U.S. Supreme Court: Post-Ginsburg Edition

@ Karl - okay! you've already gotten there, but yeah basically my rejoinder would be that you didn't actually end up showing "a 6-3 conservative court for the forseeable future, and possible a 5-4 majority for another 20-30 years." but the scenario was worth it anyway. a quibble: you don't game out the Senate, which i respect because that would be even more absurd fanfic work, but it's worth allowing at least dice-roll possibilities that the Dems control the Senate during your Republican admins, AND that they stand firm against prematurely ghoulish ideologues like Sleve McDichael, whose pasty-faced appearance and hot-mic comments during the nominations process turn the public against him. i would not put money on that chance myself, but it's at least possible.

also though, a fair bit hinges on that first d10 roll and some choices about the EVENTS - suppose Biden rolls a 6 in 2024, and is re-elected to a foggy but popular second term, his "Reagan in the late 80s" zone, AND ALSO that during that term, Thomas has a health scare and decides to retire. i don't know that the odds are so heavily stacked against something like that.

obviously in that event, Biden's replacement pick would be the mushy, not-all-that liberal Rey McSriff (48), a former bank-industry lobbyist, seen as a move back in the direction of racial and gender diversity on the court who will at least be a reliable liberal vote in civil-rights and abortion cases.

so in january 2029, we've got:

roberts is 74
alito is 79
gorsuch is 62
the golden boy is 64
barrett is 57

kagan is 69
willie dustice is 58
bobsun dognutt is 50
rey mcsriff is 50

eight years of the biden administration have left many festering wounds unaddressed, but thankfully the republican "gold team" have been mostly braying in the margins without control of either congress or the executive to formally empower them. on the other hand, in the absence of the Cotton presidency, World War III has not happened, but let's say AOC wins in 2028 anyway. why not?!

thus, following B.K.'s horrible death in 2031, AOC's super left-wing appointee is able to remain in office. you didn't name them but it's pretty obvious you had Shown Furcotte in mind. maybe kagan is worried enough about the next election, and spooked by what is by then a Sunday-morning-show conventional wisdom about "the Tragedy of Ginsburg," that she retires too. by this point AOC is not fucking around at all and appoints millennial twitter SJW Raul Chamgerlain, 44. if AOC goes on to win a second term and also grabs the Alito seat, then in 2035 we have:

roberts is 80
gorsuch is 68
barrett is 63

raul chamgerlain is 49
willie dustice is 64
bobsun dognutt is 56
rey mcscriff is 56
shown furcotte is 53
todd bonzalez is 50

... and our biggest problem is that sometimes McSriff aligns with the conservatives to dissent in 5-4 corporate-law decisions, and we see a lot of online left grousing about how Biden wasted a pick on her.

now yes, i admit........... this depends on the democrats winning four straight national elections. IMPOSSIBLE you say? or merely... improbable???! depends how much faith you put in changing demographics etc. but if none of the Dem-appointed justices die in office, they can also afford to lose one of those elections! because it might be that the Republicans can only replace Thomas or Alito with McDichael or Dorque, giving them an edge in age but not a leg up in the balance of the court.

todd bonzalez makes history as the first male latino justice

is there a relevant quote linking Barrett's sect to The Handmaid's Tale?

there must be. ominous lord, truth is stranger than fiction

xp

doc casino, first of all, obviously i had Shown Furcotte in mind. but secondly, the rest of your scenario seems plausible!

obviously gaming it out like that is a goof, but i did actually learn a few things. or maybe not. i feel like just laying out their ages, combined with the fact that they have lifetime appointments, explains 99% of the game:

christmas near-future:

roberts is 65
thomas is 72
alito is 70
gorsuch is 53
the golden boy is 55
barrett is 48

breyer is 82
sotomayor is 66
kagan is 60

that there is a stacked deck, combined with republican weakness (in terms of what we might expect, possibly overoptimistically, from their presidential chances for the next few decades after elevating a white supremacist fascist to the presidency and then ripping the country to shreds in an attempt to keep him there). even with a couple 2-term democratic administrations in a row, through 2036, there is still a decent chance that at least 5 or even all 6 of the conservative majority stays right where they are, their ass-molds worn deep

