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Avoiding the Next 50-48 Vote: Disempower the Court

After the Senate voted 50 to 48 to confirm Justice Brett M. Kavanaugh, Senator Elizabeth Warren tweeted that she was “not going to sugarcoat anything. We lost a tough fight. And it hurts. What happened today will touch every single person in this country, in some very real & terrible ways. But it’s OK to step back for a minute, take a breath, & lean on the shoulder of someone you love.”

Oh, please. For those who were awaiting the permission of a U.S. senator to lean on a shoulder, you are authorized to proceed. For the rest of us, yes, let’s take a breath. If a Supreme Court justice whose nominal job is to apply laws to specific cases is touching “every single person in this country, in some very real & terrible ways,” then we have bigger constitutional problems.

Those of us, including your correspondent, who raised questions about Kavanaugh’s judicial temperament based on his confirmation hearing—and who proceeded to have good arguments with good friends—owe him the opportunity to show we were wrong about that issue. He bears an equal responsibility to prove his defenders on the same questions right, inasmuch as anyone entrusted with power always bears the burden of showing he or she is using it responsibly. All well, all good.

The real question is how to take the bitterness out of these fights. And the answer is to take the power out of the Court. The problem is not public or legislative polarization. It is not the nihilist Democrats or the demonic Republicans. It is not the sad decline of the Senate which, in its former glories, feasted in lush pastures on greener grass.

It is the fact that every Supreme Court nomination is a battle over every issue, especially the most explosive ones, which have been shunted to the courts. Imagine an omnibus bill attempting to resolve abortion, same-sex marriage, health care, campaign finance, the scope of presidential investigations and more with a single up-or-down vote in the Senate on which amendments were not allowed and compromise, by the nature of the measure, was impossible. Chances are, outside groups would spend some money. Dander would rise. Tempers would flare. Accusations would be made.

No one would think that healthy for the institution of the Senate or for a regime of self-government. Yet that is increasingly how every judicial nomination appears.

Yes, this one was accentuated by the replacement of the swing justice Anthony Kennedy with the originalist Kavanaugh. But there is always a swing justice on a 5 to 4 court, which is itself a problem. The Court is so empowered that the justice who can deliver a fifth vote on a closely divided body is him- or herself immensely powerful. That creates a temptation, in this fallen world, to forsake clear principles and predictable law in favor of swinging between blocs.

There is no answer but to return to Publius’ regime, one in which Congress makes law, the President executes it and the courts apply it to specific cases. Self-government supplies an adequate normative basis for such a return, but there are others.

In addition to dispersing rather than centralizing power, congressional government would lower the stakes of elections and nomination battles. In that sense, it would be the most effective campaign-finance reform plan available: It would make impossible, and therefore discourage, anyone’s depressing a single lever in hopes of altering the entire regime or a wide range of its policies.

This return to congressional rather than judicial government should entail judicial self-restraint. Every occupant of political office ought to have an understanding of that office’s proper boundaries. The separation of powers model of Federalist 51 does not, contrary to civic myth, assume every political actor will stretch his or her powers to the breaking point and beyond.

But neither does Federalist 51 depend on each branch to auto-police by self-restraint. Congress and the presidency check one another, and we assume the judiciary checks both. Who guards the guardians? The answer, at present, is no one, because for all the mystery and authority and deference with which we have imbued judges, we are still accustomed to thinking of the judiciary as the weak link in the regime. It is not. Publius’ dismissal of judicial power on the grounds that the courts have judgment but not force vastly understates the power of judgment in a popular regime.

Congress has ample means with which to assert its own authority against the other branches, including the judiciary. It has become a supplicant to them instead. In the Kavanaugh hearings, senators grilled the future justice on whether the Court would force the President to comply with subpoenas—something Congress itself has ample power, if it behaves institutionally, to do. Members have been in court, begging judges on a weak case to enforce the Emoluments Clause. Whatever one thinks of whether the clause is violated every time an official of a foreign government books a room at a Trump hotel, it is clearly within Congress’ power to enforce.

Suppose, instead, that Congress presumptively stripped the appellate courts of jurisdiction in cases it expected would trigger deep social divisions? Suppose it muscled its way back into separation of powers disputes rather than expecting the judiciary to referee them?

This is a great deal to hope. It is also the only hope for deflating the stakes of nominations to the Court. It is indeed sad that the Court has been politicized, disproportionately by those who will now accuse its decisions of being politically influenced. But there is a surefire way to depoliticize the court, and that is to deprive it of political power.

