My second book about the Supreme Court offers a more nuanced diagnosis of exactly what’s wrong with the institution—and how (and why) we should fix it.
I am listening to Shadow Docket now and I was wondering how you'd analyze the change. It seems like the Court is trying to write more on the Shadow Docket but continues to create that confusion for the lower courts, litigants and the public even when they are writing. A striking observation is how contradictory so many of their rationales and observations are — internally, and individually even — about why they are changing procedures. Trump 2 has illustrated that this Court is reaping what it has sowed, and then complaining about it.
Are you thinking of decsions where they get it wrong? I would match rather they take a stand when they get it wrong for clarity for the public, litigants and lower courts than leave it ambiguous, uncertainty and chaotic. Writing even a spacious decsion forces you to lay out your flagged logic and gives others an opportunity to leverage the decsion in ways the justices wouldn't love. That accountability is a check.
That's a good question. Thinking again, it seems that they've been explaining precisely the few decisions they got right. and they might not have needed those of they hadn't issued those stays allowing Trump to keep breaking the law until they issued their final decision.
And yes, it's easier to criticize them better for allowing Trump's lawlessness if they gave an explanation for it that would naturally have to be flawed.
Despite criticisms of "overly strident", it seems as though the right-wing majority has indeed taken on board Justice Jackson's faulting of the Court's erstwhile "shadow docket" practice of issuing little or no reasoning nor guidance in, e.g., issuing stays of lower- court decisions, many of which are lengthly and laborious discussions of the relevant law(s) and the rationale for their decisions.
Let us hope that a revision of the majority's shadow-docket dodge had indeed changed for the better, and we will see more substantive opinions — signed, of course! — during the upcoming term.
For some time I have thought that technology and science (including medicine) has passed SCOTUS by. The world is increasingly complex, making well-informed, objective decisions all the more difficult. There may be some with preformed biases. Thoughts?
I think your comment applies to the government in general. Artificial Intelligence (A.I.) in particular poses new questions that many politicians and judges may not have the background to address reasonably (if anyone does). For example:
What kinds of A.I., if any, should be considered sufficiently autonomous and "intentional" to have legal personhood? That question rests on a mix of difficult technological and philosophical questions that will be difficult to resolve.
Who or what should be legally liable when an A.I. system "goes rogue", causing harm?
Is A.I.'s output "speech" from the manufacturer, or from the A.I. itself? Or is not "speech" at all? (If A.I. is not considered a person, and its output is largely unpredictable by the manufacturer and user, then there's no speaker, and so there's presumably no "speech" in the conventional sense.)
“These aren’t ‘agents’. They are ‘proprietary software’. And they’re ‘rogue’ in the same way that someone breaking into a Prada store and making off with a load of designer handbags is ‘rogue’.”
Carole Cadwalladr, Meet the real AI “rogue agent”: Lord Tom Watson, on Substack.
In a similar register, see Matteo Wong over at The Atlantic today, concluding, "These firms have agency. It is not ChatGPT and Claude going rogue, but OpenAI and Anthropic."
Indeed, the models behave like their owners/designers.
I agree that A.I. leaders have created a being in their own unpleasant image, and I agree that they (the humans) are rogues. But the question of whether A.I. systems have "agency" and the other questions I raised previously don't have easy answers.
There are some common arguments for why machines cannot possibly think, display intelligence, possess autonomy and agency, etc., but the reasoning is usually fallacious. Alan Turing, in his seminal 1950 paper "Computing Machinery and Intelligence" anticipated and refuted such arguments.
If we define thinking, intelligence, autonomy, and agency in purely behavioral terms, without demanding the presence of consciousness as part of the definition, then even the current advanced A.I. systems probably already possess those properties.
The question of whether only beings that possess consciousness should have legal rights and responsibilities isn't a trivial one. For one thing, from a philosophical viewpoint, none of us can ever be entirely certain that any other being, human or not, possesses consciousness. In practice, we may soon reach a point where most people believe that A.I. systems are conscious (some already do), at which point the philosophical difficulties that question involves will likely become irrelevant.
The question of whether consciousness should even be a criterion for legal personhood has also been debated, as when Justice Douglas proposed that inanimate objects such as valleys and lakes should have legal "personality" (Sierra Club v. Morton, 405 U.S. 727 (1972)).
I want to ask you about what I think is a bit of a paradox.
