Snippets

My life has been limited. I see that people are upset that Klondike will no longer make Choco Tacos. Alas, I never had one.

The protester in the photo held a sign saying, “PRO-LIFE! From conception to natural death.” I think I understand the concept of conception, but I was not sure what “natural death” meant. Was she opposed to any death that was not natural? Was the protester against the death penalty? A lethal injection or electrocution or hanging or a firing squad is not what I would call a natural death. Murder, presumably, is not a natural death, and I guess that the sign carrier would not condone homicide. But death in combat or by bombing or by a drone strike does not seem natural either. Was she a pacifist and against war? Did she hold up a sign when we invaded Iraq? And what would she have to say about modern medicine? I think I would be dead except that I have stents and an artificial heart valve. These are not “natural.” Chemotherapy and radiation treatments are not natural. Will my eventual death be natural after such life-extending interventions? Is she against such medical treatments? And what if, when that time comes, I am given morphine or some such alleviation, to ease my way out of this world? Is that a natural death? My understanding is that natural birth is one without painkillers? Does natural death mean no painkillers? Or had the protester not really examined the full ramifications of her placard?

“There can’t be a revolution in America,” a wise person said. “Not enough people are mad about the same thing.”

I recently wrote about a project that the spouse undertook during Covid. She rebound a set of books we got out of a dumpster many years ago. My Covid project was to refinish walls in our Pennsylvania cottage. The living and dining rooms are paneled in a soft wood. Even though I have often refinished furniture, I am still not good at identifying wood, but my guess is that the walls are pine, which probably have been up since the house was constructed 120 years ago. From the two fireplaces and the century-long accumulation of gunk, the walls had darkened. At the urging of the spouse, I decided to sand away the dirt to see how the wood might look. I bought a “dustless,” battery-powered orbitalsander. It did capture a lot of the grit as I worked, but it was hardly dustless. I figured that a thorough cleaning after it was done was the price I had to pay for the project. Each day for months, I sanded one or two boards, and when I had finished a section, I put an oil finish on the wood. There was always a satisfaction in seeing the steady progress. In a time of lockdown, I was accomplishing something. When I finished the project, not only were the walls several shades lighter–a welcome improvement in our dark house–but the wood grain stood out as it had not before. I was pleased with my efforts. However, there has not been one guest who had been in the house before and after the work who has noticed the difference. Even so, I frequently admire the result and am glad that I did it. There is, however, more paneling that could be sanded and oiled, but I believe that I should leave a project for the next owner.

An anonymous bit of wisdom: Don’t worry about what people are thinking about you; in fact, they are not thinking about you but wondering what you are thinking about them.

Rule Encyclopedia Britannica–Eleventh Edition

I don’t regularly read the Eleventh Edition of the Encyclopedia Britannica that we rescued decades ago. But it’s more useable now that the spouse has rebound it.It is overwhelming. Each of the twenty-nine volumes averages about 1,000 pages with entries I would not even think of looking up—“Hydrasine,” for example, is followed by “Hydrate,” which precedes about 180,000 words and scores of illustrations, charts, and equations on “Hydraulics.” But in its new state, I do consult this Britannica more often than I did before.

I thought it might be interesting to see what the learned books had to say about some important topics today. I looked up “Ukraine” and found but five lines telling me that it was a former name for a district of European Russia and that the “portion east of the Dnieper became Russian in 1686 and the portion west of that river in 1793.” That nearly-empty-cupboard entry perhaps tells me something of significance for today’s conflict, but I don’t know what. (On the same page, six times more space was given to “Uist, North and South,” which I had never heard of. Okay, I will tell you that they are islands in the Outer Hebrides, with a population then of about 5,000, apparently swelled sometimes by anglers.)

I then went to “Filibuster.” The brief entry first traced the word’s origin from Dutch through French and Spanish, where it became a term for pirate. It went on to say that in nineteenth century America it came to mean adventurers who organized expeditions in the United States to take part in revolutions in Central America and the West Indies. It concluded: “From this has sprung the modern usage of the word to imply one who engages in private, unauthorized and irregular warfare against any state. In the United States it colloquially applied to legislators who practice obstruction.” I did not learn–as I had hoped–the 1910 view about how congressional filibusters originated or their usefulness.

