When the party system changes, the politicians who were at the peak of their careers in the last party system become out of touch. The "out" party also becomes much more cautious by nature, but this time the dominant party was actively abusing the out party. That abuse didn't happen in any other cycle.
.... except the pre-Civil-War cycles when the slavers were abusing the anti-slavery factions. You remember how that ended. The anti-slavery factions radicalized, the slavers started a war, the slavers lost.
I was talking about this with my SO a few days ago. She is sort of an expert on legal ethics (other attorneys consult her about ethical dilemmas). She believes a lot of the problems with partisanship on SCOTUS could be solved by requiring SCOTUS to conform to the Code of Conduct for US Judges which all lower court judges need to follow.
How?
I mean, they could officially require it, but *what do you do if they don't follow it*? Congress needs to pass a law to allow removal of judges who violate the Code of Conduct, without the Senate-based impeachment process. That would be Constitutional. If SCOTUS claimed it wasn't constitutional, remove 'em and put in a new SCOTUS who will agree.
I believe Reinquist declared that SCOTUS did not have to follow it,
The old criminal. Why od you think he made that baseless claim?
but recommended that all SCOTUS judges do their best to voluntarily conform. Since Roberts took over, that restraint has gone out the window for the more conservative judges. Thomas and Scalia regularly took part in very partisan political activities and Thomas' wife is a Republican operative. I believe Alito has crossed that line a few times too.
The Code of Conduct requires judges to not only be impartial, but to prevent any behavior that might be interpreted as biased.
That's not just the Code of Conduct.
The avoidance of conflict of interest and the avoidance of the appearance of conflict of interest is a core principle of the judiciary under English common law, dating back hundreds of years. You're simply not a legitimate judge if you appear biased and fail to recuse yourself.
And there is a process for removing judges that refuse to follow the code.
That's the important part. How do you force SCOTUS to follow the process and remove 'em?
If SCOTUS had to follow the code, the judges that schmooze in conservative circles today would either distance themselves from those activities or would be removed.
There are also some differences on the court that aren't exacty left-right, but overlap with it. There are two schools of thought about how to interpret the Constitution. There are the originalists who believe the whole thing was set in stone like some sort of legal Bible from on high and then there are those who take Thomas Jefferson at his word and believe that the Constitution is a living document that needs to be reinterpreted for each generation.
There are no originalists. All the so-called originalists are fakers who ignore the text, ignore original intent, and ignore original meaning whenever it suits them. They happily ignore the very, very clear intent and original meaning of the Ninth Amendment for instance -- the Republican judges HATE the Ninth Amendment.
The Ninth Amendment says outright "People have rights that aren't listed here, and judges are supposed to protect those rights just as much as the listed rights". The Goldberg concurrence in Griswold v. Connecticut points to the Ninth Amendment as the reason why contraceptive access is a right. The Republican judges *hate* that, consistently and uniformly.
They twist themselves into pretzels to AVOID respecting the text and the original intent of the Ninth Amendment -- otherwise they'd be ordering everyone released from Guantanamo, ordering the closure of the concentration camps which Trump is putting refugees in, and legalizing marijuana.
The originalists tend to be conservative, but they have to twist themselves into legal pretzels to justify their ideology sometimes because the world was a very different place in the 18th century and new technologies as well as cultural changes have made some of the 18th century thinking woefully out of date.
A small subset of the right also holds onto the idea of the unitary executive. They believe that the president should be king and should not be limited in any way. (Of course this only seems to be in fashion when a Republican is president.) Thomas is the only clear unitary executive on the court now. I don't know about Kavenuagh and I doubt Gosuch is one.
During the Bush era SCOTUS shot down a number of the extreme laws Bush signed into law. Frequently the rulings were 8-1 with Thomas dissenting. I read one of Thomas' opinions on one of those cases and it basically said, "we should trust the president".
Yeah, even the right-wingers aren't all pro-dictatorship. I think most of them recognize that the Supreme Court is an irrelevance in a dictatorship and care about their own importance.
The unitary executive idea is lunacy within the constitutional framework. The Constitution was clearly written with different ideals in mind. Even an honest originalist can't really adhere to unitary executive ideas. We will probably be seeing some court decisions on it soon. Bill Barr is trying to push that to the limit to protect Trump.
The originalist ideas have a little bit more justification, but they still fall apart when you really think about it. Whatever someone thinks of their religious texts, the documents that define and control a nation are not in the same class. We know that the constitution was drawn up by quite fallible human beings and Thomas Jefferson stated that he hoped future generations would reinterpret the Constitution to work best for their realities.
Trying to be an originalist gets you to some absurd results. Originalists tend to be big on the 2nd amendment, but the 2nd amendment does not say firearms should be unrestricted. First is also states "for a well regulated militia", but it only talks about the right to keep and bear arms. It doesn't specify what type of arms.
If you want to interpret that with a true originalist lens, then anybody should be able to own a nuclear weapon. And the amendment says "people" not "citizens" so anybody residing in the United States can't be limited, including Mohamed who just moved here from Iraq... That is an absurd answer that I think all originalists would recoil from, which proves the point that originalism is not really workable.
Technically, it's "the right of the people", as a collective group. It is not an individual right. It is also not a right reserved to the national or state governments.
I happen to know the original understanding of the 2nd amendment -- I studied it. And its direct ancestor in the English Bill of Rights. Both were specifically for local city and neighborhood-run militias, for the purpose of protecting localities from abuses committed by a larger government such as a state or national government.
In other words, it was to protect the Black Panthers. The founders of the Black Panthers knew their history and their Constitution. Fat lot of good it did them; the courts prioiritized racism over originalism.
Make SCOTUS have to conform to the Judicial Code of Conduct and a lot of the partisanship will stop, though the ideology won't.
The question is, how do you make them? I guess Congress could subject them to the Code, subject them to the removal provisions, and add a provision that the Supreme Court does not have jurisdiction to rule on the Constitutionality of that Act. (Congress can actually strip jurisdiction from the Supreme Court, it's explicitly provided for in the Constitution, and they'd have to in this case because otherwise the Supreme Court, being selfish, would rule it unconstitutional.)
