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Monday, October 8, 2018


Howard Berman, a frequent contributor to this blog, offers this link to an interesting little piece by Corey Robin.


Jerry Fresia said...

Very nice. I like that Robin is getting down to a fundamental critique of the counter-revolution of 1787, otherwise known as the US Constitution. Now we are getting somewhere!

On my web page, however, his seven theses began with No. 2. What was No. 1?

David Palmeter said...

1) The objection to direct democracy is that it can lead to the tyranny of the majority. The majority can enslave the minority. Without the Constitution and its 14th amendment, we’d have racial segregation today, if not slavery. In fact, without the 14th we probably wouldn’t have had the 13th and, if so, we indeed would have slavery.

2) As to practicality, how does a nation with laws function without courts? What happens when a constitution says there shall be no law “respecting an establishment of religion” and a 51% majority passes a law establishing a religion?

3) Originalism is nonsense. The US Constitution empowers Congress to “raise and support Armies” and to “provide and maintain a Navy,” but it says nothing about an Air Force. Is the Air Force unconstitutional? Consistent originalist interpretation of the 2nd Amendment would confine the right to bear arms to flintlocks and muskets.

Anonymous said...


This is Corey Robin's first thesis:


The Supreme Court has always been the scandal of American democracy. How do you justify the power that nine unelected judges—almost all of them, historically, white men—wield in a society that styles itself a democracy?

Robin McD said...

Wrt Jerry's comment, a reference to much of Sheldon Wolin's work (e.g., "The Presence of the Past" and "Fugitive Democracy") is perhaps in order?

Wrt David's comment 1, I've always been rather taken aback upon encountering the expression of anxieties about "tyranny of the majority" (emphasized by, inter alia, de Tocqueville and J. S. Mill) when it seems to me that throughout history, and still, "tyranny of a minority" has been a much more common condition.

marcel proust said...

Robin McD: I believe that "tyranny of the majority" most often refers to the fears for security of their property common among the 1%. These quotes attributed to Madison are clearer than most on that point (emphasis mine):

“Where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure.”

Taking a slightly Beardian perspective, the question becomes "Is there a particular minor party that may be of unusual concern to him?" I can think of one likely candidate.

“Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

s. wallerstein said...

The tyranny of the majority can and does exist.

Yesterday Brasil Jair Bolsonaro, a neo-fascist candidate, won the first round of the presidential election and will probably win the run-off in three more weeks. The majority of the German people probably supported Hitler before he began to lose the war. Before the economy crashed in 1982, the majority of Chileans probably supported Pinochet. Socrates was condemned to death by a majority vote of the democratic Athenian assembly. In the 1950's almost no one in the U.S. raised their voices when Julius and Ethel Rosenberg were executed on very flimsy charges accused of being Soviet spies. In many places, in the 1950's, as I was growing up, the majority hated gay people.

David Palmeter said...

Jerry Fresia,

How to justify the existence of an unelected Supreme Court--and judicial review of legislation that, presumably, the other two branches of government believed to be constitutional--with democracy is a question that has been with us for a long, long time. The only answer I know of is practical. Without a constitutional court, constitutional rights are meaningless since they can be overridden at any time by a new law. If the constitution is to mean anything, there must be a constitutional court.

Some states do have elected judges, and the results show clearly that’s a bad idea. There are cases in places like Alabama in which elected judges have overridden a jury’s unanimous recommendation of life in prison for a murderer and imposed the death penalty. Can’t let your next opponent accuse you of being soft on murder, can you?

The fact that the founders were all white males has nothing to do with whether such an institution is needed. That problem can be cured by naming judges who are not white males.

Robin Mc...

Certainly the founders were worried about the “tyranny of the majority” which many, if not all of them, saw as “the mob.” But the phrase isn’t limited to that. In today’s world, it has much to do with racial, ethnic, and religious minorities. A look at our contemporary world should make that obvious.
I don’t see it as question of tyranny of the majority vs. that of the minority. Who wants any kind of tyranny? But as Prof. Wolff pointed out in his book on anarchism, any form of government is of necessity coercive. It’s all about power. The question is who exercises it, for what reason, and with what limits?

marcel proust

The top 1% may worry about their property (though they’re doing quite well with it these days), but at least since the constitution was amended to allow a graduated income tax, there has been no question that it may be subject to severe taxation, even confiscatory taxation. In today’s world, the phrase “tyranny of the majority” concerns treatment of minorities. This was true, at least in party, even among the framers of the Constitution who were very concerned about established religions.

