Roberts and the Court’s Legitimacy

Roberts may not like it, but SCOTUS is political and does have a legitimacy problem.

Source: The White House

Chief Justice John Roberts:

“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is,” said Roberts, who added, to laughter, “Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

While I understand what he means from a judicial/lawyerly point of view, I would point out that the “political branches” actually make the law. Indeed, I think that law schools (and the general discourse on this matter) incorrectly propagate the notion that legal interpretation is a technical matter somehow unsullied by politics. I also think that, yes, in a democratic republic that public opinion is quite relevant to judicial decision-making (although the best way for that to happen is for democratic processes to produce the judicial branch instead of allowing minority rule to produce the courts).

As was noted in the comment section of another post recently, often people use the term “political” to mean “partisan” but even then, it is hard (indeed, impossible) to ignore the partisan nature of appointments to the court and to the behavior of the Justices once appointed.

For the Court to see itself as not “political” is ultimately absurd and deep down I think Roberts knows it.

And let’s speak plainly about the abortion issue. Regardless of one’s position on the matter, it is quite clear that we did not end up with Dobbs simply as a result of some technical legal process. Rather, it came about because of politics, electoral and otherwise. (But not because the majority of the population wanted this policy outcome).

Indeed, Roberts may have talked about calling “balls and strikes” on the bench during his confirmation hearing, which sounds oh so very technical and neutral. But the reality is that the strike zone he uses is politically defined (as are those of all the other Justices). It is the result of specific philosophical and ideological presuppositions and beliefs. It is political to its core. If being on the court was simply a matter of learning the law and a clear set of rules for the application thereof, then we could just have judges be trained bureaucrats like in code law systems and avoid the political system as a general matter.

And I would heavily underscore that while it is true that while “people disagree[ing] with an opinion is not a basis for criticizing the legitimacy of the court” the way the court has been constituted prior to making controversial decisions is very much a good reason to raise the legitimacy question.

We cannot pretend that it is inconsequential (let alone not political) that three of the Justices were appointed by a president who won office via a popular vote/electoral vote inversion.

Nor can we ignore that that fact is all exacerbated by the way McConnell denied Obama a vote on a nominee when Scalia died and then the way he rushed confirmation of Coney Barrett when RBG died.

Not only did McConnell himself orchestrate the outcome over the Scalia vacancy (and made arguments about proximity to elections that he then ignored when RBG died, in a supreme act of utter, naked, and totally political hypocrisy) there was no way the GOP was going to give Obama the ability to fill that seat. They had the votes and that was that. Still, I will note that the behavior in question was norm-breaking, as past presidents had been afforded the ability to fill vacancies without such obstructionism. But when Roberts cries crocodile tears over the court’s legitimacy being questioned, he needs to take a hard look at how the court over which he presides was constituted. I realize he has no control over that process, but he knows full well how it works.

I would further note that even setting aside the popular vote inversion issue, our flawed system allowed a single president, in one term, to utterly reshape the Supreme Court potentially for decades. Whether people fully understand the mechanics of that or not, it certainly creates perceptions of unfairness that lead to the questioning of the legitimacy of the process, especially when SCOTUS is willing to overturn established rights.

Let me spell it out for Roberts: a minority of the country supported the 45th president. The 45th president was then able to appoint three Justices to that Supreme Court who were all confirmed by a Senate that represented a minority of the population. That court then went on to overturn abortion rights that had been enshrined in constitutional law for almost fifty years. And, in doing so, at least one Justice noted that overturning rights to contraception and same-sex marriage were potentially fair game. Oh, and there is a real possibility that this court could threaten the integrity of democracy in the United States.

Gee, I wonder why some people might be a tad upset with the court?

Let’s talk about “legitimacy” for a moment. It is a somewhat tricky concept. We can think about it in technical-legal ways and also in a broader abstract/normative sense.

