Snippets

Would you be whining about your work if you had an incredibly powerful job, could have it as long you wanted, work full-time nine months of the year, and make enough to put you in the top 2% of earners with the chance to make even more? And yet here is John Roberts, Chief Justice of the Supreme Court, publicly bemoaning that Americans question the legitimacy of his Court. Apparently, he is so unhappy that so many see his work as illegitimate that he is going to resign. Just kidding.

“Blessed is the man who, having nothing to say, abstains from giving wordy evidence of the fact.” George Eliot.

I have listened to the summer sounds. I take my coffee and reading material to the porch as the light is dawning and pause periodically to listen to the bird songs, even though I cannot identify any of the calls. After dinner and dusk, I take a book to the porch and pause in my reading to hear the symphony of the cicadas. During the daylight I hear deer, chipmunks, squirrels, and rabbits rustling the dry leaves in the woodlot next to my reading spot. But, unfortunately, during the day I also hear the summer sounds of lawn mowers, weed whackers, leaf blowers, and backhoes.

It must be a sign of age: I think of my youth as all the time before I was sixty-eight.

A fact that surprised me: The first medal awarded to an American at the 1936 Berlin Olympics was for art. Art competitions were part of the summer games until 1948.

Another fact that surprised me: Iceland has no ants.

A recurring question that mystifies me: Why are Americans so besotted with the un-American institution of the British royalty?

Sometimes when conservatives rail against critical race theory they betray complete ignorance of what it is. Perhaps they oppose it because they think that it is a system for picking horses.

 “In the middle of the twentieth century, any Mississippi schoolchild who achieved an eighth-grade education had been exposed to a state history textbook [Mississippi through Four Centuries] that told of the glories of the Klan. In discussing Reconstruction, it said the Klan whipped and even killed Blacks ‘who had been giving trouble in a community. . . . The organization helped the South at a difficult time.’” Curtis Wilkie, When Evil Lived in Laurel: The “White Knights” and the Murder of Vernon Dahmer. (2021).

Tony Horwitz, in Confederates in the Attic: Dispatches from the Unfinished Civil War (1998), reports that a visitor to a civil war battlefield asked a park ranger why so many Civil War battles were fought on national parks.

The philosopher said, “Half of wisdom is being silent when you have nothing to say.”

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?

Whither School Vouchers?

         The Supreme Court this week held that a Maine school funding scheme violated the Constitution. Maine has some rural school districts that lack a secondary school. The Maine law allowed those districts to sign contracts with nearby public schools for the education of their high school students or to pay tuition for the students at private schools as long as the private schools were not sectarian. (A conservative organization misleadingly characterized the Maine law in this way: “Maine passed a law that banned families from sending their children to religious schools.”)

Chief Justice John G. Roberts, Jr., writing for the majority of six, said that states are not required to support religious education, but if they subsidize any private schools, they may not discriminate against religious ones: “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”

One of the schools at issue in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity.” The other, Bangor Christian Schools, says it seeks to develop “within each student a Christian worldview and Christian philosophy of life.” In his dissent, Justice Breyer wrote that both schools “have admissions policies that allow them to deny enrollment to students based on gender, gender identity, sexual orientation and religion, and both schools require their teachers to be born-again Christians.”

The decision was not a surprise. Under the Roberts court, claims from religious groups have been upheld at a rate higher than any time in the last seventy years. The Court’s split was also expected with the six conservative justices, all Catholics, in the majority.

The debate is going on as to whether this ruling promotes the constitutional right of the free exercise of religion or is an erosion of the constitutional wall between church and state, as the dissent maintained. (Often lost in the distinction as to whether a claim extends freedom of religion or whether the claim violates separation of church and state is that the anti-establishment clause was placed in the Constitution to promote religious freedom.) But the decision raises other issues that should be discussed.

A wing of conservatism advocates for the broad use of school vouchers. These vouchers are public moneys given to the parents for the education of their schoolchildren. Thus, parents, not the state, decide which school will get the government money. Conservative economists promoted the vouchers in the 1950s as a way to improve education. The claim was that allowing free market principles, under the slogan “school choice,” would work wonders for educational quality. Many of those seeking a religious education today support vouchers.