Until that happens, it does not matter if Democrats or Republicans are in charge. It does not matter if the balance on the Court is narrow or thin. It does not matter if the Senate is restored to supposed glories. Supreme Court confirmation battles will always be bitter, and their antes will continue to escalate, because the stakes will simply be too high.

Reader Discussion

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on October 08, 2018 at 10:39:12 am

Greg:

I appreciate and wholeheartedly agree with the sentiment and the aim, intent and thrust of your argument(s).

Yet, what is to be done when the Court simply refuses to comply?

https://www.law.cornell.edu/supct/html/05-184.ZD.html

Link is Scalia's dissent in Hamdan which illumines the present arrogance of the Court and its unwillingness to comply with congressional directives.

And what did the Congress do in response?

NADA!

Has something changed since Hamdan such that the Legislative is no sufficiently *bold* to tackle the Court?

If the Kavanaugh "B-movie" to which we were recently introduced is any indication, then one must conclude that the legislative (AND the PEOPLE) are still prepared (and happily so, I may add) to view themselves as supplicants to the Grand Viziers of the Court.

What is apparently lacking is any sense of Leadership, of a recognized duty or obligation to lead, to teach, to reaffirm the value and prudence of adherence to certain fundamental principles of this constitutional republic accompanied by a pronounced lack of knowledge, understanding and appreciation of those same principles in the People.

To accomplish your objective will require first a Leadership comprised of men / women who themselves understand, appreciate and are willing to advance these fundamentals. Sadly, a) they are nowhere to be found amongst the vote-getting hustlers in our Capitol City and b) there is a remarkable dearth of such types amongst those seeking to join the political hustlers as the Peoples Representatives.

Even worse, the People themselves do not appear to understand OR want to reengage with the type of governance that such principles enable, or, perhaps, *DIS-able*

And YET, what an opportunity for someone to emerge as a Leader; for someone to once again sing the ancient songs; to lead the people back to their political roots.

Sadly, The Trumpster has not done so; nor has his Party. Instead, we have the Pelosi's of the world asking, "The Constitution, are you kidding me."
Who will respond as follows, "No. Nancy, I am NOT KIDDING you."
Who will insist upon a proper understanding of government's limits? Who will insist upon a proper course of educational curricula, both institutional and popular, that reinforces original understandings rather than diminish those founding principles.

I keep looking for such a person or persons. Regrettably, they appear to be in hiding, only occasionally poking their heads up on sites such as LLB (where the likes of folks such as I take shots at them - HA!) to offer such advice, both sensible and proper, as has Mr Weiner in the above essay.

Were it not so?

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gabe
on October 08, 2018 at 10:50:16 am

Well lets see, the (1) Congress could refuse to provide any money until their demands that the President follows the Constitution (on any provision they think he is not doing so) is done, (2) repeal any statute they think is unconstitutional, (3) strip the Supreme Court of appellate jurisdiction and all lower federal courts of original jurisdiction to hear a case in an area of law that the Congress thinks the Supreme Court is wrong, (4) impeach Supreme Court Justices or the President if they are failing to follow the Constitution.

Those are an awesome amount of power to check the judiciary and president if Congress decided to do so. It merely requires political will. The real problem is that a majority of Congress (in both houses), doesn't think the Court is so far off the mark that they are willing to use the powers they have. If that is the case their are only two answers (1) Congress is opposing the will of the people and should be voted out of office, (2) Congress is following the will of the people and shouldn't use these powers. Which is it? If the people choose not to vote them out, it sounds like the people agree that the Supreme Court isn't abusing their authority.

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Devin Watkins
on October 08, 2018 at 11:22:53 am

In addition, five originalists on the Court, if they are originalists, and if they can remain at least at elbows length from politics, should by themselves be able to help depoliticize the court if they stick to the Constitution and reject cases that don't fit requirements of the Constitution.

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d clark
on October 08, 2018 at 11:30:24 am

Professor Weiner has opened very complex issues with a somewhat simplified, if acceptable, exposition of their nature. Much more is involved, and the "solutions" adverted to may be chimera.

We might better approach the totality of the issues in segments, so let's begin with some observations from Walter Lippmann's "The Good Society" (1941 ed., p. 287);

But in modern times men have come to think
that because there are practical reasons for separating and
specializing the legislative and judicial functions, they are
morally and psychologically distinct.

