A Second American Civil War? It Could Happen

A little over a year ago, I published a post entitled Is the United States Heading Toward Civil War 2.0? In that post, I detailed how the United States was facing a different kind of civil war; a type of war carried out by individuals and small groups rather than state-sanctioned militaries. A type of war that is more akin to terrorism than traditional war, but will nonetheless pit citizen-against-citizen, and likely cost a lot of American lives before it is quelled.

In that post, I highlighted Dr. Barbara F. Walter, a professor of political science at the University of California-San Diego; a member of the Center for Systemic Peace, a think tank that researches and tracks civil wars around the world; and the author of How Civil Wars Start. Dr. Walter recently gave a Ted Talk explaining her research and the conclusions she has reached concerning the possibility of a civil war right here in the United States. Her explanation is fascinating, her conclusions are shocking, and her recommendations to remedy the mess we find ourselves in  and avoid a potential civil war give hope to an often hopeless situation.

The following video is only 13 minutes long, but it contains very important information that every American should know and understand. I encourage you to take the time to watch it.



Today, We Remember Birmingham

Today marks the 60th anniversary of the bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama and the death of four young black girls, Addie Mae Collins, Cynthia Wesley, Carole Robertson and Carol Denise McNair. Birmingham was no stranger to bombings. Between 1947 and 1965 there for fifty separate bombings of homes, businesses, and churches in the town that came to be known as “Bombingham.”

Even so, there was a sense of optimism in the summer of 1963. Earlier that year, Rev. Martin Luther King Jr’s. Southern Christian Leadership Conference led non-violent protests through the streets of Birmingham against segregation and discrimination. The protesters were met with violence from white supremacists like the Ku Klux Klan, as well as the Birmingham Police, led by Public Safety Commissioner Bull Connor. The police unleashed attack dogs on the protesters and sprayed them with fire hoses. The spectacle played out on TV, and is said to have sickened President John F. Kennedy, who just two months later introduced The Civil Rights Act of 1963. Despite the violence against them, the protest had been a success.

The optimism brought on by the introduction of The Civil Rights Act was short-lived. On September 15, 1963, four members of the United Klans of America planted fifteen sticks of dynamite, along with a timer, under the Sixteenth Street Baptist Church. The bomb went off as parishioners were gathering for the 11 o’clock service. A man driving past the church at the time of the blast was thrown completely out of his car. Another man, using a nearby pay phone, was blown through the door of a dry-cleaning business, still clutching the telephone’s ripped-off receiver in his hand.

The church itself was badly damaged, blowing out the back wall and leaving a massive crater where a large stone foundation and brick wall once stood. The four young girls, who had been changing into their Sunday clothes, were found in the basement. Cornell University Historian Kevin Kruse describes what happened next:

“As a crowd gathered to pull the girls’ bodies from the rubble of the church, a group of white teens with a Confederate flag and a sign saying “Go Back to Africa” taunted them. Some of African American teens responded by throwing stones, trying to chase them away from the scene. At this point, the police intervened and tried to apprehend some of the black teens. A sixteen-year-old black boy ran away from them, and was shot in the back by a shotgun blast. 

“At the same time, across town, another pair of white boys pulled up alongside two young black boys who were riding their bikes.  One of the white boys pulled out a pistol, put two bullets into a thirteen-year-old’s head and chest, and drove away.”

Today, sixty years after this horrendous and deadly violence, we see forces in our country that would like us to take a step back to those dark days. They want to reinstitute a caste system where African-Americans and other minorities are treated like second-class citizens. And they’re willing to use violence—just like the Ku Klux Klan and other white supremacists used in 1963—to get what they want.

It’s up to each of us to be diligent, to call out bigotry and hatred wherever and whenever it raises its ugly head. We’ve come too far and too much innocent blood has been spilled to ever go back. We must remember the lives lost on that fateful September day in 1963 and honor their memories by redoubling our efforts to end all forms of hatred and prejudice.


How to Live to be 100 (or Older)

Dan Buettner is a National Geographic Fellow and a best-selling author who has devoted much of his life to understanding why some communities produce large numbers of people who live to be 100 years of age or older. These communities, known as Blue Zones, are spread throughout the world, and although they are disparate geographically, they seem to have several things in common that lead their residents to live to 100 and beyond.

Buettner is the host of Live to 100: The Secret of the Blue Zones, a Netflix multi-part documentary. The film follows Buettner as he travels the world from Japan to Sardinia to Costa Rica to California to meet people who are living unusually long lives, and to uncover the secrets to their longevity. At the end of the docuseries, Buettner reverse engineers what he has learned and implements those lessons in Albert Lea, MN to surprising results.

The docuseries is very interesting and informative. If you have Netflix, I encourage you to watch it. If not, here is a breakdown of what Buettner learns on his journey to Blue Zones and the secrets to long life that they hold:

  1. Move Naturally – Exercise is great, but what people who live to be 100 or more do is incorporate natural movement into their daily lives. What exactly do they do? Here are a few examples:
    1. Work by Hand – Doing things like washing the dishes, chopping wood, vacuuming around the house, or mowing the grass may not seem like exercise, but it keeps a body active, utilizing muscles in different ways and keeping those muscles toned and flexible.
    2. Gardening – One thing almost all of the Blue Zone communities have in common is that their residents often work in private gardens. Growing healthy food is one goal of this gardening, but the more important thing is they are outside, moving, bending, and stretching, keeping their bodies fit.
    3. Walking – Almost all Blue Zone communities encourage walking rather than driving. Residents walk to the grocery store, the café, or just around the neighborhood for exercise and relaxation.
  2. Outlook – This involves the way residents of Blue Zones view the world and how they see their place in it.
    1. Unwind – Blue Zone residents make time to relax and refresh. Doing things to de-stress is a priority, so they routinely take naps, meditate, and spend time in nature. They understand that recharging their batteries is every bit as important as carry out whatever duties and obligations fill their day.
    2. Faith – This could be religious faith or a spiritual practice. The type of religion doesn’t matter. One Blue Zone community is made up primarily of Buddhists while another (in Loma Linda, CA) is made up of Seventh Day Adventists. The important thing for Blue Zone residents is incorporating a religious or spiritual practice into their daily lives.
    3. Purpose – Having a purpose could involve having a higher calling, such as feeding the hungry or working to cure cancer, or it could simply be understanding your role in life. One of the Blue Zone communities in Costa Rica includes an unusually high number of shepherds. These people understand what they are supposed to be doing from the time they get up in the morning until they go to sleep at night. The sheep count on them, and they gladly and gratefully go about their work every day.
  3. Eat Wisely – Diet plays a huge role in how our bodies age. Blue Zone residents eat consciously, but they don’t go overboard. They enjoy treats now and then, but primarily eat a healthy diet.
    1. Plant-Based – Residents of Blue Zones eat far less meat than people who live in non-Blue Zones. For instance, for most people, meat makes up about 15% of their caloric intake. For Blue Zone residents, meat accounts for just 5% of their diet. Blue Zone residents are not strictly vegetarian or vegan, but they eat much less meat than other people.
    2. Wine – Wine is an important ingredient in the diet of Blue Zone residents. Consumed in moderation, often with meals, wine provides anti-oxidants and important minerals, especially when produced locally.
    3. Moderation – Blue Zone residents tend not to over-indulge in anything. They enjoy all things (healthy and not so healthy) in moderation. In one Blue Zone community, residents are taught to stop eating when they are 80% full. This reduces obesity and improves digestive function.
  4. Connect – We are social animals and its important to be around other people, interacting with them and enjoying their company. In our modern world, even as we live more closely, in more densely populated areas, loneliness has become an epidemic, draining not only our happiness, but decreasing our life expectancy.
    1. Family First – Blue Zone residents tend to live near family members, often in the same house. When residents get older, rather than being put in a nursing home, they either move in with family members or move closer to family members for emotional and physical support.
    2. Partnership – Our relationship with a spouse or significant other has a huge impact on every other part of our lives, including our longevity. A good, loving, happy, supportive marriage or partnership is often key to living longer and remaining healthy into our older years.
    3. Right Tribe – Residents of Blue Zones often surround themselves with friends and neighbors that make up their tribe. These friends and neighbors not only provide support and encouragement, but since they are often also going through the same experiences, they provide examples and opportunities to lend a hand.

I don’t know about you, but I want to live a long life, and I want to be alert, productive, and healthy right up until the end. I plan on incorporating the ideas outlined above into my life as I move forward. I’d like to get as much life as I can out of my old body. And if I can, I’d like to live well past 100. How about you?


RE-RUN: Deep Dive: “Escape (The Pina Colada Song) by Rupert Holmes

This post was originally published on February 19, 2020.


Have you ever heard the song “Escape (The Pina Colada Song)” by Rupert Holmes? Everyone over the age of fifty or so has probably heard the song hundreds of times. It was a number one hit and was played incessantly on the radio in the late 1970s. If you’ve never heard the song, let me tell you about it.

The narrator of the song is tired of his relationship with his wife or girlfriend. It’s never clear if he’s married or just dating. He thinks his relationship is boring, so he scans the personal ads in the newspaper.

For younger readers, this might seem crazy, but back in the dark ages of the 1970s, there was no Match.com, eHarmony, or Tinder. If you were looking for a date, you took out a classified ad in the newspaper and hoped that someone would read it and respond. Crazy, I know. It’s amazing any of us are still alive.


Fun Fact: Rupert Holmes was born David Goldstein on February 24, 1947


Anyway, the guy in the song sees a personal ad that catches his eye. The ad reads:

“If you like Pina Coladas, and getting caught in the rain
If you’re not into yoga, if you have half a brain
If you like making love at midnight, in the dunes of the cape
I’m the love that you’ve looked for, write to me, and escape”

Who could blame a guy for falling for that kind of poetry and passion in just four lines? Our song narrator couldn’t. So, what did he do? Did he write to the Pina Colada women? No, he did not. This is one of the many things I don’t understand about the song. Maybe I just don’t remember how personal ads worked, but I thought the person posting the personal ad included a way to contact her, like a phone number or a mailbox provided by the newspaper. In her personal ad, she even says, in the last line, “write to me.”

But our songster doesn’t write to her. He places another personal ad. That seems risky, doesn’t it? How does he know the woman he is responding to would even see his ad? Talk about a long shot. I’m sorry, but color me skeptical.

Here’s what our narrator wrote in his personal ad:

“Yes, I like Pina Coladas, and getting caught in the rain
I’m not much into health food, I am into champagne
I’ve got to meet you by tomorrow noon, and cut through all this red tape
At a bar called O’Malley’s, where we’ll plan our escape”

Naturally, if the woman from the first personal ad didn’t see his personal ad, it wouldn’t be much of a song, would it? So, miracle of miracles, she sees our hero’s personal ad and shows up to O’Malley’s.

Before I move on, let me discuss O’Malley’s Bar. Have you ever heard of a high-class club called O’Malley’s? I know, this is all fictional. It didn’t really happen. But if you were going to make up a place to meet a make-believe date and you wanted to impress her, would you call it O’Malley’s? I wouldn’t. O’Malley’s sounds like a place you’d go with your mates after the rugby match, or a place that functioning alcoholics gather after work. It doesn’t sound like a swank place to take a date.

Sorry for the tangent. Back to the song.

So, our hero is waiting at O’Malley’s, and his date from the personal ad shows up. Here’s what happens:

“So I waited with high hopes, then she walked in the place
I knew her smile in an instant, I knew the curve of her face
It was my own lovely lady, and she said, ‘Oh, it’s you’
And we laughed for a moment, and I said, ‘I never knew’”

At this point, my BS meter is going nuts. Are you kidding me? They both just realized that their significant other is looking for a hook up, and they’re both fine with it? I don’t think that’s how relationships work. The relationship is so bad that they both want to cheat, but when they both get caught, they laugh it off and decide to stay together. I don’t think so.

Also, is it just the way I’m reading it, or does the wife/girlfriend sound horribly disappointed when she says “Oh, it’s you?” If I was the guy, I wouldn’t be so anxious to stay in this relationship. He should really watch his back. She doesn’t seem that into him.


Fun Fact: “Escape (The Pina Colada Song)” was the final #1 song of the 1970’s


The song was originally called simply “Escape.” There was no mention of pina coladas. In fact, originally, pina coladas weren’t even mentioned in the song. The original lyric was, “If you like Humphrey Bogart…” That’s right. Humphrey Bogart. Not quite as romantic or tropical as pina colada, is it? After Holmes wrote the song, he decided Humphrey Bogart wasn’t the feel he was looking for. He thought substituting an alcoholic drink might be the way to go, something tropical, and pina colada was one of the first drinks that came into his head. At that point, he had never had one and wasn’t sure what was in the drink, but it fit phonetically, so he went with it.

Although “Escape (The Pina Colada Song)” is the biggest hit of his career, Holmes didn’t view it that way when he wrote the song. He needed one song to finish an album, and wasn’t all that crazy about “Escape”. He just wanted to finish writing it, get it recorded, and go home.

So, while he was writing the lyrics, struggling to find a replacement word or phrase for “Humphrey Bogart,” the drummer from Holmes band got drunk. In fact, too drunk to play on the song. So, he was stuffed into a taxi and sent home, leaving Holmes to use a basic form of sampling for the drum track. It wasn’t ideal, but Holmes wasn’t too concerned. “Escape” was just a filler track so he could finish recording the album.

