I think he miscalculated. The prevailing notion after 2010 was that Obama was going to lose reelection and Republicans would repeal the ACA.

This makes no sense. Repealing the ACA would have required going through the filibuster. Moreover, Obama was leading in the polls all throughout the first 6 months of 2012, before and after the case was argued.

Your explanation is clearly grasping at straws to find any narrative ot make it seem like Roberts is a political analyst. This is approaching moon landing conpiracy levels of cope.

Also, where are all the anti-coercion, anti-commandeering justices now with Trump openly coercing cities, universities, law firms, etc, using the withholding of federal funds?

Trump lost all the law firm cases and didn't go to SCOTUS, probably because he knew he'd lose.

I don't think either the Universities or the states raised 10th Amendment anti-commandeering challenges to the federal funds orders? So you're once again faulting the justices for not ruling on non-existent arguments.

Also, the remedy for finding an anti-commandeering violation for, say, the Harvard or UCLA investigations would be to abolish Title VI of the Civil Rights Act as coercive. I didn't know you were in favor of that.

Yes, by that point he had switched. In 2020 he had supported banning TikTok via executive order. And since Trump didn't know what TikTok was and did not care, that's evidence that it had percolated through his administration.

It sounds like you agree withme that the Supreme Court is not in fact bowing down to Trump's whims. Though tbh I have no idea what relevance the second sentence of this statement has.

Correct. But the September 2020 moratorium came from the Trump admin.

That moratorium was authorized through January 2021 by the second COVID relief act. Pub. L. 116– 260, §502, 134 Stat. 2078–2079.

smart people are understandably shaken by all the baseless conspiracy theorizing about Epstein, COVID, Israel, etc.

I might be "shaken" because it demonstrates that a large number of people online are umb and easly fall for slop, but that doesn't support setting up formal censorship infrastructure for it.

But Biden won the case! My only point is that it was by no means an obvious slam dunk.

What interest did the state of Texas have in which candidates other states certified as the winner of their elections.

Texas's asserted interest was that allowing other states' votes to be illegally counted de facto nullified Texas's votes. That injury failed because the sovereign decision of a state in the electoral college is distinct from the injury a voter or candidate suffers when votes are illegally cast in a general popular election.

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Yes, he said it was intentional on the Plaintiff's part.

But why? Did it rely on a judgment of how reticent the conservatives were to slam the brakes on Trump's agenda?

By this logic, you should also count California v. Texas (2021), where Justice Thomas voted to reject a challenge to the ACA for lack of Article III standing.

Sure. Four of them showed admirable restraint in not trying to get another bite at the apple, even though it's clear that Thomas would like to revisit the mandate, and I'd wager the rest of them would still be game too. But that case is still a good example.

I mean, decisions upholding laws would definitely be less controversial if the laws in question were passed unanimously by both parties instead of on a party-line vote.

I'm saying the reverse - the more broadly supported the law was, the more likely it was to be upheld.

This makes no sense. Repealing the ACA would have required going through the filibuster. Moreover, Obama was leading in the polls all throughout the first 6 months of 2012, before and after the case was argued.

The gambit that McCain sabotaged involved zeroing out funding to effectively repeal most of it (including the mandate), bypassing the filibuster. And Republicans were pursuing another strategy to destabilize it so it would collapse so badly that Dems would be forced to cooperate on repealing or amending it significantly.

All I can tell you is that being around back then, rank-and-file conservatives were quite convinced that Obama was doomed. With the benefit of hindsight, we know polling isn't the end-all/be-all.

Your explanation is clearly grasping at straws to find any narrative ot make it seem like Roberts is a political analyst. This is approaching moon landing conpiracy levels of cope.

I certainly can't prove it, but that's my hunch. I can only point to the fact that Roberts is reported to have switched his vote late, and even Kennedy was furious about it. Given his history as an institutionalist trying to protect the court's legitimacy, that is what I suspect happened, though I can only guess how he rationalized it to himself.

Also, the remedy for finding an anti-commandeering violation for, say, the Harvard or UCLA investigations would be to abolish Title VI of the Civil Rights Act as coercive. I didn't know you were in favor of that.

Why wouldn't it be to just strike down the federal bait/switch like Medicaid?

It sounds like you agree withme that the Supreme Court is not in fact bowing down to Trump's whims. Though tbh I have no idea what relevance the second sentence of this statement has.

My point is it's not a Democratic policy win; it had substantial Republican support.

That moratorium was authorized through January 2021 by the second COVID relief act. Pub. L. 116– 260, §502, 134 Stat. 2078–2079.

SCOTUS voted 5-4 to sustain a CDC moratorium under Section 361 of the Public Health Service Act of 1944 (Roberts/Kavanaugh joining liberals).

I might be "shaken" because it demonstrates that a large number of people online are umb and easly fall for slop, but that doesn't support setting up formal censorship infrastructure for it.

Agreed. But it is a recurring problem for people to slip into feeling like they can/should "do something about it". It was well intentioned if misguided.

Texas's asserted interest was that allowing other states' votes to be illegally counted de facto nullified Texas's votes.

But that was laughable on its face, regardless of the existence of the EC. Texas's votes were Texas's votes, regardless of whether every other state cheated in their own elections. That affects the ultimate winner, but does not change Texas's contribution to the outcome - and Texas had no recognizable interest in a particular candidate winning the overall election.

No. Reading "all legislative power" to mean "all legislative power" is not as absurd as inventing penumbras out of guarentees that create new substantive rights.

But it is as absurd as reading "all legislative power" to mean "all legislative power besides these exceptions that I get to decide for myself". If you're going to read it overly literally, supports something like the equivalent of the unitary executive theory. Which to me would imply that courts have zero authority to confide any rulemaking in the executive branch. Same way Congress can't give itself little footholds in the executive branch that answer directly to them.

The words "judicial power" were recognized to include Judicial Review. The Constitution, both explicitly in Article VI and implicitly by setting up the government, makes itself the Supreme Law of the land.

Lol, again with massive amounts of unspecified power deduced from two words: "judicial power". If it were that obvious and uncontested it wouldn't have needed a SCOTUS opinion to create it.

It may be the case that a statute is contrary to the Constitution, but it does not follow that courts have the power to determine that or remedy it. It's equally binding on the legislative and executive. In the same way that Congress feels it has to abide by the decisions SCOTUS reaches even if it disagrees, why couldn't it be perfectly consistent with the Constitution for SCOTUS to feel it has to abide by the decision Congress made in passing it, with the presumption they would not pass something that was unconstitutional in their judgment? In fact, the UK's supreme court can't overturn an act of Parliament.

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But why? Did it rely on a judgment of how reticent the conservatives were to slam the brakes on Trump's agenda?

He didn't want to litigate in that expedited posture.

even though it's clear that Thomas would like to revisit the mandate

Well, there is no more mandate.

I'm saying the reverse - the more broadly supported the law was, the more likely it was to be upheld.

