From “Socialism” to “Diversity” (concluded)

          Diversity, often paired with “inclusion,” has been a favored word in academia for a long time. My former institution had a policy stating, “We will recruit and retain faculty who will bring their diverse perspectives, experiences, and expertise into the classroom and broaden the intellectual community. Therefore, the recruitment, retention, and promotion of full-time and adjunct faculty who are themselves diverse are essential functions to this Diversity Plan.”

          The full-time faculty at the law school was overwhelmingly white and disproportionately Jewish. I knew of only one colleague who had been raised Catholic, but few regularly attended religious services of any kind. Overwhelmingly this faculty had attended elite law schools. Although many of the graduates would be solo practitioners or practice in small firms, no faculty member had worked in such settings. Almost all the faculty had come from families whose incomes were well above the national median. Their political views were overwhelmingly liberal or further left. All supported LGBTQ rights; none pronounced right-to-life views. One or two may have voted for a Republican, but more likely they supported a libertarian candidate. All the rest supported Democrats. You get the picture.

          In short, there were a lot of ways of enhancing diverse perspectives and experiences within the faculty, but diversity did not mean bringing conservatives or Buddhists or those with varying legal backgrounds into the mix. It primarily meant hiring non-whites. One colleague did tell me that he wanted us to hire a black lesbian even though gays and lesbians were well represented on the faculty. I, too, was in favor of hiring non-whites, for I believed that they could add perspectives and experiences to our faculty. But I objected to the term “diversity,” for it had an Alice-in-Wonderland meaning. Throw out the dictionary; it meant only what we meant it to mean. One of the goals of a law school is to produce graduates who think and therefore write clearly, but I wondered how we could do that if this was our written product. I was embarrassed for our use of the term. (What did it mean to have faculty members “who are themselves diverse”?) It led to some strange conversations. I remember, e.g., the discussion of whether the appointment of a Cuban American from an upper-class family who had practiced in a Wall Street firm would add “diversity” to the faculty because we could check the Hispanic box for her.

          “Diversity” and “inclusiveness” have now become coded terms for the left just as socialism and cancel culture are for conservatives. I was reminded of this last year when a group in my summer community concerned about racial matters after the George Floyd murder convened. They sought a name and accepted the cliché: The Diversity, Equity, and Inclusion Committee. The community of 300 residences comprises primarily second homes. To maintain and operate the twenty-seven holes of golf, ten tennis courts, two lawn bowling greens, a restaurant, an Olympic-size pool, and miles of trails on over four thousand acres of forestland, we pay more than $15,000 in annual dues. The overwhelmingly white residents have varying political and religious allegiances and in other ways are diverse as long as we count the spectrum from the well-to-do to the very rich as diverse. To talk and strategize about diversity, equity, and inclusion in this community seems ironic. Case in point: the people who are employed by the community to give us this privileged experience are predominantly white, but they make well below the nationwide median income. If we got back to the true meanings of diversity, equity, and inclusiveness, wouldn’t we begin to make plans to pay these people more? We would be concerned about racial justice, but also about income inequality and social mobility. But is this part of the mission of this group? What do we actually mean by diversity, equity, and inclusion? They remain imprecisely defined. Do we want to subsidize low-income people to come into the community? Do we want to recruit nonwhite folks to buy in? Should we encourage Muslims? This is a group of well-meaning individuals, but because of the vagueness of the terminology – its very name — this group is likely to fail in identifying and fulfilling important – as yet undefined — goals.

          The left and the right are alike in many ways. They may use different terms, but often to the same effect. I am a believer in free speech, but I sometimes wish that we could ban the use of all meaningless or ill-defined terms that do not enlighten and cannot persuade but are only coded phrases meant to evoke emotional responses from those who already agree with the speaker.

From “Socialism” to “Diversity”

          It is hard for people to communicate with each other when they don’t share a common language. But it is equally hard for people who speak the same language to communicate with each other when they use words and terms whose definitions remain vague and amorphous.

          Such words, however, often do have a purpose; the goal is not to communicate meaning but to appeal to emotions. Of course, meaningful language often evokes an emotional response, but meaningless slogans are different; they do not convey content, only emotion. They are code words.

          Not all code words, however, are without content. Take the terms “illegal aliens” and “undocumented migrants.” They have the same meaning and could be part of a sensible discourse, but, of course, they are also codes, partly to evoke an emotional response in the hearer, but more often to tell us about the political sensibilities of the speaker since “illegal aliens” are dangerous while “undocumented migrants” are people in need of help.

However, there are words and phrases widely used in national discourse that look as if they are part of rational communication but don’t convey meaning; instead, they only evoke emotions in a limited group. Common language helps create a community, but emotional code words that elicit a visceral response from some but do not have content for all merely divide. And that happens a lot.

          The right uses such terms. “Socialism,” for example, is thrown about more than beads at Mardi Gras. I know what beads are, but I don’t know what socialism means to the conservatives who breathe it out seemingly on every third or fourth exhalation. I can tell that it is an epithet, but it only seems to mean any government spending or program that the speaker doesn’t like. Merely labeling those disfavored things as “socialism,” however, does not aid my understanding. I would have you explain to me why you oppose the spending or program in language that I share with you so that I can understand your opposition. Only then can you persuade me. But the word “socialism” provokes a negative reaction in a certain cohort of people and stops the conversation thus increasing divisiveness within the community.

          Of course, some on the left proudly proclaim themselves to be socialist or at least democratic socialists, but I don’t know what they mean by that either. It must mean something other than merely liberal or New Deal or Great Society liberal, but it is not clear what the differences are. Instead, the “socialist” tag is used by the left, but in their case the slogan is meant to disparage liberals who are not as far “left” as socialists. Thus AOC and Hannity, although they would never admit it, are linked by their use of that code word. They both use it to disparage their opposition.

          The right is all up in arms about “cancel culture.” But what is that? Another code phrase that seems to excoriate the left for calling out bad behavior. Those who use the term also favor the term “personal responsibility,” but the relationship of the one to the other seems vague. If I get on a soapbox seeking to influence others, I should know that my actions have effects. I should expect to take responsibility for them or at least expect that there can be consequences for them. But when the term “cancel culture” is thrown about, it seems to mean that some people should be excused from personal responsibility for their words or actions. As far as I can tell, however, cancel culture is only something the left does. Removing a writer from a television show for racist and misogynistic statements is considered cancel culture, but censuring Republicans for not toeing the Trump line is not.

          The left also has its catchphrases although one has been largely taken over by the right. “Critical race theory” has been known to legal academics for decades. Like many social theories, it was not defined with precision, but it examined the intersection of race and law to show how law negatively affected non-whites. Its first focus was on criminal justice and illuminated, e.g., that Blacks were disproportionately stopped for speeding on the New Jersey turnpike or that cocaine sentencing laws resulted in much longer sentences for Blacks than whites. CRT expanded into other areas affected by legal institutions, for example, the intersection of law and housing. I don’t know that the author would call himself a critical race theorist, but a powerful book that fits in with the movement is Richard Rothstein’s, The Color of Law: A Forgotten History of How Our Government Segregated America.

