Didn’t mean to drop this Glen. Busy patch. I don’t know. Have been ruminating for a week (or whatever it is) wondering whether I have any substance to contribute.
I understand how an argument like the one you make below might hang together (first para and part of the second). Do I think it does, for this case? Not really. Gorsuch looks like the kind of patrician who could have come strainght out of the worst ranks of the Roman Senate. More than any of the others. So he is probably unreachable for any aim at this point. We have to wait for him to die of old age, because his character growth ended decades ago. ACB probably has more decency, but is captured by her particular (not the most dramatic) cult, and that is limiting. If she were to show signs of growth, I wouldn’t find it incomprehensible, but I don’t expect it to be much or to be soon. Roberts doesn’t look like the cynical or bitter power-abuser that Thomas and Alito purposely present themselves as. And I can’t get inside anybody’s head; the more time goes by I don’t think I even have a good scope of what human heads can be like. I think I am becoming mind-blind; they are not more comprehensible to me than bears. But the evidence of his actions is that he repeatedly, and in a very activist/interventionist manner, protects a manifest criminal and a clear inside power-takover faction, from people who are not acting criminally and are far more democratic — and very much not populist — in their aims and their methods than the ones he protects. I think that is indicting, whether one forms a personal impression or not. I will go out on a limb and suggest that there is some projection. The language of Robers’s statements (and things I have seen quoted from the rulings, which I have not read through) sounds as if he believes lower courts don’t actually go by any standard of anything, and that’s why he wants to make the whole judicial system into a giant funnel for all authority for anything consequential to flow back to him. If I look at bits of lower-court rulings that I see, or more often hear commentary by people who seem sound to me, it looks to me like a noisy system with good and bad choices, but one in which reasoning much better than that issued by SCOTUS is not uncommon at all. So it seems to me like a kind of admission by Roberts that _he_ and his cabal don’t actually have any standards, but just start from the desired outcome and make up a story, so he figures all the other courts must be doing the same thing, and therefore he wants to accumulate final say. I will admit that I often find the rhetorical language that all the justices use annoying. Not that I want things in obscure Law French. Just that they talk as if everything has to be appealed mainly to emotions for a Sesame Street audience. Often it seems that more sensible reasons are available, than appeals to the emotional movement of whatever day of the week it is. They are all smart enough to do that, so the fact that they don’t feels to me like an admission of their view of the audience from which they want buy-in. Not a respectful view; unfortunately probably deserved in large part too. On Courts versus Institutions of experts, though: Here I don’t go with the argument you make. Neither of them has a guarantee of good or of bad faith. I think what we have seen in every important test throughout history says that good or bad faith is one of these highly unstable and dynamically maintained things, which ultimately needs some level of coordinated maintenance across the society if it is to survive. So no matter what anyone chooses institutionally, given the complexity and sheer bandwidth of the problems that need choices made, you are going to heavily distribute the load. In that case, a lot of whether you can or can’t make good choices will come down to the simple technical thing of professional training. Lawyers aren’t trained as empirical derivers; they are some other social thing. For questions of social consequence, sure; a good-faith lawyer might see something other professionals would pass over. But most of this agency stuff is about figuring out what happens in the thing we refer to as the actual or real world. And they are trained in a small sub-culture of relatively recent methods that can handle parts of that reliably in ways that nothing else we ever did before can do. When those are the structures of the problems, those professionals should be used, as they are the best tools we have to solve those problems. Making the whole society into a monoculture of law, which then degrades to a monoculture of politics, is not the right choice, and I think eventually not a stable choice. I see things (or bits of things, because I don’t spend lots of time on this) like the presidential debates, and it makes me think of what wags what. There is a sensibility of trashiness that has grown up through the generations of reality TV. There are those of us (probably many) who find this so tedious and grating that we will do a lot not to be trapped in a room with it. But it has metamorphosed so that levels of public exchange that can be consequential and should be treated that way, have been completely gobbled up by the reality TV aesthetic. It seems important that a society can do that to itself. I think not good that it can and has. Eric > On Sep 24, 2024, at 11:16 PM, glen <geprope...