More satisfying, however, have been entries about places I plan to visit. We have booked an autumn trip to Rochester, New York. I appreciated getting some information about the city’s early history. I had no idea about the dramatic river cutting through the town. I wonder whether the landmark buildings the entry described will still be there, but it reminded me of some of the famous and important people who lived in Rochester in the nineteenth century. After reading the entry, I became even more eager for the trip.

The encyclopedia’s entry on Iceland was less enlightening because I had already visited and read books about the country when I looked it up. The topographical, geological, and historical discussions added little to what I had already seen or heard about. What was most surprising about the entry, however, was that more than half of it was devoted to the literature of Iceland, centering on ancient texts in an opinionated, authoritative tone. (“Taste has sunk since the old days, but still this rimur poetry is popular and genuine.”) But since I am interested in modern writing, the descriptions of what seems to be hundreds of ancient works held little interest for me.

Perhaps the most joy that the set has given me are the serendipitous discoveries when I search for something and my eye is drawn to an illustration. When I looked for Rochester, I saw five color plates accompanying “Robes,” and I (temporarily) learned that the garment for The Most Ancient Order of the Thistle is green with black and white accents and a long, golden braided cord hanging from the neck. (I also incidentally learned, again temporarily, that there is [or was] such a thing as The Most Ancient Order of the Thistle.)

Coronation Robe
Robes

Black and white photographs make me move on to “Round Towers,” and I learn for the moment that a “peculiar class of round tower exists in Ireland.” My search for Ukraine is interrupted by eight color plates of “Uniforms.” I can see how “France: Sergeant Alsace Regt: 1690,” “Ludhian Sikhs,” Prussian Generals, and many more were attired.

Uniforms

The most striking feature in the encyclopedia are its maps. Every volume has several, usually in color, that fold out to fifteen by twelve inches. The “Hus-Ita” book has foldouts for maps for Idaho and Montana, Illinois, two for India (Northern and Southern parts), Indiana, Iowa (but in black and white), and Ireland. The detail is incredible and serious examination requires a magnifier. (In a square inch of the Ireland map, I spot at least thirty-five labels.) They are maps, but also works of art. They are well preserved in the set. I feel a strong temptation to razor them out, mount them, and then add onto the house so that I can have a map room, but there are so many exquisite ones, it would have to be a somewhat large addition.

Map: Russia in Europe
Detail: Russia in Europe

I am grateful that the spouse rebound our long-possessed 1910 Encyclopedia Britannica, for while I doubt that it will be an everyday occurrence, I expect that I will dip into it more often now than I have in the past. And if you perhaps would like to know an early twentieth century viewpoint on something, let me know. As always, my research fees are reasonable.

Rule Encyclopedia Britannica–Eleventh Edition

I spotted them spilling out of a small dumpster in front of the store’s window. This was fifty years ago, and I was on Fourth Avenue in lower Manhattan. On and around the seven blocks of Fourth Avenue from Astor Place to 14th Street had been what was called “Book Row,” New York City’s used-book district. The heyday for this book center had been the 1940s and 1950s, and by the time I came to New York City, many of the stores were gone, but a sizeable number had hung on.

The Fourth Avenue bookstores called to me because of a cherished day. I had finished law school and was living in New York City where I had been working for a while. The college alumni magazine had published a list of books, in effect a syllabus, for studying the American revolution. Most of the books had been published a decade or more earlier. My recent reading had been largely aimless; I had never taken a course on the Revolution; and I thought that it could be interesting to read as many of the books on the list as possible. In those ancient days, you could not simply go online to order the books; you had to physically find them. I had set the next Saturday for my book hunting, but a winter storm hit with seventeen inches of snow stopping at four on Saturday morning. Being then young and full of vim and vigor (what is vim?), I decided to carry out my self-appointed task despite the storm. Many streets were yet to be plowed, and many walks were uncleared, but the local subway was running.

          I got to Manhattan’s Sixth Avenue and Eighth Street and started walking east. The sky was a brilliant winter blue. A nippy wind made everyone’s cheeks rosy but tramping through the drifts and mounds of still-pristine snow kept me warm. Without traffic, it was quiet, and we few pedestrians treated each other reverentially as if we were the deepest friends on a meditative retreat. It was the kind of day where I was thrilled that there was a winter and I was in it.