          This mode of analysis morphed from the intersection of law and race to intersection of race and powerful institutions generally—corporations, labor unions, the healthcare system, churches. Such critiques got little blowback when they were largely confined to universities. This changed when scholars and others contended that American history had too often ignored race and racism in its recounting and that the teaching of American history in grade schools, high schools and universities should change. This seems to have touched a nerve, and “critical race theory” is now often a conservative epithet used to condemn education of a broader American history without reasoned explanations of the flaws in the approach.

          The path started by critical race theory, however, has given us leftist terms: institutional racism and systemic racism. These phrases do have meaning, but often they, too, are presented as conclusory self-evident terms without explanation or evidence. They do not lead to discourse that could inform or persuade but are uttered to end discussions. They, however, are better than the left’s frequent use of “diversity,” which has the barest relationship to a dictionary definition.

(concluded May 12)

Snippets

It’s my birthday in a few days. It will be celebrated on Sunday along with Mother’s Day and the spouse’s birthday, which is a few days after mine. (Don’t send any presents . . . unless it costs over $99.) Just the NBP, the spouse, and me for a simple dinner and some smiles. But the oncoming birthday had me thinking back to more than a quarter-century ago, when Jeff and I were at the tennis net. He and I were regular doubles partners, and we also played a lot of singles against each other, with him winning at least sixty percent of the time. He is considerably younger than I am, but we had never discussed our ages. For some reason I no longer remember, age came up that day, and he asked, “How old are you?” I replied, “Fifty.” He involuntarily spurted out, “Fifty!!!” Now that he has finally passed that age, we laugh about the interchange. Ah, to be a frivolous fifty again.

          I am not young, and more and more I relate to the wisdom of Woody Allen: “It’s not that I’m afraid to die. I just don’t want to be there when it happens.”

          “No wise man ever wished to be younger.” Jonathan Swift.

          When people refuse to take the Covid-19 vaccine, perhaps they could be persuaded to inject bleach instead.

          Hannity said, “As I have told you repeatedly, you the consumer pay for increased corporate taxes.” He made no mention of another possibility: that corporations would pay lesser dividends. I don’t watch Hannity enough to know who he said paid the tariffs imposed on China and other countries by the previous president, but I doubt he told his viewers that they paid for them. And I wondered, if Hannity were right, why do corporations oppose an increase in their tax rates if they just pass it along? They should then be indifferent to a tax increase, but they don’t seem to be.

          Hector had tracked me down by getting a phone number for me off the internet. His message said that he had found my Covid vaccination card on the subway steps. Sure enough, it was not in my wallet. I had recently shown it to someone a few days earlier who was keeping vaccination records in my Pennsylvania community. It had been hard to get  out where I had put it in my wallet, so I put it back in a more accessible spot. Apparently, it was now so easy to get that it fell out when I took out my subway card. Hector and I arranged to meet at the corner of my block, and he returned it to me. Once again, I was reminded that there are many, many good people in this world, even, maybe especially, in New York City.

As avid readers of this blog know, the spouse did not know who Aaron Rodgers was. Her annual football watching generally consists of half-watching a few plays on one Sunday in hopes that a Super Bowl ad will soon appear. But she does know some players. She went to a doctor for a shoulder problem recently and hanging up in his office is a Brett Favre jersey. Showing off her knowledge, she said, “You’re a Packers fan.” He said no, he had treated Favre when he was with the New York Jets. Even so, he is going to perform on her what we hope is a routine procedure today.

“Today’s Medical Tip: Never undergo any kind of major surgery without first making an appointment.” Dave Barry.

Democracy: Indexed and Flawed (Again)

(When I have written longer essays, I have posted segments over multiple days thinking that readers might not read all the way through if it were all posted at once. Followers of the blog can read in its entirety as the essay goes online, but it has been pointed out to me that those who find such postings through a search engine may find only a part of the essay and have difficulty reading the essay from start to finish. Recently when I posted such a multiple-part essay, I have then posted the essay in its entirety after the segments have concluded so that it can be read from start to finish by those wishing to do so in one viewing. Almost always the blog’s content is new, but on occasion when it seems timely, I have repeated a past blog, which I am doing today. When I do so, even if it originally was posted over several days, I will post all of it at once. It is my Again project.)

(With waves passing through the states passing and considering legislation to make voting more difficult in the name of election security, it has made me think again about our “democracy.” As a result I revisited an earlier post not about such legislative activities but about anti-democratic structures built into our system of government.)

(First posted March 4, 6, and 9, 2020)

 I had not heard of the Democracy Index until a friend recently mentioned that the United States was listed on it as a “flawed democracy.” I later learned that the index is produced by the Economist Intelligence Unit, sister to The Economist magazine.

 The EIU bases its report on sixty indicators grouped into five categories (electoral process and pluralism, functioning of government, political participation, political culture, and civil liberties) yielding a numeric score capped at 10.00. Norway, with a score of 9.87, leads the list followed by Iceland (9.58), Sweden (9.39), New Zealand (9.39), and Finland (9.25.) Countries with scores of 8.0 to 6.0 are listed as flawed democracies, and the United States was given a 7.95 score.

This made me wonder about how I or my fellow Americans would define “democracy.” One dictionary said democracy was “government by the people, especially rule of the majority; government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” Another source said: “a system of government by the whole population of all the eligible members of a state, typically through elected representatives.” A third source: “the belief in freedom and equality between people, or a system of government based on this belief, in which power is held by elected representatives or directly by the people themselves.”

These definitions raised all sorts of questions and thoughts. Democracy was government by “the people,” but what was the definition of “the people”? Is it the same as “the eligible members of a state”? The whole population cannot vote in an election. Ten-year-olds don’t get to cast a ballot. Isn’t it important to define what the “eligible members of a state” ought to be for a democracy? If the franchise is restricted to a tiny part of the society, but the leaders are picked by majority vote of that small group, is it a democracy? I guess it is, at least according to one definition.

 One democracy definition emphasized majority rule, but I have heard of the “tyranny of the majority,” and wondered if we would consider a country democratic that horrendously oppressed all those not in the majority. And, if a system selects representatives with a plurality but not a majority, is it not democratic or is it a lesser form of democracy?

One democracy definition said “free elections.” That is not a self-evident phrase. I was not sure how I would define it, or if it could be defined except by negative examples.

Even though I felt as if I would know a democracy when I saw it, I was not sure that it could be defined. Part of the problem is that the definitions, like most definitions, were binary—something was either this or not this. Something was not “sort of” this or a “better or more complete version” of this. The Democracy Index, however, accepts a more inclusive notion of democracy. Many societies are democratic, but some are more democratic than others, and I probably thought along similar lines.

