‘Contempt of court’ takes on a whole new meaning. Clarence Thomas won't solve this problem, and John Roberts can't. It's time to bring rule of law to the law-deciders.
Mr Fallows,your choice of interests and subjects is so grounded on our current lives and delivered in such a well measured way. Thank you. In this essay, though, it is so satisfying to get a good dose of the old fire!!
I am considering doing a subscriber feature, "Thomas Time Capsule." The idea would be related to the Trump Time Capsule series I did in the Atlantic: chronicling very briefly, and in something like real time, what people were doing and saying, before anyone knew how it was going to all turn out. After 152 installments I talked about why I had done it, here: https://www.theatlantic.com/politics/archive/2016/11/on-the-future-of-the-time-capsules/622719/
It seems to me that we have crossed some kind of threshold today, April 16, with revelations that would mean trouble for most other people in most government jobs. But none of us knows how it is going to turn out.
If anyone sees this and has suggestions pro / con / otherwise, please let me know. Thanks!
New subscriber, first post to comments: I'm all-in on this idea. Your Trump time capsule was excellent, and very meaningful to me.
One of the problems with our broken MSM is how shortsighted it is, bouncing from one sensational issue to the next outrage. The media doesn't follow stories long term. So we don't get the big picture chronological unfolding of events, until someone writes a book.
To address Ed Goldstick's criticism - your Trump chronicle didn't impact the result - I say chronological narratives are persuasive. And over time the more people who are fully informed on an issue the likelier they are to back change. Lay on MacDuff...
I'm conflicted by your question, Jim: your chronicle of Trump's slimey rise to power was informative and powerful but somehow didn't impact the result. For my part I still do not understand how the likes of Senator Graham and others survived the phantasmagoric pivot they made during the primaries before the 2016 election...
... but I wrote this while watching Steven Colbert's monologue (on 04/17/23 at 11m24s in...) describe Harlan Crow's answer to this question: "Did he ever consider his friendship [with Thomas] as a ticket to quid pro quo?"... to which Crow apparently responded with this rhetorical spit in the eye of every reader: "Every single relationship - like a baby's relationship to his mom - has some kind of reciprocity".
So if you're inclined to invest the time and energy, have at it! On the other hand, you're going to need a bigger vault to store away all the additional miscreance that I expect will emerge over the months to come because one thing is certain: McConnell and Co. will not encourage Thomas to step down before the election in 18 months...
The GOP has gone so batshit crazy (the subject of Teri Kanefield's latest, I think -- looked at the title, haven't read it) that I think it's possible to hope that we'll sweep them into the Potomac.
Jim-This is a terrific review of this problem. I've not seen anything else quite like it in the major print media. It needs a wider distribution, and the NYT would serve its readers by publishing it as a guest article.
The proposed change with of each presidential term yielding 2 judges would add a greater degree of legitimacy to the Court--but only if the Electoral College vote can be made to reflect the popular vote.
BTW, I remember reading many years ago (as a grade schooler) about Sherman Adams and his vicuna coat. I wondered what the heck a vicuna coat was and why it got him in trouble.
I mentioned in the piece that in 2004 the US came within 60,000 Ohio votes of having the Electoral College flip the presidency in the Democrats' favor. Apart from all the other consequences, that would have meant a permanent change in how people talked about EC reforms.
Something similar could conceivably be true when it comes to the grim funeral-director's logic of appointing people to the Supreme Court. It would remove *such* a major distortion from presidential politics if every person coming into the White House knew there would be one Scotus slot to fill every two years. And it would remove the hinge-of-history effects of mistakes like RBG's.
Of course the gap between "this is a good idea" and "this will happen" is enormous. But *naming* an alternative or improvement is a step.
I took remember, as a grade schooler, asking my parents, "what is a vicuna? And why does it need a coat?"
Great post, Jim. So where do rational folks find leverage? Congress? The streets? Where are the candidates that push the reforms you describe? It's time for action before the inmates destroy all sanity in the asylum.
I am trying to think of the right answer to your question. And the honest response is ... .I just don't know. As I think I mentioned to someone earlier today, it's hard (at least for me) to absorb the reality that the only "solution" is permanent effort. Vote by vote, candidate by candidate, gerrymander by gerrymander, without any foreseeable "OK, things are fixed now" end in sight. This is of course the theme of many political speeches, from the earliest days until now. ("A republic, if you can keep it" etc. ) But the fact of democracy-as-endless struggle is one of those concepts, like the cosmos or numerical infinity, that can hit you hard.
This prospect also increases the appeal and importance of any specific steps that can make a difference. I've mentioned many times the American Academy report on 'Our Common Purpose' which has a lot of these practical steps. (eg, increasing the size of the House; nonpartisan redistricting commissions; and of course the 18-year Court terms). So at least these provide some focus for action and advocacy.
I am glad that an increasing number of Democratic senators are calling out today's Supreme Court for what it has become. (I am thinking of Sheldon Whitehouse at the moment.)
AND OF COURSE MY COLLEAGUES IN THE MEDIA, and how they frame these issues. But don't get me started.
There is for me a strong difference between disagree and disapprove. I certainly Disagree, vehemently, with Dobbs. I do not, however, disapprove of the decision. It is a ilegitimate decision. It was argued, written and handed down by a duly and legally* constituted Supreme Court. *Yes Mitch McConnell, I believe violated his oath of office in refusing to hold hearings on Merrick Garland. But Obama did nothing. He was a poor president in political talent. Lyndon Johnson would not have stood by and done nothing.
Yes, fair point about disagree-vs-disapprove. I understand your distinction about Dobbs.
For me, I both disagreed with it, and disapproved, for reasons you can probably guess without my enumerating. And on the main political point: It is certainly true that McConnell — guided by Leonard Leo, aided by Anthony Kennedy's conveniently timed retirement, aided all the more by RBG's catastrophic decision — worked the system to his advantage. To put it mildly. But I agree with you that the Dems of that era seemed not to put up an adequate fight.
