Mastodawn

Cory Doctorow Mar 25, 2023

For many #ConstitutionalLaw scholars, last years' #Dobbs decision on #AbortionRights at the #SupremeCourt came as a dismaying shock, because it showed conclusively that #conlaw wasn't a realm of ideologically consistent intellectual foment, but rather, a matter of *politics*.

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If you'd like an essay-formatted version of this thread to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/03/25/consequentialism/#dotards-in-robes

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Pluralistic: The Golden Rule (them what has the gold makes the rules) (25 Mar 2023) – Pluralistic: Daily links from Cory Doctorow

Cory Doctorow Mar 25, 2023

Writing for #CreditSlips, the #FinanceLaw scholar #AdamLevitin admits to feeling a bit of schadenfreude in that moment. The "blue collar" law scholars in "grubby" banking and money fields have always treated the conlaw set as "slightly clueless toffs":

https://www.creditslips.org/creditslips/2023/03/the-death-of-dodd-frank-banking-laws-dobbs-moment.html

As a field, conlaw fiercely resists the idea that their field is "largely a battle of normative opinions, without any quasi-objective touchstone or clearly right or wrong answers."

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The Death of Dodd-Frank: Banking Law's Dobbs Moment - Credit Slips

Last year, I savored a bit of schadenfreude watching my con law scholar colleagues despair about their field after cases like Dobbs v. Women's Health Organization or West Virginia v. EPA. Con law scholars see themselves as the royalty of...

Finance law, by contrast, firmly roots its understanding of outcomes in expediency and politics as much as the text of the law.

And of course, every conlaw scholar must know that - at certain points - the Supremes' most consequential decisions were political, overturning jurisprudence based on shifting cultural attitudes.

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Cory Doctorow Mar 25, 2023

Think of #AbrahamLincoln, whose anti-#slavery laws were repeatedly struck down by the #SCOTUS of the day. Lincoln's predecessors had filled the court with pro-slavery southerners who remained on the bench long after their home states had seceded from the Union:

https://theconversation.com/packing-the-court-amid-national-crises-lincoln-and-his-republicans-remade-the-supreme-court-to-fit-their-agenda-147139

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Packing the Court: Amid national crises, Lincoln and his Republicans remade the Supreme Court to fit their agenda

In the 1860’s, the Supreme Court was a ‘partisan creature’ and President Lincoln and the Republican Party remade it so that it reflected the party’s priorities.

The Conversation

Cory Doctorow Mar 25, 2023

That court ruled in #DredScott that Black people were "so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit":

https://teachingamericanhistory.org/library/document/dred-scott-v-sandford/

Small wonder that the Supreme Court was considered "the last stronghold of Southern power." The court consistently ruled against Lincoln and Lincoln simply ignored their rulings:

https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown

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Page not found | Teaching American History

Teaching American History

Cory Doctorow Mar 25, 2023

Eventually, Lincoln hit on a very honorable solution to an illegitimate court that frustrated the political will of democratically accountable lawmakers: #PackTheCourt. He reorganized the Federal Circuits to purge federal judges who supported the Confederacy.

He also filled SCOTUS vacancies with loyalists. Even so, that didn't get him a majority - but he didn't need a majority - the political support and momentum of the anti-slavery movement flipped those recalcitrant judges.

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Cory Doctorow Mar 25, 2023

The law didn't change, but once those judges saw that they were standing athwart a vast social upheaval, those judges' formerly iron certainties about the law crumbled.

That wasn't the only time the Supremes discovered heretofore unsuspected flexibilities in their granite certainty about the Constitution. Under #FDR, a pro-oligarch Supreme Court consistently struck down the wildly popular #NewDeal policies that won him a landslide electoral victory.

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Cory Doctorow Mar 25, 2023

These decisions were widely denounced by legal scholars - and the public. As the court annihilated worker protections and programs to rebuilt the shattered economy, #FDR used the bully pulping to call the court a "no-man's-land where no Government— State or Federal—can function":

https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/

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When Franklin Roosevelt Clashed With the Supreme Court—and Lost

Buoyed by his reelection but dismayed by rulings of the justices who stopped his New Deal programs, a president overreaches

Smithsonian Magazine

Cory Doctorow Mar 25, 2023

FDR proposed age limits on judges - which was just a roundabout way of forcing the retirement of the long-serving judges who'd been appointed by the #GildedAge plutocrats whose greed had precipitated the #GreatDepression. Forcing retirements on the #NineOldMen would open up seats for FDR to fill.

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Cory Doctorow Mar 25, 2023

When the Supremes refused to countenance such a matter, FDR went to Congress and demanded the authority to appoint a new, younger judge for every over-70 judge who wouldn't retire (contrary to popular mythology, there is no law that sets the number of Supreme Court justices at nine and the number has fluctuated widely through the history of the US).

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Cory Doctorow Mar 25, 2023

For the next 168 days, the only newsworthy subject was the legitimacy of the Supreme Court. It filled every newspaper, barroom and workplace conversation. The GOP was demolished in the 1936 middterms, which were seen as a referendum on the Supreme Court's legitimacy - a referendum that SCOTUS decisively lost.

Soon, it was clear that FDR had the majority he needed to let him appoint new judges.

