Reforming The Court

Recent disclosures ranging from ethical improprieties to clear corruption have lent urgency to longstanding calls to reform the Supreme Court.

Before those disclosures, most of the lawyers and scholars advocating for such reforms did so on the basis of work product–including the dwindling number of decisions the Court issues annually.

Even before the recent disclosures, legal theorists were concerned with the Court’s loss of democratic legitimacy. It isn’t just the appalling shenanigans of Mitch McConnell; Neil Gorsuch was the first Supreme Court justice in American history to be nominated by a president who had lost the popular vote and confirmed by senators representing less than half of the country. Brett Kavanaugh was second, and Amy Coney Barrett was third. 

 The subsequent evidence of Thomas’ and Alito’s corrupt behavior has been especially unsettling.

I used to defend lifetime appointments to the federal judiciary to my students, pointing out that security shielded jurists from political pressure. But  justices live a lot longer than they used to, and– as my lawyer son recently pointed out– the security afforded by those lifetime appointments also provides an incentive to ignore the rules. With a closely divided Congress, and in the absence of the enforceable ethical codes that bind lower-court judges, they are effectively shielded from consequences. As a practical matter, they’re above the law.  

It’s time to consider reforms.

An article by the Brennan Center, published just after the leak of Dobbs suggested several. The article began by describing the far-right Federalist Society’s decades’ long, successful effort to capture the Court.

Beginning in the 1970s, corporate interests wary of 1960s socio-political movements developed and funded comprehensive infrastructure to advance a far-right agenda, focusing on the judiciary as an instrument for social, economic, and political change. A crucial component of the plan to push back against left-leaning legal successes was the organization and mobilization of conservative lawyers and judges who could ensure that corporate America’s preferred socioeconomic and political order was upheld in the courts. It is in this ecosystem that the Federalist Society emerged and built an empire around shepherding future leaders of the conservative legal movement into judgeships. All six justices appointed by Republican presidents are current or former Federalist Society members.

Some scholars recommended reforms that would constrain the Supreme Court’s ability to invalidate certain types of legislation. Others would regularize Supreme Court appointments and require periodic judicial turnover.  Still others would expand the Court.

One of the most popular suggestions would impose term limits–terms long enough to insulate jurists from political passions–18 years is popular– but short enough to avoid the negatives of lifetime tenure.

An article in Politico argued that a proposal to impose term limits could generate bipartisan support.

The most common version of this reform contemplates justices serving nonrenewable 18-year terms, staggered so that one term ends every two years. This would mean that presidents would get to nominate new justices in the first and third years of their own administrations. Retirements and nominations would occur like clockwork. The result would be a court whose membership, at any given time, would reflect the selections of the past 4 1/2 presidential administrations.

There is a significant hurdle to overcome.

Because Article 3 of the Constitution confers life tenure upon all federal judges, term limits would likely require a constitutional amendment. Yes, constitutional amendments are hard to enact. We have not amended our Constitution since 1992, and we have done so only once in the past half-century. But there is reason — even in these politically polarized times — to believe that constitutional reform is possible.

As the essay from the Brennan Center noted, however. court reform movements have a long history at the state and federal level – and have often seemed impossible until changes in the political environment made them all but inevitable.

And as Politico reported,

What is more, almost every state in the union imposes term limits on its state supreme court justices, a mandatory retirement age, or both. Only Rhode Island has a system of life tenure akin to the federal model. It should come as no surprise, therefore, that when the National Constitution Center held an exercise in 2020 for drafting new constitutions, both the conservative and progressive teams adopted 18-year limits.

It is abundantly clear that we have reached a crisis point. The current court has issued a string of decisions that are not just wildly unpopular, but at odds with decades of precedent.  it has increased its misuse of the shadow docket, and all but declared war on the agencies of the administrative state. Worst of all, sitting Justices have engaged in activities that range from demonstrably corrupt (Thomas, Alito) to ethically questionable (Roberts, Gorsuch, Barrett, Sotomayor).

It’s time for substantial reforms.

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Arrogance Is Never Having To Say “Sorry”

Linda Greenhouse is one of my favorite Supreme Court reporters, and she recently published a commentary in the New York Times, titled “Is There Any Twinge Of Regret Among Anti-Abortion Justices?”

Marking the one-year anniversary of the decision in Dobbs, Greenhouse noted that  the decision has propelled a crisis in reproductive health care that is “acute and growing,” leading to alarming consequences.

Greenhouse first shared the history of another case that had generated “alarming consequences”–consequences that, in that case, led to a speedy reversal.

