Ian Millhiser Whines That Our Government Can’t Just Steamroll Over Republicans: A Fisking

And maybe he is doing that, too, but I thought he deserved a point-by-point rebuttal.It is time for a good, old fashioned fisking, like grandma used to make. So, let’s dig into this thing, shall we?

First, wholly apart from any of the specific content of this post, when I first read this on my phone, the site did the most obnoxious thing, where it not only had auto-playing video, but the video would pop up and take over the entire screen, away from whatever I was reading. I suspect this hits me worse because I am dyslexic. (So much for that famous liberal sensitivity for the disabled.) Thankfully, the desktop version didn't do that—at least not on my computer.

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Anyway, on to the substance. Let’s start with the title and subtitle:

The nightmare facing Democrats, even if Harris wins

If Harris wins, the Republican Party will almost certainly be able to veto anything she does, thanks to our broken Constitution.

Of course, the only person in the federal government who can veto anything is the President, but do go on, Ian.

Over the course of its last few terms, the Supreme Court has effectively placed itself in charge of the executive branch.

Um, no it hasn’t, Ian. It occasionally reviews some behavior. That’s it. For instance, when Biden came up with that dumb Gaza pier idea, the courts had nothing to say about it. And as thousands of people were stranded without help in Appalachia after Hurricane Helene (and many reportedly still need help), the Courts had nothing to say about it, either.

It’s given itself an extra-constitutional veto power over virtually any policy decision made by a federal agency.

That would be called judicial review. That has been recognized by the Supreme Court since Marbury v. Madison, 5 U.S. 137 (1803) and was even argued for in the Federalist Papers—the essays used to sell the Constitution to the masses.

And just to be clear in my terms, there is a difference in nerdy Constitutional law circles between what we call ‘judicial review’ and ‘judicial supremacy.’ Judicial review is nothing more than the Supreme Court saying ‘we have an equal right to look at whether a law or executive action violates the Constitution and we have a right to refuse to go along with it, if we think it is unconstitutional.’ By comparison, judicial supremacy is the idea that the federal courts’ interpretation of the Constitution is binding on the other two branches. Judicial review has been recognized officially since 1803, while judicial supremacy began to be truly asserted during the Civil Rights Era.

And the logic behind judicial review is truly ironclad. I think the core argument in in Marbury—although they make many other points—is found in this passage discussing whether an ordinary law can override the Constitution:

The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternative there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

Or to put it more plainly, the very structure of the Constitution implies that the Constitution trumps any mere law or executive action. Let’s take the example of the First Amendment’s establishment clause. It says in relevant part:

Congress shall make no law respecting an establishment of religion[.]

There is a lot of debate over what that clause actually means, but there is near universal agreement that it means that Congress can’t declare any particular religion the official religion of America.

Now, stop and think about that. How did that become part of the Constitution? Well, they went through the process required by Article V, which says in relevant part:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…

In the case of the First Amendment, as with the rest of the Bill of Rights, two-thirds of both houses of Congress voted for it, and then it was ratified by the legislatures of three fourths of the original thirteen states. And if you wanted to change the Constitution to say that Congress could declare Buddhism to be America’s official religion (just to pick a religion at random) and force everyone to join it, there is your roadmap to amending the Constitution to allow for such a thing. It won’t be easy, and that is not a bug: It’s a feature.

So, with all that in mind, it is absurd to say Congress can get around the First Amendment just by passing a law. Why make it so hard to put something in the Constitution and so hard to take it out if a Constitutional provision is equal to a simple law? What is the point in saying that Congress can’t force us to be Buddhists in the Constitution when they can pass a law doing exactly that and expect the courts to enforce it? That’s what the Supreme Court is basically saying in Marbury: It makes no sense to say that the federal courts have to go along with Congress' unconstitutional laws.

And what I just said goes double with executive actions.

So, Millhouse’s Millhiser’s complaint that the Supreme Court has ‘given itself an extra-constitutional veto power over virtually any policy decision made by a federal agency’ is basically an argument the federal agencies can’t just run over you and your Constitutionally guaranteed rights.