Because the voucher can be used at any private school including sectarian ones, public money is used for religious purposes. The Supreme Court had earlier made it clear that governments could not directly aid religious schools, but the use of vouchers gives parents control over the state money, and is, thereby, an indirect aid to religious schools. In a 5-4 decision, the Supreme Court in 2002 held that a school voucher did not, therefore, violate the federal Constitution.

The recent Court decision is another step in favor of vouchers. Some conservatives, however, want us to go still further. They would like the end of public schools as we now know them and go to an all-voucher system. If increasing numbers of children are separated into religious silos or segregated by gender identity, sexual orientation or any other sociological grouping, the fracturing of America is exacerbated. Would the benefits of vouchers outweigh this cost to American cohesion? That is something we should be discussing.

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.

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.

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

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

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

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

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

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 kind of partisan games we have witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end, maneuvers that strengthened the notion that the Court is not a neutral body. Similarly, the present situation calling for the resignation of a justice as recently happened with Stephen 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 guaranteed Biden any 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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*We have seen that when they control the Senate, Republicans are willing to refuse to consider a Supreme Court nominee put forth by a Democratic president. This tactic could be prevented by requiring that the Senate vote on a Supreme Court nominee within ninety days after the nomination and that failure to act will be automatic approval of the appointment. If the nominee is voted down within ninety days, the Senate shall vote on that new nomination within ninety days and again, no action equals approval. With the third nomination, again the Senate must act within ninety days but then the nominee is approved if forty Senators vote in favor or if forty percent of those voting are in favor. The cries may go that this is not approval within the meaning the Constitution, but that document does not define “approval,” and the Senate has required that nominees survive a filibuster. If the Senate can say that fifty-nine Senators is not enough for approval, why can’t the Senate say that forty is sufficient?

Democracy Dies When Elections Don’t Matter (concluded)

Gerrymandering harms democracy by making votes unequal. The North Carolina electorate splits roughly equally between Republicans and Democrats. Thus, the democratic result should be that the fourteen representatives that the state sends to Congress should be equally divided between the parties. North Carolina, however, has been severely gerrymandered, and ten of the representatives have been Republicans. Therefore, half the people elect 70% of the representatives and their votes count more than those of the other half. Of course, gerrymandering has been with us from the inception of the republic, but today, with modern tools of data collection and analyses, rigging districts is easier and more exacting. The partisan goal is to make as many “safe” districts for a party on the electoral map as possible and to undercut the democratic notion that the voting majority should control.

Legal remedies for changing this are weak or nonexistent.  Gerrymandered state legislatures draw lines so that one party will have more state representatives than warranted by the statewide popular vote. To change this, the other party has to get more than a majority that it would need to remove a disfavored governor. Instead, the lesser party must not only retain its majority in the minority of districts where it now wins, but also get majorities in the districts that are stacked against them because of gerrymandering. The disfavored party will in reality need a supermajority of votes to get the governmental reins while the party that gerrymandered can retrain control with a minority of the vote.

The United States confronted a similar situation in the second half of the twentieth century. At that time some states did not require periodic redistricting of their state legislature. With population growths and shifts, legislative districts that once may have held equal populations became different in size, but each was still entitled to the same representation in the state capital. In Tennessee, two-thirds of the state representatives were elected by one-third of the state’s voters. One Alabama district had a population of 634,864 and another had 15,000 and each had one state senator. Within each district, votes were equal, but when the state was looked at as a whole, votes were unequal, and the electoral process was not about to change that. Representatives from small districts did not willingly give up their disproportionate power.

This only changed because the United States Supreme Court stepped in and adopted what now is called the one person, one vote doctrine. The constitutional guarantee of equal protection, the Court recognized, requires that each vote within a state be equal to all the other votes in the state, and therefore legislative districts would have to have comparable populations.

The recent Supreme Court, however, has viewed partisan gerrymandering differently. Rucho v. Common Cause, decided in 2019, said that “partisan gerrymandering” may be “incompatible with democratic principles.” Even so the 5-4 decision, written by Justice Roberts, said that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” If gerrymandering is a political question as the Court stated, you might think that there would be a political process to address any problems, but the Court, for the good reason that there is none, did not suggest one. It is as if the umpires turned their backs and walked off the field saying that while it does not seem right, the home team can call balls and strikes. And, thus, the constitutional rights to equal protection and due process do not govern partisan gerrymandering.

