IF SCOTUS ISN’T POLITICAL, PROVE IT | Suggestions For How To Fix The Court
October 17, 2019
TOP-ED
|Gabe Roth, Executive Director of Fix the Court, argues in USA Today that if the Supreme Court isn’t political, as CHIEF JUSTICE JOHN ROBERTS says, then he’s going to have to prove it. Roth notes that on October 1 of this year, four or more justices decided behind closed doors to take up the Louisiana abortion case over a law that is nearly identical to one out of Texas that the high court struck down in 2016. “Instead of all nine justices following court precedent and telling the Bayou State, via summary judgment, to take a hike, some subset of the nine thought it prudent to make this highly charged issue the linchpin of the 2019-20 court term.” He goes on, “Prove to the public that it was not the five Republican-appointed justices who voted to grant the Louisiana abortion petitions. Give us the vote tally on the same page on which the orders are noted.”
TOP-ED AGAIN
|In the Los Angeles Times, Erwin Chemerinsky similarly suggests that SCOTUS could use some fixing. He notes that a recent rule-change to the Supreme Court’s oral argument structure (which was in place for 200 years, no less), “should be the impetus for other long overdue reforms, specifically to increase the transparency of the court’s work.” He argues in favor of having all of the high court’s proceedings broadcast. “My sense is that broadcasting Supreme Court arguments would enhance the credibility of the court at a time when its esteem with the public, like that of all government institutions, has suffered. If people could watch the arguments and the announcement of decisions, they would see men and women – the justices and the advocates – dealing with issues of great importance in a careful, reasoned manner. Everyone would benefit from greater transparency.”
TOO MANY TOP-ED'S?
|On his own blog and on Salon, Robert Reich suggests five possibilities for strengthening the Supreme Court and re-building public trust for the institution. Among others, he suggests the imposition of term limits on justices, a reinforced ethics code, and a requirement that justices regularly disclose their finances online, including their stock holdings.
SEE, YOU CAN'T CHANGE THE PAST
|Yesterday, justices seemed divided over the case of Lee Boyd Malvo — the D.C. sniper who at age 17 terrorized the nation’s capital in a shooting spree in 2002 in which 10 people were killed. The other gunman involved in the three-week shooting spree was executed a decade ago. But justices have since barred not only the death penalty for juvenile offenders, but also mandatory life-without-parole sentences for all but the most terrible of cases. Malvo received sentences of life without parole. The high court heard an appeal yesterday by the state of Virginia objecting to a lower court’s decision ordering that Malvo’s sentence be thrown out.
YOUTH MATTERS
|During yesterday’s arguments over the D.C. sniper case, it seemed the court’s liberal and conservative justices were on opposite sides of things. JUSTICE ELENA KAGAN said at one point, “It can be summarized in two words, which is that youth matters, and that you have to consider youth in making these sorts of sentencing determinations.” JUSTICE BRETT KAVANAUGH said one way to look at the Supreme Court’s precedents is that “you can’t impose life without parole on someone who’s merely immature as opposed to incorrigible.” And if that’s the rule, he asked, is it enough that a state has a discretionary sentencing scheme, or must the sentencer indicate in some way that question has been considered?
PUT ME IN COACH
|Ariane de Vogue with CNN says that JUSTICE SONIA SOTOMAYOR “was so eager to jump into a case Wednesday concerning the tension between the federal government and states when it comes to immigration enforcement that she broke the Supreme Court’s new rule that allows a lawyer to begin arguments for two minutes without interruption.” Beyond the initial hiccup, she reports on the case out of Kansas which concerns whether immigrants who stole Social Security numbers in an attempt to gain employment could be prosecuted under state identity theft law.
POLL DU JOUR
|A new poll from the University of Pennsylvania’s Annenberg Public Policy Center, found that 68 percent of U.S. adults have a great or fair amount of trust in the nation’s top court and 70 percent say that it has “about the right amount of power.” But Harper Neidig with The Hill notes the poll also found more than half of Americans (57 percent) say that the Supreme Court can get too “mixed up in politics.”
THE SNOWBALL ROLLING DOWN THE HILL
|“President Donald Trump says his impeachment battle with House Democrats ‘probably ends up being a big Supreme Court case.’ If so, it may not be alone.” Richard Wolf with USA Today notes that several other legal disputes Trump is facing will also likely be headed to SCOTUS, and it’s possible the justices “might prefer to take a pass.”
OTHER NEWS
Is This Child Incorrigible Or Immature?
Slate“If Malvo gets a new hearing, what would it look like? How does a judge prove she took age into account? Could a state, Chief Justice John Roberts asked, just tell a judge: ‘Here are the things you need to consider, and transient youth or incorrigibility is one of them?'”
Pending Bill Would Beef Up Security For Supreme Court Justices
The National Law Journal“The Senate Judiciary Committee on Thursday will consider a proposal aimed at improving security for U.S. Supreme Court justices, not only in the United States but abroad as well.”