I agree with your (and Kennedy's) view that we need a court that has a reservoir of trust, and that court reform is needed to restore that.
But at the same time, I think the court is too trusted right now to allow reform to happen through the political process, esepcially when public trust in the political process (ie, Congress) is itself very low.
Does the court need to be broken in order to save it?
Okay. Someone can break down the numbers. I don’t think societal trust in the courts only decreased on the part of the left, though they would logically be the ones whose trust decreased the most.
Public approval of the Court is down among self-identified Democrats, independents, *and* Republicans (from lowest to highest). The book reflects a bit on why that ought to set off alarm bells inside the Court...
What was it that Churchill said. ? About being trusted to do the right thing when all other options are foreclosed ?? Lawyers who appear in court learn never to trust judges to do what they think is right, much less what the want. To get a judge to rule in your favor on anything great or small, you must make for that judge the cost of doing anything else prohibitive. Your posture, your pleadings, your evidence, your motions, must leave them with no other choice. And then, you might get lucky. Above all it is important to have a good client. And what is that ? One who pays his bills and to whom the Court and the public are favorably disposed or respects.
What is remarkable about this removal case, like the ballot cases and others we have seen, is the extent to which the Solicitor General has felt free to impose on the Supreme Court's presumed good will towards his client, "The Government", in other words, Trump and his deputies, in apparent disregard for these precautionary principles of appellate practice, trusting that such an approach will pay dividends. This is so clearly contrary to custom and good order that it must be reflective of his Client-in-Chief's intents. Sauer is clearly in these countless emergency appeals brought before the Court and in the way he presents them, leaning on the Court's Republican majority to show favoritism towards the Government, dressed up as "the presumption of regularity". And his only reason for doing this is because that is what Trump expects him to do. The attitude conveyed is "If you are not going to vote in our favor, they what are we paying you for? What do you think you were put there for ?".
There can be no doubt that this is Trump's attitude. He makes no secret of it.,
If we break the court, then the entire three-branch government will be broken. Better to restore Congress to something like what it was intended to be, not that I know how to do that or expect it to happen.
Yes, the aim is commendable and I don't mean to denigrate it. I'm simply saying the obvious -- that without stopping the social rot, structural changes won't help.
It is only through the political process that the Supreme Court can be set right. Only through Congress. As Vladeck says, I will agree: the Court has grown too isolated and independent of other branches of government, and developed a sense that it need no account to anyone for its actions or the way it conducts its business. But whose fault is that. Truth is, all the branches of government have grown estranged from one another. They should go to a mixer. I think it is a case of entropy. Their are all spinning apart in different directions. Congress can do something about that, given sufficient political will. But Congress has been paralyzed by divisions for a long time.
What about Congress legislating a sensible code of ethics for SCOTUS with input from legal scholars and current or retired judges of good repute? Make it similar to codes for lower court officials. Would the current court find it unconstitutional?
The book has multiple chapters on the ethics issues, and on how one accountability-driven reform that could go a long way is the creation of an Article III Inspector General. I previewed that argument here: https://www.stevevladeck.com/p/bonus-49-an-article-iii-inspector
Are you implying that their current code of ethics, to which all nine Justices 100% committed to "maybe possibly occasionally thinking about considering that they might want to potentially contemplate that such code could, in some very remote circumstances, be something that may apply to them which they can determine at their sole discretion with no input or review from anyone else and that has no enforcement mechanisms", is not robust enough?
I also think there won't be enough votes. It is something that realistically requires a supermajority. That's one reason I'm somewhat not concerned about "tit for tat" fears -- IF it happens, I think Republicans will need to get something.
Some, however, are PASSIONATE about the need for court expansion, including some court commentators. Including many Vladeck fans.
Opponents like Steve Vladeck need to firmly address leading arguments.
First, people argue the current Court is already very partisan, corruptly so, and it was crafted that way. Basically, it's either (1) that claims are wrong [e.g., Prof. Kerr: "no, there wasn't any stolen seat," etc.] or (2) there was, but we are simply stuck with it and can temper the damage. Also, yes, but two wrongs don't make a right.
Relatedly, people argue that a fair system would not have resulted in the Court where we last had a Democratically nominated majority before Vladeck was born. Over 50 years ago. Again, we are stuck with it, or it didn't happen.