(And on the other hand, *not even LBJ* could preserve Abe Fortas's seat, or ultimately keep Warren Burger from becoming chief justice instead. Of course LBJ had so many other things going on in that year. Even more than Obama did in his final year.)
You are right to bring up Fortas who went way back with Lyndon (Caro sheds great light and insight on that relationship). I'm not saying that if Obama or the Dems had worked to bring about a hearing that they would have succeeded...but to simply kvetch and do nothing is far from leadership. The notion of compromise and sausage making has been eroded by the triumph of identity politics and the belief in the certainty of one's cause. I am constantly reminded of Cromwell's plangent plea: "Is it therefore infallibly agreeable to the Word of God, all that you say? I beseech you, in the bowels of Christ, think it possible you may be mistaken."
One of the great pillars of this country is under threat and that is the necessity of democratic process to legitimacy. It is not a sufficient condition to grant that decisions are all 'correct' but it is a necessary condition, for our form of government. In fact I would argue the very foundation of this country as set down in the Declaration. BTW I found Juan William's Atlantic article on then Commissioner Thomas to be enlightening.
And, to skip to Juan W's article—I hadn't looked at it in a very long time. But considering everything that has come afterwards, it indeed is powerful. I am glad you read it.
Apr 15, 2023·edited Apr 15, 2023Liked by James Fallows
The Constitution requires the following of Supreme Court Justices:
1. that they be nominated by the President
2. that they be confirmed by the Senate
3. that they have life tenure
4. that they can only be removed by impeachment
What the Constitution does not address are:
1. the size of the Court
2. how the Senate confirms them.
18-year terms are constitutionally problematic, And guess who gets to decide whether or not it's constitutional?
The best solution would be for:
1. every president gets to nominate one new Justice at the beginning of every presidential term
2. they are confirmed unless 3/5 (or 2/3) of the Senate votes against them (unlike until a few years ago, when they needed 3/5 to be confirmed. And the Senate must vote on them. So - no more McConnell games about not taking up nominations or voting them down by the narrowest of margins.
3. the size of the Court varies (with a minimum number of perhaps 7 Justices and a judge from the DC Circuit appointed when the number of Justices would otherwise be even).
None of this would be remotely problematic in constitutional terms.
Giving each president one Justice per term would probably inflate the size of the Court to 15 or so over time. It would make the issue of strategic retirements virtually a non-issue, so it's less likely that Justices would stay forever or until they would be replaced by a President of the same party. It would make appointing Justices at a young age much less attractive.
And, most important, over time the Court would be appointed by Presidents of both parties in rough proportion to how well each party did in Presidential elections. Which, after all, is the point of having Justices appointed by elected Presidents.
The alternative would be to set a minimum age for appointment; say age 65 or so. At least then, Justices would be unlikely to stay on the Court for decades. And we wouldn't get young and unseasoned jurists on the SCOTUS bench.
I will sign on to your plan. (Or the 18-year / one-appointment-every-two-years alternative, from the American Academy and others. They make their case about why it fits the Constitution, here: https://www.amacad.org/ourcommonpurpose/recommendation-1-8 )
Several things I like about your proposal:
- The dynamic, organic scale of the Court.
- Of course eliminating "strategic retirements", and finding the youngest possible appointee
- I had *not* heard before, and love, the idea of **minimum** age requirements for appointees. It has all the virtues you suggest.
Well, it might not be. But that issue will be decided by the Supreme Court. And, given that 6 of them are there because of a long-term project to capture the Court for the Right, how do you think those six will choose to think about an idea that breaks their lock on the Court?
Apr 15, 2023·edited Apr 17, 2023Liked by James Fallows
I "LIKED" your post, Jim, and all the commentary thus far with a stinging pain reaching from my fingertips to my depths of my consicous mind given the terrible predicament in which we find ourselves as a society... "gyre of 21st century America", indeed!
I saw your reaction to the WSJ headline invoking the misguided boiling frog metaphor with regard to supposed Biden WH attacks on religious freedom, but further reflection led me to decide that their calomnie is, perhaps, a pitch perfect projection of their disinformation project that undermined the civic fiber of their populist cohort - their so-called Base. How else to describe the collective lobotomy of tens of millions of ordinary people under the malevolent influence of the likes of Limbaugh, Ailes, Murdoch, et al... not to mention the politicians who rode the waves of their vitriol for decades that began before Bush-v-Gore (and perhaps the discrete complacency from the depths of the establishment GOP is as much a sign of their embarrassment as well as an acknowledgement of their satisfaction with the "Ends" that justified these "Means"... or at least if any of them have a remnant of a truly "republican" conscience).
(And for anyone wondering about the connection between boiled-frogs and lobotomies, my late friend Michael Jones laid it all out here: https://www.theatlantic.com/technology/archive/2009/07/guest-post-wisdom-on-frogs/21789/ The short version is that frogs will indeed sit still in a slowly warming pot — but only if their brains have been removed. This version of the story may actually be more applicable to our plight.)
Apr 16, 2023·edited Apr 16, 2023Liked by James Fallows
There's a fascinating extra detail in that piece of research. Spineless frogs also sit passively while being slowly and gently boiled, even while their brain probably enables continued croaking.
I grew up with Brad Reynolds (1942-2019). So I spotted his name from time to time, and had a few friends (fortunately unindicted and not noticed) in the EOB during those years. Clarence Thomas was 100% correct, if only about that particular apparatchik.
the TLDR of this (but it is worth a full read) is that Thomas on the EEOC was in constant conflict with Reynolds, then an Asst AG, but also a close confidant of Ed Meese. Both Thomas and Reynolds opposed "equal opportunity" while being responsible for it, but for very different reasons.
