Brooding in the Marble City beside the Great Swamp

Ratification by state

The cognoscenti are whispering, whispering of a failure of will and steadiness in the SCOTUS in the matter of the Texas constitutional lawsuit against several states for a failure to provide equal rights to Texans and the citizens of six other states in election process.

According to listeners in the halls of SCOTUS actual screaming could be heard in debate among the justices over whether or not to hear the case.  This is unheard of within the most exclusive club in the world.  Mutual dislikes and contempts are carefully concealed within that charmed circle. An alternative version of the story has them screaming at each others' screens.

On this occasion, Roberts and the liberals made common cause to prevent acceptance of this case under "original jurisdiction" in this case arguing against Thomas and Alito.  Kavanaugh and Barrett were supposedly admonished by Roberts to abstain from argument on the basis of their lack of experience.  With Kavanaugh this would be easy.  IMO he is a broken man, torn to bits and mortally wounded psychologically.  

1.  Roberts actually said (or screamed) that he feared leftist mobs in the streets if the court heard the case.

2.  This establishes a context for SCOTUS decisions in which fear of the mob will decide rather than the concept of the constitution as a compact of the 50 states, a compact created by state ratifications and which cannot be changed except through ratification of changes by the states.

3.  In other words, SCOTUS is no longer an honest broker and referee among the states.

4.  What is left – force majeure?

BTW, in the chart above, North Carolina and Rhode Island had previously voted NOT to ratify but re-voted after Virginia's ratification meant that they would be excluded from the new country if they did not.  


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39 Responses to Brooding in the Marble City beside the Great Swamp

  1. cwt says:

    Weve fallen a long way from “Fīat jūstitia ruat cælum”

  2. A.Pols says:

    What you say makes sense. I had assumed that fear of upsetting the apple cart played a large part in SCOTUS’ backing away from the third rail of challenging the electoral process enshrined in US mythology as the “Envy of the World”. had they accepted the case, the scales might have fallen from our eyes.

  3. EEngineer says:

    I can’t remember ever seeing any leftist types at the range. He damn well ought to be scared of the folks I did see there though…

  4. Deap says:

    Allegedly, there was no “closed room”. They were all on ZOOM conference calls. But that is only from another net source.
    Reminder: Turtles hold up the pillars fronting the Supreme Court entrance. People speculate his is to symbolize justice moves slowly, but does win the race.
    Lowering standing thresholds for political expediency is fraught with peril. I am sorry they did not have sufficient time to analyze and research this novel issue more thoroughly. Plus it appears there are more readily justicable issues still in the pipeline.

  5. Diana L Croissant says:

    It seems to me that Roberts was really more concerned about political leaning rather than experience.
    I though the Supreme Court was to consider the Constituion first in its discussions, not experience of participants.
    What a low state our country has come to. I sure hope we can get back to some sort of equilibrium.

  6. j. casey says:

    Resonates with Escobar: “…a Deep State intel source told me, ‘the Supreme Court did not like to see half the country rioting against them, and preferred the decision be made by each state in the House of Representatives. That is the only way to handle this without jeopardizing the union. Even prominent Democrats I know realize that the fix took place. The error was to steal too many votes. This grand theft indicts the whole system, that has always been corrupt.’”

  7. j. casey
    “…that has always been corrupt.’” Escobar’s bigotry.

  8. Eric Newhill says:

    This story seems apocryphal to me. I’m not convinced it happened; at least not that way.
    All we hear from the swamp is that right wing deplorables are the greatest threat to internal security. Now I ain’t no genius of the caliber of those sitting in the Supreme Court, but even if I was a swampy I would calculate that I should fear an enraged right wing deplorable mob, with all of their fully semi-automatic scary assault weapons of war, a lot more than a bunch of thin beard coffee house rejects armed with sticks and stones.

  9. Bill H says:

    The decision not to hear the Texas case was so illogical that I concluded at once that fear of rioting was the actual cause for the decision. As everyone wondered why Democratic state governors allowed the violence to continue, I suspected at the time that it was a warning of what would happen if Democrats lost in November.

