Supreme Court

The United Kingdom in transition

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Oct 30 JDN 2459883

When I first decided to move to Edinburgh, I certainly did not expect it to be such a historic time. The pandemic was already in full swing, but I thought that would be all. But this year I was living in the UK when its leadership changed in two historic ways:

First, there was the death of Queen Elizabeth II, and the coronation of King Charles III.

Second, there was the resignation of Boris Johnson, the appointment of Elizabeth Truss, and then, so rapidly I feel like I have whiplash, the resignation of Elizabeth Truss.

In other words, I have seen the end of the longest-reigning monarch and the rise and fall of the shortest-reigning prime minister in the history of the United Kingdom. The three hundred-year history of the United Kingdom.

The prior probability of such a 300-year-historic event happening during my own 3-year term in the UK is approximately 1%. Yet, here we are. A new king, one of a handful of genuine First World monarchs to be coronated in the 21st century. The others are the Netherlands, Belgium, Spain, Monaco, Andorra, and Luxembourg; none of these have even a third the population of the UK, and if we include every Commonwealth Realm (believe it or not, “realm” is in fact still the official term), Charles III is now king of a supranational union with a population of over 150 million people—half the size of the United States. (Yes, he’s your king too, Canada!) Note that Charles III is not king of the entire Commonwealth of Nations, which includes now-independent nations such as India, Pakistan, and South Africa; that successor to the British Empire contains 54 nations and has a population of over 2 billion.

I still can’t quite wrap my mind around this idea of having a king. It feels even more ancient and anachronistic than the 400-year-old university I work at. Of course I knew that we had a queen before, and that she was old and would presumably die at some point and probably be replaced; but that wasn’t really salient information to me until she actually did die and then there was a ten-mile-long queue to see her body and now next spring they will be swearing in this new guy as the monarch of the fourteen realms. It now feels like I’m living in one of those gritty satirical fractured fairy tales. Maybe it’s an urban fantasy setting; it feels a lot like Shrek, to be honest.

Yet other than feeling surreal, none of this has affected my life all that much. I haven’t even really felt the effects of inflation: Groceries and restaurant meals seem a bit more expensive than they were when we arrived, but it’s well within what our budget can absorb; we don’t have a car here, so we don’t care about petrol prices; and we haven’t even been paying more than usual in natural gas because of the subsidy programs. Actually it’s probably been good for our household finances that the pound is so weak and the dollar is so strong. I have been much more directly affected by the university union strikes: being temporary contract junior faculty (read: expendable), I am ineligible to strike and hence had to cross a picket line at one point.

Perhaps this is what history has always felt like for most people: The kings and queens come and go, but life doesn’t really change. But I honestly felt more directly affected by Trump living in the US than I did by Truss living in the UK.

This may be in part because Elizabeth Truss was a very unusual politician; she combined crazy far-right economic policy with generally fairly progressive liberal social policy. A right-wing libertarian, one might say. (As Krugman notes, such people are astonishingly rare in the electorate.) Her socially-liberal stance meant that she wasn’t trying to implement horrific hateful policies against racial minorities or LGBT people the way that Trump was, and for once her horrible economic policies were recognized immediately as such and quickly rescinded. Unlike Trump, Truss did not get the chance to appoint any supreme court justices who could go on to repeal abortion rights.

Then again, Truss couldn’t have appointed any judges if she’d wanted to. The UK Supreme Court is really complicated, and I honestly don’t understand how it works; but from what I do understand, the Prime Minister appoints the Lord Chancellor, the Lord Chancellor forms a commission to appoint the President of the Supreme Court, and the President of the Supreme Court forms a commission to appoint new Supreme Court judges. But I think the monarch is considered the ultimate authority and can veto any appointment along the way. (Or something. Sometimes I get the impression that no one truly understands the UK system, and they just sort of go with doing things as they’ve always been done.) This convoluted arrangement seems to grant the court considerably more political independence than its American counterpart; also, unlike the US Supreme Court, the UK Supreme Court is not allowed to explicitly overturn primary legislation. (Fun fact: The Lord Chancellor is also the Keeper of the Great Seal of the Realm, because Great Britain hasn’t quite figured out that the 13th century ended yet.)

It’s sad and ironic that it was precisely by not being bigoted and racist that Truss ensured she would not have sufficient public support for her absurd economic policies. There’s a large segment of the population of both the US and UK—aptly, if ill-advisedly, referred to by Clinton as “deplorables”—who will accept any terrible policy as long as it hurts the right people. But Truss failed to appeal to that crucial demographic, and so could find no one to support her. Hence, her approval rating fell to a dismal 10%, and she was outlasted by a head of lettuce.

