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Bi-Weekly Discussion - Is SCOTUS Broken?

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Brian B.
Bi-Weekly Discussion - Is SCOTUS Broken?

Details

We're currently hosting our discussions at Café Walnut, near the corner of 7th & Walnut in Olde City, just across the street from Washington Square Park. The cafe's entrance is below street level down some stairs, which can be confusing if it's your first time. Our group meets in the large room upstairs.

Since we're using the cafe's space, they ask that each person attending the meetup at least purchase a drink or snack. Please don't bring any food or drinks from outside. If you're hungry enough to eat a meal, they have more substantial fare such as salads, soups & sandwiches which are pretty good and their prices are reasonable.

The cafe is fairly easy to get to if you're using public transit. With SEPTA, take the Market-Frankford Line & get off at the 5th Street Station (corner of 5th & Market), and walk 2 blocks south on 5th and then turn right on Walnut Street and walk 2 blocks west. With PATCO, just get off at the 9th-10th & Locust stop and walk 3 blocks east & 1 block north. For those who are driving, parking in the neighborhood can be tough to find. If you can't find a spot on the street, I'd suggest parking in the Washington Square parking deck at 249 S 6th Street which is just a half block away.

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IS SCOTUS "BROKEN"?

HAS SCOTUS BECOME MORE PARTISAN AND SLIPPED INTO A "LEGITIMACY CRISIS"?

INTRODUCTION:

You may have seen some claims in the news media recently, even in the summer before Brett Kavanaugh was nominated, about the Supreme Court being "broken". That's what I originally intended this meetup to address, but as I dug deeper into the various uses of the term "broken" I came to realize it can have several meanings. One common meaning of "broken" is that the Supreme Court is no longer fulfilling its role in correctly interpreting the Constitution in the cases it hears and/or no longer providing the necessary checks & balances on the other two branches of government. To assess whether or not the Supreme Court is "broken" in this sense would first involve diving into the perennial debates about "originalism" vs "living constitutionalism" and "judicial restraint" vs "judicial activism". If we had an earlier meetup which had addressed those topics this could provide a starting point from which to assess this debate, but unfortunately this is one of the few major topics in politics that I've overlooked so far. I'll do my best to remedy this in a discussion sometime next year.

However, many of the recent claims about the Supreme Court being "broken" refer to something else - i.e. the idea that a partisan shift in the court's rulings since 2000 have damaged the court's reputation as a non-partisan institution and left voters with low confidence in the court's ability to deliver impartial judgements. This dilemma has recently become known as the "legitimacy crisis". Claims about this crisis appeared in some articles in both right-leaning & left-leaning opinion columns around the time that Republicans refused to hold confirmation hearings for Obama's nominee - Merrick Garland - since it made the high stakes of a Supreme Court nomination highly salient. Several pundits wondered aloud how we could've ever let the nomination process become so partisan.

Concerns about a "legitimacy crisis" appear to have become more common in the left-leaning media after Donald Trump's election, since it meant Garland would never get his spot. It was clear that a conservative justice would replace Antonin Scalia, but this didn't change the partisan makeup of the court. However, the nomination of Brett Kavanaugh to replace Justice Kennedy created a fear that a conservative majority court could overturn or gradually nullify decisions like Roe v. Wade (abortion) and Obergefell v. Hodges (same-sex marriage) that many consider vital for protecting fundamental civil rights. And when the allegations of sexual assault emerged and Kavanaugh was confirmed regardless, talk of a Supreme Court "legitimacy crisis" was renewed and spread through the media.

In this discussion, we'll explore the theory of a "legitimacy crisis" starting with the controversial Bush v. Gore decision, then looking at allegations of a partisan shift in SCOTUS rulings since 2000. We'll assess the impact of Republicans blocking Merrick Garland's nomination & ending the filibuster against Neil Gorsuch. Finally, we'll look at the way in which the highly contentious Kavanaugh hearings may have created a crisis that could lead to the President, Congress or state governments defying Supreme Court rulings.

NOTE: Immediately following this discussion, from 3-5pm, the Skeptics in the Pub meetup will discuss the Kavanaugh confirmation hearings and try to scientifically assess the probability that Kavanaugh assaulted Ford. The introduction section to that discussion briefly addresses six recent conspiracy theories about the Supreme Court, and this apparent rise in conspiratorial thinking could be an indication of a partisan divide on SCOTUS that ties into the "legitimacy crisis" idea we'll discuss here. To check out that meetup's discussion outline and RSVP, go here:
https://www.meetup.com/Philly-Skeptics/events/lckqkqyxqbdb/

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DIRECTIONS ON HOW TO PREPARE FOR OUR DISCUSSION:

The videos & articles you see linked below are intended to give you a basic overview of some of the major debates over whether the Supreme Court has become more partisan in recent years and is currently experiencing a "legitimacy crisis". As usual, I certainly don't expect you to read all the articles & watch all the videos prior to attending our discussion. The easiest way to prepare for our discussion is to just watch the numbered videos linked under each section - the videos come to about about 41 minutes total. The articles marked with asterisks are just there to supply additional details. You can browse and look at whichever ones you want, but don't worry - we'll cover the stuff you missed in our discussion.

In terms of the discussion format, my general idea is that we'll address the topics in the order presented here. I figure we'll spend about 25 minutes on each section.

