Fixing the Supreme Court

Supreme Court Exposes America’s Broken Constitution

Written by Daniel Jennings and published in Medium.com- 6/30/2022

The US Supreme Court’s horrendous Dobbs decision exposes how America’s Broken Constitution is failing us.

To explain, Dobbs v. Jackson Women’s Organization reverses Roe v. Wade and gives states and the federal government the right to ban abortion. Yet, Pew estimates 61% of American adults said abortion should be legal in most cases in a March 2022 poll.

Hence, the US Supreme Court ignores popular opinion. Worse, some Supreme Court Justices seem they have a God-given duty to ignore public opinion. In his Dobbs opinion Justice Samuel A. Alito Jr. writes, “the Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights.”

Nine-Would-Be Dictators

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” John Emerich Edward Dalberg Acton, first Baron Acton.

Therefore, America has nine would-be dictators sitting in a Temple like building in Washington, DC, who think they can behave like gods on Mount Olympus or the Soviet Politburo. To elaborate, the Supremes think they can do whatever they want and face no consequences.

Nor is just abortion on which the Supremes ignore public opinion. In a case called New York State Rifle & Pistol Association Inc. v. Bruen ruled a New York State law requiring a license to carry concealed guns unconstitutional. A 16 June 2022 Siena College Research Institute poll found 79% of New Yorkers support the Sullivan Act, the law of New York State Rifle & Pistol struck down.

This situation exists because of our broken Constitution. In particular, I think two provisions to the Constitution Article III and Article I, Section Three create the menace of an all-powerful US Supreme Court.

How the Constitution Creates an All Powerful US Supreme Court

“Unlimited power is apt to corrupt the minds of those who possess it.” William Pitt the Elder, Earl of Chatham, British Prime Minister.

To explain, Article III creates a Supreme Court but sets no rules or guidelines for that Court.

Article III Section 1 states: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

Article III does not define the Supreme Court, set any qualifications for its members, or define a process for selecting justices. Indeed, it does not even require justices to be attorneys. Nor does Article III define the Justice’s powers or the number of justices.

Thus, we have Supreme Court Justices who serve for life and can only be removed by a two-thirds vote of the US Senate. Hence, Supreme Court justices are unaccountable to the people.

I don’t blame the Constitution’s author James Madison for this mess. Madison could not have known what havoc his vague paragraph could unleash. Notably, there was no such thing as a Supreme Court anywhere on Earth in 1787. America’s Supreme Court was the first.

Instead, I blame Congress for not exercising any authority over the Supreme Court or trying to limit its power. Worse, Congress has made no effort to bring America’s Supreme Court system into line with foreign courts.

America’s Undemocratic US Senate

Article 1, Section 3 of the Constitution states “The Senate of the United States shall be composed of two Senators from each State.”

I think Article 1, Section 3, is bad because it makes no provision for population differences between the states. Hence, America’s most populous state, California with 39.613 million people and least populous state Wyoming, with 581,075 people each have two Senators.

In detail, a US Senator from California represents 19.81 million people while a Wyoming US Senator represents 290,538 people. Thus, a Wyoming US Senator represents fewer people than the population of Riverside, California, (327,569).

Article 1, Section 3 creates an unrepresentative US Senate that appoints an Unrepresentative US Supreme Court. For example, I estimate there are 14 US states with populations under two million. Yet 28 US Senators represent those stations.

Furthermore, I estimate the combined population of America’s two most populous states, Texas and California, have a combined population of 70.634 million people. Four US Senators represent those 70.634 million people.

I estimate America’s seven least populous states have a combined population of 4.601 million. Yet 14 US Senators represent those states. To elaborate, those states are Delaware, South Dakota, North Dakota, Alaska, Vermont, and Wyoming.

This affects the US Supreme Court because the Senate approves the President’s Supreme Court nominees. Furthermore, Article III gives low-population, mostly white rural, and Conservative Christian states more seats in the Senate.

Consequently, America has a Senate full of people who see nothing wrong with Dobbs v. Jackson Women’s Organization and New York State Rifle & Pistol. Even though most Americans disagree with those decisions. In such an environment, it is impossible to hold the Supreme Court justices accountable for their actions.

What We Can Do About the US Supreme Court?