in unrelated news, just before i fell asleep face down on the couch last night, i ran across a disturbing headline about increasing the maximum human lifespans beyond its current soft limit of 125. apparently the consensus is that it will soon (10 years?) be possible to extend human lifespans using genetic modifiers, physical devices, and secret codes. https://en.wikipedia.org/wiki/Life_extension jfc

agreed, it's a useful exercise to grasp exactly how much the age advantage of the GWB and DJT appointees presses on into the future. but also, focusing too much on that just takes us into a zone of gloom, so unless it's directly useful for motivating present-day action and the long-term fight, i think it's also useful to bear in mind all the ways that the scenario could suddenly break down. nobody saw Scalia's death coming, for example, even though he was 79. that ended up working out horribly for the cause of justice and freedom, but it could have gone differently. so long as our rights are subject to these bizarre matters of fate and circumstance, we may as well remind ourselves that there are ways the probabilistic parts could break our way.

and the stacked deck there does look better the moment Biden can replace Breyer, which i think we all do need to be praying for (or whatever equivalent practice).

and... all these scenarios also presume a successful barrett confirmation. tbh, i'm pretty doom-and-gloom about that, seems like there's no reason to think it won't happen. but it's still probably not good for my head to already accept her as a solid number until 2049 or w/e. like if i'm driving myself crazy with all the bad things that have already happened, and the ones that could probably happen, and the ones that are near-certainties, that's a lot to do to my head, if i'm not also considering the good equivalents of all of those things.

there's also some non-zero chance that, in the event that a Democrat wins the presidential race four times in a row and this permanent 5-4 Court keeps shutting down every exciting thing the people are turning out to vote for, then a mandate for court-packing develops much much more quickly than we might expect right now.

so long as our rights are subject to these bizarre matters of fate and circumstance, we may as well remind ourselves that there are ways the probabilistic parts could break our way.

otm

i know that's not a convincing or comforting thought for everyone, but to me that really is what gives me hope

NEW: Senate Democrats say they will press President Trump’s SCOTUS nominee to commit to recuse herself if the justices hear a case that could impact the outcome of the fall elections, @mkraju reports.

— Ana Cabrera (@AnaCabrera) September 25, 2020

That seems a little dumb

I mean it makes sense but they'd still have a 5-3 advantage anyway

"Will you commit to not doing the exact thing you were hired for" is a dumb question

and... all these scenarios also presume a successful barrett confirmation. tbh, i'm pretty doom-and-gloom about that, seems like there's no reason to think it won't happen

i will continue to return to my dumb "we simulate the future and then experience it in real time, somehow diminished, as something that was already familiar" theory, until someone or something convinces me that it's not accurate. in that line of thinking, you can already see the barrett confirmation and how it happens. i already saw a headline, last night, talking about how barrett was confirmed in October. i looked at the calendar and it was september 25th, then re-read the headline and it still said that she was confirmed in October, past tense. i can't remember where i saw it, and i had a socially distanced hangout with a friend last night and got way too drunk. but still, it was there all the same.

that was just a drunken horror, but i woke up today and it's still there. the republicans have the votes. 2 have been allowed to deviate (murkowski and collins), which just so happens to allow exactly enough remaining republicans to unilaterally install barrett. what a coincidence. this outcome has already been focus-grouped on a national scale - it turns out that most republicans think it's a great idea, most democrats think it's a bad idea, and the majority of "independents" think it's a bad idea. it sounds like most ideas these days. so they'll do it, because they can.

we're currently simulating the outraged response, right now. at least, i am. and then, when it happens, it won't be the first time.

---

^i think all of that is a very bad way to go about thinking about life, believe it or not. but that's what i see happening over and over, lately.

xpost they're not asking her to not be a justice, they're saying 'Hey, you were literally just nominated by one of the President candidates in this election 5 minutes before the election, maybe it's a conflict of interest for you ruling on a case challenging his results".

But this is the primary reason they are in such a rush. If she can't guarantee to hand over the election, it's pointless for Trump. Surely he already told her she needs to deliver that vote, or there would be a different pick.

lol of course it's not going to actually happen but would you rather the Democrats not try it first so that they can frame it as "Justice Coney Barrett refused to recuse, she and Trump win, while Americans lose!"

