Posted on by rjonakait

A Different Supreme Court

Almost half of Americans think the Supreme Court decides cases based on the Justices’ political views while only 25 percent believe the decisions are based on the law. Polls indicate that 55 percent disapprove of the Court’s performance while only 41 percent approve. A large majority of Americans do not think Supreme Court Justices should have life tenure, and an even greater majority would like term limits for the Justices. These changes would require amending the Constitution, an unlikely possibility. However, other reforms that might improve both the Supreme Court and the perception of it do not require new constitutional provisions.

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 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 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.

Roosevelt’s proposal was soundly defeated after much heated rhetoric about his threat to our constitutional government. While FDR’s plan failed by a resounding vote, in the long run he was the winner, and the Supreme Court and conservatives were the losers. 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 focused attention on the Court whose questionable constitutional interpretations of the early 1930s became recognized as the overreach of biased judges trying to overturn 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–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 religious views of the judges and those who placed them on the bench. We can’t remove politics from Supreme Court decisions. 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 a Court that is perceived as overly partisan and, in fact, may be so. Instead, in examining proposals for reforming the Supreme Court, we should seek ways to make it appear, 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 when they had the power to do so, Republicans would do the same when they had 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 possibly make the Court less partisan. I have not studied them all, but one plan intrigues 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. The Senate, as the Constitution requires, would have to consent to the nominations. 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.

However, the entire enlarged Court need not decide all the cases. For example, the nine most recently appointed Justices could 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 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. So 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 thirty-five years; Chief Justice John Roberts and Samuel Alito have each served for over twenty years.

That eighteen-year period could also lead to an expanded pool of people considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, current presidents 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.

Another possibility: Instead of having the last nine appointed Justices regularly decide, nine Justices could 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 as they do now. 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 case concerning some new scheme to avoid taxes and wants to seek redress from the Supreme Court. 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 will 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 a longer view than an individual litigant.

Other institutional groups also try to “time” Supreme Court review. These institutions represent a cause that goes beyond 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. With Barrett’s ascension to the Court, conservative legal organization have seen a solid majority favoring certain kinds of religious claims and Second Amendment expansion, and they now seek to get Supreme Court review of cases containing such issues that they might not have appealed if the Supreme Court lineup were different.

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 could hope there would be more focus on the issues and less on the judges.

No matter the method for deciding cases, if there was a Supreme Court appointment every two years, the partisan games played by the Senate to deny consideration of Merrick Garland but force through the confirmation of Barrett should lessen if not end. Perceptions of the Court as a partisan body should drop. Perhaps Court performance will improve. And 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. Democracy, not just the Court, might improve.

Currently mere chance 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 the same. 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. I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally?

Posted on by rjonakait

Hopes and Expectations—Judicial Edition

In my last post, I indicated that I had hopes for the courts to dampen the Trumpian madness, but my hopes are tempered by the understanding that the courts, including the Supreme Court, have only infrequently been a bulwark for freedom or civil liberties, especially in times of national crises.

Take the 1857 Dred Scott case.  In this critical period of American history, the Supreme Court held that Blacks could not become American citizens. It also held that the Missouri Compromise was unconstitutional because it violated the Fifth Amendment property rights of slave owners. The author of the opinion, Chief Justice Roger Taney, and other justices hoped that the decision would put to rest the country’s slavery problem. Instead, Dred Scott, which has been denounced for its racism, judicial activism, bad history, and awful legal reasoning, helped precipitate the Civil War. Many rank this as the worst decision in Supreme Court history, although its competitors are legion.

Consider “You can’t shout fire in a crowded theater.” This is often seen as a forceful defense of the First Amendment holding that the government can prohibit speech only when the words present a “clear and present danger.” However, in the 1919 case in which Oliver Wendell Holmes wrote the memorable phrase (Schenck v. United States), the Supreme Court unanimously upheld the convictions and jail sentences of Schenck and others for distributing fliers advocating resistance to the World War I draft. In that case free speech took a back seat to wartime fears. Only fifty years later was Schenck overruled.

The Supreme Court in Korematsu v. United States (1944) upheld the internment of Japanese Americans in World War II, another decision that makes the list for most atrocious. Forty years later, Korematsu’s conviction was overturned because evidence had been suppressed. In fact, intelligence agencies had shown no evidence that Japanese Americans were acting as Japanese spies. Reparations were granted internees under the 1988 Civil Liberties Act. However, it took until 2018 before the Supreme Court indicated that Korematsu was no longer good law (Trump v. Hawaii). In 2023, Students for Fair Admissions v. Harvard definitively stated that the wartime decision had been overruled. But that case had other ramifications (see below).

Today’s times bear resemblances to what is often now called the McCarthy era, which actually began before Senator Joe McCarthy came to national prominence. During the initial stages of the destructive anti-communism movement, the Supreme Court had encouraged it by upholding convictions for membership in disfavored groups. Only after McCarthyism had been discredited, did the Supreme Court hold that people could not be imprisoned for beliefs but only for actions.

In short, the Supreme Court has an imperfect record at best for protecting freedoms, especially in the midst of crises. Even when we may think that the Court has protected us — and it has on occasion — it often has done so only after a crisis is over, and the protection matters little.