And while I didn’t see Millhiser say this, one common response to my argument about judicial review is ‘why should we be bound to what these people wrote?’ Very often they would throw in descriptors like ‘dead white men’ maybe even a reference to the fact that some of them held slaves, to argue that we shouldn’t be bound by what they said.

The problem with that argument is that the entire Federal Government owes its existence to the same Constitution. The majority of the Constitution is about granting the Federal Government powers over various topics. So, if you want to say that the Federal Government isn’t bound to the First Amendment, then I can just as validly say I am not bound to literally anything the Federal Government does. You can’t have the power granted by the Constitution without the limitations on that power that come with it.

Anyway, I promise not to go into that much detail on the rest of his points, but I thought a full defense of judicial review was justified, here. Moving on, Millhiser next whines that

Even when it ultimately rules in favor of President Joe Biden’s policies, it often sits on those cases for months, allowing a lower court order to suspend Biden’s programs for as much as a year.

That would be a complaint that courts are slow. The courts are always slow, Ian. They always have been, and in only the most extraordinary cases do they move quickly—and it still slow by the standards of anything but the judiciary.

Indeed, Millhiser included a link in that text. If you follow that link, you see he is complaining that the Supreme Court reviewed a policy under the Administrative Procedures Act. That law explicitly gives courts the right to review agency policy to ensure it is not 'arbitrary' or  'capricious.' So, he’s complaining that the courts are obeying statutory law, but not as quickly as he would like.

And by being slow, they believe—and I think rightfully so—that they are more likely to get it right. That is because they are careful to give everyone a chance to be heard and they take a long time to reach the decision because they really want to think it over.

And, of course, the cases reviewing executive actions are not the only ones on the docket and so it is slow in part because everyone needs to wait for their turn.

Alas, he goes on:

Meanwhile, the Court has done extraordinary favors for America’s only recent Republican president.

Goerge W. Bush wasn’t a recent Republican president?

Just look at the Republican justices’ decision to immunize former President Donald Trump from prosecution for criminal actions he committed while in office.

Actually, that is a misstatement of what they ruled. What they said is you can’t criminalize a President’s official acts. A veto, for instance, can’t be a crime. On the other hand, if a president raped a woman in the oval office, that wouldn’t be held to be an official act. I did a deep dive into that decision so I’ll mainly let that old piece do the talking, but I can’t resist quoting a very basic point I made about that case’s oral argument:

The final point we wanted to make is that we haven't seen anyone mention that in truth, both sides agreed that a president/former president had some [criminal] immunity. [The lawyer for the special counsel’s office] admitted that, for instance, a veto could not be the basis of a criminal charge against the president, as well as a pardon, the recognition of a foreign nation or a presidential appointment. He waffled a bit about the president’s commander-in-chief powers, but was supportive of that immunity in at least some contexts. So, there was no lawyer standing before the Supreme Court that day arguing that there was no such thing as presidential [criminal] immunity. They were simply negotiating over the scope.

So Ian is upset that the Supreme Court didn't adopt an argument that no one was making. He goes on:

The president, in other words, is increasingly subordinate to the courts. Yet, as the judiciary seizes more and more power, the battle over who gets to shape it grows increasingly lopsided.

No, judicial review—whether it stems from the Constitution or the Administrative Procedure Act—has not increased in this century.

Republicans enjoy an advantage in the Electoral College. Just how much is up for debate, but that advantage does mean that even if the American people hand Vice President Kamala Harris a modest victory in the popular vote this November, Donald Trump could still become president.

The irony is that Millhiser doesn’t get why this is the case. It’s not that the Founders thought we were too stupid to vote for the right candidate. Instead, the Founders knew that history was filled with tyrants who became tyrants by claiming that they had the popular will behind them. The Founders surely would have thought of Cromwell in England, while after the ratification of the Constitution, Napoleon would have given them another example. The entire point of the Electoral College was to take away democratic legitimacy from the President, as one more way to prevent him or her from becoming a dictator. 

