SCOTUS Watch (Reform Edition)

(I forgot about the NYT article that dropped about Roberts having people sign non-disclosure agreements. But that was a voluntary policy already and there still will be leaks. 

How much really does that change things? We are concerned about other stuff, aren't we? On that, Vladeck is correct in his Thursday Substack.) 

Term Limits

Rep. Tom Barrett (R-MI), a first term Republican, proposed a Supreme Court term limit amendment as part of a wider reform package. The overall package sounds dubious but I'm okay with people seriously trying to reform the government.

The term limit amendment would set a twenty-year limit. A term limited judge could still be confirmed for another level of the judiciary. Sotomayor was both a district and court of appeals judge. A person could theoretically serve sixty years.

The amendment, as all realistic reforms are likely to be, only applies in the future. No current judge or justice would be term limited. This underlines how a term limit, however fine it is, and I support them, will not by itself be enough. 

Barrett wants to tie this with a set nine on the Supreme Court. Why should the Supreme Court, which has gone up and down from a 5-10 justice range (five never came to pass and ten was short lived) be set at some specific number? 

Republicans repeatedly are expanding state courts. This doesn't make it ideal. They do multiple bad things. But stopping any chance of expansion has to bring with it something worth the candle. 

Term limits aren't enough.

I am open to a compromise but one where the Democratic supported reform kicks in over twenty years from now (twenty years after the amendment is ratified) is not enough. For instance, we need an ethics bill. Any reform package is likely to have something I dislike. But need more. 

He also wants a supermajority amendment (2/3) to add new states. A bill banning mid-term restricting is fine. See below. This part is unconstitutional:

The bill would also require that only U.S. citizens are counted toward district apportionment and electoral votes. The census would still count all persons for other purposes.

(14A, sec. 2 says "persons" should be counted for apportionment purposes. That includes "district" apportionment. This rule would result in different districts being treated differently depending on the types of persons they have. No good.) 

Overall, it should be part of a wider voting rights bill. The three-year sunset funding idea seems too overinclusive. I am, however, game in having a debate to have Congress truly control the power of the purse. Trump has stolen it. 

Partisan Gerrymandering 

The Supreme Court (5-4) in Rucho v. Common Cause (2019) finally bit the bullet. 

After years of Justice Kennedy hemming and hawing, his successor provided the fifth vote. Federal courts will not try to determine unconstitutional partisan gerrymandering. State courts can use state constitutional provisions. And some have. 

Justice Kagan for the liberals had a strong dissent. And I understand. What truly annoyed me was that the conservatives were not consistent. 

They took away congressional power in Shelby County v. Holder to enforce the Fifteenth Amendment using vibes. If you want judicial restraint, do so consistently, please.

Federal courts can still determine that districting involves illegitimate racial gerrymandering. A lower court determined that was involved in Texas. The justices by a partisan vote overturned. 

Texas clearly had a partisan gerrymander. But that is functionally acceptable now when federal judges address the matter. Justice Alito has moved the goalposts and suggested they are generally acceptable. That, however, is not what Rucho said. 

The state, pushed by the Trump Administration which the lower court (written by a Trump nominee) found motivated by race, also redistricted mid-decade. The Constitution sets districting every ten years. 

It is not explicitly barred to do so mid-decade, but a case can be made. The whole thing has a race to the bottom feel. And Democrats, using the realistic motto that unilateral disarmament is for wussies, respond tit-for-tat. California for Texas. And so on.

If you allow Texas to redistrict to help Republicans win the midterms, there is no good reason to stop California from doing so to help the Democrats. People cynically figured SCOTUS would find a way.

They, without comment, did not grant a request to do so. Rick Hasen is happy and not too surprised. (Maybe, he is that no justice said anything.) SCOTUSblog has more on the details. 

Ultimately, this is depressing. We need nationwide election reform, including something that addresses partisan gerrymandering and mid-term redistricting. A national rule is necessary to avoid a race to the bottom. That is typical national rule dynamics.

We can debate the details, including what the current Supreme Court will deem appropriate under Shelby v. Holder. But this is not a good way to run a railroad.

Everything can be on the table. For instance, perhaps it is a good idea to expand the size of the House, which was set in place over a hundred years ago. Or some form of multimember districting is a good idea. 

Voting rights and overall republican principles should be something we can establish in a bipartisan fashion. Yes, I know, insert sarcastic metaphor here.

