The Ginsburg Gamble and the Future of the Supreme Court

225px-ruth_bader_ginsburg_scotus_photo_portrait 500px-The_CardsharpsBelow is my column on the unfolding future of the Supreme Court after the confirmation of Justice Neil Gorsuch and the elimination of filibusters in the selection of Supreme Court nominees.  For years, commentators have been discussing the timing of the retirement of our older justices, including Justice Ginsburg.  There was rising concern when Ginsburg decided to stay on the Court past the midterm mark of the second Obama term.  Those concerns have now been magnified and realized with the Trump election and filibuster elimination.  Of course, the same concerns are raised by the possible retirement of Justice Anthony Kennedy, the swing vote on the current Court.  New rumors have arisen  this week about Kennedy. However, of all of the older justices, it is replacement of Ginsburg that could produce the most profound changes for the country.

The confirmation of Neil Gorsuch to the United States Supreme Court represents a huge political victory for Majority Leader Mitch McConnell, who gambled on blocking the nomination of Merrick Garland in the hopes of a GOP electoral victory.

It may also have been an equally huge loss for the of Justice Ruth Bader Ginsburg, who ignored increasing calls for her retirement during the Obama administration to avoid the prospect of the flipping of her seat from a liberal to a conservative member. That gamble — whatever calculation — could now cost a sweeping number of key cases hanging by a 5-4 margin, including much of the precedent built around Roe v. Wade, if not an outright overturning of that decision.

Some of the smartest people can stay too long in a game on the assumption that they can gain more with time. Even Sir Isaac Newton was virtually wiped out by such a gamble. Newton invested heavily in the South Sea Company, which was granted a monopoly on trade in the South Seas. The payoff was initially huge as shares continued to rise. Newton made a lot of money and cashed out.

However, with shares still rising, he then tripled down — buying even more stock at three times the original costs. He stayed too long when some were questioning whether the rise was illusory and unsustainable. Then came the crash and Newton’s stock fell faster than his proverbial apple. He lost a fortune for the time £20,000 — virtually the entirety of his estate.

Various advocates suggested for years that Ginsburg might be staying too long on the Court. Those suggestions became more and more blunt as Obama’s second term progressed. What began as polite suggestions that it “might be time to leave” became more and more pointed, if not panicked, in the last two years of the Obama term. Recently, CNN’s Chris Cuomo put it in the most vivid terms and asked a senator, now that Trump is president, “What if Ruth Bader Ginsburg runs out of gas?”

At 84, “running out of gas” was obviously not a reference to the danger of creeping fatigue. For Ginsburg, of course, it was always a difficult decision. After all, she remains intellectually active and fully engaged on the Court. Her opinions continue to be powerful and probing treatments of the law. The precedent at risk is in no small degree precedent of her making. Yet, many justices time their retirements with an eye to who would appoint their replacements. Some have admitted that they try to engineer an appointment by one party or the other to preserve the balance of the Court.

Had Ginsburg retired early in the second Obama term, it is likely that her seat would have been filled even by a Republican-controlled Senate. Any resistance would likely have been further reduced with the second vacancy left by the death of Antonin Scalia. While Scalia’s seat may have stayed open, it is likely that Ginsburg’s would have been filled by an Obama nominee.

Now Ginsburg’s gamble on Hillary Clinton being elected could have sweeping impact on precedent that she played a major role in creating. With the elimination of the filibuster, the next nominee is hardly likely to be nuanced. Without the filibuster, Republicans have no excuse to compromise on a moderate. There is nothing standing in the way to appointing someone who is openly opposed to cases like Roe v. Wade. There is no plausible deniability based on the need to get to 60. In other words, the market has changed and the stock went bust.