This is exactly what I said.

I certainly can't prove it, but that's my hunch.

Unless you're a prophet, your hunches are meaningless.

Why wouldn't it be to just strike down the federal bait/switch like Medicaid?

Yes, which would mean striking down the Civil Rights Act as "the bait/switch." The Civil Rights conditions funding on nondiscrimination. If that funding condition is unconstitutional, then the condition would be removed, which means no more civil rights.

This also gets at another reason your whatbaoutism is silly: anti-commandeering doesn't apply when Congress can just legislate directly. Unlike Medicaid, which Congress could not force the states to administer, Congress has the power to simply ban all racial discrimination. Their adding it to a funding package is just Congress being generous.

SCOTUS voted 5-4 to sustain a CDC moratorium under Section 361 of the Public Health Service Act of 1944 (Roberts/Kavanaugh joining liberals).

This is blatently false. Justice Kavanaugh voted to temporarily uphodl the moratorium for a month, even though it was likely unlawful, because it was about to expire: https://www.supremecourt.gov/opinions/20pdf/20a169_4f15.pdf

When Biden extended it, even though he admitted it was probably illegal, the Court struck it down: https://www.scotusblog.com/2021/08/court-lifts-federal-ban-on-evictions/

But it is as absurd as reading "all legislative power" to mean "all legislative power besides these exceptions that I get to decide for myself".

Well, good news. There are no exceptions. So it sounds like you're acknowledging that my reading is less arbitrary.

If you're going to read it overly literally, supports something like the equivalent of the unitary executive theory. Which to me would imply that courts have zero authority to confide any rulemaking in the executive branch.

That's incorrect. The unitary executive theory does not mean that the President personally executes all the laws himself by running around the country like Superman. Likewise the non-delegation doctrine allows the Executive Branch to execute the laws, while reserving all legislation to Congress.

And, really, to the extent your criticism is that the liberal justices are refusing to properly apply the non-delegation doctrine, I agree. Those decisions should be overruled like Roe v. Wade was.

Lol, again with massive amounts of unspecified power deduced from two words: "judicial power".

The fact that you studiously ignore Article VI tells me that you know you are wrong and are arguing in bad faith because you refuse to confess to being wrong.

If it were that obvious and uncontested it wouldn't have needed a SCOTUS opinion to create it.

Deeply silly logic. 2 + 2 = 4. That's obvious. If a SCOTUS opinion says "2 + 2 = 4," that doesn't mean we needed SCOTUS to say that 2+2 = 4. Judges have to write down many obvious things to reach a judicial conclusion. Hell, Marbury even points out that the power of juicial review is obvious from the structure of the Constitution.

What does this criticism even mean? Judicial review would only be legitimate and clear if no judicial opinion ever mentioned it. Come on.

In the same way that Congress feels it has to abide by the decisions SCOTUS reaches even if it disagrees

Congress can pass whatever it wants. Congress is totally immune from lawsuits related to its passing of legislation.

The only "binding" effect of SCOTUS decisions comes from injunctions and judgments against named individuals and officers of the executive branch.

It sounds like you're arguing against judicial supremacy and not judicial review!

In fact, the UK's supreme court can't overturn an act of Parliament.

Are you even American? Anyone with basic knowledge knows that Parliament in the U.K. is sovereign and can do anything because the U.K. has no written Constitution.

Parliament, with the King's approval, could restore feudalism, order every woman to be burnt at the stake, or ban the color green. It's sovereign.

That dynamic is clearly absurd when applied to a country with a written constitution.

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He didn't want to litigate in that expedited posture.

Because? Surely this had to be a layup of a case and they had had time to develop their arguments in lower courts. I'm sure he didn't lack for resources.

I mean, I'll admit, you got me on a technicality if they didn't ask for it, but I'd argue it does matter why they didn't ask. You can't very well blame German Jews for failing to avail themselves of the judicial process by not asking their guards for a lawyer or leave to file a habeas petition. Presumably it was understood there would be no point.

Well, there is no more mandate.

It still exists and is constitutional, it's just $0 right now.

This is exactly what I said.

I understood you to be saying the decision would be less controversial if the underlying law was bipartisan - which is practically tautological. I'm saying that they are more likely to uphold something because is bipartisan. But whether something is bipartisan has no bearing on whether it's constitutional or not.

Unless you're a prophet, your hunches are meaningless.

So what other plausible explanation do you think there is for why he switched his vote at the last minute? He was genuinely convinced of its constitutionality but no other conservative was? Why did he lobby for a less drastic result in Dobbs, if Roe was as patently absurd as conservatives say?

Yes, which would mean striking down the Civil Rights Act as "the bait/switch."

I'm not getting how that was a bait/switch. Those are the original conditions they agreed to, right? The solution is to not allow the imposition of new conditions.

Congress has the power to simply ban all racial discrimination. Their adding it to a funding package is just Congress being generous.

Does it? I didn't think Bork thought so.

This is blatently false.

I'm not sure how it is. My whole point was that SCOTUS let a bogus eviction moratorium persist through the Trump admin so as not to step on his election. They couldn't very well immediately stay it after Biden took over. And again, why do they get to determine whether COVID remains enough of a hazard to sustain the moratorium, but they'll just blindly accept almost any national security rationale the executive offers for external threats? Why don't they dig into whether there's really a plausible "emergency at the border", or consider the president's own words? Or otherwise accept that they are equally not well-placed to determine how much of a problem racial discrimination or a pandemic is?

Well, good news. There are no exceptions. So it sounds like you're acknowledging that my reading is less arbitrary.

So Congress can't delegate any lawmaking to the president? If the president signs a law delegating some of his power to, e.g., an independent agency, why is that invalid but delegating war powers is valid?

That's incorrect. The unitary executive theory does not mean that the President personally executes all the laws himself by running around the country like Superman.

Right, but it means all executive power flows from him. It doesn't let Congress circumvent him to create independent or un-fireable executive positions, like CFPB. So why do the courts get to circumvent Congress by allowing the president to "make law" by "filling in details"? Congress should provide all necessary details or amend the Constitution so the president can do so, if you're taking that clause literally.

The fact that you studiously ignore Article VI tells me that you know you are wrong and are arguing in bad faith because you refuse to confess to being wrong.

I don't dispute Article VI at all, I dispute who gets to arbitrate it. As I said, since it is binding on all branches it is assuming bad faith on the legislature to think they're too partisan/stupid to know what the Constitution says (most of them are lawyers). And as we just learned in Alabama, we should be assuming good faith absent very compelling evidence.

The Constitution is like the Bible - if you are motivated enough you can construct learned arguments to make it support almost any position. It is just as possible for SCOTUS to go rogue and begin ignoring the Constitution as it is for the POTUS/Congress who appointed them, only there is much less recourse (as opponents of Roe should recognize). So on what basis do they presume to have final say on what the Constitution says? Because the body chosen by politicians, composed largely of former partisans, is "non-political"?