I did think, however, that the third definition included a component the others did not when it said a democracy was a system of government based on the belief of equality among people. For me, I realized, a facet of a better democracy is that the ability to vote is widespread, indicating equality among the people, and that all voters’ votes count the same, again indicating equality among the people. The elected representatives of the society are chosen by determining who had the most votes cast in an election where all the voters have equal access to cast ballots and all votes carry equal weight.

I also noticed an important absence in all the definitions. They had agreed that a representative democracy had the electorate picking people to represent them in government. But the definitions do not say that the people or the electorate choose the form of government in which their representatives will govern. But surely, the structure of the government has something to do with democracy. And “democratic” countries can be structured in ways that seem to make them more or less democratic. If our government is a flawed democracy as the Democracy Index asserts, part of the reason is that our governmental structure makes votes unequal. Our form of government means that some Americans count much more than others in choosing those who run the country. We are not, and cannot, be equal under our form of government. And the people of today have not chosen the structures causing inequality and a lesser form of democracy. Our forebears did that.

While the Democracy Index lists the United States as a flawed democracy, that categorization will be difficult for many of us to accept. Meanwhile, many who might entertain the idea of that limitation will assume that we are placed in the defective bin because of Trump’s election and his autocratic actions. The Democracy Index, first published in 2006, however, initially listed the United States as a flawed democracy in 2016 before Donald J. Trump became president. Trump may be the result, but he is not the cause, of a flawed democracy.

And although we may mouth those Fourth-of-July words—government of the people, by the people, and for the people—a little reflection shows that we don’t really believe them. Just look at the polls about confidence in Congress, for example. If we thought that government is of, by, and for us, we should have great confidence in our governing officials and bodies. We don’t. If the U.S. were truly a good and strong democracy, would approval polls for Congress hover around the twenty percent mark?

Perhaps the surprising aspect of the Democracy Index is that before 2016 it listed us as fully democratic, but we have always had important problems that conflicted with a fully functioning democracy. We often repeat Lincoln’s of, by, and for formulation, but if our government was so good, how was it that when he uttered them, he was speaking at a cemetery that represented the ongoing slaughter of a civil war? And, of course, the “people” then did not include women, blacks, or Native Americans.

We have progressed, but our democracy has never been even close to perfect. Our Constitution has served us well in many respects. It formed separate states into one nation that has endured, but that does not mean that the Constitution is without flaws. It permits governments to take actions to undercut democratic values, perhaps something that this blog will explore more in the future, but it also created a structure with anti-democratic features, structures that make our country increasingly undemocratic.

We certainly are aware that our method of selecting our president is not fully democratic. If democracy requires that all votes be counted equally and the person with the most votes wins, then the candidate with three million fewer votes than the rival would not become president, but under our semi-democracy, that was the result in 2016. (I have previously written about the electoral college including on April 10, 2019, and on October 28, 2020 https://ajsdad.blog/?s=electoral.)

The electoral college, however, is at least roughly democratic in that each state’s electoral votes roughly mirror its population size. The Senate is another story.

Within each state, the election for Senator is democratic. Every vote in Texas, for example, counts equally in choosing Ted Cruz as Senator, but within the country, votes for Senators are not equal. The Constitution allots Texas two senators. It also gives Wyoming two Senators even though the population of Texas is about fifty times the size of Wyoming’s. In other words, each Wyoming vote for a Senator counts as much as fifty voters in Texas. Hardly democratic.

And the Senate will be increasingly undemocratic. I don’t know the initial source of this statistic, but I have seen it in several publications: By 2040, 70% of the population will live in the fifteen largest states and will, therefore, account for thirty Senators while 30% of Americans will have 70% of the Senate.

Of course, even though an ever-smaller minority of the population will control the Senate, that does not mean that that minority will be able to legislate for the rest of us. The House of Representatives, even with partisan gerrymandering, more accurately reflects the population trends of the country. (Unrestrained gerrymandering is something for future consideration here.) Senators representing a small portion of the population, however, will be able to stop legislation, and that minority will be able to confirm judges, cabinet officers, and other federal officials. The majority of the country will have even less power than it does now as the Senate becomes more skewed, or we might say, the cracks in our democracy will become chasms.

You might question whether the population trends reflected in that 2040 prediction will continue. People are leaving high-cost-of-living states and moving elsewhere. It is true that California out-migration has exceeded its in-migration? That does not mean, however, that its population has declined. Instead, while the rate of its growth has slowed to a trickle, it still grew by 141,300 from 2018 to 2019, a 0.35% growth rate. However, Wyoming, the state with the smallest population, has fewer than 600,000 residents. Even if –miraculously — Wyoming grew by 20%, it would add fewer people to its population than California now does. Wyoming would continue to fall behind in this population race, but it will still have the same senatorial representation as California.

It is true that New York, with the fourth largest state population, has lost residents [and with the results of the 2020 census in, has now lost a seat in the House], but so have the small states of West Virginia and Alaska. The New Yorkers who leave do not get in their modern Conestoga wagons and go to these small states. Significant numbers are not heading to West Virginia, Alaska, or even Nebraska, whose growth rate from 2017 to 2018 was only slightly above California’s at 0.6%.

The population disparities among the states will only increase. At the end of the coming generation perhaps 20% of the population will select the Senate’s majority.

You might also say that the increasingly undemocratic representation in the Senate is what the founders of the country created. Yes, of course, those who wrote and adopted the Constitution mandated that all states, big or small or in between, would get two seats in the upper house. And perhaps that provision was necessary to get the thirteen states to meld into one country, but that, of course, does not mean that it is right for today. Those founders, unless they were on substances much different from the copious amounts of cider they drank, could not have imagined states with populations approaching 40 million.

The Constitutional framers did not create a Senate with hopes that a small portion of the population would control the Senate. A national census had not been undertaken when the Constitution was drafted, but the drafters’ views of the relative populations of the states can be seen in the Constitution’s Section 2 of Article I where the document prescribed the allocation of Representatives for the original House. New Hampshire would have three, Massachusetts eight, Rhode Island one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three, for a total of sixty-five.

The framers thought that the three largest states (this calculation included the infamous three-fifths clause) would have twenty-six representatives, indicating the belief that Virginia, Massachusetts, and Pennsylvania had 40% of the population. Both Maryland and New York were allocated six Representatives. These five states, the framers believed, had about 57% of the population. Together, of course, they had ten seats in the twenty-six-person Senate, or about 38% of the Senators, while the states with 43% of the population would have 62% of the Senators. This, of course, was an imbalance, but it was nothing like the coming disparity where 50% of the population is expected to live in just eight states by 2040. They will only have 16% of the Senators, and, thus, a minority of the population will have 84% of the Senators. 