(In the same context, you'll be relieved to know that I've slightly revised my description of US median age, to make it more precise. It *is* true that most of today's Americans were born in 1985 or later. (Media age is 38+). This by extension would mean that the first presidential election today's median-aged American could really remember is Clinton-v-GHWB in 1992. And, by further extension, the first presidential election in which a median-aged person could have cast a vote would be Kerry-v-GWB in 2004. I will trust you to let me know if the way it reads now does not match those details! )
The number of years old for those who would remember the '92 election is the same as for me during my first election--JFK versus Nixon. And boy do I remember that. My best friend that year (in which we lived in Seattle), was Ralphie, whose grandfather was a founder of Nordstrom's, and whose mother became an interior decorator for Ehrlichman, among others).
Both of my parents had been trained as economists, although my mother switched fields just short of getting a PhD in econ. Her econ mentor told her he'd give her one if she'd just tweak a paper she'd written for one of the major agencies in DC during a year she and my father had spent there. She declined, because she'd decided to switch fields.
One of my parents had told me about how Nixon had called Helen Gahagan Douglas a communist. One day my mother was driving, with me and Ralphie in the car when I said something to Ralphie that ended up a long term family story. "You know Ralphie," I said, "you really shouldn't vote for Nixon because he called that lady in California something like an economist." My mother got such a kick out of that story!
But I probably would have remembered anything that occupied my parents in a big way as early as age 4, and perhaps earlier. I remember Sputnik, which was launched when I was 4, because my father, a Soviet specialist, talked about it. And I remember Francis Gary Powers getting shot down when I was six, for the same reason. (I would repeatedly ask my father when he was coming home. I finally got closure on that after Bridge of Spies came out in the mid-'10s, which I thoroughly enjoyed for a host of reasons, including the closure.
The Kennedy-Nixon election is the first one I really remember. I love your recollection.
My parents were the world's most loving and outstanding people. They were in their early 30s at the time of that election, and they were still loyal Republicans, as they had been raised.
I still remember coming down stairs for school on the morning after the election, when the LA Times had the headline story that Kennedy had won. My (sainted) mother was in tears; America was going socialist.
Things changed a lot, in the years after that. My dad died just around the time of Obama's 2008 election, I was commuting back and forth from Beijing at the time to be with him. One of his last conscious moments was to see the TV forecasts that Obama was very likely to win. It was tremendously gratifying to him.
I much appreciate your reaction to my recollection. A lot of stuff was tough for my mother--her mother had MS, and was bedridden from when my mother was 9 until she died when my mother was 17. My mother got MS. But she got such joy and laughter from recounting my advice to Ralphie.
My parents came from democratic families. My mother grew up in Denver, where her family was considered "Jewish royalty". Her uncle, Philip Hornbein, a union lawyer, was de facto head of the Colorado Democratic Party for most of the first half of the previous century. He gave the speech at the '32 convention recommending an end to prohibition. (There was a restaurant where politicos from both parties met, and when he walked in, both Dems and Republicans would stand up.) His sister, my grandmother, was probably the first female Coloradan to get a PhD (labor relations, 1915). A cousin of my mother's was a prominent architect in Denver. And a Missouri cousin, now living in Estes Park, is one of two people to have ascended to Everest's summit via the West Ridge (1963).
My father's parents weren't particularly political. At UNC Chapel Hill, where he was an undergraduate, he fell in with a handful of left wingers, and befriended and got Sidney Rittenberg interested in left wing politics. (I'm guessing you know of Sidney, but if you don't, google him. He spent around 30 years in China, about a third of that as a higher up in Chinese propaganda, and half in solitary, in two different stints. He died a handful of years ago, at 98, but two of his four children work in China.
My parents favored Stevenson in 1960, but did back Kennedy after he was nominated, and always voted Democratic for president (They supported Stuart Hughes, a left winger, a family friend, and a grandson of Charles Evans Hughes, against Ted Kennedy in the latter's first election).
The three of us have basically the same politics. My sister is a Democratic activist in Virginia.
Life expectancy of the average white male in 1787, when the Constitution was written, was a little under 35 years old. No one writing Article III could have imagined the term lengths we see today among the Supremes. Eighteen-year terms, impose a code of ethics, expand the Court's size, yes to all of the above. None of it will fix the current problems but it would at least hand the kids an institution that has their back. It sure as hell doesn't have ours.
Yes, thanks. These actuarial details are interesting. I haven't looked into it recently, but I remember hearing that **once you survived childhood,** and once women survived childbirth, then the ones who were still around (and were of the upper class etc) had a reasonably long run. Benjamin Franklin went into his 80s. John Adams was 90 and Thomas Jefferson in his early 80s when, as we all know, they died on the same day, the 50th anniversary of signing the Declaration of Independence.
But, yes, "life tenure" meant something entirely different in the 1780s than it does now. And it has become such an endlessly cynical game, of choosing candidates as young as possible — Clarence Thomas at age 43! — and counting on them to hold on forever. Argh.
Agreed, but I would point out that none of those elder statesmen were average. They all made a good living which meant they ate well and one owned slaves who did all his physical work for him, and unquestionably all three had vast intellectual interests which would also keep them healthy at least mentally. (Interestingly, to me anyway, James Wilson, who according to Mr. Google wrote Article III, was only 56 when he died.)
Your analysis is accurate; unfortunately the prognosis is not good.
I recall reading an article in the early 1990's about Anita Hill's testimony. The point of the article was that not one member of Congress or law enforcement suggested charging Professor Hill with lying to Congress - a very serious offense. The reason was simple: few doubted that she was telling the truth. The goal in the committee wasn't to ascertain truth or fiction; the goal was to achieve a specific political end.
Thomas replacing Thurgood Marshall was as much a moral outrage as Amy Coney Barrett replacing Ruth Bader Ginsburg; both were viewed as the mirror images of their predecessors, both were considered conservative idealogues, and both were approved by very narrow majorities.
And now the only entity capable of addressing this corruption is the US Congress, the same body that put Thomas on the Court to begin with? The same body that failed to address the overt corruption of our last president?