The shift referenced in the book happened over an extended period. But a key shift occurred after Kennedy's retirement. The solution seems to be to regain some balance with the same Court. Basically, tell a Court people think is "stolen" or "corrupt" to drive their stolen car more carefully. Maybe, since it's unlikely all the things he wants will happen, they will be somewhat more reasonable when they do things like Trump v. U.S. (a constitutional decision).
Third, people think court expansion is needed to protect democracy long-term. Vladeck's book will provide a rejoinder, providing another approach. Without knowing the exact details, I don't know how the supporters of expansion will respond.
But I think they will think it is too little, will take too long, and the Court meanwhile will continue to be dangerous. For instance, unless we change judicial review, justices will have the power to decide things, and there will be only so much we can do about it. That's the whole point on some level.
Anyway, since court expansion is such a passionate demand of people the author respects, and has some growing support as a Democratic demand, I suppose it is significantly addressed in the book.
As to term limits, I think it is ONE reasonable long-term tool. It's a norm in judicial systems worldwide. I think they make sense. Also, to some degree, it can be a moderating tool for a Supreme Court that is a bit too full of itself.
Anyway, I look forward to the new book. 2027 is a good year for it. People can read and discuss it with an eye on the 2028 elections.
Enlarging the Court will accomplish no good. It will only lead to more confirmation battles that make your skin creep, more disagreements, and larger ones. More paper work. Decisions that run to a thousand pages. The reason the Court is failing is because Congress has failed. And who do we have to look to for that ? Ourselves. The cure to the ills of the Supreme Court is through a Congressional mandate to do something about it. To my way of thinking, it is not the gifts, the fishing trips to Alaska, the fat honorariums. These are petty matters. It is the job performance. The decision making. I believe that the majority should be held to account for their decision in Trump v. United States above all. Only Congress can do that. But believe me, it can.
You mention (and I think most of us already knew) that Congress is passing up the use of their power and pushing it on to the Court. I wonder if that is because they are so deficient in understanding the law. Although I have not done any research, it seems that in the past Congressional members were more educated in the law whereas now it seems that "Party" dictates what to support or quash;and aoll too many way "whew, wiggled out of that decision" and vote without any understanding of law. Maybe there should be a knowledge exam before being allowed to run for office?
So excited about your new book, Stephen! Will it also be published as an e-book? I read a lot but am elderly, my vision less keen, and I really appreciate the flexibility of electronic versions.
Thank you for your wonderful way of communicating interesting, meaningful and important legal matters to the non- legally trained. - Suzanne
I look forward to reading the book and am anxious to hear proposals for SCOTUS reform. However, it will be hard for me to support any sort of reform that strengthens the Court that does not also include powerful reforms of the appointment/confirmation process. I feel that the process now is too easily captured by one party or the other, resulting in a Court that poorly reflects mainstream thought.
I find it very hard to believe that any sort of improved explanation from the Court of its action in Onder would have dissuaded the 8th Circuit panel from its course. The same court that expressed doubts about its jurisdiction when the lower court decision favored one side turned 180 degrees just a few days later to aggressively assert its jurisdiction just a few days later when the stay granted by SCOTUS had the opposite result. This panel was plainly set on implementing the 2025 map regardless of any law or fact. THAT is the fundamental problem that we must solve with the federal judiciary. And no amount of rhetoric from politicians or even from higher courts is likely to solve that problem. In my opinion, all federal judges must firmly believe that they are to faithfully implement the Constitution and laws, including state constitutions and laws, or they will be promptly removed from office
I believe SCOTUS' "failure" with regard to the public can be traced to the 1925 Judges Bill which allowed the Court to decide not to decide cases. That decision now permits States (and even lower courts) to totally ignore the law and get away with it. My case, 22-387, is one of many examples where lower courts can totally ignore the Constitution and be allowed to get away with it. States can simply silently signal (i.e., no response) that, hey, this is a State decision, we win, so leave it stand via "Certiorari DENIED."
Additionally, Supreme Court Term limits make little sense. There are people that are senile at age 50. The small number of SCOTUS Justices made some sense when the country's population was 3,000,000 but it makes very little sense when the current population is 333,000,000. I suggest 45 or even 60 Justices then adjust up or down as needed to support SCOTUS written decisions with random 3 Justice panels on 100% of submitted cases with random 9 judge panels whenever the 3 panel is split.