For example, legally, SCOTUS was legitimately appointed. One can gripe all day long about the Electoral College and the representativeness issues of the Senate and the like, but the reality is that Trump was elected to the presidency under the rules of our constitutional order and likewise the Senate. Further, there can be no arguments that constitutional processes and procedures were followed in the nominations and confirmations of Justices Gorsuch, Kavanaugh, and Coney Barrett.*

So, in the technical/legal/constitutional sense, there is no argument about SCOTUS’ legitimacy. This matters for a variety of reasons, not the least of which being that if one is truly upset about the makeup of SCOTUS and its rulings, the issue is fundamentally structural. (In more colloquial terms, don’t hate the players, hate the game).

We can also talk about legitimacy in the broader abstract sense, which has to do with the degree to which the population actually accepts the court and its rulings as just and proper.** One might even ask if the court has democratic legitimacy in the sense that a government that is supposed to derive its power from the people needs the acquiescence of the people to survive and govern, regardless of the legal processes noted in the previous paragraph.

It is worth noting that when large numbers of people start to question the democratic legitimacy of institutions, this can lead to civil unrest. It certainly can contribute to general public frustration with government in general, beyond just the object of concern. Such frustration can lead simply to political action (i.e., voting). So, for example, we are seeing the Dobbs decision be a likely motivator in November. If such basic political action leads to increased representation of majority views on this subject and to subsequent policy actions on this and related topics, then the frustration will subside. But, if it turns out that voting does not result in some level of alleviation of concerns, further frustration will build and more questioning of the democratic legitimacy of the system will grow. That way leads to contentious politics.

Growing frustration seems the likely direction, especially since SCOTUS will not be directly affected by the November elections. Indeed, the morbid truth is that change on SCOTUS will only occur via the expiration of members of the court (as resignations are unlikely–as is court expansion). And it would take multiple deaths coupled with specific political alignments in the presidency and the Senate to change the ideological makeup of the court any time soon. It is truly a bizarre system if one thinks that it should have some level of democratic legitimacy and the design of the constitution does connect the appointment and confirmation of Justices back to branches that can trace their fundamental power to democratic processes (even if they are indirect and not fully democratic–i.e., the Electoral College and the Senate).

I would note that even with the obvious democratic deficiencies of the EC and the Senate, the design of the model did not foresee the combination of a popular vote inversion and three vacancies on the court in one term (and it didn’t take into account the huge disparity in population size of the states–let the addition of 37 states).***

I could drill down into this subject quite a bit further, but this post is already quite long. The bottom line is that while I understand that Chief Justice Roberts likes the fiction (and make no mistake, it is a fiction) that SCOTUS is apolitical and just engaged in dispassionate legal refereeing, this is simply not the case. The court is inherently political, if not partisan. It makes binding decisions of great significance and the public has to right to have opinions about those decisions. Moreover, the legitimacy of the court is, dare I say, on trial, because of the way in which it is constituted and the fact that is it largely unaccountable to the broad population, despite the fact that we are supposed to have government of, by, and for the people.

I will conclude by noting that these contentious issues ought to be more firmly in the overtly political space, i.e., in the legislature. However, our national legislature is not set up to actually represent the public effectively. The House is too small and is elected predominantly in uncompetitive districts that do a very poor job of representing the varied interests of the population. Moreover, all legislation must make it through the Senate, which over-represents low-population areas of the country and is hamstrung by internal rules that empower a minority of the chamber.

Our core problem remains a dearth of actual representativeness at the national level. This is exacerbated by the empowerment of the numerical minority in the Senate, the EC, and SCOTUS and is why Chief Justice Roberts is facing a legitimacy crisis in the institution he oversees.


*Well, I am sure there can be arguments. Some will likely argue that McConnell acted unconstitutionally, but I do not think that position is defensible. There is no constitutional requirement for the Senate to act, not to mention, again, the Democrats did not have the votes regardless of what McConnell did or did not do.

**We have discussed abstract legitimacy before as it pertains to SCOTUS here at OTB before. For example, James Joyner’s post Against Packing the Supreme Court and my post Back to SCOTUS Reform and “Legitimacy” (wherein I make similar arguments to this current post).