I think there are many reforms we could make to the US Supreme Court to make it more accountable and democratic. Those reforms include:

1. Term Limits

Currently, federal judges, including US Supreme Court Justices, serve for life, which makes them unaccountable. We could change this by restricting Federal Judges (including Supreme Court Justices) to a 10-year term. At the end of the term, Congress will have to approve a second term. I would also restrict Supreme Court Justices to 20 years or two terms. Hence, no more service for life.

2. Increase the Size of the US Supreme Court

The US Supreme Court is too small to litigate for a nation of 334.9 million people. We need a larger US Supreme Court that is more representative of the nation. A larger court will make the US closer to the world standard. For example, India has a Supreme Court with 32 members. I suggest a US Supreme Court of 35 members. One advantage to this arrangement is that Justices will could form committees to handle more cases and delegate authority.

3. Depoliticize the Nomination of US Supreme Court Justices

My suggestion take the nomination of Supreme Court Justices away from the president. Instead, turn it over to a committee of law professors or judges. The US Senate could still approve the nomination, but the beginning of the process will be unpolitical.

4. Have a group of ordinary citizens that reviews the Supreme Court and its decisions

Give this body the power to suspend Supreme Court Justices and refer them to Congress for impeachment.

5. Make it easier to impeach Supreme Court Justices

Currently, you need a two-thirds vote of the US Senate to impeach a Supreme Court Justice. Allow the Senate or both houses of Congress to remove Supreme Court Justices with a 51% vote.

6. Make the US Senate more representative of the American people

My suggestion add one US Senator to each state’s delegation for each five million people in population. This system could give Texas, which has around 30 million people, eight US Senators and California nine US Senators. Hence, we could have the US Senate that reflects the American population.

Abortion Decision Draft

What’s Missing from Alito’s Decision to Revoke the Right to Abortion

In a leaked draft, the Justice points to “history and tradition” but ignores the context of both the past and the present.

By Jessica Winter and published in the New Yorker May 3, 2022

Just in time for Mother’s Day, a draft of the majority decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court case focussing on the constitutionality of a fifteen-week abortion ban in Mississippi, was leaked to Politico, which published it on Monday night. In the draft, Justice Samuel Alito repeatedly cites the Fourteenth Amendment, which specifies that any right conferred by its due-process clause must be “deeply rooted in this Nation’s history and tradition.” The right to an abortion—which Roe v. Wade and its successor, Planned Parenthood v. Casey, ascribed to the due-process clause—has no such roots, Alito argues. “Until the latter part of the 20th century,” he writes, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” Alito is entirely correct that, in 1973, the Supreme Court was somewhat out of step with its time in codifying women’s rights. When Roe was decided, a married woman in the United States needed her husband’s permission to get a credit card, something that did not change until 1974. No state outlawed marital rape until 1975. No man was found liable for sexual harassment until 1977. Pregnancy was a fireable offense until 1978. Alito does not itemize forms of gender-based subjugation that persisted after Roe, many of which might be persuasively argued as “deeply rooted in this Nation’s history and tradition.” But the history of such discrimination offers helpful context for why some conservatives might have seen the legalization of abortion—and the freedom that it conferred on women—as so radical, so potentially destructive to the social order, that they would spend nearly fifty years working toward its reversal.

Other, more recent Supreme Court decisions have rested on the presumption of a right to privacy in the due-process clause—Lawrence v. Texas, for example, which struck down so-called sodomy laws across the country, or Obergefell v. Hodges, which enshrined the right to same-sex marriage. Some conservatives viewed these progressive victories in the same apocalyptic terms as they did Roe, and some progressive activists are legitimately concerned that, if finalized, the decision in Dobbs will open the door to dismantling L.G.B.T.Q. rights. But the draft opinion, which upholds Mississippi’s ban on abortion after fifteen weeks of pregnancy, is careful to specify that reproductive rights are special, even unique. No other issue involves “the critical moral question posed by abortion”—i.e., the rights, the standing, the precise ontology of “fetal life,” “potential life,” or “an unborn human being.” This uncertainty, Alito writes, requires the Court to “return the issue of abortion to the people’s elected representatives.” He adds, “At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process.” (The late Justice Ruth Bader Ginsburg saw Roe in broadly similar terms—as an interruption to a more organic, less contentious advance of reproductive rights—albeit from the other side of the aisle.) Roe intruded on the will of the people, Alito contends. The decision was “exceptionally weak,” an “abuse of judicial authority,” “egregiously wrong from the start,” and one that “short-circuited the democratic process.”