MS said...

I am weighing in on this debate with some reluctance given my credentials as a political analyst and soothsayer have taken a heavy hit with the utter failure of my prediction Trump was going to withdraw Kavanaugh’s nomination.

That said, having read Robin’s 7 theses, which he refers to as “the scandal of democracy,” they demonstrate to me even esteemed scholars can lack the rationalism I had hoped Flake and Collins possessed. Moreover, they arouse in me substantial trepidation at what proponents on the far left might conjure up to correct the flaws they see in the Constitution.

Robin states the S. Ct. “has been the scandal of American democracy,” which he criticizes because its members are unelected. So, what does he propose - that Ct. justices be elected by the people? Does he believe the people would have elected some of the liberal luminaries of the Ct., e.g., Brandeis, Cardozo, Goldberg, Ginsburg – all Jews? Would they even have elected the 4 women who have been confirmed by the Senate, a body he characterizes as corrupt? He deplores the relative absence of blacks on the Ct. Does he think the people would have elected Marshall? And putting aside the racist impulses of a large segment of our population, would they have known enough to elect Black, Douglas, or Warren? Would they have elected justices who affirmed the right of citizens to burn the American flag as protected speech? Or the right of blacks and whites to marry? Or for homosexuals to engage in consensual sex in the privacy of their homes? Would they have elected justices who would strike down the requirement that school children recite a prayer before class? We should cast this all aside because the conservatives have succeeded in getting two more judges appointed to the Ct. who threaten to overturn liberal precedents we would not have had to begin with if the people had been entrusted with electing justices. What about the rest of the federal judiciary? Should the people elect all of the federal District Court and Court of Appeals judges? Do the people know enough about the law to evaluate the qualifications of judicial candidates? Does he know what the hell he is writing about?

He decries the jurisprudential philosophy of originalism and attributes the statement “We are all originalists now” to Tribe, when actually it was a statement made by Kagan during her confirmation. Since the New Deal, originalism/textualism has not been the dominant philosophy on the Ct. The dominant philosophy has been sociological jurisprudence, propounded by Roscoe Pound, former dean of Harvard Law School. It is a philosophy that regards the Constitution as an evolving document that is supposed to adapt to the changed sociological conditions of the country. When Kagan made her comment, she was not referring to the originalism of Scalia, who subcribed to the view you start with the express words in the Constitution and stop there. Rather, she was asserting justices should start w/ the express language (where else would you start) and then extrapolate from there. Right now, the textualist originalists hold sway on the Ct. But it took the conservatives 58 yrs. to accomplish this. They did it by organizing and inspiring their supporters to vote. The liberal objective should not be to get rid of the Ct., but to do what the conservatives did and take it back. It will probably require a generation of activism, but those are challenges of politics.

Robin proposes getting rid of the 3 institutions he regards as anti-democratic – the S. Ct., Senate and Electoral College. Re the latter, I would agree the College has not been working the way the Framers intended, expecting the electors to be enlightened individuals who would counteract the possible preference of the voters for a demagogue. Obviously, that failed in the last election. But in the 230 yr. history of this country, only 4 Presidents have been elected who lost the popular vote – one of whom (Jackson) was elected in the next election. I think that’s not such a bad record.

I could write much more, but I have run out of space.

Robin McD said...

I seem to agree for the most part with those who have sought to correct me.

I agree with marcel that a concern for property was and remains a concern for those who are anxious about the tyranny of the majority--Adam Smith didn't need to say much to convince me that one of government's primary responsiblities is to preserve the rich against the poor. At the same time, it seems to me possession of power over others is equally as valuable as property to those who possess or seek to possess it.

I agree with s.wallerstein that tyranny of the majority exists, but I think it does so only quite occasionally whereas I think tyranny of the minority has been and continues to be endemic in human societies.

I agree with david, that the founders--like the British elites from whom they were seeking to separate themselves--viewed those they ruled as a scummy, dangerous mob and that they sought to set up a system to isolate them from government. And I agree with him: neither do I wish tyranny upon anyone anywhere. But it's far from obvious to me that the term "tyranny of the majority" is mostly used nowadays to condemn the treatment of racial, ethnic and religious minorities. It also seems to me--I hope you'll forgive me for saying so--that the phrase "X should make that obvious" is a somewhat tyrannical rhetorical tactic designed to force someone to concede.