***Really, design or intent-based arguments are ultimately problematic. The original design was for 13 states and did not presage adding geographically huge states, among a host of other issues. The system we have is quite plainly not what the Framers were dealing with in their debates in Philadelphia. To pretend otherwise is simply erroneous thinking (although it is widespread, I will agree).

FILED UNDER: Law and the Courts, Supreme Court, US Politics, , , , , , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. grumpy realist says:

    If Justice Roberts had had a background as a legal historian, he would not be taking such a naive view of legal authority.

    Heck, even reading Tierney’s book on the origins of constitutional thought should have taught him better. When moral authority fails, the only mechanism by which a legal system can retain authority inevitably devolves to whatever one has in a so-called police force enforcing the rules. And if a large chunk of the population decides to refuse, good luck with the police force.

    This is why legal authorities and decisions appealing to legal authority should never “get out over their skis”. This is particularly true of the Roberts court. It may follow “all the rules” by which a legal decision is made, but if it becomes identified as being nothing more than a lickspittle stamp for Trumpist beliefs expect problems.

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  2. Kathy says:

    “Stop seeing the court as it really is, and accept the idealized version I tell you it is!”

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  3. Scott says:

    I don’t know the history of Supreme Courts in general but it seems as though the Robert’s Court has been unusually active in reaching out and selecting cases on which it chooses to rule. This is, in its self, evidence that undermines Roberts’ thesis of passivity.

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  4. Gavin says:

    The fundamental “problem,” if only such a thing was just an intellectual exercise, is that the current group of partisan hack jurists have both written and verbally stated their preference to vomit up decisions as crafted in the basement of the Federalist Society, Opus Dei, or any ultra-right-wing think tank with money.
    When Heritage Foundation isn’t conservative enough for you, you might be a bit disconnected from objective reality..

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  5. Raoul says:

    Alito wrote the following in Dobbs: “Roe was also egregiously wrong and on a collision course with the Constitution”. Isn’t that questioning the legitimacy (literally) of the court?

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  6. MarkedMan says:

    It is the result of specific philosophical and ideological presuppositions and beliefs.

    If I believe this was true I would feel this court had more legitimacy (in the broader sense), regardless of the decisions. However, it’s become apparent that the Republicans on the court have all kinds of noble sounding philosophies and ideologies in their toolbox, and in any given decision they reach in and pull out the one that gives the answer they want.

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  7. Mimai says:

    Is the court legitimate?
    Is CRT being taught in schools?
    Is […] an example of cancel culture?

    It literally breaks my brain trying to grapple with the actual issues while trying to decode the language that is being used.

    That aside, methinks Roberts is in marketing/PR mode here, perhaps trying to stave off (what he predicts would be) the catastrophe of a total collapse of public trust in the institution. This doesn’t absolve him from criticism but rather recontextualizes the nature of his comments.

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  8. Kylopod says:

    Let’s say that tomorrow one state were to pass a law declaring that Islam is banned, and after this law gets challenged, it eventually reaches the US Supreme Court. The law’s defenders argue that the law is perfectly constitutional, since Islam is not a real religion and therefore not entitled to First Amendment protections.

    What would happen if the Supreme Court ruled that this argument was correct, and voted to uphold the law? Then that interpretation would become the law of the land. The idea that Islam is not protected by Freedom of Religion would become official US jurisprudence, and there’d be pretty much nothing anyone could do about that except by a change in the makeup of the courts leading eventually to overturning this ruling.

    Let me be clear: I do not believe for a second that even this Court would issue such a ruling.

    But they could if they wanted to.

    The only thing stopping them from ruling this way is their unwillingness to do so. SCOTUS absolutely has the power to issue such a ruling. They just aren’t willing to–yet. (Or so I believe–maybe even I’m too naively optimistic.)