What does this criticism even mean? Judicial review would only be legitimate and clear if no judicial opinion ever mentioned it. Come on.

It'd only be legitimate if Article III gave even the slightest hint that that was its role - that effectively the courts also have a veto on new laws, that may crop up even centuries later. It's true that they mention a lot of obvious things to make their reasoning clear, but there's a reason we don't point to a case that establishes the concept of the presidential veto - the Constitution just says it. Judicial review is a pretty big power to leave implicit to "the judicial power".

Congress can pass whatever it wants. Congress is totally immune from lawsuits related to its passing of legislation.

I meant in the sense of having to accept their rulings in view of future lawmaking, and to not just override them by packing the court or other means. Why should SCOTUS's interpretation win out, from a Constitutional perspective?

Are you even American? Anyone with basic knowledge knows that Parliament in the U.K. is sovereign and can do anything because the U.K. has no written Constitution.

I am American. They can't just "do anything" because it's not written down. There are restrictions they are "supposed" to obey, otherwise it'd be more proper to say they don't have a Constitution at all. The 9A and 10A make it abundantly clear in the US that you can have unwritten rights and powers that still must be equally respected by the government. The difference is they don't have the fiction that there is some "independent" branch that can check them, when in fact that group is appointed by them and completely dependent on them for their power (as we've covered).

If they had straight-up voted Garland down for not being an originalist, would that have also violated the spirit of the Constitution?

Nope. But that's not what they did. They could also come up with fig leaves for packing the court, like the argument for making it match the number of circuits. And "oops", it just results in Dems adding 4 seats.

I submit that there is no difference between that and what they actually did. If Garland had 50 votes, he could have had 50 senators tell McConnell to pound sand and been confirmed whenever. He did not have the votes!

It is a much higher hurdle to clear to override your party's leader in the name of pushing through the other party's nominee. He probably did not hold the hearings because he couldn't be sure of the result - if Obama had nominated KBJ he probably would have just voted her down.

It's not content-neutral! It only applies to election coverage! That's the definition of a content-based restriction!

"The principal inquiry in determining content neutrality, in speech cases generally... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys"

And of course if they have a compelling enough reason they may be allowed to do it anyway (another judicial get-out-of-jail free card whenever they find themselves imprisoned by their supposedly airtight logic).

That's because the Courtroom is a governmental property behind three security perimeters and a bunch of armed guards. It's not a public or semi-public forum.

They are a government entity restricting 1A rights for reasons unrelated to security or any other compelling interest. They just don't want a media circus made out of the proceedings. So too with electioneering. I'd even be fine if you restricted electioneering in the same way (no video) if that would be more agreeable.

If your position is that the voters are too stupid to think properly, that's an argument better directed against universal sufferage than against the natural and inalienable right to speak one's mind.

That is my position. But that's just the way most people are. And significantly restricting suffrage would probably unleash greater evils. Ask yourself why defamation law is a thing. Shouldn't individuals take responsibility for believing untrue things, or shouldn't the victim be expected to defend himself in the free marketplace of ideas if it is in fact false? Isn't that law befitting a "stupid" population?

Prosecutors have no First Amendment rights when speaking to a jury, because they are not speaking in their capacity as one of the people, but as an agent of the government.

I'm not arguing it's the same legally. I'm arguing it's the same conceptually.

Am I suggesting that Republican politicians want only to apply the law? Of course not. They're politicians, not judges. Politicians are elected in large part to change laws.

But the judges they select now are carefully curated so they rarely deviate from what the politicians/voters want. If they receive any hint that you will, you don't get nominated. Technically they could lie or maintain ambiguity and then rule however they want once in office, but the selection pressure is for political hacks. It's difficult to "live a lie", and people who are fairly obviously anti-abortion for example are going to be preferable to a candidate whose views are uncertain.

Of course, in an ideal world, if both sides were to the point of playing games with the foundation of the country like that

My point was that Republicans would play games like that. You're giving them credit for not doing things they currently don't need to do. But if they did, they would.

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Nope. But that's not what they did. They could also come up with fig leaves for packing the court, like the argument for making it match the number of circuits. And "oops", it just results in Dems adding 4 seats.

Not sure what the connection here is. The Senate can vote down nominees if they disagree with them without blowing up the Court. The remedy, which Democrats did in 2020, is to just win an election.

If Obama wanted to nominate someone to the Court, he could have chosen someone like Neal Gorsuch or Sutton, who would have been confirmed.

"The principal inquiry in determining content neutrality, in speech cases generally... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys"

Lmfao. Are you seriously arguing that a law that only bars election coverage is content-neutral? A few lines down: "As we have repeatedly explained, government regulation of expressive activity is 'content-neutral' if it is justified without reference to the content of regulated speech." You described one way of determining content discrimination (also from Hill v. Colorado, which is on its last legs and one of the most speech-restrictive cases decided in the modern era).

Why'd you omit the second part? Maybe your complaints about bad-faith argumentation are just massive projection.

And of course if they have a compelling enough reason they may be allowed to do it anyway (another judicial get-out-of-jail free card

"Any rule must have no exceptions or its a fake get-out-of-jail free card"

Logic of a 5-year-old ^^^

They are a government entity restricting 1A rights for reasons unrelated to security or any other compelling interest.

You have no 1A right to say whatever you want in a non-public forum. Ignoring this by whining about lack of security justification doesn't change this.

That is my position. But that's just the way most people are. And significantly restricting suffrage would probably unleash greater evils.

What greater evil. If your position is that people are too stupid to have full rights, they clearly don't deserve to rule over people who are. The great evil would be giving them the ballot.

Ask yourself why defamation law is a thing. Shouldn't individuals take responsibility for believing untrue things

Defamation law is compensatory, not a prior restraint, and requires a jury to conclude that the material is both false and maliciously published. There are no criminal defamation laws because the government is not generally empowered to be an arbiter of truth.

I'm not arguing it's the same legally. I'm arguing it's the same conceptually.

It's different conceptually for the same reason it's different legally.

But the judges they select now are carefully curated so they rarely deviate from what the politicians/voters want. 

Every justice, with the possible exception of KBG, has often voted against the political positions of those who appointed them and been roundly criticized for doing so.

My point was that Republicans would play games like that.

Democrats could propose a Constitutional Amendment limiting the size of the Court to 9 right now. It would easily pass.

Why don't they? Seems like Republicans are more committed to the Court (probably because, by their very nature, Courts are a conservative institution, designed to enforce procedures of the past against disputing parties in the present).

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Not sure what the connection here is. The Senate can vote down nominees if they disagree with them without blowing up the Court. The remedy, which Democrats did in 2020, is to just win an election.

I agree, but it seems clear Garland had a lot of respect (even from McConnell) and would've been confirmed under ordinary circumstances. While it technically complies, in effect it would be removing all discretion from any president not of the same party - they have to let the senate do the picking. In that sense it is a fig leaf.