THEY ARE NOT. When the legislator ceases to think of him-
self as an impartial judge among contending interests, he soon
adopts an imperial view of his function. He ceases to judge
causes among the people: he issues commands to the people, and
regards himself no longer as the representative of their true
will but as the providential contriver of their destiny. Against
this imperial view of the state, which comes down from the
Byzantine emperors and was revived in Europe by the study
of Roman law during the Renaissance, 8 the liberal movement
has always fought. The imperial view is that the official de-
crees the law according to his will rather than that the official
finds the law by judging causes. This is the legal theory of
absolutism. To that theory the modern collectivists and all the believers in legislative or executive supremacy have re-turned.
The growing complaint of legislators that judges are legis-
lating is the obverse of the fact that lawmakers have ceased to
be judges. Legislators have come to think of themselves as
the lineal descendants of the Ceasars, and the heirs of their
sovereignty. Against this revival of the absolute state, the
courts have sought to provide a refuge. They have given
refuge to many interests that probably ought not to have it.
They have also given protection to many vital human interests
against the tyranny and arbitrariness of legislative majorities.
But their "judicial usurpation" would not have received so
much popular assent had men not realized that its complement
was the growing dictatorship of lawmakers. Yet two wrongs
do not make a right. Both are perversions of the liberal
state, arising from the failure to recognize that the legis-
lative function is only a more generalized form of the judi-
cial..

More to be submitted in additional segments as time permits.

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R Richard Schweitzer
on October 08, 2018 at 13:08:10 pm

I take the question to be: Where do we go now that we've gone too far?

I guess the first step is to stop treating "Publius" (Madison, Hamilton and Jay [c.a. 1788]) as the equivalent of St. Paul and acknowledge that the anti-Federalists' most dire warnings about Publius' brand of federalism have been realized; the supremacy clause coupled with an unaccountable and unlimited federal judiciary have necessarily produced a totalitarian oligarchy and that the Supreme Court is, and always has been, the voice of that oligarchy.

Since 1916, the US has been in a near continuous state of emergency which the government thought required both enlarging the power of central government and suppressing local dissent.

First the Great War and then the Great Depression. Then a second world war against military dictatorships then a third world war against Stalinism and Maoism and now a fourth world war against shadowy terrorists of all kinds both real and imagined. Along the way first the republic was lost then, more recently, representative democracy was lost and, by default, the Supreme Court became the sovereign voice of the governing regime.

In the Roman republic, the function of the constitutional office of dictator was to break the impasses between vested interests of competing factions and set things aright before they led to civil war. But the Germans tried that in 1932 and it, too, led to catastrophe.

Personally, I think it is too late to save anything. The people have lost the habit of self-government because the Supreme Court has placed no value on local government since it began incorporating its own ever changing interpretation of the Bill of Rights on state and local governments in Gitlow v. NY in 1925. Since then, local associations of all kinds have been destroyed in the name of unity, diversity or inclusion - it seems to depend on which particular bee happens to find itself in the justices' collective bonnet at any given moment.

The family was destroyed for purely economic short term gains. The idea common culture was destroyed in the name of individual autonomy. As befits a totalitarian regime, the Supreme Court has invented the idea of limited immunity to protect itself, its petty officers and its minions from public sanction.

So, I guess the next question is: What is Weiner's solution?

As Gabe observes, the Supreme Court has clearly said it will not surrender power voluntarily, there is no stomach and likely no way for the legislature or executive to attack it directly (omnibus spending bills neuter the House and the filibuster rule neuters the Senate and together both neuter the Executive). Finally, the legal intelligentsia exhibits no collective interest in any sort of root and branch reform.

Like Major Kong, I think we're going have ride this baby all the way down.

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EK
on October 08, 2018 at 14:03:04 pm

Might have to fight some law professors, too. Have any of you read the Politico symposium on the decision? Here's a money quote from Geoffrey Stone, "Distinguished Professor of Law":

"Now, for the first time in living memory, there will be five justices on the court who embrace this highly results-oriented, often unprincipled, and profoundly politically conservative approach."

The sophistry of this position is breathtaking. Ahh, Originalism, that bastion of "results oriented" jurisprudence.

Ye Gods.

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Aaron
on October 08, 2018 at 14:05:50 pm

Agreed, see my comment below, for more evidence.

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Aaron
on October 08, 2018 at 14:16:26 pm

Well, Kavanaugh is going to be a step in this direction; after all, he believes that the President can declare any law he doesn't like unconstitutional and refuse to obey it, no matter what any silly courts say about it.

