I respectfully disagree. We’re in a situation where the only thing that can stop Republicans from pulling off this attempted authoritarian takeover is certain other *Republicans* (including on the courts) saying no. That outcome hasn’t been an open question before, but it is now.
The key point is that they don’t have to win these lawsuits in order to use these lawsuits to “win”—to hold onto power after Jan. The GOP legislatures in PA+MI could cite these cases to appoint their own electors. They’ve previously indicated that they would not, but they *could*
The question of what happens next in that scenario (or some other similar one) would eventually reach SCOTUS, which could decide it’s a political question. (They might even cynically cite Bush v Gore as negative precedent, a reason not to get involved.) It could go to the House
But point here is not to game out specific forms that this might take—but to show that what’s needed to prevent all this is dissent *from Republicans*
MI+PA state parties could decide to accept the results; GOP justices could strike the challenges.
But that’s an open question!
We should not assume that McConnell and Barr and the rest don’t actually want to win—but we also shouldn’t assume that their intention matters in the end. They question is whether they can pull off a coup, and the answer is that they will unless+until someone in the GOP says no.
It actually doesn’t matter much in the end if some of them are doing this to appease Trump or if they actually intend to see it through—at a certain point it becomes a different thing. A jump ball that they don’t control. That this is unlikely to happen doesn’t mean it could not.
I’ll add: even as I would caution against blanket assurances that an authoritarian takeover of the sort that’s currently being attempted—and yes, that’s what it would be; and yes, they’re trying—I recognize this tradeoff, where speaking frankly about the threat may legitimate it.
This case is not over until it's over—and journalists should stop proclaiming certainty about future events that are not certain. In NFIB, Roberts (infamously) changed his vote months after oral arguments in response to public pressure. The comments are notable—but it's not over.
I'm not just being cynical. I've written fairly extensively about the politics of the ACA cases—urging folks to take this challenge seriously from the beginning.
This is not over until it is over.
If Kav *votes* that the mandate is severable, I agree that’s the end of this. I don’t think they’ll resolve it on standing; I'd guess they strike the mandate (which is insane) but sever it, as hinted. But that is not certain right now, and won't be until the opinion is announced.
I personally believe a SCOTUS empowered by judicial supremacy and comprised of justices appointed for life will inevitably tend to be—on average—a bad forum for progressives and marginalized groups, compared to political branches. The 15 years of Warren Court doesn’t change this.
Books have been written on this topic, and I have many thoughts on it. But one point: theories about courts' counter-majoritarian role tend to overlook implications of fact that protecting minority rights is not adjacent to political conflict; it is THE centrally contested issue.
And so the state of having a judiciary that protects minority rights in Time 1 is not some theoretical matter, but rather conditional on having elected, through the political process, the party that prioritizes those rights in Time 0. Indeed, that's the story of the Warren Court!
Quick thread about deep frustrations w #8cantwait: It's not that these reforms are not good policy; they are.
Rather: they are SO PITIFULLY FAR from the structural reforms desperately needed, that efforts to channel the mass uprising into this list of demands SET BACK the cause.
We've been here before. After Ferguson, Obama asked a task force to develop recommendations to “strengthen community policing and trust among law enforcement officers & the communities they serve.” Its report largely avoided questioning the role police should have in our society.
As policy, procedural justice & institutional reforms—bias training, transparency requirements—aren't in conflict w divestment (in near term); stronger policies can be applied to a smaller policing infrastructure. As strategy, pushing those reforms now—as the answer—is dangerous.