At the time of writing, the new prime minister has not yet been announced, but the smart money is on Rishi Sunak. (I mean that quite literally; he’s leading in prediction markets.) He’s also socially liberal but fiscally conservative, but unlike Truss he seems to have at least some vague understanding of how economics works. Sunak is also popular in a way Truss never was (though that popularity has been declining recently). So I think we can expect to get new policies which are in the same general direction as what Truss wanted—lower taxes on the rich, more privatization, less spent on social services—but at least Sunak is likely to do so in a way that makes the math(s?) actually add up.

All of this is unfortunate, but largely par for the course for the last few decades. It compares quite favorably to the situation in the US, where somehow a large chunk of Americans either don’t believe that an insurrection attempt occurred, are fine with it, or blame the other side, and as the guardrails of democracy continue breaking, somehow gasoline prices appear to be one of the most important issues in the midterm election.

You know what? Living through history sucks. I don’t want to live in “interesting times” anymore.

How to pack the court

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Jul 10 JDN 2459790

By now you have no doubt heard the news that Roe v. Wade was overturned. The New York Times has an annotated version of the full opinion.

My own views on abortion are like those of about 2/3 of Americans: More nuanced than can be neatly expressed by ‘pro-choice’ or ‘pro-life’, much more comfortable with first-trimester abortion (which is what 90% of abortions are, by the way) than later, and opposed to overturning Roe v. Wade in its entirety. I also find great appeal in Clinton’s motto on the issue: “safe, legal, and rare”.Several years ago I moderated an online discussion group that reached what we called the Twelve Week Compromise: Abortion would be legal for any reason up to 12 weeks of pregnancy, after which it would only be legal for extenuating circumstances including rape, incest, fetal nonviability, and severe health risk to the mother. This would render the vast majority of abortions legal without simply saying that it should be permitted without question. Roe v. Wade was actually slightly more permissive than this, but it was itself a very sound compromise.

But even if you didn’t like Roe v. Wade, you should be outraged at the manner in which it was overturned. If the Supreme Court can simply change its mind on rights that have been established for nearly 50 years, then none of our rights are safe. And in chilling comments, Clarence Thomas has declared that this is his precise intention: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” That is to say, Thomas wants to remove our rights to use contraception and have same-sex relationships. (If Lawrence were overturned, sodomy could be criminalized in several states!)

The good news here is that even the other conservative justices seem much less inclined to overturn these other precedents. Kavanaugh’s concurrent opinion explicitly states he has no intention of overturning “Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015)”. It seems quite notable that Thomas did not mention Loving v. Virginia, seeing as it was made around the same time as Roe v. Wade, based on very similar principles—and it affects him personally. And even if these precedents are unlikely to be overturned immediately, this ruling shows that the security of all of our rights can depend on the particular inclinations of individual justices.

The Supreme Court is honestly a terrible institution. Courts should not be more powerful than legislatures, lifetime appointments reek of monarchism, and the claim of being ‘apolitical’ that was dubious from the start is now obviously ludicrous. But precisely because it is so powerful, reforming it will be extremely difficult.

The first step is to pack the court. The question is no longer whether we should pack the court, but how, and why we didn’t do it sooner.

What does it mean to pack the court? Increase the number of justices, appointing new ones who are better than the current ones. (Since almost any randomly-selected American would be better than Clarence Thomas, Samuel Alito, or Brent Kavanaugh, this wouldn’t be hard.) This is 100% Constitutional, as the Constitution does not in any way restrict the number of justices. It can simply be done by an act of Congress.

But of course we can’t stop there. President Biden could appoint four more justices, and then whoever comes after him could appoint another three, and before we know it the Supreme Court has twenty-seven justices and each new President is expected to add a few more.

No, we need to fix the number of justices so that it can’t be increased any further. Ideally this would be done by Constitutional Amendment, though the odds of getting such a thing passed seem rather slim. But there is in fact a sensible way to add new justices now and then justify not adding any more later, and that is to tie justices to federal circuits.

There are currently 13 US federal circuit courts. If we added 4 more Supreme Court justices, there would be 13 Supreme Court justices. Each could even be assigned to be the nominal head of that federal circuit, and responsible for being the first to read appeals coming from that circuit.

Which justice goes where? Well, what if we let the circuits themselves choose? The selection could be made by a popular vote among the people who live there. Make the federal circuit a federal popular vote. The justice responsible for the federal circuit can also be the Chief Justice.