In a 2003 interview with SongFacts Magazine, Holmes said, “The original lyrics said, ‘If you like Humphrey Bogart and getting caught in the rain.’… As I was getting on mic I thought to myself, I’ve done so many movie references to Bogart and wide-screen cinema on my earlier albums, maybe I shouldn’t do one here. I thought, what can I substitute? Well, this woman wants an escape, like she wants to go on vacation to the islands. When you go on vacation to the islands, when you sit on the beach and someone asks you if you’d like a drink, you never order a Budweiser, you don’t have a beer. You’re on vacation, you want a drink in a hollowed-out pineapple with the flags of all nations and a parasol. If the drink is blue you’d be very happy. And a long straw. I thought, what are those escape drinks? Let’s see, there’s daiquiri, mai tai, piña colada… I wonder what a piña colada tastes like? I’ve never even had one. I thought that instead of singing, ‘If you like Humphrey Bogart,’ with the emphasis on like, I could start it a syllable earlier and go, ‘If you like piña-a coladas.’”


Fun Fact: Holmes brother, Richard, is an opera singer


When the album was finished, the studio decided they wanted to release “Escape” as a single. Holmes thought it was a bad idea, but didn’t fight them. The song floundered, never rising very high on the Billboard charts in the US. Then radio stations began reporting that they were being inundated with requests for “The Pina Colada Song.” Problem was, there was no song named “The Pina Colada Song”. The studio contacted Holmes and requested that the song be renamed. Holmes refused, but they came to a compromise: “Escape (The Pina Colada Song).” Once the song was renamed, it shot to number one.

Since then, “Escape (The Pina Colada Song)” has been featured in movies, such as Shrek, Guardians of the Galaxy, Grown Ups, and Like Father, as well as TV shows, such as Third Watch, The Goldbergs, Splitting Up Together, Living with Yourself, and It’s Always Sunny in Philadelphia. Not bad for a song that was considered a throw away by its author.

Rupert Holmes is considered a bit of a one hit wonder by many people. However, that’s not only unfair, but incorrect. He had eight songs on the Billboard 100, including “Him,” that peaked at number six, and “Answering Machine,” which rose to number thirty-two. Also, before writing “Escape (The Pina Colada Song),” he wrote songs for other artists, including Dolly Parton, Gene Pitney, and The Drifters. Here’s a song he wrote for The Partridge Family:

And here’s one that was included in Barbara Streisand’s hit movie, A Star is Born:

After writing “Escape (The Pina Colada Song),” Holmes expanded his horizons, writing a mystery novel entitled Where the Truth Lies, which won the Edgar Award and was turned into a movie starring Kevin Bacon. He also penned a play called The Mystery of Edwin Drood (later known as Drood) that won a Tony Award. He also created and wrote the American Movies Classic TV show Remember WENN.

Here is Holmes explaining the creation of “Escape (The Pina Colada Song),” as well as doing the song live:


Where For Art Thou, American Conservatism: An Internet Chat with David Brooks

Politically speaking, I came of age in 1980.  That year, I worked on the campaign of presidential candidate John Anderson, an Illinois Congressman who was running as an independent. To be honest, my motives working for the campaign were a bit misdirected. I was chasing a girl who worked on the campaign. Anderson won 6.6% of the vote. I did significantly worse.

But it wasn’t Anderson that opened my eyes to the world of politics. It was Ronald Reagan. Reagan exuded a positive, can-do attitude that I found contagious. While Democrats seemed to be constantly singing a song of woe, Reagan and the Republicans were singing a song of hope and possibility. For a young guy with his whole life ahead of him, the choice between the two was simple.

At the time, Republicans were the party of ideas. They had a message to move the country forward, to make life better for the average American. While Democrats groused about how bad everything was, Republicans offered positive solutions to the challenges we faced.

My, how things have changed. The script has completely flipped. Today, Republicans spend their time airing their grievances and doing what they can to take the country backwards to a time that exists only in their nostalgic minds. They’ve sold their souls to a reality TV conman who has reduced the once Grand Old Party to a cartel of grifters, conspiracy theorists, and authoritarian wannabes. At the same time, Democrats have become the party of ideas, offering hope and a vision for a brighter future where democracy is maintained and strengthened. The differences between the two parties couldn’t be much more stark.

The term “conservative,” has lost all meaning. When I was a young man growing up in the 1970’s and 80’s, a conservative could be a democrat, and a liberal could be a Republican. Those two terms–conservative and liberal–were not assigned to any one party. As a result, parties came to the table with proposals that worked for all (or most) of their members, and often, for most of the members of the opposing party as well.

Beginning in the 1980’s, liberals gravitated to the Democratic Party and conservatives to the GOP. For a while, it was easy to use the terms “liberal and Democrat,” as well as “conservative and Republican,” interchangeably. It’s still common to associate liberals with the Democratic Party, but where have the conservatives gone?

Today, Republicans—particularly MAGA Republicans—like to refer to themselves as conservative. But despite their claims, the word conservative has a defined meaning. And politics as practiced by Republicans is not conservative.

David Brooks, the New York Times opinion columnist, has a long list of conservative bona fides. For 20 years, Brooks has been the conservative voice at the NYT, and he has been the conscience of the Republican Party. He recently wrote an article in the Atlantic asking the question, what happened to American conservatism? I found his piece enlightening and have excerpted it below. If you’d like to read the entire article, you can find it here.

I thought it would be helpful to treat my interaction with Brooks article as a quasi-conversation in hopes of clarifying and expanding his thoughts. Brooks’ words are italicized. Mine are in normal font.

Brooks: What passes for “conservatism” now…is nearly the opposite of the Burkean (political philosopher Edmund Burke) conservatism I encountered then. Today, what passes for the worldview of “the right” is a set of resentful animosities, a partisan attachment to Donald Trump or Tucker Carlson, a sort of mental brutalism. The rich philosophical perspective that dazzled me then has been reduced to Fox News and voter suppression.

I recently went back and reread the yellowing conservatism books that I have lugged around with me over the decades. I wondered whether I’d be embarrassed or ashamed of them, knowing what conservatism has devolved into. I have to tell you that I wasn’t embarrassed; I was enthralled all over again, and I came away thinking that conservatism is truer and more profound than ever—and that to be a conservative today, you have to oppose much of what the Republican Party has come to stand for.

Mindar: Describing the culture of grievance and cult-like following of people like Donald Trump and Tucker Carlson as “mental brutalism” is apt. Cruelty seems to be the point of most Republican policy, assuming you can actually find Republicans advocating policy positions as opposed to spouting culture war sound bites. They seem to operate from the premise that what is good for the country—and they define “the country” as “us”—is what most hurts their political opponents. It’s this idea that the only thing that matters is owning the libs.

Republicans by and large have turned their backs on intellectualism. They view experts and people who have spent their lives studying a subject as “elites” who should be shunned and their opinions dismissed. Instead, they prefer the opinions of the MAGA everyman, a person or people who have no particular expertise, but who are fellow travelers with a common enemy. That’s how we got to the point on the right of people treating Covid with a horse dewormer.

The ”mental brutalism” also includes a propensity to resort to political violence. When they don’t have the superior argument or the moral underpinning or the requisite number of votes, followers of MAGA believe violence can get them what they want. It is perhaps the most un-conservative belief of this supposedly conservative political party. It is a belief that is far more at home in places like Russia, China, Iran, and North Korea than in modern day America.

Brooks: The most important sentiments are moral sentiments. Conservatism certainly has an acute awareness of sin—selfishness, greed, lust. But conservatives also believe that in the right circumstances, people are motivated by the positive moral emotions—especially sympathy and benevolence, but also admiration, patriotism, charity, and loyalty. These moral sentiments move you to be outraged by cruelty, to care for your neighbor, to feel proper affection for your imperfect country. They motivate you to do the right thing.

Burkean conservatism inspired me because its social vision was not just about laws, budgets, and technocratic plans; its vision was about soulcraft, about how we build institutions that produce good citizens—people who are moderate in their zeal, sympathetic to the marginalized, reliable in their diligence, and willing to sacrifice the private interest for public good. Conservatism resonated with me because it recognized that culture is more important than the state in driving history. “Manners are of more importance than laws,” 

Mindar: Like Brooks, I saw conservatism as a philosophy to build a better, kinder, more caring America, I wasn’t blind to the marginalized groups that were being left behind, but I thought a more compassionate conservatism could bring them along. Unfortunately, while I focused on individual bigotry and discrimination, I didn’t realize that institutional racism was so big and so pervasive that, even if we could cure individual citizens of their bigotry through conservatism, institutional racism would continue to weigh the country down. I admit, I was naïve. But I thought at the time that conservatism was the key to helping to lift up the downtrodden and right the discriminatory wrongs of the past.

Unfortunately, what has happened in the past several decades is that Republicans have embraced what Brooks calls the sinful aspects of conservatism—selfishness, greed, lust—mixed in with what passes for patriotism on the right, and have abandoned the more positive aspects of conservatism, such as charity, loyalty, community, and altruism, to create a toxic form of conservativism that worships the worst people, praises the worst attributes, and views the more positive aspects of Burkean conservativism as weak. People who exhibit these more positive aspects are referred to as “woke” or “snowflakes” by MAGA conservatives.

Brooks: Conservatives thus spend a lot of time defending the “little platoon[s],” as Burke called them, the communities and settled villages that are the factories of moral and emotional formation. If, as Burke believed, reason alone cannot find the one true answer to any social problem, each community must improvise its own set of solutions to intricate human concerns. The conservative seeks to defend this wonderful heterogeneity from the forces of bigness and the centralizing arrogance of rationalism—to protect these little platoons when government tries to perform roles best done in families, when the federal government takes power from local government, when big corporations suck the vitality out of local economies.

Mindar: Brooks speaks longingly of the conservative preference for small government. However, I would argue that the zealousness with which Republicans pursued small government (in rhetoric, if not in practice) is what has led to the distrust of governmental institutions necessary for the operation of a democracy. Preference for a small government turned into simple loathing for all government. This has led to today’s Republicans not having any coherent governing philosophy. Though they seek power, they do so for its own sake. They do not have grand plans for an American government that accomplishes anything other than tearing itself apart. They weaponize governmental power to punish their political enemies, even as they claim their political enemies are weaponizing government against them. In Congress, they hold the country hostage through the budget process; they threaten to defund the Department of Justice, the FBI, and the IRS; they say they want to eliminate the Environmental Protection Agency, the Department of Education, the Department of Energy, and any other department that displeases them. Their rhetoric is more akin to anarchy than conservative governance.

Brooks: True conservatism’s great virtue is that it teaches us to be humble about what we think we know; it gets human nature right, and understands that we are primarily a collection of unconscious processes, deep emotions, and clashing desires. Conservatism’s profound insight is that it’s impossible to build a healthy society strictly on the principle of self-interest. It’s an illusion, as T. S. Eliot put it, to think that a society in which people don’t have to be good can thrive. Life is essentially a moral enterprise, and the health of your community will depend on how well it does moral formation—how well it nurtures ordered inner lives and helps balance sentiments, desires, and motivations. Finally, conservatism welcomes you into a great procession down the ages. Society “is a partnership in all science,” Burke wrote, “a partnership in all art; a partnership in every virtue, and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.”

Mindar: This paragraph from Brooks is an excellent example of how far from conservatism Republicans have strayed. Nearly every action they take is designed to prop up their friends and destroy their enemies. There is no sense of community. They are not looking out for the least among us. In fact, they work to accomplish the exact opposite. They do everything they can to further marginalize the already marginalized. They apparently believe that society can thrive through self-interest and power. The health of the community is of no concern to Republicans. Or, to put a slightly finer point on it, they view the community as being made up of only those that believe as they believe. Non-believers are ostracized and excluded from the community. They refer to these non-believers as “not real Americans.” So, in their minds, they continue to care for the community, but the community doesn’t include anyone that doesn’t think like they think.

Brooks: I realized that every worldview has the vices of its virtues. Conservatives are supposed to be epistemologically modest—but in real life, this modesty can turn into a brutish anti-intellectualism, a contempt for learning and expertise. Conservatives are supposed to prize local community—but this orientation can turn into narrow parochialism, can produce xenophobic and racist animosity toward immigrants, a tribal hostility toward outsiders, and a paranoid response when confronted with even a hint of diversity and pluralism. Conservatives are supposed to cherish moral formation—but this emphasis can turn into a rigid and self-righteous moralism, a tendency to see all social change as evidence of moral decline and social menace. Finally, conservatives are supposed to revere the past—but this reverence for what was can turn into an abject deference to whoever holds power.

Mindar: Wow, what a paragraph. I agree with every word. MAGA Republicans have convinced themselves that: 1) Among nations, the United States is exceptional, and 2) Foreigners from lesser countries (some of them “shithole” countries) are overrunning our borders and intend to take our exceptional country away from “true Americans.” This jingoistic (not patriotic) fervor for country coupled with a paranoid hatred for outsiders is a hallmark of MAGA political philosophy. To stray from this doctrine is to have your MAGA card revoked, reduced to the scrap heap of RINOland.

Any mention of a change to policy that would benefit normal working-class folks or, worse yet, marginalized Americans, is met with a knee-jerk reflex among MAGA Republicans to shout “Socialism.” But for MAGA Republicans, “socialism” (along with a host of other words like “woke” and “critical race theory”) is defined as “anything they don’t like or agree with.” In this way, Republicans have ceased to be conservatives, and have instead become reactionaries, opposed to everything, but standing for nothing.