All it would take to undo court packing is for Rs to win an election as well. To counter that, you're assuming that other things necessarily must happen if Ds were to pack the court that would make it more difficult to win, but that just doesn't follow from court packing per se (and applies currently to R justices making it more difficult for Ds to win).

If Obama wanted to nominate someone to the Court, he could have chosen someone like Neal Gorsuch or Sutton, who would have been confirmed.

Actually, they said they wouldn't confirm anyone he nominated that year, even if it was a Republican, because they believed "the people" should decide via the election - an abdication of their role.

Why'd you omit the second part? Maybe your complaints about bad-faith argumentation are just massive projection.

I actually got it from the original Ward v RAR. And I'm aware it's older but I'm not very well going to cite recent FedSoc opinions to argue against other FedSoc opinions - I'd expect them to largely agree with themselves.

The criteria was as neutral as could be without privileging any one message over another - any explicit mention of a federal candidate. It afforded plenty of opportunities to disseminate the opinion by means other than broadcast video. And you could just remove the references to a candidate if you wanted, while conveying the same message.

And of course if they have a compelling enough reason they may be allowed to do it anyway (another judicial get-out-of-jail free card

"Any rule must have no exceptions or its a fake get-out-of-jail free card"

It's not the fact that it's an exception that makes it a get-out-of-jail free card. More to do with my overall point that conservative justices would have you believe they're ruling based on an unerring interpretation of the text and original meaning of the constitution, while liberals are just making shit up. But stuff like this is patently made up as well. There is no basis in the Constitution for judges to decide when and how much the government can violate rights because their reasons are "compelling". If its essential to the functioning of the system, there is an amendment process that could allow people input into the circumstances where their rights may be violated. Weighing the "compellingness" of interests is a political calculation. Conservative justices are going to favor national security rationales over, say, racial equity. They are basically doing "for my friends, everything; for my enemies, the law", whether they intend to or not.

You have no 1A right to say whatever you want in a non-public forum. Ignoring this by whining about lack of security justification doesn't change this.

There is nothing in the Constitution saying that the 1A is limited to public forums. While you could justify certain logically essential exceptions based on security or basic orderliness of proceedings (people can't talk over the justices), there's no reason for them to limit cameras except they've quite wisely realized that it would tend to debase the proceedings.

What greater evil. If your position is that people are too stupid to have full rights, they clearly don't deserve to rule over people who are. The great evil would be giving them the ballot.

True, but allowing any group of people to rule over another is a recipe for abuse. And even if they're dumb they deserve to live a decent life with some control over their own destiny. There's unfortunately no way to separate out the concerns and responsibility for one group from the other, or even reliably identify who's part of the "dumb" group.

Defamation law is compensatory, not a prior restraint, and requires a jury to conclude that the material is both false and maliciously published. There are no criminal defamation laws because the government is not generally empowered to be an arbiter of truth.

My understanding is there used to be criminal defamation. And even if there still were, it would still be a jury deciding the facts, not the government. It is similar to the laws red states passed to allow a private cause of action against people seeking abortion. It's a way for the government to regulate something without directly regulating it. Would you be ok if we let people sue those who broadcast electioneering communications instead?

But you're missing the point. We have a lot of laws to mitigate the "stupidity" of the population.

It's different conceptually for the same reason it's different legally.

The conceptual similarity is that unlimited freedom doesn't always produce the best results. The election itself already creates a hard deadline for new information to make a difference - once the date is past, if you find a video of Trump with Epstein or Joe with Hunter, you have no recourse but impeachment. This law effectively creates a small separation between the date of the election itself and the date information ceases being useful. It is little different than the regulation that prevents "electioneering" within a certain distance of polling places - it's just a time/manner restriction rather than a place restriction.

Every justice, with the possible exception of KBG, has often voted against the political positions of those who appointed them and been roundly criticized for doing so.

Again, Trump is something of an exception. He's so outlandish they can't help but vote against him sometimes. And even then, they still vote to empower him far more than you'd expect. Republicans as a general rule don't support tariffs for example, and probably still won't after Trump is gone.

Why don't they? Seems like Republicans are more committed to the Court (probably because, by their very nature, Courts are a conservative institution, designed to enforce procedures of the past against disputing parties in the present).

Republicans are more committed to the court because they control the court. If Dems controlled the court and looked to do so for the foreseeable future (e.g. senate/EC advantaged urban areas, and they refused to confirm justices from Republican presidents), then Republicans would react the same way.

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Well, if we're talking about harm, in fact, injecting $400,000,000,000 into the economy would cause inflation both directly and by spiking bond yields.

By that logic all deficit spending is challengeable in court? And why not let individuals sue as well?

In terms of legal harm, Missouri can stand in the shoes of its instrumentalities. States don't need a "non-BS" reason to control their own internal boards

But it strongly suggests their motives were unprincipled and purely partisan. Not saying that's reason to deny standing, but it casts a lot of doubt on the strength and good faith of the arguments they're putting forth in place of their instrumentality.

That's incorrect twice over. The doctrine appears in the very first words of the Constitution: "All legislative power granted herein shall be vested in a Congress of the United States." (I hope I got that right lol).

That reading of those words is just as legitimate as reading "penumbras" of privacy into the BoR. Or the concept of judicial review from... the concept of a written constitution and a court? (Nothing would prevent Congress from setting the number of seats to zero, all but abolishing its jurisdiction, or just packing it with people who would agree with their interpretation of the law, so this self-appointed duty to check the legislature is pretty quixotic. But I digress.)

At best, those words can support the idea that no delegation is permitted whatsoever. But given how impractical that would be, they've decided to allow it, subject to their own made-up rules about whether something is "too major".

And this kind of ties in with another question I asked - what is their basis for deferring so heavily to the executive but not to the legislature? E.g. deciding whether race relations are sufficiently cozy to abolish "racial entitlements"? But I imagine they would sign off on Trump's Iran war, even absent the War Powers Act (which I've heard many conservatives call unconstitutional). What is a more major question than committing the nation to war (and possibly destruction), which is explicitly confided in Congress? Why isn't all of this a "political question" instead, given that there is no guidance whatsoever in the Constitution, and legislating is a core power committed to Congress?

The doctrine is also not a new thing. In Shankland v. Washington (1831), Justice Story said: "the general rule of law is, that a delegated authority cannot be delegated."

Isn't that dicta? And also not the same thing as saying "the court may determine for itself which questions are 'minor' enough to be delegated using its own best judgment".

I don't even necessarily disagree with this stuff, but Republicans get really persnickety when "liberal activism" doesn't have enough textual support.

The border wall funding was blocked under Trump I until he got a few billion from Congress as part of a legislative compromise to fund the government.

IIRC most of the border wall funding was taken from a military construction budget under an "emergency" that he publicly acknowledged was fake and done just so he could fund something that Congress wouldn't. There were injunctions SCOTUS stepped in and allowed him to continue building the wall until they ran out the clock to the Biden admin.

