2. Lincoln & the radical Republicans have achieved what they did (as @karpmj pointed out in a useful article) without challenging the courts that entrenched slavery (and in the case of Dred Scott, white supremacy) in the very fabric of the law.
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3. FDR's court packing gambit is usually treated as a failed attempt to change the make up the court. But in reality it was a highly successful effort to tame the court -- after FDR's mobilizing, Court radically scaled back on overturning New Deal laws.
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4. Some more thoughts on why fixing the partisan balance of the courts isn't enough and what is needed is a more sweeping program of asserting the primacy of the people.https://www.thenation.com/article/politics/court-pack-democratic-party/ …
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But also, there was already a long history of state rights conservatives challenging the court on similar grounds (judicial review as undemocratic tyranny) before the 1850s. There's significant historical ground for agreement btw right and left on this.https://twitter.com/southernphd/status/1308059234635067396 …
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This is incidental, but I find myself wondering what CJ Roberts thinks about this. If Trump & Mcconnell get their way, his project of preserving the legitimacy of the court is going to get much tougher.
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But the essential point isn't majority or minority rule. The majority NOW is liberal but what if the majority tomorrow wants fascism? The idea today of a rule of law is that rules and law are set to make sure that a democratic society isn't threatened. You NEED 2 sides to agree.
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The whole problem is the other side doesn't agree anymore. Not with rules, not with democracy, not with norms or values. You "tame" the courts and when a majority wants fascism the courts will follow even more easily. The problem isn't the courts, it's the other side.
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What is needed is a way to tame the other side. To get them to agree on some shared vision. The problem is there isn't any shared vision. It's 2 total opposites. There's only 1 way how that ends. We can pretend that it will go away by stopgap measures but we're kidding ourselves.
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Very few people seem to be considering the opposite view. What if this was the death of the courts? We’ve clearly seen the total erosion of norms and values so what’s preventing a elected government from ignoring to will of SCOTUS? In essence ignore their decisions.
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