A few wonderful bookstores still existed on Eighth Street, and I stopped in each of them, but my real destination was Fourth Avenue. Most of the Fourth Avenue stores had a loose organizational layout at best. I might find a handwritten sign on a bookcase that read “US History” to aid my search. The shelves had no apparent organization, and I would have to scan all the volumes to see if there were any on my list. The stores, it turned out, had a surprising number of them, and every time I found one, I got a bit excited as if I had found something much more than an out-of-print book. I had found instead some sort of little treasure that could only be found after an effortful search—the kind of thrill a seeker does not now get on the internet.

And I got another little thrill that day eighteen months after my Revolutionary expedition. I had spotted several sets of the Encyclopedia Britannica that were being tossed out. I picked up a volume and saw that it was the Eleventh Edition of what was more formally, according to its title page The ENCYCLOPÆDIA BRITANNICA: A Dictionary of Arts, Sciences, Literature, and General Information published in 1910 in twenty-nine volumes. Somewhere I had heard the eleventh edition was the best edition of Britannica ever published, and since this set appeared to be free, I wanted it. I hurried home and got the spouse, who was also excited by the find, got in our Dodge Dart, and quickly drove back, hoping the books were still there.

We began our dumpster dive trying to throw into our car a complete set. We later found out that we were not completely successful. We did “acquisition” twenty-nine volumes, but we inadvertently retrieved two copies of one volume and therefore missed another one. However, we were still thrilled with our find.

This was probably not the fanciest set of that Britannica. It is small. The pages are eight-and-a-half inches by six. The print is eye-straining. It can be barely read without a magnifying glass, but it calls out for one. Still, however, we had a classic edition and put them on a bookshelf. And they mostly remained on a bookshelf.

There were several problems. Of course, many of the entries were outdated, and in Britannica fashion, the articles often are long. Perhaps there might be some amusement in reading what the encyclopedia says about “Fasting,” but the entry is nearly fifteen thousand words and requires more of a commitment than my casual curiosity wishes to expend. (Not all the pieces are this long. The one that follows “Fasting”—“Fastolf, Sir John”–is a mere 700 words. I learned that he died in 1459 and that the soldier has a “lasting reputation as in some part the prototype of Shakespeare’s Falstaff.”)

And while the bindings had held the pages together, the covers were some sort of faux leather that had become friable. Pulling a volume out and handling it produced a downpour of desiccated brown flakes on the shelves, floors, hands, and laps. Although the set was moved from place to place as residences changed, it was rarely consulted.

The pandemic, however, has changed some of this. Housebound at the beginning of Covid, the spouse decided to rebind our Britannica. With YouTube videos and online readings and purchases, she stripped off the leather covers and replaced them with brown cloth. They may not look as handsome as they did in 1910, but they can now be handled without a major vacuuming job.

(Concluded August 3)

How to Write the Season (guest post from the spouse)

AJ’s dad and I pass the fall and winter in the clamor of New York City. In summer we escape the heat of the City by absconding to eastern Pennsylvania to a small, tree-cluttered community clustered on a small rise in the Pocono Mountains. In the City, whether it rains or snows is, of course, important to the functioning of commerce. But aside from checking the temperature, we are not particularly aware of Mother Nature’s activity. It’s in Pennsylvania that we become more attuned to the way the sunrise colors the valley, or how the wind whips up the trees heralding an impending storm. Being naïve, I tried my hand at writing about those sunrise colors and that impending storm. It was really hard work, and I was terrible at it. Then it dawned on me that the authors that I am reading this summer are masters at describing weather and landscape and atmosphere (not to mention character, humor, and dialog). Since my own attempts were so feeble, I thought I’d share some of their mastery instead.

