"Justice" or "Just Us"?

I was going to reply to this comment, but Blogger only lets me post a comment once every third blue moon or so.  All I had to say, anyway, was that this analysis explains why Roberts is so fearful of Congress expanding the Supreme Court bench, an act I am thoroughly in favor of now.  Not because I want to swing the Court back to the Warren years (well, I do, but I'm a realist; those days are gone), but because no President should be able to stamp the court the way Trump did, with three (1/3rd!) of the appointments, appointments Thomas and Alito have been waiting their entire Justice careers for.  Increasing the number of justices to 13 or 15 (no even numbers, please) would go a long way to creating a balanced court that couldn't swing so lop-sidedly one way or the other within a generation or, more importantly, a Presidential term. (Which, yes, in the abstract is no different from the Warren Court, though no one President built that, or intended to.  But, as rustypickup astutely points out, the Roberts Court wants to return to Lochner as the guiding star of jurisprudence and judicial action.  Stopping forward motion is one thing; trying to build a Way-Back Machine and jam the country into it, is another.) I'm a bit of an insitutionalist in these matters, and these are the times when we must protect the institution from the idealogues like Thomas, Alito, and especially Gorsuch and Barrett.

But I'm delaying access to the comment, which is the more important part of this post (and also a more cogent commentary than my original):

I listened to most of the SCOTUS hearing on Friday for both cases. It was a thoroughly disheartening experience. The six reactionaries of this Republican court were warming up their arguments to take down not just the vaccine mandate (they deliberately were ignoring the less inflammatory testing option because they want flames) but all kinds of regulations. The non-delegation theory hasn't been this much debated in court hearing in nearly a century. The truest moment was a discussion between the US government and Alito. Alito asked why OSHA had enacted the vaccine mandate under emergency provisions instead of using the general rule making. The response was factual and about speed, but then the government representative said that even if they had used the regular rule making process, the same states would have sued them for rushing the rule making and they would be back at the Supreme Court again. The response was worded nicely, but the Supreme Court gets to decide the cases it takes. It was a backhanded acknowledgement that the six reactionaries are playing Calvin Ball with the government. Emergency enactment? You should have use the regular rules, you lose. Use the regular rules? You rushed and it wasn't well considered, you lose. We slowed the process, got comments and made the rule. Non-delegation, you lose. Pass legislation with explicit authority. Originalism, (Lochner, Lochner!), you lose. This is all done in bad faith and the 6 judges now see themselves as the supreme counsel, the third house of the legislative branch with veto power over the other two. Another lowlight (there were lowlights with each of the six, I just happen to pick two by Alito), was Alito saying if a worked chose to not get vaccinated, then the risk was on them and so what. He then completely ignored the response from the government, and when reiterated by Sotomayor, that it was also about protecting other workers. Really all 6 are in the cult of the individual. Even the other 6 made multiple statements that concern for customers, the general public or workers families was completely irrelevant to the discussion. 

Like the abortion cases, what is going to happen with these cases will extend well beyond the immediate cases. The conservatives are setting them up to take out whole lines of cases, regulations and statutes they don't like.

I want to add this at the end, as further comment on my support for expanding the Court: 

Am I just a massive buzzkill or will any voting rights legislation, if any, that emerges from the Senate simply be killed by the carefully engineered Supreme Court majority?

— Charles P. Pierce (@CharlesPPierce) January 12, 2022

I know I'm something of an institutionalist, but I think Mr. Pierce is right, and I also think the 15th Amendment to the Constitution should not fall to the cry of "STATES RIGHTS!"

It's just....it's just wrong.  It's not come kind of Congressional overreach, like extending Griswold from contraception to abortion.  Somehow the latter is a bridge too far, based on reasoning I no longer find even reasonable, much less persuasive; but the former is not even controversial.  Maybe because contraception is still primarily the province of women, and men only care about the children, not the pregnancy?  The VRA and the John Lewis Act would simply be enabling legislation for the 15th Amendment, not some new "right" invented out of thin air.  Why we can't have it is, of course, why the South never really lost the Civil War; they just lost the battle.  Before we are moved backwards beyond Lochner to Plessy and Dred Scott, maybe we should consider the structure of the Court with so much power to undo so much of what we take for granted; or merely consider justice.  And to do that, we need a few more voices at the table, a few more votes making the decisions.