Checks & balances only work when they are effectively applied by fair-minded participants in the system, and our current Congress has very few of them indeed. The ONLY thing we voters can do is to change Congress. This is a slow and laborious process, but given the outcomes of recent elections we may be able to find a tiny strand of hope.
I agree about the challenges. And that the onus is clearly on the Congress. (And, in ways you well understand, on state legislatures to draw "honest" Congressional districts, and on state judges to enforce honest runs, and on people showing up to vote despite all the obstacles put in their way, and ... turtles all the way down.)
The continuing high levels of turnout among the youngest voting cohort are the main sign of hope. But the struggle never ends — which used to sound formulaic to me but now seems much more urgent.
Apr 15, 2023·edited Apr 15, 2023Liked by James Fallows
I am old enough to remember that Eisenhower’s Chief of Staff Sherman Adams, because of accepting a vicuña coat and an oriental rug. was obliged to resign from the White House. I also recall the Abe Fortas fracas, where a Supreme Court justice, because of financial arrangements that provided him $20,000-40,000 annually,was obliged to resign.
I also remember when Anita Hill was thrown under the bus in a full court press to get a mediocre Black lawyer named to replace Thurmond Marshall on the Supreme Court.
This has resulted in what I call ‘creep, creep, creep, crap.’ Justice Thomas, with his sidekick Ginni, reflects the demise of what I remember as respect for the Supreme Court. Silent Clarence, for his initial years, has been catapulted into being a political spokesman for the current Court. Thanks in good part to the Federalist Society, another justice has characterized our current Supreme Court as the ‘Stench Court.’
McConnell invented a policy that denied a hearing for Garland, President Obama’s nominee to replace Ruth Bader Ginsberg. [This ‘policy’ was reversed to squeeze Bartlett on to the Court after Trump lost the 2020 presidential election.]
The Kavanaugh Senate ‘hearing,’ was a travesty. Under White House pressure, the FBI initiated a phony investigation in a few days that, despite Senator Susan Collins’ approval, failed the smell test.
Now we have ‘originalism,’ [a false premise according to numerous constitutional lawyers] and long-serving Justice Thomas as the mantra of the current Stench Court.
Any reasonable observer would castigate Justice Thomas for his enrichment at the hands of a right-wing billionaire. Meanwhile, Chief Justice Roberts (who not so long ago seemed concerned about the image of the ‘Roberts Court,’) is now simply an Indian in the right-wing SC tribe.
I do not envisage a significant improvement in this Stench Court in the foreseeable future. Now that a former president openly opposes ‘justice, I hope for, but do not expect, a reversion to the ethics that I remember during my youthful years.
Like you, I have been waiting for vicuñas to appear again in the press, since I first encountered them in elementary school. (The main reference I see to them in the NYT archives is this, https://www.nytimes.com/2022/07/08/climate/species-biodiversity-united-nations.html — plus many many articles about the Chilean-born artist Cecilia Vicuna.)
And waiting for a shift in the Court, which like you I hope for but do not expect. Among the profoundly disturbing reasons is that, under the current system, so much depends on the roulette wheel of fate, health, the aging process, and so on.
And on individual character, for example of people like Clarence Thomas.
I don't remember if the money Fortas was receiving was 20k-40k, or if you're inflation-adjusting the 20k to 40k. In fact, $20k in November '67 (I can't remember the exact date), inflation adjusted, is $178k today, which of course makes it a bit more serious. Other than that failure to inflation adjust your dollars, a sin almost everyone is guilty of these days, your comment is terrific, and I thank you for it.
To everyone else: Inflation adjustment makes a huge difference. To put it in easily relatable terms, my parents bought a new 1970 Plymouth Valiant in September 1970, for $2,600, which was a good deal. That's $20,000 in today's dollars.
To inflation adjust your dollars, just google "inflation calculator". I use the Bureau of Labor Statistics (BLS) inflation calculator which is generally the second in a long list of inflation calculators.
David Thanks for your real dollar correction. In the 1960s I bought a Volkswagen for $1,600 and, when I joined the Foreign Service as an FSO 7, my salary was $6,065. I learned arbitrage playing table stakes poker in Congo. The seven players were playing at four different rates for the Congolese franc. Settling up ever evening was a foreign exchange brouhaha. [I’d take a shoe box of Congolese francs back to the embassy, where I sold them at a discount to my colleagues.]
The first night I lost $56 and was reluctant to return. I did and chose to drink Perrier while others were swilling booze. I don’t recall if I declared my $7,000 winnings to the IRS. Out of the Congo I never again played table stakes poker.
David I am embarrassed at being a Foreign Service profiteer. Perhaps it was unconscious retribution that, when I volunteered in October 1964, during the foreign hostage crisis, to return and operate alone in rebel-infested Congo provinces, the State Dept didn’t provide me per diem. My M 16 and .45 were free. Oh yes, I was staying at the ambassador’s residence. Should I really have bluffed him out of an $800 poker pot? (He never knew.)
I also thought this one was absolutely terrific, and I will be forwarding it to the 75ish people on my email list. (I already forwarded one today, on the same subject, from TCinLA, so I will probably wait until tomorrow morning.)
Mr Fallows,your choice of interests and subjects is so grounded on our current lives and delivered in such a well measured way. Thank you. In this essay, though, it is so satisfying to get a good dose of the old fire!!
Thank you!
Something has got to change on this front — Thomas himself, the current Court in general. I appreciate it.
A question for any readers checking back in here.
I am considering doing a subscriber feature, "Thomas Time Capsule." The idea would be related to the Trump Time Capsule series I did in the Atlantic: chronicling very briefly, and in something like real time, what people were doing and saying, before anyone knew how it was going to all turn out. After 152 installments I talked about why I had done it, here: https://www.theatlantic.com/politics/archive/2016/11/on-the-future-of-the-time-capsules/622719/
It seems to me that we have crossed some kind of threshold today, April 16, with revelations that would mean trouble for most other people in most government jobs. But none of us knows how it is going to turn out.