VIDEO FROM THE NEW YORKERThe Bus Ride from Hell

If a majority of the Supreme Court decrees that Roe is, at its core, a subversion of American democracy, then there is some symmetry in the fact that four of the five Justices voting to end it were appointed by men who won the Presidency despite losing the popular vote, that three of them were appointed by a man who was twice impeached, and that one was appointed to an essentially stolen seat. A majority of Americans support abortion rights, but Republican-controlled legislatures in heavily gerrymandered states do not, and it is those lopsided governing bodies that are responsible for Mississippi’s fifteen-week ban, for Texas’s six-week ban, and for bills that would restrict or ban abortions in at least twenty-one other states should Roe be officially overturned. On the national level, gerrymandered districts in the House, conservative overrepresentation in the Senate, and Joe Manchin’s dedication to the filibuster will almost certainly doom any federal action that President Biden may attempt. Minoritarian rule, regardless of its merits, is also deeply rooted in this nation’s history and tradition, and it is grimly easy to foretell what will result from it now: an increase in adverse maternal-health outcomes, especially for poor women and Black and brown women; unjust prosecutions of women who suffer miscarriages; enormous pressure on already overtaxed clinics in states that preserve abortion rights; and more.

To the layperson, at least, the decades-long debate—undertaken by scholars on the left as well as the right—about if or where a right to abortion is found in the Constitution can look like a pedantic fixation. Childbirth can be physically and psychologically debilitating, and so can parenthood, even in the most favorable and desired circumstances; it would not seem to require a law degree to determine that carrying an unwanted pregnancy to term and being forced to give birth is a matter of life and liberty. Abortion rights are only a part of one of the central, most vexing, most consequential questions of our entire judicial system: Who does your body belong to? Who is in possession of you, of your self, at any given moment in your life? Is it you? Is it your parent, is it your spouse or sexual partner, is it a physician, is it a police officer or prison warden, is it a state legislature, is it the God you pray to? Is it Samuel Alito?

Lewis Powell, a moderate Nixon appointee to the Supreme Court, voted with the majority in Roe, following an incident in which a young colleague at his law firm came to him in desperation after his girlfriend bled to death as a result of a botched abortion. (Powell intervened with the local prosecutor on the young man’s behalf, and no charges were filed against him.) Powell was confronted with a body that had been harmed by the law, and he acted accordingly. In the Dobbs decision, Alito nods a bit at women’s lived experiences in a manner at once abstract and upbeat, implying that the need for abortion has diminished since 1973, owing to weakened stigmas against single mothers, prohibitions on pregnancy discrimination, and the fact that parental leave “is guaranteed by law in many cases,” among other reasons. He does not mention that American women have the highest maternal-mortality rates in the industrialized world, that America is the only industrialized nation without mandated paid leave, that sixteen per cent of its children live in poverty, that it spends something like two per cent of what some Scandinavian countries do on day care per toddler. Alito does not quantify what the end of Roe means, nor does he personify it; there are no women here. There is “the womb”—the generic vessel outside of which the fetus cannot survive—but there is no body. For all the suffering and havoc that may result from this decision, it is a bloodless text, on a matter that is all blood.

The Trouble with the Supreme Court

Opinion: The Supreme Court is broken. So is the system that confirms its justices.

Written by Ruth Marcus and published in the Washington Post 4/7/2022

The confirmation process for Supreme Court nominees is broken, and so, I fear, is the Supreme Court itself. These developments, mutually reinforcing, were both on sad display this week.

Not long ago, whether to confirm a Supreme Court nominee was not a predictably party-line affair, with a handful or fewer of defectors. In 2005, Chief Justice John G. Roberts Jr. was confirmed with 78 votes, and Democratic senators split equally on the nomination, 22 in favor and 22 against. That lopsided tally — earlier confirmations were, for the most part, more lopsided — is now a quaint artifact of a less polarized era.

