4. Recent Managing Efforts

A. Conservatives are Winning the Battle

The right has demonstrated that winning this kind of institutional fight takes years, even decades, and requires a ruthless disposition."

Conservatives invested heavily in organizations that would nurture and support lawyers and justices who stuck to an “originalist” interpretation of the Constitution.  This means their understanding is theoretically derived from the original meaning of the Constitution at the time it was written.

1945 Foundation for Economic Education began the push for Laissez Fair Capitalism. Business Interest decided to unite after Conservative L. Johnson accomplished J. Kennedy Liberal Agenda.

 

1971 Powell Manifesto, a memo from soon to be Supreme Court Justice in which Louis Powell advised the Chamber of Commerce that it had to organize businesses into a political force because, he claimed, corporations and the free market system were under broad attack, ..."

 

1972 Business Round Table created to encourages business political activity.

The Chicago Boys represented another consortium fostering neoliberal/conservative economics.

982 "A consortium of students and professors based at Yale Law School founded the Federalist Society in 1982" to helped recruit and provide career support for bright legal minds.  It provided social-professional networks to connect law students with influential senior mentors. Reagan's Attorney General Edwin Meese helped with the administration’s selection of 400 federal judges using ideological profiling that made a conservative criteria important. Meese succeeded in the selection process and convinced many they were fulfilling founding father intentions. The Institute for Justice, the Center for Individual Rights and rightward philanthropists/organizations Joseph Coors, Charles, David Koch, and the Olin Foundation contributed much money to law schools like George Mason University. Schools with supportive of conservative professor whose research and ideas would educate students.

See How the Republican Party Took Over the Supreme Court
The 50-year effort to advance a conservative legal agenda

 

How Supreme Court Confirmation Fights
 Got Ugly?
1/29/22

A brief history of the Judiciary under Republics;
the radical departure of the US Constitution, and how to reform it now

 

 

   B. The Liberal Response

Democrats answered with the 1969  McGovern  Commission which reformed the rules that would govern the 1972 Democratic convention. It attempted to give greater influence to those in the past that had a marginal voice, mainly women, blacks and young people (defined as those under 30). The choice of McGovern indicated a new direction for the party's primary constituency, affluent, very well educated suburban liberals.

The history of this new direction is explored by Thomas Frank Listen Liberals. Success is earned with merit, the ability to win in a globalized world. These highly educated technocrats were also described by George Friedman in his 2020 book, The Storm Before the Calm: America's Discord, the Coming Crisis of the 2020s, and then Triumph Source  Source 1     Source 2

source

 

Presidents Don't Always Win

  • Trump has lost in lower courts: 
    “...arguing that subpoenas to banks and an accounting firm for years of financial records  from him, his company and his family are unprecedented attacks on the presidency itself.”  The Supreme Court is up next.
  • Previous presidents have lost on similar grounds: 
    Richard M. Nixon and Bill Clinton have made similar arguments about the deference owed the President and lost and the presidents’ own nominees joined in the unanimity.”

 

 

C. Swing Votes exemplify our "managed constitution."

Current swing vote is Justice Sandra Day O’Connor was preceded Justice Anthony Kennedy as the “swing vote” votes of the Supreme Court.

Some feel a swing-vote brings greater responsibility because their existence come into being in close and therefore consequential decisions. This generation has seen Justices O’Connor and Kennedy cast the deciding vote making said decision possible and in doing so kept alive the Court’s non-partisan legitimacy. For two generations the court has  made decisions that changed the original written document, its amendments, all unwritten agreements and court decisions that determine how those documents were to be interpreted.

Controversial decisions needing a swing vote exemplify our "managed constitution."

C
ourt expanded
corporate personhood by including money as political speech  in a group of decisions that led to citizens United v. Federal Election Commission.

Bush v. Gore decided the 2000 election by awarding it to the second place finishers Bush 2 and Cheney.
Some feel the courts legitimacy was hurt because the ruling followed along partisan lines.
Barre Seid, an electronics manufacturing mogul, donated $1.6 billion to a new conservative nonprofit group for 2021 campaigns. The cash infusion was arranged through an unusual series of transactions that appear to have avoided tax liabilities.

 

Readings
Anthony Kennedy and Our Delayed Constitutional Crisis
Ideological Leanings of Supreme Court Justices shows liberal leanings through history
Right Side of History: The 7 Biggest Supreme Court Politically Controversial Supreme Court Cases
Listen to
Cases and Controversies podcasts 

D. Many Legislative Challenges

Prelude:
Since 1806, the Senate tradition has not restricted debate time.
Was done to protect the rights of the minority?

In 1917, it required 2/3, LATER 3/5 majority to end debate ("cloture").

So today, 40% can force continued debate, i.e.
 filibuster.
A failed cloture can lead to a "Nuclear Option" where
a simple majority can force a final vote and resolution.


Before 1900 Court reversed
Legislation 5 times
20th Century Court reversed
Legislation
about once a term.
21st Century Court reversed Legislation 4-5 time a term

Increased Legislation reversal led to more Nuclear Options.
It allows a simple majority to force process completion.

This leads to easier approval by a mere majority.
It also leads to a more contentious ratification process
and more polarized court decisions.

E. Judicial supremacy began with Marbury v. Madison.
It. created Judicial Review by using an implied power to ruled a federal law unconstitutional.
Two decades later a legislative limit to the spread of slavery legislated by the Missouri Comprise was declared
 unconstitutional because it denied slave holders a constructional property right without due process.

5. Political Discussion Had Five Recurring Themes return to top

American Exceptionalism exists because the country was formed at a unique time and place. This allowed America to be special with a responsibility to provide an appropriate government example

The dynamic flexibility of America Liberalism
has allowed concepts concerning individual rights to adjust as required by evolving circumstances.