Because Jehovah’s Witnesses believe that saluting the flag or reciting the Pledge of Allegiance amounts to worshiping secular authority, they prohibit their school-age children from engaging in the practice. In 1940, with war raging in Europe and patriotic fervor rising at home, the Supreme Court ruled that the Constitution provided no religious exemption from what many public schools deemed an essential civic duty. The decision upheld a Pennsylvania school district’s expulsion of a Jehovah’s Witness brother and sister. A single member of the court dissented.

A mere three years later, even though the United States itself was now at war, the court reversed itself. In a new flag-salute case from West Virginia, three members of the original majority switched sides and two justices who had joined the court since 1940 voted with them. One of those two, Robert Jackson, wrote the new majority opinion, strategically avoiding the contested question of religion in favor of an eloquent defense of free speech.

“Compulsory unification of opinion achieves only the unanimity of the graveyard,” he wrote in West Virginia State Board of Education v. Barnette. 

The first decision, in Minersville School District v. Gobitis, had unleashed a wave of violence against Jehovah’s Witnesses: in the wake of a ruling that many saw as evidence that Witnesses were anti-American, mobs attacked individuals and destroyed their churches. Some 2,000 Witness children were thrown out of school, and some of their parents were criminally prosecuted.

Greenhouse then  enumerated some of the dire medical consequences of Dobbs, and then asked her question:

A year after sowing so much chaos and misery, are any of the five members in Justice Samuel Alito’s Dobbs majority sorry? Even a little? I’m not so naïve as to think there is even a slim chance they would reverse themselves. I just wonder whether they feel even a twinge of regret.

As she points out, the immense harm to women couldn’t have come as a surprise. “Valuing fetal life over the lives of women and girls was no doubt a feature, not a bug, in the majority’s view; that was, after all, the point of Dobbs.”

Greenhouse then proceeds to answer her own question, saying she doesn’t think the Dobbs Justices are sorry. As she notes, a difference between Barnette and Dobbs is that the justices who changed their minds after Gobitis were motivated by facts, not by ideology.  These Justices were chosen because facts would not sway them: Trump announced during his presidential campaign that his Supreme Court appointees would overturn Roe, and all three of his nominees– Gorsuch, Kavanaugh and Barrett– did just that..

Although Greenhouse doesn’t explore the psyches of the anti-Roe justices, Jesse Wegman took a long, hard look at the author of the convoluted decision in Dobbs,  focusing on the recent disclosures of Alito’s unethical behaviors. Wegman’s analysis of Alito’s personality and character–especially his arrogance– are equally applicable to other examples of the Justice’s disdain for settled constitutional analysis.

Wegman points to Alito’s decision to “devote time and energy to a newspaper essay defending himself against charges of ethical and legal violations that had not yet been published”–an essay that “epitomizes the bitterness and superciliousness that he has demonstrated in regular doses throughout his years on the Supreme Court.

Most judges, whether by temperament or fidelity, avoid the spotlight. They prefer to follow rules and let their opinions do the talking. That has never been Justice Alito’s way. For most of his 17 years on the court, he has appeared to relish playing the role of bare-knuckled partisan soldier, standing athwart history in loyal service to a vengeful, theocratic right-wing movement that elevates religious liberty for some over basic freedoms for all.

Wegman notes that one reason public trust in the court is in free fall is demonstrated by Justice Alito’s “smug, defensive reaction” to criticism.

The moral of this story is not that the highest court in the land should issue decisions consistent with public opinion. As legal scholars often note, the Bill of Rights is counter-majoritarian. The moral is that –in the absence of compelling evidence (a la Barnette)–Justices should respect precedent, and resist confusing their idiosyncratic, psuedo-religious commitments with constitutional principles.

Tune in tomorrow for the second lesson– the need for Supreme Court reforms.

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What Is Government For?

As readers of this blog know, I spent 21+ years teaching Law and Public Policy, mostly to students intending to go into either public management or the nonprofit sector. The faculty of our school was heavily engaged in imparting skills–budgeting, planning, human resource management, policy analysis.. But my classes tended to be different, because these practical subjects didn’t emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. 

The great questions of political theory involve the nature of government. What should government do? What actions by the state are legitimate? What is justice? What is public virtue? 

The American experiment was heavily influenced by the philosophy of the Enlightenment and emerging theories about the proper role of the state, especially the principle that Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

The primary role of government so conceived is to prevent some citizens from harming others. (Granted, there are inevitable arguments about what constitutes harm to others, and what degree of harm is needed to justify governmental intervention.) 

The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal. What we read, whether we pray, our politics and beliefs and life goals are matters for individual decision.

It is that basic American principle of governance that is now at issue.

The decision in Dobbs wasn’t simply about abortion; it attacked a jurisprudence that had become increasingly protective of maintaining that line between individual rights and the legitimate exercise of government authority.

What too many Americans fail to understand is that the question posed by Dobbs isn’t whether a woman should or should not abort. It’s also whether citizen A should be able to marry someone of the same gender, or whether citizen B should bow her head and participate in a public prayer.