  10. scott s. says:

    In the 1876 election there was a great deal of debate over the role of the Supreme Court in the challenge to electors. A commission of Congress was created and the role of the justices was “ministerial”.
    For the Texas case, it seems to come down to Texas doesn’t like how the legislatures of PA and and the other states appoint their electors. If the affected state legislators have a problem with how the election was conducted in their states, that seems like the logical place to object.

  11. Artemesia says:

    Perhaps it’s voyeuristic to ask about Kavanaugh’s brokenness?
    Perhaps Roberts is running scared? Not much has been made of his head injury near Chevy Chase Country Club that required an overnight at Suburban Hospital. Did somebody beat up the Chief Justice?
    Similarly, a few weeks ago no explanation was forthcoming after Mitch McConnell appeared in public with both hands black-and-blue and swelling and black and blue marks about his lips.
    Rand Paul still carries the effects of persuasion-by-thuggery but seems willing to resist.
    Roberts — not so much?
    That these men, and our nation, are reduced to intimidation by thuggery makes me sad and afraid.

  12. Barbara Ann says:

    Colonel Lang
    The question you pose is of supreme importance, as of course is the question of the unknowable mind & will of the President. My own views on the latter crystallized after seeing Trump’s December 2nd speech, which appeared to me to be a clear warning to the courts to sort out the mess, or else. I recognize the argument of critics who point to a lack of precedent when decisive action has been called for in the past, but surely an uncommitted man would by now have thrown in the towel.
    I always go back to Trump’s motivations for running for office. He is many things, but dumb ain’t one of them. He must have known 5 years ago that he was going to war with the swamp and that in the absence of a negotiated peace (no sign of which is in evidence) such a war must have a winner and a loser. Trump is a high risks go-for-broke type and I happen to believe he is truly motivated by wanting to save the country and uphold his oath. There are 2 antithetical points of view on the merits of his strategy, but none of that changes what Trump himself believes and that alone will determine his actions.
    If the SCOTUS is truly irredeemably compromised, either by partisan views and/or by fear of the mob – a self-fulfilling irony is ever there was one – must a patriot still feel compelled to abide by the law? Or are we now in the territory covered by Alexander Dumas’ famous epigram; “The difference between treason and patriotism is only a matter of dates”.
    Rudy, Jenna & crew seem to have more constitutional slight of hand up their sleeves, but the scope for this looks extremely limited and all of it pretty much guaranteed to have the mob in the streets anyway I would think. Pence does not strike me as a do or die kind of guy and I just can’t see him standing in front of Congress counting the various states’ duplicate EC votes for Trump on the 6th.
    I don’t know enough about the Insurrection Act to comment on the increasingly widespread calls among Trump supporters to have it invoked. But in the absence of insurrection how could orders given under it be considered legal? It is notable I think that Sidney Powell – a lawyer – recently joined Mike Flynn in retweeting a call for exactly this. Trump’s Twitter is an oasis of ominous calm in comparison.

  13. Fred says:

    j. casey,
    “Even prominent Democrats I know realize that the fix took place. ”
    So Excobar is saying he doesn’t actually know any prominent Democrats.

  14. turcopolier says:

    Perhaps you have seen more broken men than I. “Voyeurism?” How dare you talk to me like that.

  15. Deap says:

    What does the swamp have on Roberts? – The internet is forever, so it is interesting to look back when there was similar speculation about Roberts after his Obamacare ruling; also considered a major conservative betrayal..
    Up come familiar names from this background search – Brennan and Clapper and the curious adoption by Roberts of two very blond children from “Latin America”. The speculation was deep-staters Clapper/Brennan would use Robert’s own kids suspect adoption legality against him. Search for more details about this speculation at the time. True or not, it was the operational buzz.
    However, at that same time during the Obama years with more than a little irony – (about 2010?) – it was considered ludicrous to even speculate the “government” would take actions against someone’s children, in order to get what they wanted.
    That was then; this is now. I suspect Michael Flynn has a different understanding today about how far the “government” will go against one
    s children, to get what they want. And it was the same “government” – the Obama government.
    There has always been the threat of violence surrounding that man. From being “selected” to be Harvard Law Review President to election eve 2008 -to the four years of ginned up anti-Trump violence, and threats against a fair election in 2020.