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I. THE BUSH V. GORE DECISION & CLAIMS THAT THE 2000 PRESIDENTIAL ELECTION WAS "STOLEN"

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1a) CBS, "Bush vs. Gore Ten Years Later" (video - 2:33 min.)
https://www.youtube.com/watch?v=Rr_U_ndZZgg

1b) Mr. Beat, "How the Supreme Court Decided the 2000 Election | Bush v. Gore" (video - 6:10 min.)
https://youtu.be/tg6rygk9VDc

II. MEASURING SCOTUS JUSTICE IDEOLOGY & ASSESSING WHETHER IT'S BECOMING MORE PARTISAN:

  • DO MARTIN-QUINN SCORES GIVE US AN ACCURATE ESTIMATE OF SCOTUS JUSTICE'S POLITICAL IDEOLOGY?

  • CAN THE AMERICAN PUBLIC ACCURATELY DISCERN THE PARTISAN LEANINGS OF SCOTUS JUSTICES?

  • HAS THE SUPREME COURT'S MEDIAN POLITICAL LEANING SIFTED LEFT OR RIGHT SINCE 2000?

  • IS IT TRUE THAT CONSERVATIVE JUSTICES BECOME MORE LIBERAL AS THEY AGE?

  • IS SCOTUS DELIVERING MORE 5-4 RULINGS, AND DO THESE RULINGS POSE A PROBLEM FOR THE RULING'S PERCEIVED LEGITMACY?

2a) NowThis World, "The Bias of the Supreme Court [in 2014]" (video - 3:00 min.)
https://www.youtube.com/watch?v=8C0weq6CzqM

2b) Khan Academy w/ John Dickerson, "Increased politicization of the Supreme Court" (video - 3:47 min.)
https://www.youtube.com/watch?v=EoUpiipuP2M

III. HARDBALL TACTICS: THE REPUBLICANS' INVOCATION OF THE "BIDEN RULE" TO BLOCK MERRICK GARLAND AND USING THE "NUCLEAR OPTION" TO END THE DEMOCRATS' FILIBUSTER DURING THE NEIL GORSUCH HEARINGS:

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3a) CBS News, "Joe Biden in 1992: Delay SCOTUS nominee until after election" (video - 2:46 min.)
https://www.youtube.com/watch?v=_67CqebaHVk

3b) ABC News, "GOP uses 'nuclear option' for Supreme Court nominee" (video - 2:24 min.)
https://www.youtube.com/watch?v=4rw3F9o8Ne0

IV. IS THE SUPREME COURT FACING A "LEGITIMACY CRISIS"?

  • CAN WE GAUGE THE SUPREME COURT'S "LEGITIMACY" FROM PUBLIC OPINION POLLS ON WHETHER OR NOT AMERICANS TRUST THE SUPREME COURT?

  • DOES THE FACT THAT DONALD TRUMP DID NOT WIN THE POPULAR VOTE IN 2016 UNDERMINE THE LEGITIMACY OF HIS SUPREME COURT PICKS?

  • EVEN IF KAVANAUGH'S CONFIRMATION HEARINGS DIDN'T INCLUDE ANY ALLEGATIONS OF SEXUAL MISCONDUCT, WOULD TIPPING THE COURT TOWARDS A CONSERVATIVE MAJORITY UNDERMINE ITS LEGITIMACY WITH LIBERALS?

  • WHAT DO PUBLIC OPINION POLLS TELLS US ABOUT THE PUBLIC'S VIEW OF KAVANAUGH'S GUILT/INNOCENCE & HIS SUITABILITY FOR THE SUPREME COURT?

  • DID VOTING IN THE 2018 MIDTERMS SHOW ANY SIGN OF A "BRETT BOUNCE" OR "KAVANAUGH'S REVENGE"?

4a) Bloomberg, "Why the Supreme Court's Approval Rating Is Sliding [in 2017]" (video - 2:54 min.)
https://www.youtube.com/watch?v=i5MyptYZjCA

4b) MSNBC, "Nation Closely Divided On Brett Kavanaugh, Poll Shows" (video - 7:43 min.)
https://www.youtube.com/watch?v=ELZwLZsQ3jk

4c) Fox News w/ Carrie Severino, "Eric Holder and Democrats question the legitimacy of Supreme Court" (video - 3:35 min.)
https://www.youtube.com/watch?v=mIqNt17lV9c

V. WHAT HAPPENS IF FUTURE SUPREME COURT RULINGS ARE DEFIED?

  • IF THE SUPREME COURT IS SEEN AS "ILLEGITIMATE", WILL CERTAIN STATES NULLIFY ITS RULINGS? COULD THE PRESIDENT OR CONGRESS DEFY THE COURT?

  • COULD A CONSERVATIVE-MAJORITY SCOTUS OVERTURN ROE V. WADE? IS IT MORE LIKELY SCOTUS MIGHT LIMIT ABORTION RIGHTS IN FUTURE RULINGS WITHOUT OVERTURNING ROE V. WADE?

  • WILL A CONSERVATIVE-MAJORITY SCOTUS OVERTURN OBERGEFELL V. HODGES? WOULD THIS INVALIDATE CURRENTLY LEGAL SAME-SEX MARRIAGES?

  • WOULD THIS LEAD TO A "CONSTITUTIONAL CRISIS" & PERHAPS EVEN CIVIL UNREST & VIOLENCE, OR MERELY A DE FACTO SHIFT TOWARDS FEDERALISM?

5a) CBS w/ David Schultz, "Good Question: What Happens When You Ignore The Supreme Court?" (video - 2:16 min.)
https://www.youtube.com/watch?v=uq8uNdB9XBY

5b) Vice, "Roe V. Wade Doesn’t Need To Be Overturned For Abortion To Be Harder To Access" (video - 4:28 min.)
https://www.youtube.com/watch?v=rdRmOBnuCrs

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Cafe Walnut
703 Walnut Street · Philadelphia, PA
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