This is a "comment" from me, J. Fallows. Back in the olden days of blogging, I would run extensive "reader-mail" threads. I will probably re-launch such threads here. For a moment, here is a "reader mail" installment inserted as a comment.
The message below came from a person who is a graduate of the same law school as Clarence Thomas, Bret Kavanaugh, Samuel Alito, and Sonya Sotomayor. Like all of them, this person has been a senior Senate-confirmed government official, exercising significant power; people would recognize the name. Unlike Clarence Thomas and other fellow Yale Law grads, this person lacks life tenure.
I'll helpfully narrow it down: This is not Hillary Clinton.
Here is this person's contribution:
"The key is to delegitimize the Court, to take it down many notches.
"Packing it or reducing length of terms are ways to rebalance and then still use it to create (out of thin air say the Rs) and enforce rights. This is missing the point.
"We want to reduce the power of the Court to define how we live and how we organize with law the systems of power and entrenched wealth. So it's much more important, e.g., that the Court have an ethics code than that it have term limits, which of course are a good idea.
"It's much more important that the Court have reduced jurisdiction and be generally in disrepute than that its current members only (!!) get to serve another eighteen years."
___
I think the "in disrepute" part is taking care of itself, thanks significantly to the Thomas family. The argument about broader challenge to the court's hyper-elevated status is something I hadn't thought about so clearly; I appreciate my correspondent laying it out this way.
In the "coulda been a contender" spirit, I once was planning to attend this same law school. Better all around that I didn't, and that people like my correspondent did.
I am not sure I read this right, Jim: do you and your correspondent hold the Court "in disrepute" in general or just in its current configuration (and how it got there...)? I believe it is the latter, so the broader question is whether you and/or your correspondent believe the purview of the Court should be limited in general terms. Does Marbury-v-Madison have any basis for reinterpretation? For that matter, has any decision of the Court ever been rejected or ignored by the Congress and/or the Executive branch (especially with public concertation)?
Let me just preface this by saying I am a liberal. I would like to be a progressive but realize that we have to live and work through the center and change necessarily and usually is slow. And I’m fine with that. I have been very resistant to the idea of court expansion but I am no longer. After these last few USSC decisions, I do not hold any hope of this court exercising any restraint. I do and have viewed this current court as a bastardization of a corrupt Mitch McConnell technical ploy which far exceeded any reasonable bounds of normalcy. Despite that viewpoint I was against court expansion for political reasons but Dobbs and the EPA decision have crushed any hope of a workable course/corruption correction. In my opinion, yes this is a political action taken on a body which is supposed to be the most apolitical, but it is truly within the legislative directives of Congress and would be an appropriate and necessary use of legislative discretion to expand the USSC. I would never have considered this had it not been for the total lack of decorum and normalcy on the Merrick Garland nomination which truly was an abomination.
All that being said about political necessity, it definitely can be a great opportunity to re-energize the checks and balances are system requires in an overall plan to modernize the transparency, accountability and sensible fiscal and efficient operations of the court. I applaud your bipartisan efforts and hope you realize that there are liberals out there who accept restraint and limits. But democracy is a delicate pendulum and right now, it’s conservatives who are putting not just their thumbs on the scales but their whole leveraged fists and the delicate mechanisms of democracy are quickly, and I fear soon irreparably, failing.
PS - And Citizen’s United has to go. Besides from the whole blacks and women thing not being considered needing representation by the founding fathers, my cursory US history and ideology background is “one man, one vote.” And a corporation, PAC and foreign business or government should not have any say in our elections or legislative process let alone “dark money.”
I’m so glad I was introduced to you by @kairyssdall. I follow many more conservatives than liberals, whether they were never Trumpers or eventually saw the light because they obviously are able to put country over party. I don’t need to live in an echo chamber by following and listening to liberals alone. I already know the left party line. I need to understand how to get to a workable center again and get back to that pendulum where for ~8 yrs policy went a little more your way and then via election the pendulum swung back for ~8 years of policy towards my leanings. I think dark money has totally corrupted the idea of making progress by working through the center and exercising tolerance. It’s winner takes all and the winning is bought not elected. This is catastrophic. I’m a pretty optimistic person but cannot remember such a dysfunctional time in legislating and it has now carried over to the courts. When people/media blame Biden for not breaching the division it infuriates me. No one person can breach the chasm created by these two other branches of government. It just feeds the “we need to win at all costs” frenzy. I am quite fearful. When Magats would say “if you don’t like it leave” I would get my cackles up and say “no, this is my country too.” But I don’t know if we can achieve this if more of the right does not wake up. We need a hard reset.
