few people outside of the ones actually writing these terrible rulings bear more responsibility for our current state of being than RBG
and furthermore, while I think she is easily our best active Justice, Sotomayor should resign and be replaced by a 45-year-old in perfect health by November
getting some good faith comments along this front and - while it is true and many 5-4 rulings in RBG's era were obviously terrible - even bad rulings are often more constrained in a 5-4 court than a 6-3 one, because it's easier to peel off one justice to at least limit the scope of the damage
This sounds like a mostly good sentiment, but unless my rudimentary math skills have completed rusted, wouldn't that just mean today's decision would have been 5-4 ... and we'd still be lamenting the same thing in the same ways?
and sometimes you can flip a justice entirely - the 2012 Obamacare decision wasn't great but this court would have struck it down entirely, with Roberts probably joining the majority to help shape it
5-4 is much better than 6-3, and while it's hard to imagine, 7-2 will be even worse
Also another seat on the Supreme Court was a great motivating factor for establishment Dems talking themselves into supporting Trump, it’s why McConnell held Garland up the way he did.
It also dulls idiosyncrasies. Gorsuch is uncommonly liberal with Native American treaties. Roberts used to be judicially conservative.
When it's 6-3, the idiosyncrasies disappear and only appear as 5-4 dissents instead of 5-4 victories for the status quo. Now, Gorsuch has to bring a friend
Also Barrett already split on part of the ruling and Roberts has been willing to write narrowly if it avoids a total embarrassment. In a 5-4 court this ruling would be much narrower, maybe not carving out a whole doctrine of presidential immunity. Or maybe he’d flip and let the case proceed.
It feels so much doable (bad tho) currently when you can at least imagine getting two votes from Roberts, Kav, Gorsuch, or Barrett onto a better opinion, but you need 3 to just get to a less bad place that sucks
I joke. Everyone knows the next name of the FedSoc list is Matthew Kacsmaryk.
(Dear god. I had to google the spelling of his name, and his picture popped up... He definitely 100% goes to the same barber as the rest of the Proud Boys.)
exactly, and in so many ways it’s better to be on the winning side when a decision is getting written, so if you’re Roberts and you’re wavering it’s better to get to write a 6-3 decision than be on the dissenting side of a 5-4 one
I thought this about Sotomayor until very recently, but I've come to believe she's correct in staying: I think she's responsible for the slow and hesitant but steady signs that Barrett is beginning to poke a few toes out of Batshitville.
It's not happening incredibly *quickly*, and Barrett is still doing a bunch of damage along the way, but she *has* made some movement in even the short time she's been on the Court so far. And I think Sotomayor is working on getting her to pull a Souter.
Outreach by people with close connections is the only thing that's ever conclusively worked to deradicalize people and pull them out of high-control cults, and as a woman and a Catholic, Sotomayor is well positioned to pull Barrett out of the high-control cult of the Catholic charismatic church.
I think Sotomayor made the calculation back in 2020 that trying to deradicalize Barrett was tactically a better move than a timed retirement, and I think the proof of that is all that "we're good friends" publicity people criticized that was specifically concentrating *on Barrett*.
And reading a few of Barrett's opinions this term, especially the late-term ones, I think it's working. Imperfectly, slowly, and not fast enough to prevent a lot of damage, but I think Sotomayor is thinking long-term.
This is a really interesting viewpoint. I like it. I hope you are right. The friends discourse seemed out of character, I just guessed that I must have misjudged Sotomayor’s character. But this would explain it and fits more with who I thought her to be. And it does align with the very subtle shifts
I saw the headlines and went "what the actual fuck" and then read the actual articles and realized it was *entirely* about Barrett and went "ohhhhhh, that's what she's doing".
oh hm, that's an interesting take and would explain some behavior by barrett that didn't make sense but might make some sense if she's slowly being dragged out of the far right corner of the RCC
this is definitely the best argument by far in favor of Sotomayor staying; you can see in oral arguments sometimes ACB raising completely reasonable concerns and then signing onto the worst decision imaginable anyway
I'm not optimistic she can be turned but it's not totally impossible
Yeah. I think that given the current environment, the calculation Sotomayor has to make is, is the risk of her dying or needing to retire in the next 4 years greater than the long-term benefit that would be gained by the possibility of moderating Barrett enough over time
And I think her thinking is influenced by Roberts being 69, Thomas 76, and Alito 74, and that she's (probably accurately) assessed Thomas and Alito are more likely to want to die in harness (so they can keep raking in the $$) than willing to do a controlled retirement in the next four years.
Barrett outright stating that the dissent has it correct with respect to admissibility of evidence in the immunity case is not nothing. There is a very real chance to get to Barrett on issues like the death penalty, and it also helps that her male colleagues suck and talk over her.
From reading her opinion, I really do think Barrett would have sided against immunity if she'd been the deciding vote, and that she only concurred because concurrences are more precedential than dissents and concurring would give future courts a better hook to narrow the holding.
I’m remembering how when she got the nomination, a lot of Notre Dame law professors whom I like and respect said she was a great pick. I remind myself of that frequently to try to get through the Dark Days.
Barrett is a devout Catholic and the Catholic church has long been against the death penalty. It’s not hard to think she might not go with church teaching on that but I’m not sure it’s probable.
"No, WE failed HER!" is one of the phrases I heard a lot in 2017-2018 that convinced me that for a lot of people, politics really is just their favorite TV show. It's not a thing with outcomes that affect real people; what matters is giving your fave characters a satisfying narrative arc.
I've heard the argument that if she'd resigned earlier McConnell just would have blocked her replacement too and I always think "Well, I certainly as shit would've liked to have that fight a year, two years before we actually had it."
the time to resign would have been before the 2014 elections imo, she was already 80 in 2013 and the map was terrible
Obama could easily have gotten through whoever she wanted to replace her
another failure to treat the Supreme Court as a purely political process
I wrote a thing about her resigning in 2009 lol. The five year statistical survival rate of pancreatic cancer for a woman of her age is zero. Zero! Refusing to retire with the large senate majority was simply an act of arrogance and stupidity and we will pay for it for decades.
They are obsessed with coming up with ways to hypothesise that something would not work and then settling on “so it’s good that we tried nothing instead“ as if that’s a logical conclusion.
Yes, although I think it would've been harder for McConnell to pull off a year or two earlier, and it might have stirred them to action. But the day after Garland as blocked Obama should've had a war room with "How do we fuck these guys up?" on the white board.
"It says that Congress shall advise and consent. I nominate disappointing Liberal Merrick Garland, and Congress now has six months to advise, or we shall assume their consent"
Man, I loved the guy, but Obama looks worse and worse in the rearview. Just ceded so so much without a fight. At very least let his opponents pick the ground.
my personal favorite scenario goes something like this -Rehnquist lives another four miserable years, too stubborn to retire. He dies in January 2009 and Obama appoints Diane Wood as CJSCOTUS. Ginsburg is sufficiently put out by the spectacle Rehnquist made of himself that she retires in 2013.
I do not think that our lives today would be materially that much improved by all of these decisions having been 5-4 instead of 6-3. I don't think there's a whole lot less fuckage.
Given the choice I'd rather have someone qualified over the 52 year old Amy Coney Barrett, who will serve for many, many years to come and weigh in on many more decisions regardless of how the rest of the court sways.