With 60 Justices with (hypothetically) half on the "left" and half on the "right", we'd get an entirely one-sided three-Justice panel almost a quarter of the time (assuming I've had enough caffeine this morning). That's better than the current approach, but given the impracticality of having so many Justices, I don't think the idea would fly.
Following up on my previous reply: in the worst-case scenario where all Justices vote in a purely partisan manner, a scheme like what you suggest is statistically equivalent to randomly deciding the outcome of each case (as far as which side the Court rules in favor of). The random distribution of outcomes would depend on the proportion of "leftists" and "rightists" on the overall panel of 45 or 60 Justices.
For example, if there are 30 Justices on the left and 30 on the right, the outcome is statistically equivalent to flipping a coin (in the long run, over many cases). That's not a reasonable way to ensure justice.
The fundamental, underlying problem is Justices that refuse to rule impartially. That's the problem that needs to be addressed somehow, and statistical tweaks won't suffice.
Alia Hanna Habib really must be great, because she's the only literary agent I've ever heard of and you're the second Substack I follow whose author has her as an agent (the other one being Woman of Letters).
I am flawed by Justice Gorsuch: “[t]he rise of the emergency. The perpetual emergency. Everything is an emergency .... [w]e’ve moved so much up to the federal level that needs to be done by states. And now through delegations of authority, through emergency legislation of all stripes, we’ve moved it over to the executive branch. And I just don’t think that's a recipe for a healthy democracy over the long term.” I mean, he has a huge blind spot.
I am listening to Shadow Docket now and I was wondering how you'd analyze the change. It seems like the Court is trying to write more on the Shadow Docket but continues to create that confusion for the lower courts, litigants and the public even when they are writing. A striking observation is how contradictory so many of their rationales and observations are — internally, and individually even — about why they are changing procedures. Trump 2 has illustrated that this Court is reaping what it has sowed, and then complaining about it.
I wonder should a court really be recommended for giving explanations on decisions that actually don't really seem to fit into the legal system?
Are you thinking of decsions where they get it wrong? I would match rather they take a stand when they get it wrong for clarity for the public, litigants and lower courts than leave it ambiguous, uncertainty and chaotic. Writing even a spacious decsion forces you to lay out your flagged logic and gives others an opportunity to leverage the decsion in ways the justices wouldn't love. That accountability is a check.
That's a good question. Thinking again, it seems that they've been explaining precisely the few decisions they got right. and they might not have needed those of they hadn't issued those stays allowing Trump to keep breaking the law until they issued their final decision.
And yes, it's easier to criticize them better for allowing Trump's lawlessness if they gave an explanation for it that would naturally have to be flawed.
Seems to me that this conservative majority on SCOTUS is challenging Trump for dominance without explanation or justification.
Despite criticisms of "overly strident", it seems as though the right-wing majority has indeed taken on board Justice Jackson's faulting of the Court's erstwhile "shadow docket" practice of issuing little or no reasoning nor guidance in, e.g., issuing stays of lower- court decisions, many of which are lengthly and laborious discussions of the relevant law(s) and the rationale for their decisions.
Let us hope that a revision of the majority's shadow-docket dodge had indeed changed for the better, and we will see more substantive opinions — signed, of course! — during the upcoming term.
For some time I have thought that technology and science (including medicine) has passed SCOTUS by. The world is increasingly complex, making well-informed, objective decisions all the more difficult. There may be some with preformed biases. Thoughts?
I think your comment applies to the government in general. Artificial Intelligence (A.I.) in particular poses new questions that many politicians and judges may not have the background to address reasonably (if anyone does). For example:
What kinds of A.I., if any, should be considered sufficiently autonomous and "intentional" to have legal personhood? That question rests on a mix of difficult technological and philosophical questions that will be difficult to resolve.
Who or what should be legally liable when an A.I. system "goes rogue", causing harm?
Is A.I.'s output "speech" from the manufacturer, or from the A.I. itself? Or is not "speech" at all? (If A.I. is not considered a person, and its output is largely unpredictable by the manufacturer and user, then there's no speaker, and so there's presumably no "speech" in the conventional sense.)
“These aren’t ‘agents’. They are ‘proprietary software’. And they’re ‘rogue’ in the same way that someone breaking into a Prada store and making off with a load of designer handbags is ‘rogue’.”
Carole Cadwalladr, Meet the real AI “rogue agent”: Lord Tom Watson, on Substack.