Whether or not two-Senators-per-state is a good provision today, it is what we have because of what happened in 1787. It is not because we today have determined it is the best policy for our governing structure. But even if almost all of us concluded that we should have some other way of allocating Senators, it wouldn’t be changed. Of course, the Constitution can be amended, which requires approval from two-thirds of each house of Congress and ratification by three-quarters of the states. The states are treated equally, and the lack of approval from thirteen states, no matter what portion of the population they contain, would doom an amendment. The amendment process in general is difficult, but in reality it is impossible for changing the Senate’s composition. The Constitution’s amendment provision, Article V, says that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” I don’t think that I am being overly cynical by concluding that Alaska and Wyoming and other states would not willingly give up their “equal” Senatorial representation.

There is another possibility for ameliorating the increasingly undemocratic governmental structure. Large states such as Texas or California could divide themselves into four or six separate states, each with two Senators. The Constitution’s Section 3 of Article IV, however, says that such division can only be done with the consent of Congress. Again, I don’t think that I am being overly cynical by concluding that the Senate, where the overwhelming majority of Senators will come from the smallest states, is not going to approve the admission of such new states into the Union.

So . . . a smaller and smaller minority of the population will select a majority in the Senate. What, if in addition, the electoral college deviates further and further from the majority’s vote? Will “the people” see their government as legitimate? With these governmental structures unchangeable within our Constitutional confines, what will then happen?

The famed philosophers John Lennon and Paul McCartney seemed to advocate a mind change instead of a revolution when change might be desirable but difficult: “You say you want a revolution/ . . . But when you talk about destruction/ Don’t you know that you can count me out/ . . . You say you’ll change the constitution/Well, you know/We all want to change your head/You tell me it’s the institution/Well, you know/You better free your mind instead. . . .” But at least for me, I don’t think I can change my mind so that rule by an increasingly small minority in my country will really be all right. I don’t want to live in the equivalent of a banana republic.

But, then, what’s left? With no constitutional method for change, perhaps only the words of Jefferson show the path to a better democracy: “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. . . . It is medicine necessary for the sound health of government.”

Or perhaps we should contemplate the words of Robert Kennedy: “A revolution is coming—a revolution which will be peaceful if we are wise enough; compassionate if we care enough; successful if we are fortunate enough—but a revolution which is coming whether we will it or not. We can affect its character; we cannot alter its inevitability.”

We should start considering the extra-constitutional changes we are assuredly going to face.

Stitching a New Nine this Time

President Biden has put together a commission to examine the size of the Supreme Court. A bill was introduced in Congress to expand the Supreme Court from nine to thirteen justices. In response, a Republican congressman said the Democrats’ plan is to do as much harm to “our democracy” as possible. I wondered about his definition of democracy for, while the Supreme Court is an important American institution, it is one of our least democratic features.

The Supreme Court, of course, is not an elected body; the Justices are neither voted in nor answerable to “the people.” Since Justices may sit for thirty or more years, they make decisions for decades after the officials who appointed and confirmed them have left office. This can also be long after many  Americans were even eligible to vote for the president and senators who appointed and confirmed them. The Supreme Court is not a democratic body. Indeed, in finding validly enacted laws unconstitutional, it is often acting anti-democratically.

Furthermore, many do not see the Supreme Court as a neutral, thoughtful legal body, but a political one. Such a notion finds traction any time a presidential candidate pledges to appoint Justices not just for their legal acumen or wisdom but also for their perceived views. We know that the backgrounds of possible Supreme Court nominees are analyzed to foretell their ruling on important issues.

If the Court was to be expanded, Biden would be expected by many to nominate people who would rule in a “liberal” fashion, which means that the Republicans will oppose any expansion of the Supreme Court. Unless changes are made to the anti-democratic filibuster rules, a larger Supreme Court is unlikely. Even so, that should not end considerations for reforming the process even if a larger Court resulted. The Supreme Court is an important institution but not a perfect one, and perhaps it can be made even better. What is clear, however, is that a change in its size and the timing of who will be on the Court will not destroy or harm democracy.

The Constitution does not define the number of Supreme Court Justices. It merely says: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed since. That number has seemed sacrosanct since FDR’s failed attempt to expand the Court in 1937.

The Court had found many pieces of New Deal legislation unconstitutional. As Jeff Shesol reports in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), the Supreme Court between 1933 and 1936 overturned congressional acts at ten times the historic rate often using long neglected doctrines and breathing new life into obscure clauses of the Constitution to do so. Roosevelt then sought an expansion of the Court. Although Roosevelt gave varying nonpolitical reasons for his plan (What a shock! A politician being disingenuous!), the assumption was that he wanted more Justices so that he could appoint sympathetic people, who would uphold legislation passed by Congress and signed by the president. Or as one might put it, accept democratically enacted laws.

Roosevelt’s proposal was soundly defeated after much rhetoric about his threat to our constitutional government. While FDR’s plan failed by a resounding vote, ultimately he was the winner, and the Supreme Court and conservatives the losers. Here’s why. Soon after the proposal to enlarge the Court was presented, the Court began to uphold New Deal legislation with logic that seemed inconsistent with its previous holdings. To many the Court seemed to be bending to political winds, and the perception of it as a partisan institution increased. The proposal to enlarge the Supreme Court did not put Roosevelt in a good light. However, it also put the Court in a­ bad a light when its questionable constitutional interpretations became recognized as being the overreach of biased judges reacting to legislation they did not favor.

Any suggestion since then to expand the Court has met with outcries that our constitutional way of life will be overthrown. Adding Justices only seems to be a partisan power play and not something that could improve justice, the Court, or the perception of the Court. Something like this passage from an email I have just received from a conservative institution will be repeated many times:

Political elites on the radical Left have officially taken the first step in their plot to overthrow the U.S. Supreme Court. With the Biden Administration’s recent announcement of their new Supreme Court “reform” commission, there’s no mistaking it any longer: the extreme Left set its sights on permanently turning our independent judiciary into a tool of raw political power. And now taking it even further, Democrats have filed a bill to add 4 seats to the U.S. Supreme Court. Let’s call it what it is: a coup.

Liberals, on the other hand, have seen the Republican denial of the Merrick Garland nomination and the subsequent approval of Amy Coney Barrett as exercises of raw political power. These moves are seen not as a coup, but as a means of transforming the judiciary into a more partisan institution. A Democratic congressional candidate in the last election, when asked about court packing, said what many others think:

Sure, let’s talk about packing the court. Let’s talk about how Republicans have won the popular vote only 1 of last 7 Presidential elections but have nominated 14 of last 19 SCOTUS picks. Let’s talk about how Mitch McConnell denied President Obama’s appointments of 110 Federal judges, and a SCOTUS appointment. Those 110 appointments were then appointed by President Trump with conservative judges, and the SCOTUS pick denied to Obama was given to Trump. And now, going back on their own rule to not appoint SCOTUS justices in an election year, the GOP wants to appoint a justice in an election year. You can’t accuse Democrats of a hypothetical event that never happened while ignoring the actual court packing done by Republicans.

