The supreme court

Another four and a bit pages about the US Supreme Court in the latest number of the NYRB. A favoured topic there, but I usually find the treatment a bit inaccessible. Perhaps because, as on this occasion, the authors tend to be eminent lawyers, in this case the Carl M. Loeb University Professor Emeritus and Professor of Constitutional Law Emeritus at Harvard. Loeb having been an immigrant from a German dry goods family who moved into metals and then into share dealing and banking. Reference 2 suggests a somewhat rocky career, but presumably it ended rich, with him endowing chairs at Harvard.

Perhaps the books ostensibly reviewed would be just as impenetrable as the review.

That said, the takeaway for me was that all was not well, and that some sort of reform was in order. Trump's rather unsatisfactory appointments (for life) have arrogated far too much power to themselves and their political preferences: a big and sometimes sophisticated country like the US ought to be able to do better - to get itself back to a position where it can more reasonably claim to have found the right way to run a big country.

But having said 'ought to be able', translating that 'ought' into politically feasible remedial action is going to be difficult, made even more so by the more or less even split between the Democrats and the Republicans, with the latter in thrall to all kinds of strange people. Quite apart from the technically challenging problem of remedial action which does not chuck the baby away with the bath water.

Another takeaway was that, technical challenges notwithstanding, there are at least two areas where reform might be possible. Might even attract something like a consensus.

First, one could do something about the life appointments of Supreme Court justices. Maybe term appointments or a compulsory retiring age.

Second, one could do something procedural about what is called the shadow docket system. Thousands of cases get referred to the court every year, but less than a hundred get the full treatment. Rather more get the rather summary treatment provided by the shadow docket system. And the rest just sit there. A bit more transparency about how exactly the court picks out its cases for either the full treatment or for summary treatment would be a good thing. All this being the subject of the fourth of the five books listed above.

PS 1: one should not get too pious about the Supreme Court. For most of its two hundred and more years, I learn that it has been more a protector for the rights of the haves than a promoter for the rights of the have-nots, fine words at the beginning of the Constitution which the justices claim to set so much store by notwithstanding. And some of its judgements have been pretty dreadful.

PS 2: the next day: I read in the TLS this evening that there have been fights about the political flavour of the Supreme Court before. In the course of the New Deal in the late 1930's, Roosevelt (another Democrat) lost his fight to pack the Supreme Court - using a device involving justices who declined to retire at 70 - but won in the end because he lasted longer than most of them did. See references 4 and 5.

References

Reference 1: Constrain the Court — Without Crippling It: Critics of the Supreme Court think it has lost its claim to legitimacy. But proposals for reforming it must strike a balance with preserving its power and independence, which remain essential to our constitutional system - Laurence H. Tribe, new York Review of Books - 2023.

Reference 2: https://en.wikipedia.org/wiki/Carl_M._Loeb.

Reference 3: https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about. Read all about it.

Reference 4: FDR's gambit: The court packing fight and the rise of legal liberalism - Laura Kalman - 2023. A book which did not make the list of five in the snap above.

Reference 5: https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937.