And it is also worth noting that Trump is winning at the game as it is played. If we suddenly shifted to a popularly-elected Presidency, Trump might have adjusted his strategy for that and won, anyway.

Ian whines on:

He’d then get to nominate loyal Republican judges eager to implement his party’s agenda from the bench, much as he did during his first term.

Which is amazingly rich coming from any leftist. We have had decades of judicial activism coming from the left. For instance, the Supreme Court invented a right to birth control based on the shadows of other amendments and it invented a right to abortion. The Supreme Court invented a right to gay sex by citing the Fourteenth Amendment, which was written by evangelical Christians who didn’t bat an eye at the thought of throwing people in prison for having gay sex. Then they took that same amendment and somehow found a right to gay marriage in it.

Or take what they did to the Fifth and Sixth Amendments. For instance, the Sixth Amendment says, in relevant part, that …

… [i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence. [sic]

For most of the existence of this Republic, this was understood to be a right to have a lawyer you hire or otherwise persuade to represent you. But somehow in Gideon v. Wainwright, 372 U.S. 335 (1963) that became a right to have a free lawyer. Federalist 78 said that the judiciary is the ‘least dangerous branch’ because it lacks the power of the sword or the purse, but in Gideon, the Supreme Court decided that we had to spend money to hire ‘free’ lawyers for defendants. They later turned the Fifth Amendment’s privilege against incrimination in criminal trials into a right not to talk to the police. And then to cap all that off, they created something close to a script the police had to say before they engaged in custodial interrogation. You know it as the famous Miranda warnings, which comes from Miranda v. Arizona, 384 U.S. 436 (1966) and you will search in vain for a single line in the Constitution that supports what the Supreme Court said in that case:

prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.

Mind you, I am not saying that all of these policies are necessarily bad, just that it wasn’t up to the Supreme Court. For instance, I fully support non-abortifacient birth control and I will always vote to keep it legal, but the way to legalize it was through the ordinary political process, not the Supreme Court making up a right that isn’t in the Constitution.

And the reason why this matters is because every time the Supreme Court says something is in the Constitution when they very well know it isn’t, they are really saying to the American people ‘you are too dumb to handle this issue, so we won’t let you do that.’ Every one of those decisions made America less democratic—and Ian Millhiser, the alleged champion of democracy, doesn’t have a problem with any of those decisions.

But he does complain about this, next:

Even if Harris wins by a large enough margin to overcome the Electoral College’s Republican bias, she still may not get to have much of an impact on the judiciary. Her presidency — and specifically her ability to name judges — is likely to be restricted by a Republican Senate. For Democrats to control even a tied 50-50 Senate, one in which Vice President Tim Walz would hold the deciding vote if Harris prevails, they must not just win in every single blue and swing state Senate race this year, but also Senate races in at least two of the red states of Ohio, Florida, Montana, and Texas.

Don’t threaten me with a good time, Ian. In any case, he goes on (and on, and on), talking about how unlikely it would be for Democrats to get enough power in the Senate to appoint the judges they want and then we get to this next nugget of hypocrisy:

During the Biden administration, the Republican Supreme Court wielded its power aggressively. It greenlit abortion bans in numerous red states.

Just a minute ago, he complained that the judiciary was holding up legal actions he liked. Now he is complaining that the Supreme Court is not stopping laws he doesn’t like. And why aren’t they stopping them? Because he wants the Supreme Court to pretend there is a right to abortion in the Constitution that overrules the popular will, and the Supreme Court is not going along with that agenda.

It abolished affirmative action at nearly all universities.

They did so based on the Fourteenth Amendment, which abolishes racial discrimination. And not for nothing, but the Democrats running the universities had somehow created the worst possible case for upholding affirmative action, their programs actually taking seats away from better qualified Asian Americans to give to White Americans. That doesn’t even make sense on the racial justice theories that normally justify affirmative action programs.