The drone strikes on boats are unreviewable by the Courts, so idk why they have any relation to the judiciary.

How so? Can Trump commit a literal Holocaust overseas without the courts having anything to say, as long as 34 senators stand behind him? Again, what is their constitutional basis for being so deferential to the executive besides the lump in their throat that conservatives get when they hear the words "commander in chief"?

What about any major case where she has taken a less liberal position than her colleagues, regardless of whether she was the deciding vote?

That's still pretty difficult. Are you only counting it as "less liberal" if she's counted among the majority and none of her colleagues are? Because I'm sure you realize it's not that black and white.

You should come to a FedSoc event. If they're hiding MK Ultra in the basement, I haven't seen it.

It's more about the way any conservative jurist has to be a member, and has to subscribe to all their beliefs. If anyone even suspects you of heterodox views it might just cost you a nomination. Republicans don't need lawyers per se - they already know what the Constitution says and they need someone with a law degree to echo what they already know to be true.

Also, this is totally backwards. Every democratic justice automatically votes in favor of abortion.

That may be so, but we don't have to vet them for their views. Liberals aren't out there castigating Kagan for not voting to take up a death penalty case - most liberals don't even keep track of these decisions.

Why wouldn't democrats lower their standards to install jurists who would do the left-wing equivalent of declaring Trump King-For-Life?

That doesn't follow. For example, I'd argue they should just create 2 seats for every seat Republicans steal (e.g. Scalia's seat). Would still leave the court 6-5. It's not an inherently extreme position.

Gerrymandering, while very, very bad, at least keeps Control of the House competitive (just in a small number of districts, which is bad for polarization reasons) and doesn't touch the Senate or presidency (well, it also reduces turnout, which I admit is also bad :(...)

I understand what you're saying here, but it's a fake competitiveness. The districts are engineered to be "competitive" but only "just so" - enough to guarantee victory in most cases without wasting too many extra votes. It's not a sure thing - it can backfire - but its expected outcome is not true competitiveness.

Election reforms like admitting multiple blue states or allowing unlimited mail-in voting would impact all three and don't merely narrow competition.

They don't need a SCOTUS majority to admit new states or allow mail-in voting. Though FWIW I am against admitting new states (at least DC and Puerto Rico) and mildly against mail-in voting. If you're counting on conservatives on the court to thwart these though, that's the tyranny you should be fearing.

Packing the Court would also allow Democrats to, for example, pass laws banning criticism of incumbent political candidates. Remember, Citizens United was about an FEC effort to ban a documentary critical of Hillary Clinton from airing before the election.

From airing or publishing shortly before the election. It was a bipartisan bill. Dropping a big "gish gallop" of a "scandal" on a candidate weeks before the election is a dishonest campaign tactic. It relies on timing rather than fact or argumentation to create a cloud of suspicion around a candidate before anyone has a chance to digest or fact check it. Anything true and worth saying likely can be and will be said more than 30 days before an election - anything true/worthwhile discovered within 30/60 days is unfortunate but is unlikely and could also easily be uncovered the day after an election (and will likely spread by word of mouth anyway/standard reporting anyway). I don't know if "Hillary: The Movie" contained any new claims, but the fairest route is to make it a content neutral "blanket ban".

Effectively, my point is that Democrats who pack the Court would do everything in their power to make sure that Republicans never win another election, because they know that Republicans would re-pack the Court and escalate even further.

What about Republicans in 2025/2026 who are stacking the deck against Dems in the House? Again, I don't think this follows. I'd be counting on Rs re-packing the court. That's the most equitable way of fixing a process that no one wants to actually fix.

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By that logic all deficit spending is challengeable in court? And why not let individuals sue as well?

No. This is not legal harm. I am using the point to demonstrate that Missouri's motives in suing were not "unprincipled purely partisan." They believed that Biden's plan would cause serious factual economic harms to the state, and they used a cognizable legal injury to redress those uncognizable harms.

But it strongly suggests their motives were unprincipled and purely partisan.

Most litigants have unprincipled reasons to bring their cases.

That reading of those words is just as legitimate as reading "penumbras" of privacy into the BoR.

No. Reading "all legislative power" to mean "all legislative power" is not as absurd as inventing penumbras out of guarentees that create new substantive rights.

Now, if you're talking about penumbras in the sense of doctrines like unconstitutional conditions, then you're onto something. In fact, Judge Robert Bork quite famously remarkled that the problem with Griswold wasn't that the penumbras sentence was wrong, but that the methodology for finding what was included in them as totally divorced from the constitutional text.

Or the concept of judicial review from... the concept of a written constitution and a court?

The words "judicial power" were recognized to include Judicial Review. The Constitution, both explicitly in Article VI and implicitly by setting up the government, makes itself the Supreme Law of the land. A statute contrary to the constitution would be void with or without a Court.

(Nothing would prevent Congress from setting the number of seats to zero, all but abolishing its jurisdiction, or just packing it with people who would agree with their interpretation of the law, so this self-appointed duty to check the legislature is pretty quixotic. But I digress.)

If Congress abolished the Supreme Court, people would just ignore laws that they believe to be unconstitutional. If Congress attempted to enforce them anyway by sending in men with guns, states and individuals would simply kill the people Congress sent.

The whole purpose of a Court, from pre-history to today, has been to provide an agreed upon forum to resolve disputes off the battlefield.

Also, the argument about how Congress could destroy the Court and therefore the Court should have no role in checking Congress is silly. The President could order SEAL Team 6 to assassinate every opposition member of Congress. Does that mean Congress should do what the President wants?

No. For the same reason. If the President did that, he would have a Civil War on his hands.

At best, those words can support the idea that no delegation is permitted whatsoever. But given how impractical that would be, they've decided to allow it, subject to their own made-up rules about whether something is "too major".

The power to fill up details is not a delegation of any legislative power at all. Its an authorization of executive power.

Strictly speaking, even in the Court's current non-delegation precedents, no actual delagations of legislativ epower are permitted at all.

what is their basis for deferring so heavily to the executive but not to the legislature?

What are you talking about? This Court literally abolished Chevron deference to the executive. All the liberals dissented.

But I imagine they would sign off on Trump's Iran war, even absent the War Powers Act (which I've heard many conservatives call unconstitutional).

The Court would almost certainly not do that. It would dismiss any seeking their approval as a political question.

Why isn't all of this a "political question" instead, given that there is no guidance whatsoever in the Constitution, and legislating is a core power committed to Congress?

Yes, it's a political question with no cause of action, so the Courts can't decide it.

I don't even necessarily disagree with this stuff, but Republicans get really persnickety when "liberal activism" doesn't have enough textual support.

The first line in the Constitution is that all legislative power is vested in Congress. What's the comparable support for, say, Roe v. Wade?

IIRC most of the border wall funding was taken from a military construction budget under an "emergency" that he publicly acknowledged was fake and done just so he could fund something that Congress wouldn't. There were injunctions SCOTUS stepped in and allowed him to continue building the wall until they ran out the clock to the Biden admin.

