SCOTUS Protests: Apparently taking time off from investigating the leaking of the Dobbs draft, the Supreme Court marshall asked Maryland and Virginia officials to direct law enforcement to enforce state and county laws prohibiting picketing outside the homes of Supreme Court justices. The letters, and this bothered the state officials, were also sent to the press. OTOH, as usual, nothing on the website's press page.
The Republican governor of Virginia might be on board somehow, but local officials are not. They (like the U.S. Justice Department) argue that peaceful protests are protected by the First Amendment. As has been reported in the past, the Supreme Court said as much with anti-abortion protests of homes of doctors, though some sort of buffer zone and time, place, and manner rule (no two a.m. protests) can be put in place.
Any literal reading of laws that say otherwise should be seen as a violation of the First and Fourteenth Amendment. As noted in the article:
"They are allowed to be in the neighborhoods, but they must continuously walk, they cannot stand specifically in front of a neighborhood with signs and bullhorns and yelling at the residents," Jones said about the rules for protesters. "They must not block sidewalks, and they must not block the streets."
ETA: I am wary of a permanent protest outside of houses of judges, especially since there is an "whose ox is being gored" problem. So, I am not really a BIG fan of them. As a general rule, I think a buffer zone around the home is both valid and to some extent constitutional.
But, we are in a certain period where the opinion is still raw, and a normal run of the mill rule realistically will be resisted. And, what exactly is the line asked for here? What is "picketing"? What is "adjacent"? Can they cosplay in handmaiden outfits down the block from Barettt's house? And, when you start talking about "terrorizing," that is absurd. The reports -- and the single guy who did so at 2AM is not of this caliber -- are in no way matching that.
I also basically agree with this analysis of a protest of Kavanaugh when he was eating at a restaurant.
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Packed Court Blues: According to one analysis, these protests might be going on in some form a long time since the current Republican dominated majority will be around for helluva long time. And, this is a serious problem:
The Supreme Court’s legitimacy turns in part on its being democratically accountable. If a party repeatedly wins the presidency (and to a lesser extent controls the Senate), the judicial views of that party should be reflected on the Court. The democratic accountability deficit is particularly acute now as Republican nominees currently hold 6 of 9 seats, notwithstanding the fact that Democratic Presidents have won the White House in 5 of the last 9 elections.
Any response to concern about "packing the courts" etc., should underline the full nature of the problem, including how the Supreme Court is already "packed" by Republicans. I have in the past disputed criticisms of expansion. Now, one such critic is floating the idea of term limits or expansion. FTC is surely not a big fan of expansion and it is being floated as a sort of threat. I think expansion talk directly is.
I am not really gung ho here. There have been various proposals regarding term limits, some arguing there is a way to do so without a constitutional amendment. A basic idea is -- for the first time in 245 years -- to have a "judge" type role where they serve 18 years on the Supreme Court, and than the rest of the time mostly on lower courts.
It's a sensible policy approach on some level, but questionable if (or if it should) it will be upheld. Why 18 years, after all? The argument would work the same basically if it was eight years. The basic idea of life tenure, including not worrying about time after stepping down, is not really upheld in a basic way if most of the tenure is spent on a lesser court.
Being a Supreme Court justice is a special office. It is not fungible with a court of appeals or district judge slot. I think it is stretching the Article III language (though I won't say so far to break it, but realistically, it is stretching it rather much) to argue this should work. Honesty warrants a constitutional amendment here. I am willing to be proven wrong.
The ultimate problem is that this will take time. Years. It will take time and effort to pass and then it will be subject to appeal. And, it will not address the immediate problem in the meanwhile. In a mega-way, term limits will address judicial power concerns. I think it is fine as policy. But, expansion and other responses to the current problem is necessary.
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Lest We Be Marshall'd: I have this book from some years back with a very colorful cover, which discusses a battle over judicial review in the opening years of Ohio statehood. The book's font leaves something to be desired and then the story goes into a somewhat tedious battle over court membership. Still, it is an interesting bit of history, including to remind that there is another way to look at judicial review.
At times, you will see people today argue that judicial review is not really in the Constitution, and that Marbury v. Madison dubiously established it. Let it be noted that -- just like Griswold v. Connecticut did not "establish" a right to privacy (see, e.g., Mapp v. Ohio) -- judicial review (particularly the power of the courts to hold legislation and official acts as contrary to the Constitution) was not first establish judicial review.
