Bonus 19: AMA, Round One

In which I answer reader questions, anonymous and otherwise...

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of Thursday’s content is behind a paywall to help incentivize those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers (and hope those of you who aren’t will consider upgrading your subscription, both to receive the full bonus content and to support the effort more generally).

As one of the promised bonus features, I will periodically host “AMAs” (ask me anything). This issue is the first. What follows are the questions I’ve received, and some answers. If you have other questions you’d like me to answer, fire away! I’m happy to do AMAs more often if there’s sufficient demand.

---

Q1: “Do you think lifetime appointments to the Court make it easier for a justice to submit to ideological beliefs over judicial laws or precedents.  And if so, what is the solution?”

A: Lifetime appointments undeniably foster an even greater degree of political and professional independence on the part of Supreme Court justices than, for instance, characterizes state court judges who must regularly run for re-election and/or have term limits. To me, at least, independence makes it easier for justices to be un-beholden to transient political pressures. But I’ll confess to at least some degree of ambivalence as to whether that corresponds to justices feeling less bound to follow precedent in the abstract—and, if so, whether that’s a bad thing. After all, if the thesis is that more politically accountable judges would be more likely to follow precedent, that assumes that the precedents are, themselves, popular. And perhaps it takes judges who are more independent to cast away precedents like Plessy v. Ferguson.

All of which is to say that I don’t think lifetime appointments, by themselves, are the principal (or even major) cause of what I view as the structural problems besetting the current Court. I think it’s possible to significantly improve the health of the institution without changing how justices are appointed or for how long they serve (assuming a Congress that cares about such improvements, anyway).

Q2: “Given his support for reviving the non-delegation doctrine, why didn’t Justice Alito dissent in Gundy v. United States?”