The point still holds. Rep. Barrett's package might not be my cup of tea. But young Republicans who will be around a long time, perhaps, willing to think creatively with some room for compromise are welcomed.

If sane people (Democrats at the moment) gain control, they very well might have a chance to be part of the solution. I'm serious. 

Any major change realistically needs some sort of bipartisan support to have staying power. A supermajority (see PPACA) might provide some chance, but when we are talking things like SCOTUS reform, we probably need more. 

Odds and Ends

SCOTUS is on its mid-winter break. 

It released its March argument schedule, which includes April 1 (birthright citizenship). See also, some of the anti-BC briefs.

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Today's Groundhog's Day and this is Black History Month. I briefly talk about that here with further links with more info.

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I watched Ted Lasso (first five episodes) on DVD around five years after most people. It does have charms, especially such a positive lead, which we need in these times. 

The two primary women (owner and girlfriend of a player) characters are well played. There are so many shows these days on so many platforms of which I see nearly none.  

Interesting book with four flawed individuals.

Someone responded to a post about an anniversary of the 18th Amendment with a "what a bunch of morons" sentiment. That's a somewhat cheap shot. 

The Struggle for Judicial Supremacy (Robert Jackson)

Imagine if someone wrote a book like The Struggle for Judicial Supremacy: A Study in American Power Politics today. Would they be confirmed to the Supreme Court, to replace the Chief Justice (someone else was elevated in-house), the next year? It might be exciting.

Robert Jackson was FDR's solicitor general and attorney general (his position when the book was released in 1940). He was a strong partisan supporter and testified in favor of the court expansion bill. Jackson includes FDR's message to Congress and radio address on that bill in the appendix. 

(Jackson skims over the controversy. He argues that a major problem was that the bill was not bluntly promoted to address misguided judicial supremacy. There was a hard-to-take argument; supposedly, it was really just a reform bill to improve the courts.)  

What is "judicial supremacy"? Each branch of government is "supreme" in its own sphere. Congress can impeach whom it wants (realistically speaking), as long as they are a federal officer. Presidents can veto what they want. In his famous Steel Seizure Cases concurrence, Jackson later discussed the broad power of the modern-day president.  

Jackson acknowledges an appropriate court concern (while noting they alone aren't involved) in protecting civil liberties. He does not reference it, as it was not yet famous, but Jackson endorses the famous "footnote four." 

(I don't think "judicial supremacy" merely means judicial review. Judicial review has its limits. Either way, being "supreme" in a certain area is not "supremacy." There is a greater meaning there.) 

His concern about "government by lawsuit" was the usage of substantive due process to, in his view, incorrectly override legislative discretion in policy matters. 

Likewise, an artificial application of constitutional provisions to rob the people's representatives of the discretion to make policy. This often had an economic flavor, so we have many cases involving employment, rate regulation, taxation, and so on. 

The Lochner Era and the battle of the New Deal were his particular topical focus. A specific concern, like now, was the lower courts, where injunctions could block government programs, even when federal law appears to deny the power to do so (tax injunctions). 

He provides an in-depth analysis of many legal disputes (after about 100 pages, I started to skim). Jackson argues that, generally speaking (again, civil liberties would be an exception), a strong presumption of constitutionality should be the rule. Eric Segall would be pleased. 

Justice Jackson had his limits in the area of civil liberties, especially after World War II. He thought there were limits to free speech, especially in the battle against fascism and communism. That is, "the constitution isn't a suicide pact." Jackson also thought there was a limit regarding the federal courts' interference with state criminal trials.  

Jackson warns that the courts have limited abilities. They work by lawsuit, argued by lawyers. Policy is not just a matter of applying legal principles, especially via specific disputes. A single dispute will not provide enough information. Litigation can also take a long time. Meanwhile, public policy is in limbo. 

He notes early on that what works for his time might not work in future days. Jackson was no originalist, though he respected history. Like FDR, he supported a "living law."

Justice Rehnquist (as he then was) in the link at the top of this entry noted that this is a "dated book." It is a project of its time. People might even have been surprised at it in late 1940. Wasn't the struggle for judicial supremacy won by FDR? Jackson knew, however, that it was a long haul. 

Imagine, for instance, what Jackson would have thought when the Supreme Court struck down the legislative veto a few years after Rehnquist wrote those words. Would he support a court expansion bill today? Either way, judicial supremacy remains bad.

