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Len Edgerly's avatar

Makes sense. I wonder if you've had a chance to read this article in the Yale Law Review urging a structural reform of the Supreme court not designed to re-balance by ideology but to buffer the court from existential battles in the Senate over every opening. Link: https://www.yalelawjournal.org/feature/how-to-save-the-supreme-court

Mayor Pete mentioned this idea frequently in his campaign, and it was always misrepresented as his willingness to "pack the court." Far from it. I think he was pointing toward a more lasting redesign of the court, so neither side would feel the need to pack the court in order to make it more fair.

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HG Jenkins's avatar

I agree in part. Though, I would argue that SCOTUS is not necessarily ‘preventing’ the enactment of healthcare, safety-net programs, and such based on ideological grounds. It seems that our respective views of the court’s proper role create the divergence we see today.

Depending on which political prism through which one sees the world, one will see the role of the court as more of an ‘injustice preventer’ or more as ‘constitutional guide rail’.

I am no right-winger but I do think the conservatives (and originalists) have the better of the argument here. The law should be applied according to its plain language and intent. It is the responsibility of congress to change it where needed (their failures to not do so are manifold in my opinion). The effective rule of law requires as much.

Viewing the court’s role as substantive (‘injustice prevention’) undermines the rule of law by muddling the respective roles of the branches of government and preventing the system of checks and balances from working properly. Essentially, the court becomes an extension of the legislature.

As far as I can tell, that (1) lets the legislature off the hook from doing their job by allowing the court to do it for them and, as a consequence, (2) politicizes the court in a way that undermines the rule of law by focusing on the end results of their rulings instead of the legal reasoning.

I am open to being proven wrong here and I hope someone takes me up on it!

Cheers

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