To somewhat repeat myself--sorry about that--I'm opposed to all forms of tyranny, but I'm more worried about tyranny of a minority than I am about tyranny of the majority because I see the former as much more in evidence in the past and the present and I fear it will become even more prevalent in the future. Democracy, something I favour though I recognize it too can be cruel, democracy even of the most limited sort, has been a most uncommon feature of human societies.

Robin McD said...

Sorry to jump in again. I'll stop after this, but I'd like to respond to MS.

First off, I think you shouldn't worry about your "credentials." I think most of us get it mostly wrong most of the time when we try to analyse and predict in the case of politics.

I also think you're probably right about who wouldn't have been elected to the SC in nationwide elections. On the other hand, one, had SC judges been elected all along might we not now be celebrating as founts of judicial wisdom some of those so selected. And on the other hand, two, doesn't your case against electing SC judges readily extend to not electing anyone to anything? Yet we do, I believe, celebrate at least some of those whom the electoral process put into high political offices.

A last, and probably more tendentious point which I'll leave in the form of a question: how might the electoral process work had people been born into and raised in deeply democratic systems which inculcated an appreciation for not merely the pursuit of personal interests but for the general good?

Anonymous said...

GW Bush lost the 2000 election--by about half a million votes, then won in 2004.
Even if Bush had received all of Buchanan's votes he still would have been second to Gore.

Jerry Fresia said...

Hundreds of thousands of names wrongly purged from GA voter roles:

Dems continue to fail to make voter suppression an issue. Leads me to believe that they, along with
Repubs, prefer that poor/minority voters are disenfrancised in order to avoid a "crisis of democracy" or
"state overload" as Harvard's liberal Samuel Huntington called it in the 70s.

David Palmeter said...

Why would Dems favor the disenfranchisment of people who would otherwise vote for them?

MS said...


If the Constitution had provided for the election of S. Ct. justices, could we not expect progressive justices, such as Brandeis, Black, Douglas, to still have been elected? I do not believe so. With respect to the post-bellum 19th century justices, the most liberal were John Harlan and Oliver Wendell Holmes. Justice Harlan’s most famous decision was his dissent in Plessy v. Ferguson (1895), which established the separate but equal doctrine that sustained the constitutionality of segregation. Although Harlan may have been elected, so would the conservative justices who formed the majority that ruled against him. With regard to Holmes, his liberal streak was demonstrated in his dissent in Lochner v. New York (1905), in which he opined the Constitution did not favor one economic system over another. He was outvoted by his conservative colleagues. I doubt direct election of the justices would have resulted in a more liberal Court.

Turning to the more progressive justices starting with Brandeis, I doubt he, or any of the Jewish justices who succeeded him (Cardozo, Frankfurter, Goldberg, Fortas – not all of whom were liberals, e.g., Frankfurter) would have been elected. Anti-Semitic sentiments were widespread in the U.S. during the 1st 60 years of the 20th century. Truman, for example, is held in high esteem by most older Jewish Americans due to his support for the establishment of Israel. Before Truman entered politics, he had owned a haberdashery with a Jewish partner, Eddie Jacobson. When Truman became President, Jacobson lobbied Truman to support the UN plan for the partition of Palestine, which he did. However, what most Jews do not know is, in private Truman was derisive of Jews. Bess Truman was even more vehemently anti-Semitic. When David Susskind, the TV producer, went to Missouri to interview Truman, he asked why he had not been invited into the house. Truman responded his wife would not allow Jews in their home. So, if Americans elected S. Ct. Justices, I doubt any of the Jewish justices would have been elected.

Re your 2nd question – if Americans have been able to elect some politicians whom we hold in high regard, why couldn’t the same outcome result from the election of justices? If justices were elected, candidates would be nominated by the parties and would run against each other. Currently, nominees for the S. Ct. avoid discussing their views re issues that may come before them. This is to insure they view these issues w/ neutrality before they have read the briefs and seen the evidence. If S. Ct. candidates were elected and abided by the same protocol, the only way the public could learn their positions would be to review their record. I doubt many would put in the effort. Politicians, by contrast, are free to give speeches about their policies and objectives. This process sometimes yields eminently qualified victors. I doubt the same result would occur if voters had to do their own research on S. Ct. candidates. In Michigan, where I live, all judges are elected. Candidates for the MI S. Ct. are nominated by the parties, but their names appear on a non-partisan ballot. I don’t believe the results have been salutary. Although both of our senators are liberal Democrats, the S. Ct. is controlled, and has been for years, by conservative Republicans. I do not believe justices like Black, Douglas, Brennan, would have been victorious is such a process.