The future could not be more evident than one of the first cases to be heard by Gorsuch. In Trinity Lutheran Church of Columbia v. Pauley, the Court could render a sweeping new protection for religious organizations. The church was denied funds to resurfacing its playground because of its religious purpose while giving the money to non-religious organizations. It is a case built for Gorsuch who has always interpreted the religious clauses broadly. While he will likely vote similar to Scalia on such issues, the replacement of Ginsburg by the Trump administration could herald in an era of greater entanglements between church and state.

Gorsuch will also hear Weaver v. Massachusetts and Davila v. Davis, which could define the outer limits of Sixth Amendment rights to counsel. He will also hear Maslenjak v. U.S., which will deal with the power of the government to strip someone of U.S. citizenship over immaterial but false statements made in her naturalization as a Serbian immigrant.

From the use of race in college admissions to abortion to police powers, the GOP could achieve objectives in this administration that have eluded Republican presidents for over six decades. It is not clear if Ginsberg was betting more heavily on herself or Hillary, but many may conclude that the bet was reckless given the stakes on the table. For a few years on the Court, Ginsburg risked Trump “running the table” and the odds now favor precisely such a result.

For Ginsburg, she may reach the same conclusion as Newton who reportedly (and perhaps apocryphally) said, “I can calculate the movement of stars, but not the madness of men.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified at the confirmation hearing of Neil Gorsuch in support of his nomination to the Supreme Court.

136 thoughts on “The Ginsburg Gamble and the Future of the Supreme Court”

  1. Would it be OK if I cross-posted this article to I’ll be sure to give you complete credit as the author. There is no fee, I’m simply trying to add more content div5ersity for our community and I liked what you wrote. If “OK” please let me know via email.


  2. and it all started with one rogue Judge playing dictator. HEY don’t pull that thread!!!!!

  3. As for our sponsor Professor Turlow I’ll leave the one question in his capable hands. Can the President recuse him or hersel on any single issue…ever…short of a temporary time sensitive that is limited step down in favor of VP Pence of the type we read about in fiction books or when a President is temporarily incapacitated? I couldn’t find anything in the constitution that said, ‘except in the case of…..’ Or maybe some of our brighter bulbs can weigh in.

    As for Can the President declare war? Try reading the manual of citizenship sometime before asking such a silly question. The answer is No. His baliwick isw conducting wars. This one since congress has not declared and end to the permission granted by the Congress when the War Powers Act was initiated at the request of President Bush II and therefore is valid as the war has been held to be continuing and that proof is the actions of the previous regjme. Until they do there is no need for a further declaration or permission since whoopsie it was never declared by those having that repsonsibility in the first place.

    Methinks some chickens just found their way home and roosted on the capitol building. See how one thing leads to another…when first we practice to deceive….. (No wars declared since WWII) not Korea, Not Vietnam…None. )

  4. Te Supreme Court may well be under fire along with congress as both are clearly complicit in the rise in voter fraud. Constitution gives States the sole right to conduct their own voting procedures. Yet the in between courts partially put in place by Congress and clearly as part of the Supreme Courts Judicial Branch AND the rogue courts stuck over in the Executive branch without judicial oversight routinely manage to screw things up without regard to te rights of citizens or the demands of the Constitution. Something than can clearly be abvoided by moving the rogue courts INTO the Judicial Branch and requiring the Judicial Branch to manage and supervise their activities ….. I’l finish this thoughht at the end.

    Texas got in hot water with one lone solo Judge who objected to the Texas version of gerry mandering but did not it seems apply it nation wide. or 49 other states would have felt the lash of judicial dictatorship-ism. I may be wrong and they just haven’t got to Part II yet.

    Texas Part II fixed that but cleaned up the problem by adding photo ID. as a requirement as it is for most everything else in the country too include attending the movies. Now a second rogue judge as banned that practice claiming it is prejudicial to certain elements.

    BUT no Judge seemed to mind the use of on the on the spot manufacture of fraudulent ID in the form of signed affidavit with no proof of who was signing the document. . Now THAT is a clear cut case of Stupid is as Stupid does. and backs up not only why voter fraud IS a problem but why it continues to be a problem and more…why these unsupervised rogue agencies are still running amok weilding legislative AND Juidicial AND Executive branch powers.