There are reasons to hope that this time the courts will be protective of the constitution and civil liberties. The current legal cases mostly remain in the lowest federal courts, and those courts seem to be performing well, seemingly attempting to come to grips with the many issues presented by the administration and holding back administrative actions that bend towards authoritarianism. There is hope, too, as cases move up to the Supreme Court. In one case that has already come before the Court, the justices refused to set aside a restraining order as Trump wanted. Justice Amy Coney Barrett and Chief Justice John Roberts joined the majority. Moreover, Roberts spoke out against the cries from Trump and Trumpistas for the impeachment of judges who have dared to cross the president. (Perhaps in spite of life tenure, some judges are intimidated by impeachment threats, and Roberts reassured such nervous Nelsons. But, since a removal from office requires a two-thirds vote in the Senate, which ain’t gonna happen, Roberts’s words can be seen as grandstanding.)

Nevertheless, there are reasons for Trump to see the Supreme Court and the Chief Justice as supportive of his agenda. So, for example, the attacks on diversity, equity and inclusion efforts (DEI) together with the attempt to remove American racism from the national consciousness has its support in the case striking down affirmative action at Harvard. Notably, Chief Justice Roberts wrote the Court’s opinion in Students for Fair Admissions v. Harvard (2023). Without that Supreme Court decision, we would not have the obsessive anti-DEI movement

Moreover, Roberts wrote the presidential immunity decision, which surely emboldens Trump. The Court has suggested that the president can fire anyone in the executive branch, which surely emboldens Trump. The Court has also taken steps and is expected to take more towards gutting the powers of independent agencies, which surely has emboldened Trump. Roberts wrote a decision that eviscerated the Voting Rights Act, which emboldened conservatives to suppress voting. Roberts wrote a disturbing decision about partisan gerrymandering which acknowledged that partisan gerrymandering is really, really bad and a threat to democracy but that we shouldn’t expect the Court to offer a remedy. Just as that gerrymandering is beyond the Court’s authority according Roberts’s opinion, Trump contends that his actions affecting foreign affairs are beyond the Justices’ bailiwick.

I do have hopes that the courts will be a bulwark against the move to authoritarianism. But my hopes are tempered.

Posted on by rjonakait

When the President Does It. . . He’s Immune (Concluded)

 Is Presidential Immunity Necessary?

The Court said that a president must have immunity for official acts because prosecutions can intrude on the authority and functions of the executive branch.  Roberts writes:

“The hesitation to execute the duties of his office fearlessly and fairly that might happen when a President is making decisions under a pall of potential prosecution raises unique risks to the effective functioning of government. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, the independence of the Executive Branch may be significantly undermined.”

This rationale is remarkable. Up until this decision, it had been widely assumed that a president could be prosecuted after leaving office. Every president until now, if he thought about it at all, would have assumed that he did not have immunity when an ex-president. Meanwhile, the presidency has been extensively, even exhaustively, studied. Untold volumes of presidential papers have been compiled. Uncounted books and papers about the lives of presidents and their decision making have been published. (More than 16,000 publications about Lincoln alone.) If there have been any instances, much less numerous ones, where a president made a decision based on the possibility of a future prosecution, the Court does not tell us about it. On the other hand, if the threat of prosecution has had a powerful effect on presidents, there should be many historical examples of distorted decision making that resulted.

The Court also voiced its concerns about “routine” prosecutions of former presidents for official acts. Roberts said that the dissents raise fears about “extreme hypotheticals where the president feels empowered to violate federal criminal law. The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. . . . Without immunity such types of prosecutions of ex-Presidents could quickly become routine.”

Of course, this is mere speculation without a historical basis. We have an n of one for such prosecutions. The Court seems to have swallowed the Kool Aid of Trump that his prosecution is fueled by partisanship, and if partisanship controls, we can expect more prosecutions. In any event, the supposed fear that political opponents will prosecute former presidents in the future for partisan reasons has neither history nor logic behind it. As noted above, these are the first prosecutions of a former president in our more than two century existence, even though during that time we have had many fierce, partisan alignments. The immunity advocates may say that the times are now different, but if so, they don’t want to recognize that the times may be different because Trump’s actions have been unprecedented.

There are natural, institutional restraints on the use of criminal charges for normal presidential decisions against former presidents. Most of what a president does—appoint a Secretary of State, prepare a budget, draft a new healthcare bill—is not even arguably criminal and will not lead to any criminal prosecution. Perhaps, however, ordering a drone strike that kills an American citizen claimed to be a terrorist leader in the Mideast or declaring an “emergency” to divert moneys to build a border wall that Congress has refused to fund might be at least arguably criminal. Even if so, successor administrations are highly unlikely to seek indictments for such actions no matter what the partisan climate. Criminal charges against a former president could mean that his successor has restricted his own freedom of action. Someday he may want to do something similar to what a predecessor did, but if he labeled it criminal through a prosecution, he wouldn’t be able to. Sitting presidents almost never want to limit their power. Indicting and trying predecessors for truly presidential acts has not happened and will not happen. The scare tactics about routine prosecutions, not supported by history or logic, are straw dogs.

Can Immunized Official Acts Be Used As Evidence?

The Supreme Court went beyond the creation of immunity for Trump. Roberts stated that the Government (i.e., the DOJ) had inappropriately proposed the use of immunized official acts as evidence in an allowed trial. Here’s an example of what that might mean: Assume that it is determined that Trump’s role in seeking to assemble fake electors is a private action, and he can be prosecuted. He might argue that he was only seeking to ensure election integrity, and anything that might look criminal arose out of good intentions and was not a crime. That contention would be undermined by evidence that he sought to have the Justice Department launch sham investigations into the election. Similar kinds of evidence seeking to show a corrupt intention are used regularly in trials. But the Supreme Court said it can’t be used in the prosecution of an ex-president, stating that using official acts to help prove issues in a prosecution for a private act “threatens to eviscerate the immunity we have recognized.”