Finally, could not a society be sufficiently inculcated w/ democratic values that eminently qualified jurists could prevail in an election? I am a pessimistic cynic about human nature. I do not believe such a society will ever emerge There are more “educated” people in the U.S. than there have ever been, yet I watch videos of Trump’s rallies, and I read comments by people on the internet, and I shake my head in dismay. I believe, in general, the human passions for wealth, prestige, and power overcome reason and charitable instincts.

Jerry Fresia said...


For the same reason that HRC was campaigning in Arizona, sought republican votes as opposed to campaigning in Michigan, etc, seeking the votes of workers. For the same reason that the Dem establishment fears even a Bernie type new New Deal more than moderate Republican victories. More directly, the Dem donor class has a very similar agenda as the Repub donor class. Or to put it another way, why isn't the massive voter suppression efforts by Repubs, efforts that prevented MILLIONS of Dems from voting (interstate cross check alone) ever made an issue by the DNC. Instead we hear about the Russians and Susan Sarandon.

Check out this 3 min video by Chomsky who talks about the Crisis of Democracy - a book published by the Trilateral Commission in 1973 (which was more "liberal" than not). They argued then that because so many workers, students, women, minorities, etc, who had previously accepted their subordination in politics became active in the 60s, pressing their demands ("state overload"); hence, there was a "crisis of democracy." Translation: there was a manifestation of democracy. That's always a crisis in an oligarchy.

M S said...

Below is an example of the kind of comments on the internet that make my head spin:

30 minutes ago
Appeasement by the Democrats in the run up to World War 2 was a causation of the conflict. After every war Democrats strip our military and then leave those on the front lines to take the bulk of the casualties when the next conflict arises. Democrats hate our country and should be all deported or at least put into camps to keep the rest of us safe.

Do we want a guy like that voting for Supreme Court Justices? It's bad enough that he's allowed to vote for President and Congress people. Would any amount of education inculcate democratic principles in him and allow him to reason?

MS said...


The DNC has been addressing the issue of voter suppression. See:


Hillary made a tactical blunder in going to Arizona seeking the votes of educated Republican women. She erroneously assumed that the blue collar Michigan workers would automatically vote Democratic – after all, Obama had saved the auto industry by extending loans to GM. She was not alone in believing that blue collar workers would reject the outrageous blandishments of a billionaire who claimed to identify w/ the common man.

MS said...


I meant Jerry.

MS said...

As I was writing my comments for this posting, I was reminded of Edmund Burke’s assertion, “The only thing necessary for the triumph of evil is for good men to do nothing.”

But as I thought about this quote, I realized that we often take comfort in aphorisms that are just not true. And this is one of them. The quote should more accurately state, “The only thing sufficient for the triumph of evil is for good men to do nothing.” Under Burke’s formulation, since he is claiming to identify a necessary condition, if that condition is not satisfied, if, for example, some good people do something to combat evil, evil should not triumph. But we know from empirical experience that this is not true. Often, evil triumphs even when many good people act to combat it. Kavanaugh’s confirmation, and Trump’s election, are just such examples.

Matt said...

Robyn's account is very odd as history and theory. The invocation of Ronald Dworkin is bizarre - it's like nothing Dworkin ever said. The account of the "counter majoritarian difficulty" is at best highly convoluted and not used in a normal way. It's getting at a decent point, but in a really unclear and unhelpful way.

Jerry said: Dems continue to fail to make voter suppression an issue.

This is false. Democrats at local, state, and national levels have been fighting this, in the courts (they have brought many cases, some with success, some with out), on the campaign, and, when they win, via legislation. To know this, you just have to actually pay attention.

MS said...

If you have any doubts whether anti-Semitism is still alive and well in the U.S., see:

Jerry Fresia said...

To those who believe the Dems are making voter suppression an issue:

1. I don't doubt that certain Dems at some levels have made voter suppression an issue. Gerrymandering, for example, has gotten a fair amount of attention.

