Ezra Klein is a political nerd with a podcast. I get the idea he has some good ideas though at times the vibes coming from him bother me. I do not really want to listen to his podcast though it might be useful. His recent op-ed reaffirms this. It also shows that even after decades of dealing with things, I still just have to scream out how stupid certain things are.
The op-ed is a mix of good, bad, and oh so close. The op-ed starts on my good side by focusing on the presidential commission on the Supreme Court. It continues to be my opinion that it was a useful device, even if it was woefully underutilized. The idea it was just something to push things down the road and say you were "doing something" -- a typical reason for commissions -- is reaffirmed by how quickly it was forgotten.
But, the commission had value to examine the topic, inform, and serve as a agreed upon source of ideas for reform. There should have been more of an effort -- including by law professor types that just sneered at it while in various forms honoring more than one person on it -- to promote it and educate the public. It should have led to congressional hearings or something to examine the ideas, and push for change.
The op-ed suggests the report provides various ideas for the "reckoning." Yes. I have yet to read the think (I admit) since I want to read a hard copy. My repeated requests of the Biden Administration to send me a copy has not been answered, though once I received a form email in reply. The report is nearly three hundred pages long. Printing it out would cost a lot.
I take the problem with the current Supreme Court to be that there’s no reason to trust its judgment, and many reasons to mistrust it. The process for picking appointees is thoroughly politicized.
The first part is correct. The second part is missing something. Ditto the argument later that we have to "depoliticize" the Court. The process was always political as was the Court. You are not going to totally remove politics when the Constitution itself gives political branches the power to nominate/confirm. And, politics of some form will be on the Court.
The basic problem now is that it became so corrupted in an ideological fashion, leading to a problem of democratic legitimacy. From the 1950s to the 2000, there tended to be a true centrist wing on the Court. And, the nomination process was not so blatantly ideological on one side repeatedly. The idea of formalizing this (Eric Segall's split court assumes two parties with equal members) is raised by some reformists.
But you can’t fix the court by adding justices. You’re shifting the balance of power by contributing to the underlying problem: turning the court into an untrustworthy institution and setting off a cycle of reprisals with unknown consequences. If Democrats manage to pass a bill adding new justices, Republicans would match or exceed it as soon as they were restored to power, and on and on.
This part pissed me off since it is so tired. Why does adding justices -- supposedly to make up for "stolen seats" and so on -- "turn the court into an untrustworthy institution"? What is this verb tense? The Court is (deep breath) already untrustworthy. It is already packed. It is already unbalanced. And, ANY number of solutions can be "matched or exceeded" by Republicans.
The op-ed then goes into multiple paragraphs on the "easy" solution of term limits. How do you put them in place? I yet again say any law here will be prospective. So, when it the FUCK will this actually kick in with the current membership? We are supposed to just grin and bear it, including the trolls in place now (new and old), until the 2030s or something?
A minor problem here, at least, is that if the limits are 18 years, justices can still strategically retire or die in office. So, the new term limit law has to be carefully crafted. The op-ed also talks about setting up some mechanism if "two" justices' confirmations are delayed indefinitely. Yeah. There is at this time not a high likelihood a Democrat would even get two openings any time in the half-way immediate future.
The op-ed ends with a more "radical" idea of a "balanced bench." The ideas are interesting though to me pretty academic. But, hey, we need to think big. That is why more should have been done to use the commission as a platform for education and debate. And, the blame can be spread around here. It isn't just on Biden, who can't work alone here.
But, hey Ezra, where would this balanced bench come from? The discussion for instance cites one idea of a 15 person bench [which would be far from extreme given world standards; as an aside, we can have a constitutional court with a limited reach here] where 10 justices pick the other five. Again, it's academic discussion at this point, but it is interesting to think about. But, notice the Numbers.
You can not "fix" the Supreme Court MERELY -- let me repeat that for the back row -- MERELY by expanding the Court. I can be generous and take the op-ed as a whole to show understanding here. I am loathe to do this because he did not do it. He didn't say "critics say that you cannot obtain a reckoning with packing, and they are right! It can, however, be a part of the solution with other things." It is quite quite easy to say this.
I realize the limitations of the current reality. There simply is not the votes or will to expand the Court. The guy with superhero looking big white hair who "retorts" a lot can scream all he wants about how we need to expand the Supreme Court. Some things we need simply are not possible at the moment in the real world. Welcome to reality.
Nonetheless, I have reached a point where expansion of the Court does appear necessary for a true reckoning. It has to be long term part of the solution. Term limits are fine. I think there are important and long term will help some. It is insane to think Potter Stewart was some weirdo for retiring in his sixties when he was already on the Court for over twenty years. It makes sense to have term limits.
The same applies to ethical rules, televising the Supreme Court, and damn it already, let's have a full investigation of multiple members of the current Court (including how they got there -- a legal expert was on Stephanie Miller's show talking about all these tips made to the FBI during the Kavanaugh nomination that were not properly handled; okay! let's get a full report on that!). And, there are other things.