The inestimable Charles Dickens begins. The Pickwick Papers is a joyous celebration of good food, good company, rousing adventures, and enduring friendships, with dark undertones of injustice, poverty and mental illness. In this–one of the merrier passages–we join Mr. Pickwick and his Pickwickian comrades as they prepare to celebrate the holidays:

As brisk as bees, if not altogether as light as fairies, did the four Pickwickians assemble on the morning of the twenty-second day of December….Christmas was close at hand, in all his bluff and hearty honesty; it was the season of hospitality, merriment, and open heartedness; the old year was preparing, like an ancient philosopher, to call his friends around him, and amidst the sound of feasting and revelry to pass gently and calmly away. Gay and merry was the time, and gay and merry were at least four of the numerous hearts that were gladdened by its coming.

Now on their way out of London to Dingley Dell for the festivities:

They have rumbled through the streets, and jolted over the stones, and at length reach the wide and open country. The wheels skim over the hard and frosty ground: and the horses bursting into a canter at a smart crack of the whip, step along the road as if the load behind them…were but a feather at their heels. They have descended a gentle slope, and enter upon a level, as compact and dry as a solid block of marble, two miles long. Another crack of the whip, and on they speed, at a smart gallop: the horses tossing their heads and rattling the harness, as if in exhilaration at the rapidity of the motion: while the coachman, holding whip and reins in one hand, takes off his hat with the other, and resting it on his knees, pulls out his handkerchief, and wipes his forehead: partly because he has a habit of doing it, and partly because it’s as well to show the passengers how cool he is, and what an easy thig it is to drive four-in-hand, when you have had as much practice as he has. Having done this very leisurely (otherwise the effect would be materially impaired), he replaces his handkerchief, pulls on his hat, adjusts his gloves, squares his elbows, cracks the whip again, and on they speed, more merrily than before.

No author that I have read is more in touch with the changing landscape of the seasons than Haldór Laxness, Nobel Prize-winning author of Independent People. The book brings us intimately into the lives of sheep herders–crofters–in Iceland at the turn of the last century. After the long darkness of winter, the arrival of spring is, indeed a momentous event, which Laxness expresses in exquisite detail.

Little by little the snow retreated before the sun, and soon there was in the air the scent of heather and withered grass and the first fresh shoots as they emerged from the drifts on the slopes….Those were the days when the willow twigs were budding on the heath, when the bilberry opened its fragrant flowers in red and white and the wild bee flew humming loudly in and out of the young brushwood. The birds of the moor had laid their first eggs, yet they had not lost the love in their song. Through the heath there ran limpid little streams and round them there were green hollows…, and then there were the rocks where the elves live, and then there was the mountain itself with the green climbing its slopes. There was sunshine for a whole day. Mist came and there was no sunshine for a whole day, for two days. The heather-clad hummocks rose up in the mist, but the mountains were no more. The moss grew brighter in colour, the fragrance stronger and stronger; there was dew in the grass, precious webs of pearls in the heather and on the soil where the ground was bare of turf. The mist was white and airy, overhead one could almost glimpse the sky, but the horizon was only a few yards away there at the top of the dingle. The heath grew into the sky with its fragrance, its verdure, and its song; it was like living in the clouds….One lives for the spring.

Finally, I come to John Banville’s The Sea. Winner of the Man Booker Prize, this quiet book features the somewhat unremarkable Max Morden, a recent widower who has returned to his boyhood summer community to escape his grief, to renew some memories, and to complete a never-to-be-completed essay on the post-impressionist painter Pierre Bonnard. The book, as the title implies, is all sea air and sandy shore coves. His descriptions are not the long paragraphs of Laxness; they appear as introductions to events or emotions. He sometimes appropriates the colors of Bonnard in his descriptions, and the landscape often mirrors Morden’s own feelings…past or present. Here is only a smattering of Banville’s elegance:

It was a sumptuous, oh, truly a sumptuous autumn day, all Byzantine coppers and golds under a Tiepolo sky of enameled blue, the countryside all fixed and glassy, seeming not so much itself as its own reflection in the still surface of a lake.

As steep-slanted flash of sunlight fell along the beach, turning the sand above the waterline bone-white, and a white seabird, dazzling against the wall of cloud, flew up on sickle wings and turned with a soundless snap and plunged itself, a shutting chevron, into the sea’s unruly back.