In a similar register, see Matteo Wong over at The Atlantic today, concluding, "These firms have agency. It is not ChatGPT and Claude going rogue, but OpenAI and Anthropic."
Indeed, the models behave like their owners/designers.
I agree that A.I. leaders have created a being in their own unpleasant image, and I agree that they (the humans) are rogues. But the question of whether A.I. systems have "agency" and the other questions I raised previously don't have easy answers.
There are some common arguments for why machines cannot possibly think, display intelligence, possess autonomy and agency, etc., but the reasoning is usually fallacious. Alan Turing, in his seminal 1950 paper "Computing Machinery and Intelligence" anticipated and refuted such arguments.
If we define thinking, intelligence, autonomy, and agency in purely behavioral terms, without demanding the presence of consciousness as part of the definition, then even the current advanced A.I. systems probably already possess those properties.
The question of whether only beings that possess consciousness should have legal rights and responsibilities isn't a trivial one. For one thing, from a philosophical viewpoint, none of us can ever be entirely certain that any other being, human or not, possesses consciousness. In practice, we may soon reach a point where most people believe that A.I. systems are conscious (some already do), at which point the philosophical difficulties that question involves will likely become irrelevant.
The question of whether consciousness should even be a criterion for legal personhood has also been debated, as when Justice Douglas proposed that inanimate objects such as valleys and lakes should have legal "personality" (Sierra Club v. Morton, 405 U.S. 727 (1972)).
Book preordered!
I want to ask you about what I think is a bit of a paradox.
I agree with your (and Kennedy's) view that we need a court that has a reservoir of trust, and that court reform is needed to restore that.
But at the same time, I think the court is too trusted right now to allow reform to happen through the political process, esepcially when public trust in the political process (ie, Congress) is itself very low.
Does the court need to be broken in order to save it?
I was under the impression that the level of trust had significantly decreased. Not enough, perhaps.
I think trust has decreased on the part of the left that pays close attention to politics, which on its own is not enough, IMO.
Okay. Someone can break down the numbers. I don’t think societal trust in the courts only decreased on the part of the left, though they would logically be the ones whose trust decreased the most.
Public approval of the Court is down among self-identified Democrats, independents, *and* Republicans (from lowest to highest). The book reflects a bit on why that ought to set off alarm bells inside the Court...
What was it that Churchill said. ? About being trusted to do the right thing when all other options are foreclosed ?? Lawyers who appear in court learn never to trust judges to do what they think is right, much less what the want. To get a judge to rule in your favor on anything great or small, you must make for that judge the cost of doing anything else prohibitive. Your posture, your pleadings, your evidence, your motions, must leave them with no other choice. And then, you might get lucky. Above all it is important to have a good client. And what is that ? One who pays his bills and to whom the Court and the public are favorably disposed or respects.
What is remarkable about this removal case, like the ballot cases and others we have seen, is the extent to which the Solicitor General has felt free to impose on the Supreme Court's presumed good will towards his client, "The Government", in other words, Trump and his deputies, in apparent disregard for these precautionary principles of appellate practice, trusting that such an approach will pay dividends. This is so clearly contrary to custom and good order that it must be reflective of his Client-in-Chief's intents. Sauer is clearly in these countless emergency appeals brought before the Court and in the way he presents them, leaning on the Court's Republican majority to show favoritism towards the Government, dressed up as "the presumption of regularity". And his only reason for doing this is because that is what Trump expects him to do. The attitude conveyed is "If you are not going to vote in our favor, they what are we paying you for? What do you think you were put there for ?".
There can be no doubt that this is Trump's attitude. He makes no secret of it.,
If we break the court, then the entire three-branch government will be broken. Better to restore Congress to something like what it was intended to be, not that I know how to do that or expect it to happen.
Well, the aim is to recalibrate it. It's broken now. That's the general idea.
Yes, the aim is commendable and I don't mean to denigrate it. I'm simply saying the obvious -- that without stopping the social rot, structural changes won't help.
It is only through the political process that the Supreme Court can be set right. Only through Congress. As Vladeck says, I will agree: the Court has grown too isolated and independent of other branches of government, and developed a sense that it need no account to anyone for its actions or the way it conducts its business. But whose fault is that. Truth is, all the branches of government have grown estranged from one another. They should go to a mixer. I think it is a case of entropy. Their are all spinning apart in different directions. Congress can do something about that, given sufficient political will. But Congress has been paralyzed by divisions for a long time.