    I see President Trump is after the legislative side and the executive side but is he after the rogue courts side or…waiting until his own personal involvement is over because how does a President recuse himself (the current IRS examination of the business records and taxes which called for the non release of records until they were conlcluded)

    Can he recuse himself in just this one area and let Vice President Pence drain the rogue courts and judges swamp? Probably not. It’s the one job that is not recusable I should think. Can he put it off for 7 and 3/4 years to let President Pence handle the problem?

    Not and get rid of the Deep State Fourth Branch of Government as was promised.

    Meanwhile Texas is doomed to voter fraud and probably the rest of the nation . Wonder how much those two judges cost Soros to buy?

    Meanwhile Trump’s people decided their case before the Supreme Court on immigration which speaks to this same issue from a different start point. The problem of phony ID or no ID still exists and is being flouted by the un requrested mailout of ballots to former addresses, the use of affidavits to replace ID – on the spot – with no proof of anything – and the objection to requjring photo ID much less I’m sure a thumb print or finger print. President Trump himself was a victim of voter fraud …so I have ask why this avenue of swamp draining was dropped, to what purpose and ‘cui bono’ who profits?

    Wo suffers? The good ole citizens of the USA and remember that when you vote locally because many Judgeships are one man or woman races with no competitition. Ask if the candidate or if you are lucky the cadidates intend to follow the Constitution or if they are ACLU acolytes of George Soros. In the 19 free states use the recall and the 31 slave states get the recall put into place. Those Judges start locally and work their way up in most cases. Things like ACLU membership and party membership often not used in elections for Judges and Sheriffs too have a great impact and those FACTS should be public knowledge.

    It takes more than a federal level vote for those at the top once every two or four years to get the place cleaned up and reinstate the Constitutional Republic we just worked so hard to save ..or at least slow down it’s slide into becoming a foreign ideology like Marxist Leninism or worse.

    Ranting and drum pounding. Maybe. But sounding boots and saddles is not the same as sitting by doing nothhing while citizens such as those in Texas are punished for voting for the other party or against the Judges party or for our Representative Constitutional Republic. So maybe the bugler should sound Deguello at the local elections and perhaps the rights to Initiative and Recall enjoyed by 2/5ths of the nation will be gained by the entire nation.

    (I’m sure you recognize Boots and Saddles but perhaps not Deguello Day Gway Yo) It’s Spanish meaning No Quarter. something no Texan or Tejano does not know. and that means No Quarter or another way Take No Prisoners. So not to sound too violent and scaring the little snowflakes half to death let me modify that a bit by saying also….Ballots Not Bullets – a two vowel difference. but it worked on Nov 8th 2016.

    Viva Tejas!

  5. (Music)
    Old and in the way…
    It’s what I’m gonna say…
    You never live your life right when…
    You’re old an in the way.

    I used to be a gambler…
    I lived on rum and vitamin D.
    A new court came along…
    They started doing gong..
    Then the old courthouse …
    Got old and in the way.

  6. (music- to the tune of Little David Susskind, Shut Up!)

    Old Lady Ginsburg, Shut Up!
    Old Lady Ginsburg Shut Up!

    1. Little David Susskind-
      Shut up
      Please don’t talk; please don’t talk
      Little David Susskind-
      Me first
      Then you’ll talk

      I went down to Mt. Sinai – Hospital
      To see my old zaydie there
      And I said, Thanks God
      For the Blue Cross
      And I wish we had the Medicare

      God bless you, Jerry Mendelbaum
      Let nothing you dismay
      This May you had a rotten month
      So what is there to say
      Let’s hope next May is better
      And good things will come your way
      And you won’t have a feeling of dismay
      Next May

  7. It’s a good time to bring the Sweet Home, Oregon Bakers case forward and test the public accommodations laws against the First Amendment.