The issue is: who gets to make such decisions?

We are properly concerned these days about the functioning of democracy, and whether our lawmakers are reflecting the will of their constituents when they vote on the numerous matters that government must decide. But the arguably radical Justices on today’s Supreme Court have raised a more fundamental issue, because the Justices are authorizing government to legislate matters that government in our system is not supposed to decide.

The Bill of Rights draws a line between state power and individual rights. Legislators don’t get to vote on your fundamental rights: to free speech,  to pray to the God of your choice (or not), to read books of your own choosing, to be free of arbitrary searches and seizures, to cast votes in elections…

Even when lawmakers are reflecting the will of the majority, in our constitutional system they don’t get to deprive people of fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that in a free society, certain decisions are not properly made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

As I’ve argued before, the ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into all aspects of our private lives. Its “reasoning” would allow other fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that an individual’s right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by government is no different from giving lawmakers the right to dictate my choice of reading material, or your choice of religion.

The issue isn’t what book you choose–it’s your right to choose it. It isn’t whether you’ll marry person X or Y, it’s your right to choose your marriage partner. And it isn’t whether you abort or give birth–it’s about who has the right to make that decision.

Government paves streets, issues currency, imposes taxes…it has plenty to do without upending America’s foundational philosophy.

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Shaming The Name

I guess it’s time to talk about RFK, Jr.

I met Junior once, many years ago. He’d come to Indianapolis to speak at a dinner for an environmental group. At the time, he was known for his work to clean up the Hudson River. He sat at our table and played footsie with an attractive woman at the table.  Given what we now know about JFK, I  just assumed lechery ran in the family.

These days, his behaviors are far more bizarre, and his quixotic entry into the Presidential sweepstakes has elicited commentary from reporters who would otherwise ignore a crank candidate.

Allow me to share some of that recent coverage.

The New Republic reports that Junior is sharing the podium with Trump, DeSantis and Nikki Haley at an event sponsored by Moms for Liberty, a group known for book-banning, and attacks on teachers and  LGBTQ citizens, among other things.

Maybe he’s running on the wrong ticket….

There have been multiple reports that his candidacy is being promoted by rich, white, conspiracy-pushing figures who have a media presence.  Elon Musk, for example, is evidently using Twitter’s algorithms to advance Junior’s anti-vaccine agenda.

Josh Marshall of Talking Points Memo has pointed out that RFK Jr.’s “top backers are Steve Bannon, Mike Flynn, Roger Stone. He’s a creation of the world of MAGA.”

I knew he was a big anti-vax guy. But seeing some of his recent stuff, I didn’t grasp how far off the trail he’s gone. He’s basically on board with all the conspiracy theories that animate MAGA. Vaccine denial is only one of them. For the moment he’s putting up decent primary support numbers, overwhelmingly because of the name.

The website Popular Information criticized the “pernicious elite preoccupation” with Junior, pointing to the number of lives likely to be lost by his spread of discredited, manipulated and cherry-picked vaccine disinformation.

In the Washington Post, Eugene Robinson weighed in:

If Robert F. Kennedy Jr.’s name were Robert F. Smith Jr., he would be written off as an anti-vaccine nutjob. His pedigree is enough to make some Democrats give his presidential campaign a look — and they will find that he is indeed an anti-vaccine nutjob and that he often sounds a lot like a MAGA Republican.
 
This will come as a disappointment to the right-wing media outlets, unhinged conspiracy theorists and faux-libertarian billionaires who are doing their best to pretend Kennedy’s delusionary candidacy is a viable challenge to President Biden.

Robinson focuses largely on the lethal consequences of anti-vaccine conspiracy theories. He quotes Junior’s siblings, Kathleen Kennedy Townsend and Joseph P. Kennedy II, who wrote in a 2019 Politico article that Junior’s anti-vaccine ravings are “dangerous misinformation” that endanger public health and put children at risk.

Robinson also notes that the crazy doesn’t stop there.

For a while, he crusaded against 5G internet technology, claiming it damages human DNA and is a secret tool of mass surveillance. He has accused Microsoft co-founder Bill Gates of working to develop an “injectable chip” that would allow, once again, mass surveillance. These are sentiments more commonly expressed on a street corner, at loud volume, while wearing a tinfoil hat.

Kennedy has said he believes that the CIA was behind the 1963 assassination of his uncle President John F. Kennedy and that there is “very convincing” evidence the CIA was also responsible for the assassination of his father, Robert F. Kennedy, in 1968. (Back here in the real world, JFK was killed by Lee Harvey Oswald and RFK was killed by Sirhan Sirhan.) Asked by Rogan whether he, too, could be a target of CIA assassins, Kennedy said, “I gotta be careful. I’m aware of that, you know, I’m aware of that danger.” He added, “I take precautions.”