What about Congress legislating a sensible code of ethics for SCOTUS with input from legal scholars and current or retired judges of good repute? Make it similar to codes for lower court officials. Would the current court find it unconstitutional?
Would they follow anything? Unless there are consequences why bother to be ethical.
The book has multiple chapters on the ethics issues, and on how one accountability-driven reform that could go a long way is the creation of an Article III Inspector General. I previewed that argument here: https://www.stevevladeck.com/p/bonus-49-an-article-iii-inspector
Are you implying that their current code of ethics, to which all nine Justices 100% committed to "maybe possibly occasionally thinking about considering that they might want to potentially contemplate that such code could, in some very remote circumstances, be something that may apply to them which they can determine at their sole discretion with no input or review from anyone else and that has no enforcement mechanisms", is not robust enough?
Vergogna.
I respect the concern about court expansion.
I also think there won't be enough votes. It is something that realistically requires a supermajority. That's one reason I'm somewhat not concerned about "tit for tat" fears -- IF it happens, I think Republicans will need to get something.
Some, however, are PASSIONATE about the need for court expansion, including some court commentators. Including many Vladeck fans.
Opponents like Steve Vladeck need to firmly address leading arguments.
First, people argue the current Court is already very partisan, corruptly so, and it was crafted that way. Basically, it's either (1) that claims are wrong [e.g., Prof. Kerr: "no, there wasn't any stolen seat," etc.] or (2) there was, but we are simply stuck with it and can temper the damage. Also, yes, but two wrongs don't make a right.
Relatedly, people argue that a fair system would not have resulted in the Court where we last had a Democratically nominated majority before Vladeck was born. Over 50 years ago. Again, we are stuck with it, or it didn't happen.
The shift referenced in the book happened over an extended period. But a key shift occurred after Kennedy's retirement. The solution seems to be to regain some balance with the same Court. Basically, tell a Court people think is "stolen" or "corrupt" to drive their stolen car more carefully. Maybe, since it's unlikely all the things he wants will happen, they will be somewhat more reasonable when they do things like Trump v. U.S. (a constitutional decision).
Third, people think court expansion is needed to protect democracy long-term. Vladeck's book will provide a rejoinder, providing another approach. Without knowing the exact details, I don't know how the supporters of expansion will respond.
But I think they will think it is too little, will take too long, and the Court meanwhile will continue to be dangerous. For instance, unless we change judicial review, justices will have the power to decide things, and there will be only so much we can do about it. That's the whole point on some level.
Anyway, since court expansion is such a passionate demand of people the author respects, and has some growing support as a Democratic demand, I suppose it is significantly addressed in the book.
As to term limits, I think it is ONE reasonable long-term tool. It's a norm in judicial systems worldwide. I think they make sense. Also, to some degree, it can be a moderating tool for a Supreme Court that is a bit too full of itself.
Anyway, I look forward to the new book. 2027 is a good year for it. People can read and discuss it with an eye on the 2028 elections.
Enlarging the Court will accomplish no good. It will only lead to more confirmation battles that make your skin creep, more disagreements, and larger ones. More paper work. Decisions that run to a thousand pages. The reason the Court is failing is because Congress has failed. And who do we have to look to for that ? Ourselves. The cure to the ills of the Supreme Court is through a Congressional mandate to do something about it. To my way of thinking, it is not the gifts, the fishing trips to Alaska, the fat honorariums. These are petty matters. It is the job performance. The decision making. I believe that the majority should be held to account for their decision in Trump v. United States above all. Only Congress can do that. But believe me, it can.
You mention (and I think most of us already knew) that Congress is passing up the use of their power and pushing it on to the Court. I wonder if that is because they are so deficient in understanding the law. Although I have not done any research, it seems that in the past Congressional members were more educated in the law whereas now it seems that "Party" dictates what to support or quash;and aoll too many way "whew, wiggled out of that decision" and vote without any understanding of law. Maybe there should be a knowledge exam before being allowed to run for office?
Your book will come out only if the Orange Blob allows it...and he is already nearing "full fascist" mode.
So excited about your new book, Stephen! Will it also be published as an e-book? I read a lot but am elderly, my vision less keen, and I really appreciate the flexibility of electronic versions.