    Similarly, think back to the late-2020 Trump lawsuit that reached SCOTUS (Texas v. Pennsylvania), where the plaintiffs argued that the Court should throw out the results in several swing states that voted for Biden. Of course we know what happened–SCOTUS declined to even hear the case. And it was never likely to succeed, I’d agree.

    In point of fact, in terms of the actors involved, it was the closest we came in that cycle–much closer than the Jan. 6 riot–to seeing the end of American democracy.

    There is really only one reason American democracy survived that case, and it is that the Court’s right-wing supermajority chose not to end American democracy. But they absolutely had the power to do so. It was a choice of five individual people. There were no institutional barriers preventing them from issuing such a ruling. They simply chose not to go in that direction.

    This idea that SCOTUS is somehow bound by having to uphold some standard of reasonableness in judicial interpretation is such a farce by now. Just as the definition of “high crimes and misdemeanors” is whatever Congress decides it is, constitutional law is whatever SCOTUS decides it is. They can justify any ruling with whatever pseudo-legal argle-bargle strikes their fancy, and if you think their reasoning is absurd, you’re overruled. They have the power and authority to make such rulings.

    This is why I hate the metaphor of “guard rails” protecting American democracy, because it makes it sound like the protections are some kind of inanimate force. There are no guard rails, only guards. And guards can be compromised.

    Normally when we talk about separation of powers, the idea is that different people at different levels make it hard to ensure the incentives that everyone will fall in line enough for an authoritarian takeover to succeed. This has worked to some degree up to now, but it is a system that I’m convinced is in the process of collapse, as more and more actors become compromised.

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  9. gVOR08 says:

    You note Garland and Coney Barrett and the minority vote TFG. You could add that, per the Guardian, “51% of the parties who filed amicus briefs calling for an end to a federal abortion right have political connections to Ginni Thomas”. Also that the GOP appointees lied about respecting precedent. (Being good lawyers they probably avoided perjury but they certainly did deliberately deceive.)

    But what we really need to talk about is that 5-1/2 of the Justices (giving Roberts credit he may not be due) are founders or products of the Federalist Society. They were cultivated and selected by the Kochtopus to support a their particular ideology. And we could also talk about closet Catholic Integralism.

    If the Court wants respect, the Court, and the Senate, should behave respectably.

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  10. Just nutha ignint cracker says:

    the design of the model did not foresee the combination of a popular vote inversion

    [CRT TRIGGER WARNING!!!]
    I’m not sure I agree. The design was from the beginning that slavery would tilt the balance and warp the consensus. Though I will agree that the design didn’t foresee “po’ white trash” becoming the warping force.

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  11. gVOR08 says:

    @Kylopod:

    Similarly, think back to the late-2020 Trump lawsuit that reached SCOTUS (Texas v. Pennsylvania), where the plaintiffs argued that the Court should throw out the results in several swing states that voted for Biden. Of course we know what happened–SCOTUS declined to even hear the case. And it was never likely to succeed, I’d agree.

    There is really only one reason American democracy survived that case, and it is that the Court’s right-wing supermajority chose not to end American democracy.

    You have a higher opinion of these Federalist Justices than I do. The case involved four states with a total of 62 Electoral votes. Had Texas prevailed, Biden would still have won the EC narrowly by 244-232. They chose not to throw away the Court’s legitimacy and end American democracy because it wasn’t in their power to do so. Had there been another 13 EC votes involved I have no confidence they wouldn’t have horked up an R president.

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  12. Kylopod says:

    @gVOR08:

    Had Texas prevailed, Biden would still have won the EC narrowly by 244-232.

    Huh? The states were Georgia, Michigan, Pennsylvania, and Wisconsin. If all four flipped to Trump, he’d win 294-244. (I just checked using 270towin.) If the four were taken away from either candidate and Biden merely led by a 244-232 plurality (and I don’t see any reason to assume that would be the end result of this case), then the race would be decided by the House delegations, where Republicans were in the majority.