So say good-bye to Marbury v. Madison. Also, we're likely to be saying farewell to the Voting Rights Act, Roe v. Wade, and anything else that might inconvenience conservatives who would like to make sure only 'the right people' vote or have any power in our society.

See, nothing to worry about.

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excessivelyperky
on October 08, 2018 at 14:26:15 pm

Another segment in the "complex:"

The degree of divergence in viewpoints among "legislators," 50-48; 60-40; 80-20; or whatever, may not be so symptomatic of, or significant to, the underlying issues as are the modes of expressions and means of their conduct jn attempting to attain objectives (often not directly, if at all, related to the subject matter in controversy). Displays of acrimony, acerbity and even asperity may be valuable for the understanding by the "masses" of the real nature (and limitations) of any judicious aspects of legislative activities.

Can those who are INjudicious in their determinations of judicial qualifications for the judiciary be expected to otherwise be judicious in their other assigned functions?

Next, we should consider "the" power of "the" court and the functions of both that power and its sources to that court.

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Image of R Richard Schweitzer
R Richard Schweitzer
on October 08, 2018 at 14:45:20 pm

"And the answer is to take the power out of the Court."

Which power? Do you mean that the Executive or Congress should be able to grab power not granted to them by the Constitution? If not, what is it that you really mean?

"In addition to dispersing rather than centralizing power, congressional government would lower the stakes of elections and nomination battles. In that sense, it would be the most effective campaign-finance reform plan available: It would make impossible, and therefore discourage, anyone’s depressing a single lever in hopes of altering the entire regime or a wide range of its policies."

The Court should have no power to make law. But you have not made the case that it should not restrain Congress or the Executive when the natural rights of individuals are threatened. If Congress passed a law to imprison Jews, Germans, Japanese, or Lithuanians should a Court say that they had the power to violate their rights?

What we need is to dispense with the ridiculous political games and have the Court enforce the limits placed on the federal government by the Constitution.

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Vangel Vesovski
on October 08, 2018 at 15:51:45 pm

Gee, wouldn't that be odd as the Voting Rights Act and the Civil rights Acts of the 1960's and 70's passed ONLY because of Republican / conservative votes.

My goodness, Dearie, to listen to you one would think that Kavanaugh and the other naughty nabobs of [originalism] are hell bent on reinstating Dred Scott. Oh, wait a minute that was a decision both pushed and hailed by Democrats.

Please do the following.
1) Take the right arm and raise it above your head.
2) Move the arm from back to front.
3) Check to make certain that the marionette strings are still firmly attached to your head and shoulders.

We would not want to miss any possible instructions from the puppet masters supplying you with your usual slanders.

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Image of gargamel rules smurfs
gargamel rules smurfs
on October 08, 2018 at 16:01:34 pm

"The real question is how to take the bitterness out of these fights. And the answer is to take the power out of the Court."

Take THE power out of the Court.

To take the "bitterness" out of these "fights?"

Well, hopefully, we can think further (as noted above) about what that "bitterness" discloses (exposes?) to broader (masses) understanding.

But, what of THE power, do we correctly understand all of the factors (particularly what may be the chief factor) in how and why there is "power" in that court?

The Judiciary are part of the Judicial System, which, in turn, is part of the Legal System. Our Legal System has been subject to the same forces from "The masses in representative democracy" that have generated the Federal Administrative State. The result has been the perversion of the Legal System, by mass demand, into a mechanism as one of the means to ends -departing from its previous role exclusively as the forum for determination and enforcement of obligations.

So long as the Legal System is to meet the mass demand to serve as a means to ends (economic, social and political) it must arrogate (or be allocated) THE power for those functions. That power becomes The power of the court and its sources are the demands of the masses - not from those who make up the legislatures, timorous or exploitative in the face of the desires and demands of those masses.

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Image of R Richard Schweitzer
R Richard Schweitzer
on October 08, 2018 at 17:01:35 pm

And as I said, this situation calls for (no, SCREAMS for) proper and effective Leadership, duly cognizant of the requirement for limited governmental functions, even if those functions are in response to the aspirational hopes of the masses.

It is a problem of symbiosis. The masses yearn for Federal beneficence whilst the Leaders (such as they are) yearn for, and have come to expect, the beneficence of the voters should these aspirational needs be met.

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Image of gabe
gabe
on October 08, 2018 at 17:47:30 pm

Gabe,

Greg says: "Self-government supplies an adequate normative basis for such a return . . . "
Does that infer **individual** responsibility (shades of Pierre Goodrich) - or conversions of the "masses?"