[After a momentous event], I had expected everything to be changed like the day itself, that had been sombre and wet and hung with big-bellied clouds [in the afternoon] and now at evening was all tawny sunlight and raked shadows, the scrub grass dripping with jewels and a red sail-boat out on the bay turning its prow and setting off toward the horizon’s already dusk-blue distances.

I often ask myself what makes a book a work of art. I’ve decided that it’s sort of like pornography: I’ll know it when I see it. I see it in these remarkable authors.

Snippets

I am fascinated by those religious institutions that allow so many to feel self-righteous by making the lives of others so much worse.

A perspicacious person said: “A bigot delights in public ridicule, for he begins to think he is a martyr.”

Perhaps Shakespeare could produce so many works of genius partly because he did not have social media or a touch screen.

“It is impossible to enjoy idleness thoroughly unless one has plenty of work to do.” Jerome K. Jerome.

FEMA says that the states with the most disaster declarations since 2017 are Texas, Louisiana, and Georgia. Politicians from these states are often the ones who rail against the federal government “interference” and its spending. Nevertheless, they would be pretty unhappy without that FEMA money.

The spouse left me a shopping list that included “1 zucchini.” How many of you are confident that there is a double “c” in that spelling? She is (and she’s right!). (Parenthesis added by the spouse.)

At the Amish farmer’s market on Friday, there was a young woman behind the counter who is not always there. She told me that her name was Barbie, short for Barbara. I asked if she was the sister of Annie, the regular checkout person, who was standing next to her. She said no, that she was a cousin. I asked how many cousins she had. Annie and she exchanged sly glances, almost blushing. It was clear that neither had a definitive answer or perhaps even a good estimate. Barbie then said more than a hundred. Annie, I know, has eight siblings.

The Wisconsin Supreme Court recently held that drop boxes for voting violate Wisconsin law even though such devices have long been used in the state. Although the 2020 election was not at issue in the case, Donald Trump quickly said that decision meant that his certification as the loser of Wisconsin in the last election should be overturned. This was to be expected, but more surprising is that a Wisconsin legislator agreed. The drop boxes were not just for presidential votes, but for all electoral contests including all the state legislators running in 2020 and for every Wisconsin seat in the House of Representatives. Perhaps the decertification claim by the state legislator could be taken more seriously if she had said that she, too, was illegally elected and would not sit in the legislature until there was another election. But she did not say that. It is an interesting Catch-22 situation. If she wishes the legislature to decertify, but there has not been a validly elected legislature, what happens?

A wise person said: “Politicians are as good as you are, for the way you vote creates politicians.”

No sensible explanation has been given for an attempted attack on a boobish New York candidate for governor. However, because of what the miscreant had in his hand, I learned that there is such a thing as a Hello Kitty Self-Defense Key Ring. I did not rush out to buy one but come December it could be good for a stocking stuffer or Secret Santa.

Stitching a Different Supreme Court Nine (concluded)

We have been speculating on ways to make a less political Supreme Court and have focused on a proposal in which the president could nominate a new Supreme Court Justice every two years. This, of course, would mean that 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 Justices at random, there is another possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. Reserve judges 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 also major leaguers and remain on the team. 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 about thirty years; Chief Justice Roberts and Samuel Alito have been on the Court for over fifteen years and are expected to serve for another decade or more.

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 in which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett should end. Such maneuvers that strengthen the notion that the Court is not a neutral body should lessen. Similarly, the recent 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 Different Supreme Court Nine

This blissful time when the Supreme Court is not rendering decisions is an opportunity to think about the Court’s structure. Proposals to enlarge the Court have been met with claims of a “coup” to destroy the judiciary and a plot to harm “our democracy.” The Supreme Court is an important American institution. It is, however, one of our least democratic ones.

The Supreme Court, of course, is not an elected body. They are appointed by a president (who was elected) and confirmed by a Senate (also an elected body), but once in office, they are not answerable to “the people.” Unlike other appointed officials, they are not subject to removal if administrations or Senate composition change. Justices may sit for thirty or more years and make decisions for decades after the officials who appointed and confirmed them have left office. Their rulings affect Americans who were not even eligible to vote for the president and the senators who appointed and confirmed them. In short, the Supreme Court is not a democratic body. Indeed, in finding 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.