  8. The founders of this country erred in one basic assumption: that is that anyone elected President or for the Supreme Court would be, first and foremost, a patriot, and therefore, would put the best interests of this country first, ahead of personal gain, political ambition or anything else. That’s because they were patriots and this drove their priorities in drafting the Constitution, among them, that government and religion do not mix. Everyone knows that The Rump and Gorsuch both have agendas, and that neither is driven by patriotism. For The Rump, it is personal aggrandizement: he wanted to be the biggest big shot of all. He’s a pathetic 70 year old rookie that’s in way over his head, and his main accomplishment so far have been to piss off a lot of people, alienate other countries and make work for lawyers. For Gorsuch, it’s the opportunity to shove his personal brand of extreme conservatism down everyone’s throats, because, after all, he knows best. Also, anything to funnel taxpayer money to religious groups, so long as they are Christian. The mere sight of either of them makes me sick to my stomach.

    1. “The founders of this country erred in one basic assumption: that is that anyone elected President or for the Supreme Court would be, first and foremost, a patriot, and therefore, would put the best interests of this country first, ahead of personal gain, political ambition or anything else.”

      Have you bothered to read ANY of the Federalist Papers or other original source documents from the founding era? They assumed exactly the opposite of what you believe. The Constitution and Bill of Rights are examples of the deep concerns they had regarding human nature. Federalist 51 is a testimony to that concern. The following quote from that has been used quite often to express this principle:

      “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

      1. It’s doubtful that structural feature can fully compensate for an absence of any sense of the public interest. Compare the (flawed) federal politicians we had during the period running from 1933 to 1961 with those occupying those positions today.

        1. The structural component of self-government is wholly overrated and the human nature component is wholly underrated.

    2. I’m beginning to think Natacha’s a bot released by some component of the sorosphere, or perhaps the DNC press office.

  9. KarenS, there are plenty of older folks who remain sharp – look at Noam Chomsky at 88 or Sheldon Wolin who continued to write until his death at 93 – or Clint Eastwood at 86 or Mick Jagger at 77 or Maggie Smith at 82, etc. all of whom remain highly productive. I have a dear friend who just turned 80 and she is more mentally agile than many 35 year olds.

    If “mental acuity” tests should be become standard then they should be administered across the age spectrum.

    Quite frankly I am more terrified of the young snowflakes coming up –many of whom seem incapable of independent thought as they have been trained to take tests like monkeys in a cage.

    1. All of Noam Chomsky’s writing is either esoteric and of scant interest to those not working in psycholinguistics or it’s dreck.

      1. Meaning you don’t comprehend it.

        Speak truthfully and plainly.

        1. I don’t study psycholinguisitics so I don’t care if I understand it or not. He’s known also for his political writings, which are dreck and have had no influence whatsoever in academic political science.

    2. “Quite frankly I am more terrified of the young snowflakes coming up –many of whom seem incapable of independent thought as they have been trained to take tests like monkeys in a cage.”

      Good point. They are trained parrots.They have not been encouraged to really think for themselves and analyze..Afterall, snowflakes melt when the temperature increases. The problem of the ‘thinking challenged” snowflakes and how they became that should be of gr concern to all of us. Developing an analytical mind which can see a whole and not just parts is key to our society. We need to be develop minds, not mental clones.

  10. “Some have admitted that they try to engineer an appointment by one party or the other to preserve the balance of the Court.”

    I disagree in part. I do not believe that Justices are trying to maintain a “balance” of views in the Court, but rather gain a political advantage. I suspect that Ginsberg would have been pleased if a Liberal replaced Scalia, even though that would change the “balance” of the Court.

    I think that Professor Turley’s earlier suggestion to increase the size of the Court is a good idea. It would limit the influence of any one President.