It seems inevitable that those holding this latter view want to use present Democratic political power to balance the partisan Republican actions. Our country is harmed the more that Supreme Court rulings are seen not as neutral constitutional and statutory rulings but as merely the imposition of personal, political, and increasingly religious views of the judges and those who placed them on the bench. An expanded Court might bring us a more balanced Court now, but ultimately, just as the Republicans have damaged the Supreme Court by their actions, the Democrats may do the same in the name of balance. The functioning of our constitutional government is harmed if we all believe as Roy Cohn did when he said, “I don’t want to know what the law is, I want to know who the judge is.” The Republican actions foster that feeling, and actions to counterbalance them by expanding the Court can do the same.

We can’t remove politics from Supreme Court decisions. On some level, all government decisions are political, and the Court is not immune. Writing about a famous case, legal scholar Fred Rodell said, “Both the plaudits and the deference, like the decision itself, and like every significant Supreme Court decision since, were and are rooted in politics, not in law. This only the ignorant would deny and only the naïve deplore.” This may be so, but that does not mean that we should just throw up our hands and accept an overly partisan Court. Instead, in examining proposals for reforming the Supreme Court, we should be seeking ways to make it look, and perhaps be, less politically partisan and more politically neutral.

Many reforms have been proposed including adding Justices now, which, of course, will be seen as and would be a partisan move even if it is warranted by Republican actions. Expansion would apparently be a one-shot deal, but of course, Republicans would be urged to do something comparable when they have the opportunity.

Other proposals, however, offer institutional changes in the timing of Supreme Court nominations that, even though they would lead to a larger body, could make the Court appear, and perhaps be, less partisan. I have not studied them all, but one has intrigued me. But now my embarrassment. I know that I read this proposal, or one much like it, somewhere. It was online, and I did not save it. I have looked for it, but so far have not found it again. I apologize for not giving proper credit, which I hope to correct.

The core of this unique proposal is that each president gets to appoint a Supreme Court Justice every two years, say on the July 1 after the presidential term begins. Presidents would make another appointment every two years thereafter. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy. Instead, in this scenario nine Justices would be picked at random from all the Supreme Court judges to decide a case. Many courts already operate this way. Intermediate appellate courts, such as the federal Courts of Appeals, have panels of three judges deciding a case but have more than that number sitting on that court. From the panoply of judges, the requisite number are selected to resolve a case. For example, the Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. The court can, therefore, take on more cases and decide them more quickly. Similarly, a Supreme Court that had more than nine judges could consider more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept for review fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the final result in a litigation. This could give more certainty, uniformity, and finality to the law.

This would also dampen lawyerly gamesmanship. Deadlines are in place to seek Supreme Court review. If they are not met, the lower court decision becomes final. If a party has been ordered to pay $1million or to serve a twenty-year sentence, the money must be paid or the imprisonment served if the petition for Supreme Court review is not timely filed. The party cannot wait for a change in Court Justices hoping that they will receive a more favorable chance in front of a newly-constituted Supreme Court.

Unlike individuals, some institutions are able to wait for Supreme Court review until the time seems propitious. For example, assume the government has lost a tax case concerning some new scheme to avoid taxes. Government attorneys may believe that if they get Supreme Court review, they will lose the case before an existing Supreme Court thereby allowing a precedent being set that allows the scheme to be used by other taxpayers indefinitely. Instead, the government may decide not to seek review in hopes that the makeup of a future Court may be more amenable to its contentions. It may be better for the government to let that individual taxpayer keep the contested moneys to avoid a bad precedent and instead seek review with some other future taxpayer when the Court makeup is different. The government can take the longer view than an individual litigant.

Other institutional groups also try to time Supreme Court review. These institutions represent a cause more than an individual client. Prime examples are the NAACP or the ACLU, but they have been joined by a host of conservative organizations. These advocacy groups often seek review only on issues when they assess the Supreme Court lineup as favorable to their position. We can expect to see that gamesmanship being played repeatedly in the coming years. With Barrett’s ascension to the Court, conservative legal organization see a solid majority favoring certain kinds of religious claims, Second Amendment expansion, and claims limiting or perhaps eliminating the right to abortion, and they will seek to get Supreme Court review of cases containing such issues.

Such gamesmanship only furthers the notion that it is not truly the Constitution or the law that determines an issue, but the personal predilections of the Justices. The intrinsic merits of a legal argument may stay the same, but the likelihood of an outcome can vary depending on the timing of Supreme Court review.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more focus on the issues and less on the judges.

I also saw another option if we had a new Justice every two years, and we had a Supreme Court larger than nine. It is the one I find most interesting.

If every two years the president could nominate a new person to the Supreme Court Justice, the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine from all the Justices, there is another intriguing possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. That judge would be available whenever one of the regular nine was unavailable for whatever reason such as illness or a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are major leaguers and are on the team, too. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for twenty-nine years and Stephen Breyer for twenty-six. Chief Justice Roberts and Samuel Alito have been on the Court for fifteen years while the other Justices have been sitting for shorter periods.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.

The partisan games we have just witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end. Such maneuvers that strengthen the notion that the Court is not a neutral body might end. Similarly, the present situation calling for the resignation of Justice Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it gave Biden two appointments in the next four years. Instead, it should start after the next presidential election with the newly-elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

Stitching a New Nine this Time (concluded)

If every two years the president could nominate a new person to the Supreme Court Justice, the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine from all the Justices, there is another intriguing possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. That judge would be available whenever one of the regular nine was unavailable for whatever reason such as illness or a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are major leaguers and are on the team, too. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for twenty-nine years and Stephen Breyer for twenty-six. Chief Justice Roberts and Samuel Alito have been on the Court for fifteen years while the other Justices have been sitting for shorter periods.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.

The partisan games we have just witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end. Such maneuvers that strengthen the notion that the Court is not a neutral body might end. Similarly, the present situation calling for the resignation of Justice Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it gave Biden two appointments in the next four years. Instead, it should start after the next presidential election with the newly-elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

(This essay will be posted in order on Monday May 3)

Stitching a New Nine this Time

We can’t remove politics from Supreme Court decisions. On some level, all government decisions are political, and the Court is not immune. Writing about a famous case, legal scholar Fred Rodell said, “Both the plaudits and the deference, like the decision itself, and like every significant Supreme Court decision since, were and are rooted in politics, not in law. This only the ignorant would deny and only the naïve deplore.” This may be so, but that does not mean that we should just throw up our hands and accept an overly partisan Court. Instead, in examining proposals for reforming the Supreme Court, we should be seeking ways to make it look, and perhaps be, less politically partisan and more politically neutral.

Many reforms have been proposed including adding Justices now, which, of course, will be seen as and would be a partisan move even if it is warranted by Republican actions. Expansion would apparently be a one-shot deal, but of course, Republicans would be urged to do something comparable when they have the opportunity.