If anyone sees this and has suggestions pro / con / otherwise, please let me know. Thanks!
New subscriber, first post to comments: I'm all-in on this idea. Your Trump time capsule was excellent, and very meaningful to me.
One of the problems with our broken MSM is how shortsighted it is, bouncing from one sensational issue to the next outrage. The media doesn't follow stories long term. So we don't get the big picture chronological unfolding of events, until someone writes a book.
To address Ed Goldstick's criticism - your Trump chronicle didn't impact the result - I say chronological narratives are persuasive. And over time the more people who are fully informed on an issue the likelier they are to back change. Lay on MacDuff...
I'm conflicted by your question, Jim: your chronicle of Trump's slimey rise to power was informative and powerful but somehow didn't impact the result. For my part I still do not understand how the likes of Senator Graham and others survived the phantasmagoric pivot they made during the primaries before the 2016 election...
... but I wrote this while watching Steven Colbert's monologue (on 04/17/23 at 11m24s in...) describe Harlan Crow's answer to this question: "Did he ever consider his friendship [with Thomas] as a ticket to quid pro quo?"... to which Crow apparently responded with this rhetorical spit in the eye of every reader: "Every single relationship - like a baby's relationship to his mom - has some kind of reciprocity".
So if you're inclined to invest the time and energy, have at it! On the other hand, you're going to need a bigger vault to store away all the additional miscreance that I expect will emerge over the months to come because one thing is certain: McConnell and Co. will not encourage Thomas to step down before the election in 18 months...
The GOP has gone so batshit crazy (the subject of Teri Kanefield's latest, I think -- looked at the title, haven't read it) that I think it's possible to hope that we'll sweep them into the Potomac.
Jim-This is a terrific review of this problem. I've not seen anything else quite like it in the major print media. It needs a wider distribution, and the NYT would serve its readers by publishing it as a guest article.
The proposed change with of each presidential term yielding 2 judges would add a greater degree of legitimacy to the Court--but only if the Electoral College vote can be made to reflect the popular vote.
BTW, I remember reading many years ago (as a grade schooler) about Sherman Adams and his vicuna coat. I wondered what the heck a vicuna coat was and why it got him in trouble.
Brent, thank you very much.
I mentioned in the piece that in 2004 the US came within 60,000 Ohio votes of having the Electoral College flip the presidency in the Democrats' favor. Apart from all the other consequences, that would have meant a permanent change in how people talked about EC reforms.
Something similar could conceivably be true when it comes to the grim funeral-director's logic of appointing people to the Supreme Court. It would remove *such* a major distortion from presidential politics if every person coming into the White House knew there would be one Scotus slot to fill every two years. And it would remove the hinge-of-history effects of mistakes like RBG's.
Of course the gap between "this is a good idea" and "this will happen" is enormous. But *naming* an alternative or improvement is a step.
I took remember, as a grade schooler, asking my parents, "what is a vicuna? And why does it need a coat?"
Great post, Jim. So where do rational folks find leverage? Congress? The streets? Where are the candidates that push the reforms you describe? It's time for action before the inmates destroy all sanity in the asylum.
Thank you.
I am trying to think of the right answer to your question. And the honest response is ... .I just don't know. As I think I mentioned to someone earlier today, it's hard (at least for me) to absorb the reality that the only "solution" is permanent effort. Vote by vote, candidate by candidate, gerrymander by gerrymander, without any foreseeable "OK, things are fixed now" end in sight. This is of course the theme of many political speeches, from the earliest days until now. ("A republic, if you can keep it" etc. ) But the fact of democracy-as-endless struggle is one of those concepts, like the cosmos or numerical infinity, that can hit you hard.
This prospect also increases the appeal and importance of any specific steps that can make a difference. I've mentioned many times the American Academy report on 'Our Common Purpose' which has a lot of these practical steps. (eg, increasing the size of the House; nonpartisan redistricting commissions; and of course the 18-year Court terms). So at least these provide some focus for action and advocacy.
I am glad that an increasing number of Democratic senators are calling out today's Supreme Court for what it has become. (I am thinking of Sheldon Whitehouse at the moment.)
AND OF COURSE MY COLLEAGUES IN THE MEDIA, and how they frame these issues. But don't get me started.
There is for me a strong difference between disagree and disapprove. I certainly Disagree, vehemently, with Dobbs. I do not, however, disapprove of the decision. It is a ilegitimate decision. It was argued, written and handed down by a duly and legally* constituted Supreme Court. *Yes Mitch McConnell, I believe violated his oath of office in refusing to hold hearings on Merrick Garland. But Obama did nothing. He was a poor president in political talent. Lyndon Johnson would not have stood by and done nothing.
Yes, fair point about disagree-vs-disapprove. I understand your distinction about Dobbs.
For me, I both disagreed with it, and disapproved, for reasons you can probably guess without my enumerating. And on the main political point: It is certainly true that McConnell — guided by Leonard Leo, aided by Anthony Kennedy's conveniently timed retirement, aided all the more by RBG's catastrophic decision — worked the system to his advantage. To put it mildly. But I agree with you that the Dems of that era seemed not to put up an adequate fight.
(And on the other hand, *not even LBJ* could preserve Abe Fortas's seat, or ultimately keep Warren Burger from becoming chief justice instead. Of course LBJ had so many other things going on in that year. Even more than Obama did in his final year.)
You are right to bring up Fortas who went way back with Lyndon (Caro sheds great light and insight on that relationship). I'm not saying that if Obama or the Dems had worked to bring about a hearing that they would have succeeded...but to simply kvetch and do nothing is far from leadership. The notion of compromise and sausage making has been eroded by the triumph of identity politics and the belief in the certainty of one's cause. I am constantly reminded of Cromwell's plangent plea: "Is it therefore infallibly agreeable to the Word of God, all that you say? I beseech you, in the bowels of Christ, think it possible you may be mistaken."
