Jail Stephen Miller Challenge

Roman Buhler: Do you agree with Eric Holder’s call for Democrats to include Supreme Court expansion in their 2028 platform?

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The technical answer is no, but only because I want Democrats to be able to enact court expansion in 2029.

This is a general view I’ve come around to over the years, though it applies especially to court reform. We on the left love policy specificity and demand it from our prospective leaders. Some of us are just interested in the weeds. Others want to confirm that Democratic candidates aren’t blowing smoke. Professional advocates want to lock politicians into commitments they can’t easily walk away from.

Faced with those expectations, Democratic presidential candidates make insanely specific promises they can’t predictably deliver, because they can’t know what the composition of Congress will be. They deny themselves flexibility and give their opponents reams of detail to mine for vulnerabilities. A twofer.

We’d all do ourselves a favor by letting Democrats be a bit more like Donald Trump in this regard. Not to veer all the way into cavalier lying, but to speak directionally to their goals and priorities, rather than through intricate blueprints. “I will do everything in my power to make sure every single American has health insurance” is a more useful statement than a 78-page Medicare for all white paper, replete with tax shenanigans and price tags.

Same principle applies to court reform, and it applies more acutely, insofar as the right is incredibly invested in maintaining control of the judiciary. What I'd ideally like to hear more Democrats say is something like, “we will deliver accountability for the Supreme Court’s brazen corruption and partisanship.”

Then, to quote commenter Michael, when reporters press, “do you mean court packing,” the right answer is not “yes” or “no” but rather “here are all of the ways the court has been a partisan actor in recent years, and this cannot be allowed to continue.”

I won’t despair or complain if court expansion ends up in the 2028 platform, but I don’t think it’s a great idea to telegraph big haymakers like that. The good news (?) is that Democrats are too scared of their own shadows to do something as high stakes as call for checking and balancing the Supreme Court, so I doubt they’ll put it in their platform. Their timidity is its own hurdle to reform, but that challenge is separable. We need them to be radicalized against this court and cunning enough not to announce a national referendum on it.

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Joseph Kay: If a disordered fellow on a park bench handed you a sheet of paper with one of [Stephen] Miller’s texts on it, you’d go straight to social services to have him taken where he could be helped and would not be in a position to hurt anybody. The texts are astonishing in their malice, and in the haste with which they rush past any concern for factual reality, in order to (a) press those who read them toward stochastic violence, and (b) normalize mass violence, by the state and/or its “informally deputized” citizens.

My question: What legal immunities does a deputy chief of staff enjoy? What causes of action (civil or criminal) might be lodged under state law for propagating speech intended to provoke violence or, if it could be sufficiently connected, violence against a particular individual (e.g., a text directly following and condemning a decision by a judge resulting in violence against that judge)? If there are viable causes of action, would it be a useful component of resistance for attorneys general, or others, to bring one or a flood of legal actions against Mr. Miller? Otherwise, do you see his “messaging” as concerning, or do you believe it so hysterical and virulent as to be counterproductive to his project?

I’d put the short answer like this:

• Senior officials like the White House deputy chief of staff enjoy some (but not absolute) legal immunity from civil liability and process;

• They do not enjoy immunity from criminal law;

• Horrific as Miller’s tweets are, they don’t really fall into either category.

• But other stuff probably does!

Now allow me to explain in more detail. ...