They held further that the use of such evidence might distort presidential decision making. This assumption was unsupported. Moreover, it’s highly unlikely. The Court apparently believes that a president, while doing an official act for which he will get immunity, might consider that his action might be used in evidence in a criminal prosecution for a non-immunized act that he is not then doing and that he might never do. Follow that? Neither do I. Who thinks along such convoluted lines? Meanwhile, it is hard to see how presidential choices about corporate taxes, Chinese tariffs, the Affordable Care Act, and the like would ever have evidentiary value in a prosecution that may or may not happen for a private act. Come to think of it, would it be a bad thing if a president thought twice about seeking sham investigations into voter fraud?

The Court also said the evidentiary restriction is necessary because otherwise there will be “a unique risk that the jurors’ deliberations will be prejudiced by their views of the policies and the performance of the president.” Furthermore, “the ordinary trial tools may protect ordinary criminal defendants, but the immunity seeks to protect not the president himself but the institution of the presidency.” Not surprisingly, there are no citations in support of these propositions. Moreover, they ignore an obvious logical flaw. The Court can hide presidential behavior by not allowing evidence of it, but it can’t hide that a previous president is being tried. If the jurors are prejudiced by their views of his polices and performance, they will be prejudiced with or without the evidentiary restriction. Of course, normally this is handled during jury selection and by normal evidence rules as well as judicial admonitions about what evidence to consider and how it is to be used. Unless the Court is going to create more unknown trial procedures, the fact that an ex-president is on trial can’t be kept from the jury. If opinions about an ex-president are prejudicial, the prejudice will be there with or without the evidentiary restriction. However, that restriction will deny the jury important evidence making such a trial less fair.

Did It Matter that Justices Alito and Thomas Did Not Recuse Themselves?

Cries went out that Justices Thomas and Alito should recuse themselves because their wives’ activities produced conflicts of interest. The two, of course, still joined the majority. At first glance, this did not seem to matter since the Court split six to three along ideological and political lines. If Justices Thomas and Alito had not sat, the split would have been four to three with the same result. But that overlooks some important points.

Justice Amy Coney Barrett wrote a concurring opinion that largely agreed with Roberts’s opinion. However, she withheld complete agreement by writing that the attempt to organize alternative electors was a private act, and she saw no plausible argument for barring a prosecution for this conduct. If Thomas and Alito had not sat, there would have been only three votes for remanding for a trial court determination of whether this conduct received immunity. Instead, the Court would have held that that the prosecution could proceed on these grounds.

In addition, she also concluded that the evidentiary restriction created by the Court was wrong. The three dissenting judges also came to the conclusion. The four would have been the majority on this issue if Thomas and Alito had been recused. In short, their failure to recuse mattered. 

Who Benefits Most from the Decision?

Trump v. United States (seldom has there been a better name for a Supreme Court case—Trump against the United States) was a major victory for the former president. Because of these rulings and remands back to the lower court, no trial will be held for quite some time, if ever.  The normal rule is that appeals are held only after all the trial court proceedings have been completed. The Court held, however, that interlocutory appeals can be taken on the immunity issues. That means whenever the trial court decides about immunity — which will take time to allow for briefing, arguments, consideration, and decision making — an appeal on these issues can be taken immediately, and the trial held in abeyance. Then there will be more briefing, arguments, consideration, and decision making in the Court of Appeals. And then there will be an attempt to take the appeal to the Supreme Court. Don’t hold your breath waiting for a trial’s outcome. If Trump is tried, it may not be for years, and by then the case will be in a bastardized form and far from what the prosecution has alleged.

According to some the decision is also a major victory for the institution of the president, but it is also a limitation on the presidency. The Court has taken away part of what it says is a quintessential executive power—the authority to investigate and prosecute crimes. In giving immunity to a former president, the Court has limited the power of the sitting president to investigate and prosecute. The Court, without any apparent consideration of it, has removed from all presidents the quintessential power of determining whether the prosecution of a former president is in the national interest.

The Court, by leaving many issues open with little or clouded guidance, has arrogated power to the judiciary. What is a “core” official act? Is the immunity for a non-core act absolute or presumptive? If it is presumptive, how, if at all, can the presumption be overcome? What is the line between a private act by a president and an official one? We have no evidence that past presidents ever made decisions concerned about a future prosecution, but after this decision a president may be emboldened to push the boundary on criminal actions because of the newly created immunity. However, because of the many open questions, a president may not be sure about his freedom from prosecution. By Roberts’s analysis they still can’t in all circumstances “boldly and fearlessly” carry out their duties. They must wait until the courts decide these open issues. The decision gave the president extraordinary authority; it also gave the courts potent powers.

Of course, the immunity created for Trump should apply to other presidents. Would you advise Biden to use this new opportunity? For example, Biden could order the FBI or intelligence agencies to surveil Trump and all his advisers or to disrupt communications among them. Or perhaps surveil Justice Thomas to see if, despite disclaimers, he and his wife do talk politics. Biden would be giving such orders to members of the executive branch, and his actions would now have absolute immunity.