I mean, this is how effed up that policy was. My wife and I are friends with several Filipino families and, a few years back, before the Supreme Court struck down these affirmative action programs, I learned that one of our friends’ Filipina daughters was thinking of going to law school. I was happy to give advice on trying to help her figure out whether she even wanted to be a lawyer and how to get into the best law school possible if she did.

And one of the most heartbreaking things I had to tell her was that at many of those schools, the fact she was Asian would work against her. The people of the Philippines had suffered through Spanish and later American colonialization but because their American-born descendants committed the ‘sin’ of being too successful in America, they faced discrimination in many of our universities. It was so bad that I told her that as a practical matter, it might make sense to leave her answer blank when they asked her about her race. Since her name was Spanish in origin—a leftover from that colonial history—they would probably assume she was Hispanic and maybe then affirmative action would help her. Seriously, how completely screwed up is it that this was a logical way for an Asian to avoid racial discrimination?

I once supported affirmative action but I have turned against it in recent years. I always believed it had to be a program that was very sensitively and delicately applied, and restricted to opportunities instead of outcomes. What turned me against it is that in the real world they never apply it sensitively or delicately. It always ends up being racial patronage—which is exactly why so many affirmative action programs screw over Asian Americans.

Ian whines on:

It has turned itself into a printing press for court orders benefiting the Christian right.

He includes a link to a post complaining that a coach was allowed to pray at football games. Sigh. And that is the only example of such a court order that he gave, far from a printing press..

It’s given itself sweeping veto power over literally anything done by a federal agency that should be controlled by the president.

Besides repeating himself, through his links you can see he is complaining about the Loper decision. I wrote about it here, but previously the Supreme Court would allow agencies to radically change the law based on who is in the White House. Now, the Supreme Court said they will actually interpret the law for themselves, with only minimal consideration to what the agencies say about that. So, he’s complaining that judges will interpret the law and he believes the president should control the interpretation of the law. Let that sink in.

Alas, he whines on:

Along the way, the Court has pulled new legal rules out of thin air, then used these newly invented rules to nullify many of Biden’s most ambitious programs.

If you follow his link, you see is complaining that the Supreme Court said that Joe Biden couldn’t just cancel student loans after Joe Biden and numerous other people in government said he … checks notes … couldn’t just cancel student loans. I won’t get into the weeds about this, but the rule he complains about was in fact well established in precedent. My guess is Ian just wanted his Benjamins and is just mad about it.

He goes on:

If the American people had voted for this agenda then it would be difficult to criticize the Republican Party for pushing it. But the electorate did nothing of the sort.

This is where his thinking starts to get very confused. He is referring to the prior paragraph, which I had chopped into bits while fisking him, so let me repeat it for clarity:

During the Biden administration, the Republican Supreme Court wielded its power aggressively. It greenlit abortion bans in numerous red states. It abolished affirmative action at nearly all universities. It has turned itself into a printing press for court orders benefiting the Christian right. It’s given itself sweeping veto power over literally anything done by a federal agency that should be controlled by the president. And then there was that whole affair where the Republican justices said that Donald Trump was allowed to commit crimes while he was in office.

His first complaint is that the Supreme Court made it so that the American people could actually vote to make abortion policy again, and he is claiming that this is against the will of the American people? So his logic is ‘We should deny the American people the right to vote on this topic because a majority of the American people wouldn’t vote to let them vote on this topic.’ This is what happens when you don’t actually think deeply about the Constitution and you let your views on the Constitution be driven entirely by your policy preferences.

Then he complained that the Supreme Court struck down affirmative action and allowed a coach to pray—care to put those to a vote, Ian? I don’t think that would go the way you think it would. Nor did the American people vote to give student loan forgiveness, or to try to prosecute Trump for anything they think they could get him on. That’s why all but one of those trials in are in deep blue strongholds—because it wouldn’t fly in front a jury of Trump’s actual peers. And if they could put the ‘documents’ trial in any state but Florida, they would.

