We need to recognize how remarkable this

Part of me, of course, wants to see this as mundane -- as the Supreme Court doing exactly what it _should_ have done, exactly what every non-quack legal expert said it would do. But it would be wrong to dismiss the fears of those who worried it would do the opposite.

/2
As someone who studies authoritarian politics for a living, I would encourage all of us who have the privilege of living in democracies to retain a healthy appreciation of institutions working the way they _should_.

/3
The argument that SCOTUS _would_ rule this way because it _should_ rule this way was always specious, in my view. Of course it should. But 106 GOP congressmen and 17 state attorneys general _should_ also have refrained from filing amicus briefs.

/4
The GOP and Trump _should_ have recognized defeat, even if they don't like it. Fox News _should_ not be giving a platform to lies about 'illegal' ballots. Shall I continue?

/5
Ok, I will: the US Gov't _should_ not be a feeding trough for the president's children. The Senate _should_ have waited before filling RBG's seat. Congress and the Administration _should_ protect whistleblowers, not persecute them.

/6
In short, the list of impeachable offenses -- by this president and by his allies on Capitol Hill and in state capitals -- is so long that all of them _should_ have been drummed out of office a long time ago. And yet they were not.

/7
This gap between _should_ and _would_ has yawned because institutions do not act in their own right. Institutions have power because they shape the behaviors of the people in them, and they shape those behaviors by shaping expectations.

/8
In other words, institutions allow us to predict outcomes by telling us how people are likely to behave. And we have learned over the last four years to expect people to behave badly.

/9
If 106 Republican Congressmen could sign on to Texas's laughable lawsuit, was it really unreasonable to think that 6 SCOTUS Justices could do the same? That they could act out of self-interest or a warped, Foxed-up interpretation of reality?

Of course it was reasonable.

/10
The fact that SCOTUS in this instance closed the gap between _should_ and _would_ is important and should be neither overstated nor understated. They have not single-handedly saved American democracy. We have a lot of work to do to close the should/would gap elsewhere.

/11
But to take this case -- and even worse, to rule in Texas's favor -- would have closed the should/would gap in the other direction. It would have removed the last of the 'old' expectations and given people a new one: an expectation that the Constitution has no force.

/12
It is remarkable that the six Republicans most able to inoculate themselves against whatever has infected the rest of the party were those occupying precisely the office designed by the framers of the Constitution to be most resistant to the animal spirits of politics.

/13
But it wasn't a 232-year-old piece of paper that made SCOTUS rule that way. It wasn't the building or the air inside. It wasn't even the books and the robes. It was the people. It was _their_ expectation that this was what they _should_ do.

/14
Future historical sociologists will delve into diaries and notes of those Justices and tell us how those expectations were formed, and why they withstood what others cannot. I do not pretend to know. But perhaps we should not wait that long to find out.

/15
Perhaps we should study the thoughts and ideas of those people -- and particularly those 6 Republicans, with whom I agree on practically nothing else -- to map the genesis of their political T-cells. Perhaps we should learn to spread that immunity to the rest of the herd.

/16
I don't want to predict the future. But I do want us to take a look at this moment, if only for a moment, and understand what it means.

/END

More from Law

We need to talk about the 'expert' witness statement evidence led by Ms Bell in her successful case before the Tavistock. THREAD

You can see who gave evidence in her support from these extracts from the Tavistock's Skeleton Argument.


Helpful for you to bear in mind that her solicitor was a man called Paul Conrathe, who has a long association with the religious right in the US (I have talked about him a number of times but this is as good a starting point as any).


I am not going to address here other criticisms that might be made of the form in which that evidence was given or the timing of its service before the court. I am just going to address, in alphabetical order, the individuals whose evidence Mr Conrathe led on Ms Bell's behalf.

The first witness, alphabetically, was Associate Professor of Sociology at the University of Oxford, Michael Biggs.

Mr Biggs was exposed for posting transphobic statements online under a fake twitter handle: @MrHenryWimbush according to this report.
Some WESC submissions that are worth a read....(my thread of bookmarks)

Judge Paula Grey is president of the Gender Recognition Panel

She doesn't make any recommendations, but she sets out how the process currently works

Which chimes with my analysis of the GRP User Panel and statistics
https://t.co/XixEz7lNJv

She is also co-author if the Equal Treatment Bench Book and writes about how the judges are trained by Gendered Intelligence


There is the government's own response

https://t.co/bOn9XecAkz

On single sex spaces they say the law is clear that service providers are able to restrict access to spaces on the basis of biological sex where there is clear justification.


The response from @womensaid is significant.

Their members want trans survivors to get support they need but not by undermining their ability to serve women with female staff & female only services

They highlight lack of clarity

https://t.co/p7096sZcos


This was their position in 2015

They have moved on alot - they have been consulting with members since last year, and have had the courage to say what their members told them, not what Stonewall wanted to

You May Also Like