First Execution of 2026

Charles Victor Thompson was sentenced to die for the April 1998 shooting deaths of his ex-girlfriend, Glenda Dennise Hayslip, 39, and her new boyfriend, Darren Keith Cain, 30, at her apartment. Cain died immediately, Hayslip lingered some. Texas executed Thompson today by lethal injection.

Thompson's final SCOTUS appeal sounds dubious:

Thompson's attorneys have asked the U.S. Supreme Court to stay his execution, arguing Thompson wasn't allowed to refute or confront the prosecution's evidence that concluded Hayslip died from a gunshot wound to the face. Thompson's attorneys have argued Hayslip actually died from flawed medical care she received after the shooting that resulted in severe brain damage sustained from oxygen deprivation following a failed intubation.

The state not only argued that this was not a new claim. It was besides the point. Thompson was still responsible for her death. Why, after all, did she need medical care? 

SCOTUS earlier today, without comment (as usual), rejected the argument. It very well might be sound as a matter of appellate review. I still would like at least a brief explanation before the final court paves the way to the deprivation of life.

I continue to find long lag times constitutionally troubling (Breyer's dissent). Over twenty-five years fits the bill. Others will be glad that "justice finally prevailed." 

The top link notes that he escaped from prison for a few days after an earlier appeal. It sounds like a result of a ridiculous laxness of security for a capital offender:

Shortly after being resentenced, Thompson escaped from the Harris County Jail in Houston by walking out the front door virtually unchallenged by deputies. Thompson later told The Associated Press that after meeting with his attorney in a small interview cell, he slipped out of his handcuffs and orange jail jumpsuit and left the room, which was unlocked. Thompson waived an ID badge fashioned out of his prison ID card to get past several deputies.

Thompson committed a horrible act, murdering two people in cold blood. It was a personal crime, a result of his anger and revenge, which makes it somewhat less blatant as a "worst of the worst" situation. He was in prison for approaching thirty years. That is not nothing justice-wise.

Few will cry over his execution, of course, and he is now mostly a statistic. The first execution of 2026.

I might not provide deep dives for each execution this year. Perhaps, only those that receive SCOTUS review like this one will be handled. Time will tell. 

International Holocaust Remembrance Day

Mayor Mamdani‬ on Bluesky noted:

[O]n International Holocaust Remembrance Day, we honor the six million Jewish lives — and the millions of others — senselessly murdered by the Nazi regime. We remember not only the unimaginable loss, but the warning history leaves us.

This day calls on us to do more than reflect; it calls on us to act — to confront antisemitism wherever it exists and to reject all forms of hatred and dehumanization. May the memories of all those lost be a blessing — one that guides us as we build a world where every life is sacred.

US Holocaust Memorial Museum:

The United Nations General Assembly designated January 27—the anniversary of the liberation of Auschwitz-Birkenau—as International Holocaust Remembrance Day, a time to remember the six million Jewish victims of the Holocaust and the millions of other victims of Nazi persecution.

As we are witnessing an alarming rise of antisemitism around the globe, it is more important than ever for us to recognize the critical lessons of Holocaust history as we commemorate the victims and honor the survivors.

A White House statement, which overall is reasonable (without acknowledging that nothing is wrong with it; credit/due to whoever wrote it), ends thusly:

On this solemn day, we remember every man, woman, and child senselessly killed by the evil, depravity, and hate of the Nazi Regime—and we commend the survivors who dedicated their lives to sharing their stories while carrying the unimaginable burden of the seen and unseen scars. This International Holocaust Remembrance Day, and every day, we honor their enduring resilience, faith, and strength—and we recommit to the sacred truth that every human being is made in the holy image of God.

Yes, let's be guided by some form of that final message, a sort of equal protection principle. 

Anyway, recall:

a time to remember the six million Jewish victims of the Holocaust and the millions of other victims of Nazi persecution.

Some time ago, there were some overheated responses to those who said this. That is, providing education materials for IHRD involving more than the Jewish victims. Which is what the day is supposed to entail. It includes all victims of Nazi persecutions, along with the Jewish victims. 

Mayor Mamdani‬ was supposedly not someone Jews could be comfortable with. Many of these people did not feel similarly about the Trump Administration. 

Okay, I know, we are supposed to focus on other things today. But the right does have its problems. 

Finding Phoebe (of Romans fame)

The Bible has many intriguing characters. We often wish to know more about them. 