Of course, the goal of gerrymandering is not only to make votes unequal, it also seeks to make elections meaningless. Originally gerrymandering was about individuals. Legislative districts were manipulated to have a particular person elected or defeated, but that changed over time to ensure that the member of a particular party, no matter who the individual candidate was, would win the seat. In a successfully gerrymandered district, the election is not about voter turnout, issues, or even personalities. The outcome is set by the district lines that are drawn before the election. The ballots are a mere formality. I see reports of elections from various autocratic countries where the leader gets a ludicrous percentage of the votes, often just short of 100%. The election, of course, is a sham; it is meaningless, and it means that that country is not a democracy. A gerrymandered district in the United States where the election is meaningless is not part of a democracy either.

Friends discount this by telling me that all sides try to draw district lines to their advantage. That has been true, but we should recognize that partisan gerrymandering of the sort we now have does not have ancient roots. Commentators see it starting in the last two decades of the twentieth century. By 2000, 300 of 435 House seats were safe for one party or the other, but now safe seats have increased. News reports in 2020 said that perhaps only fifty seats were truly contested ones, and after the round of gerrymandering that followed the last census that number may be lower.

Reform seems remote. Gerrymandered state legislatures are unlikely to ungerrymander themselves, which gives the incentive for gerrymandering elsewhere. If a surfeit of Republicans is produced in one state, a Democratic state quite naturally seeks to gerrymander its bailiwick for balance. State courts are the only possibility of reform, but not all, if any, state courts will address the undemocratic process,* and uneven reform may merely yield additional power to the political party that will still be able to gerrymander in other places.**

Finally, there is another potential challenge to our democracy, which could be the most devastating one. Right now, gerrymandering undercuts democracy, but it does not affect the presidential vote or statewide elections such as that for governor. Of course, it matters if voters do not have equal access for these non-gerrymandered elections, but the balloting still matters. However, we now have movements to change the vote counting and certification processes with the suggestions that the new officials will have the power to overturn elections when they don’t like the outcomes. We have the potential that no election will matter in the future.

And then democracy will not just be waning or under attack; it will be dead.***

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*Civics courses have taught that the lower houses of the national and state legislatures are the most democratic and representative of our governmental institutions because the fewest number of voters select these representatives in frequent elections. With gerrymandering, however, these bodies have become unrepresentative of the people. The civics courses have often concluded that the courts are the least democratic of our institutions since they are the most removed from the electorate. But when state supreme court judges are elected in non-gerrymandered statewide election, the state supreme courts may be more democratic than the legislatures.

**Gerrymandering has harmed government also by increasing uncompromising partisanship. In a safe district, a candidate does not have to appeal to the other side or even to the center to get elected. The candidate merely must win the party’s primary. The candidate does not ever have to appeal to the majority of the electorate, but only to the partisans voting in the primary. And when elected, members from gerrymandering district can indulge their partisan ideology without political retribution. We become a more divided country as a result.

***It was funny, and ludicrous, when Pat Paulsen, the comedian a generation or so ago, who “ran” for President, said, “I want to be elected by the people, for the people, and in spite of the people.” We now live in a world where “in spite of the people” is a dominant political strategy.

Stitching a New Nine this Time

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stitching a New Nine this Time (concluded)

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

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

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

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

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

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

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

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

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

Let’s Get Women Off the Supreme Court

Dear Loyal Readers Who Noticed That I Did Not Keep My Usual Posting Schedule Last Week,

Last Monday I posted a longer than ordinary essay about the Supreme Court nomination of Amy Coney Barrett. Because of its length, I had planned to skip my usual Wednesday post and resume this blog on Friday, but that day passed, too, barren of my wit and wisdom. You might assume that that was because I was so wrapped up in the Senate hearings that I did not get to the keyboard. I wish that were so, but instead, some health issues had me in doctors’ offices where lasers zapped my eyes and other machines found additional problems with this aged body. In what was meant to be reassuring, the doctor said that the new problems were “repairable,” and the repair strategy, which apparently does not require the copious use of duct tape, is under way, but it all took up some of my time.

Even so, I still had many moments when I could have watched the hearings. Mostly I avoided them expecting them to be as predictable as the Perry Mason reruns on ME TV, and I gather the Senate proceedings held few, if any, surprises. In the half hour I did watch, Barrett stated that her constitutional philosophy was not to place her own values into the Constitution or to seek the original intent of those who drafted the Constitution but, as other conservative judges now say, to apply the original public meaning of the document’s words. The Constitution, she said, does not evolve but, apparently, remains frozen in the eighteenth century. To her this is necessary so that judges will be neutral and not constitutionalize their individual values and views. (I have previously discussed this thinking on this blog in “We, the People of the United States,” posted July 26, 2018, and “Originally It Was Not Originalism,” posted August 22, 2018.)