Well helpful along with Ezra Klein's podcast with Larry Fisher where they discuss that we have not always viewed the Court as such an all-determining, Olympian institution.
with apologies for long length of this posting, hard to know where to edit. "I didn't have time to write a short note so I wrote a long one." Mark Twain
Thank you for the very interesting and informative article !
"History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians"
In September 2021, the American Historical Association and the Organization of American Historians submitted an amicus curiae brief to the US Supreme Court presenting the relevant history to the Dobbs v. Jackson Women’s Health Organization case. We are dismayed that the court declined to take seriously the historical claims of our brief. Instead, the court adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years. The opinion inadequately represents the history of the common law, the significance of quickening in state law and practice in the United States, and the 19th-century forces that turned early abortion into a crime.
Historians might note that the court’s majority opinion refers to “history” 67 times, claiming that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” Our brief shows plentiful evidence, however, of the long legal tradition, extending from the common law to the mid-1800s (and far longer in some American states, including Mississippi), of tolerating termination of pregnancy before occurrence of “quickening,” the time when a woman first felt fetal movement. The majority of the court dismisses that reality because it was eventually—although quite gradually—superseded by criminalization. In so doing the court denies the strong presence in US “history and traditions” at least from the Revolution to the Civil War of women’s ability to terminate pregnancy before the third to fourth month without intervention by the state.
These misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future. The court’s decision erodes fundamental rights and has the potential to exacerbate historic injustices and deepen inequalities in our country. We expect that historians will continue to correct the court’s misinterpretation about the history of legalized abortion in the US in their own research, teaching, and public speaking, while also addressing the multifaceted dilemmas presented by this decision.
The OAH and AHA consider it imperative that historical evidence and argument be presented according to high standards of historical scholarship. The court’s majority opinion in Dobbs v. Jackson does not meet those standards and has therefore established a flawed and troubling precedent.
The following organizations have signed onto this statement:
American Society for Environmental History; American Society for Theatre Research; African American Intellectual History Society; Association for the Study of African American Life and History; Berkshire Conference of Women Historians; Business History Conference ; College Art Association; German Studies Association; Immigration and Ethnic History Society; National Women’s Studies Association; Radical History Review ; Shakespeare Association of America; Society for the Study of Early Modern Women and Gender ; Society for US Intellectual History; Urban History Association; Western History Association
Yes, thank you, I thought that statement from basically all reputable American historians was important.
As I mentioned in a previous piece, the Alito / Thomas / Kavanaugh delves into "history" remind me of what I would do as a member of the Redlands High School debate team. You'd find some fact or anecdote that you thought fit the case you wanted to make, and you'd plug it in. The last thing you'd do is to go to someone whose specialty was understanding the complications and contradictions of these historical patterns.
You were making a case, on a high school debate team! And that is the spirit (and nuance) that seems to have been applied here.
Looking forward to more of your insights into the current overheated state of American politics. It's not like "we have all been here before" (song lyrics) or anything like that!
plus ça change, plus c'est la même chose:
"An epigram by Jean-Baptiste Alphonse Karr in the January 1849 issue of his journal Les Guêpes (“The Wasps”). Literally, “the more it changes, the more it’s the same thing” wiktionary
"Déjà Vu"
Crosby Stills Nash and Young
One Two Three Four
If I had ever been here before
I would probably know just what to do
Don't you?
If I had ever been here before on another time around the wheel
I would probably know just how to deal
With all of you
And I feel
Like I've been here before
Feel
Like I've been here before
And you know it makes me wonder
What's going on under the ground, hmmm
Do you know? Don't you wonder?
What's going on down under you
We have all been here before, we have all been here before
We have all been here before, we have all been here before
We have all been here before, we have all been here before
Article 3, Section 1 of the Constitution says "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." In other words, lifetime tenure. Whether this means lifetime tenure in the specific office they hold, or as qua judges -- and that therefore a Justice after 18 years could be moved, say, to a court of appeals -- is not clear to me. Given that ambiguity, term limits would have to approved by the interpreter of the Constitution, aka . . . the Supreme Court.
Yes — I think many people have mis-interpreted that Article 3 part to mean that people have a lifetime claim to active seats on the Supreme Court. The premise of many of the reform movements is that appointees can have lifetime salaries and jobs, as judges, as opposed to specific seats. As you note, it's gray-zone — but given the routine practice of all other federal judges moving to "senior status," the reformers are arguing that something similar should apply to the supreme court.
This is a "comment" from me, J. Fallows. Back in the olden days of blogging, I would run extensive "reader-mail" threads. I will probably re-launch such threads here. For a moment, here is a "reader mail" installment inserted as a comment.