Conclusion

Almost fifty years ago, David Frost asked then ex-President Nixon whether the president could do something illegal in certain situations such as against antiwar groups and others if he decides “it’s in the best interests of the country or something.” Nixon famously replied, “Well, when the president does it, that means that it is not illegal.” Nixon was mocked for his answer. The present Supreme Court did not say that all official presidential acts were automatically legal; they said only(?) that the president had immunity for them. But is something criminal if the perpetrator can never by prosecuted for it? The mockery of Nixon should end. And of course, there is now the question of whether Nixon should have had immunity for Watergate. Nixon’s role was to talk with his advisers in the executive branch that set off the chain of events that led to Watergate. Would those conversations now have to be considered core presidential actions for which he had absolute immunity?

Welcome to the new world where, according to the Supreme Court, presidents for the first time, can make decisions boldly and fearlessly because they have immunity from criminal prosecution. Meanwhile, many of us see a new world where presidents are above the law and can commit crimes without accountability.

Posted on by rjonakait

The Job Comes with Pay, Power, Prestige . . . and Criticism . . . . and Billionaires’ Gifts (concluded)

So. Back to Justice Alito. Life tenure and unchecked decisions might lead you to think that Supreme Court justices would not be affected by criticisms. You would be wrong. (See the AJsdad.blog, March 11, 2022, “ACB Told Us So” and the post of March 2, 2022, “Partisan Hacks, Comprised Of”.) Recently Samuel Alito has given us an example of judicial thin skin. A respected news organization uncovered information that Alito had taken an undisclosed expensive vacation paid for by a billionaire who has interests with cases before the Supreme Court. That news organization did the professional thing by asking Alito for comments before publishing the report. Alito blew them off. Instead, before the news report was published, he placed a prebuttal in the Wall Street Journal.

Alito, echoing an earlier defense by Clarence Thomas of similar behavior, said that the trip did not have to be disclosed because it was “personal hospitality.” We can all understand that. I certainly accept personal hospitality, but I wonder about it in Alito’s circumstances. At least in my circumstances, such hospitality is reciprocal. Someone entertains me with dinner or drinks or lodging, and almost always I have reciprocated in some fashion. I wonder: How often has Samuel Alito invited the billionaire over for dinner? Is it “personal” if the hospitality is only in one direction? Alito did not disclose such reciprocity if it has happened.

Alito’s WSJ rebuttal also said that he had merely filled a seat that otherwise would have gone empty on the billionaire’s private jet, implying that somehow plunking his behind there really cost the billionaire nothing. However, I know that seat was not offered to me, and I doubt that it was offered to you. But somehow it was offered to Alito. Hmmmm.

Alito went on to justify his failure to recuse himself from the cases that involved the billionaire’s interests. Alito said the billionaire’s name was not on the court papers and, furthermore, there is no reason ever to conclude that he might be biased. Hey, he barely knows the guy he said. Alito saw no possible contradiction between the trip being “personal hospitality” yet barely knowing the billionaire. Perhaps one might conclude that he was invited on the trip because he was a Supreme Court justice???

Alito’s defense petulantly implied, “How dare you criticize me!” Right wingers, including the Wall Street Journal editorial page, have more explicitly promoted this message. The pundits proclaim that the story about Alito is partisan, published with the express purpose of undermining the legitimacy of the Supreme Court. ProPublica, the organization that performed the Alito investigation, is a nonprofit not aligned with any political party. It is well regarded; it has won a half-dozen Pulitzer Prizes as well as other awards. And, ironically, its founding editor came from the Wall Street Journal.

The critics claiming partisanship have not claimed that ProPublica got the facts wrong. This reminds me of watching Stephen Colbert playing the role of the right-wing bloviator on Comedy Central who said, “I am against the facts because the facts are liberal.”

Moreover, it seems laughable that the conservatives would attack the reporting about Alito as an attack on the legitimacy of the Supreme Court. Those same pundits have regularly attacked Biden, and no doubt before that, Obama and probably Bill Clinton, if they are old enough. By their logic, those criticisms were attacks on the legitimacy of the presidency. I think, however, we can all agree that the presidency has survived. So much so, that a slew of conservatives want to be president. Reporting about Alito will not destroy the legitimacy of the Court. If one of those right wingers becomes president, he or she will have no difficulty in finding people to put on the Supreme Court.

If perception of the Supreme Court’s impartiality is harmed by this contretemps, however, it will not be because of the messenger, the accurate investigative reporting. It will be because of Samuel Alito’s (and Clarence Thomas’s) actions. Apparently he believes that unless there is evidence that he took a quid pro quo, he did nothing wrong. We should trust him and the institution he is part of even if the lavish fishing trip looks fishy. Alito rejects the two-millennia-old, conservative advice contained in Caesar’s-wife admonition. Appearances do not matter to Alito and his defenders.

Alito also seems unaware of basic human nature. Who you hang out with affects your views. If I spend most of my time with Tamil Tigers, you can expect me to have different opinions and ideas than if I am a regular at an Iowa quilting circle. Without being consciously aware of it, we soak up all sorts of things from those we converse, sing, worship, or play with.