Although I did not hear her use it, her explanation reminded me of Chief Justice John Roberts’s oft-mocked metaphor that judges should be mere umpires keeping their personal predilections at bay. The contention is that judging can and should be mechanistic. Moreover, rulings that use the standard of original public meaning are desirable because such meaning can be objectively determined

My mind went whirring into the future. Twenty years from now our president is Phillip K. Dick III, a sports fan. He notes in 2040 that tennis matches have long abandoned human officials for line calls using machines instead. Baseball now registers ball and strikes without a human umpire, and footballs have chips implanted so that forward progress at the end of each play can be automatically recorded without the rather slapdash procedures of line or side judges in days of yore. Referees and umpires have moved beyond human judgments, and Dick remembers John Roberts’s words that Supreme Court judges should be like umpires. (Roberts, a mere eighty-five, is entering his thirty-fifth year of Court service.) Therefore, when Stephen Breyer dies at the age of 102 after forty-six years of service as an Associate Justice, Dick nominates a computer — which has had the Constitution, all court decisions, all dictionaries, all necessary history, and anything else that could be relevant to court decisions placed in its memory and which has been programmed to make decisions using these materials — to fill the Supreme Court vacancy. President Dick states that this will eliminate the dangerous human element from constitutional interpretation. Arnold, this device’s name, is ready to take the “seat,” but a cry goes up that Dick cannot do this. The Constitution does not allow the president to appoint non-humans to the highest court. (My imagination cannot discern the source of the cries, but presumably they don’t come from the conservative wing of the Supreme Court, consisting of Clarence Thomas at the age of 92, Samuel Alito at 90, Brett Kavanaugh at 75, Neil Gorsuch at 73, and Amy Coney Barrett at a spry 68, who all claim that they mechanically interpret the fundamental laws without invasion of human emotions.) References to Caligula are made, but a horse is a horse, of course, and Incitatus was never actually made a consul but merely a priest. This is the United States Supreme Court, Dick says, and is different. Human judgement should be removed from judging as the conservatives maintain. Justice Arnold could make decisions without emotions and biases and, therefore, is better suited for the Court than any mere human.

The humans pull out their vest-pocket-sized Constitutions and flip pages to find the controlling text: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme  Court. . . .” (We seldom notice that the Constitution does not give the president the power to appoint Supreme Court judges. The president nominates and with the Senate appoints them. The president and the Senate jointly appoint the Supreme Court.)

All sorts of linguistic tools have emerged that can be used to show how words were used in the constitutional era, but I have only bothered to look at Noah Webster’s dictionary, the compilation of which started much earlier but was first published in 1828. It says that a “judge” is a “civil officer who is invested to hear and determine” civil or criminal causes. Webster defines an “officer” as a “person commissioned or authorized to perform any public duty.” There we have it. A person. With the original public meaning, a judge in the constitutional sense is a person, and Arnold is out. (Of course, much modern constitutional law depends on the legal fiction that a corporation is a person, but that is a story for another day.)

But now the original public meaningers look a little further. Webster states that a judge is a civil officer who decides causes “according to his commission.” His. Does this word include both men and women? Not according to Webster, who defines “his” as the “possessive of he,” not “he or she.” By this analysis, a judge within the meaning of the constitution is not only a person, but a male person with a commission. People now realize that the original public meaning of “judge” in the Constitution means a man. A third of the Supreme Court must go.

Of course, the framing generation could not have meant a non-human as a Supreme Court judge. Cyborgs were not on their radar (and, of course, radar was not on their radar in 1789.) But neither was a female judge. That generation did not consciously reject women as judges; the possibility, as with non-humans, never occurred to them. Lawyers were men, and so were judges. (Some Framers may have thought of that woman lawyer, Portia, but surely they knew that in The Merchant of Venice the lying Portia came disguised as a man, Balthazar, claiming, without basis, to be a “doctor of law.”)

The original public meaning of judge in the Constitution meant a man. Shouldn’t the conservatives on the Supreme Court today read the word as it was meant in 1789?