Making the Case
I agree with Elie Mystal on the capture of the Supreme Court by conservatives, a “full-scale heist…in broad daylight,” but I have a different perspective on the path to reform [“Re-Forming the Court,” March 16/23]. As a lawyer, I’m hesitant to ask for a big remedy until I’ve made my case, and we haven’t yet effectively made our case about the court’s capture to the American people.
Step one, educate people about the 80 (yes, 80) 5-4 partisan decisions that the Roberts Five have rendered that gave victories to big Republican donor interests. They may know the big four cases—Citizens United, Shelby County, Friedrichs/Janus, and Heller—but they don’t know the pattern. Five to four decisions should happen rarely, partisan 5-4 decisions more rarely still; 80 of them is a lot, and a score of 80-0 is hardly calling balls and strikes.
Step two, following Mystal’s observation about the need for ethics reform, start with a slate of reforms everyone can readily understand and accept. The court should have a code of ethics. Justices should disclose hospitality and travel as transparently as executive and legislative officials do. Advocacy groups litigating in the court or providing amicus briefs should disclose who’s funding them. Groups involved in selecting judges or spending money to campaign for their confirmation should disclose their donors. These obvious transparency reforms will clean up the mess and also demonstrate the extent of the problem and the need, perhaps, for more structural reform.
Right now, dark-money groups help select justices, campaign for their confirmation, present cases to them, flood the court as amici, and may well fund significant travel and hospitality—all without disclosing their own big donors. That is a recipe for scandal and disgrace, and no court should be so mired in secret influence.
Senator Sheldon Whitehouse
Though I am totally blind and have not been sleeping well, thanks to the news about the coronavirus, I listened to The Nation’s March 16/23 issue. I downloaded it from the National Library Service’s website for blind people. I liked Mystal’s article exploring ways to fix the Supreme Court. Yes, the idea of 19 justices, who sit in panels rarely needing to resort to the en banc process and who are held to some kind of ethics, is lovely. An 18-year term limit might be good, too. If term limits are good enough for the president, they should be good enough for anyone else.
Thank you for Mystal’s article addressing a critical issue that has often been overlooked. I appreciate the ideas expressed by thoughtful folks who are trying to address this problem. Each of the proposed solutions has drawbacks, but perhaps this will at least stimulate new ideas. It has certainly got me thinking.
Because of an editing error, Sasha Abramsky’s article “California Fights Trump for Clean Air” [March 30] incorrectly stated the date of a judge’s decision ruling that litigation was premature against proposed EPA vehicle emission standards. The judge ruled in October 2019, not September 2019. The article also incorrectly stated the date that the Trump administration announced it was revoking a California waiver allowing the state to set stricter standards for vehicle emissions. It was in September 2019, not October 2019.