One of the great pillars of this country is under threat and that is the necessity of democratic process to legitimacy. It is not a sufficient condition to grant that decisions are all 'correct' but it is a necessary condition, for our form of government. In fact I would argue the very foundation of this country as set down in the Declaration. BTW I found Juan William's Atlantic article on then Commissioner Thomas to be enlightening.
Thank you.
And, to skip to Juan W's article—I hadn't looked at it in a very long time. But considering everything that has come afterwards, it indeed is powerful. I am glad you read it.
An epic explanation...in language that even I can process. Thanks so much.
I appreciate your reading and taking the time to write.
The Constitution requires the following of Supreme Court Justices:
1. that they be nominated by the President
2. that they be confirmed by the Senate
3. that they have life tenure
4. that they can only be removed by impeachment
What the Constitution does not address are:
1. the size of the Court
2. how the Senate confirms them.
18-year terms are constitutionally problematic, And guess who gets to decide whether or not it's constitutional?
The best solution would be for:
1. every president gets to nominate one new Justice at the beginning of every presidential term
2. they are confirmed unless 3/5 (or 2/3) of the Senate votes against them (unlike until a few years ago, when they needed 3/5 to be confirmed. And the Senate must vote on them. So - no more McConnell games about not taking up nominations or voting them down by the narrowest of margins.
3. the size of the Court varies (with a minimum number of perhaps 7 Justices and a judge from the DC Circuit appointed when the number of Justices would otherwise be even).
None of this would be remotely problematic in constitutional terms.
Giving each president one Justice per term would probably inflate the size of the Court to 15 or so over time. It would make the issue of strategic retirements virtually a non-issue, so it's less likely that Justices would stay forever or until they would be replaced by a President of the same party. It would make appointing Justices at a young age much less attractive.
And, most important, over time the Court would be appointed by Presidents of both parties in rough proportion to how well each party did in Presidential elections. Which, after all, is the point of having Justices appointed by elected Presidents.
The alternative would be to set a minimum age for appointment; say age 65 or so. At least then, Justices would be unlikely to stay on the Court for decades. And we wouldn't get young and unseasoned jurists on the SCOTUS bench.
I will sign on to your plan. (Or the 18-year / one-appointment-every-two-years alternative, from the American Academy and others. They make their case about why it fits the Constitution, here: https://www.amacad.org/ourcommonpurpose/recommendation-1-8 )
Several things I like about your proposal:
- The dynamic, organic scale of the Court.
- Of course eliminating "strategic retirements", and finding the youngest possible appointee
- I had *not* heard before, and love, the idea of **minimum** age requirements for appointees. It has all the virtues you suggest.
Thank you.
why is an 18 year term unconstitutional?
Well, it might not be. But that issue will be decided by the Supreme Court. And, given that 6 of them are there because of a long-term project to capture the Court for the Right, how do you think those six will choose to think about an idea that breaks their lock on the Court?
An argument for it being constitutional is here: https://www.amacad.org/ourcommonpurpose/recommendation-1-8
(TL;DR you don't take away their jobs, but you rotate people in and out of active service.)
That's be a good argument to put in front of jurists who weren't motivated to protect their control of the Court.
I "LIKED" your post, Jim, and all the commentary thus far with a stinging pain reaching from my fingertips to my depths of my consicous mind given the terrible predicament in which we find ourselves as a society... "gyre of 21st century America", indeed!
I saw your reaction to the WSJ headline invoking the misguided boiling frog metaphor with regard to supposed Biden WH attacks on religious freedom, but further reflection led me to decide that their calomnie is, perhaps, a pitch perfect projection of their disinformation project that undermined the civic fiber of their populist cohort - their so-called Base. How else to describe the collective lobotomy of tens of millions of ordinary people under the malevolent influence of the likes of Limbaugh, Ailes, Murdoch, et al... not to mention the politicians who rode the waves of their vitriol for decades that began before Bush-v-Gore (and perhaps the discrete complacency from the depths of the establishment GOP is as much a sign of their embarrassment as well as an acknowledgement of their satisfaction with the "Ends" that justified these "Means"... or at least if any of them have a remnant of a truly "republican" conscience).
Ed, thank you.
(And for anyone wondering about the connection between boiled-frogs and lobotomies, my late friend Michael Jones laid it all out here: https://www.theatlantic.com/technology/archive/2009/07/guest-post-wisdom-on-frogs/21789/ The short version is that frogs will indeed sit still in a slowly warming pot — but only if their brains have been removed. This version of the story may actually be more applicable to our plight.)
There's a fascinating extra detail in that piece of research. Spineless frogs also sit passively while being slowly and gently boiled, even while their brain probably enables continued croaking.
I grew up with Brad Reynolds (1942-2019). So I spotted his name from time to time, and had a few friends (fortunately unindicted and not noticed) in the EOB during those years. Clarence Thomas was 100% correct, if only about that particular apparatchik.
Wow. I had not known about this part of your varied career.
The vignette from Juan Williams is all the more powerful, knowing what came later.
belated added comment: I think Juan Williams is probably the world expert on how Clarence Thomas turned into the person he has become, so I did a little Googling for more information and turned up Williams' profile of Brad Reynolds, partly seen through the eyes of Clarence Thomas: https://www.washingtonpost.com/archive/lifestyle/magazine/1988/01/10/in-his-mind-but-not-his-heart/bd3e66da-a133-4c8d-9fdd-8d75d896f1d8/
the TLDR of this (but it is worth a full read) is that Thomas on the EEOC was in constant conflict with Reynolds, then an Asst AG, but also a close confidant of Ed Meese. Both Thomas and Reynolds opposed "equal opportunity" while being responsible for it, but for very different reasons.
Jim, Clarence Thomas has been on SCOTUS for 61% of his adult life. You can thank my being on the spectrum for that info.
!!!!