  16. Peter VE says:

    Regarding that Chart: Rhode Island made the mistake of putting ratification to a vote, where the voters turned it down 10 to 1. The new US responded by introducing a bill in the Senate to impose tariffs on trade with Rhode Island. The people who ran the state (mostly merchants such as the Brown brothers and the DeWolfs) made sure the Legislature went into special session, and they appointed a Commission, who barely voted for ratification.
    I’m sure the Legislature of the Commonwealth of Virginia would NEVER do anything so contrary to the will of the voters!

  17. Artemesia says:

    No no no.
    I was not at all suggesting you were voyeuristic.
    My purpose was to ask for more information: how, why, in what way manifest was Kavanaugh’s brokenness, but I feared that my question would label me “voyeuristic.”
    I do not know enough about Kavanaugh’s present situation to compare him to the broken men in my frame of reference. To be elevated to so prominent and supposedly prestigious a post but end up psychologically devastated is a profound tragedy.
    Apologies for failing to properly communicate, and seeming to insult you in the process.

  18. Eric Newhill says:

    Here’s another curious “accident’ to add to your list.

  19. Deap says:

    Artemesia, long term cortisone drug use, for arthritis or other chronic afflictions, can cause sub-dermal bleeding and pooling dark spots especially noticeable in the hands because they are exposed. Cortisone use when used long term is a dance between relief and side effects – it is ongoing.
    What is the level of government security protection that key government officials, elected legislative members and the judiciary get? Does the Secret Service only protect the Executive branch officers and their families?

  20. A.Pols says:

    I’m curious about your assertion about Kavanaugh. I’m not challenging your assertion in the least because I lack information. But being a broken man? Is this related to the Christine Balsy Fraud
    slander attempt to tar him as a sexual predator and, if so, could he have been so badly traumatized? I’d like to know. on a much smaller scale I have some experience with being publically impugned and how hard it can be to shake off.

  21. Roberts comes across as a Coward.

  22. longarch says:

    anonymous researchers are circulating accusations of child abuse against Justice Roberts. A summary is at:
    In brief, these anons claim that Justice Roberts engaged in decadent vice at Jeffrey Epstein’s “Orgy Island” along with Bill Clinton.
    If the general public believes these accusations, they may call for Justice Roberts’ removal from the bench, regardless of whether or not he committed treason. Furthermore, charismatic orators such as General Flynn may stir up ordinary Americans to heights of outraged activism. Justice Roberts might need to be put in protective custody. I believe Guantanamo Bay could protect his physical safety, but I fear his reputation is doomed.

  23. blue peacock says:

    “Roberts actually said (or screamed) that he feared leftist mobs in the streets if the court heard the case.”
    If this is true, then my in jest comment on SCOTUS decision calculus a few threads back is shockingly correct.
    As I noted SCOTUS would decide based on a simple choice – Trump crying on Twitter vs Antifa mobs in the streets and the corporate media hysteria directed at SCOTUS. That would be an easy choice.
    While in theory SCOTUS should adjudicate on the basis of the Constitution & laws passed by Congress, they are human and political creatures. The “strict constructionists” nominated by Trump & the GOP are only that in name, their actual judicial record shows they’re corporatists and more beholden to the Party of Davos than the original intent of the primacy of the natural rights of citizens.
    The question is what will MAGA do if they believe the election was stolen? Are they like Trump – All hat and no cattle? Unlike the Party of Davos and their street provocateurs who keep demonstrating the naked exercise of power.