This is true even with some rather important people. Isaac is one of the three patriarchs. We know very little about him, and one story (involving his wife) is just a repeat of a story about Abraham.

I commend to you our sister Phoebe, a deacon of the church at Cenchreae,  so that you may welcome her in the Lord as is fitting for the saints, and help her in whatever she may require from you, for she has been a benefactor of many and of myself as well. (Romans 16:1-2 NRSV)

Phoebe (not the friend of Monica and Rachel, though both are Jewish) is one such person. We can learn a bit about her by parsing the few words ("deacon" and "benefactor" or patron, for instance) supplied. And, considering what the typical woman in her position might have been like.

People have helpfully tried to do this. The book is written by both a historian and a church elder. It is useful both for the general reader and faithful believer (it has study guide sections intended for church discussion groups).  

I learned a few things, including how women in that era sometimes served in local administrative offices. The book reminds us that women often served an active role, even if they clearly were not treated equally to men. 

It is unclear why no chapter discusses the typical job of a "deacon" of a church. The role of a deacon is discussed, but such a chapter would have been helpful. A deacon basically was (and is) a general assistant. This webpage is helpful.  

Bart Ehrman, in his books, argues that some of his "surprising" discussions are well known by clergy from their college classes. He argues that they should encourage their congregations to learn about them.

The historical context overall is a helpful way to get the full benefit of scriptural works. The same includes close reading with help on what to look for. 

The result is not that the works (especially works from c. 100 CE) are free from criticism. They are more complicated than the "for" and "against" sides often think. This includes the more troublesome pseudo-Pauline letters with some of the most sexist language.

This book does so with the New Testament (and other works, such as Judith) to help readers learn what they can learn about its views on women. That is a good way to get the most from the material.  

An educated believer can be the best customer of faith traditions. To twist a famous advertising slogan. 

SCOTUS Order List

That's fairly long for the average order list. And, yes, there was a per curiam.

SCOTUS (with only Jackson publicly dissenting without comment) flagged that it thinks a lower court misapplied a limit on federal habeas. The opinion (this is relatively rare) includes photographs.

The case is, in effect, a matter of error correction to flag that the lower court did not appropriately apply a federal limit on habeas. The justices re-parsed the evidence to determine this. Hmm. 

The Court also granted cert in a case where the petition uses a scene from the film Hoosiers to make a point. The case involves the Video Privacy Protection Act. The next scheduled event is February 20th. 

SCOTUSBlog on Bluesky: "The court has agreed to weigh in on the interpretation of a federal law, enacted in the wake of Judge Robert Bork’s unsuccessful Supreme Court confirmation hearings, intended to protect videotape rental histories from public disclosure." The case involves Facebook. 

I continue to wish the Order List provided links to the docket pages of the cases covered. Instead, the interested person needs to look up each one individually. It's not really too much to ask in 2026.

Seattle/Pats It Is

The weather was frightful, which is great when you have a lightly used back-up. Denver lost 10-7, giving the Pats seven, and leaving three on the table. Seattle stayed ahead and stopped the Rams near the goal line. Scoreless 4Q.

Brief Encounter with Nice People

I was watching Brief Encounter (the original, not the horrible 1970s t.v. remake) again. 

[BTW, I also watched the first season of Night Court. The DVD provided a commentary track for the first episode from the show's creator, who also separately talked about the show along with Harry Anderson. It also has its charms on the nice people front.] 

The film is wonderful on multiple levels, including its cinematography and use of sound.

One thing that is so enjoyable is that the characters are such pleasant people. Their normalness is a large part of the point.

They are just two normal married people who strikingly fall in love with other people. They know that it is crazy and that there is no future in it. That doesn't change the reality.

That is the basic tragedy.

The film is mostly shown through the eyes of the woman. She is the sort of woman who is upset at herself when being annoyed at someone who is an annoying pest. Yes, they are being annoying, but it's sort of mean to have mean thoughts about that.

It's nice to remember that people deep down often are like the leads in the film. That includes the woman's husband, a nice guy who she loves, and who would be the one person she would talk about her experiences, except that it would hurt him so much.

(Meanwhile, in Minnesota. My comments.)

Anyway, it's snowing. 

Yes, it's winter, but NYC usually doesn't get this much snow. Also, it is colder than usual -- we don't usually have pre-20-degree weather. Of course, it is all variable, with forty-degree weather recently.

Sunday is a good day for it, since during the week it would cause a lot more people problems.