Brooks: American conservatism descends from Burkean conservatism, but is hopped up on steroids and adrenaline. Three features set our conservatism apart from the British and continental kinds. First, the American Revolution. Because that war was fought partly on behalf of abstract liberal ideals and universal principles, the tradition that American conservatism seeks to preserve is liberal. Second, while Burkean conservatism puts a lot of emphasis on stable communities, America, as a nation of immigrants and pioneers, has always emphasized freedom, social mobility, the Horatio Alger myth—the idea that it is possible to transform your condition through hard work. Finally, American conservatives have been more unabashedly devoted to capitalism—and to entrepreneurialism and to business generally—than conservatives almost anywhere else. Perpetual dynamism and creative destruction are big parts of the American tradition that conservatism defends.

Mindar: In this paragraph, Brooks uses the word “liberal” as opposed to illiberal, not as the opposite of conservative. That’s an important point, because American conservatism is wrapped up tightly with the liberal beliefs of individual liberty, equality before the law, political equality and consent of the governed. MAGA Republicans have all but abandoned these principles, instead opting for a more illiberal philosophy that eschews the very values that prompted our forefathers to break away from the crown and strive to form a more perfect union.

Brooks: If you look at the American conservative tradition—which I would say begins with the capitalist part of Hamilton and the localist part of Jefferson; extends through the Whig Party and Abraham Lincoln to Theodore Roosevelt; continues with Eisenhower, Goldwater, and Reagan; and ends with Mitt Romney’s 2012 presidential campaign—you don’t see people trying to revert to some past glory. Rather, they are attracted to innovation and novelty, smitten with the excitement of new technologies—from Hamilton’s pro-growth industrial policy to Lincoln’s railroad legislation to Reagan’s “Star Wars” defense system.

Mindar: This is what I was talking about before. The Republican Party was once the party of ideas. But as Brooks points out, the linkage between Republicans and conservatism was broken after Mitt Romney’s run for the White House. Donald Trump’s campaign and presidency abandoned conservative principles even while claiming to be the heirs to the American conservative tradition. The fact of the matter is, even while claiming the conservative moniker, Republicans are in many ways, the polar opposite of what has been an American conservative tradition.

Brooks: American conservatism has always been in tension with itself. In its prime—the half century from 1964 to 2012—it was divided among libertarians, religious conservatives, small-town agrarians, urban neoconservatives, foreign-policy hawks, and so on. And for a time, this fractiousness seemed to work.

American conservatives were united, during this era, by their opposition to communism and socialism, to state planning and amoral technocracy. In those days I assumed that this vibrant, forward-looking conservatism was the future, and that the Enoch Powells of the world were the receding roar of a sick reaction. I was wrong. And I confess that I’ve come to wonder if the tension between “America” and “conservatism” is just too great. Maybe it’s impossible to hold together a movement that is both backward-looking and forward-looking, both in love with stability and addicted to change, both go-go materialist and morally rooted. Maybe the postwar American conservatism we all knew—a collection of intellectuals, activists, politicians, journalists, and others aligned with the Republican Party—was just a parenthesis in history, a parenthesis that is now closing.

Mindar: MAGA Republicans have jettisoned intellectuals and credible journalists from their coalition, leaving them with only activists and the politicians who are willing to cow to those activists in order to get re-elected. It is an incestuous relationship that guarantees a dearth of new (or good) ideas, but plenty of ideas that are cruel, illiberal, and destructive of democracy.

Brooks: Donald Trump is the near-opposite of the Burkean conservatism I’ve described here. How did a movement built on sympathy and wisdom lead to a man who possesses neither? How did a movement that put such importance on the moral formation of the individual end up elevating an unashamed moral degenerate? How did a movement built on an image of society as a complex organism give rise to the simplistic dichotomies of manipulative populism? How did a movement based on respect for the wisdom of the past end up with Trump’s authoritarian campaign boast “I alone can fix it,” perhaps the least conservative sentence it is possible to utter?

Mindar: All good and legitimate questions. Trumpism is in many ways the opposite of conservativism. So, why have so many former conservatives been willing to not only tolerate, but in many cases, embrace and advocate for Trumpism?

Brooks: The reasons conservatism devolved into Trumpism are many. First, race. Conservatism makes sense only when it is trying to preserve social conditions that are basically healthy. America’s racial arrangements are fundamentally unjust. To be conservative on racial matters is a moral crime. American conservatives never wrapped their mind around this. My beloved mentor, William F. Buckley Jr., made an ass of himself in his 1965 Cambridge debate against James Baldwin. By the time I worked at National Review, 20 years later, explicit racism was not evident in the office, but racial issues were generally overlooked and the GOP’s flirtation with racist dog whistles was casually tolerated. When you ignore a cancer, it tends to metastasize.

Mindar: It thrills me to no end to read Brooks words admitting that conservatives have never fully dealt with America’s sin of racism. The way that Republicans have traditionally addressed racism has never sat well with me, even when I was a straight-line voting Republican. Sadly, things have only gotten worse. In the early years of my involvement with the Republican Party, the racism was subtle and indirect. Today, Republicans are only all too happy to spew their racist hate openly and unapologetically. In this way, Republicans have been successful in taking us back to a time that may have been good for white males, but not so great for anyone else.

Brooks: Second, economics. Conservatism is essentially an explanation of how communities produce wisdom and virtue. During the late 20th century, both the left and the right valorized the liberated individual over the enmeshed community. On the right, that meant less Edmund Burke, more Milton Friedman. The right’s focus shifted from wisdom and ethics to self-interest and economic growth. As George F. Will noted in 1984, an imbalance emerged between the “political order’s meticulous concern for material well-being and its fastidious withdrawal from concern for the inner lives and moral character of citizens.” The purpose of the right became maximum individual freedom, and especially economic freedom, without much of a view of what that freedom was for, nor much concern for what held societies together.

Mindar: MAGA Republicans love to talk about freedom. But their freedom is an immature, juvenile freedom that knows neither responsibility nor obligation. It is the freedom of a four-year-old that wants what they want when they want it, and to hell with everyone else. The truth is, there is no freedom—not true freedom—without responsibility. Without responsibility, freedom becomes selfishness, chaos, a moral adolescence that rejects community in favor of the self-centered me. It is an un-American type of freedom that defies the values that built the country. And it is a freedom that rejects the most basic tenets of conservatism.

Brooks: But perhaps the biggest reason for conservatism’s decay into Trumpism was spiritual. The British and American strains of conservatism were built on a foundation of national confidence. If Britain was a tiny island nation that once bestrode the world, “nothing in all history had ever succeeded like America, and every American knew it,” as the historian Henry Steele Commager put it in 1950. For centuries, American and British conservatives were grateful to have inherited such glorious legacies, knew that there were sacred things to be preserved in each national tradition, and understood that social change had to unfold within the existing guardrails of what already was.

By 2016, that confidence was in tatters. Communities were falling apart, families were breaking up, America was fragmenting. Whole regions had been left behind, and many elite institutions had shifted sharply left and driven conservatives from their ranks. Social media had instigated a brutal war of all against all, social trust was cratering, and the leadership class was growing more isolated, imperious, and condescending. “Morning in America” had given way to “American carnage” and a sense of perpetual threat.

I wish I could say that what Trump represents has nothing to do with conservatism, rightly understood. But as we saw with Enoch Powell, a pessimistic shadow conservatism has always lurked in the darkness, haunting the more optimistic, confident one. The message this shadow conservatism conveys is the one that Trump successfully embraced in 2016: Evil outsiders are coming to get us. But in at least one way, Trumpism is truly anti-conservative. Both Burkean conservatism and Lockean liberalism were trying to find ways to gentle the human condition, to help society settle differences without resort to authoritarianism and violence. Trumpism is pre-Enlightenment. Trumpian authoritarianism doesn’t renounce holy war; it embraces holy war, assumes it is permanent, in fact seeks to make it so. In the Trumpian world, disputes are settled by raw power and intimidation. The Trumpian epistemology is to be anti-epistemology, to call into question the whole idea of truth, to utter whatever lie will help you get attention and power. Trumpism looks at the tender sentiments of sympathy as weakness. Might makes right.

Mindar: The party of “alernatve facts” has disconnected itself from reality. In it’s place, they have erected a world based on lies, and their adherents have tacitly agreed to accept those lies as truth. Their preferred TV outlet, Fox News, has paid out over $1 billion in lawsuits over the past year alone because of their incessant lying, yet they continue to push lies and half-truths to mollify their viewers and keep them uninformed and in the fold. Since 2016, MAGA Republicans have built an entire eco-system where up is down and black is white.

A MAGA friend of mine once told me that he lives in a red world. When I asked him to explain, he said that he only watches right-leaning news, only reads right-leaning newspapers, magazines, and websites, and only socializes with his fellow right-leaning MAGA friends. He lives in a silo and isn’t interested in having his mind changed. I found this so sad. Why would anyone intentionally subject themselves to such a limited view of the world. I don’t think he believed he was being lied to, but he had to know that he was restricting his information intake to such a degree that he was an easy mark to be lied to. To me, it seems like a horrible way to live. But I suspect he was happy living that way, ignorant to the truth, but comfortable in his ignorance.

Brooks: On the right, especially among the young, the populist and nationalist forces are rising. All of life is seen as an incessant class struggle between oligarchic elites and the common volk. History is a culture-war death match. Today’s mass-market, pre-Enlightenment authoritarianism is not grateful for the inherited order but sees menace pervading it: You’ve been cheated. The system is rigged against you. Good people are dupes. Conspiracists are trying to screw you. Expertise is bogus. Doom is just around the corner. I alone can save us.

What’s a Burkean conservative to do? A lot of my friends are trying to reclaim the GOP and make it a conservative party once again. I cheer them on. America needs two responsible parties. But I am skeptical that the GOP is going to be home to the kind of conservatism I admire anytime soon.

Mindar: The Republican Party is a mere shell of its former self. Sadly, it does not appear that this will change any time soon, if ever.

Brooks: Trumpian Republicanism plunders, degrades, and erodes institutions for the sake of personal aggrandizement. The Trumpian cause is held together by hatred of the Other. Because Trumpians live in a state of perpetual war, they need to continually invent existential foes—critical race theory, nongendered bathrooms, out-of-control immigration. They need to treat half the country, metropolitan America, as a moral cancer, and view the cultural and demographic changes of the past 50 years as an alien invasion. Yet pluralism is one of America’s oldest traditions; to conserve America, you have to love pluralism. As long as the warrior ethos dominates the GOP, brutality will be admired over benevolence, propaganda over discourse, confrontation over conservatism, dehumanization over dignity. A movement that has more affection for Viktor Orbán’s Hungary than for New York’s Central Park is neither conservative nor American. This is barren ground for anyone trying to plant Burkean seedlings.

I’m content, as my hero Isaiah Berlin put it, to plant myself instead on the rightward edge of the leftward tendency—in the more promising soil of the moderate wing of the Democratic Party. If its progressive wing sometimes seems to have learned nothing from the failures of government and to promote cultural stances that divide Americans, at least the party as a whole knows what year it is. In 1980, the core problem of the age was statism, in the form of communism abroad and sclerotic, dynamism-sapping bureaucracies at home. In 2021, the core threat is social decay. The danger we should be most concerned with lies in family and community breakdown, which leaves teenagers adrift and depressed, adults addicted and isolated. It lies in poisonous levels of social distrust, in deepening economic and persisting racial disparities that undermine the very goodness of America—in political tribalism that makes government impossible.

Mindar: While I agree with most of what Brooks has written in the preceding paragraphs, I can’t help but notice that he once again demonizes government writ large.  Naturally, there are government failures that can be pointed to, but that doesn’t mean that government is bad. We need to move away from this idea that only a small, barely effective government is the goal.

Government in the United States needs to be improved, not abandoned or shrunk beyond recognition. We are a large, sprawling, diverse country with a plethora of needs. It can be easy to say that “the church should solve that problem,” or “that challenge should be addressed by the local community.” The government—whether federal, state, or local—is the best positioned organization to handle most of the country’s needs, and we need to get over this idea that the government either shouldn’t or isn’t capable of improving the lives of its citizens.

Brooks: There is nothing intrinsically anti-government in Burkean conservatism. “It is perhaps marvelous that people who preach disdain for government can consider themselves the intellectual descendants of Burke, the author of a celebration of the state,” George F. Will once wrote. To reduce the economic chasm that separates class from class, to ease the financial anxiety that renders life unstable for many people, to support parenting so that children can grow up with more stability—these are the goals of a party committed to ameliorating, not exploiting, a growing sense of hopelessness and alienation, of vanishing opportunity. Daniel Patrick Moynihan’s brilliant dictum—which builds on a Burkean wisdom forged in a world of animosity and corrosive flux—has never been more worth heeding than it is now: The central conservative truth is that culture matters most; the central liberal truth is that politics can change culture.

Mindar: Yes, this is what I was just saying. Conservatism has morphed into an anti-government philosophy. But Burkean conservatism doesn’t preach an anti-government sermon. Sadly, today, those that call themselves conservatives are rarely conservative. If American conservatism isn’t dead, it is badly wounded, and it’s prognosis is quite grave.


How Fascism Will Come

The following prose poem, “How Fascism Will Come,” was written in 2011 by Terry Ehret, an American poet, novelist, and teacher. In it, Ehret predicts a future that is dark, violent, and sadly, all too prescient.