That would also require a Constitutional Amendment, but it would, at a stroke, fundamentally reform what the Supreme Court is and how its justices are chosen. For now, we could simply add three new justices, making the current number 13. Then they could decide amongst themselves who will get what circuit until we implement the full system to let circuits choose their justices.

I’m well aware that electing judges is problematic—but at this point I don’t think we have a choice. (I would also prefer to re-arrange the circuits: it’s weird that DC gets its own circuit instead of being part of circuit 4, and circuit 9 has way more people than circuit 1.) We can’t simply trust each new President to appoint a new justice whenever one happens to retire or die and then leave that justice in place for decades to come. Not in a world where someone like Donald Trump can be elected President.

A lot of centrist people are uncomfortable with such a move, seeing it as ‘playing dirty’. But it’s not. It’s playing hardball—taking seriously the threat that the current Republican Party poses to the future of American government and society, and taking substantive steps to fight that threat. (After its authoritarian shift that started in the mid 2000s but really took off under Trump, the Republican Party now has more in common with far-right extremist parties like Fidesz in Hungary than with mainstream center-right parties like the Tories.) But there is absolutely nothing un-Constitutional about this plan. It’s doing everything possible within the law.

We should have done this before they started overturning landmark precedents. But it’s not too late to do it before they overturn any more.

How do we fix the Supreme Court?

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Oct 4 JDN 2459127

By now I’m sure you have already heard the news of Ruth Bader Ginsburg’s death. My social media feeds have been full of people either lionizing her for her accomplishments on behalf of women’s rights or demonizing her for her record on Indigenous rights.

If you are a woman, a person of color, or LGBT, her death likely struck fear into your heart. If right-wing justices gain a majority, your—our—civil rights are once again up for grabs. Obergefell v. Hodges, Grutter v. Bollinger, even Lawrence v. Texas and Roe v. Wade may not be safe. Even if you’re a straight White male, you should be probably be concerned about the possibility of overturning Massachusetts v. EPA or Riley v. California. And while Trump’s shortlist of potential appointees includes quite a few women, nearly everyone on it is dangerously right-wing.

This is not how the system should work. The death of a single person should not result in the loss of rights for hundreds of millions of other people. Democracy and rule of law are supposed to protect us from this kind of capricious government.

What can we do to fix this system? We obviously do need some kind of judicial branch, but it may not need to be a Supreme Court as we know it.

First, we should fight tooth and nail to block whoever Trump nominates, just as Republicans blocked Merrick Garland. Once again I find myself agreeing with Jacobin.

The next step is clearly to pack the court: Congress can pass a law increasing the number of Supreme Court seats, and then the President can appoint new justices to those seats. Add 8 seats to the existing 9 and you regain a strong liberal majority.

After that, pass a Constitutional amendment to prevent future court-packing. Otherwise we just get a cycle of retaliation in which the Supreme Court doubles in size with every new administration. This amendment should also include term limits for justices, so that new justices are appointed on a regular schedule instead of whenever one happens to retire or die.

Let me emphasize that this plan is 100% legal and Constitutional. It feels unfair and underhanded, and it is certainly playing hardball; but there is nothing illegal about it. This is exactly how we need to respond to fascism: Follow all the rules of democracy to the letter, but otherwise it’s scorched earth. No doubt Republicans would complain that we are violating standards and norms—but they’ve done far worse.

In order to achieve this, we need to win elections across the board. The Presidency is not nearly enough; we need to take control of both houses of Congress (to pack the court) and most of the state legislatures as well (to pass a Constitutional amendment).

But this may not be enough. We should ask whether the Supreme Court as an institution is worth keeping around, or if we could replace it with something better.

We clearly do need some sort of judiciary, and probably some kind of top-level court to act as the court of last resort. In that sense, I guess we need a Supreme Court.

But there’s no particular reason justices need to be appointed by the President. The UK recently established a Supreme Court whose justices are appointed by an independent commission. The Court of Cassation in France is huge, with over 85 trial judges and 40 deputy judges; judges each have a relatively narrowly-defined jurisdiction of the types of cases they handle. The High Court of Australia is modeled on the US Supreme Court and is appointed by the Prime Minister; and yet it has a mandatory retirement age of 70.

I’m not aware of any country that directly elects its supreme court justices, but that would be feasible as well. Whether it would be wise is a different matter: There’s evidence that direct election of judges is a major contributing factor to our mass incarceration, because judges want to look “tough on crime” in their election campaigns. And most people simply aren’t well-informed enough to elect judges. But it’s worth considering whether direct election—requiring re-election every few years—would be better than a system where a single appointment puts someone in power for generations.

In any case, it is clear that the Supreme Court is broken. Our rights should not be this fragile.