2. But let me ask you this: when it comes to the 2016 presidential election, how many of you that believe Dems have made election integrity, voter suppression, electoral fraud, or "meddling in the election" by AMERICANS an issue? How many of you or know of interstate crosscheck?

I doubt many of you have. It just isn't picked up or publicized by Dems; it's not nightly news, night after night, on "MSDNC."

How many of you have heard about the Russian "meddling" in the 2016 presidential election? If the Dems are hot on the trail of domestic voter suppression why the enormous disparity?

Which "meddling" swung the election?

3. To give you one example: compare the Trump margin with Dem voters purged by crosscheck in the following states, which had they gone Dem, HRC would be in the White House today? Hear anything about it?

Trump victory margin in Michigan: 13,107
Michigan Crosscheck purge list: 449,922

Trump victory margin in Arizona: 85,257
Arizona Crosscheck purge list: 270,824

Trump victory margin in North Carolina: 177,008
North Carolina Crosscheck purge list: 589,393

Seems hugely important to me. Why aren't we bombarded with that information?

Trump won Wisconsin by 22,748 votes; WI voter ID law suppressed 200,000 votes.
Any special counsel for this sort of meddling? "MSDNC's" Do Rachel and Joy obsessively push this issue?

4. In Detroit, 75,000 Black voters mysteriously failed to vote for a presidential candidate? (Trump's margin in MI was 13k).

Does anyone seriously believe that 75,000 Black voters went to the polls and didn't vote for either of the presidential candidates? Isn't this an important story?

Which have the national Dems made an issue of? 75,000 black votes from Detroit mysteriously missing in Detroit or Russian Facebook trolling?

Where are John Brennan, James Clapper, Nancy Pelosi, Obama, HRC, Perez, Feinstein, Schumer on all of this? especially when compared to the focus on the evil Putin and the Kremlin?

Remember, political parties, while rallying coalitions of voters to win elections, represent coalitions of capital and today finance capital is in the drivers seat in both parties. Better to play nice and let Repubs slip through than play hardball and then be beholding to the bottom 70 percent of the income scale which Chomsky rightly argues are essentially disenfranchised to begin with. From the point of view of the Dem establishment, the "Left" is the enemy not Republicans.

s. wallerstein said...

Very impressive, Jerry.

I believe that Professor Wolff should publish your last comment as a separate guest post so that people not subscribed to this thread can read it and comment on it.

Michael S said...

One explanation for the data presented regarding voter suppression - Democrats know that (1) it is dull, and so will not get media time and/or they do promote it, and get little-no media coverage; (2) they know the chances of anything concrete changing are (a) low and (b) are significantly raised by them getting power, which is not going to happen if they are dull or a media non-entity.

Not the only one, but one. Not discounting bad faith in the higher Democrat echelons.

MS said...


Your comment, and the headline of Greg Palast’s opinion piece (The Election Was Stolen – Here’s How), are extremely misleading. You and he are suggesting that the names appearing on the voter registration purge lists represent people who were actually prevented from voting. They do not. Neither you, nor he, know how many of those whose names were purged from the voter roles actually showed up to vote and were prevented from doing so. The list is based on cross checking first and last names, and dates of birth, of voters who have registered to vote in the several states that subscribe to the cross check service. Duplicates often occur because a person who registered in one state, then moved to another state and registered there, w/o contacting the original state to have his/her registration in that state removed.

If a person shows up to vote and his/her name has been purged, it does not mean that they are prevented from voting. If the person insisted that there was an error, he/she would provide proof that he/she was living in the state in which they were seeking to vote and would complete a provisional ballot. The fact that their name has been purged does not mean that they did not vote. While Palast refers to these as “placebo ballots,” and doubts that they are counted, he does no know that they were not counted. The actually could be included in the voter counts that he reports and still resulted in Trump receiving more votes. Yes, the process makes it more difficult for those whose names have been purged to vote, but it does not prevent it. So, comparing the vote differentials between Clinton and Trump, w/ the number of voters whose registration was purged, proves nothing.

It is well known, morover, that the cross check system produces numerous false positives. In June, 2018, a federal judge in Indiana issued a decision prohibited use of the system in that state. See

And the problems w/ cross check have been reported by others besides Palast. See

The ACLU was reporting problems w/ the system in 2017. See

In June, the S. Ct. ruled that Ohio could, constitutionally, purge the names of voters who have failed to vote in several elections and did not respond to a notice from election officials. The Democratic Party argued against that position. Since the S. Ct. has ruled, there is nothing that the Democratic Party can do to remedy this inequity. But what the Russians are accused of doing, stealing emails and hacking voter roles, does involve illegal conduct, and therefore does merit our concern and attention.