How Fascism Will Come

“When fascism comes to America it will be wrapped in the flag and carrying a cross.” —attributed to Sinclair Lewis

When fascism comes, it will greet us with a smile. It will get down on its knees to pray. It will praise Main Street and Wall Street. It will cheer for the home team. It will clap from the bleachers when the uninsured are left to die on the street. It will rally on the Washington Mall. It will raise monuments to its heroes and weep for them and place bouquets at their stone feet and trace with their fingers the names engraved on the granite wall and go on sending soldiers to die in the mountains of Afghanistan, in the deserts of Iraq. It will send doves to pluck out the eyes of its enemies, having no hawks to spare.

When fascism comes, it will sit down for tea with the governor of Texas. It will pee in the mosques from California to Tennessee, chanting, “Wake up America, the enemy is here.” It will sing the anthems of corporatization, privatization, demonization, monopolization. It will be interviewed, lovingly, on talk radio. It’ll have talking points and a Facebook page and a disdain for big words or hard consonants. It won’t bother to read. It will shred all its books. It will lambast the teachers and outlaw the unions.

When fascism comes, it will look good. It will have big hair, pressed suits, lapel pins. It will control all the channels. It will ride in on Swift Boats. It will sit on the Supreme Court. It will court us with fear. It will woo us with hope. When fascism comes, it will sell shares of itself on the stock market. It will get rich, then it will get obscenely rich, then it will stop paying taxes. It will leave us in the dust. It will kick our ass. It won’t have to break a sweat to fool us twice. It will be too big to fail.

When fascism comes to America, it will enter on the winds of our silence and indifference and complacency. And on that day, one hundred thousand poets will gather. In book stores and libraries, bars and cafes, in their houses and apartments, in schools and on street corners, they will gather. In Albania, Bangladesh, Botswana, Bulgaria, Chile, China, Czech Republic, Finland, Guatemala, Hungary, Macedonia, Malawi, Qatar, crying, laughing, screaming. They will wrap the sad music of humanity in bits of word cloth and hang them, like prayers, on the tree of life.

–Terry Ehret


Author’s note: This was written for the 100 Thousand Poets for Change reading, September 23, 2011, Santa Rosa, California. The poem is woven with images and fragments of rants and blogs and online articles I found when I googled the Sinclair Lewis quote. These appear in italics.


Saving the Court: Conclusion (Part 10)

This is part 10 of the Saving the Court series. I would encourage you to read previous posts, including

The Supreme Court is facing several issues that it must overcome in order to stay legitimate and credible in the minds of the American public. The problems start with a seemingly dysfunctional nomination and confirmation process that continues to escalate with no sign of slowing down. Democrats and Republicans are both to blame for the dysfunction, which threatens to expand outside the confirmation process and potentially impact the operation of the Court itself.

Justices are staying on the Court for increasingly long terms, resulting in more and more geriatric jurists who outstay their most productive years, staying on the Court into periods of, what one observer called, “mental decrepitude.” These longer and longer terms also lend themselves to an increasingly unbalanced Court that rules on cases with views and values that are no longer shared by a majority of the public.

Because of the imbalance on the Court, case decisions are seen as more and more partisan. Opinions seem pre-ordained, leading many in the public to view Justices as pushing a political agenda rather than impartially ruling on the cases before them.

The result of all of these factors is a Supreme Court that is increasingly viewed as illegitimate by the American public. The call has increased in recent years to reform the Court, and several reform proposals have been examined in this series. By combining a few of the proposals, I believe legitimacy of the Court in the eyes of the public can be restored and strengthened.

The proposals I would recommend are:

  1. Nomination & Confirmation Process – Clarify rules surrounding the confirmation process in the Senate focusing on timelines for hearings and uniformity in the process. By far, this is the most important and effective reform Congress can make to address the Court’s legitimacy crisis.
  2. Term Limits – Implement term limits of 18-years for Supreme Court Justices and guarantee that each President, regardless of party or Court size, will get a minimum of two appointments to the Court per term, to be made in odd numbered years.
  3. Supermajority Vote Requirement – Require a supermajority vote of 6-3 to invalidate any act of Congress or Executive order. This will help to restore a constitutional balance to the three branches of government, slightly moving some power back to the democratically accountable branches.
  4. Emergency Orders – Reform “shadow docket” procedures to provide more accountability of Justices, more guidance to lower courts and the government, and more transparency for the public.
  5. Judicial Ethics – Require that Supreme Court Justices follow a written code of conduct. This can be the existing code followed by lower federal court judges (The Judicial and Disability Act of 1980) or it can be a separate code of ethics created by either the Justices themselves or Congress.
  6. Transparency – Decisions of the Court should begin to be televised immediately After a suitable time to work out any bugs and address any concerns the Justices might have, Court proceedings, including oral arguments, should be televised. The work being done by the Supreme Court is important to all citizens, and they deserve to be able to watch the Court in action.

There’s one other reform proposal that I didn’t include in this list that tends to be the most popular. A majority of Americans support increasing the size of the court. Although it’s popular, it is a double edge sword. On the one hand, increasing the size of the Court—usually proposed as going from the current size of nine Justices to thirteen—would defeat the reactive right-wing nature of the current Court, which would help strengthen our democracy. Obviously, that’s a good thing. However, increasing the size of the Court would likely feel too contrived and political, which would almost certainly further deepen the Court’s legitimacy crisis, at least in the short run.

I have to admit that I don’t feel comfortable advocating for increasing the size of the Court. Like so many other Americans, I’m increasingly angered by both the Justices’ ethical lapses and the often partisan decisions reached by the Court. Changes need to be made. Even so, I’m very leery of doing anything that would make the Court even less legitimate in the eyes of the public than it already is. We can’t save the Court by destroying it’s legitimacy.


Saving the Court: Other Proposed Reforms (Part 9)

This is part 9 of the Saving the Court series. I would encourage you to read previous posts, including


Law Professors Daniel Epps (Washington University-St. Louis) and Ganesh Sitaraman (Vanderbilt University) offer two unique reform proposals that deal with the structure of the Court, and both would significantly change the way the Court operates. They are the Supreme Court Lottery and the Balanced Bench proposals.

The Supreme Court Lottery

Under the “Supreme Court Lottery” proposal, every judge on the federal court of appeals would also be appointed as an associate Justice of the Supreme Court. Justices would be appointed by lottery and would serve for a two-week period. The Justices would not relocate permanently to the Supreme Court, but would instead remain in their current location, returning to their home court when their work on the Supreme Court is completed.

“This approach would have significant benefits. First, it would de-politicize the appointments process. The lottery approach takes the Supreme Court out of the electoral and political realm. It would also mean that Court appointments would no longer be as significant an issue during elections, and that the future of the Court and of American public policy would no longer depend on random occurrences, such as the unexpected death of a Justice. This would also free up presidents and congresses to do the work of governing, instead of occasionally putting that work aside for Court appointments.”

Cases would be chosen blindly. During their two weeks of service, Justices would consider petitions for Supreme Court review, but because their term of service would be so short, Justices could not choose cases with an agenda in mind. Instead, a different slate of Justices would hear the selected cases. In addition, the Supreme Court lottery system would stymie activist lawyers from seeking out friendly Justices, since they would not know who would hear their case when it is filed.

Another feature of the Supreme Court Lottery is that “a 7-2 supermajority of the Court, rather than a simple majority, would be needed to overturn a federal statute.” In addition, if a lower court were to strike down a federal statute, the Supreme Court would be required to hear the case, and it would take a supermajority (7-2 vote) for the statute to be ruled unconstitutional, regardless of the lower court’s decision.

Epps and Sitaraman argue that their proposal can be implemented by statute, and a Constitutional amendment would not be necessary. The proposal would require that the size of the Supreme Court be increased to 180 Justices, and rules would need to be implemented for how the Court would hear cases, including rules for choosing Justices via the lottery. Justices would continue to serve lifetime appointments, contingent on good behavior, and current Justices would not lose their positions on the Court. Instead, they will simply be added to the lottery rolls along with the federal courts of appeal judges. The Chief Justice would remain in his role and would continue to carry out his statutory duties, including presiding over impeachment hearings, while being subject to the Court’s lottery system.

The Balanced Bench

The “Balanced Bench” proposal envisions a Supreme Court made up of ten Justices, five affiliated with the Republican Party and five with the Democratic Party. Those ten Justices would in turn select another five Justices chosen from the circuit courts (or possibly district courts). The five lower court Justices would have to be chosen unanimously (or by a supermajority) and would be chosen two years in advance to serve a one-year term. If the Justices were unable to select five lower court Justices unanimously (or by supermajority vote), the Court would lack a quorum and could not hear any cases that term.

One of the main motivations behind the balanced bench proposal, according to Epps and Sitaraman, is that it restores the notion that Supreme Court Justices are deciding questions of law and leaving their political preferences at the doorstep. Unlike today, when it is nothing more than a quaint notion that a Justice would vote against their party’s interests, there once was a time when Justices did just that, even in periods of serious political conflict.

As part of the balanced bench proposal, “[t]he permanent, partisan-affilitated Justices would have to agree on colleagues who have a reputation for fairness, independence, and centrism, and who have views that do not strictly track partisan affiliation: in short, the kind of judges who have a minimal chance of being appointed to the Supreme Court today.”

Discussion: I appreciate proposals that take a big swing at a perceived problem. Epps and Sitaraman’s Supreme Court lottery and balanced bench proposals certainly take big swings when it comes to addressing the legitimacy crisis the Court finds itself in.

Let me comment first on the balanced bench proposal. To my mind, it is the easier of the two to dismiss as unworkable.

The balanced bench proposal works in a similar fashion to the way arbitration works in civil cases, where each party chooses an arbitrator, and the arbitrators together choose a third arbitrator. With fewer people making the choice, this method works well. A concern I have with the balanced bench approach is that ten Justices must come together to unanimously (or with a supermajority vote) choose five additional Justices. In practice, this would be extremely challenging.

In addition, the penalty for not being able to agree on five lower court judges renders the Supreme Court impotent for an entire term. This is unrealistic and unworkable. The nation needs a functioning Supreme Court to decide the myriad important cases it routinely handles each year. Closing the Court for just one year could potentially have disastrous consequences.

Another flaw of the balanced bench proposal is that it presupposes that Republicans and Democrats will always be the two major political parties in the United States. As we know, this has not always been so, and there is no guarantee it will be that way into the future. It’s also likely that independents, Libertarians, and other minor parties would insist on recognition were the proposal ever to become law, making it even more unwieldy than it already is.

Perhaps the highest hurdle the balanced bench proposal would have to overcome is the constitutional issues surrounding having the ten Supreme Court Justices select five additional Justices. Article II, § II, Clause II (the Appointments Clause) of the United States Constitution gives the President the power to “nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

The Constitution does not empower Supreme Court Justices to appoint other Supreme Court Justices. On this point, Epps and Sitaraman’s proposal appears doomed. However, they argue that Justices from one court are currently allowed to sit on another court without raising constitutional issues. They point to Supreme Court Justices who occasionally sit on circuit courts of appeal, and circuit judges who sometimes sit on district courts. In each case, it is a higher court judge sitting on a lower court, not the other way around.

Epps and Sitaraman also point to the Foreign Intelligent Surveillance Act (FISA) court, where the Chief Justice of the Supreme Court designates judges to “hear applications for and grant orders approving electronic surveillance anywhere within the United States.” They argue that FISA Court judges are Article III judges, but they are not appointed to the court by the President.

Even so, Article II, § II, Clause II makes clear that only the President can appoint Justices to the Supreme Court. While some appointment power is delegable, the power to appoint Supreme Court Justices is not. I find Epps and Sitaraman’s argument on this point unpersuasive.

For me, the Supreme Court lottery proposal is more interesting, and I believe, more workable. To be sure, it would be a big change, having 180 or more Justices on the Supreme Court, although only nine would be working cases at any given time. The 7-2 supermajority vote requirement to invalidate federal legislation would also be a big change. I would welcome a supermajority vote requirement, although I would personally prefer a 6-3 requirement.

Just as with the balanced bench proposal, the Supreme Court lottery proposal has some potential constitutional challenges. For instance, the dual appointments and supermajority voting requirements would likely be challenged. However, unlike the balanced bench proposal, in both cases, I think those challenges could be overcome.

Having said that, I do not support the Supreme Court lottery proposal. The large number of Supreme Court Justices, the procedures needed to determine which Justices will hear which cases, the short duration of the terms, and to a lesser extent, the supermajority voting requirement, would tend to confuse the public, negatively impacting their view of the Court and further calling into question the Court’s legitimacy.

Epps and Sitaraman identify many of the same problems with the Court as I detailed in the introduction to this series. We agree that the problems create a legitimacy crisis for the Court, which, if left unaddressed, could lead the public and the political branches of the government to ignore the Court, not giving their decisions the attention nor deference, they deserve. Even so, the solutions Epps and Sitaraman offer—the Supreme Court lottery and the balanced bench—do not adequately address the crisis and could potentially make it worse.


Saving the Court: Supreme Court Procedures and Processes (Part 8)

This is part 8 of the Saving the Court series. I would encourage you to read previous posts, including


This post deals with three issues that, while not as high profile as reform proposals such as expanding the size of the Court or term limits for Justices, are nonetheless exceedingly important in strengthening the legitimacy of the Court in the minds of the public. The issues to be examined in this chapter are the Court’s use of emergency orders, which are becoming increasingly utilized and increasingly problematic; judicial ethics, which, at the time of this writing are very much in the news; and public access to the Court’s proceedings.