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. And Justices with life tenure will still have independence.

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 ever since. That number has seemed sacrosanct since FDR’s failed attempt to expand the Court in 1937.

The Court in the 1930s 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 Constitutional clauses 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 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 light when its questionable constitutional interpretations of the early 1930s became recognized as 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.

Current Court decisions, however, as has been true for much of our history, are seen not as neutral constitutional and statutory rulings but as the imposition of personal, political, and increasingly religious views of the judges and those who placed them on the bench. 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 biased and more politically neutral.

Merely expanding the Court is not a particularly good solution. If Democrats added more Justices, 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 plan has intrigued me. This is not my own plan. I read this proposal, or one much like it…somewhere. I have searched for it, but so far have not found it again. I apologize for not giving proper credit to its initiator.

Here is the idea behind the proposal: Each president gets to appoint one Supreme Court Justice every two years, starting perhaps on the July 1 after the presidential term begins. 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. For a given case, nine Justices would be picked at random from all the Supreme Court judges. 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 larger panel 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. So, for example, 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 litigant 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 can delay 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 immediate Supreme Court review, they will lose the case before the existing Supreme Court thereby allowing a precedent to be 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 this list now includes a host of conservative organizations as well. These advocacy groups often seek judicial review only 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 and Second Amendment expansion, and they will now 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.

There is also 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 July 25)

Snippets

I have friends who are Australian. I blame them partially for the decline of America, or at least its music. Australia gave us the BeeGees.

Right after crossing the finish line of the 13.1-mile foot race, the man collapsed and died. I wondered if running a half-marathon was the last thing on his bucket list.

I was going to borrow one from a friend, but he suggested that I might find it useful to have my own. Normally buying a power tool seems manly, but purchasing a trickle charger sounds only old manly.

Fawns wander into our yard with the mother nearby. Cute. But I wonder whether it is called venison veal.

Ivana Trump, the wife who preceded Marla Maples, died, the medical examiner said, from blunt trauma injuries, apparently by tumbling down stairs. The death was ruled “accidental.” As a result, Donald Trump along with Ivanka and Donald, Jr., who have mightily resisted testifying, did not have their scheduled, under-oath depositions. Hmmmm.

I came across a legal prediction I made in May 2017, which has been all too accurate: “In the next few years, the Supreme Court will expand First Amendment free exercise of religion rights and essentially ignore that Amendment’s establishment of religion clause. Religious organizations will more easily get state moneys, and less state money will be available for non-religious organizations. And people and organizations claiming religious rights will be able to discriminate more readily.”

A wise person said: “Real patriotism is the sort that understands that this is a nation and not a denomination.”

Another legal prediction: In the next few years, the Supreme Court will expand First Amendment free speech rights. The overwhelming beneficiaries of these decisions will be corporations and conservative entities.

“People of the same trade seldom meet together but the conversation ends in a conspiracy against the public, or in some diversion to raise prices.” Adam Smith.

I have been trying to understand probabilities better yet again and thinking about some famous problems that once stumped me such as what are the odds that two people share a birthday in a group of people. And, of course, the famous Monty Hall problem. He was the host and co-creator of “Let’s Make a Deal.” At the end of his show, a contestant was offered a wonderful prize and two clinkers. They were hidden behind three doors. The contestant would pick a door. Hall, who knew what was behind each door, did not immediately open the selected door but would instead first open one of the two remaining doors to expose a booby prize. Contestants would then be allowed to keep their selected door or switch to the remaining door. Should the contestant switch? I remember reading Marilyn vos Savant’s column in Parade magazine where she maintained that the contestant’s odds of winning the big prize were two-thirds if the contestant changed the pick to the unselected door. The column caused a storm with many people, some highly educated, saying the odds were 50-50 no matter what the contestant did. But, of course, vos Savant was right.

The Enduring Peter Brook

I never met him. I don’t think I ever even saw him, but Peter Brook, who died earlier this month at the age of 97, influenced my life.

I did not go to live theater growing up…unless a high school production of Our Town counts. Perhaps there were other forgotten school shows. Did the town have a community theater? I don’t remember it. But there was no professional theater, and our family was not the sort of family that would go to the larger city to see any.