The Senate finds itself now on the verge of a dangerous new reality, in which a Senate controlled by the party opposing the president might simply refuse to confirm a nominee, period. A tradition of deference to presidential prerogatives — of believing that elections have consequences, as Sen. Lindsey O. Graham (R-S.C.) liked to say in one of his earlier incarnations — is over. If the Senate majority is big and unified enough, it will defy the president.

Just wait and see. Republican senators were willing to caricature Ketanji Brown Jackson’s record in search of any excuse to vote against her — even though her addition to the court won’t affect its ideological balance. Imagine what would happen if a Republican appointee were to leave the court during a Democratic presidency. Actually, no imagination needed. Consider what the Senate did — or didn’t do — when Merrick Garland was nominated in 2016 to replace the late Antonin Scalia.

We could endlessly debate how things degenerated to this point: Republicans point to the Bork hearings, the Thomas hearings, the Gorsuch filibuster and the Kavanaugh hearings; Democrats bemoan the Garland blockade and the hurried Barrett confirmation. Neither side has clean hands.

The result is a fiercely partisan process that demeans the Senate and politicizes the court, rendering it a creature of political will and power. At this stage, there is no incentive for either party to back down from this maximalism. Time was (starting with Robert H. Bork), the Senate debated whether a nominee was in or outside the judicial mainstream. That assessment was in the eye of the beholder, of course, but at least it was a nod at deliberation.

That is so 1987. Judicial philosophy is now aligned with political party as never before in the court’s history. So it is no surprise to witness the same phenomenon — the raw exercise of power overtaking normal processes — unfolding on the court itself. Norms are shredded in both branches.

One vivid manifestation involves the conservative majority’s use of the emergency docket — what’s called, in more sinister-sounding terms, the shadow docket.

The court’s work is supposed to be conducted after full written briefing and oral argument and justified by written opinions. It has rules, or is supposed to, about when to intervene to referee disputes before they get to that stage, and, of course, that needs to happen sometimes. But increasingly, the court is using its emergency powers to step into disputes on the side that the majority favors — outside of the normal procedures and without written explanation.

Why? Because it can.

Thus, the week of Jackson’s confirmation saw five conservative justices — over the dissent of three liberals and the chief justice — intervening in a case still pending before a federal appeals court.

Five conservative justices voted to reinstate a Trump-era clean-water rule that restricted states’ ability to block potentially polluting projects. The three remaining liberal justices — joined, notably, by Chief Justice Roberts — dissented, complaining that the court was misusing its emergency powers by reviving the rule without the proof that was necessary to avoid “irreparable harm,” as the court’s precedents require.

“That renders the Court’s emergency docket not for emergencies at all,” wrote Justice Elena Kagan. This might sound mild, but process matters at the Supreme Court, and while Roberts had voted with the liberals before in such cases, this was the first time he had joined a dissent criticizing the misuse of the shadow docket.

Maybe the district court judge in the case made a mistake by going further than the Biden administration had asked in vacating the Trump-era regulation, not simply returning the matter to the Environmental Protection Agency while it worked on a new version of the rule.

That’s not the point. The point is that courts have rules about when to grant emergency relief — and the test isn’t just whether the lower court got it wrong. An appeals court is reviewing the district judge’s decision and, applying those rules, declined to stop it from taking effect. As Kagan explained in her dissent, “This Court may stay a decision under review in a court of appeals ‘only in extraordinary circumstances’ and ‘upon the weightiest considerations.’ ”

No emergency justified the Supreme Court interfering here. It just had the votes to act anyway.

When norms give way to partisanship and ideology, when applying impartial rules yields to obtaining results by any means, institutional legitimacy erodes. The immediate gain is understandably tempting. The institutional damage might not be immediately evident, but it is as undeniable as it will be difficult to repair.