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Cory Doctorow Mar 25, 2023

And then...The court found religion. They upheld a minimum wage law that was substantively identical to other laws they'd struck down just a little while before.

They upheld #NLRB rulings that were basically indistinguishable from others they'd invalidated. They reversed themselves on #InterstateCommerce and opened the door to regulating coal mines. Then they came for sweatshop garment factories.

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Cory Doctorow Mar 25, 2023

The political will to pack the court weakened - but FDR still got his court, without having to pack it. The law was subservient to politics.

In the decades since, we've allowed the myth of ivory-tower conlaw to grow unchallenged, maintaining the pretense - so beloved of the #FederalistSociety - that the law is a "textual" matter.

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Cory Doctorow Mar 25, 2023

The slight of hand is obvious: every oppressor wants to claim that they're "normal" while their opponents are "political." Paying women less then men, or Black people less than white people, is "the market" while demands for #PayEquity are "political."

Jurisprudence reflects politics and can *only ever* reflect politics. The law *must* deal in ideas like "fairness" and "reasonableness," and these concepts change and change again.

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Cory Doctorow Mar 25, 2023

Judges' authority only comes secondarily from their bailiffs and "peace officers" - a judge's true authority comes from their perceived legitimacy.

Judges and enforcers know this, even when they don't admit it, which is why they spend so much effort on set-dressing - robes and gavels and somber paneling and formal language. Deep down, they're theater kids with pretensions.

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Cory Doctorow Mar 25, 2023

That's what makes the decision to bail out #SVB so distressing for finance law scholars like Levitin: they understand their law to be grounded in *prudence* and the #SVB bailout is so *reckless*. That's why Levitin calls the SVB bailout "banking law's *Dobbs* moment."

SVB is a bank that increased executive compensation in lockstep with the recklessness of their management, doubling CEO Greg Becker's bonuses as he decreased the bank's reliability:

https://www.ft.com/content/02ff2860-2d5b-4e21-96af-cef596bff58e

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Executive pay at Silicon Valley Bank soared after big bet on riskier assets

News, analysis and comment from the Financial Times, the worldʼs leading global business publication

Financial Times

Cory Doctorow Mar 25, 2023

Becker liquidated his stock just before his bank collapsed, cashing out *twice* on that recklessness:

https://abcnews.go.com/Business/svb-execs-sold-millions-company-stock-lead-collapse/story?id=97937058

All of SVB's execs got bonuses just hours before the bank failed:

https://www.cnbc.com/2023/03/11/silicon-valley-bank-employees-received-bonuses-hours-before-takeover.html

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SVB execs sold millions of their company stock in lead up to collapse, federal disclosures show

CEO Greg Becker sold over $3.5 million in company stock, an SEC filing shows.

ABC News

Cory Doctorow Mar 25, 2023

That's what makes the bailout so dismaying. It involves an exotic (to put it mildly; "absurd" also springs to mind) interpretation of the FDIC's statutory authority and the contours of the #DoddFrankAct, passed after the #GreatFinancialCrisis to ensure that the public would never reward reckless banks for failure.

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Cory Doctorow Mar 25, 2023

As Levitin writes, "I really don't know how one can teach prudential banking regulation after SVB. How can you teach the students the formal rules—supervision, exposure and concentration limits, prompt corrective action, deposit insurance caps—when you know that the rules aren't followed?"

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Cory Doctorow Mar 25, 2023

In other words, as with Dobbs, we have enforcers and judges behaving as though they are certain that they can maintain legitimacy in the face of widespread dismay at their actions. The politics revealed by these choices are the politics of *impunity*, a bedrock belief that we don't matter anymore and we can all just go fuck ourselves.

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Cory Doctorow Mar 25, 2023

That's why SVB's apologists are so unhinged. When they argue that we had to bail out SVB because otherwise depositors would pile into #Jpmorgan and other already #TooBigToFail/#TooBigToJail banks, they excluded the possibility that we'd create *public* banks that would break free of this seeming necessity:

https://pluralistic.net/2023/03/15/mon-dieu-les-guillotines/#ceci-nes-pas-une-bailout

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Pluralistic: Learning from Silicon Valley Bank’s apologists (15 Mar 2023) – Pluralistic: Daily links from Cory Doctorow

Cory Doctorow Mar 25, 2023

When they argue that giving $2B to SVB's investors (because they were also depositors in the bank they crashed) that it's not "bailing out investors," they're ignoring the possibility that if we're gonna make up new interpretations of Dodd-Frank, we could simply tack on a "no, fuck those guys, they get *nothing*" rider:

https://pluralistic.net/2023/03/18/2-billion-here-2-billion-there/#socialism-for-the-rich

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Pluralistic: SVB’s investors will get $2b in public bailout money (18 Mar 2023) – Pluralistic: Daily links from Cory Doctorow

Cory Doctorow Mar 25, 2023

When they argue that they just want to save "small businesses" and "startups," they ignore the possibility that if we're going to find political will to save a bank whose balance-sheet was 90+% billionaire VC money, we might also find political will to impose conditions on the bail-ees.

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Jon Awbrey Mar 25, 2023

not that a few bullies don't deserve to be pulped ...