  24. Neal says:

    Personally, I think the denial of cert was absolutely correct. Why? Because this is the ultimate ‘political question’. Since the Supremes are traditionally chosen from among the more learned political hacks in the Republic, it’s always been a bit of a fairy tale to pretend that they always refrain from determining political questions, and it never turns out well for the Court when they don’t, but here we’re talking about a national election. This is clearly not a decision for the judicial power. It’s supposed to be decided in the states by the counting of votes (and all the legislatures have passed laws saying so, none have reserved the power to cast the electors to the legislature, despite the authorization to do so in the constitution). As Scott S. points out above, they knew this in 1876, and I suppose that is why no one then thought the Supremes could just decide the matter, although Supreme Court judges served on the commission, presumably to add what little ‘gravitas’ they may have had. And of course, this is why the Supremes shouldn’t have waded into the Bush-Gore election (but then Tom Delay would have had to play the the king maker in accordance with the constitution, and that was a no-go for some reason).
    The reason given in the cert denial decision was perfectly correct, too. Texas has no standing to complain about the conduct of the election in Pennsylvania, etc. Not if the states retain any “sovereignty” in our federal republic. Whatever may or may not have happened in Pennsylvania or Georgia did not prevent Texas prevent from casting their electors. An expansion of the use of mail ballots in another state, with or without action by the state’s legislature, has no effect on Texas’ election. Therefore, no harm done to the state of Texas. Suddenly conservatives oppose states rights?
    The only arguable basis for the Supremes — or any part of the federal government — to get involved would be Article 4, section 4. We’d be saying that Pennsylvania and Georgia no longer had republican forms of government. Shades of Shays’ Rebellion, perhaps? I guess that is why there’s all this talk about the insurrection act.
    Which reminds me of Rehnquist’s sarcastic citing of all the lunch counter sit-in cases in Bush v Gore, cases that he had spent his life opposing, so that he could join in the equal protection argument just long enough to then say it was too late to fashion any remedy in Florida.
    By the way, the Court has denied the story about yelling in the hallways. Apparently they’ve been conferencing by telephone since last March.

  25. Fred says:

    That story gets even better. It was reported the investigator of the ‘accident’ is reported to have died at his home. Age 51. Sad for that to happen, especially at an early age. One wonders how that happened.
    As to the first accident we have to ask why GA GBI hasn’t released some very basic info on that aleged accident. Rear end collisions on an interstate where one vehicle is stopped on the side of the road do happen, though not too often. Such an accident that causes a fuel tank to catch fire thereby killing the occupants is very rare indeed.

  26. Alexandria says:

    Do you have a citation for this story, or did it come to you by word of mouth to ear?

  27. oldman2222 says:

    Colonel, you say:
    ” Roberts and the liberals made common cause to prevent certiori in this case arguing against Thomas and Alito. ”
    In fact this case had nothing to do with certiorari.
    It was an “original jurisdiction” case filed by a state directly in the Supreme Court, as provided by
    Article III, section 2, of the Constitution.
    The Court held that Texas does not have standing to argue that other states’ elections were deficient.
    This was NOT a denial of certiorari.

  28. Horace says:

    “That these men, and our nation, are reduced to intimidation by thuggery makes me sad and afraid.”
    The take-home message is that not only does violence and its threat work, but that violence and its threat are the only things that work. The decision of our ruling elites, who are neither elite nor ours any longer, to push us down this path shows their complete unfitness to rule, their profound lack of legitimacy.
    Arrogance beyond a certain level becomes indistinguishable from stupidity. They are counting on our lack of enthusiasm for a war. We didn’t WANT a war on December 7th 1941 either, but we were attacked on our own soil and fought all the way to unconditional surrender of our enemies.

  29. J says:

    Roberts refusing to hear even the merits of the case, is IMO committing Treason, and criminal fraud. Criminal in that he is bound to protect our Constitution, and fraud in the fact that he is not doing his job that Mom and Pop America are paying him to do. Roberts could (should?) be tried for Treason, in his usurping the Constitution.
    The rest of the Justice don’t have to follow what Robert says, as he cannot dictate what they do. He cannot take away their birthdays as they have lifetime appointments, and they can form their own union of Justices and kick Roberts and any other weak-knees like Kavanaugh to the curb. The justices need to grow some backbone and tell Roberts that he’s not their overseer, the Constitution is.

