Friday, June 29, 2012

Elsewhere: Court Reform, Health Care

I have a new column up at Salon today saying that liberals should oppose Supreme Court reform. I'm not a huge fan of the incentive to appoint extra-young Justices who will then stay there forever, but the basic argument is that liberals should want a strong, independent Court.

The rest is post-SCOTUS stuff. At PP yesterday, I argued that the Court decision wouldn't have a significant effect on the November elections; today, I talked more about that, including why it feels as if it does have an effect. And then yesterday at Greg's place I got into the discussion of whether Republicans really would repeal ACA if Romney wins and they get a Senate majority. My answer: not clear; Senate rules are a real, but not unbeatable, obstacle, so it would depend on how big their majority is and what their activists and party-aligned interest groups are saying. Not exactly a prediction!


  1. Jonathan, surely you would believe there are some circumstances where Supreme Court reform could be needed. Imagine if a court of 5 or more young conservative justices, produced by appropriately timed retirements, simply decides to overturn most consequential liberal laws. Or, imagine a court of the same number of young liberal justices, who do the same to laws passed by conservatives. And on top of that, assume in each of the above two hypotheticals that the courts affect election law and election results in a way that favors their side whenever possible. Would your opinion remain as it is now?

    Your piece talks a lot about government in the abstract, but your reasons don't seem very relevant to the actual question (the Supreme Court, run by a small number of politically unaccountable judges that remain on the court for decades).

    Of course, having an independent judicial branch also has significant plusses that should not be ignored lightly. But that implies that there is a balance of factors -- not a blanket call for the Supreme Court status quo regardless of the circumstances.

    Once we accept that there are some circumstances for which the Supreme Court reform might be desirable or necessary, the question is whether those circumstances are true today. If all you are saying is that those circumstances are not true today, that makes sense. But if you are going beyond that, and saying that there are no circumstances under which the current system should be changed, I think that goes way too far. The ability for Congress to reform the court (even if it is very difficult politically) is one of the only checks on the court we have.

    1. Liberals justices changing the country with their Supreme Court decisions? Warren Court! Warren Court!

      Anonymous, there are a number of problems with your theory, which assumes that party identification is a straitjacket that confines individuals' opinions. Take, for example Justice Souter and Justice White. Both were individuals appointed for their apparent party adherence, who over time at the court shifted into the other camp.

  2. I'm not persuaded by your arguments against reform of the Supreme Court.

    Individual Supreme Court Justices have too much power. We have a radical hack like Scalia representing 20% of a majority as a result of the Federal Reserve allowing too much inflation in the late '70s and Iran taking our embassy hostage. It makes no sense that the Supreme Court was nearly able to overthrow the 2010 health care bill because random conservative justices were appointed decades ago and because a partisan court handed an election to its party's presidential candidate in 2000. Term limits and adding more justices make a lot of sense. We shouldn't be at the mercy of justices appointed by long retired or dead Presidents for decades and decades.

    Will those reforms happen? Almost certainly not. So we'll just have to re-elect Obama and then elect Elizabeth Warren in 2016 and hope for vacancies among the conservative bloc while they are president.

  3. 18 year terms, staggered so that a new justice is appointed in the first and third years of each presidential term.

  4. It's not just politically-corrupt Scalia representing 20% of a majority, it's him plus "good-old-fashioned" corrupt Thomas representing 40% of a majority.

    One thing an affective Congress could do on any day is pass a law requiring Supreme Court Justices to be bound by the Federal Judicial Code of Ethics regulating all other judges. This would at least force Mrs. Thomas to become an informal lobbyist/activist for right-wing causes, instead of a highly-paid formal lobbyist/consultant. It would also give a lever for us to ask about Justices like Scalia recusing themselves when they make public speeches announcing their minds are made up before cases come up.

    Abe Fortas voluntarily resigned for an ethical offense that was perhaps one-tenth of what Thomas and Scalia are openly engaged in.

  5. I completely understand where you're coming and agree that it wouldn't be worth the political capital right now to focus on judicial reform. That being said, there's a pretty strong liberal argument for judicial restraint.

    First, us liberals sometimes overstate the effectiveness of the Court in creating social change. Moving so quickly in Roe v Wade emboldened conservative opposition to abortion rights. Similarly, I could see adopting a constitutional right to gay marriage in 2013 as having a similar sort of effect. I'm not seeing that the Court shouldn't recognize these rights eventually, I'm just saying moving more slowly and prudently has a lot of virtues (especially on high profile national issues where there is plausible rout to success through the legislative process).

    Second, "strong" and "independent" are to some extent contradictory when it comes to describing the role of the judiciary. If you want an especially strong judiciary it's going to become an increasingly political one. The intense confirmation hearings and filibustering of nominees is an inevitable result of both sides recognizing that judges have vast power to reshape American life. Regardless of your ideology, this doesn't seem to me like an especially healthy result.

    I'd like a system where both sides pursue their differing conceptions of the Constitution against a backdrop of modesty.


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