Emergency Orders

Most people are familiar with the work of the Supreme Court because of the decisions it makes in “merits cases.” However, the Court does much more than just decide merits cases. In fact, the vast majority of the cases filed in the Supreme Court are disposed of summarily by unsigned orders. Most common are the thousands of orders the Court issues each year declining to review cases by denying petitions for certiorari.

Another category of unsigned orders involves emergency requests to issue an injunction, vacate a lower court’s injunction, grant or lift a stay of a lower court ruling, or deny such emergency relief. Although lesser known than the Court’s merits cases, emergency orders nonetheless have substantial impact on the rights and obligations of governments, private institutions, and broad segments of the American public.

For the purposes of this post, it is important to understand the difference between merits cases and emergency orders. Merits cases are cases in which the Court grants review and the parties then conduct established rounds of briefing and participate in oral arguments. The Court may also receive briefs from interested non-parties called amici curiae. In these cases, the Court eventually issues a decision with a reasoned, written opinion and discloses the votes of all Justices. These robust procedures are intended to ensure that the Court’s decisions are well informed, fair to the parties, and attentive to implications for the broader legal system. The opinions in these merits cases generally carry the full weight of precedent and thus are written in a manner that not only binds lower courts but also aspires to guide them, all while limiting the likelihood that the Court will dramatically change its own positions in the near future.

In contrast, according to Stephen Vladek, professor at the University of Texas School of Law, emergency orders, which have come to be known as the “shadow docket,” “typically come after no more than one round of briefing (and sometimes less); are usually accompanied by no reasoning (let alone a majority opinion); invariably provide no identification of how (or how many of) the Justices voted; and can be handed down at all times of day — or, as has increasingly become the norm, in the middle of the night. Owing to their unpredictable timing, their lack of transparency, and their usual inscrutability, these rulings come both literally and figuratively in the shadows.”

The shadow docket is not a new phenomenon, although the “shadow docket” moniker is. It was first coined in 2015 by University of Chicago Law Professor Will Baude, and refers to the hidden, almost secretive nature of cases handled as emergency orders. Unlike merits cases decisions, which are announced promptly beginning at 10:00 AM eastern time on “decision days,” shadow docket announcements occur at unpredictable times, often coming late at night or extremely early in the morning when most Court watchers are sleeping. Despite this fact, it is important to point out that there is nothing inherently pernicious about the shadow docket. Every court needs a means to handle applications and emergency requests not part of merits cases. The shadow docket is not the problem. It is the way the Court handles cases on the shadow docket that has become an issue.

For most of the Court’s history, the shadow docket was largely ignored. Decisions made on shadow docket cases were largely inconsequential, involving non-controversial cases. A few cases, such as an emergency order to halt bombing in Cambodia, the initial stay of the Florida recount in the case that became Bush v. Gore (531 U.S. 98), as well as many death penalty cases, are exceptions. But even with those cases, the focus was on their substance, not the Court’s procedures.

In 2017, the Court began to issue many more emergency orders. However, it’s not just the quantity of emergency orders that has changed. Vladek, who has become the foremost expert on the Supreme Court’s shadow docket, says there are six primary ways that the Court has changed the way they handle the shadow docket.

  1. With the exception of ordinary writs of certiorari, “there are a lot more cases in which the Justices are using the shadow docket not only to grant emergency relief — where the Court’s summary action disrupts what was previously true under rulings by lower courts — but to grant emergency writs of injunction, which are supposed to be the most extraordinary and unusual form of such relief… What these injunctions underscore is that the kind of emergency relief the Court is issuing has changed. Even when the Court was granting a handful of stays between 2005 and 2013, for instance, most involved executions — where the ruling had little impact beyond the case at issue. Now, in contrast, many of these rulings are either directly enjoining statewide policies…or staying lower-court rulings that had enjoined state/federal policies. In that respect, these emergency rulings are having a far broader substantive impact, for better or worse, compared to emergency rulings in the past.”
  2. “[T]he shadow docket during the Trump administration saw a remarkable increase in action from the Solicitor General. In contrast to the eight applications for emergency relief filed by the Justice Department between January 2001 and January 2017…the Justice Department filed 41 applications for such relief during Trump’s presidency — asking the Justices to intervene at a preliminary stage of litigation more than 20 times as often as either of its immediate predecessors. Emergency applications became such a central feature of the Office of the Solicitor General during the Trump administration that it even led to a restructuring of the Office’s staff. And the dramatic increase in applications paid dividends. Not counting one application that was held in abeyance and four that were withdrawn, the Justices granted 24 of the 36 remaining applications in full, and another four in part.”
  3. In recent years, the shadow docket has become much more publicly divisive. For instance, during the George W. Bush and Barak Obama administrations (a total of sixteen years), only eight emergency order applications were filed by the Solicitor General, and only one provoked a public dissent from a Justice. By contrast, “27 of the 36 applications from the Trump administration on which the Justices ruled provoked at least one Justice to publicly dissent. And expanding the focus beyond applications from DOJ, there has been a sharp increase in the total number of shadow docket rulings that have provoked four (and even three) public dissents. During the October 2017 Term (Justice Kennedy’s last on the Court), for instance, there were exactly two shadow docket rulings with four public dissents. In the next two Terms, there were 20. Indeed, during the October 2019 Term, there were almost as many public 5-4 rulings on the shadow docket (11) as there were on the merits docket (12).”
  4. “Fourth, although it has long been a criticism of the shadow docket, especially denials of certiorari, that the public usually has no idea how many Justices voted for a specific outcome (let alone which Justices), that concern has become that much more pronounced as the public tally has increasingly reflected multiple dissents. Consider, in this respect, the Court’s February 2021 order refusing Alabama’s request to vacate a lower-court injunction that had blocked a scheduled execution. Four Justices joined in an opinion explaining the basis for their concurrence. Only three Justices noted dissents. So we know that either (or both) of Justices Alito and Gorsuch joined the majority to block the execution. But we have no idea which of them, or if they both did, or why. Stealth votes aren’t new, but as the shadow docket grows in both absolute terms and divisiveness, the stealth votes are increasingly the dispositive ones — which, among other things, complicates efforts to decipher the potential impact of the Court’s ruling beyond the instant case.”
  5. “[A]ccompanying the rise of the shadow docket has been the rise of new (and unusual) forms of relief. Consider the aftermath of the ‘South Bay II’ decision handed down on February 5, (2021) in which the Court, in an unsigned order, issued an emergency writ of injunction barring California from enforcing at least some of its COVID-related restrictions on indoor worship services. The following Monday, the Court issued an order in another California case in which a plaintiff had also sought an emergency injunction. Instead of granting the injunction, the Court treated the application as it if were seeking a petition for a writ of certiorari before judgment (itself an unusual procedural vehicle). It granted the petition and issued a ‘GVR,’ i.e., a summary order granting the petition; vacating the district court’s order; and remanding ‘for further consideration in light of’ South Bay II — itself an unsigned order that was not accompanied by an opinion of the Court. What about the Court’s summary ruling in South Bay II was supposed to lead the district court to reconsider its prior ruling? To similar effect, on January 15, the Court granted another petition for certiorari before judgment in a federal death penalty case — and, unlike the ‘GVR’ order in Gish, summarily reversed the district court on the merits. That is, the Court jumped over the Court of Appeals and issued a one sentence merits ruling,” a procedural outcome that, according to Vladek, had never happened before.
  6. “[T]he dramatic increase in significant shadow docket rulings has brought with it novel questions about how lower courts are supposed to give precedential effect to rulings that the Supreme Court has itself previously suggested are of little precedential value. For instance, a panel of the Fourth Circuit split sharply in August 2020 over what to make of how the Supreme Court had handled emergency applications in different cases brought by different parties challenging the same underlying governmental policy…Simply put, it is no longer possible for any reasonable observer to dispute that there has been a dramatic uptick in significant, broad-impact rulings on the shadow docket in the past few years; that these rulings have been unusually divisive; that they are leading to novel forms of procedural relief from the Court; and that their substantive effects are causing significant uncertainty both in lower courts and among those government officers, lawyers, and courtwatchers left to parse what, exactly, these rulings portend both for the specific policies at issue and for the broader contours of the relevant legal doctrines.”

The six changes outlined above chronicle how the Court has come to make increasingly important decisions without benefit of the structure and uniformity associated with merits cases. These shadow docket decisions, which are becoming increasingly common, are not providing any reasoning for the decisions reached, not disclosing the vote of the court or how each Justice voted, and decisions are being revealed at a time and in a manner that lack transparency and cause confusion.

Simply put, the rise of the shadow docket, particularly at the expense of the merits docket, is chipping away at the legitimacy and public perception of Supreme Court decisions. As Professor Vladek writes, “If the Court is handing down a higher number of decisions affecting Americans in unsigned, unreasoned orders, both in absolute terms and relative to merits rulings, that necessarily exacerbates charges — fair or not — that the Justices are increasingly beholden to the politics of the moment rather than broader jurisprudential principles.”

Justice Sonia Sotomayor further warns that the way the shadow docket is currently being used tends to “erode[] the fair and balanced decisionmaking process that this Court must strive to protect.” (Wolf v. Cook County, Ill.) In the infamous Whole Women’s Health shadow docket case (also known as the Texas SB8 case), Justice Elena Kagan took the majority to task for “barely bother[ing] to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail…the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.” (Whole Woman’s Health v. Jackson)

Procedural regularity matters. The way the Supreme Court carries out its charter, not just the decisions it reaches, are what give the Court legitimacy. As the Court said in Planned Parenthood of SE Pennsylvania v. Casey (505 U.S. 833):

“The Court’s power lies . . . in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.

“The underlying substance of this legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court’s opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”

 There are two proposals to consider to reform the way the Supreme Court uses the shadow docket. The first is offered by Professor Vladek and is designed as an overall remedy for what ails the shadow docket. The second was published by the Presidential Commission on the Supreme Court of the United States in 2021 and is designed specifically for emergency order applications relative to capital cases.

Vladek breaks his reform proposal down into two sections. Section one deals with reforms that the Court can implement on its own without input from Congress. Section two reforms are those that Congress can enact to make the Court’s use of the shadow docket more effective and transparent.

Court-Initiated Reforms

  1. Revive the practice of having individual circuit judges (rather than the full Court) resolve even contentious emergency applications whenever and wherever possible (including, where appropriate, holding in-chambers oral arguments).
  2. Formally publish any order by an individual circuit judge denying an application, whether or not it is accompanied by an opinion.
  3. Amend the Court’s formal rules and informal norms to provide far clearer guidelines for the procedures and timing of emergency applications (at least in non-capital cases), including the rules governing amicus participation and the possibility of oral argument before either the full Court or the circuit judge.
  4. Commit, at least informally, to publishing a rationale (and publicly identify the concurring and dissenting Justices) for (1) any order that grants an application for emergency relief; (2) any order (other than a denial of certiorari) from which a Justice publicly dissents; or (3) any other order that the Justices intend to have precedential effect in the lower courts.
  5. Tie any order granting emergency relief to a specific statutory authority — and, where possible, articulate why the relevant standard for such relief has been satisfied.
  6. Commit to scheduled releases of orders on emergency applications except where circumstances prohibit it (as in last-minute execution-related litigation), and to provide advance public notice of order issuance wherever possible.
  7. Treating applications for emergency relief on novel and important questions of federal law as petitions for certiorari — and adding the case to the merits docket for plenary review at the same time as the Court rules on the emergency application.

Congress-Initiated Reforms

  1. Congress can and should consider mechanisms for taking pressure off of the shadow docket. If the rise of the shadow docket is in part a reaction to external catalysts, Congress can, of course, address them. Among other things, such reforms might include:
    1. Allowing the federal government to transfer all civil suits seeking “nationwide” injunctive relief to the D.C. district court — to avoid the concern of overlapping (or diverging) “nationwide” injunctions.
    2. In cases in which any (state or federal) government action is enjoined by a lower federal court, speed up the appellate timelines so that appeals of lower-court rulings receive plenary review much faster — by shortening the time for filing an appeal; by mandating aggressive briefing schedules; and by strongly encouraging courts to give such cases all due priority.
    3. In capital cases (where Justices from across the spectrum have bemoaned the difficulty of confronting novel legal questions on the literal eve of a scheduled execution), give the Court mandatory appellate jurisdiction at least over direct appeals — and make it easier for prisoners to bring method-of-execution challenges before an execution date has been set.
  2. Congress might consider codifying certain features of the shadow docket that were only norms historically. These could include:
    1. Codifying the traditional four-factor test that the Court applies in considering applications for emergency relief.
    2. Encouraging the Justices to provide at least a brief explanation of any order that grants any type of emergency relief.
    3. Encouraging the Court to hold arguments on applications where there is at least a reasonable likelihood that the Justices will grant relief.
    4. Requiring (or, at least, encouraging) applications to be resolved in the first instance by the Circuit Justice without referral to the full Court. (Vladek 2021, 31-34)

Proposals for Capital Cases

Capital cases pose a serious challenge to the Supreme Court. These cases come to the Court as emergency petitions as the date of execution nears, and as unresolved legal challenges related to the execution pend in the lower courts.  If a stay of execution is not granted in the lower court, the condemned person will turn to the Supreme Court for a stay. If the lower court does grant the stay of execution, the state will ask the Supreme Court to vacate the stay so the execution can be carried out.

The prospect of the Court making a mistake in a capital case is obvious. “At the extreme, the risk of legal error may compound a risk of factual error, thus raising the worry that the state may kill an innocent person.” The worry is not unfounded.

