The Things I Don’t Know About Our Government would fill volumes and volumes. This article by Jennifer Rubin I found fascinating – and brightened my mood:
Let’s start with the basics. The Constitution gives the Supreme Court limited original jurisdiction. As stated in Article III: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” But this is a tiny portion of what the Supreme Court does. As the Federal Judicial Center reports: “Between 1789 and 1959, the Court issued written opinions in only 123 original cases. Since 1960, the Court has received fewer than 140 motions for leave to file original cases, nearly half of which were denied a hearing. The majority of cases filed have been in disputes between two or more states.”
The Supreme Court’s jurisdiction in all other cases — the ones we commonly associate with the court — are controlled at the complete discretion of Congress. (Per the Constitution: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”) The Supreme Court has huge, wide-ranging jurisdiction because Congress granted it, not because of some constitutional preordained scheme.
The next Congress could, for example, decide that the Supreme Court will have no jurisdiction concerning the constitutionality of federal statutes. Congress could create a separate court for that or simply allow circuit courts to reach their own decisions. (The notion of having different laws in different circuits is not unprecedented. The Supreme Court does not take every case in which circuit courts have disagreed.) Congress could peel off other classes of cases — e.g., the constitutionality of state laws, disputes between Congress and the executive — as well. Conservatives in the 1970s and 1980s, increasingly worried about an imperial Supreme Court, considered all sorts of measures to limit jurisdiction (e.g., taking away school busing cases).
A highly partisan Supreme Court widely viewed as politically driven could find itself with rather little to do. [WaPo]
I’m a little gob-smacked. And buoyed up. Sure, there are some complex political implications to this scenario, but basically former conservative Rubin, who has a law degree, is saying that, with control of both wings of the legislature and the Executive, the Supreme Court can be made virtually – and legally – irrelevant.
And if the next Congress passes a law that says Abortion is legal despite what any State decrees and a President Biden signs it, well, then the Court can go suck eggs. If I understand what Rubin is saying.
So if you’ve been working on getting voters to the polls their mailboxes, or persuading doubtful voters to vote Biden, don’t be discouraged by RBG’s death and the consequent revelations of Republican hypocrisy. Their willingness to unveil their wretchedly tatty souls, caught in the clutches of President Trump aka the Father of Lies, in response to this challenge to their moral system is instructive for all voters willing to look with open minds and learn.
This may turn out to be the silver lining of RBG’s passing.
And there is a second silver lining. A rainbow, if you will. By jamming through a nominee, the Republicans are removing one of the motivations for Republican voters to vote. The SCOTUS seats have been a prime stick for GOP leaders to use on their base for decades. I speculated earlier that Trump might use the empty seat as the biggest stick of all:
Does he rush a nominee to the Senate in order to avoid a probable, but not guaranteed, lame duck session to put his nominee in SCOTUS?
Or does he hold off? Maybe he even hints that there’ll be no nominee if he doesn’t win the election? That should electrify his cult, and even draw some moderate Republicans back.
But, as I expected, amateur President Trump has instead rushed to fill the seat before the election. Surrounded by third-raters, Trump has no self-discipline or applicable expertise.
So, presuming the morality-free Republican Senators pass their Great Leader’s SCOTUS pick, the Republican voters can relax and perhaps choose not to vote for President Trump, a particularly attractive option for moderate Republicans who still believe Democrats are evil, but cannot stomach Trump.
This may all work to the Democrat’s advantage, from the top on down.