The reconstitution of American government first with Jefferson, then after  the Civil War, and following the New Deal though other less significant though important reconstitutions have been beneficial though controversial. Think Kennedy, Reagan, and Trump.

An expansion of "we the people"
 from white men of property, to white men, to all men, to all citizens, and recently continued with the addition sexuality. 

Geographic Space allowed for the separation of individuals from oppressive government, religion,
and other potentially tyrannical organizations. Some feel modern America has lost some of this space.
Source Cycles of American Political Thought  
See  
The Founders Constitution
 for writings about the U.S. constitution.

Will the Court Finally Kill the Lemon Test Ghoul? 3/7/19
In Everson v. Board of Education (1947), Justice Hugo Black clearly proclaimed that the “First Amendment has erected a wall between church and state. In hopes of bringing some clarity to its Establishment Clause jurisprudence, justices created an analytical test in Lemon v. Kurtzman (1971).  The Lemon Test permits laws and policies that benefit religion if they have (1) a secular purpose; (2) do not have a “principal or primary effect” of advancing or inhibiting religion; and (3) do not foster “an excessive entanglement between government and religion.”  Supreme Court Justices have used it to strike down and uphold a variety of very similar practices,

Since the mid-1980s, largely at the urging of Justice Sandra Day O’Connor, some jurists have held that the Establishment Clause is best understood as prohibiting governments from doing things that a reasonable observer might understand to be endorsing religion. This approach is sometimes merged with the Lemon Test, as it was by the U.S. Fourth Circuit Court of Appeals in The American Legion v. American Humanist Association.  In spite of, or because of, all of these tests, many observers agree with Justice Clarence Thomas’s remark last year that “this Court’s Establishment Clause jurisprudence is in disarray.” 
 

E. Trump’s SC nominee battles continue

6. Appointing New Justices Always a Battle

Controversial Supreme Court Nominations Through History

7. Continuing Questions Developed return to top

1) Property vs. individual rights went to property until Gilded Age excesses caused much public reaction leading to worker protection.

2) Which Rights? To what degree should government be involved with protection of individual natural rights.

3) Individual economic and social equality should receive what amount of property taken through taxes?

8. Did You Know  return to top

Democracy and a Republics are often used interchangeably though they represent two different political philosophies. A Republic has "power controlled by the people." A "Democracy begins with Majority Rule." Minority rights are protected against factions by a separation of powers and a constitution.

Founding father Madison ...defines a faction as "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community".
 

 

Federalist George Cabot of Massachusetts feared "...the terrible evils of democracy..." and felt Jefferson was unstoppable..." From p368 of Thomas Jefferson:

5 Times the Electoral College Went Against the Popular Vote video

Straddling the 49th Parallel

Religious Identity And Supreme Court Justices - A History

Liberal Plan to Restructure the English Court

 

1. Historically, sovereign could both appoint and remove judges at pleasure, Executive branch enforced the law.  Sometimes the senior legislative body, like the Senate in Rome or the House of Lords in England, were the court of final appeal. Judges changed with each change of government.

2. Independent judiciary thinking started with John Locke and Briton's 1688 Glorious Revolution. After the revolution, the sovereign appointed judges on the recommendation of Parliament. Judge served “on good behavior,” but could be removed by a sovereign petition agreed to by a majority of both Houses of Parliament.
 
3. The US Constitution allowed removal with a 2/3’s Senate approval upon a majority of the House recommendation.
 
ally interpret statutes in conflict.  The Supreme Court would determine if a statute  was inconsistent with the Constitution. Problem arose because inconsistencies between two prior statutes can easily be legislation but it is monumentally difficult to overcome a Supreme Court interpretation by amending the Constitution.
 
6. The framers also envisioned that the Court would be bound by its precedents. They never envisioned that there would be wildly different schools of how the Constitution should be interpreted, let alone that a Court majority would use a new theory of construction to overturn long-existing precedents.

7. The idea of a judicial retirement age was specifically rejected as candidates would need a lifetime of experiences to  govern their decisions.
4. Federalist Number 78 made clear that the Court was to have the power to set aside unconstitutional laws passed by Congress and the States.
5. “Judicial supremacy” was viewed as no different than how courts use

8. Perceived framer design errors for the Supreme Court are coming to fruition as average tenure of a Justice has dropped from <10 years to Justices commonly serving for 25+ years. A new theory of construction is now used to overturn long-standing precedents. Statutes are declared statutes unconstitutional at a rate never before seen.

9. Fundamentally, there are 3 approaches that can be used to change this evolving court dynamic. a) Make all circuit court appellate judges members of the Supreme Court, and delegate their jurisdiction to the Supreme Court on a  rotating panels basis (just as the Circuit Courts of Appeal operate now). b) A single 18 year term appointments would  require a Constitutional Amendment. c) Have the President nominate two Justices during the 1st and 3rd term years meaning the Court would probably have an even number of justices about half the time. More split decisions would result causing the lower judgment of to stand.

10. Potentially the first and third approaches could be combined, so that panels of 9 Justices would hear any given case.

 
11. If some got tired of this arrangement, then they could sign on to a Constitutional Amendment enacting the second option (a single 18 year term).


Restrictions on the Northern Press during the Civil War


Presidential Impeachment


Coding Law and the
Financial Crisis

U.S. Government and
 Politics Course

Constitutionalism and
Democracy

Political Book Summaries
American Nations

On Grand Strategy

Presidential Courage

American Dynasty

Bush Family Oil Dynasty

How Democracies Die

Storm Before the Calm

Turning Points-American History