    The Democrats made a fatal error in the filibuster, as now that option has been removed. On the other hand, I believe that the filibuster is not a “cooling saucer.” The Senate was intended to sufficient time to debate and make reasoned, lengthy arguments. Reading the phone book for 15 hours or reciting poems just to fill the time and avoid a vote is not debate. It’s an abuse of the time allowed. And I also think that Republicans should have voted on the last candidate that Obama offered. The problem is that everything is of course steeped in politics, and that every loophole possible is exploited by both parties in order to influence the makeup of the Supreme Court.

    There is another very uncomfortable issue that will need to be addressed in this generation. 1 in 9 people over age 65 have Alzheimers or other dementia, but that figure rises to 1 in 3 over age 85. Having a keen intellect and rapier wit is not protection against this scourge of modern times. It is now the fifth leading cause of death. I pray for a cure, but in the meantime, early diagnosis takes on a new urgency as this disease becomes more common. It may not be PC, and is a frightening scenario to contemplate for those over 65, but mental acuity tests should become part of annual exams required for those in positions of power, just as all of us have to retake our drivers test as we get older. The POTUS, VOTUS, SCOTUS, military, doctors, and anyone else for whom mental acuity is critical should be tested at least every other year. The alternative is to spin the wheel, and if odd symptoms crop up, wait until it’s so severe that we may have to force someone to get a medical exam. Most people with Alzheimers exhibit symptoms for years before they are diagnosed. Can you imagine the repercussions if that occurred with someone on the Supreme Court?

    I realize this may be perceived as insulting to our elders in important positions. But it’s merely required testing indicated by statistical averages as we age. It’s the same for women who get pregnant over the age of 35, when their OB recommends additional testing and counseling.

    1. Karen S:

      “Can you imagine the repercussions if that occurred with someone on the Supreme Court?”


      Sure can. Several SCOTUS justices were disabled for years yet still made nation-altering decisions. See Rehnquist, William and Placidyl, or JT’s 2007 article about other ones here:

    2. Geez louise. Just set an age limit. We really do not need to inject doctors with contrived inventories into constitutional procedures.

      1. In Canada,the age limit for Federally-appointed judges is 75 no matter what.The present CJC, Beverly McLaughlin,is approaching that limit and almost everyone will be sad to see her retire because she is not only brilliant but extremely gracious.She could more than competently preside for many more years.However,even she would,no doubt,agree with the principle of mandatory age limits.As a matter of fact,I hope to see her this summer at the Cambridge Lectures and I intend to put to her that very question.As an aside,Justice Scalia regularly attended these Lectures which are held every second year.I believe this will be the first time in a long time without him.He,too,was brilliant and gracious.He will be sadly missed by all of us. I hope Justice Gorsuch or some other USSC Justice continues this treasured tradition.

    3. A Supreme Court Justice has clerks that do most of the work so not as much of a problem as the demented prez with access to nukes.

    4. Agree with you. With some types of dementia, the symptom onset is slow and insidious. The most common response in affected individuals is denial and attempts to mask symptoms until the disease progresses to the point where this is no longer possible. I would hope there is some internal process for a neurological evaluation. Also, some types of dementia can begin earlier in life.

  11. We need a constitutional “credit” score for our public servants. Their score drops every time they vote against something determined to be constitutional. Have a minimum score required for reelection. For judges, set a minimum score for appointment or nomination to a higher court. No lifetime appointments; term only for not meeting a certain threshold.

    1. I suppose you and Raytheon Company recognize the score of the guy you voted for, Trump, dropped when he tossed 59 Tomahawks into Syria killing at least six people and destroying 20 Syrian aircraft without a congressional declaration of war in violation of the federal Constitution?

        1. Olly,
          Does it have to be ruled on for Congress to impeach? Why are you so worried about constitutionality from the other two branches when the guy you voted for just attacked a sovereign state without providing reasonable evidence to Congress and without a declaration of war prior to the attack?

          If Trump tossed a nuke on the Palace of Westminster because he was bored, would it have to be ruled on before Congress acts? If not, why is your position not the same vis-a-vis Syria?