But, the very structure, including the numbers, of the Supreme Court has to be part of the reckoning. It is insane to have people sneer at court expansion, including assumed Republican tit-for-tat, when a basic reason for the demand is that they ALREADY FUCKING DID IT! The idea (simply not admitted out loud) that we have to grin and bear this, hoping while thieves keep are cars that we can fix car ownership in the future is outrageous. And, as I age ever so slowly, I can bear outrageous less and less.
Term limits alone are far from easy realistically to put into action. I referenced in my recent SCOTUS post the idea that if term limits are declared unconstitutional that court expansion can kick in. The reference underlines the reality that they are not "easy" even if there is a general acceptance of them. Sure, like there was long an acceptance of background checks for guns. At some point, that led to a limited gun reform law.
The reality regarding a "reckoning" is that there are various parts. The Supreme Court being YOLO (abortion, guns, EPA, etc.) is one part. A major instigation that shows more than one group that something has to be done. We have to connect this with Trump, since it a basic reason why we have the Court we have now. Orin Kerr types can bullshit that "both sides do it," but the process was illegitimate based on just constitutional norms.
There also has to be enough people in power to change things. We should have enough people NOW to get certain things into law, including ethics rules. So far, we got tweaks. For the hardball stuff, we need more than 50 senators and obviously we need Democratic control of the House. If that is the reality, a few Republicans might even go along. Again, on certain limited things, they already are there.
And, then you get to the true reckoning. The true reckoning includes major changes to the size and structure of the Court. (I might add here true pressure, including impeachment investigations as warranted.) The commission's report and others provide some ideas here, including even some ideas like a supermajority veto of certain judgments.
And, yes, the current 6-3 majority has to be addressed. I have no simple answers on how to get there. Like the constitutional convention, there just might have to be some sort of real compromise that helps to increase the chance of locking things into place. The "balanced" court idea is a possibility there. The expansion is not merely the only thing. It is not just that four justices will be added, resulting in a (the horror!) 7-6 Court (which is really the legitimate breakdown; make it 6-5 or whatever).
The "reckoning" is a long term effort to try to make the overall system fairer in the long term. I refuse to grin and bear the idea that the best we can do here is -- maybe -- set up a system that -- maybe -- will kick in years from here. Meanwhile, the current Court (supposedly mildly warned, and with ethics rules not allowing them to as blatantly have celebratory Federalist Society visits etc.) gets to continue to strip our rights etc.
If we are going to talk about this, let's talk about it with sense. To toss it out, expanding the House also is not a bad idea. Consider that the British Parliament has 650 members for a country with a population of under 70 million. This is not just about "packing" the House. Let's not be stupid.
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I later saw this piece by Saul Cornell, who is a good source for history of gun regulation in the United States.
A few people were annoyed at me online for arguing that there has been a historical right to own and (to some degree) carry firearms. Also, that a constant reference to the Second Amendment does not tell the whole story. Cornell is one major source of mine to split the baby (militia and personal ownership). And, there is a history of strong regulation.
Some rather not go there (perhaps of the "give an inch" school) and it's partially a result of so much emphasis on the Second Amendment. Actual text and history does not lead us into this direction. It is unfortunate there wasn't a Souter-type approach that granted a right to own a firearm (Breyer sorta did in Heller, but it seemed so weak as not to take seriously) mixed with a strong regulation mindset. No other liberal since him really went there, Kagan and Sotomayor not speaking on their own yet.
Okay, I'm basically repeating myself from past entries, but this might suggest the value of a truly balanced Court. The reason I came here to add this addendum is this portion of Cornell's SCOTUSBlog piece:
Distorting the past to further his ideological agenda has become a trademark feature of Thomas. What is more disheartening is that the court’s newest originalists, Justices Neil Gorsuch and Amy Coney Barrett, signed on to this historical charade. Despite protestations that they are not ideological warriors and political hacks, Gorsuch and Barrett missed an opportunity to prove that originalism can be applied in a rigorous and neutral manner. Apparently, that claim continues to a be a promise as yet unfilled.
The "dishearten" part ("to cause to lose hope, enthusiasm, or courage: to cause to lose spirit or morale") does seem a bit much. Did Saul Cornell really expect more? Or is he just being polite?
Good luck applying originalism "neutrally" -- this is some sort of snipe hunt. This isn't new ground for Gorsuch (see the administrative state), even if he seems somewhat consistent (Bostock, Native Americans, a few libertarian type opinions). And, even when he gets a good result, it seems oh too simple regarding how he got there.
(At some point, you might accept somewhat mythical language about principle that do not quite match reality. At least, it is somewhat a consistent thing, especially when a majority has to be crafted.)
And, we saw by Barrett's path to the Court a mix of hack and charade. She wouldn't be here if she was fully honest. And, once you try hard enough, it's hard to suddenly flip a switch. You basically accept your own b.s.
Still, I guess, this is a scholar's polite way of flagging a problem without fully calling justices hacks. Some don't like softening blows. I am okay with it to some degree.
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Thanks for your .02!