(In the same context, you'll be relieved to know that I've slightly revised my description of US median age, to make it more precise. It *is* true that most of today's Americans were born in 1985 or later. (Media age is 38+). This by extension would mean that the first presidential election today's median-aged American could really remember is Clinton-v-GHWB in 1992. And, by further extension, the first presidential election in which a median-aged person could have cast a vote would be Kerry-v-GWB in 2004. I will trust you to let me know if the way it reads now does not match those details! )
The number of years old for those who would remember the '92 election is the same as for me during my first election--JFK versus Nixon. And boy do I remember that. My best friend that year (in which we lived in Seattle), was Ralphie, whose grandfather was a founder of Nordstrom's, and whose mother became an interior decorator for Ehrlichman, among others).
Both of my parents had been trained as economists, although my mother switched fields just short of getting a PhD in econ. Her econ mentor told her he'd give her one if she'd just tweak a paper she'd written for one of the major agencies in DC during a year she and my father had spent there. She declined, because she'd decided to switch fields.
One of my parents had told me about how Nixon had called Helen Gahagan Douglas a communist. One day my mother was driving, with me and Ralphie in the car when I said something to Ralphie that ended up a long term family story. "You know Ralphie," I said, "you really shouldn't vote for Nixon because he called that lady in California something like an economist." My mother got such a kick out of that story!
But I probably would have remembered anything that occupied my parents in a big way as early as age 4, and perhaps earlier. I remember Sputnik, which was launched when I was 4, because my father, a Soviet specialist, talked about it. And I remember Francis Gary Powers getting shot down when I was six, for the same reason. (I would repeatedly ask my father when he was coming home. I finally got closure on that after Bridge of Spies came out in the mid-'10s, which I thoroughly enjoyed for a host of reasons, including the closure.
The Kennedy-Nixon election is the first one I really remember. I love your recollection.
My parents were the world's most loving and outstanding people. They were in their early 30s at the time of that election, and they were still loyal Republicans, as they had been raised.
I still remember coming down stairs for school on the morning after the election, when the LA Times had the headline story that Kennedy had won. My (sainted) mother was in tears; America was going socialist.
Things changed a lot, in the years after that. My dad died just around the time of Obama's 2008 election, I was commuting back and forth from Beijing at the time to be with him. One of his last conscious moments was to see the TV forecasts that Obama was very likely to win. It was tremendously gratifying to him.
I much appreciate your reaction to my recollection. A lot of stuff was tough for my mother--her mother had MS, and was bedridden from when my mother was 9 until she died when my mother was 17. My mother got MS. But she got such joy and laughter from recounting my advice to Ralphie.
My parents came from democratic families. My mother grew up in Denver, where her family was considered "Jewish royalty". Her uncle, Philip Hornbein, a union lawyer, was de facto head of the Colorado Democratic Party for most of the first half of the previous century. He gave the speech at the '32 convention recommending an end to prohibition. (There was a restaurant where politicos from both parties met, and when he walked in, both Dems and Republicans would stand up.) His sister, my grandmother, was probably the first female Coloradan to get a PhD (labor relations, 1915). A cousin of my mother's was a prominent architect in Denver. And a Missouri cousin, now living in Estes Park, is one of two people to have ascended to Everest's summit via the West Ridge (1963).
My father's parents weren't particularly political. At UNC Chapel Hill, where he was an undergraduate, he fell in with a handful of left wingers, and befriended and got Sidney Rittenberg interested in left wing politics. (I'm guessing you know of Sidney, but if you don't, google him. He spent around 30 years in China, about a third of that as a higher up in Chinese propaganda, and half in solitary, in two different stints. He died a handful of years ago, at 98, but two of his four children work in China.
My parents favored Stevenson in 1960, but did back Kennedy after he was nominated, and always voted Democratic for president (They supported Stuart Hughes, a left winger, a family friend, and a grandson of Charles Evans Hughes, against Ted Kennedy in the latter's first election).
The three of us have basically the same politics. My sister is a Democratic activist in Virginia.
Life expectancy of the average white male in 1787, when the Constitution was written, was a little under 35 years old. No one writing Article III could have imagined the term lengths we see today among the Supremes. Eighteen-year terms, impose a code of ethics, expand the Court's size, yes to all of the above. None of it will fix the current problems but it would at least hand the kids an institution that has their back. It sure as hell doesn't have ours.
Yes, thanks. These actuarial details are interesting. I haven't looked into it recently, but I remember hearing that **once you survived childhood,** and once women survived childbirth, then the ones who were still around (and were of the upper class etc) had a reasonably long run. Benjamin Franklin went into his 80s. John Adams was 90 and Thomas Jefferson in his early 80s when, as we all know, they died on the same day, the 50th anniversary of signing the Declaration of Independence.
But, yes, "life tenure" meant something entirely different in the 1780s than it does now. And it has become such an endlessly cynical game, of choosing candidates as young as possible — Clarence Thomas at age 43! — and counting on them to hold on forever. Argh.
Agreed, but I would point out that none of those elder statesmen were average. They all made a good living which meant they ate well and one owned slaves who did all his physical work for him, and unquestionably all three had vast intellectual interests which would also keep them healthy at least mentally. (Interestingly, to me anyway, James Wilson, who according to Mr. Google wrote Article III, was only 56 when he died.)
Your analysis is accurate; unfortunately the prognosis is not good.
I recall reading an article in the early 1990's about Anita Hill's testimony. The point of the article was that not one member of Congress or law enforcement suggested charging Professor Hill with lying to Congress - a very serious offense. The reason was simple: few doubted that she was telling the truth. The goal in the committee wasn't to ascertain truth or fiction; the goal was to achieve a specific political end.
Thomas replacing Thurgood Marshall was as much a moral outrage as Amy Coney Barrett replacing Ruth Bader Ginsburg; both were viewed as the mirror images of their predecessors, both were considered conservative idealogues, and both were approved by very narrow majorities.
And now the only entity capable of addressing this corruption is the US Congress, the same body that put Thomas on the Court to begin with? The same body that failed to address the overt corruption of our last president?