Other proposals, however, offer institutional changes in the timing of Supreme Court nominations that, even though they would lead to a larger body, could make the Court appear, and perhaps be, less partisan. I have not studied them all, but one has intrigued me. But now my embarrassment. I know that I read this proposal, or one much like it, somewhere. It was online, and I did not save it. I have looked for it, but so far have not found it again. I apologize for not giving proper credit, which I hope to correct.

The core of this unique proposal is that each president gets to appoint a Supreme Court Justice every two years, say on the July 1 after the presidential term begins. Presidents would make another appointment every two years thereafter. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy. Instead, in this scenario nine Justices would be picked at random from all the Supreme Court judges to decide a case. Many courts already operate this way. Intermediate appellate courts, such as the federal Courts of Appeals, have panels of three judges deciding a case but have more than that number sitting on that court. From the panoply of judges, the requisite number are selected to resolve a case. For example, the Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. The court can, therefore, take on more cases and decide them more quickly. Similarly, a Supreme Court that had more than nine judges could consider more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept for review fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the final result in a litigation. This could give more certainty, uniformity, and finality to the law.

This would also dampen lawyerly gamesmanship. Deadlines are in place to seek Supreme Court review. If they are not met, the lower court decision becomes final. If a party has been ordered to pay $1million or to serve a twenty-year sentence, the money must be paid or the imprisonment served if the petition for Supreme Court review is not timely filed. The party cannot wait for a change in Court Justices hoping that they will receive a more favorable chance in front of a newly-constituted Supreme Court.

Unlike individuals, some institutions are able to wait for Supreme Court review until the time seems propitious. For example, assume the government has lost a tax case concerning some new scheme to avoid taxes. Government attorneys may believe that if they get Supreme Court review, they will lose the case before an existing Supreme Court thereby allowing a precedent being set that allows the scheme to be used by other taxpayers indefinitely. Instead, the government may decide not to seek review in hopes that the makeup of a future Court may be more amenable to its contentions. It may be better for the government to let that individual taxpayer keep the contested moneys to avoid a bad precedent and instead seek review with some other future taxpayer when the Court makeup is different. The government can take the longer view than an individual litigant.

Other institutional groups also try to time Supreme Court review. These institutions represent a cause more than an individual client. Prime examples are the NAACP or the ACLU, but they have been joined by a host of conservative organizations. These advocacy groups often seek review only on issues when they assess the Supreme Court lineup as favorable to their position. We can expect to see that gamesmanship being played repeatedly in the coming years. With Barrett’s ascension to the Court, conservative legal organization see a solid majority favoring certain kinds of religious claims, Second Amendment expansion, and claims limiting or perhaps eliminating the right to abortion, and they will seek to get Supreme Court review of cases containing such issues.

Such gamesmanship only furthers the notion that it is not truly the Constitution or the law that determines an issue, but the personal predilections of the Justices. The intrinsic merits of a legal argument may stay the same, but the likelihood of an outcome can vary depending on the timing of Supreme Court review.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more focus on the issues and less on the judges.

I also saw another option if we had a new Justice every two years, and we had a Supreme Court larger than nine. It is the one I find most interesting.

(Concluded April 30)

Stitching a New Nine this Time

President Biden has put together a commission to examine the size of the Supreme Court. A bill was introduced in Congress to expand the Supreme Court from nine to thirteen justices. In response, a Republican congressman said the Democrats’ plan is to do as much harm to “our democracy” as possible. I wondered about his definition of democracy for, while the Supreme Court is an important American institution, it is one of our least democratic features.

The Supreme Court, of course, is not an elected body; the Justices are neither voted in nor answerable to “the people.” Since Justices may sit for thirty or more years, they make decisions for decades after the officials who appointed and confirmed them have left office. This can also be long after many  Americans were even eligible to vote for the president and senators who appointed and confirmed them. The Supreme Court is not a democratic body. Indeed, in finding validly enacted laws unconstitutional, it is often acting anti-democratically.

Furthermore, many do not see the Supreme Court as a neutral, thoughtful legal body, but a political one. Such a notion finds traction any time a presidential candidate pledges to appoint Justices not just for their legal acumen or wisdom but also for their perceived views. We know that the backgrounds of possible Supreme Court nominees are analyzed to foretell their ruling on important issues.

If the Court was to be expanded, Biden would be expected by many to nominate people who would rule in a “liberal” fashion, which means that the Republicans will oppose any expansion of the Supreme Court. Unless changes are made to the anti-democratic filibuster rules, a larger Supreme Court is unlikely. Even so, that should not end considerations for reforming the process even if a larger Court resulted. The Supreme Court is an important institution but not a perfect one, and perhaps it can be made even better. What is clear, however, is that a change in its size and the timing of who will be on the Court will not destroy or harm democracy.

The Constitution does not define the number of Supreme Court Justices. It merely says: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed since. That number has seemed sacrosanct since FDR’s failed attempt to expand the Court in 1937.

The Court had found many pieces of New Deal legislation unconstitutional. As Jeff Shesol reports in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), the Supreme Court between 1933 and 1936 overturned congressional acts at ten times the historic rate often using long neglected doctrines and breathing new life into obscure clauses of the Constitution to do so. Roosevelt then sought an expansion of the Court. Although Roosevelt gave varying nonpolitical reasons for his plan (What a shock! A politician being disingenuous!), the assumption was that he wanted more Justices so that he could appoint sympathetic people, who would uphold legislation passed by Congress and signed by the president. Or as one might put it, accept democratically enacted laws.

Roosevelt’s proposal was soundly defeated after much rhetoric about his threat to our constitutional government. While FDR’s plan failed by a resounding vote, ultimately he was the winner, and the Supreme Court and conservatives the losers. Here’s why. Soon after the proposal to enlarge the Court was presented, the Court began to uphold New Deal legislation with logic that seemed inconsistent with its previous holdings. To many the Court seemed to be bending to political winds, and the perception of it as a partisan institution increased. The proposal to enlarge the Supreme Court did not put Roosevelt in a good light. However, it also put the Court in a­ bad a light when its questionable constitutional interpretations became recognized as being the overreach of biased judges reacting to legislation they did not favor.

Any suggestion since then to expand the Court has met with outcries that our constitutional way of life will be overthrown. Adding Justices only seems to be a partisan power play and not something that could improve justice, the Court, or the perception of the Court. Something like this passage from an email I have just received from a conservative institution will be repeated many times:

Political elites on the radical Left have officially taken the first step in their plot to overthrow the U.S. Supreme Court. With the Biden Administration’s recent announcement of their new Supreme Court “reform” commission, there’s no mistaking it any longer: the extreme Left set its sights on permanently turning our independent judiciary into a tool of raw political power. And now taking it even further, Democrats have filed a bill to add 4 seats to the U.S. Supreme Court. Let’s call it what it is: a coup.

