Biden’s Supreme Court Commission Said What?

What do court packers have in common with Hugo Chavez? Take a listen to this ...

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What do court packers have in common with Hugo Chavez? Take a listen to this action-packed pod to find out. Sarah conducts a symphony of Supreme Court commission analysis, including guiding a walk through American legal history to explain the commission’s surprisingly conservative comments. David discusses the legal issues roiling the nation’s most controversial school district.

Show Notes:

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  1. Avatar photo
    Tom Kalbach

    DF: (regarding "anti-CRT" opinion) ". . . they have been arguing at length and at volume that teachers really don't have any free speech rights at all . . ."

    Is this a fair representation of the position of such a large and disparate group of people?

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    Sethallenbarrera

    I really wish I had this rundown of Supreme Court History last semester when I was taking my government courses. You answered a couple of questions that I accidentally stumped my professors with.

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    Bill Dyer (aka Beldar)

    Regarding the Presidential Commission on the Supreme Court: Thank you very much, Ms. Isgur, for your detailed report. There's lots of law-nerdy deep weeds here, and I am a law-nerd so I deem that a feature rather than a bug.

    But my ultimate reaction to the Commission and its report — including any surprises about how it got where it did, and who was outraged thereby — is to shrug my shoulders and roll my eyes. NOTHING is going to happen in the current (117th) Congress in reaction to this report. Not a single proposal it makes is going to be enacted into law before, at the very earliest, the 118th Congress is seated in January 2023. Moreover, unless the Dems (a) increase their margin in the House to a legitimate working majority even on this type of issue, AND (b) gain another couple of seats, with a resulting caucus that's willing to nuke the legislative filibuster — all of which seems improbable at the moment, just over a year out from the midterms — nothing that this Commission recommends has a chance of being enacted by the 118th Congress either.

    So I regard this as essentially no more meaningful than, say, some law school symposium. Those, too, often turn out beautifully written — but mostly irrelevant — reports.

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    Bill Dyer (aka Beldar)

    However did Mr. French bite his lip when Ms. Isgur referred to the SCOTUS as a "co-equal branch of government"? Didn't he reveal that to be one of his most passionate peeves an episode or two ago? For what it's worth, I think his opposition to the term is misplaced; he's using the term "equal" to mean "identical," and of course if that's the meaning one attaches, then there are indeed no "co-equal branches," just three different branches. He goes further to assign primacy among the not-equal different branches to Congress, for which there are also good arguments.

    But I think the term more generally recognizes that the three branches are "equal" simply in the sense that each has constitutional levers to push back against the other two. The levers Congress has include re-writing the Judiciary Act, for instance; the levers the Executive include an ability to ignore or frustrate the dictates of the other two when they're expecting their dictates to be given executive effect; and the levers the Judiciary has includes the asserted power to declare unconstitutional the actions of the other two.

    So I nodded at Ms. Isgur's use today of the term, and merely quirked an eyebrow when Mr. French bit his lip.

    I'll comment separately on the commission.

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      PaulH

      I noted that comment also, maybe Sarah was trolling him. I mainly dislike the term "co-equal" because I don't think it has any substantive meaning; as you point out the relationship between the branches is quite complex. It seems like the term "co-equal" is used when a person feels one branch has snubbed another branch; it is a short-cut "argument" that avoids actually analyzing an issue.

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  5. JayJoanFry

    When David and Sarah were pointing out the hypocrisy or inconsistency of Senate Republicans' in 2016 regarding the nomination of Merrick Garland as opposed to 2020 regarding the nomination of Amy Coney Barrett, there was a nuance of difference they really didn't address. They acknowledged that in 2016 the WH and Senate were in the control of opposing parties and in 2020 the same party were in control of both WH and Senate. But in 2016 it was an indisputable fact that after the 2016 election there would be a different president than the incumbent whereas in 2020 there was at least the possibility that the incumbent would be reelected. That does make some measure of difference, it seems to me. So I don't see it as being as inconsistent or hypocritical as they expressed.

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      Sarah Isgur vertical-nib Author

      That is a distinction for sure…but not one that any Senator articulated. So clearly not a motivating reason.

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    Ben Connelly

    The makeup of the Supreme Court does not reflect the will of popular majorities of American voters by design. That is a feature, not a bug. And one worth preserving.

    On the Loudon County case, I’ll avoid saying much since it is still developing and there is much I don’t know. However I will say that David is right to point out that in cases where a suspect may be a danger to other people, we do hold them prior to their trial. But I’d also like to point out that removing a student from school (ie suspension) is not the same as trying them for a crime. At least when I was in school, there wasn’t any due process. If the admin wanted to suspend a student they would. And students could be suspended for things they said (ex. F U to a teacher only not just the letters).

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  7. David S

    I was a little disappointed that David and Sarah talked about the Loudoun county story, and seem to be glossing over one of the more offensive aspects to me. I know the media is going to focus on this entirely as a story about trans kids and bathrooms, but I think that's one of the less interesting aspects of the story. While David and Sarah did mention that we don't know all of the details about what happened with the accused student being allowed back in school, they failed to mention that the superintendent of the school system had no idea that such an assault had occurred, and claimed publicly that such assaults had never occurred at his/her schools.

    This, I think, is one of the bigger stories. Imagine you are the father of a female student who has been raped. You go to the local school board meeting to bring your concerns about the safety of students (whether you are right or wrong about transgender bathroom policies is pretty irrelevant, honestly), and the superintendent of schools claimed that your daughter was never assaulted and things like that don't happen at the school. I don't think that much is really in doubt, considering I have read subsequent stories that the superintendent has since apologized for not knowing about the rape. So where, I wonder, is the outrage about the fact that a superintendent was apparently oblivious to REPORTED sexual assaults on students in his/her school, and went so far as to essentially call the parent of a victim a liar? How does that superintendent still have a job?

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    Paul Hoover

    I’m not a lawyer and possibly missing something obvious, but how is it that the ADF lawsuit re: not using preferred pronouns is a truth/free speech/religious freedom issue? I really dislike the whole pronoun issue — I think it’s silly and intended mainly to generate controversy and antagonism — but ultimately, what’s the harm in referring to someone in the manner he/she/it/they/whatever prefer … other than the headache-inducing requirement to learn/remember everyone’s name *and* pronouns?

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    Sad Trombone

    David and Sarah ignore the most troubling aspect of the Loudoun County case - the girl and her father were being treated like the Rotherham girls in England. The reason the father was so animated was because the principal and school board lied about his daughter being assaulted and implied she was lying about the assault.

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  10. Brendan Bossard

    Oh, my! Flocks and flocks of chickens are coming home to roost. Republicans on Benghazi: "Love the light!" Republicans on January 6: "Hate the light!" Republicans on Garland: "Let the people choose in this election year!" Republicans on Gorsuch: "Let us choose in this election year!"
    The story about the alleged (but increasingly likely) school predator particularly intrigues me. The public has condemned the Roman Catholic church for shifting accused priests from one parish to another rather than protecting their parishioners. I wonder how many on the school board were among the Church's accusers. If they did, indeed, shift the accused predator from one school to another, then they did the same thing. Fascinating.

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