According to Christina Swarns of the Innocence Project, “One-hundred-eighty-five people have been exonerated after being wrongfully convicted of a capital offense and condemned to death. This means that for every eight executions in this country, one person has been exonerated.” Considering the statistics, “the risk of convicting and executing an innocent person is real and constitutionally unacceptable.”

Not all appeals in capital cases revolve around the innocence of the person condemned to death. In some cases, the concern is instead that the execution will violate constitutional or other legal rights by carrying out the execution.

Notre Dame Law Professor Steven Bray sees the prospect of an error on an emergency order petition in a capital case as an asymmetrical proposition. “[T]here is no symmetry between an erroneous execution and an erroneous non-execution. If proper attention is given to irreparability and the need to preserve the judiciary’s ability to decide a case, then the Justices should be much more willing to give shadow docket orders that delay an execution than shadow docket orders that accelerate an execution.” 

Asymmetric or Automatic Stays of Execution

The first proposal offered incorporates the asymmetry discussed by Professor Bray. There should be a “presumption in favor of staying an execution when there is genuine doubt as to its legality, or with a heightened standard of review for vacating stays when lower courts have issued them.”

Under a proposal endorsed by Justice Stevens and by a commission led by Justice Powell, “the Supreme Court should be required to automatically grant a stay of execution to any defendant who has not yet completed a first federal habeas review.” Professor Vladek offered that “every person with a pending execution date should have at least one full opportunity to litigate any challenges to the state’s proposed method or administration of execution.”

Four Votes to Stay an Execution

In 1994, Ronald B. Smith was convicted of the murder of a convenience store clerk. Of the twelve people on the jury that heard his case in Huntsville, Alabama, seven voted to convict. Five did not. Since Alabama only requires a simple majority vote in murder cases, Smith was convicted. The jury recommended a sentence of life without parole, but the judge overruled them, instead sentencing Smith to death.

When Smith’s lawyers filed an emergency order to stop his execution with the Supreme Court, four Justices voted to grant the stay. That was not enough. Supreme Court rules require at least five votes to grant an emergency request to stay an execution. Ronald Smith was executed on December 8, 2016. Despite four Supreme Court Justices believing there was a problem with his conviction and would have likely voted to grant a writ of certiorari to consider his case, they never got the chance.

This second reform proposal would reduce the number of votes required to grant a stay from five Justices down to four. Such a reform would address what is known as “a lethal gap” in the Court’s administrative process. It takes four votes to put a case on the court’s docket (via writ of certiorari), but it takes five to stop an execution. In other words, it is possible for the Court to grant certiorari in a death penalty case and schedule the case for full briefing and argument to consider an important question of law, and yet also allow the petitioner to be executed while the case is pending.

Justices have known about the lethal gap for years, and at times have addressed it by employing what is known as a “courtesy fifth,” when a Justice who does not believe that stay is warranted will nonetheless vote for the stay if four other Justices have voted for it already. However, the “courtesy fifth” is an informal rule, not a written edict, and Justices are not compelled to follow it. As a result, it is not always employed.

In one case, “four Justices voted to call for the views of the Solicitor General, a step typically taken only in cases in which the Court is seriously considering granting certiorari. But as Justice Breyer noted in dissent, ‘[N]o Member of the majority…proved willing to provide a courtesy vote for a stay so that we can consider the Solicitor General’s view once received. As it is, the request will be mooted by petitioner’s execution.”

In Dunn v. Price (139 S. Ct. 1312), the state petitioned the Court to vacate a lower court stay on the evening of the execution. Four Justices asked that the application be held until the next day’s regularly scheduled conference so all the Justices could discuss the issue. The Court refused and entered a brief order vacating the stay. Again, no courtesy fifth could be found.

Discussion: For the past several years, the Supreme Court’s “shadow docket” has become increasingly controversial. It is not the docket itself that is the subject of controversy, but the way the Justices use it. More and more cases are being decided on the merits as part of the shadow docket, which is a problem because the Court rarely hears arguments, decisions are rarely explained, Justices’ votes are not recorded, and lower courts do not know when they should consider a shadow docket decision as precedent, and if they should, based on what rationale. As a result, the public has less knowledge of or trust in the Court’s decisions, making a bad legitimacy crisis even worse.

Unlike more popular reforms, like expanding the size of the Court or term limits for Justices, the reforms offered in this post are “low risk” reforms, meaning they don’t impact the structure or jurisdiction of the Court, and can be implemented without much risk of making the current situation worse. If there are negative unintended consequences, the reforms can fairly easily be reversed.

Having said that, the proposed reforms have a good likelihood of improving the current situation with the shadow docket. They will likely bring the shadow docket out of the shadows and require the Court to explain their decisions, record their votes, give guidance to lower courts, and instill a sense of legitimacy to the process.

This is especially true with capital cases. The stakes are too high when an execution is pending to rely on sub-optimal, often unwritten, rules. As was stated previously, the stakes are asymmetrical between granting a stay of execution and vacating a stay. The Court should have an institutionalized preference for granting a stay.

Judicial Ethics

The House Select Committee looking into the January 6 attack on the United States Capitol revealed that it had obtained several text messages related to the attack between Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, and Mark Meadows, Chief of Staff for former President Donald Trump. As part of their investigation, the Committee subpoenaed documents from Trump, who moved to thwart the subpoena under the guise of Executive Privilege. The Supreme Court ruled 8-1 that Trump must turn over the documents—including the text exchange between Ginni Thomas and Meadows—to the committee. The lone dissent? Justice Clarence Thomas.

Even fans of Ginni Thomas’s politics and supporters of Clarence Thomas’s work on the Court find it difficult to justify Justice Thomas not recusing himself from a case in which his own wife was so intimately involved. The Judicial Conduct and Disability Act of 1980 requires that a judge recuse themselves whenever there is the slightest conflict of interest. The problem is that, while other federal judges are subject to The Judicial Conduct and Disability Act, Supreme Court Justices are not.

The need for a code of ethics for Supreme Court Justices has been discussed for many years. In a 2011 year-end report, Chief Justice Roberts emphasized that “All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations. In this way, the Code plays the same role for the Justices as it does for other federal judges since…the Code is designed to provide guidance to judges.”

Even if the Justices do consult and follow the Code of Conduct—a claim that is easier to make than verify—not having a formally adopted code to hold Justices accountable may not be a good idea. Professor Emeritus Arthur Hellman of the University of Pittsburgh School of Law, an expert on judicial ethics, said, “it is regrettable that the justices have not adopted a code of conduct, but it is important for everybody to understand that what is probably the most important set of ethical rules, the disqualification rules, do apply to the Supreme Court.”

Since failing to recuse himself in the case involving his wife, it has come to light that Justice Thomas accepted millions of dollars of gifts over the years from Harlan Crow, a right-wing political advocate and donor. He was not alone. Justice Samuel Alito accepted at least one all-expenses-paid vacation to Alaska from a wealthy hedge fund manager who had business before the court; Justice Gorsuch accepted an offer on a piece of property he had been trying to sell for more than two years to an attorney who often argued before the court; and Chief Justice Roberts’ wife received more than $10 million from law firms with appeared before the Court to recruit new attorneys to those firms. To make matters worse, the Justices involved failed to report the money they or their spouses received on their required government disclosure forms. The stench of unethical behavior hangs heavy over this Court, and several Congressmen—most notably Sen. Sheldon Whitehouse (D-RI)—have called on Congress to implement a code of conduct that would apply to the Justices on our nation’s highest court.

There are three ways to go about applying a code of conduct to Supreme Court Justices. The first is for the Court to simply adopt the same Code of Conduct that applies to all other federal judges. The second involves the creation of an internal code, which the Court would adopt itself. The third way is the external imposition of a code, which Congress would implement, and which would apply to the Court.

Supreme Court Justices could voluntarily adopt the Code of Conduct (from the Judicial Conduct and Disability Act of 1980) that already applies to other federal judges. This could be done quickly and easily, and by doing so, Supreme Court Justices’ ethical obligations would then parallel those of their brethren on the lower federal courts.

Another option is for the Justices to create their own code of conduct, separate from the one that applies to lower court judges. One advantage to creating a new code is that the language used could be geared specifically to the uniqueness of the Supreme Court. For instance, in the context of a recusal, unlike in a lower court, a Justice cannot simply be replaced by another judge. In addition, Justices receive much more attention than lower court judges when it comes to invitations for public and private appearances. The Justices are well-positioned to set standards for themselves in these situations.

“While the Justices’ participation in a broad range of educational and professional activities undoubtedly benefits the profession and the country, the Justices must be mindful of appearances if they choose to attend meetings of organizations that have a political or other valence that could cause the Justices’ attendance to become controversial or cast doubt on their neutrality. A code drafted by Justices, amplified over time through its application, might help the Justices navigate these waters.”

Another option is to have Congress create a Code of Conduct that would apply to Supreme Court Justices. Several bills have been proposed over the years, but none has been enacted. Part of the reason for this is that some Members of Congress, as well as the Justices themselves, are resistant to applying Congressionally mandated ethics rules to the Court.

In that same 2011 year-end report cited previously, Chief Justice Roberts contended that the Judicial Conference, the body created by Congress to administer the federal courts, lacks the authority to apply a code of conduct to the Supreme Court. “Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.”

If Chief Justice Roberts is correct that the Judicial Conference lacks the mandate to promulgate ethical standards for Supreme Court Justices, then surely Congress has the power to create a code of conduct for the Justices. After all Congress already imposes requirements on Supreme Court Justices—such as requiring Justices to take an oath of office—that resembles a code of conduct. However, Congress has traditionally been reluctant to exercise control over the ethics of the Court, instead delegating that responsibility to the Court itself. 

Discussion: In the introduction to this series, I shared the story of how Justice Scalia died at a hunting lodge owned by a wealthy businessman who recently had a case before the Court. This post began with a recounting of a case where Justice Thomas should have, but did not, recuse himself from a case he knew, or should have known, involved his wife. And I shared several other unethical cases involving various Justices. The Court is currently in the midst of an ethical crisis unlike anything it has experienced previously.

When examining the various Supreme Court reform proposals, I do my best to consider the pros and cons of each proposal dispassionately and objectively. Sometimes, while a given proposal may have a desired upside, it also has a significant and troubling downside. In the case of applying an ethical code of conduct to the Supreme Court, I am having trouble discerning any downside. Why would we not want the Justices from the highest court in the nation to be subject to an ethical code of conduct?

The thesis of this entire series of posts is that the Court is experiencing a legitimacy crisis due to the dysfunctional nomination and confirmation process, the unbalanced nature of the Court, the Court’s perceived politically-inspired decisions, etc. What could be more basic to address this crisis than for the Justices at the center of it to be subject to an ethical code of conduct? The entire federal judiciary, with the exception of Justices on the Supreme Court, is subject to a Code of Conduct. It’s time that Supreme Court Justices are subject to rules of ethical behavior as well.

Ideally, the code would be written (either by the Justices themselves or Congress), taking into account the special nature of the Court and the unique challenges it faces. The Judiciary Conduct and Disability Act was written with a wide range of judges in mind. A separate code of conduct specifically tailored to the challenges faced by Supreme Court Justices would not only provide an ethical roadmap customized to fit the needs of the Court, it would also be an effective way of addressing, in part, the crisis of legitimacy currently faced by the Court.

Courtroom Transparency

The room where the Supreme Court of the United States meets to hear cases is not as big as one might think. In fact, considering that it is the apex court in a nation of nearly 330 million people, and widely considered to be the most powerful court in the world, the Supreme Court is rather modest in size. Its hearings are open to the public, but there are only about three hundred seats available, many reserved for interested parties and the media. The rest are filled on a first-come-first-served basis.

Because of the COVID-19 pandemic, the Court began conducting oral arguments via teleconference. At the same time, oral arguments were available to the public via livestreaming audio. Although the Court has gone back to holding in-person oral arguments, they have so far continued to offer livestreaming audio. This public access of livestreaming audio has led to renewed calls for placing cameras in the Supreme Court and providing real-time, livestreamed video of the Court’s proceedings.

Today, the work of the Court is more accessible than ever before. In addition to livestreaming audio, the Court’s opinions are online where anyone with an internet connection can access them. The same is true of Court orders and decisions on petitions of certiorari. The Court’s website features news about the Court, Court history, the Court’s schedule, as well as links to make electronic filings, information on visiting the Court, and a way to contact the Court to ask non-urgent questions of a public information officer.

Despite the unprecedented level of access, Georgia State University law professor Eric Segall does not think it’s enough. “The Supreme Court does not currently allow any of its public oral arguments or decision announcements to be televised, live-streamed, videotaped or photographed. This blackout deprives the American people of something that is rightfully theirs: the ability to observe government officials perform important duties that only a select few can witness in person… There may have been a period when cameras in courtrooms presented unknown risks, but that time is long past.”

Segall, along with Dean of the University of California-Berkely School of Law, Erwin Chemerinsky, made an even more impassioned argument in an essay they wrote for the Duke Law School Bolch Judicial Institute publication Judicature:

“The United States Supreme Court is now and has been for over 200 years the most powerful and important legal tribunal in the world. As Alexis de Tocqueville said in the 19th century, ‘there is hardly a political question in the United States which does not sooner or later turn into a judicial one.’ Over the last ten years alone, critical decisions regarding abortion, affirmative action, gun rights, Obamacare, campaign finance reform, voting rights, redistricting, and numerous other fundamental issues concerning how the people of the United States govern and define themselves have been made by our highest Court. Yet, the Supreme Court of the United States has never allowed a single oral argument or decision announcement to be broadcast or live streamed. This stubborn and anachronistic refusal to enter modern times is not just a national embarrassment but a great disservice to the rule of law and a government by and for the people.”