@gmail.com> wrote: > > Unfortunately, I'm still thinking about this. [sigh] But in my long covid > induced fugue on the interminable flight across the atlantic, I landed on the > idea that while, yes, the Roberts court is aggregating power back to > themselves (particularly - not the judicial system as a institution), perhaps > there's an -urgic demon at work. The power aggregation to the particular > humans on the SC is a merely symptom of the work of that demon. And the demon > is, in general, moving to protect us from populism. Bear with me a bit. > > Regardless of what we think if, say, Cannon or Thomas, it seems ACB and > Gorsuch are in the tradition of rationalists we might want the study of the > Law to produce. (Kavanaugh is different, I think. And I'm leaving out the > liberal Justices because I keep my enemies closer than my allies.) In > considering the Chevron overturning, on the surface, it seems stupid ... a > rejection of expertise. But combining Chevron with "Schedule F", I would > trust the dialectic pursued by Good Faith members of the judiciary more than > I would trust some rando appointed to "govern" in one of those executive > agencies. This is especially true in a scientific environment where so many > publications come out each day/week/year (many of which are on preprint > servers but cited as if peer-reviewed), no collection of Good Faith > scientists can keep track of them, much less curate them for non-experts. > Barring abdication of truth-curation to LLMs (i.e. transnational corporations > like Google, MicroSoft, Apple, etc.), the judiciary may be a decent buttress. > > And the somewhat hierarchical composition of the judiciary (from > schools/tests to experience dealing with batshit rhetoric) provides a kind of > institutional inertia that the blast of "scientific" research doesn't > provide. The judiciary might be the last bastion of the Deep State, capable > of resisting demagogues like Trump. > > What say ye? Is my optimism showing? 8^D > > On 7/17/24 17:17, Santafe wrote: >> Back to the Roberts court, the things I have seen written that seem most >> cogent to me argue that their one consistent tack is to aggregate power to >> their specific selves. There are these nonsense rulings, which are vague or >> inconsistent, and honest lower courts often cannot figure out whether or how >> to comply with them. (There was just one of these, I think the Domestic >> Abuser with a Gun case, along exactly this line, a month or two ago. >> Rahimi?) And once it is a mess of appeals in the lower courts, it can get >> back to SC, who can then make up whatever outcome they want for that case. >> It gets very close to trolling for Roberts to write condescendingly that the >> lower courts were “confused” by the SC’s ruling; in fact they had it dead to >> rights, and Roberts surely isn’t so dumb he doesn’t know that. So to act as >> if they have made the mistake is to put out loud what the game is. It’s >> like Gaetz’s text about “Cannon for Supreme Court” or whatever it was. >> Trolls gonna troll. @The cruelty is the point. It’s about the assertion of >> domination, once you think you have enough of a lock that your advantage is >> to get out of the “hiding” phase and go into the “demoralizing” phase. >> So I don’t know that there really is new “law” power in the Monarchical >> Executive. There may or may not be, but the SC would like to make itself >> indispensible in operating that machinery. > > -- > ꙮ Mɥǝu ǝlǝdɥɐuʇs ɟᴉƃɥʇ' ʇɥǝ ƃɹɐss snɟɟǝɹs˙ ꙮ > -. --- - / ...- .- .-.. .. -.. / -- --- .-. ... . / -.-. --- -.. . > FRIAM Applied Complexity Group listserv > Fridays 9a-12p Friday St. Johns Cafe / Thursdays 9a-12p Zoom > https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fbit.ly%2fvirtualfriam&c=E,1,1_aBeFAwklctHPs6JGVLzZoH4qg9y7TS6UGq2ZF0_hfMvCPEC2EDVkbcRZL9ICnerPdAhfUHf3qJKiKWm79RVU3aYmswEXd1zW-2iyEPsMa0FQ,,&typo=1 > to (un)subscribe > https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fredfish.com%2fmailman%2flistinfo%2ffriam_redfish.com&c=E,1,sOxvZwQQzqNYV1Ur98s2I7RZLM8Mw8miDOdMCFLALZhbCt0X8NkHsUeyPI7H59a74eH2So1fY64-P2o350zNZFaIPB9u3iLIKRaA_hPZLu1STXVcsMOm--YOQQ,,&typo=1 > FRIAM-COMIC > https://linkprotect.cudasvc.com/url?a=http%3a%2f%2ffriam-comic.blogspot.com%2f&c=E,1,LOYG0etBbN2igT6uy7-ovK7heagzc594b7GzOje6YIkOzQM10Ur-gC3wLesZsowLk_HWWykGOYD8856c_KMBkg2ekh0m_ZcRpIQc7l0C&typo=1 > archives: 5/2017 thru present > https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fredfish.com%2fpipermail%2ffriam_redfish.com%2f&c=E,1,TG1CxHlWJe5v_syOzFRB1pB_ZnqfWfnf2jOiBhjimimXKWLuAMzAHBWSCDp-qlQA865mGyMI8hFlChWc4gM0NG_Z0wQh0EygZz3CBNT3xCjhcXGmQA,,&typo=1 > 1/2003 thru 6/2021 http://friam.383.s1.nabble.com/ -. --- - / ...- .- .-.. .. -.. / -- --- .-. ... . / -.-. --- -.. . 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