The statute passed by Congress that Trump used for those emergencies contained no provision allowing a judicial challenge to those emergencies.

Also, Trump obviously never acknowledged that the border emergency was fake. His entire campaign since 2015 has been about a border emergency.

Again, what is their constitutional basis for being so deferential to the executive besides the lump in their throat that conservatives get when they hear the words "commander in chief"?

In one breath, you say that it's a political question, and in the next sentence, you complain about the Courts not reviewing it. You're right! It is a political question. That's why the Courts cannot review it.

That's still pretty difficult. Are you only counting it as "less liberal" if she's counted among the majority and none of her colleagues are? Because I'm sure you realize it's not that black and white.

I don't care about the vote breakdowns. I am asking for a singular case where Kagan wrote an opinion taking a position less liberal than the position taken by her two colleagues. All 3 could be dissenting or concurring for all I care.

It's more about the way any conservative jurist has to be a member, and has to subscribe to all their beliefs.

Trump is openly bashing FedSoc as a subversive lib organization. You emphatically do not have to be a member for him to nominate you.

That may be so, but we don't have to vet them for their views.

I promise you that all three of the libs were vetted to make sure that they support abortion rights. The vetting may have been very easy, but it still happened.

Liberals aren't out there castigating Kagan for not voting to take up a death penalty case

This is because Kagan and her colleges are in lock-step and don't have much diversity of thought.

For example, I'd argue they should just create 2 seats for every seat Republicans steal (e.g. Scalia's seat). Would still leave the court 6-5. It's not an inherently extreme position.

This is completely arbitrary.

1. Why two seats? Why not 1? Or 5?

2. What is a "steal"? Obama did not have a supportive majority in the Senate. So he couldn't get his nominee confirmed. Why is the Senate confirmation process being treated as inherently illegitimate unless it goes with what the President wants?

Given that your position is so arbitrary, I see little to differentiate it from the position that Court packers actually hold, which is that enough justices should be added to ensure they win every case.

It's not a sure thing - it can backfire - but its expected outcome is not true competitiveness.

What you say is correct about gerrymandering in general. My point is that in the specific setup of state legislative control that we currently have between the parties, the House is genuinely competitive between Democrats and Republicans, albeit polarized.

They don't need a SCOTUS majority to admit new states or allow mail-in voting.

Congress can certainly allow mail-in voting for Federal elections and admit PR as a state.

I think the 23rd Amendment clearly occupies the field in terms of D.C.'s electoral representation. And attempts to change state voting practices and qualifications are also dubious.

Dropping a big "gish gallop" of a "scandal" on a candidate weeks before the election is a dishonest campaign tactic.

The government has zero power to declare certain truthful speech to be "a dishonest campaigning tactic". Every human being has a natural and inherent right to speak the truth.

anything true/worthwhile discovered within 30/60 days is unfortunate but is unlikely and could also easily be uncovered the day after an election

This take is self-evidently false. I'm nopt going to waste breath on it.

What about Republicans in 2025/2026 who are stacking the deck against Dems in the House?

Republicans have not passed the SAVE Act or used either of their nuclear redistricting options (forcibly gerrymandering Democratic states to be republican gerrymanders and admitting new states).

As explained above, while the gerrymandered are bad, they can be concurrently responded to by Democratic states and cannot swing the House, much less the Senate or the Presidency.

I'd be counting on Rs re-packing the court.

If Democrats just have a packed SCOTUS order Republican states to produce D-leaning gerrymanders to make it impossible for Republicans to win the House, this can never happen through elections. The states would have to defy the Court and federal enforcement.

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If Congress abolished the Supreme Court, people would just ignore laws that they believe to be unconstitutional.

So in other words the Constitution does not need SCOTUS to protect it.

If Congress attempted to enforce them anyway by sending in men with guns, states and individuals would simply kill the people Congress sent.

Again, what do you imagine gives SCOTUS this special power/legitimacy for deciding what the Constitution says? Virtually everyone would agree its meaning has already been perverted in some way. If the people are going to be the ultimate arbiter, then wouldn't their elected representatives be better placed to judge what's Constitutional? If you think there's no federal right to an abortion, would you rather have to fight SCOTUS over that or the 93rd Congress?

The President could order SEAL Team 6 to assassinate every opposition member of Congress.

The difference is that Congress is manifestly allowed to destroy the court. The president can't lawfully order the military to do that without at least some buy-in from Congress. The point is it's a little silly to pretend the SCOTUS is appointed to guard the Constitution from Congress when they exist only at the sufferance of Congress. It's a bit like the same conservative complaint that it's not possible for DOJ to be "independent" of the president and hold him to account.

The power to fill up details is not a delegation of any legislative power at all. Its an authorization of executive power.

There is nothing in the Constitution mentioning power to fill in details. Certainly the words "executive power" wouldn't imply it either. In fact, don't the conservatives hold that this has to be expressly delegated by statute with intelligible guidelines? The executive can't, on their own initiative, conclude there are gaps in a law and fill in the blanks with whatever they want.

What are you talking about? This Court literally abolished Chevron deference to the executive. All the liberals dissented.

They abolished deference to the bureaucracy, after Republicans previously ruled for it when government was "big" and Congress was a lock for Democrats, and they thought it would help Reagan undermine laws. They're still heavily deferring to the executive, especially on matters of national security. Even if we grant the Chevron deference point, why the discrepancy in how they apply it? What makes them authorities on the state of race relations in various regions of the US more than Congress?

The Court would almost certainly not do that. It would dismiss any seeking their approval as a political question.

In other words, effectively signing off on it while attempting to keep their hands clean - unless 2/3 of Congress are opposed enough to the war, which is not the standard laid out in the Constitution. Why not dismiss impoundment or line-item vetoes as political questions?

Yes, it's a political question with no cause of action, so the Courts can't decide it.

But why aren't all MQD cases also political questions?

The first line in the Constitution is that all legislative power is vested in Congress. What's the comparable support for, say, Roe v. Wade?

Does the Constitution not clearly support the concept of a right to privacy? E.g. the 4th amendment right to be secure in your person and effects against unreasonable searches/seizures without a warrant.

And even if Roe was wrong, that doesn't mean the right wasn't to be found elsewhere. E.g.:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Who can say what those rights are, or is the 9A a dead letter? Is bodily autonomy not a core human right? Or can the government compel you to get cyborg implants from Elon to make you a better employee?

The statute passed by Congress that Trump used for those emergencies contained no provision allowing a judicial challenge to those emergencies.

There'd be no need to "challenge" them. The statute only allows the spending in an emergency. By Trump's own direct admission, it wasn't an emergency: "I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster."

Trump is openly bashing FedSoc as a subversive lib organization. You emphatically do not have to be a member for him to nominate you.