In college, however, I took a course in modern drama. We saw a few classic movies—I remember M and Treasure of the Sierra Madre–but mostly we read plays. I found almost every one of them interesting, and I still remember many of them. On the other hand, I don’t remember any specific lecture by Alan Downer, the professor. They must have been informative, however, for I feel as though I have a fairly solid grasp of the development of modern drama, and that had to come from him.

There was a professional theater associated with the university, and I remember seeing Hedda Gabler, and I probably saw other productions, and I do remember seeing a roommate in a student presentation of Mother Courage. Playgoing, however, was akin to hearing the Modern Jazz Quartet, going to a ballet, or attending a fencing match; I had not experienced these things growing up, and I wanted to. I certainly had not yet learned the real power of the stage.

That changed soon after I moved to New York, and it came about because of Peter Brook. I was lucky enough to attend his now legendary Royal Shakespeare Company production of A Midsummer Night’s Dream at the Brooklyn Academy of Music. I learned that night that a script can be read, but that a play must be seen. This was not Shakespeare of the drab printed word, but the creation of a magical world on the stage. It drew me in. It was more immediate than any movie could ever be. It required live actors, a stage, and an audience. And a special director who used a nearly bare stage, trapezes, unexpectedly outrageous costume, twirly thingies that glowed in the dark and produced an ethereal sound. I laughed out loud, was moved, and learned that the theater could present an experience that could not be had anywhere else.

I have now seen a half-dozen or more of Peter Brook’s other theatrical productions, some in the last few years since The Brooklyn Academy of Music, and The Theatre for a New Audience, a block away from BAM, were his American homes. They are both mere blocks from my own home. Each production that I have seen had something of interest that could only be done with live actors on the stage.

I was lucky enough to experience another of Brook’s legendary efforts, The Mahabharata, the production that christened the opening of The Harvey Theater at BAM. In the heyday of movie palaces, the building had been one of those gilded theaters, but, like almost all of them, it had closed as TV rose to prominence. It became a bowling alley, I am told. However, I had only known it as a bricked up, decrepit building like many of its neighbors.

The Brooklyn Academy, in collaboration with Brook, decided to turn it into a live theater in the mid-1980s but not into a sleek, modern space with plush seats. Instead, Brook liked the look of decay the place had. The cracked plaster and paint-peeling walls remained. Backless, hardwood benches were installed because this was what Brook wanted for his staging of the ancient Sanskrit epic.

For some theatergoers, Peter Brook is such a powerful figure that they claim to have seen his Dream when they could not have. I think of that when I claim to have seen his Mahabharata. Those benches (subsequently replaced with human seating) were unbearable for a one-act play; the Mahabharata was a seven, or perhaps nine, or maybe even an eleven-hour play. (One could attend it over several days.) I don’t know its actual length because I did not make it to its conclusion. I am only confident that it did end because I have been to that theater many times since, and The Mahabharata is not still on the stage. The seats were uncomfortable, yes, but following the complex interaction of gods and humans was dizzying, and the spouse and I had little idea what was going on. At a break in the “action” (were there even intermissions?) the spouse and I sneaked out, forgetting that where we exited was also a place where actors gathered awaiting their entrances. As we embarrassedly slipped by them, in the days before cellphones, I nonsensically mumbled, “Babysitter problems” to explain our departure.

So I learned from Peter Brook that theater could be magical and produce an experience that could not be had elsewhere. There have been many more special moments since I started going to plays, and there have been many special productions. I now go to the theater a couple dozen times a year, and something important or magical or special does not always happen, but it happens often enough that I continue going. And I thank Peter Brook’s A Midsummer Night’s Dream for initiating me into the joys of the theater.

But I also learned from Peter Brook that theater sometimes comes with uncomfortable seats and puzzling plots. Then, you just have to get up and go home.

One Run Baseball Luck?

My favorite baseball team has won a lot of close games this year, and that has been a key component in what so far has been an outstanding season. Conventional baseball wisdom, to which I subscribe, has it that a good team does well in games decided by one run. But I wondered what if it is just chance which team wins 4-3 or 9-8? Would some teams win significantly more if the results were just a coin flip instead of skill? I undertook an experiment, which I readily admit is filled with holes, but the results are interesting.