What disturbs me is that you jump, based on your mistaken conclusion that the number of purged names also represents the number of voters who were prevented from voting, to the conclusion that the Democratic party has not publicized the issue because it is complicit in some elitist conspiracy against progressive candidates and progressive policies. As David Palmeter pointed out above, why would Democrats want to capitalize on a system that prevents minorities from voting? Your suggestion that they would want to so capitalize promotes a distorted theory that unjustifiably sows paranoia and distrust. There is enough actual corruption in our government that we do not need to add specious claims that engender in the electorate a sense of disgust and an erroneous belief that even the purported liberal Democrats, who pretend to be their friends, are actually wealthy, self-interested capitalists who are willing to betray them.

David Palmeter said...

Michael S

I share much of your view, but am at a loss as to why even the higher echelons of the Democratic Party would not stress voter suppression if they thought it would help. I can see no reason why they would prefer to lose rather than raise a winning issue.

While this is very much a national election, in that it is a referendum on Trump, the issues being raised in specific campaigns are those raised by the candidates in those campaigns. Thus, some, for example,say they will not vote for Pelosi for Speaker while some support her and others say nothing. All are getting support from the Party. The major positive issue being raised nationally seems to be Medicare for all.

I think the question is a tactical one. Will it get more votes (from those who are going to vote anyway) to raise the issue or not? Is it worth talking about this rather than slam Trump and support Medicare for all?

Institutionally, the Democrats are fighting suppression in the courts. My inbox gets constant requests for contributions to support the effort.

s. wallerstein said...

It's interesting that Trump now claims that the Democrats want to convert the U.S. into something like Venezuela.

That exact bit of fake news was used successfully by rightwing billionaire Sebastian Piñera in his successful electoral campaign for the presidency of Chile last year. He coined the term "Chilezuela" and claimed that his opponent in the run-off, Alejandro Guillier, a lukewarm center progressive, ex-TV anchor known more for the quality of his voice and his distinguished looks than for having radical ideas, wanted to turn Chile into the equivalent of Venezuela, which Piñera called "Chilezuela". The "concept" caught on in the social media among the less politically aware members of Chilean society and was an important part of Piñera's campaign strategy.

MS said...

During the brouhaha of the Kavanaugh confirmation hearing, I missed this ironical news report. On Tuesday, Oct. 2, while the FBI was conducting the background investigation of J. Kavanaugh, the Supreme Court heard oral arguments dealing with the question whether it is cruel and unusual punishment to execute a convicted felon who, due to suffering a stroke while incarcerated, cannot remember the crime or why he has been condemned to death. See

Now that Kavanaugh – a man who denies that he attempted to rape a woman, who, many believe (assuming he was not outright lying), cannot remember the crime because he was intoxicated and blacked out – has been confirmed, he will participate in rendering a decision whether such an execution would violate the Constitution. Is there any doubt as to how he will rule?

MS said...


I just checked. If Kavanaugh (I cannot bring myself to refer to him as Justice Kavanaugh) was not on the bench to hear oral arguments on a case, he will not participate in the decision - unless, if there is a 4-4 tie, they will reschedule oral arguments. Should that occur, again, is there any doubt as to how he will rule?

MS said...

That was dumb! I just did refer to him by his undeserved title. Ugh!

David Palmeter said...

This is an explanation of why, as a tactical matter, Democrats haven’t made voter suppression a major issue:

“Fear and anger over the GOP’s health policies are driving a majority of Democratic voters to the polls in an effort to flip control of the House and put the brakes on the Trump administration’s agenda, according to POLITICO-Harvard polling gauging voter attitudes before the midterm elections.

“More than half of Democrats likely to vote in House races rank health care as 'extremely important' in determining their vote, the new survey found. That’s more than any other factor in an election cycle that Democratic candidates have cast as a referendum on Republican attempts to dismantle the Affordable Care Act.

“Yet the focus on health care appears confined to the Democratic side of the aisle. Republican respondents to the POLITICO-Harvard T.H. Chan School of Public Health poll are primarily influenced by terrorism, jobs and gun policy — a sign of deepening partisan divisions in the Trump era.”

MS said...