He goes on, whining about the electoral college. He is very repetitive of points blindingly obvious to most people, such as that the electoral college is not strictly democratic and it is not meant to be. Then he turns to whine about the Senate:

Trump had a Republican Senate willing to put his choices on the bench because Republicans have an enduring advantage in the upper chamber, one that makes it more difficult for Democrats to control the Senate. Each state, regardless of population, gets two senators.

These antidemocratic features of the US Constitution have been with the United States almost from the beginning …

No, Ian, it has not been there from ‘almost’ the beginning, but literally the actual beginning of the Constitution. Indeed, the Senate was less democratic back then, because senators were appointed by state legislatures, rather than the popular vote. That was changed by the Seventeenth Amendment.

And the Articles of Confederation was even less democratic.

Also, this is truly impotent whining because there is nothing he can do as a practical matter to change it. Earlier I quoted Article V, but I left out several bits that weren’t relevant at the time. But now that he is demanding proportional representation in the Senate, this passage from Article V has become relevant:

no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

So, let’s say that the left tried to amend the Constitution so that states got proportional representation in the Senate. That amendment would have to be ratified by every single state before it could go into effect. So … fat chance of that ever happening.

And constitutional scholars generally agree that this section can’t be amended. That is, you can’t rewrite the section stating that you can’t amend the Constitution to take away the states’ equal representation in the Senate—except maybe with the consent of every single state. Otherwise, it would defeat the purpose of that part of Article V.

But his sentence goes on:

… but [the disproportionate distribution of senators] have an increasingly pronounced effect today, largely because the parties have sorted based on population density. People in cities and other densely populated areas tend to vote for Democrats[.]

Yeah, how is that working out, letting Democrats run most of our cities?

He drones on for a bit, writing for instance:

That means that a system that effectively gives extra representation to the most sparsely populated states will unfairly favor the Republican Party.

I mean, Democrats could actually try not being so hostile to the values of rural voters, but you do you.

He goes on and on complaining about this Constitutional feature (state equality in the Senate) he will never be able to change, and talking about all the wonderful things they could do if only they could run roughshod over the Republicans. I will skip a lot of it (I mean, if you really, really want to see this, feel free to torment yourself) but this part is worth noting:

In that world [of proportional senatorial representation], Democrats not only may have enacted more significant legislation, they would also almost certainly control the courts. Obama would have confirmed a justice to fill the vacancy created when Justice Antonin Scalia died in Obama’s last year in office, and none of Trump’s nominees would have likely been confirmed.

In the past, I wrote a piece here called 'Why You Should Be ‘Never Biden:’ The Supreme Court Edition.' It was written at a time when Joe Biden was still running for president and Donald Trump had not yet locked up the nomination, but the safe money was definitely on him. But I wrote it with an eye toward the possibility of Biden being replaced, and it has aged very well, explaining just as much why you should be ‘Never Kamala’ because of what she would do to the Supreme Court.

What Ian is writing right now is the flip side of that. I pointed out how Trump’s judicial appointments saved the First Amendment. I talked about specific cases and showed that if Trump had lost in 2016, today it would likely be a crime for a movie company to make a movie criticizing a Presidential candidate. I also showed that if it wasn’t for Trump’s appointees, the government could force you to publish political statements you disagree with. And Ian is lamenting that his party didn’t get their way on these types of issues.

Millhiser whines on:

Similarly, while Republicans probably would have still filled some Supreme Court seats during the 1990s and 2000s, it’s unlikely that they would have successfully confirmed an ideologue like Justice Clarence Thomas or an unapologetic GOP partisan like Justice Samuel Alito if Senate seats were distributed fairly by population.

This is ahistorical claptrap. The Democrats controlled the Senate when Thomas was appointed, and the Republicans didn’t have a filibuster proof majority when Alito was nominated—which is why Senator Obama attempted such a filibuster. Furthermore, there was no way to know Thomas’ or Alito’s full judicial philosophy because they correctly said it would be unethical to telegraph how they would rule in specific cases.

And Alito is not, and never has been, 'an unapologetic GOP partisan.' That just a fever dream of the left.