          1. Steve,
            Let me make this very easy for you to understand. I WANT Congress to go on record and make a declaration of war before the President actually makes war. I WANT the President to be limited to the powers identified in our constitution. The 1973 War Powers Resolution has been used by every President since to exert executive power without a formal declaration of war from congress. If the legislative branch sits idly by then what President is not going to follow the precedent of previous CinC’s?

            I WANT Congress to cease the standing ovations when the President tells them they are irrelevant to his agenda. If you want to pretend you’re arguing from a principled position, then you were of course up in arms when the last President was wiping his feet on Congress, right?

            1. Olly,

              “If you want to pretend you’re arguing from a principled position, then you were of course up in arms when the last President was wiping his feet on Congress, right?”

              I’m not pretending. Nice try. Whether the War Powers Act is in conflict with separation of powers doctrine or the requirement of a declaration of war under Art. 1 sec. 8 hasn’t been adjudicated. Whether the President has complied with the WPA has been deemed (in error to my mind) nonjusticiable. The current reality is that only Congress can remedy non-compliance with the WPA, and they’re letting him get away with it.

              Under the WPA, the President’s power to act as Commander in Chief is triggered exclusively by a declaration of war, specific statutory authorization from Congress (the WPA), or a national emergency created by an attack upon the United States. (50 USC sec. 1541(c).)

              More to the point:

              “The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.” (50 USC sec. 1542.)

              It goes without saying that Trump’s attacks in Syria and Yemen do not satisfy any of these standards.

              As for your assertion that I’m silent on Obama’s violations of Art. I sec. 8 and the WPA, and picking political battles, Obama should have been impeached and convicted, not just rebuked by Congress for bombing Libya, inter alia. The same goes for Trump in Syria and Yemen. Neither followed the WPA because the US was never attacked and there wasn’t congressional authorization otherwise, and that’s even leaving the requirement of a declaration of war for another day. Trump feebly attempted to establish compliance by alleging a purported sarin gas attack in Syria somehow was an attack on the United States and how suffocating children were dying a tragic death.

              Where’s your non-partisan outrage?

              1. “The current reality is that only Congress can remedy non-compliance with the WPA, and they’re letting him get away with it.”

                Good Steve, I’m glad you’ve recognized where the solution to the problem is. Impeachment is a prerogative of Congress. They got pantsed by the last President and if they couldn’t find a reason to impeach him, then they certainly won’t bring charges against Trump…yet.

                “Where’s your non-partisan outrage?”

                In the real world; you just haven’t been paying attention. This will be good. Maybe I haven’t paid enough attention to your commitment to a constitutionally-limited government. You know, the one that respects the separation of powers, and one committed to securing life, liberty and property? I will now though. And I hope you do the same for me.

                1. I want to respect your integrity, a large part of which is to stand at arm’s length from the Establishment parties on matters of law and our representatives’ obligation to follow it, but I’m not quite there yet.

                  Did you believe that Obama’s attack on Libya without consulting with Congress first was a violation of federal law or not?

                  Do you believe Trump’s act in destroying the Shayrat air base without consulting with Congress first was a violation of federal law or not?

                  They’re simple questions requesting simple yes-or-no answers.

                  1. “I want to respect your integrity, a large part of which is to stand at arm’s length from the Establishment parties on matters of law and our representatives’ obligation to follow it, but I’m not quite there yet.”

                    I’m not looking for your respect. My comments remain consistent and well documented with respect to the rule of law and the separation of powers. If you have not seen that then that is on you, not me.

                    I believe the actions of all Presidents that violate the intent of the separation of powers to be unconstitutional. In our system however, laws and precedent have enabled all manner of actions not supported by their constitutional limits. So no, your questions are not “simple”, they are irrelevant to the greater problem. I don’t know enough about the laws crafted to enable the administrative state to do what they do. Therefore I cannot tell you if Obama’s actions or Trump’s actions violate federal law. I can tell you I believe no federal law is just where their actions violate the rule of law and separation of powers.