The Politics of Supreme Court Retirements

Written by Isaac Chotiner and published in The New Yorker 6/22/21

 “It has been a little odd when people think that the best way to convince a Justice to retire is to write an open letter,” Noah Feldman says.Photograph by Andrew Harrer / Bloomberg / GettyLast Monday, Senate Minority Leader Mitch McConnell made clear that if Republicans recapture the Senate next year, they would likely reject any Supreme Court nominee that President Biden put forward in 2024. This position is consistent with McConnell’s stance after the death of Justice Antonin Scalia, in 2016, when he prevented President Barack Obama from filling the seat. (About the possibility of the Senate confirming a nominee in 2023, McConnell was noncommittal.) His comments increased the pressure on Justice Stephen Breyer, who is eighty-two, and who many progressive activists hope will retire this year, before the midterms. But Breyer has indicated that he believes the timing of his retirement should not be dictated by politics. Judges, he stated at a lecture in April, “are loyal to the rule of law, not to the political party that helped to secure their appointment.”

To discuss this issue, I spoke by phone with Noah Feldman, a professor at Harvard Law School. In a recent column for Bloomberg, he argued that the Justice “can be trusted to do the right thing—provided liberal law professors don’t box him in by declaring that he ‘must’ resign. . . . Every column or television comment—the more prominent, the worse—traps Breyer into having to stay out so as not to appear to be acting as a partisan.” During our conversation, which has been edited for length and clarity, we discussed whether Breyer should make his decision based on who is President, what we might learn from Ruth Bader Ginsburg’s death, last year, and whether it made sense to view the Supreme Court as a political institution.

Are the reasons you believe that people should not be telling Breyer to retire substantive as much as practical? In other words, is your fear solely that telling him to retire will make him want to do the opposite so as not to appear political, or do you also think that there are good reasons that he should not retire immediately?

I think the retirement decision is overwhelmingly personal, and I would not presume to tell a Justice that he or she should stay in the job if he or she wanted to retire—that’s for sure. Then, like every other observer who cares about the living Constitution, I hope that Joe Biden has an opportunity to nominate someone to the Court who shares that broad preference, and we know that, if the Republicans were to take power in the Senate, it’s very unlikely that they would confirm such a nominee.

You say it’s personal, but it’s not personal in the sense that it affects millions of people.

Well, the way you put the question was, Do I think there’s a reason for him to stay on? There might be circumstances in which you could imagine that a Justice really wants to step down and you say to that Justice, “Gee, I think you owe it to the Republic to stay in your post.” Indeed, some of Justice [David] Souter’s former law clerks said that to Justice Souter during the George W. Bush Administration, when he would say that he was ready to throw in the towel. I can imagine circumstances like that do arise, but we’re not in those circumstances now.

But, if you thought that people telling Justice Breyer to retire would have the effect of getting him to retire, is that something that you would approve of?

I would think that if someone really wanted a Justice to retire, the logical way to do that would be to communicate that privately to the Justice. I think it has been a little odd when people for whom I have a lot of respect—important scholars and academics or public figures—think that the best way to convince a Justice to retire is to write an open letter.

If Patrick Leahy or Chuck Schumer ran into Justice Breyer and said, “I think you should retire,” would that be appropriate, or would that be too partisan?

Well, that raises a different question, because those are members of a different branch of the government. I don’t think it’s appropriate for members of the executive or the legislative branch of government to say to a sitting Supreme Court Justice, “I think you should retire.” I think that’s a form of judgment or etiquette largely shared by most people. But I was talking about law professors and people like that, some of whom wrote pieces saying that Justice Ginsburg should retire, and some of whom have written pieces saying that Justice Breyer should retire.

You write about Breyer, “He is the one of the great pragmatist justices ever to have sat on the Supreme Court. . . . Breyer also knows Capitol Hill, having worked there three separate times,” and you add, “What Breyer needs and deserves is room to maneuver, to find the best and most rational way to satisfy the complex competing interests around his retirement.” This implies that the decision is complex and requires expertise. Do you think it is?

It’s certainly a complex decision. First, you have the personal considerations that anyone has when retiring from a position that he or she has been in for a long time. Second, you have the legitimate desire on Justice Breyer’s part, or at least I believe Justice Breyer has, to insure that the Supreme Court does not appear to be a partisan institution. To retire the moment that you have a Democratic President and a Democratic-controlled Senate might, to some people, look like you were saying that the institution is in some sense partisan, and Justice Breyer strongly rejects that idea. What’s more, at a moment when many people are insisting the Supreme Court is partisan, he has been giving lectures and is in the process of writing a book trying precisely to make a point that the institution isn’t partisan. So he has a vested interest in not sending that message. Third, of course, is the pragmatic reality he understands perfectly well that, in the new political situation that we live in, a Democratic President who doesn’t control the Senate is very unlikely to get anybody through, and that raises the risk that you might have a Republican President choosing someone whose constitutional vision or legal vision is super different from Justice Breyer’s. He’s a pragmatist, and he knows that.