Normal people want to be liked by those they spend time with. This highlights a great problem with our nation today. The rich have always had outsized power in our government, but especially since the Supreme Court has lifted and relaxed limits on campaign spending, politicians have needed more and more money. Government officials, as a result, spend more and more time with the ultra-rich, and in the normal course of human events, that, at least subtly, affects how they see the world. And now we find out that justices of the Supreme Court also spend time with that tiniest fraction of the upper one percent. When was the last time you did? There are fewer than a thousand billionaires out of our vast population. You are less likely to encounter a billionaire than a deer on the highway. What are the odds that out of mere happenstance, two billionaires from that tiny population only out of feelings of bonhomie have become friends with two Supreme Court justices?

And while I expect those whom I hang out with affect my views in all sorts of ways, I would think I would be especially attentive to those who had given me gifts valued at more than six figures. (Of course, I do not know that from personal experience. How often have you received a gift of more than $100,000?) I think it would be natural to want that person to like me. Apparently, Alito would like you to believe that his nature is different.

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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?

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First Sentences

“One winter morning several years ago, I got an email with some ridiculously exciting news.” A.J. Jacobs, The Puzzler: One Man’s Quest to Solve the Most Baffling Puzzles Ever, from Crosswords to Jigsaws to the Meaning of Life.

“The police decided to enter the flat, but rather than break down the door they called a locksmith, figuring that a few minutes either way were unlikely to make a difference.” The Shadow District by Arnaldur Indridason (translated from the Icelandic by Victoria Cribb).

“At a recent lecture on the Piltdown disclosures a member of the audience remarked, ‘When I read in the paper that Piltdown man was bogus, I felt as if something had gone out of my life; I had been brought up on Piltdown man!’”  J.S. Weiner, The Piltdown Forgery.

“In my dream I was reaching right through the glass of the window on a hockshop.” Fredric Brown, The Fabulous Clipjoint.

“Magic matters.” David Copperfield, Richard Wiseman, David Britland, David Copperfield’s History of Magic.

“It is never easy to move to a new country, but in truth I was happy to be away from New York.” Katie Kitamura, Intimacies.

“A little before eight on the morning of March 21, 1829, the Duke of Wellington, England’s prime minister, arrived on horseback at a crossroads south of the Thames, about a half mile beyond Battersea Bridge.” Kwame Anthony Appiah, The Honor Code: How Moral Revolutions Happen.

“It’s hard to know, ever, where a story begins.” Jennifer Haigh, Mercy Street.

“We forget that love is revolutionary.” Tiya Miles, All That She Carried: The Journey of Ashley’s Sack, a Black Family Keepsake.

“His cousin Freddie brought him on the heist one hot night in early June.” Colson Whitehead, Harlem Shuffle.

“The politics of inevitability is the idea that there are no ideas.” Timothy Snyder, The Road to Unfreedom: Russia, Europe, America.

“It wasn’t far off midnight, but it was still light.” Ragnar Jónasson, Snowblind. (translated by Quentin Bates).

“’We need every one of you,’ proclaimed an anonymous 1985 article in a major white power newspaper.” Kathleen Belew, Bring the War Home: The White Power Movement and Paramilitary America.

“The dust hovers in a cloud behind the Reykjavik coach, the road is a ridged washboard and we rattle on; bend after bend, soon it becomes impossible to see through the muddy windows and, before long, the Laxdoela Saga trail will vanish into the dirt.” Auour Ava Olafsdóttir, Miss Iceland.

“Somewhere in the vast northern ocean, between Iceland and Norway, Thorsteinn Olafsson got himself involved in the biggest mystery of the middle ages by making an honest mistake: he turned his ship a few too many degrees west.” Egill Bjarnason, How Iceland Changed the World: The Big History of a Small Island.

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The Judge Ain’t No Umpire

          Americans believe that Supreme Court justices are biased and rule in line with their personal ideologies and preferences. There are many reasons for these conclusions. When justices such as Amy Coney Barrett tell us how unsullied they are, as she did recently, instead of just going about their judicial work, we can’t help but think about Gertrude and doth protesting too much methinks. But the American skepticism has other roots. Consider the present Chief Justice.

          John Roberts in his confirmation hearings described the job in baseball terms: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”

          Roberts has been mocked for this statement, which revealed ignorance or disingenuousness, and since Roberts is smart, the latter is inferred. The Constitution contains numerous phrases that need interpretation, such as “direct taxes,” “the executive power,” “privileges and immunities of citizens,” “the due process of law,” and many others. Deciding cases involving such language is not the same as determining whether a batted ball is fair. Suggesting an equivalency between the umpire and the justice was an attempt to mask the inevitable values and policies that are involved in judging. While umpires do not make up the rules as the game progresses, Supreme Court justices in essence do. Issues are before the Supreme Court because they have not been decided before. If in deciding a case the Court must determine what is interstate commerce or what infringes the free exercise of religion, it is setting down that rule for the first time. It is making up the rules as it goes along.*

          The choices justices make are not inevitable. Legal scholar Sanford Levinson was correct in saying, “There are as many plausible readings of the United States Constitution as there are versions of Hamlet, even though each interpreter, like each director, might genuinely believe that he or she has stumbled onto the one best answer to the conundrums of the texts.” Thus, an interpretation will never be entirely objective. Justice Benjamin Cardozo: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thoughts and actions. Judges cannot escape that current any more than other mortals. Every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.” Justice Louis D. Brandeis made the same point: “I believe that our judges are as honest as you can make them. But like all of the rest of us they are subject to their environment.”