I mean, compared to other things they should be trying, this is VERY low on my list of importance and I wouldn't want it to take the place of promising to pack the fuck out of courts, but we're kinda fucked unless someone has a McCain surprise during the vote.

@ Moodles - isn't the primary reason McConnell & co. are in such a rush that Trump has a good chance of not being President in 3.5 months? and they want to grab another Supreme Court seat for all the reasons you would expect them to want that? potentially covering his ass in a stolen election would just be the cherry on top.

Trump and McConnell have different motivations, but this is Trump's pick, not McConnell's

technically, but which one of the two is able to exert the most control over 51 republican votes?

(amy barrett, but pure coincidence, happened to be exactly who mcconnell was pushing for)

trump, on the other hand, has the federalist society publish a list for him so that he can make his fantasy list of 25 candidates (which included tom cotton and ted cruz) seem more legit. i'm sure they arranged it in a way so that trump felt that was the crucial decisionmaker who made the tough call, but there are probably a dozen other people that had more to do with this pick than trump

Lucky for them there are so many justices out there willing to both undermine the integrity of a major election and nuke Roe v Wade. Funny how those interests conveniently line up.

xp

I think you are sort of right to extent. Trump is obviously not hand picking justices based on some deep judicial reasoning. But rest assured, he's asking any potential justice one question and one question only, and if they don't give the correct answer, they aren't going in front of the Senate.

by the time it gets to trump, it's like "oh great leader, we just simply can't decide between the bounty of perfect candidates on your list! you are so impressive, you know much more about their judicial record than ANY other person we have ever met! please, decide for us with your strength and genius! we have OPTION 1) Amy Barrett, OPTION 2) Barbara Lagoa, or OPTION 3) Michelle Obama. and also many people are saying barack obama favors Lagoa over his own wife! george bush also prefers Lagoa. Please decide for us with your wisdom and intuition!"

haha, sorry. i am in an extremely goofy mood this morning. i think they'd actually do a version of ^^ in the earlier stages, before whittling it down to a set of "options" where he actually can't mess it up

Perhaps rather than asking "will you recuse yourself?" they should be asking "did the president request you rule in his favor if the election is contested?"

xp

Certainly possible

This goes to a larger pet peeve about these confirmation hearings, which is that there are always questions about how someone might rule in this or that case, and the answer is always that they can't speculate about a hypothetical situation. It's a meaningless line of inquiry designed as a gotcha that no one actually cares about.

The whole notion that these are not political picks driven by an obvious agenda is so out of date and ridiculous, it would be better to drop the pretense.

Yes how can we expect lawyers and judges to speculate about hypotheticals

The point is, they don't. It doesn't matter what we expect. We've seen this game play out over and over, so expecting it to change is folly.

If you are expecting any of this to operate under a set of unwritten norms that were trashed years ago, you are being played.

my homie is seriously sharing this op ed and trying to accept Amy w an open mind and open heart so I guess he’s just a Sorkin Republican now jfc

https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/

lol

also by "O. Carter Snead" a name designed to make me want to punch the person
https://www.hoover.org/research/planned-parenthoods-hostages

There is nothing to fear about Barrett’s intellect. She has an incandescent mind that has won the admiration of colleagues across the ideological spectrum.

getting Rich Lowry flashbacks

Sooooo fucking tired of SCOTUS nominees called "brilliant" as if what they do requires anything other than keeping the clerks happy as they cobble your opinion together.

I for one was worried that she was actually illiterate.

The GOP has been functionally illiterate since 1981.

Those concerns assuaged, I look forward to strapping on my legally mandated cilice every morning to get me ready to face the day.

time to invest in chastity belt manufacturers

i think i saw incandescent mind open for gene loves jezebel in '87

time to invest in chastity belt manufacturers

Clasping hands meme with BDSM nerds and Opus Dei

Xpost
Moodles, I wasn’t disagreeing with you

Whatever hearing we get out of this will be pointless

Here's the only likely way she doesn't get confirmed before Election Day:

https://i.imgur.com/HzAVTWk.png

The Hill reports:

The Senate Judiciary Committee will start a four-day hearing for President Trump’s Supreme Court nominee on Oct. 12, two people familiar with the schedule confirmed to The Hill.