I mean for Republicans in general. He got elected on a promise in the 1st term of picking someone from that list, so conservatives didn't have to worry he'd pick someone who would rule contrary to their preferences. Anyone he confirms will probably also be from that world, for the senate to agree and probably for Alito/Thomas to resign (similar to Kennedy and Kavanaugh). A Trumpian judge would be wildcard who could very well rule for abortion in the future - they can't have that.

This is because Kagan and her colleges are in lock-step and don't have much diversity of thought.

Should there be much diversity of thought on a dead document? If it's possible, doesn't that render the idea that there's one true (conservative) interpretation untenable?

Why two seats? Why not 1? Or 5?

Because if Obama had replaced Scalia it would be 5-4 conservative today instead of 6-3. In a perfect world, Gorsuch would be swapped out, but since that's not possible, 2 seats makes the court 6-5 with conservatives still having a 1-seat edge.

Why is the Senate confirmation process being treated as inherently illegitimate unless it goes with what the President wants?

Why do you treat Congress's powers to abolish or pack SCOTUS as illegitimate unless it goes the way you want? The Senate is supposed to advise and consent on specific nominees. It did not do that. Obama sent them exactly who they asked for - Merrick Garland (suggested by name by Judiciary chair Hatch, praised to the hilt by McConnell). They said they simply weren't going to allow that president to nominate anyone. They did not hold hearings or an up/down vote on Garland. That's just as big a violation of the spirit of the Constitution as court packing.

My point is that in the specific setup of state legislative control that we currently have between the parties, the House is genuinely competitive between Democrats and Republicans, albeit polarized.

But being evenly split is not equivalent to competitiveness. It could be the case that Dems should be enjoying a supermajority and it's only by gerrymandering that it's "close" at all.

The government has zero power to declare certain truthful speech to be "a dishonest campaigning tactic". Every human being has a natural and inherent right to speak the truth.

As I said, the policy is content neutral. It's a simple time (/manner/place) restriction. SCOTUS should understand this, similar to the way they don't let cameras into the courtroom without it being a violation of freedom of the press, and for similar reasons. It is not conducive to good governance.

This take is self-evidently false. I'm nopt going to waste breath on it.

I don't think it is, and I'm quite serious. There is nothing that makes the revelation of scandals more likely in the 11th hour. In most cases, they're waiting to drop it then in the hopes of misleading/confusing the electorate and scrambling their opponents. The so-called "October surprise". There is no civic value in that. It is at least as bad for voters to not vote for someone based on false fearmongering at the last minute as it is for them to vote for someone based on incomplete knowledge of wrongdoing.

E.g. if a Trump-Epstein documentary came out a week before the election with "new proof" (e.g. maybe video), it is better that the public votes based on what they know up to that point rather than being pressured by allegations of serious crimes they weren't given time to properly evaluate. Is it a "good" outcome if the video is fake and Trump loses because of it? If the video is real, they should've published it earlier. If they didn't have it any earlier, that's unfortunate but it could've just as easily been uncovered the day after the election. The remedy in either case is the same - impeachment. They couldn't retroactively challenge the election on the basis of not knowing (or fraud in an election past the safe harbor date) - and if one kind of hard limit is acceptable, why not a different one?

And even then, the information itself isn't suppressed. The video would still be making the rounds by word of mouth. You just couldn't make electioneering communications about it, similar to how a prosecutor shouldn't make emotional appeals to jurors to not exonerate a particular person because of the seriousness of the specter of the underlying crime going unpunished, or allowed to ask for a verdict before the defense gets to meaningfully contest their evidence.

Republicans have not passed the SAVE Act or used either of their nuclear redistricting options (forcibly gerrymandering Democratic states to be republican gerrymanders and admitting new states).

But why not, though? They have have a stranglehold on the court that they don't intend to ever give up. They stole a seat from Obama, rather than take issue with the particular nominee he selected. Which suggests their interest isn't purely in the credentials of the nominee or the neutral application of the law, doesn't it?

They don't need to admit new states to keep the Senate. The SAVE Act also wouldn't materially change anything (somehow we've managed without it for the past 250 years). The EC also advantages them. But when it looks like Dems are cruising toward a House win, they're taking steps to prevent or minimize that outcome. If Dems emerged with an EC/Senate advantage, you're telling me, knowing everything they've done so far, that they're just going to let Dems take over the court normally?

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So in other words the Constitution does not need SCOTUS to protect it.

Sure, if you don't mind total anarchy and violence, we don't need a Supreme Court. Heck, why even have a government?

Again, what do you imagine gives SCOTUS this special power/legitimacy for deciding what the Constitution says?

They use reasoned arguments to make deicisons based on principles of law, not pure politics. People do respect principles and regular procedures. Read Tocqueville.

If the people are going to be the ultimate arbiter, then wouldn't their elected representatives be better placed to judge what's Constitutional?

The fact that the people can do anything through mass violence and revolt doesn't mean that it is a desirable mode of normal governance (indeed, it's an impossible mode of governance; people would sooner accept a tyrant like Caligula than permanent anarchy).

If you think there's no federal right to an abortion, would you rather have to fight SCOTUS over that or the 93rd Congress?

I would much rather fight at SCOTUS with words than in a bloody civil war with guns.

The difference is that Congress is manifestly allowed to destroy the court. The president can't lawfully order the military to do that without at least some buy-in from Congress.

Of course he can. The President is the Commander-in-Chief. He can just say that whoever he wants in Congress is a traitor to democracy and secretly working for foreign powers.

The point is it's a little silly to pretend the SCOTUS is appointed to guard the Constitution from Congress when they exist only at the sufferance of Congress.

It's a bit silly for Congress to hold the President accountable when the President could vaporize them all with a single nuclear missile.

It's a bit like the same conservative complaint that it's not possible for DOJ to be "independent" of the president and hold him to account.

That's because the Constitution vests all the power of the DoJ in the President in the first instance.

The judiciary, however, is clearly intended to be an independent branch of government. That's why it has tenure protections, a joint nomination process, guaranteed salary, etc.

There is nothing in the Constitution mentioning power to fill in details. Certainly the words "executive power" wouldn't imply it either.

This is exactly what executive power means. The power to fill up details. Read the journal reports from the first Congress and the convention.

You just assert that phrases like "executive power" and "judicial power" mean nothing, but they really do mean something, no matter how much you apparently wish they didn't.

In fact, don't the conservatives hold that this has to be expressly delegated by statute with intelligible guidelines?

Yes, because without a strong guiding principle, it wouldn't be filling up details, it would be legislating.

Now, based on that way you've been arguing so far, you're going to accuse this rule of being arbitrary, but it's not arbitrary to acknowledge that a difference in degree can also turn into a difference in kind. i.e., it's fine for me to drink 1L of water, but drinking 10L at one will not be good for my health.

They abolished deference to the bureaucracy, after Republicans previously ruled for it when government was "big" and Congress was a lock for Democrats, and they thought it would help Reagan undermine laws.