                    1. The greater problem is dictatorship. It is a simple yes-or-no question, and by avoiding it, you’re part of the Establishment that’s given us non-stop wars since WWII. Either admit he’s violated federal statute and our Constitution by attacking another country and contest his claim of “flexibility” to do so or take off that patriot mask.

                    2. Steve,
                      Is English your second language? “I don’t know enough about the laws crafted to enable the administrative state to do what they do. Therefore I cannot tell you if Obama’s actions or Trump’s actions violate federal law.”

                      If the President has violated federal law, isn’t it then the responsibility of CONGRESS to take action? One more time and I’ll use all caps for emphasis: IF A LAW EXISTS OR PRECEDENT IS USED THAT VIOLATES THE PRINCIPLES OF THE RULE OF LAW AND SEPARATION OF POWERS, THEN THAT SHOULD BE CONSIDERED UNCONSTITUTIONAL.

                      If you do not want a dictatorship, then you’re peeing into the wind if you think the prosecution of ANY President will originate from the executive branch.

                    3. “If the President has violated federal law, isn’t it then the responsibility of CONGRESS to take action?”

                      Congress won’t budge if you’re sitting there like a couch potato shrugging your shoulders as if you don’t know what the law is. While I don’t know that a sitting president can be prosecuted for official acts, the remedy is House impeachment and Senate conviction proceedings.

                      You sure knew what the law was when Hillary Clinton was being grilled by the House for her private servers and on perjury. I remember how you were drooling for Hillary Clinton’s indictment for violations of federal classified materials disclosure and handling laws and lying to Congress. Trey Gowdy was the pitbull on the Hill. Remember? I was on board, too. Where are you and Gowdy now that it’s your party under the gun?

                      I might add that you’ve mentioned you’re a fan of originalism and textualism. Article 1 sec. 8, couldn’t be clearer with regard to Congress declaring war, not the President.

                      So, feign being another selectively-confused Establishment party hack, and let Congress handle it without you pressuring anyone against dictatorship and murder, maiming, and ruining the future of our servicemembers. That’s the winning ticket in 2020.

                    4. LOL! Steve, leave it to you progressives to be outraged that you’ve lost control of your own creation. Turley’s blog archives are replete with your capricious attachment to the constitution. So go try to sell your new found principles somewhere that doesn’t have a record of your old. 🙂

                      Thanks for trying.

  12. Quoting Kenny Rogers:”You gotta know when to hold ’em and know when to fold ’em”.Justice Ginsburg should have spent more time listening to country music and less time cavorting with her old friend Nino at opera galas.

    1. I second that! I think his range of views would appeal to both sides, and his ability to judge an issue without political glasses is fair and would ease the political tensions of the Court.

      1. As emotional as Turley gets regarding the environment, I have no confidence that he would be able to keep his opinion limited to the constitution.

  13. I don’t know that J. Ginsburg “ignored increasing calls for her retirement during the Obama administration to avoid the prospect of the flipping of her seat from a liberal to a conservative member.” Her obligation is to decide cases for so long as she sees fit, unmolested by the influence of naysayers.

    Further, that “risk” exists in staying on too long is an admission that the Justices are inherently political in their decisions while at the same time demanding that they not be. One can’t have it both ways.

    Besides, the “risk,” if there were one, of not retiring after Obama’s second mid-term was heavily tempered by the likelihood that a woman would be elected for the first time ever last fall.

    1. Her obligation is to decide cases for so long as she sees fit, unmolested by the influence of naysayers.

      She has no such obligation. Sticking around is something she does to please herself. Her real obligation is to conscientiously apply statutory law and the constitution, which of course she does not do.

  14. “Some have admitted that they try to engineer an appointment by one party or the other to preserve the balance of the Court.”