But that leads us to a key section:

In a fair Senate, Republican presidents would have to negotiate with Democrats to choose moderate nominees in the vein of, say, Justices Lewis Powell and Sandra Day O’Connor.

As you surely know, the Senate can only influence decision of whom to nominate by being willing to refuse to give consent. As in Bush Sr. says ‘I want Thomas on the court’ and the Democrats say ‘no.’ That will be important in a moment.

Millhiser then goes on to ‘wargame’ what would happen if Harris wins the presidency but doesn’t get the Senate, complaining that she won’t be able to appoint as many judges as she wants based on Obama’s poor record on this count:

Obama’s final two years in office were the only two when Republicans controlled the Senate. And shortly after Scalia’s death in February 2016, Senate Republicans announced that they would confirm no one Obama nominated to fill that seat.

Just a minute ago, he talked about wishing that Democrats could force Republicans to nominate less conservative judges but Millhiser fails to recognize that Obama was partially to blame for his inability to appoint a Supreme Court justice to the Supreme Court. I mean, maybe Obama could have successfully gotten a justice through if his administration wasn’t so openly hostile to the First and Second Amendments.

He goes on:

‘This vacancy should not be filled until we have a new president,’ then-Senate Majority Leader Mitch McConnell announced at the time. (Four years later, when Justice Ruth Bader Ginsburg’s death allowed Trump to fill a vacancy in the final months of his presidency, Republicans abandoned the position they adopted in 2016 and swiftly confirmed Trump’s nominee.)

McConnell made the point that there was precedent for members of the opposite party to keep the seat open in an election year. He was not in the opposite party from Trump, so that precedent didn’t apply. McConnell was being quite consistent on this point.

But honestly, I didn’t care about that precedent. At that point, everyone knew that if Obama replaced Scalia with the kinds of judges he nominates, we would have lost the First Amendment. Garland has verified over time that he was every bit the radical we feared he was. He was not suited for a lifetime appointment to the Supreme Court because he had little fealty to the Constitution.

Millhiser goes on to whine that Obama wasn’t able to appoint as many other federal judges at that time, contrasting it with Bush Jr.:

By contrast, President George W. Bush confirmed 10 appellate judges during his last two terms in office, during a period when Democrats controlled the Senate.

Because Bush figured out how to nominate choices that were minimally acceptable to the other side, and Obama didn’t.

Without the power to confirm judges, Harris will have no way to dilute the influence of judges like Cannon or Kacsmaryk, and Republicans could easily refuse to confirm anyone to any judicial vacancy that comes open until the GOP regains the White House. Alternatively, Harris may be able to strike deals with Republicans to confirm a few of her preferred judges, but the GOP has a history of demanding a very high price to confirm even a single Democratic judge.

Oh noes! Republicans might do exactly what Ian thinks Democrats should do! 

He goes on and on, whining about how his party keeps losing, until he talks about how one Republican who was nominated by Obama was defeated by Democrats ‘because his views on abortion, marriage equality, and the Confederate Flag offended Democrats[.]’

He links to an article complaining that the nominee, Michael Boggs, voted as a legislator in ways the Democrats didn’t like. According to that article:

He twice backed legislation to keep the Confederate battle emblem on Georgia’s state flag. He also supported an amendment banning gay marriage and voted to require Georgia doctors to post online the number of abortion services they performed over the last decade.

I particularly enjoyed how they were upset at Mr. Boggs for holding the same position on gay marriage that Barack Obama held in the 2008 election.

In any case, Millhiser then goes on to whine about the Supreme Court not allowing Biden to cancel student loans again (just how high are your payments, Ian?), and then he titles a section of his piece as follows:

Democrats are starting to awaken to the threat of a Republican judiciary, but they haven’t yet found a solution to their constitutional problem

Good lord, has that is more projection than you see at the multiplex. As I pointed out earlier on, the left has been able to enact huge elements of their agenda by convincing the courts to make up ‘constitutional rights’ that just aren’t there. The truth is the Republicans are just beginning to get a hold of that problem and that is what he is truly complaining about.