Below is a link to an interesting 4-part article that addresses two of the main themes in this posting’s thread: the regressive tendencies of the Supreme Court and voter suppression efforts of the GOP. The 4 parts present the differing views of Christopher Sprigman, Prof. of Law at NYU, and Daniel Hemel, Assistant Prof. of Law at the U. of Chicago School of Law.

MS said...

And here’s another link to an article that discusses how the “Gorsuch brief” is replacing the “Kennedy brief,” in which attorneys on the progressive spectrum are writing briefs that appeal to Gorsuch’s textualist judicial philosophy. The article discusses an immigration case that was argued before the Court this week, in which the meaning of the word “when” is the linchpin. The case demonstrates what has been previously discussed on this blog – how semantics and syntax play a critical role in judicial decisions. The attorney for the ACLU was particularly creative and garnered a compliment from Gorsuch.

MS said...

The New Georgia Project is suing Brain Kemp, Georgia Attorney General and gubernatorial candidate, over claims that he has been utilizing Georgia’s “exact match” statute in a campaign to suppress voter registrations of minorities. See:

Anonymous said...

MS: Your comment on the effects of language on legal interpretation reminds me of the famous exchange between Humpty Dumpty and Alice, in Through the Looking Glass:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that's all.”

I suppose that Trump and Kellyanne Conway fit the Humpty Dumpty role better than Gorsuch does, but Gorsuch will be around a lot longer than either of those yeggs will be, and he’ll be making words mean he wants them to mean, and making the law talk his language, all that time.

MS said...


That’s a great quote from Alice’s Adventures in Wonderland. (Another of my favorites – “Sentence first, verdict afterwards.”)

You may be right about Gorsuch, and I am inclined to agree that he is a hypocrite (as Scalia was - see Bush v. Gore). The case that I referred to, Nielsen v. Preap, will be a test case on how honest he is to his commitment to textualism. The case involves a federal statute which provides that the Secretary of Homeland Security “shall take into custody” a noncitizen who has committed certain crimes “when the alien is released” from criminal custody. The administration is arguing that the statute allows the government to keep an alien so arrested in custody for an indefinite period of time. The ACLU is countering, in an appeal to avowed textualists like Gorsuch, that the word “when” means exactly that - immediately upon release. If the arrest is not made immediately, the ACLU argues that, for example, if an arrest is made a day after release, the provision does not apply and the alien cannot be detained indefinitely, but is entitled to the conventional criminal protections of any defendant, e.g., a bond hearing, preliminary hearing to find probable cause, etc. Gorsuch seemed genuinely intrigued by this argument. But it does raise questions about how immediate immediately must be – if the government arrests the individual one second after release, is it too late? We will see how honest a justice – and a grammarian – Gorsuch is.

MS said...


My error. The exchange between Alice and Humpty Dumpty is, as you indicated, in Through The Looking Glass, not Alice's Adventures in Wonderland.

MS said...

While researching a question - how many S. Ct. justices ever actually tried a case (it turns out that Gorsuch is the only justice who has actually tried a case) - I cam across this criticism of Kavanaugh expressed by Ted Kennedy during Kavanaugh's confirmation hearing for his appointment to the D.C. Circuit:

Unlike most of the members of the DC Circuit, Brett Kavanaugh is not a judge, an experienced litigator, or a legal scholar. Far from it. Mr. Kavanaugh is a political operative, a man whose ambition has placed him at the center of some of the most politically divisive events in recent memory. He is not qualified for this position. If his nomination is approved, I can say with confidence that Mr. Kavanaugh would be the youngest, least experienced and most partisan appointee to the court in decades.
Mr. Kavanaugh blatantly lacks the broad legal experience that is the hallmark of federal judges — particularly those at the highest levels. He has never tried a case to verdict or to judgment. In fact, Mr. Kavanaugh has only practiced law for ten years. Even counting his time as a law clerk, he still has only half of the average legal experience of nominees to the DC Circuit. To put this in context, Mr. Kavanaugh would be the least experienced member of the DC Circuit in almost a quarter century.
His lack of experience is underscored by his responses to questions from [Senate] Judiciary Committee members. When he was asked to name his 10 most significant cases, Mr. Kavanaugh could only cite five cases for which he actually appeared in court, and only two cases in which he was lead counsel. He even cited two cases for which he merely wrote a friend-of-the-court brief for someone who was not a party to the lawsuit.

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