The message below came from a person who is a graduate of the same law school as Clarence Thomas, Bret Kavanaugh, Samuel Alito, and Sonya Sotomayor. Like all of them, this person has been a senior Senate-confirmed government official, exercising significant power; people would recognize the name. Unlike Clarence Thomas and other fellow Yale Law grads, this person lacks life tenure.
I'll helpfully narrow it down: This is not Hillary Clinton.
Here is this person's contribution:
"The key is to delegitimize the Court, to take it down many notches.
"Packing it or reducing length of terms are ways to rebalance and then still use it to create (out of thin air say the Rs) and enforce rights. This is missing the point.
"We want to reduce the power of the Court to define how we live and how we organize with law the systems of power and entrenched wealth. So it's much more important, e.g., that the Court have an ethics code than that it have term limits, which of course are a good idea.
"It's much more important that the Court have reduced jurisdiction and be generally in disrepute than that its current members only (!!) get to serve another eighteen years."
___
I think the "in disrepute" part is taking care of itself, thanks significantly to the Thomas family. The argument about broader challenge to the court's hyper-elevated status is something I hadn't thought about so clearly; I appreciate my correspondent laying it out this way.
In the "coulda been a contender" spirit, I once was planning to attend this same law school. Better all around that I didn't, and that people like my correspondent did.
I am not sure I read this right, Jim: do you and your correspondent hold the Court "in disrepute" in general or just in its current configuration (and how it got there...)? I believe it is the latter, so the broader question is whether you and/or your correspondent believe the purview of the Court should be limited in general terms. Does Marbury-v-Madison have any basis for reinterpretation? For that matter, has any decision of the Court ever been rejected or ignored by the Congress and/or the Executive branch (especially with public concertation)?
Let me just preface this by saying I am a liberal. I would like to be a progressive but realize that we have to live and work through the center and change necessarily and usually is slow. And I’m fine with that. I have been very resistant to the idea of court expansion but I am no longer. After these last few USSC decisions, I do not hold any hope of this court exercising any restraint. I do and have viewed this current court as a bastardization of a corrupt Mitch McConnell technical ploy which far exceeded any reasonable bounds of normalcy. Despite that viewpoint I was against court expansion for political reasons but Dobbs and the EPA decision have crushed any hope of a workable course/corruption correction. In my opinion, yes this is a political action taken on a body which is supposed to be the most apolitical, but it is truly within the legislative directives of Congress and would be an appropriate and necessary use of legislative discretion to expand the USSC. I would never have considered this had it not been for the total lack of decorum and normalcy on the Merrick Garland nomination which truly was an abomination.
All that being said about political necessity, it definitely can be a great opportunity to re-energize the checks and balances are system requires in an overall plan to modernize the transparency, accountability and sensible fiscal and efficient operations of the court. I applaud your bipartisan efforts and hope you realize that there are liberals out there who accept restraint and limits. But democracy is a delicate pendulum and right now, it’s conservatives who are putting not just their thumbs on the scales but their whole leveraged fists and the delicate mechanisms of democracy are quickly, and I fear soon irreparably, failing.
PS - And Citizen’s United has to go. Besides from the whole blacks and women thing not being considered needing representation by the founding fathers, my cursory US history and ideology background is “one man, one vote.” And a corporation, PAC and foreign business or government should not have any say in our elections or legislative process let alone “dark money.”
Thanks very much for laying out the chain of logic here. It is parallel to what I have gone through myself.
I’m so glad I was introduced to you by @kairyssdall. I follow many more conservatives than liberals, whether they were never Trumpers or eventually saw the light because they obviously are able to put country over party. I don’t need to live in an echo chamber by following and listening to liberals alone. I already know the left party line. I need to understand how to get to a workable center again and get back to that pendulum where for ~8 yrs policy went a little more your way and then via election the pendulum swung back for ~8 years of policy towards my leanings. I think dark money has totally corrupted the idea of making progress by working through the center and exercising tolerance. It’s winner takes all and the winning is bought not elected. This is catastrophic. I’m a pretty optimistic person but cannot remember such a dysfunctional time in legislating and it has now carried over to the courts. When people/media blame Biden for not breaching the division it infuriates me. No one person can breach the chasm created by these two other branches of government. It just feeds the “we need to win at all costs” frenzy. I am quite fearful. When Magats would say “if you don’t like it leave” I would get my cackles up and say “no, this is my country too.” But I don’t know if we can achieve this if more of the right does not wake up. We need a hard reset.
Yes. I have no "big answer," but I know what you mean and agree.
Well helpful along with Ezra Klein's podcast with Larry Fisher where they discuss that we have not always viewed the Court as such an all-determining, Olympian institution.