  30. turcopolier says:

    Thanks for the correction. That it was an original jurisdiction case makes it worse.

  31. turcopolier says:

    Word of mouth. I still know a few people. I have been told two versions. In one they were in the same room. In the other they were screaming at each others’ screens.

  32. turcopolier says:

    oldman2222 points out that I was in error. This was an “original jurisdiction” case not a matter of certiori (appeal). “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” wiki

  33. Kilo 4/11 says:

    @ scott s: “For the Texas case, it seems to come down to Texas doesn’t like how the legislatures of PA and and the other states appoint their electors.”
    Your casual attempt to dismiss the Texas suit stinks. Got something against fair elections?
    The Texas suit was against the use of the executive power (governor and sec. of state) to change the Pa. voting procedure, by, among other things, granting an extension to the time for vote counting ONLY for the mail-ins and by giving more lenient treatment to those votes by not verifying their signatures.
    Moreover, the SC would not be “deciding” the election by throwing it back to the state legislature(s) – it would merely be putting the election back in the hands of the constitutionally correct authorities, who then would decide.
    In fact, the Texas suit was an attempt to protect the votes of all Americans, and the SC failure to hear it was the death knell of whatever shred of legitimacy it had left.

  34. Steve says:

    Neal, Totally agree. I see there are no rebuttals to your points.
    The conservative wing of the SC have built their careers on the 10th amendment.
    If Republicans don’t like it. Then repeal it.

  35. Leith says:

    IMHO it was the Tenth Amendment and NOT fear of mobs that led SCOTUS to deny hearing TX AG Ken Paxton’s lawsuit. Justice Roberts used to work in a steel mill so I kinda doubt he is afraid of a whacko mob, whether that mob is leftie or the other end of the political spectrum. Only two justices disagreed with the ruling. Maybe Alito & Thomas were afraid of violence by the Proud Boys or Boogallo Boys or other right wing mobs?
    As for screaming, it would have to be at each other’s computer screens like the alternative version pf the story that Colonel Lang mentioned above. But even that is hard to believe, all of those justices forgot how to scream decades ago when they first became lower court judges. That fabrication was first put forth by convicted felon Hal Turner’s website.

  36. Scuppers says:

    Scott s. And Neal, these are disengenuous arguments you’re making. Scott, Texas isn’t objecting to how the legislatures of PA and the other states appoint their electors. It’s objecting to the fact that the legislatures of those states were excluded or over ruled or prevented from making the rules of how the elections in those states should be elected. A right granted exclusively to them by the constitution. In other words, that authority was usurped in those states by the governors, attorneys general, and courts of those states. In other words, the elections in those states were unconstitutional.
    Neal, Texas is clearly going to be affected or injured. As are all the other states that ran a constitutionally correct election. A non political example might be the NCAA. Rules and agreements are made among the collegiate sporting world. Don’t you think that all the schools would be affected in the overall outcome if some schools flouted recruiting rules and hired actual professional athletes to stock their teams, stacking the deck,, while the NCAA looked the other way and ignored their own rules? A school administration is free to hire any professional athletes if they want, but then they can’t compete in the NCAA.

  37. Scuppers says:

    Neal, you make this trite statement: “ The only arguable basis for the Supremes — or any part of the federal government — to get involved would be Article 4, section 4.” Which is a bit like saying “the only reason for the authorities to get involved is because Jeffrey Dammer butchered and ate his victims, which is against the law.” It is THE reason. No other reason is needed. It compels involvement.

  38. turcopolier says:

    Texas’ objection was that the legislature of these states were usurped in their constitutional function.

  39. Steve says:

    Then their legislatures were usurped by themselves. At least here in Wisconsin,where all election laws were ratified by the gop legislature in 2011.

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