But if the right tries, and fails, then the stakes for the election will be all the higher -- for both sides.

@TheMiddleWay Divided in the sense that one party had the presidency, and the other had the senate.

@TheMiddleWay Well, many think that SCOTUS isn't exactly working well either because of what they view as unconstitutional legislating from the bench (and I would agree with them). So I guess one's assessment of how well SCOTUS is working depends on one's judicial philosophy. As far as the Senate's actions, it seems to me that the only thing we should really judge them by at the end of the day is what the Constitution requires. So, for example, when the Democrat led Senate changed the long-held rules about filibustering in order to push through judicial appointments (although except for Supreme Court appointments), I thought it looked like they were playing dirty at the time, but I could offer no valid objection because they were in complete accord with the Constitution. I'm in the same situation now, since the Republicans have done the same thing with Supreme Court appointments, although that has led to decisions I prefer rather than decisions I detest.

@KeithThroop We've become something of a Judicial Oligarchy; with all the truly important political decisions being made in the courts based on various arguments from sophistry.

@TheMiddleWay Or, if the judicial branch did its job properly, then perhaps the other branches would be forced to do theirs rather than lay it off on the Court. At any rate, the issue is what the Constitution says that each branch ought to do, and the Supreme Court should not just say, "Well, we think the other branches aren't passing the laws we want, so we will just do it ourselves by legislating from the bench." In fact, it is an even more egregious thing when they fail to do their job properly in this way, because they don't face the same electoral accountability. To be sure, justices can be impeached, but that is not an easy thing to do.

I'm not advocating that the Supreme Court Justices ought to be directly elected, by the way, but only that the nature of their lifetime appointments makes it even more serious when they abuse the power they have been given. But, again, I suppose how one views this issue depends upon one's judicial philosophy.

@TheMiddleWay I disagree. I think the Supreme Court Justices often look ahead when making their rulings, anticipating what will come of them. But, in any case, when issues are brought before them, it is their obligation to follow the Constitution when deciding what cases to take or when ruling on a case. And, when there has been no law passed, especially when dealing with an issue about which the framers and the majority of the population at the time are clear in their positions, they should not take it upon themselves to decide the issue for everyone else. I'm sure you know that the classic cases in this regard are Roe v. Wade and Obergefell v. Hodges, the one making abortion legal and the other making gay marriage legal. Nothing forced the Supreme Court Justices to do what they did in these cases. They didn't have to insert themselves into these cultural battles over morality and legislate from the bench laws that liberals weren't able to get passed in the Congress. And, by the way, the Legislature didn't fail in these instances. It refused to make certain new laws, thus leaving old ones in place. That is not failure; it is the active decision to go one way rather than another. But now we know what would happen if they went back and passed laws to enforce what their original intent was -- the Supreme Court would strike them down based on their own prior, fraudulent ruling. As I said before, to my mind such failure on the part of the Supreme Court to do its job properly is even more egregious because there is no direct electoral accountability. A majority of the Justices sitting on the bench when such decisions were made have simply forced their own will on the whole population, and they dramatically overstepped their bounds in doing so.

@TheMiddleWay You've made four arguments there, so I will briefly respond to each.

1. I can't agree. They can decide not to take a case.

2. Something should have forced them not to do what they did, namely the Constitution, which leaves making laws to the legislative branch, not to the judicial branch. Hence, my reference to their having legislated from the bench.

3. The bare fact that something is an important issue to the American public does not require the Supreme Court to make a judgment. But this misses the point I was making anyway, which is that there was majority opinion on each of the cases mentioned at the time that they were decided, a majority opinion, by the way, which would certainly have been held by the framers of the Constitution. Anyway, this is why liberals at the time could not get the laws passed that they wanted. They couldn't get a legislative majority to do it, and it is not the job of the Supreme Court to side with the minority, over-ruling the majority in such cases and over-ruling the legislative branch as well, even if the Court had been unanimous in their decisions (which they weren't) and especially if the Constitution itself does not address the issue directly.

4. Your final argument actually works in my favor I think, since the will of the people was actually over-ruled by the courts in these cases. After all, if the will of the people had been so in favor of these things, then there would have been majorities in both houses of Congress willing to pass laws in favor of them, along with a President willing to sign them. But this is really beside the point because the Constitution really is what dictates what the Court is supposed to do, and the only way to change that is to get a super majority of American citizens to change it by way of amendment. This is the way things are supposed to work.

Oh, and you mistakenly referred to 12 people on the bench, but the Supreme Court presently has only 9 justices. Well, technically 8 with the death of Ginsburg, but there should be 9.

@TheMiddleWay It seems to me that we are at an impasse and that I'm simply going to be repeating myself. We simply have very different understandings of the role of the Supreme Court as envisioned in the Constitution. I see good purpose in furthering the discussion. As always, I wish you well.