Thank you.
with apologies for long length of this posting, hard to know where to edit. "I didn't have time to write a short note so I wrote a long one." Mark Twain
Thank you for the very interesting and informative article !
"History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians"
https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement(july-2022)
In September 2021, the American Historical Association and the Organization of American Historians submitted an amicus curiae brief to the US Supreme Court presenting the relevant history to the Dobbs v. Jackson Women’s Health Organization case. We are dismayed that the court declined to take seriously the historical claims of our brief. Instead, the court adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years. The opinion inadequately represents the history of the common law, the significance of quickening in state law and practice in the United States, and the 19th-century forces that turned early abortion into a crime.
Historians might note that the court’s majority opinion refers to “history” 67 times, claiming that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” Our brief shows plentiful evidence, however, of the long legal tradition, extending from the common law to the mid-1800s (and far longer in some American states, including Mississippi), of tolerating termination of pregnancy before occurrence of “quickening,” the time when a woman first felt fetal movement. The majority of the court dismisses that reality because it was eventually—although quite gradually—superseded by criminalization. In so doing the court denies the strong presence in US “history and traditions” at least from the Revolution to the Civil War of women’s ability to terminate pregnancy before the third to fourth month without intervention by the state.
These misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future. The court’s decision erodes fundamental rights and has the potential to exacerbate historic injustices and deepen inequalities in our country. We expect that historians will continue to correct the court’s misinterpretation about the history of legalized abortion in the US in their own research, teaching, and public speaking, while also addressing the multifaceted dilemmas presented by this decision.
The OAH and AHA consider it imperative that historical evidence and argument be presented according to high standards of historical scholarship. The court’s majority opinion in Dobbs v. Jackson does not meet those standards and has therefore established a flawed and troubling precedent.
The following organizations have signed onto this statement:
American Society for Environmental History; American Society for Theatre Research; African American Intellectual History Society; Association for the Study of African American Life and History; Berkshire Conference of Women Historians; Business History Conference ; College Art Association; German Studies Association; Immigration and Ethnic History Society; National Women’s Studies Association; Radical History Review ; Shakespeare Association of America; Society for the Study of Early Modern Women and Gender ; Society for US Intellectual History; Urban History Association; Western History Association
Yes, thank you, I thought that statement from basically all reputable American historians was important.
As I mentioned in a previous piece, the Alito / Thomas / Kavanaugh delves into "history" remind me of what I would do as a member of the Redlands High School debate team. You'd find some fact or anecdote that you thought fit the case you wanted to make, and you'd plug it in. The last thing you'd do is to go to someone whose specialty was understanding the complications and contradictions of these historical patterns.
You were making a case, on a high school debate team! And that is the spirit (and nuance) that seems to have been applied here.
Looking forward to more of your insights into the current overheated state of American politics. It's not like "we have all been here before" (song lyrics) or anything like that!
plus ça change, plus c'est la même chose:
"An epigram by Jean-Baptiste Alphonse Karr in the January 1849 issue of his journal Les Guêpes (“The Wasps”). Literally, “the more it changes, the more it’s the same thing” wiktionary
"Déjà Vu"
Crosby Stills Nash and Young
One Two Three Four
If I had ever been here before
I would probably know just what to do
Don't you?
If I had ever been here before on another time around the wheel
I would probably know just how to deal
With all of you
And I feel
Like I've been here before
Feel
Like I've been here before
And you know it makes me wonder
What's going on under the ground, hmmm
Do you know? Don't you wonder?
What's going on down under you
We have all been here before, we have all been here before
We have all been here before, we have all been here before
We have all been here before, we have all been here before
CSN "The Acoustic Concert" (Track 1) 1991
https://www.youtube.com/watch?v=rg0sc7pCqC8
(great rendition of the song, Crosby Stills & Nash live)
Article 3, Section 1 of the Constitution says "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." In other words, lifetime tenure. Whether this means lifetime tenure in the specific office they hold, or as qua judges -- and that therefore a Justice after 18 years could be moved, say, to a court of appeals -- is not clear to me. Given that ambiguity, term limits would have to approved by the interpreter of the Constitution, aka . . . the Supreme Court.
That would be interesting.
Yes — I think many people have mis-interpreted that Article 3 part to mean that people have a lifetime claim to active seats on the Supreme Court. The premise of many of the reform movements is that appointees can have lifetime salaries and jobs, as judges, as opposed to specific seats. As you note, it's gray-zone — but given the routine practice of all other federal judges moving to "senior status," the reformers are arguing that something similar should apply to the supreme court.