Thank you for your wonderful way of communicating interesting, meaningful and important legal matters to the non- legally trained. - Suzanne
Yup! It'll come out May 4 in hardcover, e-book, and audiobook formats.
Idea: have Vladeck throw a first pitch at a Mets game.
Another year like this, and he’ll get a contract.
And invite Kash Patel to beer bust celebrations?
Dare we hope you'll be a guest in Strict Scrutiny's "Hot Supreme Court Reform Summer" series and give a preview of the book?
I already was!:
https://crooked.com/podcast/is-scotus-letting-trump-meddle-in-the-midterms/
D'oh! I was thinking of the Thursday bonus episodes, but of course you were...
I look forward to reading the book and am anxious to hear proposals for SCOTUS reform. However, it will be hard for me to support any sort of reform that strengthens the Court that does not also include powerful reforms of the appointment/confirmation process. I feel that the process now is too easily captured by one party or the other, resulting in a Court that poorly reflects mainstream thought.
I find it very hard to believe that any sort of improved explanation from the Court of its action in Onder would have dissuaded the 8th Circuit panel from its course. The same court that expressed doubts about its jurisdiction when the lower court decision favored one side turned 180 degrees just a few days later to aggressively assert its jurisdiction just a few days later when the stay granted by SCOTUS had the opposite result. This panel was plainly set on implementing the 2025 map regardless of any law or fact. THAT is the fundamental problem that we must solve with the federal judiciary. And no amount of rhetoric from politicians or even from higher courts is likely to solve that problem. In my opinion, all federal judges must firmly believe that they are to faithfully implement the Constitution and laws, including state constitutions and laws, or they will be promptly removed from office
I believe SCOTUS' "failure" with regard to the public can be traced to the 1925 Judges Bill which allowed the Court to decide not to decide cases. That decision now permits States (and even lower courts) to totally ignore the law and get away with it. My case, 22-387, is one of many examples where lower courts can totally ignore the Constitution and be allowed to get away with it. States can simply silently signal (i.e., no response) that, hey, this is a State decision, we win, so leave it stand via "Certiorari DENIED."
Additionally, Supreme Court Term limits make little sense. There are people that are senile at age 50. The small number of SCOTUS Justices made some sense when the country's population was 3,000,000 but it makes very little sense when the current population is 333,000,000. I suggest 45 or even 60 Justices then adjust up or down as needed to support SCOTUS written decisions with random 3 Justice panels on 100% of submitted cases with random 9 judge panels whenever the 3 panel is split.
With 60 Justices with (hypothetically) half on the "left" and half on the "right", we'd get an entirely one-sided three-Justice panel almost a quarter of the time (assuming I've had enough caffeine this morning). That's better than the current approach, but given the impracticality of having so many Justices, I don't think the idea would fly.
Following up on my previous reply: in the worst-case scenario where all Justices vote in a purely partisan manner, a scheme like what you suggest is statistically equivalent to randomly deciding the outcome of each case (as far as which side the Court rules in favor of). The random distribution of outcomes would depend on the proportion of "leftists" and "rightists" on the overall panel of 45 or 60 Justices.
For example, if there are 30 Justices on the left and 30 on the right, the outcome is statistically equivalent to flipping a coin (in the long run, over many cases). That's not a reasonable way to ensure justice.
The fundamental, underlying problem is Justices that refuse to rule impartially. That's the problem that needs to be addressed somehow, and statistical tweaks won't suffice.
Happy birthday Steve! Thanks for sharing your knowledge and analyses with us.
Alia Hanna Habib really must be great, because she's the only literary agent I've ever heard of and you're the second Substack I follow whose author has her as an agent (the other one being Woman of Letters).
She is *the* best. And she has her own Substack: https://aliahabib.substack.com/
I am flawed by Justice Gorsuch: “[t]he rise of the emergency. The perpetual emergency. Everything is an emergency .... [w]e’ve moved so much up to the federal level that needs to be done by states. And now through delegations of authority, through emergency legislation of all stripes, we’ve moved it over to the executive branch. And I just don’t think that's a recipe for a healthy democracy over the long term.” I mean, he has a huge blind spot.
Surely your mean "floored".
You are correct. Thanks.
I've just requested Boston Public Library to add to their collection.
Happy 47th.
P.S. Thriftbooks has it on pre-order as well.