          Judges are not gods. They cannot be purely objective, and like the rest of us, they cannot know everything that influences a decision. Cardozo again: “All their [judges’] lives, forces which they do not recognize and cannot name, have been tugging at them—inherited instincts, traditional beliefs, acquired convictions.” It is arrogance, chutzpah, or naïveté to proclaim objectivity for yourself and others as Barrett did, and the justice who unquestioningly believes in or promotes such objectivity is fooling herself. Justice Oliver Wendell Holmes, Jr., said, “It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seems to him to be first principles are believed by half of his fellow men to be wrong.”

          Justices without awareness of the limitations of their objectivity who do not practice what should be the accompanying humility are dangerous because the justices not only make up the rules, they make up the final ones. As Chief Justice Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.” Or as the more acerbic H.L. Mencken defined: “Judge—A law student who marks his own examination papers.”

          We should be leery—no scared—when a judge pretends his job is no different from being a baseball umpire or when another proclaims, “No judge is deciding a case in order to impose a policy result.” The first is blatantly wrong; the second attempts to obscure the fact that policy choices affect us all, including—gasp—the Supreme Court. If I may borrow a term I heard frequently in law offices, the courts, and the playing fields, “Don’t give me bullshit.” On that we should all agree.

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*         Roberts analogy was also wrong from baseball’s perspective and shows that he does not understand that endeavor either. Every fan knows that the strike zone varies in size and location depending on who is behind home plate. Some umpires have a wide zone and some a high one and so on. Perhaps whether the tennis ball landed within the service box would have been a better comparison for Roberts. Of course, now such calls are often automated and don’t require a human. I am quite confident, however, that no Supreme Court justice believes that he or she should be replaced by a machine.

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ACB Told Us So

          A week ago, Supreme Court Justice Amy Coney Barrett in a speech urged those who are concerned about the Supreme Court to consider more than a case’s outcome. “It’s not just the result that matters. You can disagree with the result passionately. No judge is deciding a case in order to impose a policy result. They are trying to make their best effort to determine what the law requires.” She instructed her audience to the live-streamed event, “Read the opinion,” and asked, “Does [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?”

          I am one of those who has sleepless nights and troubled naps worrying about the policy decisions made by Barrett and her colleagues. I am hardly alone. A recent poll found that only one in six Americans thinks that the Court is impartial. How could I be so wrong? How could most of you be so wrong? But I can now rest assured. “No judge is deciding a case in order to impose a policy result.” The truth has been delivered. Each and every judge is unbiased. How do I know? Amy Coney Barrett has told me so. Apparently, assertion equals truth.

          It is not surprising that Barrett is especially sensitive to criticisms that her decisions are partisan. She ascended to the Court through blatant partisan maneuverings of Mitch McConnell, and of course, President Trump appointed her because he and others believed that her decisions in certain areas would be predictable. It was expected that she would favor corporations and businesses; aid to religious schools; free exercise of religion claims that would exempt the “religious” from the legal obligations that the rest of us must observe; the limitation or elimination of abortion, contraception, and sexual rights; and the expansion of gun rights.

          The setting of her speech—the Ronald Reagan Library—may have seemed partisan, but the Library over the years has invited all the justices to keynote events. On the other hand, I did not see a non-white face in the audience. That does not mean there was no diversity. Before Barrett spoke, some notables were introduced and that showed that there were white males in attendance from several different boardrooms. Ah, diversity. (These gentlemen are likely to be happy with a current Court trend. Adam Cohen in Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (2020) notes a study that the Warren Court found in favor of businesses 28% of the time; the Burger Court 48% of the time; 54% for the Rehnquist Court; and 64% for the Roberts Court. Cohen also reports that Justice Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time and that Chief Justice Rehnquist voted for defendants in non-white-collar crimes 8% of the times but in white collar crimes 62% of the time.)

          Barrett insists that it is not just the result that matters. Perhaps she is right, but if so, only barely. For most of us, the outcome is what we care about, not how the decision is reached. See post of April 4, 202: Search Results for “Originalism?” – AJ’s Dad (ajsdad.blog). But in trying to reassure us that the results come not from the justice’s personal preferences, Justice Barrett said something troubling. She urged reading the opinion and asked if it reads “like something that was purely results driven.” Purely! I should be sanguine if it is only 80% or 23% results driven? She goes on and asks us if a Justice’s opinion reads as if “designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” If it reads as that honest effort, I should stop my negative thinking.

          Lawyers are results driven. An attorney is supposed to find a compelling legal path to the outcome the client wants. The lawyer is trying to present a persuasive effort that the client’s desired result is what the Constitution, precedent, or statute requires. I would like to think the Supreme Court Justices would at least make adequate attorneys, and it would be shocking if they could not make apparently good arguments to justify their decisions even if they were results driven. (Barrett, however, did not have much of a career as an attorney; it lasted only a couple years.)

          Some people are convinced by mere preaching from on high, but others believe–cliché alert–that actions speak louder than words. Opinions justifying results that fit with the perceived policy choices of the justices are unlikely to convince the majority of us who are skeptical about the neutrality of the justices. If Barrett rules to overturn Roe v. Wade, I among many are likely to think it was a predetermined result that stems from her conservative and religious views no matter what “legal” reasoning she gives for the outcome. What might convince us that precedent and the Constitution drive justices’ votes would be decisions in which justices have gone against the preconceptions we have of them. Interestingly and all too tellingly, Barrett in her speech provided no such evidence of such an event.