Liberals, on the other hand, have seen the Republican denial of the Merrick Garland nomination and the subsequent approval of Amy Coney Barrett as exercises of raw political power. These moves are seen not as a coup, but as a means of transforming the judiciary into a more partisan institution. A Democratic congressional candidate in the last election, when asked about court packing, said what many others think:

Sure, let’s talk about packing the court. Let’s talk about how Republicans have won the popular vote only 1 of last 7 Presidential elections but have nominated 14 of last 19 SCOTUS picks. Let’s talk about how Mitch McConnell denied President Obama’s appointments of 110 Federal judges, and a SCOTUS appointment. Those 110 appointments were then appointed by President Trump with conservative judges, and the SCOTUS pick denied to Obama was given to Trump. And now, going back on their own rule to not appoint SCOTUS justices in an election year, the GOP wants to appoint a justice in an election year. You can’t accuse Democrats of a hypothetical event that never happened while ignoring the actual court packing done by Republicans.

It seems inevitable that those holding this latter view want to use present Democratic political power to balance the partisan Republican actions. Our country is harmed the more that Supreme Court rulings are seen not as neutral constitutional and statutory rulings but as merely the imposition of personal, political, and increasingly religious views of the judges and those who placed them on the bench. An expanded Court might bring us a more balanced Court now, but ultimately, just as the Republicans have damaged the Supreme Court by their actions, the Democrats may do the same in the name of balance. The functioning of our constitutional government is harmed if we all believe as Roy Cohn did when he said, “I don’t want to know what the law is, I want to know who the judge is.” The Republican actions foster that feeling, and actions to counterbalance them by expanding the Court can do the same.

(continued April 28)

Beware of “Expert” Legal Commentary–A Lesson From the Chauvin Trial

          I watched little of the Derek Chauvin trial for murdering George Floyd, but I saw the verdict as it was announced and some of the subsequent commentary during the rest of the day. A great deal has been said about the trial, and I don’t mean to add to it here. Instead, I wish to comment on some of that commentary that followed the trial. Because I was a professor of criminal law, I had often been asked by reporters and producers for various news organizations to comment on criminal and jury trial matters, so I have opinions about how those commentaries should go.  

          An aside: I apparently did not attain lasting fame from my televised commentaries. This sad state of affairs was hammered home to me recently when a friend and I were having a beer at my local bar. It was the first time I had been back since the beginning of the Covid crisis. The owner came over to welcome me, and my friend Tony remarked on the establishment’s name. “DSK. Wasn’t that the French official who was charged with crimes?” “Yes,” I said, “I got a lot of calls from French media about that case.” Instead of being impressed with my fame or expertise, my friend said, “Why were they calling you?” In spite of this, our friendship endures. (I have written about some of my media experiences on this blog including Search Results for “”Meet the Press”” – AJ’s Dad (ajsdad.blog) and Search Results for “”Your Skin is Showing”” – AJ’s Dad (ajsdad.blog)

          In those past days, I had developed a few standards for my commentaries. The first was that I would not comment on the likely outcome of an ongoing trial or the correctness of a verdict unless I had watched all of the trial. From my own experience as a trial attorney, I knew that a jury would have been presented more evidence than a casual observer who had only seen or read excerpts of the trial.

          My other standard was that I would not comment about what I did not know. I knew New York criminal law and procedure. I knew the Supreme Court decisions that pertained to criminal law and procedure. I knew the practices in New York City courts. I knew the general history and practices of American jury trials, and if I could be helpful, I would tell a reporter about the things I knew. But I seldom knew in detail the law and practices of other states and localities, and I would not pretend that I did. If the news organizations wanted comments on Minnesota law or a particular Minnesota trial, I would tell them I was not their guy.

          In watching what were billed as expert legal commentators after the Chauvin verdict, I became aware how bad many of them are. I was especially concerned by those who appeared to have been regulars talking about the trial. I would have expected these attorneys to have boned up on the issues that were sure to arise. All too often, however, my expectations were disappointed, and uninformed statements were made. I could give a number of examples, but I will stick to one.

Not surprisingly, the legal “experts” were asked about sentencing. Many of the commentators pronounced that the maximum penalties for each of the three convicted crimes which were forty, twenty-five, and ten years’ imprisonment. This was informative. They had done this much homework. Many then suggested that Chauvin could be sentenced consecutively so that he actually faced seventy-five years. I wondered if that could be right. Such sentences seemed to me to violate the Constitution.

Without getting into the technicalities, the Supreme Court has concluded that the Double Jeopardy clause forbids consecutive sentences to the top count when the other charges are “lesser included offenses” to the most serious conviction. So, for example, let’s say that stealing $1000 or over is grand larceny and carries a penalty of ten years. Let’s also assume that stealing less than $1000 is petty larceny and carries a one-year penalty. However, if I steal $1000, I have committed not only grand larceny but have also committed a petty larceny. Could I be sentenced to one year for that offense and have it run consecutively to my ten-year grand larceny sentence, thus making me serve 11 years? Without going through all of the reasoning, the Supreme Court has said no, because the petty larceny is, in this scenario, a “lesser included offense.” That is basic law which anyone claiming to be an expert on criminal law should know. Many, probably most, jurisdictions avoid this issue by telling jurors to first consider the grand larceny charge and if they convict on that not to consider the petty larceny. In these states, I would only be convicted of grand larceny.

          Chauvin, however, was convicted on three charges. Not having followed the legal issues in the case, I did not know if two of the charges were lesser included crimes to the greater one. I expected, however, that a legal commentator going on the air after the verdict expecting to be asked about sentencing would have known whether the convictions were for greater and lesser offenses and told us that if so, there could not be consecutive sentences. None did that. At a minimum, I would have expected the legal commentators to explain the constitutional limitation on consecutive sentences. None that I saw did that. Instead, I got the impression that they did not know the relevant Supreme Court decisions.

          Also relevant is that fact that many jurisdictions have limitations on consecutive sentences. When I regularly practiced criminal law, New York had put a cap on how high the consecutive sentences could go. If a defendant was convicted of three separate charges each with a potential twenty-five-year sentence, consecutive sentences would not lead to a seventy-five year sentence but to whatever the cap number was. When the legal experts told me that Chauvin could get consecutive sentences, I wondered if they knew whether Minnesota had similar restrictions on consecutive sentences. None told me whether that were so. If they had known, I am sure they would have shown off their knowledge.

          However, knowledgeable Minnesota attorneys posted the relevant state statute on a discussion group for criminal law professors, even retired ones like me. Minnesota law, as it turns out, forbids consecutive sentences in Chauvin’s situation. These truly expert lawyers explained that Minnesota does not follow the usual practice and asks the jury to render a verdict on each charge even if they have convicted on the top charge and the other charges are lesser included offenses. I learned in a clear and concise manner the law on this issue relevant to Chauvin. I also learned, sadly, that not knowing the law does not prevent some TV “experts” from talking when they do not know what they are talking about.