"Voters" are only a small part of the "masses." Masses want "Leaders;" guess why. Voters want people to do the dishes and put up the laundry (in your case to [properly] grow, squeeze and age the grape).

There is no Government Cabernet! Even with the greatest "Leaders."

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R Richard Schweitzer
on October 08, 2018 at 18:30:23 pm

Richard:
i used the term Leader (with a capital "L") advisedly as I am aware of the negative connotation associated with Der Fuehrer aspects of the concept.

I had hoped that my *shorthand* would be understood by the readers here at LLB to mean "one who leads" BUT*lead* by virtue of prudential stewardship, one who educates, and one who, most of all, refuses to be part of the destructive symbiosis of the present day wherein the Elected live in fear of failing to meet the unrealistic and illegitimate "aspirations" of the masses or worse, in pursuit of their own ambition(s) further those aspirations. Instead, the "leader" I imagine, would like Lincoln seek to stir "the better angels of our nature" - or at least the vestigial remains of that nature.

I see no Lincolns on the political horizon. Then again, most did not envision a Lincoln during the antebellum era. Is there even a facsimile of Lincoln. Let us hope so. Let us hope that such a person would be able to overcome several generations of indoctrination by the "educational, communications and political complex" (apologies to Dwight David Eisenhower). Unlikely, I agree.

Right now, all government and its political appendages has on offer for consumption is *swill* loaded with undigested sugars that engender hangovers and a sour taste, the sweetness of the swill notwithstanding.
Rather than Cabernet or Barolo, we are offered Mogen David 20 / 20 described by this sage as follows;

"As majestic as the cascading waters of a drain pipe, MD 20/20 is bottled by the 20/20 wine company in Westfield, New York. This is a good place to start for the street wine rookie, but beware; this dog has a bite to back up its bark. MD Stands for Mogen David, and is affectionately called "Mad Dog 20/20".

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Image of gabe
gabe
on October 08, 2018 at 22:51:45 pm

The avoidance of contentious Supreme Court confirmations is not a matter that easily lends itself to silver bullet solutions, especially those as nebulous as "disempowering the Court." In the first place, much of the excess power (it is not really so much power as authority) that the Supreme Court is suspected of exercising is derived from the expansion of federal power. The more that Congress allows the federal government to insinuate itself into the everyday lives of citizens, the more authority the Court has to scrutinize those same lives. When Congress passes a law that allows citizens to seek redress in federal court for perceived transgression of those laws, the Supreme Court is thereby conferred with authority to meddle in affairs where it previously had none. When the popular presumption that any form of social grievance may serve to uncover a heretofore unknown Constitutional right, the Court is invited to assume unlimited authority to create such rights. This is true regardless of any Congressional attempts at constraint.

The growth of Judicial authority is a natural and unavoidable consequence of the growth (and encroachment) of federal intervention into the everyday lives of citizens. There is no fix for this. The federal government properly regulates the aviation, securities, pharmaceutical, nuclear power, and other vital industries. Judicial review of activities associated with such regulation is essential, for everyone involved. When the wheels run off the rails is when the Court indulges in proctoring the customs, traditions, standards and values that define a society. This is a usurpation and acceptance of this usurpation as legitimate is the reason for contentious confirmation hearings. Even Ruth Bader Ginsburg knew that the abortion question was best left to the normal processes by which healthy societies sort out contentious issues, and that Roe v. Wade simply impaired those processes. Supreme Court confirmation hearings are contentious because neither side of the political divide wants any branch of the federal government telling them how to think about difficult issues. "Disempowering" the Court won't change that.

In addition, there are other considerations that make a seat on the Supreme Court a political prize, much to the detriment of the processes by which a free people should govern themselves. One such is lifetime tenure, and the other is the outsized place that stare decisis has in the gaseous philosophical musings of the justices in matters that are unsuited to them. Simply put, the Supreme Court has formal authority, conferred by the Constitution in a system of ordered government, and informal authority that is an accretion of hubris, opportunism and folly on the part of fallible justices. This informal authority makes confirmation excessively political. If anything needs to be fixed, it is that.

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z9z99
on October 09, 2018 at 09:12:05 am

Z:

Excellent and thank you for making explicit what R. Richard and I leave implicit in our customary rants concerning the expansion of *functions* of the Federales (and State / Municipal governments).

