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.
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.”
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
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.
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.
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.”
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"
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
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.