Could you imagine someone like Breyer making the argument that it’s inappropriate to even consider the possibility that a Republican Congress might not let a replacement through?

Justice Breyer is a highly rational person, and he’s a realist.

Yes, in the piece you say,“The liberal legal commentariat should stand back and let the master operate.”

That’s true. I believe that, but what I’m also trying to say is that, in the course of his entire body of jurisprudence, I can’t think of a single case in which he relied on a formalism that required him to ignore reality. He thinks that reality has weight in the world and one should take account of it. So I can’t imagine Justice Breyer believing that it would be entirely inappropriate for him to, in any way, take account of political reality. That’s not the kind of viewpoint that I would attribute to him. Among other things, Justice Breyer has a concern for the Supreme Court to function well. And, in a world where a Republican Senate won’t confirm any nominee put forward by Democratic Presidents, if a Justice stepped down or had to step down in that circumstance, that would leave an empty Supreme Court seat, and that would not be good for the Supreme Court’s functioning.

You wrote another column last July, in which you claimed, “The consequences of the 2020 vote on the Supreme Court, and the country, could not be greater.” That implies that Breyer needs to retire, right? If the future of the Court hinged on who was going to win the 2020 election, then it seems like whoever won should have a chance to appoint as many Justices as possible.

Right now, the Court has a 6–3 conservative majority. If there were to be a Republican President elected in 2024, and that person had a Republican Senate, there’s a real possibility that, if Justice Breyer had to retire during that period of time, we would go to a 7–2 conservative majority, which is very different from a 6–3 majority. So, from my perspective—of someone who favors a Supreme Court that has as many Justices as possible who believe in the living Constitution—that would be a devastating consequence. That said, the current 6–3 conservative majority can already potentially reach decisions that will themselves be devastating from the standpoint of protecting fundamental rights. That could happen even if the Court remained at 6–3. Did I write that before or after Ginsburg died?

It was before Ginsburg died.

I wrote that under those conditions when it was a 5–4 Supreme Court. Things do look a little different once the Court goes to 6–3.

Right, but the reason the Court went from 5–4 to 6–3 is that Justice Ginsburg didn’t in fact retire, and died. So then how do you view her decision not to retire when there was a Democratic President?

I desperately wish that Justice Ginsburg had retired when Barack Obama was President and the Democratic Party controlled the Senate. Her health had not been good at all, and that was known to the world, and of course known to her. I am deeply saddened that she did not.

So you think waiting too long is a fair critique of a Justice?

Look, I think it’s always situational, right? When should Thurgood Marshall have stepped down? He tried really hard to make it through eight years of Reagan and four years of George H. W. Bush, and he just didn’t quite make it. [Marshall retired in 1991 because of health issues.] But should he have stepped down under Carter, almost ten years before he actually passed away? That’s a pretty tough call to make, and it is not at all clear that he should have done.

He was in his seventies, not his eighties, in the Carter years, right?

Yeah, there was a big difference of age. But, yes, I think if there’s a Justice who cares about his or her legacy, and recognizes the possibility that that legacy could be disastrously undercut if he or she did not step down, it’s sensible for the Justice to take that into account and to step down. I have a pragmatist view of it.

I’m curious about this idea, which you’ve been circling in your answers, of viewing the Supreme Court as a political institution. I understand why in theory perhaps its not being a political institution would be a valuable thing for our country. But it seems clear to me that it is a political institution and that denying that reality seems to get us not necessarily in a better place. Do you agree?

I would like to draw a sharp distinction between the Supreme Court as a political institution and the Supreme Court as a partisan institution. Hard cases that come in front of the Supreme Court, whether they’re constitutional or statutory, involve subtle judgments about how to interpret the Constitution and how to interpret the laws, and those inevitably implicate deeply held political beliefs. When the Supreme Court decides those close cases, politics unquestionably come into its decision-making process, and, in that sense, the Supreme Court is a political institution. Look, the Justices are appointed by the Presidents of different parties and confirmed by the Senate, so therefore the Justices are appointed through a political process, and, in that sense also, the Supreme Court is a political institution.