The fact is, having cameras in the courtroom is not a new or novel idea. The supreme courts of all fifty states allow cameras in their courtrooms, as do many lower federal courts, including the United States Court of Appeals for the Ninth Circuit.

Texas Justice Don Willett, who was on a short list of potential Supreme Court nominees during the Trump Administration, doesn’t have any concerns about having cameras in the courtroom. “My court has been webcasting for a decade. No hiccups. No regrets. No going back. We inhabit a hyper-partisan age, and there’s enormous civic-education upside in We the People seeing their judges tackle fateful issues with thoughtfulness and civility. I wouldn’t presume to lecture the Supreme Court of the United States, but our experience has been overwhelmingly positive.”

Even so, there are still those that oppose the idea of broadcasting Supreme Court proceedings, including Supreme Court Justices. They worry that having cameras present may lead to grandstanding by attorneys and/or Justices. They raise concerns that the discussions taking place during oral arguments may become scripted and less useful to the disposition of the case. And they fear that video clips of Court proceedings will be taken out of context and could mislead the public.

Former Supreme Court Justice Anthony Kennedy has been one of the most vocal critics of broadcasting Court proceedings. While testifying before Congress in 2014, Kennedy raised his objection to cameras in the courtroom. “We are a teaching institution, and we teach by not having the television there, because we teach that we are judged by what we write, the reasons that we give. We feel . . . that our institution works. And in my own view, there would be considerable reluctance where I would have the instinct that one of my colleagues asked a question because we were on television. I just don’t want that insidious dynamic to come between me and my colleagues.”

Chemerinsky and Segall take umbrage with Justice Kennedy’s contentions:

“Justice Kennedy’s two objections to cameras have little merit. First, the Court is much more than a ‘teaching institution.’ It is a coercive government body handing down rules that bind our cities, states, Congress, the President, and the American people. We have a right to see how the Court conducts its public business. Moreover, to the extent the Court plays a ‘teaching’ role, its oral arguments and decision announcements, as noted earlier, are conducted politely and with respect, even where there are strong disagreements among the justices and the lawyers arguing the cases. Allowing millions of Americans, and people all over the world, to witness this dynamic in real time would provide excellent role modelling for our public debates in other fora…To the extent Justice Kennedy is concerned about his colleagues misbehaving in front of the cameras, this worry is one totally in control of the justices. Moreover, it is extremely unlikely that the justices would want to appear in a negative light during the broadcast of its proceedings… We believe that the Court’s credibility only will be enhanced if more people see the justices at work. Anyone who watches a Supreme Court argument will see highly intelligent, superbly prepared individuals grappling with some of the nation’s hardest questions. The public will see, too, that there are few easy answers to most constitutional questions, and that there are usually compelling arguments on both sides. That only can increase the public’s understanding of the law.”

Discussion: Although I think proponents of having cameras in the courtroom provide much stronger arguments than those opposed, I am nonetheless sensitive to the arguments made by opponents, particularly the Justices themselves. That’s not to say that I agree with their arguments. To be frank, I think their arguments are rather flimsy. Even so, there is a tradition of exclusivity that hints at importance and decorum that would be lost by broadcasting Court proceedings that I almost hate to see disappear. Almost.

So, it is time again to ask the legitimacy question: Will the reform designed to increase Supreme Court transparency work to strengthen the legitimacy of the Court? The answer is “yes.” Having access to the Court and seeing it do its important and necessary work can only enhance the public’s view of the Court. More than that, the public deserves to see the nation’s highest court in action and to better understand the work it does in furtherance of our democracy.

Perhaps there is a middle ground. The work of the Supreme Court, at least the work most of the public is interested in, is two-fold. First, there are the oral arguments where lawyers make presentations, Justices ask questions, and the case is discussed. Second, are the announcements of decisions, where the Court presents its opinion, and the Justices often read from their written decisions and dissents, occasionally peppering their reading with additional thoughts and insight. Perhaps opponents of broadcasting Court proceedings, including the Justices themselves, would be more comfortable if only decision announcements were broadcast initially.

“It is especially absurd that the Justices do not allow broadcasting of their announcements of decisions. At times, these are quite dramatic, such as when Justices read dissents from the bench or make comments that are not contained in their written opinions. These statements from the bench are not recorded or transcribed and are forever lost except for whatever reporters say about them.”

The broadcasting of announcements of decisions could be a first step in introducing cameras into the courtroom. Initially, oral arguments would not be televised, but the goal would be to eventually broadcast all Court proceedings.

The bottom line is that there no longer is a good reason to not have cameras in the courtroom. It works in the supreme courts of all fifty states, and it works in lower courts, including federal courts of appeal. There is no reason to think that it will not also work in the Supreme Court.



Saving the Court: The Court’s Role in the Constitutional Process (Part 7)

This is part 7 of the Saving the Court series. I would encourage you to read previous posts, including


The Constitution gives Congress power to grant or withhold the jurisdiction of the federal courts. Article III, § II, clause II of the Constitution gives the Supreme Court “original” jurisdiction in a small category of cases. It specifies that “[i]n all the other cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Under the power granted by this language—known as the “Exceptions Clause,”—Congress has made some exceptions to the Court’s appellate jurisdiction. For instance, in the original Judiciary Act of 1789, Congress made no provision for criminal cases tried in state court to be reviewed by the Supreme Court.

Congress also has broad power under the Constitution to determine and adjust the jurisdiction of lower federal courts. In fact, Congress has the power to create lower federal courts, but the Constitution does not require them to do so. Of course, in the Judiciary Act of 1789, Congress chose to create lower federal courts, but significantly limited their jurisdiction. For example, Congress included a jurisdictional dollar-amount requirement for cases brought by citizens of different states—what is known as “diversity jurisdiction”—as well as civil actions brought by the United States. Neither did the Act provide a general grant of jurisdiction to lower federal courts to deal with suits arising under the Constitution, laws, and treaties of the United States. In order to be addressed by lower federal courts, cases must fall within a more specific grant of jurisdiction.

For people who believe that the Court has acted as an impediment to the realization of certain important social goals and has undermined Congress’ ability to protect rights, the Constitution provides them with a way to manipulate the Court’s jurisdiction in order to reign in the power of the judiciary to thwart initiatives put forth by Congress. This ability, often referred to as “jurisdiction stripping,” is nothing new. As indicated previously, Congress has been limiting the Court’s jurisdiction since the very creation of the Court. And attempts to further limit the Court’s jurisdiction, as well as change the Court’s simple majority voting framework for cases that raise a constitutional question, or efforts to give Congress the power to override Court decisions, have met with fierce debate.

This chapter will examine three types of Court reform proposals that strike at the role the Supreme Court plays in our constitutional system. First, we’ll examine jurisdiction-stripping proposals that seek to limit the categories of cases courts hear and/or rule on. Second, we’ll explore a proposal to require a supermajority vote of the Court in order to declare a statute unconstitutional. Finally, we’ll turn our attention to the idea of giving Congress the power to override court decisions.

Proposals to Restrict the Supreme Court’s Jurisdiction

The most common type of “jurisdiction-stripping” proposals we have been offered in recent years involve “issue-specific-jurisdiction-stripping.” Issue-specific-jurisdiction-stripping differs from general jurisdiction-stripping in that issue-specific-jurisdiction-stripping involves a limited or restricted category of case, whereas general jurisdiction-stripping involves a broad category of cases.

For instance, a general jurisdiction-stripping proposal might deal with a court’s appellate jurisdiction broadly, meaning the court does not have the power to hear any appeals. In contrast, an issue-specific-jurisdiction-stripping proposal involves a proposal to restrict the court’s ability to hear appeals on a narrow category of cases, such as only abortion cases or cases involving voting rights.

There are two general reasons Congress would want to strip courts of their jurisdiction. First and foremost, Congress wants to protect legislation from judicial invalidation. In other words, Congress wants to prevent the court from finding the legislation they pass unconstitutional. Second, proponents of jurisdiction-stripping believe it is a way to encourage greater democratic accountability by transferring the power to determine which laws are constitutional from unelected Supreme Court Justices to the popularly elected Congress.

There are three ways a jurisdiction-stripping proposal can be structured:

  1. it can restrict the appellate jurisdiction of just the Supreme Court;
  2. it can restrict the appellate jurisdiction of the Supreme Court and all lower federal courts, and
  3. it can restrict the appellate jurisdiction of the Supreme Court, all lower federal courts, as well as state courts.

Stripping jurisdiction only from the Supreme Court does little good. If the Supreme Court cannot hear a case, then the lower federal circuit courts become the last word on the constitutionality of a case. In other words, if Congress wants to shield legislation from court invalidation, stripping only the Supreme Court of its jurisdiction to hear the case does not achieve the objective. A further problem is, with thirteen different federal courts of appeal, it is possible to not have a final word on the constitutionality of a piece of legislation.

Stripping jurisdiction from the Supreme Court and lower federal courts also does not get the job done. If the Supreme Court and lower federal courts are prohibited from hearing a case, the final word is left to the highest court in each of the fifty states.

If Congress strips jurisdiction from all federal and state courts, litigants will not have the ability to have their case heard anywhere. This might satisfy Congress’ desire to shield legislation from court invalidation, but it is hard to argue that such a situation encourages greater democratic accountability. In fact, the opposite is true. Prohibiting citizens from having their day in court largely removes democratic accountability from the equation.

In addition, jurisdiction-stripping is not as simple as including language in a piece of legislation that prohibits one or more courts from hearing cases involving that legislation. The following two paragraphs from the Presidential Commission on the Supreme Court of the United States report explains why jurisdiction-stripping language in a piece of legislation might not accomplish what its authors in Congress hope to accomplish:

“If Congress were to withdraw the appellate jurisdiction of the Supreme Court over a class of cases—such as those challenging the constitutionality of a wealth tax or of prohibitions against abortion—while allowing such challenges to be litigated in other courts, including federal district courts and courts of appeals, challengers would likely argue that the restriction overstepped congressional power under the Exceptions Clause by precluding the Court from performing a function essential to its status as the nation’s ‘one supreme Court.’ The argument would be that the Court is deprived of an aspect of its ‘supreme’ status when it is denied the opportunity to pronounce authoritatively on a justiciable issue with respect to which the decisions of lower courts may diverge and might even (from the Court’s perspective) err egregiously. Proponents of this argument could acknowledge Congress’s authority to withdraw rights to de novo appellate review by the Supreme Court, but insist that the Court must retain some minimal capacity to correct clear lower court errors—capacity that traditionally existed through ‘discretionary writs, such as mandamus, habeas corpus, and prohibition.’

“When the Supreme Court confronted a statute that deprived it of appellate jurisdiction over a narrow class of court of appeals decisions in the habeas corpus case of Felker v. Turpin, the Court upheld the statute, but it emphasized—as it had more than a century earlier in Ex parte McCardle—that it retained jurisdiction to oversee the courts of appeals by entertaining original applications for the writ. As a result, there appears to be no squarely on-point precedent deciding whether Congress could more categorically strip the Supreme Court of all jurisdiction over a particular issue or set of issues that the lower courts could continue to decide. Perhaps the only clear conclusion is this: A total preclusion of all opportunity for Supreme Court oversight of lower court decisions involving specific issues, statutes, or policies would run a greater risk of judicial invalidation than a less-than-total preclusion.”

Considering the existence of the Exceptions Clause, it is certain that Congress has the capacity to restrict the Supreme Court’s jurisdiction if it chooses to do so. However, the precise scope of that power is undetermined. Likewise, there are no authoritative cases and no consensus among scholars on Congress’s ability to strip all federal courts of jurisdiction in a specific category of cases. Stripping jurisdiction from all courts—federal and state—would certainly raise constitutional challenges and would assuredly have serious unintended consequences.

Any legislation targeted at stripping the Supreme Court’s ability to resolve specific constitutional issues would likely trigger constitutional challenges. Depending on the specific form the jurisdiction-stripping legislation takes, the Supreme Court could conceivably find some of the possible challenges to the legislation to have merit. The more the jurisdiction-stripping legislation provides for “alternative avenues for judicial enforcement,” the more likely it is to be found constitutional. In other words, if the jurisdiction-stripping legislation allows lower federal and/or state courts to hear cases, the more likely the legislation will survive constitutional challenges. However, allowing lower federal courts and/or state courts to hear cases makes it less likely that Congress will be able to shield the legislation in question from being invalidated.

Discussion: Most people accept, without much thought, that the legislature passes laws, the executive enforces those laws, and the judiciary hears disputes involving those laws. They also accept that the Supreme Court, as the nation’s apex court, has final say on the constitutionality of any legislation passed by Congress. It seems unreasonable to most people that Congress could potentially avoid invalidation of a piece of legislation simply by removing the Court’s jurisdiction to hear the case.

I have a certain amount of sympathy for those that complain that the Supreme Court is acting as an obstacle to greater democratic accountability. The Court has increasingly invalidated legislation in recent years as unconstitutional. Proponents of jurisdiction-stripping believe that power should be transferred from the courts to Congress, where the members are popularly elected and can be held more accountable than can the nine unelected, lifetime members of the Supreme Court.

