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comment by spencerflem
spencerflem  ·  339 days ago  ·  link  ·    ·  parent  ·  post: Colorado Supreme Court bans trump from ballot under insurrection clause

I hope you're right. Its so dispiriting to see the rulings like the EPA one, or the one that says the 4th amendment doesn't apply to border guards, etc. that are so obviously unconstitutional. And nobody in power seems to be talking about packing or impeachment. The switch in time was under FDR, a much better president, and following repeated direct threats of packing.





kleinbl00  ·  339 days ago  ·  link  ·  

Here's the game-theory breakdown on the situation:

Who benefits from Trump being the last Republican president?

Forget aspirations, forget statements of intent, forget philosophical leanings, get down'n'dirty on it. Conservatism, not capital-C American Conservatism but "conservatism" as sociological behavior, is rules-based order and altering those rules destroys order. Conservatism ruled China for several thousand years - "what the emperor says, goes." Conservatism ruled Islam for more than half of its run, with varying amounts of "It's in the Quran" "it's in the Quran and Hadith" "it's in the Quran, Hadith and Sunnah". Al Qaeda and ISIS are widely regarded as apostates by conservative muslims, FWIW, because of their loose interpretations of the Quran.

Conservatism and populism never align. Conservative social principles are often aped by populists but they never walk the walk. In the political climate of the Weimar republic the Nazis were radicals through and through. So were Mussolini and the fascista. If anything, radical populism is used to sweep away liberalism and replace it with conservatism (see: Iran) but once in place, conservatives gonna conserve.

The Republican party has been using conservative social principles in a populist framework since Newt Gingrich. They've been able to protect their positions through gerrymandering and the peculiarities of the electoral college but a brief glimpse at the 2022 results makes it pretty clear that taking down Roe was dangerous. It's also been a 40-year goal so I reckon most conservatives would argue it was worth it. Trump, on the other hand...

Aside from flipping the supreme court his term in office was a net loss. He polarized the electorate past the point where Republicans can accomplish anything. The Republicans have lost John Boehner, Paul Ryan, Liz Cheney and Jeff Flake for not being crazy enough. Pretend you're in the Federalist Society. Do you consider Marjorie Taylor Greene a good trade for Paul Ryan? JD Vance a good trade for Jeff Flake? Do these picks advance your goals? Do they enrich your coffers?

Keep in mind: corporations have been noticing how shitty the Republicans have been for them. And keep in mind: it's not like the Republicans chose Trump. They ended up with him because they've been dog-whistling so long that the yard ended up full of mutts.

Liberals forget: Democrats will only vote for Democrats if those Democrats pass their 99-point purity test. Republicans will vote for Republicans unless they do something so repugnant that they stay home instead. Democrats are grudgingly aligned with the Democratic party but Republicans need a formal excommunication before they'll disregard a Republican.

So who benefits from the Federalist Society trashing their principles for a man who is anathema to everything the Federalist Society holds dear? Clarence Thomas, for sure. That dude will go wherever he's paid to go, or more specifically, wherever Ginny is paid to make him go. Gorsuch? Gorsuch gives no fucks for Trump. Alito? Alito wouldn't piss on Trump if he were on fire, much like Scalia before him. It's all a game to Alito and Trump doesn't play by the rules. Cavanaugh? He might. But he also knows that at best, Democrats will forever be working angles for his downfall and never let the world forget about his hearings and at worst, he'll end up sidelined in an ornamental court that will never do anything but rubberstamp a hereditary Trump administration. Barrett? Tough to say but she's got the same problems as Cavanaugh. Roberts? Roberts upheld Obamacare via state's rights. If you look at the way Roberts has been ruling, he's trying to preserve the (conservative) legitimacy of the supreme court and he's been using State's Rights to do it.

The Republican Party is in a death spiral. Trump had 4 years to stuff the administration with loyalists and his insurrection still failed. Not only that but everyone associated with it is either career-finished, legally-imperiled or both. Who are these clever opportunists looking this situation over and going "now that the Democrats have forewarning this is all going to be easier and more lucrative this time?"

Conservatives never signed up for Trump, they've just been unable to get rid of him. But he's an old man, growing increasingly febrile, with less and less influence among business interests and a policy platform increasingly divorced from the wants and needs of mainstream conservatism. What does a Trump administration look like in, say, 2027? Are the Republicans busily laying the groundwork for a Ramaswamy administration? A Stephen Miller administration? Who's left aside from lickspittle toadies? And how do you actually get anything done?

It's one thing to back Caesar Augustus when he's got the Praetorian Guard. It's quite another when he's on the outs and you're four years away from a Caligula administration. So right now? Everyone is trying to say the right thing to maintain their position for a time when they can say what they want again.

I'll say this again, for clarity and posterity: TRUMP TOOK HIS BEST SHOT AND FAILED. Mutherfucker pulled out all the stops leading up to January 6, and left no stone unturned in the aftermath. Every move since has been a portrait of incompetence. The part liberals miss is that every Republican is telegraphing "I want to keep my job" which overlaps with "I want Trump in office" until it doesn't. When you face no electoral penalty for dishonesty, capriciousness, duplicity and falsehood, you can say whatever the fuck you want so they all want Trump. As soon as it's safe to say they don't? They'll act like they never did.

From a game theory perspective, a supreme court ruling that says "yup, states can ban whoever the fuck they want" benefits the conservatives more. It would allow them to do things like simply ban Democrats from running in Florida, for example. For a while, anyway, but it gives them a lot of performative juice.

I don't this is at all settled. I think there's a lot of really exotic parliamentary maneuvering going on and part of it is boxing the Supreme Court into branding Trump an insurrectionist. Four more years of Biden hurts them a lot less than a second Trump administration and they know it - Biden faces consequences for reneging on deals.

They'll never say this of course. But if you watch the behavior of anybody who actually runs things (McConnell, Roberts) you get a very different perspective on Republican behavior than if you just watch Lindsay Graham say some shit on Fox and Friends.

spencerflem  ·  339 days ago  ·  link  ·  

You know what, I think you're right on this.

Unlike the switch in time, I don't think they'll rule any better on any other cases though. The next EPA one has me really worried

am_Unition  ·  338 days ago  ·  link  ·  

I predict that SCOTUS will rule in favor of Trump on this one. They'll once again point to "originalism", like this:

    Law professor Kurt Lash has shown that the crafting of Section 3 to omit the president was not an oversight. As his work shows, an earlier draft of the clause expressly mentioned the president; that mention was removed. And many (digital) trees have been felled to address a related issue: Whether the president is properly described as occupying an “office of the United States”? At best, that work is ambiguous, though the Colorado Supreme Court made a strong argument that the president is.

I think it'll be 6-3 or 5-4, with Roberts being the only unknown, caught in the middle of attempting to preserve whatever shreds of legitimacy SCOTUS has left.

How SCOTUS rules on the more consequential case of presidential immunity is the real question.

kleinbl00  ·  338 days ago  ·  link  ·  

You say Lessig, I say Conway