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  13. Raoul says:

    @gVOR08: After all they got involved in Gore vs Bush, on a decision that said (laughably) that this a one time decision only, how is that not a fix. And yes, Gore got more votes, but 9/11 obscured the media recount (visit Wikipedia).

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  14. Kylopod says:

    @Raoul: I’m absolutely convinced Trump had Bush v. Gore specifically in mind when he made those legal challenges. Of course as unjustified as that case was, there were important differences in how they played out. For one thing, the Bush team had the upper hand going into the case given that they were ahead in votes at the time the case was happening. Their goal was to stop the counting of the votes before they lost that advantage, and they succeeded.

    With Trump’s legal challenges, Biden was not only ahead but had been declared the winner by all the major news organizations and certified the winner by the states that put him over the top. In order for Trump to have succeeded, he needed to reverse that outcome. So at the very least the optics were different, and much harder for Republicans to spin in their favor.

    This distinction doesn’t always work to Dems’ advantage. It’s why, for example, Brian Kemp’s alleged victory over Stacy Abrams in the 2018 gubernatorial race doesn’t receive the scrutiny it deserves. All the shenanigans he engaged in to prevent people from voting were baked in by the time of the election, so Abrams’ refusal to concede is viewed much less favorably by the mainstream media (fueling those awful both-sides analyses where it’s equated to Trump’s refusal to concede in 2020). A lot turns on who’s seen as the winner on Election Night. Any attempt to challenge the results after the fact–regardless of whether the challenge is valid or totally bogus–is going to be viewed by default as sore-loser-dom.

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  15. al Ameda says:

    in the Dobbs decision:

    “We have stated unequivocally that ‘Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,’” Alito wrote.

    also in the Dobbs decision:

    “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” Thomas wrote.

    Of course Thomas was inviting legal challenges to the right to access contraception, as established in Griswold v. Connecticut in 1965, as well as the decisions that established a right to same-sex sexual intimacy and same-sex marriage, in Lawrence v. Texas in 2003 and Obergefell v. Hodges in 2015, respectively.

    Not withstanding Alito’s transparently disingenuous statement, it’s all on the table now and Roberts has to know it.

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  16. gVOR08 says:

    @Kylopod: I could be wrong, but I believe the suit was to decertify the votes from the four states, they wouldn’t be flipped, just not counted.

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  17. gVOR08 says:

    @Raoul: Right. They talked a lot about the Equal Protection clause and a one-shot non-precedent. What they did was to say the deadline deadline took priority over an honest count. Exactly what they would have said to justify not counting votes in 2020.

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  18. Kylopod says:

    @gVOR08:

    I could be wrong, but I believe the suit was to decertify the votes from the four states, they wouldn’t be flipped, just not counted.

    No. The lawsuit requested that the Court allow the state legislatures in those states to choose the electors, and for the deadline for certification to be extended.

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  19. Stormy Dragon says:

    That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

    That Roberts seems to think that legitimacy is something he is owed by his masters or that he is in any way entitled to specify under what circumstances they may question it only further underlines how his temperament is one grossly unsuitable for his current position. It is not our duty to justify our doubts about his court’s legitimacy, but rather his duty to earn our trust.

    He has failed to do so. So rather than gallivanting about the country presuming to harangue us, he should rather be explaining the causes of his failure and what he intends to do to resolve them.

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  20. Just nutha ignint cracker says:

    @Stormy Dragon: Sure. but I think Chief Justice Roberts’ message is that the Supremes cannot fail but can only be failed, and that it’s the responsibility of loyal ‘Murkans everywhere to STFU about this whole “politicized Federal court” thing and just accept that they’re making the “Right” decisions.

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  21. DAllenABQ says:

    Originalism and textualism are farce. They are license for activist judges to pretend they have special insight into the minds of long dead 18th century men. And it is quaintly convenient that these activist judges’ special insight into the minds of the founders happens to align with contemporary conservative policy preferences. In the last term of the Supreme Court it has been found that the founders intended for the States to have extremely limited authority over gun safety policy, and to have unlimited authority over maternal health and bodily autonomy policy. This is not the neutral exercise of interpreting law. This is dictating law at the whims of those who wear Supreme Court robes.