But the Supreme Court ideally should not function as a partisan institution in the sense that the Justices should not be deciding cases based on what outcome would benefit one political party or the other. That’s hugely important as a value that all the Justices should, in principle, hold. Does that mean that every Justice has been wholly nonpartisan? Of course not, but the aspiration to be nonpartisan has the effect of constraining decision-making.

Bush v. Gore happened, and when it was decided, it looked to many observers like a partisan decision, and that was very costly to the legitimacy and reputation of the Supreme Court. In subsequent years, a good number of the Justices have tried hard not to make decisions that would make the Supreme Court look partisan. An example of how this constraint can operate does not require us to go very far back in history. Just think of how the Supreme Court operated during the 2020 election. There were many people in the country, including, it would seem, the President, Donald Trump, who imagined and hoped that the Supreme Court would intervene in the election and, against established precedent, decide some case or set of cases in a way that would enable Trump to win the election even though he’d lost, and reasonable observers were worried about that.

That perception itself is very harmful to the Supreme Court. But the very good news is that the Supreme Court Justices did not go that way. Those Justices did not decide, say, the Pennsylvania case in a way that would have thrown the electoral outcome into doubt. Instead, the Justices overwhelmingly voted in a nonpartisan way that was consistent with the rule of law. We who are not on the Supreme Court should be doing everything we can to encourage the Justices in their commitment to the ideal—and it’s an ideal—of deciding cases without reference to partisanship.

I’d concede that there were a lot of overwrought claims that the conservative majority would just hand the election to Trump, and those turned out to be completely wrong. It doesn’t seem to answer the question, though, of how they would have behaved in an election that was as close as Florida in 2000. About that, I have absolutely no confidence that they would not have acted in a partisan way.

As I said, Bush v. Gore did happen, so I can hardly say that it’s inconceivable that a 5–4 majority could intervene in the way that they did intervene in Bush v. Gore. But the fact is that constraints on Justices are not there only for the cases in which they might not work. They’re still valuable the rest of the time. I thought that people’s saying the Supreme Court was going to hand the election to Trump was an overwrought view, but neither I nor anybody else could be absolutely certain of it, and the reason that our judicial system works when it works is because not only the Justices but the lower federal-court judges, too, are people who, on the whole, actually believe in the rule of law. And that set of beliefs is really important, even if we, as critical outsiders, are not naïve and admit that politics come in. Their belief, nevertheless, is importantly constraining.

You mentioned different kinds of political decision-making, and I wonder about a certain kind, beyond partisanship, which is when people work backward, consciously or not, to the decision that they want. It’s very easy for Justices to tell themselves that they’re just calling balls and strikes, as Chief Justice [John] Roberts famously said in his confirmation hearings, and maybe he consciously believes that. But I can often guess where the Justices will end up on certain Court cases, and it’s not just because I studied their judicial philosophy and understand the constitutional issues involved. It’s because I know which were appointed by Republicans and which by Democrats. Is that too glib?

It’s not a question of glibness, but it is a question of subtlety, of differentiating jurisprudential commitments from politics. Now, jurisprudential commitments include some political beliefs. In fact, when the late, great Ronald Dworkin talked about what we call jurisprudential beliefs, he said that they were grounded in what he called “political morality.” He was acknowledging that there is a morality that is connected to people’s political values and beliefs. Again, that is, to some degree, inevitable in constitutional decision-making in high-stakes cases, but it should be separable from who happens to be the President now, and whether you like the legislation or not like the legislation.

Chief Justice Roberts did indeed cast the decisive vote not to overturn the individual mandate in the Affordable Care Act case, and I don’t think that’s because he loved Obamacare. I think it’s because he really believed that, in light of the doctrine, there was a constitutional way to uphold the individual mandate. It doesn’t matter so much whether that was totally constrained by belief or whether his desire was to appear as though he was being nonpartisan. Who knows? You have to be deep in his psyche to know that. Even he might not know. But the result was a distinctly nonpartisan decision.