He also claims that “chemicals in the waters”  cause transgenderism…

In the same vein, in a NYT column, Bret Stephens wrote

Kennedy is a crank…. He has said the C.I.A. killed his uncle and possibly his father, that George W. Bush stole the 2004 election, and that Covid vaccines are a Bill Gates and Anthony Fauci self-enrichment scheme. He repeats Kremlin propaganda points, like the notion that the war in Ukraine is actually “a U.S. war against Russia.” He has nice things to say about Tucker Carlson.

There is much, much more, but probably the most pertinent point is the one made by Eugene Robinson: if this guy’s name was Robert F. Smith, Jr., he would be ignored as just another lunatic. It is only because he comes from a famous family, only because he has a pedigree, that he is currently a “useful idiot” for the MAGA supporters desperate to peel away the votes of naive Americans who might vote for the Kennedy name.

Which he shames.

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Hooray For Washington State

You don’t have to be a “leftist” or a socialist to support higher taxes for the very wealthy and obscenely rich, but the GOP remains steadfastly–even hysterically–opposed to proposals to tax those they misleadingly call “job creators.”

(Actually, jobs are created by increasing demand–if no one is buying your widgets, you aren’t going to hire more people to make more of them, which is why putting more money into the hands of the poorer folks who will spend it rather than hiding it in some tax haven, is what boosts employment. But I digress.)

A reader recently sent me a fascinating article about Washington State lawmaker’s decision to raise taxes on the state’s wealthiest residents.

The article began by quoting a 1933 Washington State lawmaker named Wesley Lloyd, who had proposed to  “bring up the poor and bring down the rich into the class of the average man, where all may find real happiness and where we may know a widespread national prosperity.”

It then noted that–over the ensuing dozen years or so–FDR’s New Deal had caused “unprecedented progress” toward greater equality. One measure that helped achieve that equality was  a 94 percent marginal tax rate on income over $200,000.

But Lloyd’s tax-the-rich spirit lives on, especially today in his home Washington State. Earlier this year, 19 of the state’s senators and 43 state reps introduced legislation that would fix a first-ever 1 percent annual tax on stocks, bonds, and other forms of “intangible personal property” worth over $250 million. The Evergreen State currently hosts over 700 grand fortunes that top this quarter-billion mark.

That legislation failed, but as the article noted,

that failure hasn’t left Washington’s deepest pockets feeling like celebrating. The reason? They’ve just become subject to another new tax, a measure that Seattle Times columnist Danny Westneat is describing as the state’s first-ever “wealth-related levy.”

The levy–a 7-percent tax on asset-sale profits over $250,000– has turned out to be a windfall for state coffers. Analysts had predicted that the tax would raise $440 million dollars. Instead, it has so far raised $849 million, almost double the take originally anticipated.

I hardly need point out that the mega-rich who paid a 7% tax on massive profits were hardly impoverished by them.

The Center for Budget and Policy Priorities–based in that other Washington–has been working to produce a package of tax reforms that would prioritize “equity and fairness; it  has pointed to the experience of Washington State.

The Center is now hoping to nudge state lawmakers nationwide further in that direction with a new online tool for developing “State Revenue Options for Advancing Equity and Prosperity.” State policymakers, the Center notes, don’t always understand “how much revenue different policies might raise, whether a tax will fall more on families with low incomes or people at the top.” The new Center tool aims to build that understanding.

Understanding, of course, only takes lawmakers so far. They still have to overcome the opposition of the richest among us to paying anything close to their fair tax share. Lawmakers can certainly do that overcoming — if enough of us push them. And if we do enough of that pushing, maybe our lawmakers will start sounding like Wesley Lloyd back when he proposed to limit the personal wealth of our super richest.

“I do not seek to destroy wealth or industry,” Lloyd told his fellow members of Congress, “but I do propose to place the burden of public expense and national development upon the shoulders of those best able to bear that burden and those who have profited most. I would have the strong help the weak rather than have the weak forever carrying the strong.”

There are seemingly two fundamental questions that all American lawmakers confront: what should government do and how should government pay for doing it? We aren’t doing very well answering either question.

This blog–among many others–tends to focus on the first question, because so many of our current government policies are arguably counter-productive (or, in the case of our ongoing culture wars, insane). But the second question is inextricably entwined with the first, because the way we decide to pay for the decisions we make has an enormous effect upon how (and whether) those chosen policies work as intended.

Do we want the strong to help the weak? Or do we want to deepen the already massive divide between the haves and have-nots? Do we want to build and maintain a physical and social infrastructure that serves all citizens, or do we want to see only to the comfort and prosperity of the fortunate few?

Wesley Lloyd was asking the right questions, and Washington State is (slowly, incrementally) moving toward the right answers.

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