          Her word is supposed to be good enough, but what do you think when someone tells you how honest or disinterested they are? A Supreme Court Justice telling me how pure in thought and motive all the justices are brings a similar skeptical reaction. Justices would be better off not making such pronouncements. If they are going to make speeches, perhaps they should just tell anecdotes—I might feel better about the Court if I found out, for example, that two of its members have argued about what has been the best heavy metal band—and not make what is really a policy statement about how divorced the justices are from making policy pronouncements.

          Even so, before condemning a decision as results-oriented, there is merit to her injunction to read the opinion first, advice that would be easier to follow if justices were forbidden from writing their opinions in more than double-digit pages, something, I assure you, will not happen. Nevertheless, reading the opinion is a good idea. So I was surprised when two days—I repeat, two days—after Barrett’s speech, the Supreme Court rendered a five-to-four decision with vigorous dissents. The decision, upon the request of Louisiana, other states, and companies in the gas and oil industry, reinstated a Trump-era rule that limited the ability of states to block projects that could pollute waterways. The decision fit my preconception of how the conservatives would rule on an environmental case, but I was taking Barrett to heart and went to read the opinion before coming to any conclusions. Guess what? There was no opinion. This came out of what is known as the “shadow docket” of the Court. The majority did not give reasons for its ruling. “Read the opinion”?!?

          I don’t know if Amy Coney Barrett has a good sense of humor. But I do know that she can be ironic.

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To Recuse or Not to Recuse? Let’s Make the Question Easier

Messages from Ginni Thomas to Trump administration officials indicate she believes that the last election was stolen from the former president. This has brought calls that her husband Clarence Thomas recuse himself from any Supreme Court case that might involve that 2020 election.

I leave the merits of whether his recusal is appropriate to others or for another day. Instead, I have been struck by some of the commentary that says that Justice Thomas should refuse to recuse and refers to the well-known opinion (in certain nerd circles) when Antonin Scalia refused to recuse himself.

In that case, Vice-President Dick Cheney was a named party, and an opposing party moved that Scalia recuse himself because Cheney and Scalia for years had gone on a hunting vacation together. Before launching into the twenty pages defending his non-recusal decision, Scalia pointed out that the motion suggested that Scalia “resolve any doubts in favor of recusal.” Scalia responded: “That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”

Of course, Scalia was right that a recusal on a lower court is different from one on the Supreme Court. Throughout the country, we generally have three levels of courts. The lowest is often called a trial court where a legal matter originates. The proceedings are presided over by a single judge, but there are other trial judges in the jurisdiction. If a judge steps aside, another trial judge gets the matter, and the legal matter proceeds in the same fashion as if there had been no recusal.

An intermediate appellate court sitting above the trial courts decides cases with panels of judges—three in the federal Courts of Appeals. These appeals courts, however, retain more than three judges. The panel to decide a case is drawn from the greater number. For example, the federal Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. As Scalia indicated, if a judge assigned to a case is recused, then another appellate court judge steps in and the same sized panel still decides the case.

The Supreme Court is different. Nine justices decide a case and the Supreme Court has only nine justices. If a justice steps aside, the matter will be decided by the remaining justices, or if the justices split evenly, no decision is rendered. (A tie vote means the intermediate appellate court decision stands.) Scalia used the possibility of a four-four split as a justification to stay on the case, and it is now also cited as a reason why Clarence Thomas should not recuse himself.

While lower court judges may be expected to err on the side of recusal and step off a case when there is a reasonable chance that there is a conflict of interest or the perception of a conflict, Scalia’s approach was that a Supreme Court Justice should err on the side of non-recusal. More unfairness may result, and an increased perception of unfairness seems inevitable. The unavailability of a justice to replace a recused justice, however, is remediable, and reforms should be considered.

The Constitution neither defines the number of Supreme Court Justices nor does it define how many Justices should decide a case. 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 after FDR’s failed attempt to expand the Court in 1937.

Nine remains sacred because proposals to change the size seem partisan. Recent suggestions of enlarging the Court came because that body is firmly conservative and because Republican partisan activities insured a firm majority of rightist Justices. However, there are proposals that would lead to more than nine Justices that could make the Court appear, and perhaps be, less partisan. The reforms could lead to better Justices and make the nomination and approval process less partisan.

The core of the 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 if all of them decided each case. Instead, nine Justices would be picked at random from all the Supreme Court judges to hear a matter.

There are obvious advantages to this scheme. First, of course, there would be replacements for recused justices, and there would be no possibility of an equal split among the justices. The decision to recuse can then concentrate solely on conflicts of interests.

Another advantage is that the enlarged Court could take on 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 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 result in a litigation. This would give more certainty, uniformity, and finality to the law than we have now.

Drawing nine from a broader roster of justices also would have the advantage of dampening lawyerly gamesmanship. Attorneys now try to predict how each of the nine justices might decide a particular issue and seek review only when they assess the Supreme Court lineup as favorable to their position. That gamesmanship was evident with Amy Coney Barrett’s ascension to the Court. Conservative legal organizations now see a solid Supreme Court majority favoring certain kinds of religious claims, Second Amendment expansion, and the limitation or elimination of the right to abortion and are seeking to get Supreme Court review of cases containing such issues before a Court they see as especially favorable to their viewpoints.

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 public focus on the issues and less on the judges. That would be a good thing.