One good defense of judicial review reprinted here as an appendix at the time said as much. Supreme Court justices in the 1790s repeatedly, including in rejecting service as war pension commissioners, appealed to judicial review. State court judges also did so, if admittedly in a limited number of cases. Likewise, Jefferson and Madison cited it as a means to apply the Bill of Rights, including as a protection of rights of minorities.
Complete opposition was a minority view. Opposition did arise. There was a view that each branch swore an oath to the Constitution and the courts did not have some special role (or ability) to define its terms. The legislature if anything seemed safer since it was closer to the people, tended to have more limited terms, and mistakes can be addressed at the polls.
I find the last a bit unrealistic, since people elect people for a range of reasons, and some wrongful act will be only so problematic. This beyond the development of parties and the fact that often people do not mind "breaches" of the Constitution. The concern that judges would go too far, including into "political" matters, was present then and always had bite. But, there is a core logic that judges have a specific job to interpret the law. And, litigants are in front of them specifically to have them do it.
The most logical approach here is one some Supreme Court justices and later Ohio judges (who btw had limited terms, suggesting more of their limited power) offered. That is, IF you declare something unconstitutional, make sure it is a clear case. This is particularly the case if a whole separate branch is involved as compared to the act of a single official.
Respect for other branches, which have their own skills and responsibilities, warrant this as does overall a respect for the people's will. It is a balance, as the Dobbs dissent noted in a different context. There is a respect for majority rule, but it is not absolute. A written Constitution as well as an overall principle of rule of law with rights and obligations sets forth overlaying rules. And, when it comes to policy-laden topics, respect of executive and legislative branches are quite appropriate.
The book itself notes that after the controversy, and the passage of time (War of 1812 intervened), courts in Ohio began to be given more respect. Note again that limited terms (seven years in the beginning) and good personnel helped here. Plus, a respect by the judges themselves of the limits of their discretion.
The last chapter is not a complete look at the aftermath. Still, we can see a joint effort here. The concept of "judicial supremacy" is also touched upon as well as popular constitutionalism (briefly). The first term throws me a bit since it has a somewhat unclear reach. Supreme how? For instance, President Biden can veto an anti-abortion bill on constitutional principle, even in the face of Dobbs v. Jackson. It is supremacy to dispute that.
OTOH, it is not really "judicial supremacy" without more for the courts to set forth rules with precedential weight. We probably do need more pushback mechanisms, a way to see "if they really mean it." See the intro here for a taste. His Ninth Amendment article from the 1960s was in a collection edited by Randy Barnett and he had a very well phrased paragraph in it on the limits of using history alone to decide constitutional questions. Quite fitting for these times.
Mapp v. Ohio can be cited again. The state supreme court there struck down the possession statute at issue there ... well a majority of the justices did, but not the supermajority necessary under the state constitution. Is a 6-3 rule a good idea? Or the Canada practice for some matters where a supermajority of Parliament can overrule? Also, there is usually a more restrained way to decide such as in the recent gun case, where it could have been sent back for trial, or the abortion case -- the Roberts route.
I am quite sympathetic to all of these matters in some form. I specifically think the "YOLO" tactics of the Barrett Court troubling.
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In other words: Sitting Supreme Court justices have prayed together with evangelical leaders whose bosses were bringing cases and arguments before the high court.
Ethics: A Rolling Stone article flags some involvement with religious leaders and justices, overlapping with those who had business in front of the Court. The article provides some interesting details though ethics experts might dispute in what cases was a line clearly crossed. It does add more fuel to the overall argument that there should be a binding ethics code.
The test then will again be how much bite will it have. Will justices truly take it seriously? Will there be real efforts, including by some official process and consistent congressional oversight (helped by press coverage and so on), to put the justices to the test? Again, "judicial supremacy" is a matter of line drawing here too, including self-restraint backed up.
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Since the justices (and the rest) went off for their summer recess, I have not seen any news regarding their actions or official acts. Two executions are scheduled this month, so perhaps, we will see something there before the summer order lists begin. And, there is always a chance something will pop up, minimal or otherwise. I will keep an eye out.
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