Even so, jurisdiction-stripping seems like too blunt of a weapon to use to solve the problem. In fact, if the goal is to make the government more democratically accountable, I’d say specific-issue-jurisdiction-stripping makes things worse. Disallowing the Supreme Court, or lower federal courts and/or state courts, from hearing a certain category of cases may protect the legislation at issue from court invalidation, but it fails to protect the people impacted by the legislation.

Keeping in mind that the main purpose of any court reform should be to maintain and strengthen the legitimacy of the Court, I would argue that jurisdiction-stripping would, at best, be a wash, and there is a good chance that it would make the Court’s legitimacy crisis even worse. For that reason, I do not think specific-issue-jurisdiction-stripping would be a positive reform.

Proposals for Supermajority Rules or Deference Rules

In order to properly consider proposals to implement either supermajority voting requirements or a deferential standard of review, let me offer a fictional narrative:

Let us suppose that Congress passes a bill designed to bolster law enforcement initiatives throughout the country. Although it is unlikely in today’s political climate, let’s assume that the bill passes the House of Representatives 435-0 and the Senate 100-0. Because it’s such a popular bill, the President happily signs it into law.

One section of the new law states that citizens can photograph or make videos of police officers while on-duty, but those doing so can not interfere in any way with the police carrying out their duty. A few days after the law goes into effect, a police officer pulls over a vehicle in a national forest near a sleepy little town in Wisconsin. The traffic stop takes place on the outskirts of town late at night near a closed ranger station. As it turns out, the car being pulled over is driven by the new boyfriend of the police officer’s ex-wife.

The police officer roughly pulls the driver out of the car and proceeds to beat him with his fists and a wooden baton. When the officer is finished, the beaten man is left in a heap next to his vehicle. The officer returns to his police car and drives away, leaving the beaten man lying in the roadway, where he is later discovered dead from blunt force trauma to the head.

Because the murder occurred on government land, the FBI investigates and is unable to find any witnesses. However, when they recover the video security tape from the ranger station, they learn that it was a local police officer who committed the murder. The FBI arrests the local police officer, and the case goes to trial.

Although there is some circumstantial evidence pointing to the police officer as the murderer, the strongest evidence against him is the videotape from the ranger station. At his trial, the police officer contends that the video recording violates his constitutional right to privacy, and because of that, claims that the new law that allows him to be videotaped while on duty is unconstitutional. The Federal District Court for Western Wisconsin in Madison finds that the new law is constitutional and rules against the police officer. As a result, he is convicted of the murder. The officer appeals his case to the Seventh Circuit Court of Appeals in Chicago where a three-judge panel unanimously affirms the district court’s ruling.

The officer is nothing if not persistent. He again appeals, this time to the United States Supreme Court. The Court agrees to hear the case. Surprisingly, in a 5-4 decision, the Supreme Court sides with the police officer and finds that the video recording violated the officer’s right to privacy, and they strike down the new law as unconstitutional.

In fairness, this scenario may not be completely realistic, but it does serve to make the point I want to make. Under current Court rules, it is possible for 535 Congressional legislators, the President, four federal judges, and four Supreme Court Justices to find a law constitutional, but they can all be overruled by just five Supreme Court Justices.

Supermajority Voting Requirement

By tradition, the Supreme Court decides cases by a simple majority vote of the Justices. Neither Article III of the Constitution nor any of the various Judiciary Acts dating back to 1789 directly mandate how Court cases should be decided. Even so, from the very beginning of the Court until today, a simple majority vote of the Justices has been sufficient to render its rulings.

Over the years, there have been a few proposals calling for a supermajority vote of Justices in order to invalidate federal legislation. One of the more recent, a proposal from 1967, involved rulings invalidating both state and federal law. It read in part:

“The Supreme Court may not in any case hold that any provision of an Act of Congress, and Act of the legislature of any State, or a constitution of a State is invalid because it violates a provision of the Constitution of the United States unless at least six Justices of the Supreme Court concur in the holding.”

This language is fairly typical of proposals for a supermajority requirement in cases involving potential invalidation of federal and/or state law. The principal goal of such a proposal is to require broader agreement of Supreme Court Justices to find a law unconstitutional than is required today. According to Yale history professor Samuel Moyn, proponents of a supermajority requirement feel that not enough deference is given to lawmakers by a Court that “is too prone to overturning laws and thwarting the outcomes of the democratic process.”

 Opponents of a supermajority requirement believe that the Court provides a countermajoritarian check on the political branches and requiring a supermajority vote to invalidate acts of Congress weakens that important and necessary check. They also feel that a supermajority requirement would shift too much power to Congress, weakening separation of powers and the structures of federalism laid out in the Constitution.

Deferential Standard of Review

Some skeptics who oppose a supermajority requirement nonetheless believe that the Court is too prone to invalidate federal legislation. Although they oppose a supermajority requirement, they prefer implementation of a deferential standard of review in constitutional cases. The deferential standard of review would most likely be implemented by statute that requires that federal courts cannot invalidate legislation except in case where the Court concludes that it is clearly unconstitutional.

A deferential standard of review, although similar to a supermajority voting requirement, would operate differently. Rather than requiring six Justices to invalidate a federal law, a deferential standard of review would require Justices to adjust the way they evaluate a case, requiring them to find that a statute or executive action “clearly” violates the Constitution before invalidating it.

Although a deferential standard of review would be easier to adopt, it would likely be less effective in shifting power away from the courts than a supermajority voting requirement. However, like a supermajority voting requirement, it could lead courts to reach decisions on cases by interpreting statues narrowly rather than making broad legal pronouncements.

Discussion: A supermajority voting requirement is considered a “hard solution” to the problem of judicial overreach. It makes a requirement of the Court that cannot easily be skirted. A deferential standard of review, on the other hand, is a “soft solution.” It is easier for the Court to ignore the requirement, but harder to detect that the standard is being ignored. Because of this, I support the supermajority voting requirement.

In addition, it just seems right to me that a supermajority of the court should agree before invalidating an act of Congress or Executive action. After all, both Congress and the President are required to act within the bounds of the Constitution, and their actions should be given deference by the Court. I am a strong believer in separation of powers and constitutional checks and balances, but I feel that allowing five unelected Justices—a simple majority—to overturn the acts of democratically elected legislators or the President is too low a bar. Shifting some of the power away from the court to the democratically elected branches is the right thing to do.

Proposals to Enable Legislative Overrides of Supreme Court Decisions

In the case of Marbury v. Madison (5 U.S. 137), Chief Justice John Marshall wrote “it is emphatically the province and duty of the judicial department to say what the law is.” Although it’s likely that Marshall was only referring to the authority of the Court to refuse to give effect to legislation or Executive mandate, his line from Marbury has been used in more recent times as support for the idea of “judicial supremacy.”

The concept of judicial supremacy is the belief that the Supreme Court has the last word when it comes to interpretation of the Constitution. Further, judicial supremacy binds the parties in the case as well as the President, Congress, and the states. Marshall may not have been promoting the idea of judicial supremacy in Marbury, but the Court has been embracing the idea at least since the 1950s.  Even so, the Court’s authority to interpret the Constitution and be the final word, foreclosing the other branches from their own interpretation, is far from a settled matter.

Justice Marshall v. Judge Gibson

Before we analyze the concept of a Constitutional amendment that would allow Congress to override a Supreme Court decision, it is worth considering the words of Judge John Gibson, a Pennsylvania Supreme Court judge who served that Court from 1816 until his death in 1853. Unlike Justice Marshall, Judge Gibson did not believe the Constitution gave the Supreme Court the power of judicial review, and twenty-two years after Justice Marshall wrote the majority opinion in Marbury v. Madison, Judge Gibson wrote a dissenting opinion in Eakin v. Raub (12 Sargeant & Rawle 330) (PA 1825).

The opinion did not receive much attention at the time it was written but has become much more popular over the years. In a nutshell, Judge Gibson’s dissent in Eakin can be thought of as a rebuttal to the argument Marshall made in Marbury.

Justice Marshall, while conceding that the Constitution does not explicitly give the Court the power of judicial review—in other words, the power to rule on the constitutional appropriateness of a law—he nonetheless argued that judicial review is necessary to preserve a written constitution as superior to all other legislative acts. Without the power of judicial review, Marshall argued, the legislature could amend the Constitution by passing laws rather than going through the intentionally onerous amendment process.

Gibson disagreed, saying a constitution may be better preserved by the citizens, and not the courts. For Gibson, it was up to the people to do away with any legislation that offends the Constitution by instructing their representatives to repeal the offending law. Any powers not expressly granted by a constitution to the government remain with the people, who Gibson reasoned are the ultimate sovereigns in a democracy. He admitted it might be wise for the courts to have the power of judicial review, but he concluded that the Founding Fathers chose a different path, thus limiting the power of the Court, denying it the power of judicial review.

Judge Gibson also felt that Justice Marshall’s theory of judicial review elevated the judiciary above the legislative branch, contrary to the text of the Constitution. “But it will not be pretended that the legislature has not at least an equal right with the judiciary to put a construction on the constitution; nor that either of them is infallible; nor that either ought to be required to surrender its judgement to the other.” For Marshall’s view of judicial review to hold, the legislature must surrender its judgment to the judiciary, something Gibson felt the Constitution did not countenance.

In Gibson’s view, based on the development of common law in the courts, it is the court’s job to interpret the law, not examine the authority of the lawmaker. He concluded that “it rests with the people, in whom full and absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act.” (Eakin v. Raub)

I offer this brief glimpse into the history of judicial review as a reminder that, although Justice Marshall’s view of the matter carried the day, it was not the only opinion on the matter at the time, and by no means was the power of judicial review a forgone conclusion for our courts. Today, judicial review is a widely accepted part of the role played by the judiciary. However, it did not have to be that way. Many legal observers, both in the past and present, find that Judge Gibson’s reasoning is sound and better supported by the Constitution than Justice Marshall’s approach.

A History of Proposals to Enable Legislative Overrides

A few times throughout the country’s history, the idea of creating an amendment to the Constitution that would allow Congress to override a Supreme Court decision has been broached. For instance, in 1924, Sen. Robert LaFollette (R-WI) and Sen. Burton Wheeler (D-MT), running as President and Vice-President respectively on the Progressive Party ticket, proposed “a Constitutional amendment providing that Congress may by enacting a statute make it effective over a judicial veto.” The amendment would have given Congress the ability to override Supreme Court cases it disagreed with and would have given Congress the final word on constitutional interpretation.

Senator Wheeler, who returned to the Senate following his and Sen. LaFollette’s loss in the 1924 Presidential Election, teamed up with Sen. Homer Bone (R-WA) in 1937 to propose a variation on the earlier proposal. Wheeler and Bone proposed a Constitutional amendment that gave Congress the power to override Supreme Court decisions by a two-thirds majority of the House and Senate. Wheeler, a strong supporter of President Franklin D. Roosevelt, saw the Constitutional amendment as a preferred option to Roosevelt’s Court packing plan. However, like the Court packing plan, Wheeler and Bone’s proposal also failed.

The idea of giving Congress the ability to override a Supreme Court decision came up again in 1996 in an essay written by legal scholar Robert Bork. Bork argued that the “most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control.” He proposed a Constitutional amendment that would give Congress the power to modify or reverse a Supreme Court decision with a simple majority vote of the House and Senate. More recently, liberal scholars have expressed support for the conservative Bork’s essay and proposal.

Proponents of legislative overrides believe that the Court exercises undue power over major social, political, and cultural issues. They contend that decisions on these important issues should more properly be resolved through the democratic process. For critics of the Court’s “final say” power, the Supreme Court’s countermajoritarian nature is in constant tension with the constitutional underpinnings of democracy.

Advocates for a Constitutional amendment giving Congress the power to override Supreme Court decisions also believe that such a Constitutional amendment would strengthen the system of checks and balances. In addition, they believe that the power of the legislative override would place the final say on the constitutionality of a given law in the hands of the people’s representatives, who are subject to the political process.

Opponents of legislative overrides of Supreme Court decisions point out that doing so transfers power, not so much to Congress as it does to lower courts. Decisions made by lower courts, except in limited situations, are not automatically guaranteed an appeal to the Supreme Court. So, if a lower court strikes down a law as unconstitutional, and the Supreme Court does not grant certiorari, under the Constitutional amendments discussed, Congress will be powerless to act. Opponents also point out that a legislative override threatens federalism, by Congress using its override power to favor its own power over state’s rights.     

Discussion: Although I sympathize with some of the points raised by proponents of legislative override, a Constitutional amendment to shift power from the Court to Congress is a bridge too far for me. Often, the Court favors power elites over normal citizens, and it would be nice to know that following an adverse decision in the Court, there was a mechanism that allowed Congress to right a wrong committed by the Court. However, giving this power to Congress also opens up the possibility of the legislative branch further violating the Constitution following a Court decision striking down an offending law.

Proponents of a legislative override claim that the decision made by the Court on constitutional issues are better left to our elected representatives, who are more accountable to the people. To me, this is the strongest argument against legislative overrides. I want a sober, deliberative body to make the final decision on the constitutionally of our laws, not a passionate, reactive body that often makes decisions in the heat of the moment more conducive to the continuation of their political careers than the good of the country.

Of the reform proposals discussed in this chapter, the proposal to require a supermajority vote of Justices in constitutional cases is the only one that accomplishes the goal of making the Court more accountable without creating other unintended consequences. I would support the supermajority voting requirement but would not be in favor of reforms proposing jurisdiction stripping, deferential standards of review, or legislative overrides.