(concluded April 8)

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Partisan Hacks, Comprised of

Before the ink was dry on her nomination to the Supreme Court, right-wing news articles and fundraising emails attacked Ketanji Brown Jackson. One said that she had “taken radical, liberal positions throughout her career” without giving even a hint as to what those positions were. A different writer labeled her “a politician in robes.”

The writings did not contain a glimpse of irony or even the slightest acknowledgement that only recently conservative Supreme Court Justices have themselves been criticized as partisans. This criticism came as a result of issuing opinions with scanty or no reasoning that followed their own political predilections and that of their patrons; allowing unconstitutional laws to be enforced; and bending judicial norms to hear cases that have political overtones.

The conservative justices had to know that their actions would look political and produce vehement criticisms, but you might expect them to simply ignore the critics. When I was a baseball umpire, I expected disagreement with some of my calls. I knew that I should not umpire if I could not handle criticism. If you take a judgeship, you should not be surprised by criticism. And if anyone should feel secure from critics, it would be an insular band of people who have both power and life tenure.

However, the comments about the Court made some justices feel like paper flowers in the rain.* Ignoring the fact that defensiveness often gives greater credence to the critics, several justices made replies. The most quotable “defense” came from Amy Coney Barrett who announced that the Supreme Court “is not comprised of partisan hacks.” Of course, it would have been even more newsworthy if Barrett had said that the Court was filled with partisan hacks, but, nevertheless, the whine indicated how touchy some members of the Supreme Court are.

Now, if you are looking for self-conscious irony, don’t go to the conservatives on the Supreme Court. Whether or not she is a partisan, she is sitting on the Court because of naked partisan power, and she made her statement in a place that honors a person no one would ever sanely label as nonpartisan, Mitch McConnell. And yes, if she has an ounce of gratitude, she should be indebted to him for his partisanship.

If Barrett, for unfathomable reasons, thought her ex cathedra-like statement would end discussion of the topic, she was undercut by her colleague Justice Samuel Alito. A month or so after Barrett announced the absence of judicial partisanship, Alito made a speech to the Federalist Society, a group not widely known for its even-handed policies. Many sources concluded that this speech was so highly partisan that it should have raised ethical concerns for a judge. However, Supreme Court justices are not bound by the ethical standards set for other judges—disturbing yet true.  So, on the one hand, we have Barrett’s assertion, not supported by any evidence or reasoning, about the lack of partisanship on the Court, and then we have the stark evidence of a partisan speech by a Justice. Chicolini’s classic comeback in Duck Soup comes to mind: “Well, who ya gonna believe, me or your own eyes?”

But maybe, I thought, I was being unfair to Barrett. Perhaps her statement was more limited than I had first believed. Reports say that she is smart and a meticulous judge. She, no doubt, tries to use words precisely. She asserted that the Court “is not comprised of partisan hacks.” I went to H.W. Fowler’s classic A Dictionary of Modern English Usage. In it he discusses the difference between include and comprise: “[T]he distinction seems to be that comprise is appropriate when what is in question is the content of the whole, and include when it is the admission or presence of an item. With include, there is no presumption that all or even most of the components are mentioned; with comprise, the whole of them are understood to be in the list.” With her use of comprise, then, Barrett was only telling me that not all the Supreme Court Justices were partisan hacks. However, she might be signaling–with lawyerly precision–that it includes some. Or perhaps she is conveying that some justices are partisan but not hacks or hacks but not partisan? Alito comes to mind again. Many commentators, citing several examples, say that Alito is a partisan. They almost never label him a hack; instead, they almost always refer to how smart he is.

Of course, I may be giving Barrett too much credit for using words precisely. After all, she did use the phrase comprised of, a definite grammatical no-no. The prickly Fowler believes that the English language might be better off with the banishment of comprise: “This lamentably common use of comprise as a synonym of compose or constitute is a wanton and indefensible weakening of our vocabulary.” Perhaps when it comes to words, Barrett is not a conservative standard bearer. Even if that might be laudable, comprised of is not to be praised, at least according to Benjamin Dreyer who writes about comprise in the immodestly titled Dreyer’s English: “I confess: I can barely remember which is the right way to use this word.” He says that he looks it up each time he is tempted to use it. Dreyer tells us that it is correct to say, “The English alphabet comprises twenty-six letters.” And this, too, is right: “Twenty-six letters compose the English alphabet.” But it is wrong to write, “The English alphabet is comprised of twenty-six letters.” Dreyer writes, “As soon as you’re about to attach ‘of’ to the word ‘comprise,’ raise your hands to the sky and edit yourself.”

Of course, you might tell me to lighten up. Don’t parse her words so closely. C’mon; you get the gist of her meaning. Don’t take her so literally. It’s not a big deal if she was imprecise. But, my friends, she is a Supreme Court justice, and when she writes an opinion, no matter how loose its reasoning, no matter how imprecise it may be, it will have important consequences. Barrett may be making decisions that control us for the next thirty or forty years. And precision should matter for a Justice. As Fred R. Shapiro writes in The Oxford Dictionary of American Legal Quotations, “Law is the intersection of language and power.”

I wonder if Barrett will continue to suggest how nonpartisan the Court is if Ketanji Brown Jackson ascends the Court. Conservatives of all stripes are accusing her (Jackson) of being partisan. What kind of hypocrisy is this? Well, we can rest in the assurance from Barrett that she, at least in her own opinion, is not a political hack. Or can we?

*“Only paper flowers are afraid of the rain.” Konstantin Dankevich.