    Ok, with that little revelation can we please stop saying the court and its justices aren’t “political.” They have been since Justice John Marshall who, in response to the bitter election of Thomas Jefferson in 1800, wrote the opinion in Marbury v. Madison establishing judicial review (and some say judicial supremacy) reputedly before the case was actually appealed to his court.

    1. They have been since Justice John Marshall who

      I think it was Mary Ann Glendon who penned an article for First Things some years back discussing the modus operandi of the federal Supreme Court. She noted that state and federal legislation invalidated in the last 3d of the 19th century amounted to about two-dozen statutes. She also offered the view that the Lochner case was wrongly decided but that notions of ‘freedom of contract’ enunciated by the appellate courts of the era were rooted in common law. The Courts used to be very circumspect about intervening in policy disputes. See also Robert Bork: the conduct of the appellate courts over the period running of from 1954 to 1999 destroyed constitutional law as an authentic intellectual subdiscipline.

  15. Looking at the comments, isn’t it amazing how comfortable we are in looking at SCOTUS in partisan political terms. There was always some of that, but now the jig is up. We don’t even pretend the appointments are not primarily to serve the Presidents political agenda.

    The Founders never thought it would go this far. They were wrong, and it’s time to change things. How about: first appointment is 10 years. After that, extensions are by direct election by the voters.

    1. We don’t even pretend the appointments are not primarily to serve the Presidents political agenda.

      Progtrash have come to expect appellate courts (conspiring with the har-de-har public interest bar) will impose their agenda and strip legislative bodies of discretion in such matters. They fancy they’ve been injured when appellate courts refrain from doing that. This sort of abuse is simply never inflicted on progtrash, because there are no red states in the judiciary. The two appellate court decisions that progtrash bitch and moan about are Bush v. Gore and Citizens’ United. The former adjudicated an impossible situation dumped in the Court’s lap by the irresponsible and unprofessional conduct of Florida’s appellate courts. The latter was incongruent with the progtrash assumption that they should be able to organize themselves into corporate bodies to promote their agenda while their opposition should not be so permitted.

    2. igpres – the Founders did not have the foggiest about how things were going to work out. Chief Justice Marshall made up the powers of the Supreme Court as he went along. Everyone pretty much agreed Washington should be the first President, but after that nobody knew what was going to happen. Jefferson was against expanding the county until he was able to buy that little bit of land from Napoleon at a knock down price. There was no income tax, no Department of Education and the Secretary of Defense was called the Secretary of War.

      1. Again, see Robert Bork. Judicial review of statutory legislation (as in Marbury v. Madison) was a reasonable inference from constitutional provisions. The problem with Marbury was that the court majority deliberately misconstrued the Judiciary Act of 1789 in order to assert itself.

        1. Marbury v. Madison was a political document from the get-go that gave the President what he wanted but took back the power to invalidate anything he and his party pushed through Congress later. Is there any real doubt about that? It was an orchestrated victory for a third party to the constitutional conflict and a Pyrrhic victory for Jefferson. Anyone who knows anything about Richmond’s own, John Marshall, knows he was in every sense a “political animal” — just with very good natural camouflage. Must be the reason for those big robes.

          1. Mespo – I can’t wait to spend the afternoon researching what you wrote because at the moment it’s Greek to me, but sounds like there was some juicy political intrigue at the turn of 19th century.

          2. If I’m not mistaken, a grand total of three federal and state statutes were invalidated during the antebellum period. The power ‘claimed’ was not that important prior to 1933.

            1. The power “claimed” only applies to federal statutes. Congress clearly delegated the power of judicial review with regard to state statutes in the Twenty-Fifth Section of the Judiciary Act of 1789.

        2. dds – I do not include the First Congress in the list of Founding Fathers. Even then, they did not expect the court to misconstrue a statute to claim power for itself.

    3. That is depressingly true, the way we accept the partisan nature of the appointments and the judges themselves. They are indicative of the nation as it currently stands: a house divided.

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