He goes on:

Absent constitutional reform, Democrats have good reason to fear a Republican judiciary for decades to come. A malapportioned Senate means … 

I just want to remind you that he is whining for an impossible Constitutional ‘reform.’

… that Democrats are increasingly defenseless against the GOP’s efforts to control the bench.

I mean, they could try to enact their policies by, you know … persuading people. I know, that’s just crazy talk to the left.

In recent years, however, Democrats have become more aware of a GOP judiciary’s power to thwart their agenda and have started to try to explore ways around it.

That’s right, they want to subvert the entire third branch of the Federal Government.

Historically, elected Republicans have viewed the courts as a favorable issue that rallies their base, while Democrats have behaved much more cautiously.

Yes, historically, the idea of judicial activism has been deeply unpopular with the American people. That’s why even the most radical judicial activists at least pretend they are following the Constitution, no matter how ridiculous the claim is. The people complaining constantly about misinformation being a threat to democracy don’t mind misinforming us all about the Democrats’ lack of commitment to the actual Constitution.

Why not be honest, Democrats? Why not honestly say that you will circumvent Article V, by amending the Constitution by creative Supreme Court decisions? Why not say ‘elect us, and we will make it a crime to make a movie criticizing a Presidential candidate?’ Why not say ‘elect us, and we will force people to make political statements they disagree with?’ I have shown that if you know how to crack the code, if you look at the cases that the Supreme Court had decided that Democrats have vowed to overturn they are saying exactly that. But why not stop speaking in code, Democrats? Why not actually tell the people what your actual anti-free-speech agenda is?

In any case, Millhiser goes on (really, guys, I am taking one for the team, here), talking about how Biden was persuaded to mimic the conduct by Franklin Roosevelt that eventually got him the power to try to lock up an entire ethnicity. Then he writes:

Biden proposed term-limiting the justices … 

They’re already limited to one term.

… and imposing a binding ethics code on the Court, …

Congress was given one method of punishing the justices for their conduct in office in the Constitution: Impeachment. Democrats can try to use that, or nothing at all.

… proposals also supported by Harris. Senate Majority Leader Chuck Schumer (D-NY) has a bill that would strip the Court of jurisdiction to enforce its immunity decision.

Congress tried to do this before, during reconstruction, afraid that the Supreme Court would rule in ways they didn’t like. While the Supreme Court was briefly cowed by those shenanigans, eventually they put a stop to this nonsense in United States v. Klein, 80 U.S. 128 (1872). Indeed, to deny jurisdiction in a case because Congress and/or the President are afraid the Supreme Court will rule a certain way would seem to violate due process. You can’t remove a judge from a case just because you don’t like his or her rulings.

Indeed, Ian is really letting his fascist freak flag fly:

One of the most ambitious recent Supreme Court reform proposals, from Sen. Ron Wyden (D-OR), includes a number of very aggressive reforms. Wyden’s proposal would make every justice submit to a tax audit each year, require a two-thirds supermajority for the Court to overrule an act of Congress, and gradually expand the size of the Court to 15 seats.

A ridiculous proposal that would almost certainly be blocked by the Supreme Court (if it could escape the Senate). And all because they aren’t getting their way.

Yet, while these proposals show that Democrats are moving in a more court-skeptical direction than they were four years ago, they would not solve the structural problems with US democracy that gave us the courts we have today. And they have virtually no chance of passing, especially in a world where it is increasingly difficult for Democrats to win the Senate even when they convincingly win the national popular vote.

The Founders built this system to make it harder for abusive and unconstitutional legislation to be passed. So, his complaint is a sign that the system is working as designed. Finally, he whines to a conclusion:

Realistically, turning the United States into a nation where every vote counts equally — and where each voter is actually able to shape the judiciary — would require rewriting its Constitution.

Realistically, it can’t happen, period. Thank G-d.

Until that happens, Democrats like Harris will struggle to win elections even when most Americans support them. And Democratic presidents will increasingly be at the mercy of Republicans in both the Senate and the courts.

Or … hear me out … maybe stop being so radical?