Could one make the argument that one side’s partisanship changes the rules of the game for the other side? I worry that the ship has left the harbor. This is now a partisan institution. Republicans act like it’s a partisan institution and will play very tough, and so, even if there’s something in theory to say for Breyer trying to establish nonpartisanship, in theory it’s naïve.

Stephen Breyer is one of the least naïve people I have met in my life, and I have very little worry that his decision-making process would be naïve. And if I did think that he were naïve, I would not think that his consciousness could somehow be raised to realism by op-eds. That said, the appointment process now is absolutely wholly partisan. That is absolutely true. We have entered a new era in the nature of the appointments process. That is different from whether the Supreme Court, in terms of the decisions of the Justices from their perspective, needs to be partisan. Notice the distinction.

You wrote a column last year about Amy Coney Barrett, in which you stated, “I disagree with much of her judicial philosophy. . . . Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer. . . . Those are the basic criteria for being a good justice. Barrett meets and exceeds them.” You also called her a “sincere, lovely person,” and wrote, “Barrett is also a profoundly conservative thinker and a deeply committed Catholic. What of it? . . . I’m going to be confident that Barrett is going to be a good justice, maybe even a great one.” The Yale law professor Akhil Reed Amar famously wrote in support of Brett Kavanaugh’s confirmation, before the sexual-assault allegations against Kavanaugh became public. Is there too much focus in the legal profession on the quality of the Justices’ reasoning or how lovely they are as a person, when what is really important is how they’re going to vote on key issues?

When I wrote that piece, it was a hundred-per-cent certain that Justice Barrett would be confirmed by a majority-Republican Senate. The point that I was trying to make in the piece was not that any particular Democratic senator should vote for her confirmation. I’m not a senator, and I didn’t have to take a position on that. What I was saying is that it is and was unnecessary to vilify a Supreme Court nominee who is on her way to confirmation solely because one deeply disagrees with her judicial philosophy and is very likely to disagree with decisions that she reaches.

We do better by fostering a judicial and political culture in which we can acknowledge the sincerity and the good qualities even of people with whom we deeply disagree, and who will do things that we think are constitutionally wrong, and the reason we do better when we’re able to do that is that it doesn’t weaken our own beliefs or our own commitments. Rather, it encourages us and encourages them to remember that we’re all in this thing called living under the Constitution together, and that if we’re all in this thing together and we’re not evaluating every issue at the personal level from a partisan political perspective, then, when the stakes are very high, as indeed they were going to be just after Justice Barrett joined the Court, in the 2020 election season, we will increase the odds that those Justices who are confirmed share the belief that I have in the ideal of nonpartisanship.

Couldn’t you flip that the other way and say that, by arguing being respectful to people changes how they behave, you are arguing that people are inherently political, and that they respond to incentives and they respond to how they’re treated, or they respond to people badgering them—

No, no. No, Isaac, I don’t think so at all. Take a social practice, such as kindness to other people. If I say that if I’m kind to you, it increases the odds that you’ll be kind to me because we’re both committed to a belief in kindness. I’m not saying that kindness is an empty value. All social values have some components of self-interest, including kindness, including goodness, including nonpartisanship. I want a legal system in which Justices are nonpartisan because otherwise the vote might go against me sometime, and [one in which] the person on the other side also believes in nonpartisanship and in its value because the vote might go against her sometime. So it’s not undercutting that commitment; it’s a reinforcing of that ideal, and that’s true of kindness, it’s true of politeness, and it’s true of nonpartisanship.

That totally makes sense, although it goes against what Justice Roberts would say about calling balls and strikes, because the whole point of being an umpire is that you’re not supposed to care how people treat you.

You’ll notice that I’ve never embraced the balls-and-strikes analogy. But you’re a sports fan, and so you know that statistical analysis shows that different umpires have different strike zones. So we know that even the analogy is referring to an underlying reality that is, in fact, not objective. Umpires do call balls and strikes, but it turns out each of them calls them differently, on the basis maybe not of their political beliefs or commitments but based on some incompletely expressed idea of what’s a ball and what’s a strike. So there is no genuine objectivity with respect to balls and strikes as long as human beings are making the call.