First came in-depth, five-minute Google research to find how frequently games were decided by the slimmest of margins. One source reported that over a decade, 29% of the games were won by one run. Another source for one season had it slightly lower. I was surprised that the percentage was that high. I “confirmed” these rates by looking at the results on one day when all teams played. Four of the fifteen contests were decided by one run, for a rate of 27%. Over the 162-game season, I decided that on average a team was involved in about 46 one-run games.

Then to determine what the results might be in those contests if the outcome was a matter of chance, I decided to flip a coin forty-six times for each of the thirty major league teams. Of course, I was not really going to do this burdensome, boring activity (I might develop a callus on my flipping thumb). Instead, I found an online coin-flipping site that randomly generates heads and tails. This simulated flipper (there are many similar sites) allowed me to choose from a single flip to a string of tosses. Their nearest choice to my desired series of forty-six was fifty, and I decided that was close enough for my purposes.

Making my own random selection, I decided that each heads would represent a victory. When the results were in, I was not surprised that many of the trials clustered around twenty-five heads. More than half of the 30 “team tosses”–sixteen–produced “victories” of twenty-three to twenty-seven games. Perhaps these outcomes might affect a pennant race, but not very often. However, four of the sets of fifty tosses had from twenty to twenty-two heads. By chance, my hypothetical teams would have been six to ten games below .500 (twenty heads—victories means thirty losses, or ten games below .500 in one run games) and that certainly could affect who would win a division. Similarly, six outcomes fell from twenty-eight to thirty heads or six to ten games .500 (thirty heads or victories means twenty losses) in these simulated close games.

Four of the outcomes of these flipping sets of thirty, however, were particularly striking. On the negative side, one team would have won only nineteen games out of fifty by chance and another only fifteen. A manager with a record in one-run games of fifteen wins and thirty-five losses should start looking for another job.

On the positive side, one set had thirty-one heads and the remaing set had thirty-three. Thirty-three and seventeen in one-run games by chance, but this team’s manager would probably win awards and the team might win the pennant.

This exercise reminded me again of how unintuitive probabilities are for most of us. There is a reason why the study of probabilities came late in the modern development of mathematics and basic statistical tools such as significance testing are even more recent. And my thoughts, as they often do, turned to my admiration for the spouse.

The spouse—bless her eager heart thirsting for more knowledge–decided, yet again, that she would try to understand calculus. Wisely, however, she thought that she should first master precalculus. She has been taking online classes, and I have heard much talk about sines and tangents, matrices, and vectors. Now she is in a probability unit. Perhaps our conversation would have amused you as we struggled with what seems to be a simple problem: Using a standard, well-shuffled deck of cards, what are the odds of finding a spade by drawing two cards without replacing the first one back into the deck? If you instinctively knew how to calculate that, you were much better with probabilities than we were.

While that deck-of-card problem was cracked after considerable effort, flipping coins seems clearly straightforward. The chances of getting heads is fifty percent. We know, however, that flipping a coin ten times does not always yield five heads or that flipping a quarter fifty times does not always result in twenty-five heads. However, our instinct is that the result will be close to twenty-five. “Outliers”–such as thirty-three heads and seventeen tails–will be rare. Then there is the issue described to me by a Harvard statistician. He would assign his students to flip a coin a hundred times and record the results. He said he could tell when someone did not do the exercise and just made it up because their lists would seldom have significant runs of heads or tails while real flipping almost always produced, for example, six or eight heads in a row. Therefore, fifty flips would sometimes result in the number of heads well above or below the twenty-five number. Our intuition may be that fifty flips is a large enough trial to eliminate “outliers,” but it is not. And in case you might think that the internet flipper was flawed, out of the total of fifteen hundred tosses–fifty for each of the thirty team–the total number of heads was 748. With fifty flips, however, “outliers” were not really outliers.

However, when I have told my baseball friends about my exercise and say that chance alone might have a team win or lose an inordinate number of one- run games, they rebel at the notion and assert the baseball wisdom that good teams win more one-run games than they lose. It is not simply a matter of luck, and even after my experiment, I still tend to agree with them.