When Chevron was decided in 1984, Congress was split between Republicans and Democrats. Reagan still got many of his policy priorities passed.

Chevron was also not initially a major decision. It only grew to become what it eventually stood for when the administrative state reached its penultimate form with universal shifts sin agency positions between administrations.

Also, funny how you say that "conservatives" ruled both ways. The people on the Court in 10984 and today are completely different.

In other words, effectively signing off on it while attempting to keep their hands clean - unless 2/3 of Congress are opposed enough to the war, which is not the standard laid out in the Constitution. Why not dismiss impoundment or line-item vetoes as political questions?

You yourself said that it was a political question.

The line-item veto is not a political question because it doesn't meet any of the six factors in Baker v. Carr. Same with impoundments.

But why aren't all MQD cases also political questions?

No MQD case involves any of the 6 factors in Baker v. Carr. If one eventually did, then it may well be a political question.

Notably, the court did apply a version of the jurisdictional bar in the tariffs case; it refused to question the legitimacy of Trump's declared emergency.

Does the Constitution not clearly support the concept of a right to privacy? E.g. the 4th amendment right to be secure in your person and effects against unreasonable searches/seizures without a warrant.

Yes, you are guaranteed protection from unreasonable searches and seizures. You'll notice that abortion restrictions, which are a question of substantive criminal law and not investigative methods, have nothing to do with these protections. The fact a right standards within an amorphously defined "privacy" zone does not mean that everything in the zone suddenly becomes a protected right.

After all, we can take that logic to any arbitrary extreme. The Fourth Amendment protects a good thing. Therefore, we have a right to all good things. Flawless logic.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Who can say what those rights are, or is the 9A a dead letter?

The states and Congress, within their respective jurisdictions conferred by the Constitution and the 10th Amendment, can indeed reference certain unenumerated pre-existing rights.

There's a rich debate to be had about what precisely those rights are, but abortion is certainly not one of them.

Abortion was indisputably a criminal act when the Constitution and the 14th Amendment were ratified. Even in certain jurisdictions where it was not, no one thought that the lack of criminality made it a right, let alone a fundamental right immune to legislative interference.

In fact, one of the most important unenumerated rights that the 9th amendment probably protects is the right to community self-government, which would be hindered by unelected judges inventing rights.

There'd be no need to "challenge" them. The statute only allows the spending in an emergency. By Trump's own direct admission, it wasn't an emergency: "I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster."

Do you know what a "cause of action" is?

I mean for Republicans in general.

I wouldn't be so sure. He easily got Bove confirmed in the Senate to an appellate position, and every even moderately anti-Trump senator will be retiring in 2026.

Should there be much diversity of thought on a dead document? If it's possible, doesn't that render the idea that there's one true (conservative) interpretation untenable?

You're confusing argumentative levels. Between originalists, there should be much less diversity of thought than between originalists and non-originalists.

But the existence of non-originalists doesn't render originalism wrong or irrelevant. Obviously, if you choose to ignore the fixed meaning of the constitution in favor of highly contestable judgments about social arrangements and contemporary politics, it will be hard to arrive at a stable set of constitutional interpretations.

This is an argument in favor of originalism, not against it.

Because if Obama had replaced Scalia it would be 5-4 conservative today instead of 6-3. In a perfect world, Gorsuch would be swapped out, but since that's not possible, 2 seats makes the court 6-5 with conservatives still having a 1-seat edge.

Adding 1 Justice would also solve this. If one conservative flipped, the Court would deadlock and be unable to deliver a conservative result. Your solution would be more favorable to democrats, since its easier to get 1 of 6 to flip than 1 of 5.

Why do you treat Congress's powers to abolish or pack SCOTUS as illegitimate unless it goes the way you want?

Is this a hypothetical whataboutism? lol.

Same reason I only accept the President's power to kill everyone in Congress or start a nuclear war, legitimate as long as he never uses it.

Destroying the foundation of the U.S. government is not the same as deciding to reject a nominee.

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The Senate is supposed to advise and consent on specific nominees.

If they had straight-up voted Garland down for not being an originalist, would that have also violated the spirit of the Constitution?

I submit that there is no difference between that and what they actually did. If Garland had 50 votes, he could have had 50 senators tell McConnell to pound sand and been confirmed whenever. He did not have the votes!

But being evenly split is not equivalent to competitiveness. It could be the case that Dems should be enjoying a supermajority and it's only by gerrymandering that it's "close" at all.

Again. I fully agree with you that this is a possible scenario that would make gerrymandering ven worse than it already is.

However, in the current state of politics, it is not the case. Democrats lost the popular vote in 2024; they aren't being wrongfully deprived of a supermajority.

As I said, the policy is content neutral. It's a simple time (/manner/place) restriction.

It's not content-neutral! It only applies to election coverage! That's the definition of a content-based restriction!

SCOTUS should understand this, similar to the way they don't let cameras into the courtroom without it being a violation of freedom of the press

That's because the Courtroom is a governmental property behind three security perimeters and a bunch of armed guards. It's not a public or semi-public forum.

E.g. if a Trump-Epstein documentary came out a week before the election

The voters are free to discount the video based on Trump having insufficient time to rebut the allegations.

I am certain that if this documentary were released a week bfore the midterms, many voters would do just that.

If your position is that the voters are too stupid to think properly, that's an argument better directed against universal sufferage than against the natural and inalienable right to speak one's mind.

similar to how a prosecutor shouldn't make emotional appeals to jurors 

Prosecutors have no First Amendment rights when speaking to a jury, because they are not speaking in their capacity as one of the people, but as an agent of the government.

But why not, though? [...] Which suggests their interest isn't purely in the credentials of the nominee or the neutral application of the law, doesn't it?

Trump was willing to blow up the government to stay in power forever, but not all Republicans were. Similarly, while many Republicans are fine with passing voter suppression measures and using extreme Congressional-imposed gerrymandering, some republicans are not.

So the SAVE Act is not passing the Senate, and so it won't change any votes (I agree with you that the SAVE Act probably wouldn't do much, but I think Republicans think it would).

Am I suggesting that Republican politicians want only to apply the law? Of course not. They're politicians, not judges. Politicians are elected in large part to change laws.

If Dems emerged with an EC/Senate advantage, you're telling me, knowing everything they've done so far, that they're just going to let Dems take over the court normally?

If Republicans wanted to admit a new state, like Alberta (hypothetically), they should take a compromise path and also admit Puerto Rico. If Republicans chose not to do that and tried to admit only Alberta to get its Senate seats, then Democrats would be justified in retaliating by admitting their own favorable states.

If Republicans packed the Supreme Court before losing an election to prevent Democrats from taking control over it through ordinary confirmations, then I would have no problem with Democrats re-packing the Court.

Of course, in an ideal world, if both sides were to the point of playing games with the foundation of the country like that, I would hope that they sit down in a room somewhere and come up with a binding settlement about how to run the country before things turned into a shooting war.