Prophecy is a tricky business

At the end of 2019, I attempted to look ahead to what to expect in the U.S. Supreme Court in 2020. Of course, the most important stories?the COVID-19 pandemic and how it changed the court, the death of Justice Ruth Bader Ginsburg, the confirmation of Justice Amy Coney Barrett?could not possibly have been foreseen.

Science? We don’t need no stinking science!

The Supreme Court ruling against New York state's decision to limit religious gatherings in a few high-incidence parts of New York City during the Covid-19 pandemic will cause grave danger in the rest of the country, where public health authorities will feel hamstrung to restrict religious gatherings even when the virus is spreading out of control, writes Jeffrey Sachs.

Majority rule? We don’t need no stinking majority rule!

Basically, demographic changes are making it impossible for the Republicans to win majorities at the ballot box so they’re doing everything they can to hold back the tide and resist majority rule. But sooner or later, the young’uns won’t put up with it.

A Republican vote to replace the late Supreme Court Justice Ruth Bader Ginsburg before the next presidential inauguration could deepen the pressure on majority rule that is already threatening to engulf all elements of America's political system.

Packing the court (and an alternative)

Noted constitutional scholar Edwin Chemerinsky recommends enlarging the Supreme Court if the Republicans push through a replacement for Ruth Bader Ginsburg. He suggests thirteen justices as an appropriate size. Others have also proposed packing the court. Others argue that this is a terrible idea that would destroy the independence of the judiciary.

I’d like to suggest an alternative that’s less drastic but could accomplish the same thing (at least in the short term) with less damage to the judiciary as an institution: senior status. Under current law, when federal judges reach the age of 65 and the sum of their age and number of years on the bench is 80 or more, they can take senior status. They keep their salary and they continue to hear a reduced number of cases. Supreme Court Justices who take senior status no longer hear SCOTUS cases but continue to serve on Court of Appeals panels. David Souter continues to hear First Circuit cases and Sandra Day O’Connor only stopped hearing cases a few years ago (dementia). Why not allow retired justices to continue to sit on SCOTUS cases as they wish? They would no longer deal with cert petitions or serve as circuit justices (which should greatly reduce their workload). I imagine that Breyer would take senior status and continue to hear cases along with his replacement. Justice Sotomayor is also eligible for senior status. Perhaps Justices Souter and/or Kennedy would decide to come back for some cases. Right now, senior judges are assigned to cases by the Chief Justice. Obviously, that wouldn’t do. So I propose that once the Supreme Court grants cert to a case, senior justices would have, say, fifteen days to inform the court that they will be participating in that case. The result would be to blunt the conservative’s current edge on the court without invoking quite the controversy that packing the court would.

The law still matters to some SCOTUS justices

“Trump keeps losing not because of something obscure, but because of something fundamental: his abuse of the executive branch. Much of his administration’s approach to governance rests on attempting executive actions that lack any meaningful justification rooted in expertise, or even rational thought. …

“Trump’s abuse of the executive branch is one of the most damaging aspects of his presidency, because it rejects a reasoned approach to making government policy. Trump has made clear—most notably during the impeachment process—that he disdains the civil servants who bring deep expertise and valuable experience to important policy questions. …

“Trump has made clear time and again that he doesn’t really care what the law says, especially about immigration. That’s why he urged shooting rock-throwing immigrants and retaliating against immigrant-friendly sanctuary cities by sending detained immigrants to such cities, and why he fired his own Homeland Security general counsel, who had pushed back on various questionable Trump initiatives. Trump doesn’t see law as a constraint, but something to be manipulated—and that’s clearly a message his Cabinet seems to have received. Consequently, they play fast and loose with the law. The Court, in this decision and last year’s, is essentially saying that the law still matters.

“Ultimately, that’s precisely what’s at stake as long as Trump is president. If all that matters is a president’s policy preferences, then law—including judicial review—is basically a facade: Dress it up enough, and it’ll pass muster. But if law matters—if building a record and considering facts and providing honest reasons matter—then Trump is sure to keep losing.”

The legal reasoning may look like it turns on obscure technicalities, but the administration?s cases are falling apart because of something much more deeply wrong.