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  22. DAllenABQ says:

    @Kylopod: Well stated. Very well stated.

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  23. Ken_L says:

    In addition to the factors summarise in the post, the fact that one of the justice’s wives enthusiastically tried to overturn the 2020 election does little to inspire public confidence in the court’s integrity.

    There is no constitutional requirement for the Senate to act, not to mention, again, the Democrats did not have the votes regardless of what McConnell did or did not do.

    A point that illustrates how much democracy’s effeciveness depends on elected officials and the institutions of the state voluntarily following a set of basic norms. If taken to its logical extreme, a hostile Senate could prevent a new president filling any executive positions simply by refusing to take up any nominations. It could reduce the number of Supreme Court justices over time to five, or three, or even one, simply by declining to vote on replacements. Indeed Cruz, McCain and at least one other Republican senator declared before the 2016 election that they would not allow a President Clinton to fill any Supreme Court vacancies if she was elected. If she had won and served two terms, and they made good their threat, the court would now be down to six members.

    Many people will say these are far-fetched scenarios. Perhaps they are, but not as far-fetched as the extraordinary stunts Trump Republicans have been pulling since 2016 to stack the courts and overturn elections.

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  24. Heisenberg says:

    Thing is – Roberts is trying and failing to grasp this simple truth: he’s not Chief Justice anymore. Alito is. Oh sure Roberts has the title – but it’s Alito’s court now. Roberts is irrelevant.

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  25. Barry says:

    @Raoul: “Alito wrote the following in Dobbs: “Roe was also egregiously wrong and on a collision course with the Constitution”. Isn’t that questioning the legitimacy (literally) of the court?”

    Yes, and taking the position that another SCOTUS decision was illegitimate because blah blah blah.

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  26. Paine says:

    Well, you’d think if there really are supposed to be three co-equal branches of government then the Senate and the president are in fact obligated to act. Otherwise, SCOTUS exists at the pleasure of the other two branches of government and they could easily eliminate it through inaction.

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  27. @Paine: What you have outlined is, in fact, theoretically possible. There is nothing that compels the president to appoint and the Senate clearly has the right not to confirm.

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  28. DK says:

    Wonderfully-expressed post.

    I realize he has no control over that process, but he knows full well how it works.

    Not directly, no, but Roberts responded to Obama’s re-election by gutting the Voting Rights Act. So Roberts bears at least some responsibility for enabling Republican congressional shenanigans.

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  29. wr says:

    Roberts can squawk all he wants about the legitimacy of his court, but it’s all hot air until he can explain why a Supreme Court ruling saying that there was a right to abortion was found to be constitutional by every court for half a century and then was suddenly so egregiously wrong that it had to be overturned immediately. Why is his court the legitimate one and every court for the last fifty years illegitimate?

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  30. Jay L Gischer says:

    @wr: There were many at the time and still are those who argue that Roe v. Wade was badly decided and the result of motivated reasoning. I’m confident this is how Roberts thinks of it. He has the clearer vision, unclouded by desire.

    I mean, James thinks Roe v. Wade was wrongly decided. I think that it was the inevitable outcome of 100 years of 14th Amendment legal development – a development which we in the US ought to be proud of, by the way. For instance, I just found this quote from Bolling v. Sharpe (1954)

    Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.

    Emphasis is mine.

    Whether or not saving a 10 week fetus is a proper governmental objective rests on whether it constitutes a person. This is a matter of belief, there can be no objective proof of it. So I think that argues that a government which does not privilege one set of beliefs must take hands off.

    The response (in general, not our host) to this seems to be “But BABIES!!”.

    I once was a person who wanted there to be no politics. I now think the only place where there is no politics is a place with one or fewer humans.

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  31. Zachriel says:

    @Jay L Gischer: I now think the only place where there is no politics is a place with one or fewer humans.

    We’re of two minds on that subject.

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