So that’s about it, but I will take a moment to make a big picture comment. Milhiser seems to define 'good' and 'fair' as ‘more democratic.’ Well, sometimes that's how he sees it. For instance, defeating Roe made America more democratic and he is hopping mad about that, so he is not totally consistent in his support for democracy.

But more often than not, he appeals to democracy as being inherently good in his piece. But I will quote a minister who disagreed. I listened to a recording of a sermon he gave, and found a transcript and this is what he said:

The first thing is that we have adopted in the modern world a sort of a relativistic ethic. Now, I’m not trying to use a big word here. I’m trying to say something very concrete. And that is that, that we have accepted the attitude that right and wrong are merely relative to our.… 

The recording cuts off but my best guess is he was going to say something like ‘relative to our numbers’ or something to that effect. But the recording cuts back in and he says:

Most people can’t stand up for their, for their convictions, because the majority of people might not be doing it. (Amen, Yes) See, everybody’s not doing it, so it must be wrong. And, and since everybody is doing it, it must be right. (Yes, Lord help him) So a sort of numerical interpretation of what’s right.

But I’m here to say to you this morning that some things are right and some things are wrong. (Yes) Eternally so, absolutely so. It’s wrong to hate. (Yes, That’s right) It always has been wrong and it always will be wrong! (Amen) It’s wrong in America, it’s wrong in Germany, it’s wrong in Russia, it’s wrong in China! (Lord help him) It was wrong in two thousand b.c., and it’s wrong in nineteen fifty-four a.d.! It always has been wrong, (That’s right) and it always will be wrong! (That’s right) It’s wrong to throw our lives away in riotous living. (Yeah) No matter if everybody in Detroit is doing it. It’s wrong! (Yes) It always will be wrong! And it always has been wrong. It’s wrong in every age, and it’s wrong in every nation. Some things are right and some things are wrong, no matter if everybody is doing the contrary. Some things in this universe are absolute. The God of the universe has made it so. And so long as we adopt this relative attitude toward right and wrong, we’re revolting against the very laws of God himself. (Amen)

And who as that evil, Christofascist minister? The Reverend Martin Luther King, Jr., speaking at his church about a year before the Montgomery Bus Boycott. You can listen to the entire sermon, here (and it highly recommended):

One thing that isn’t appreciated very much in the thinking of Dr. King was that he was a great exponent of what the Founders would call natural rights. He referred to these things as ‘God’s Law’ but he was talking about the same kinds of things. He didn’t want to tear down the Declaration of Independence, for instance. He wanted us to live up to it.

And the Declaration of Independence tells us that we have certain ‘unalienable Rights.’ An ‘unalienable’ right is one you can’t sell or give away, to contradict Thomas Hobbes’ belief that we give up all our rights to the government. The Declaration teaches us that these rights come from God (our creator), and that ‘among these [rights] are Life, Liberty and the pursuit of Happiness.’ By the use of the word ‘among’ the Founders were saying that these three rights are not an exhaustive list, that we have more rights than just those three. And the Declaration tells us ‘[t]hat to secure these rights, Governments are instituted among Men.’ In other words, the entire purpose of government is to protect our rights, better than they would be protected if there was no government at all. So, to the extent that founders believed in democracy, the goal wasn’t democracy itself, but the preservation of our basic, natural and inalienable rights.

So, what Ian Milhiser describes as awful in our system—usually complaining that it is not as democratic as he would like—is the system working exactly as it is designed, to preserve our rights. If Kamala Harris wins, her anti-freedom-of-expression agenda is going to hit some road blocks when trying to get the Senate’s cooperation, or the cooperation of the courts. The same can be said for her desire to violate our foundational right to bear arms. This is not a bug. It is a feature. Milhiser says ‘The United States Constitution is actually quite bad’ but to a person who recognizes that the purpose of the Constitution is to protect our rights, the Constitution is pretty impressively good. It's not perfect, obviously, but better than the alternative Milhiser seems to envision, where our most basic rights are subject to the whim of a majority.

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