          This is hardly the most important misinformation presented on cable networks. However people who heard he could get up to seventy-five years and are pleased with that possibility and do not learn that such a sentence is impossible, may feel that an injustice has been committed when Chauvin gets a much lesser sentence. For me when legal commentators make ignorant statements about the law, my respect for the legal profession takes a hit. My takeaway for you is that even when a supposed expert legal commentator says something, take what you hear with a grain of salt.

          And if you care, those knowledgeable Minnesota attorneys report that prisoners must serve two-thirds of their sentences in jail and then are usually released to supervised release for the rest of their sentence.

Where Have All the Writers Gone?

          Good writing is good writing is good writing. Or at least we might think that, but perhaps not really. I have enjoyed a certain writer at one stage of my life but not at another. Of course, sometimes a book was too hard when I was young, but I later saw greatness in it. Moby Dick and The Scarlet Letter fall into that category. Assigned in high school, they were both dreary chores and probably unfinished ones. Decades later I tried again and realized why they were classics. They are great books.

          Sometimes my appreciation for a book has depended not on the quality or difficulty of a book or a writer, but on my own life cycles. Dickens is not hard to understand, but I hated and then avoided reading him when young. Then, because the spouse had to read it for a Victorian literature class she was taking, I picked up Pickwick Papers, and its laugh-out-loud funniness got me to go to his other books. Each summer for two decades when I had more time for novels, I eagerly read one of his books. I placed Dickens as the second greatest or most important writer in English after Shakespeare. Then, perhaps fifteen years later, I sought to reread Bleak House, a book I had regarded as marvelous. I couldn’t do it. This did not make me think that I had misjudged Dickens or the book but only convinced me that I was at a different stage in my reading life and Dickens did not now fit into it. I once read, for example, that you should read Thomas Wolfe (Look Homeward, Angel, that Thomas Wolfe) in your youth or you won’t be able to read him at all. So far, I have not read him, and youth is far behind me.

          Sometimes I recognize that a book must be great but does not suit me. I have read War and Peace three times (you are entitled to think that I must be crazy) and I have never understood its touted excellence. I accept the world’s opinion that it is great, but not for me. Some books I have tried to reread and wondered why they were ever considered good. For example, I plunged into Hemingway’s Farewell to Arms recently and thought that it was amateurish and simply awful.

But what I have been thinking about recently are those writers who were considered good or important and clearly had an impact on “letters” but who fell out of favor while other comparable writers continue to be read. Sometimes such writers “disappear” for a while and then seem to reemerge. Dreiser, Dos Passos, and Wilkie Collins may fall into such a waxing and waning category. Others, perhaps George Gissing and John P. Marquand, just ebb.

          So my game for you: Name the ten, or twenty-five, or even fifty best or most important American writers of the twentieth century. Did your list include the writers who won all of these: a Pulitzer Prize for fiction, a National Book Award for a different novel, and two Pulitzers for drama? It’s a trick question. There is only one who won them all, but your list probably did not include him: Thornton Wilder. We overlook him even though many of my generation read the Pulitzer-Prize-winning The Bridge of San Luis Rey, an innovative, powerful work. And many of us have seen or read or even acted in his innovative, powerful play that won a Pulitzer: Our Town. On the other hand, I have never seen his other Pulitzer-Prize winning play, The Skin of our Teeth, although I would have liked to have seen the original Broadway cast of it, which starred Frederic March and Tallulah Bankhead. Some years back, I found that the Barrett Friendly Library had a copy Wilder’s The Eighth Day, which won the National Book Award four decades after Bridge won the Pulitzer. It is very good, and that made me wonder why he wasn’t read more these days. Even so, I did not seek out more of his output or reread Bridge, and perhaps it is telling that I could not recently remember the title of The Eighth Day nor could I tell you a lick about it other than I remember it is a good book. These thoughts came back when I plucked Theophilus North, Wilder’s last novel, published when he was 76, out of a leave-one-take-one book kiosk. I enjoyed reading it and read more about Wilder, an astonishing man. In addition to the Pulitzers and the National Book Award, he was awarded the Gold Medal for Fiction from the American Academy of Letters and the Presidential Medal for Freedom. He knew many languages and his translation of Ibsen’s A Doll House was running on Broadway when Our Town opened. He wrote The Matchmaker, which had a long Broadway run, and its adapted version, Hello, Dolly, played even longer. He wrote a famous screenplay for Alfred Hitchcock, and his friends included both Sigmund Freud and Gertrude Stein. And with all of these accomplishments few of us would think to place him on our list of great American writers.

          Theophilus North is set in 1926 and reads as if it is a slightly fictionalized segment of the author’s life. In the summer of 1926, Theophilus, our narrator, a graduate of Yale, has left his teaching job at a prestigious prep school in New Jersey (Wilder had taught at Lawrenceville and graduated from Yale) and heads off to Newport, Rhode Island, near where Theophilus (and Wilder) had been stationed in World War I. Importing archeological ideas from ancient Troy, North tells us his theory of nine cities of Newport—early settlers, seaport, playground for the rich, local workers, and so on. North spends the summer teaching tennis to and tutoring youngsters and reading to the elderly. Each chapter is a short story, with some of the same characters popping up in many of them. Each story has a similar structure. A problem or a mystery crops up, which Theophilus resolves. Although those helped are grateful, he always rejects pay or any hint of future consideration. The book explores the various posited Newport cities but does not have any central plot or moral or theme. Each chapter could stand on its own. This made for satisfactory, episodic reading. A chapter a day is the way I approached it.

          As I was reading, I kept thinking that Theophilus North reminded me of something else that I read, but at first could not place it. It was not the dissection of a time or place as in Updike’s Rabbit novels. It was not the intertwined short stories of Colum McCann’s Let the Great World Spin. It was not his contemporary or semi-contemporary authors writing about American themes, like O’Hara, Bellow, or DeLillo. Instead I realized it reminded me of another episodic book that I am currently reading: The Second Rumpole Omnibus by John Mortimer, a collection containing three Rumpole books that had been separately published. Each Rumpole book consists of short stories, but, as with Theophilus North, characters recur and incidents from one story are referred to in another. The Rumpole stories are similar to Theohilus not only because of the first-person narration, butalso because at the beginning of each story a problem or mystery is presented and by the end the situation is neatly resolved by the narrator. Both North and Rumpole, the well-worn barrister, have pockets of erudition;­­ North has a vast knowledge of literature and languages and Rumpole knows bloodstains, Wordsworth, and judges. But given the choice, I would take Rumpole over North. Wilder has created a character that seems too good to be true, while one can imagine Rumpole existing because, although an idealist, he is flawed. North is a prig; Horace Rumpole has self-deprecatory humor and a wife who at least slightly terrifies him. I would like to have a glass or three of Chateau Fleet Street at Pomeroy’s with Rumpole because I might not only enjoy the conversation, but I also might learn something more about human nature. I can’t imagine having a drink with North unless I wanted to learn more about him.

          And while I am in awe of all that Thornton Wilder accomplished, I am also in awe of all that John Mortimer has done.