Biden’s Supreme Court Commission Part II

It’s weeping and gnashing of teeth for David in today’s podcast as the Supreme Court ...

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It’s weeping and gnashing of teeth for David in today’s podcast as the Supreme Court deals a devastating blow to his dreams of abolishing qualified immunity. But Sarah saves the AO crew from despair by conducting another Supreme Court symphony regarding the Biden commission. Come for the despair, stay for the analysis, and relish a deep dive into Supreme Court reform.

Show Notes:

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  1. Ted

    I finally got around to listening to this episode and when you go to the part on term limits all I could think is if there was a Democratic president Mitch McConnell would approve zero Supreme Court justices. He would just hold those nominations until he felt I Republican was gonna be president. He absolutely would not care about there being eight or seven justices.

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  2. Gabriel Salas

    wait, so a guilty adjudication cannot be reached unless there is precedent, but no precedent can be obtained without a guilt verdict? Circle of doom!

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    Matt Price

    David...... Sarah.......... Is there an Advisory Opinions this week? Need mah SCOTUS fix.

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      Sarah Isgur vertical-nib Author

      ITS COMING!!!!

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        Young Riprock

        Can we complain to Jonah that David is prioritizing rewatching Dune over Advisory Opinionating?

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        Jordan

        Excellent. Advisory Opinions is an important pillar of my week.

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  4. Rodney Rubert

    Amendments. As a man, I shed tears when Scalia died but I had my disagreements. In any discussion of lowering the bar for Constitutional amendments should be an explanation of why the the 18th and 21st, separated by an mere 14 years does not argue the bar should be raised.

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    George.Skinner

    Canada has a mandatory retirement age of 75 for Supreme Court justices, and it's led to a lot of retired justices returning to legal practice. It's become common for politicians, governments, and powerful companies to use them as "super lawyers" lobbying for particular outcomes. A typical example involves a government justifying some controversial initiative by saying "well, in the opinion of 3 retired justices, this passes constitutional muster." I can only imagine this getting worse if the former justices were younger and had longer careers ahead of them.

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  6. DRHanson

    When speaking of the possible negative consequences of term limits, Sarah made an excellent point about the possibility that a young ambitious justice might use his or her votes on the Court to build the foundation for a post-Court political career. That type of problem wouldn't be limited to justices with political ambitions. I spent a long time as a state legislator and saw how a few members behaved when they knew they were lame ducks and needed to line up a job for when they left office. Some justices will be young enough that they will still be in their prime earning years at the end of their 15- or 18-year terms. Do we want them to be thinking about how their decisions will affect their standing with a potential future employer?

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  7. DRHanson

    When I was listening to Sarah discuss the proposal to require a supermajority to rule something unconstitutional unless it was "obviously unconstitutional," all I could think of was Demi Moore in "A Few Good Men" being overruled on an objection and then declaring "The defense strenuously objects!"

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    Jason Gibson

    there does not need to be any supreme court reform. The supreme court has been repaired by the conservative movement and the leadership of the chief justice. We should be talking about how we fix congress.

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  9. Keeper of the Peregrinus

    On pages 13-14, the Draft lays out the “pros” of packing (‘balance,’ diversity, more cases) and the “cons” (hardball was justified retaliation, fair game). **Although the report comes out against court packing** I think that there was a pretty glaring omission with respect to the perception among the FedSoc types: we see the Conservative Legal Movement as substantively less dangerous in the judiciary than progressive jurists.

    The whole point of the movement is constraining judicial power—bound by the text, original public meaning, canons of construction, vertical/horizontal federalism, and deferring to the politically accountable branches for hot-button issues. A good originalist surely CAN go full on conservative version of Roe or Miranda (the government MUST provide everyone an AR-15!) but he or she would have zero intellectual credibility given their jurisprudential commitments. A progressive jurist is explicitly *not* really constrained—just waive the ”in the interest of justice” wand and see what you can get away with. In arguento, even if conservatives did pack the court (they didn’t), **what it is packed with** would be a critical question which is never addressed in this draft.

    Anyways, iterating the game theory of the Democrats packing the court is an American Calligula nominating his horse (fun fact, “Incitatus”).

    P.S. Hook ‘em Sarah!

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      Sarah Isgur vertical-nib Author

      Love the name;)

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    2. Keeper of the Peregrinus

      P.S. P.S. who was the Chairman of the Senate Judiciary that created a Report in the Bork hearing again? And don't get me started on Miguel Estrada..

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    Dave T

    Would love to hear more about proposed constitutional amendments

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