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gabe
on October 09, 2018 at 10:01:34 am

Professor Weiner addresses his essay to principled readers on the right; the problem is, the Court’s usurpation of lawmaking authority is largely due to unprincipled activists on the left. Will they heed these sensible cautions? If the Kavanaugh confirmation circus is any indication, the answer is no.

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Mark Pulliam
on October 09, 2018 at 22:24:06 pm

Mark:

Agreed; while it is not absolutely clear that the "right" has not fallen into this trap, let me provide what I perceive to be the sentiment of the *right* regarding the Court's involvement in all manner of non-essential (could it be "silly") citizen *collisions*:

From Scalia's dissent in PGA Tour v Martin:

The *justiciable*question in the case was whether WALKING was an essential part of the game of Golf. The majority decided it was not. ( I post this as a (pre-accident) rather competent golfer, BTW):

"The Court attacks this “fundamental alteration” analysis by asking two questions: first, whether the “essence” or an “essential aspect” of the sport of golf has been altered; and second, whether the change, even if not essential to the game, would give the disabled player an advantage over others and thereby “fundamentally alter the character of the competition.” It answers no to both.

Before considering the Court’s answer to the first question, it is worth pointing out that the assumption which underlies that question is false. Nowhere is it writ that PGA TOUR golf must be classic “essential” golf.

Why cannot the PGA TOUR, if it wishes, promote a new game, with distinctive rules (much as the American League promotes a game of baseball in which the pitcher’s turn at the plate can be taken by a “designated hitter”)? If members of the public do not like the new rules – if they feel that these rules do not truly test the individual’s skill at “real golf” (or the team’s skill at “real baseball”) they can withdraw their patronage.

But the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone – not even the Supreme Court of the United States – can pronounce one or another of them to be “non-essential” if the rulemaker (here the PGA TOUR) deems it to be essential.

If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf – and if one assumes the correctness of all the other wrong turns the Court has made to get to this point – then we Justices must confront what is indeed an awesome responsibility.

It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “to regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf.

I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question. To say that something is “essential” is ordinarily to say that it is necessary to the achievement of a certain object. But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is “essential.”

Now that about sums it up. what is the Court doing engaging in these melodramas?

However, as Z99 and richard and I have repeatedly asserted, it is the "increased" functions of government that have enabled those on the court to poke their noses under the tent of all manner of human intercourse.

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gabe
on November 12, 2018 at 09:34:50 am

[…] The federal courts have also become a major source of policy change on campaign finance, same-sex marriage, and voting rights. Whether one agrees with these rulings or not, it is hard to say that the Court is passively “calling balls and strikes” when, in reality, it is a major source of new national policies. This is why the fight over Supreme Court nominations have become so bitter: They are a proxy fight for all the decisions Congress avoids. […]

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Image of How a Democratic Congress can push back against the Supreme Court – Latest Online News Website
How a Democratic Congress can push back against the Supreme Court – Latest Online News Website
on November 12, 2018 at 16:48:12 pm

[…] Weiner, “Avoiding the Next 50-48 Vote: Disempower the Court,” Law and […]

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Image of ICYMI: Top reads on Congress - LegBranch
ICYMI: Top reads on Congress - LegBranch
on November 18, 2018 at 03:51:39 am

[…] The federal courts have also become a major source of policy change on campaign finance, same-sex marriage, and voting rights. Whether one agrees with these rulings or not, it is hard to say that the Court is passively “calling balls and strikes” when, in reality, it is a major source of new national policies. This is why the fight over Supreme Court nominations have become so bitter: They are a proxy fight for all the decisions Congress avoids. […]

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Image of How a Democratic Congress can push back against the Supreme Court – Kopitiam Bot
How a Democratic Congress can push back against the Supreme Court – Kopitiam Bot
on November 21, 2019 at 05:25:40 am

[…] As in Supreme Court nominations, and unlike in academics, controversies involving the presidency are so intense because the stakes are so high. The possibility of transferring large amounts of power at once will always inflame the public. […]

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Image of Bill Barr's Grand Presidency - The Bulwark
Bill Barr's Grand Presidency - The Bulwark
on November 21, 2019 at 06:34:13 am

[…] As in Supreme Court nominations, and unlike in academics, controversies involving the presidency are so intense because the stakes are so high. The possibility of transferring large amounts of power at once will always inflame the public. […]

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Image of Bill Barr's Grand Presidency | TheHatTip
Bill Barr's Grand Presidency | TheHatTip

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