Checks & balances only work when they are effectively applied by fair-minded participants in the system, and our current Congress has very few of them indeed. The ONLY thing we voters can do is to change Congress. This is a slow and laborious process, but given the outcomes of recent elections we may be able to find a tiny strand of hope.
I agree completely. But…. It would enrage every Republican. And they might actually break us.
Thank you.
I agree about the challenges. And that the onus is clearly on the Congress. (And, in ways you well understand, on state legislatures to draw "honest" Congressional districts, and on state judges to enforce honest runs, and on people showing up to vote despite all the obstacles put in their way, and ... turtles all the way down.)
The continuing high levels of turnout among the youngest voting cohort are the main sign of hope. But the struggle never ends — which used to sound formulaic to me but now seems much more urgent.
I am old enough to remember that Eisenhower’s Chief of Staff Sherman Adams, because of accepting a vicuña coat and an oriental rug. was obliged to resign from the White House. I also recall the Abe Fortas fracas, where a Supreme Court justice, because of financial arrangements that provided him $20,000-40,000 annually,was obliged to resign.
I also remember when Anita Hill was thrown under the bus in a full court press to get a mediocre Black lawyer named to replace Thurmond Marshall on the Supreme Court.
This has resulted in what I call ‘creep, creep, creep, crap.’ Justice Thomas, with his sidekick Ginni, reflects the demise of what I remember as respect for the Supreme Court. Silent Clarence, for his initial years, has been catapulted into being a political spokesman for the current Court. Thanks in good part to the Federalist Society, another justice has characterized our current Supreme Court as the ‘Stench Court.’
McConnell invented a policy that denied a hearing for Garland, President Obama’s nominee to replace Ruth Bader Ginsberg. [This ‘policy’ was reversed to squeeze Bartlett on to the Court after Trump lost the 2020 presidential election.]
The Kavanaugh Senate ‘hearing,’ was a travesty. Under White House pressure, the FBI initiated a phony investigation in a few days that, despite Senator Susan Collins’ approval, failed the smell test.
Now we have ‘originalism,’ [a false premise according to numerous constitutional lawyers] and long-serving Justice Thomas as the mantra of the current Stench Court.
Any reasonable observer would castigate Justice Thomas for his enrichment at the hands of a right-wing billionaire. Meanwhile, Chief Justice Roberts (who not so long ago seemed concerned about the image of the ‘Roberts Court,’) is now simply an Indian in the right-wing SC tribe.
I do not envisage a significant improvement in this Stench Court in the foreseeable future. Now that a former president openly opposes ‘justice, I hope for, but do not expect, a reversion to the ethics that I remember during my youthful years.
Thank you.
Like you, I have been waiting for vicuñas to appear again in the press, since I first encountered them in elementary school. (The main reference I see to them in the NYT archives is this, https://www.nytimes.com/2022/07/08/climate/species-biodiversity-united-nations.html — plus many many articles about the Chilean-born artist Cecilia Vicuna.)
And waiting for a shift in the Court, which like you I hope for but do not expect. Among the profoundly disturbing reasons is that, under the current system, so much depends on the roulette wheel of fate, health, the aging process, and so on.
And on individual character, for example of people like Clarence Thomas.
I don't remember if the money Fortas was receiving was 20k-40k, or if you're inflation-adjusting the 20k to 40k. In fact, $20k in November '67 (I can't remember the exact date), inflation adjusted, is $178k today, which of course makes it a bit more serious. Other than that failure to inflation adjust your dollars, a sin almost everyone is guilty of these days, your comment is terrific, and I thank you for it.
To everyone else: Inflation adjustment makes a huge difference. To put it in easily relatable terms, my parents bought a new 1970 Plymouth Valiant in September 1970, for $2,600, which was a good deal. That's $20,000 in today's dollars.
To inflation adjust your dollars, just google "inflation calculator". I use the Bureau of Labor Statistics (BLS) inflation calculator which is generally the second in a long list of inflation calculators.
David Thanks for your real dollar correction. In the 1960s I bought a Volkswagen for $1,600 and, when I joined the Foreign Service as an FSO 7, my salary was $6,065. I learned arbitrage playing table stakes poker in Congo. The seven players were playing at four different rates for the Congolese franc. Settling up ever evening was a foreign exchange brouhaha. [I’d take a shoe box of Congolese francs back to the embassy, where I sold them at a discount to my colleagues.]
The first night I lost $56 and was reluctant to return. I did and chose to drink Perrier while others were swilling booze. I don’t recall if I declared my $7,000 winnings to the IRS. Out of the Congo I never again played table stakes poker.
What is $7,000 in 2023 dollars?
Depends on the year. What year?
David 1963.
the $7k in 1963 would be 69k today. My earlier guess was spot on.
You could have probably bought a current Porsche Cayman for that. $69k!
David I am embarrassed at being a Foreign Service profiteer. Perhaps it was unconscious retribution that, when I volunteered in October 1964, during the foreign hostage crisis, to return and operate alone in rebel-infested Congo provinces, the State Dept didn’t provide me per diem. My M 16 and .45 were free. Oh yes, I was staying at the ambassador’s residence. Should I really have bluffed him out of an $800 poker pot? (He never knew.)
Clarence the Clown from Macy’s Thanksgiving parade is now represented on the Supreme Court. Can Gimbels top that?
Very good post on a very sad subject that seems to have no hope of being resolved.
Thank you; I appreciate your reading and taking the time to write.
As good as it gets Jim, one of the very you've ever written
Bob, thank you very much. That means a lot. Thanks for taking the time.
I also thought this one was absolutely terrific, and I will be forwarding it to the 75ish people on my email list. (I already forwarded one today, on the same subject, from TCinLA, so I will probably wait until tomorrow morning.)
Thank you David! I appreciate it. Decided this morning that it was time to remind people of Juan Williams's piece.
Even without that this would be terrific.