Though other nominees have been confirmed in fewer days, they were further away from the presidential election. Chairman Lindsey Graham (R-S.C.) is expected to announce the committee’s schedule later Saturday.

Justices Neil Gorsuch and Brett Kavanaugh, Trump’s first two Supreme Court nominees, both had nearly two months between their formal nominations and the start of their hearings. Under the schedule set by Graham, Amy Coney Barrett will have little more than two weeks.

telling myself O. Carter Snead is a (well, another) Virgil Texas pseudonym.

Snead also wrote this piece of garbage. Fuck them and anybody falling for this ruse of a piece.

https://www.foxnews.com/opinion/planned-parenthood-will-forgo-payment-for-fetal-tissue-so-now-its-ok-because-its-free

Somehow Amy Chua is behind it all

Thomas, joined by Alito, dissents from SCOTUS' refusal to consider Florida's legal attack on California and Washington for policies providing commercial truck driver's licenses "to illegal aliens who cannot read English." (California and Washington do not have these policies.)

Mark Joseph Stern: It's true that, from time to time, California and Washington have inadvertently given commercial driver's licenses to immigrations who lack work authorization and don't speak English. Guess which other state has, too? Florida. Which is suing CA and WA over this.

Justice Thomas, joined by Justice Alito: California's issuance of driver's licenses to illegal immigrants would justify Florida going to war with California if they weren't part of the same country.

https://bsky.app/profile/joedudekjd.bsky.social/post/3mmr5auxt3s2z

Thomas and Alito are so wrapped up in right-wing Fox news bubble they ignore facts presented in the case regarding immigrant truck drivers in red state Florida

Justice Thomas, joined by Justice Alito: California's issuance of driver's licenses to illegal immigrants would justify Florida going to war with California if they weren't part of the same country.

Reminds me of that time two American territories went to war with one another

https://upload.wikimedia.org/wikipedia/en/b/bc/The_Texas-Israeli_War-_1999.jpg

xp

they ignore it because the only law for them is the law of conservative cultural grievances

Yep

https://www.rawstory.com/samuel-alito-conflict-of-interest/

Samuel Alito's son Phillip apparently works at Treasury as a lawyer there now, but Treasury is keeping it low profile, and his Dad didn't think it was worth acknowledging regarding a case involving Treasury .

Tuesday night Republican racism at work on the shadow docket. Sotomayor wrote a dissent

BREAKING: In an unsigned, per curiam opinion on the shadow docket, the SCOTUS conservatives allow Alabama to use a congressional map held repeatedly by a lower court to have been enacted with discriminatory intent.- Chris Geidner on Bluesky

This heinous ruling confirms a worst-case-scenario reading of Callais as an all-purpose shield for racist lawmakers who want to gerrymander Black communities into electoral oblivion. And it’s outrageously partisan—a totally unprincipled gift to the GOP - Mark Joseph Stern on Bluesky

https://www.supremecourt.gov/opinions/25pdf/25a1314_7m58.pdf

part of dissent -

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and
JUSTICE JACKSON join, dissenting.
Before the Court are two paths. Down one lies an orderly
election, held under a tried-and-tested congressional map
that protects Black Alabamians’ right to vote and with
which all voters, elections officials, and candidates alike are
familiar. Down the other lies a chaotic election, held under
a never-before-used congressional map that intentionally
discriminates against Black Alabamians, that Alabama
adopted in unashamed defiance of a prior court order directly affirmed by this Court, and that will require officials
to change the voter registrations of hundreds of thousands
of voters in just days at best, a task that Alabama previously represented would take months.
The majority chooses the second path and disregards
both democratic values and the rule of law. I respectfully
dissent.
I
This is now the third time these cases have come before
the Court. See Merrill v. Milligan, 595 U. S. ___ (2022); Allen v. Milligan, 599 U. S. 1 (2023); Allen v. Caster, 608 U. S.
___ (2026). Each turn reveals just how unconscionable the
Court’s action is today.

Sotomayor dissent for the 3 liberal Justices concludes:

Weeks ago, I warned that vacating the District Court’s
injunction in these cases would “unleash chaos and . . . confuse voters.” Caster, 608 U. S., at ___ (dissenting opinion)
(slip op., at 4). Nevertheless, the Court forged ahead. Now
the Court is squarely faced with a record of the turmoil it
has caused and the harm it has wrought. Yet just as Alabama doubled down on racial discrimination, the Court today doubles down on chaos. Because I choose to defend the
rule of law and the right of all Alabamians to participate
equally in democracy, I respectfully dissent.

The majority’s opinion accompanying the ruling is astounding, and in fact is potentially just as significant as Callais despite its brevity and tentative nature given that it is a shadow docket ruling.

Building upon J Alito’s opinion in Abbott v. Perez, there’s now practically an unrebuttable presumption that a legislature is acting in good faith and therefore is not acting in a racially discriminatory way so long as the state can assert some pretextual nonracial reason for enacting its plan

- Rick Hasen, UCLA law Professor from his thread on Bluesky regarding the Alabama case shadow docket decision tonight

The usual Supreme Court observers are decrying that Alabama shadow court decision from last night I mentioned above but it's gotten lost in the news cycle with elections, Iran, Lebanon, etc

Yeah that decision ratified or solidified the Callais decision, more or less saying there is almost no set of facts that you could use to assert racial discrimination in districting short of the N-word being written into the law or something. The district court that found the Alabama map plainly discriminatory even in light of the Callais ruling was made up of two Trump appointees and a Democratic appointee. These were conservative white Alabama judges, and SCOTUS was still like "Nah."

even more on that shadow court decision about Alabama and the earlier Callais ruling--

The Supreme Court Has Invented a Right to Discriminate
Alabama gambled on the Court’s partisanship, and won.

By Adam Serwer

“Alabama willfully drew a map that flouted the District Court’s preliminary injunction and hoped that this Court would eventually see things its way,” Justice Sonia Sotomayor wrote in her dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. “After today, it is hard to call Alabama’s cynical gambit anything other than a success, and the Court’s rewarding of Alabama’s behavior anything other than a blow to the rule of law.”

The majority opinion was unsigned. In it, the judges argued that the lower court had “failed to follow our instruction” in ordering the creation of the new district. This was a reference to the April decision in Louisiana v. Callais, in which Justice Samuel Alito announced that “race and politics are so intertwined” that there are almost no circumstances under which the Fifteenth Amendment’s prohibition on racial discrimination in voting actually applies....This week’s decision is important because intentional discrimination is banned, not just by the Voting Rights Act, but by the Fourteenth and Fifteenth Amendments. When the Roberts Court says that the lower court’s ruling “failed to follow our instruction,” it is referencing Alito’s argument that partisanship cannot be separated from race. Even if a court finds evidence of intentional discrimination, therefore, the Supreme Court may simply ignore it on the grounds that the discrimination in question is merely partisan and therefore acceptable. This turns Callais into something much broader than it purported to be: a finding that the Constitution permits not only unintentional racial discrimination but intentional racial discrimination, as long as there is also a partisan pretext for engaging in that discrimination.

https://www.theatlantic.com/ideas/2026/06/alabama-racial-discrimination-voting/687448/?gift=Je3D9AQS-C17lUTOnl2W8PXx3PqdVJDy2VNT4oMQvd0&utm_source=copy-link&utm_medium=social&utm_campaign=share

This shit is why we imperatively need a Congress that will act to disable the runaway conservative majority, including impeachment, removal and replacement of Thomas and Alito on grounds of their documented acts of corruption.

Will we get this aggressively assertive Congress? Obviously not without a sweeping popular uprising at the ballot box. Will we get that popular uprising? Can't say I see it coming any time soon.

In ten years we'll all have succumbed to the Rob Schneider flu after it mutates

kind of waiting for one of the vanguard states to reintroduce literacy tests and poll taxes and see if it sticks

Doesn't even have to stick anymore. Just has to not be blocked long enough to achieve its goal