Linda Greenhouse | Do We Have the Supreme Court We Deserve? – The New York Times

“When I left the daily Supreme Court beat back in 2008, the Week in Review, as The Times’s Sunday Review section was then called, invited me to offer some reflections on nearly 30 years of writing about the court, its cases and its members. The long essay ran under the headline “2,691 Decisions,” a number based on an editor’s calculation of how many decisions the court had issued during my time on the beat. I ended it with an observation about the “vital dialogue” between the court and the country. This was my conclusion:

“The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.”

A friend who recently came upon that article challenged me. “Do you still think we have the Supreme Court we deserve?” she asked.

Actually, sadly, my answer now is no.

It’s not that I think the country simply deserves a Supreme Court that happens to agree with me; I was finding plenty to disagree with back in 2008. Justice Samuel Alito had taken Justice Sandra Day O’Connor’s place in early 2006, wrenching the closely divided court to the right. In June 2007, Justice Stephen Breyer, during an impassioned oral dissent in a highly charged case on what measures public school systems can take to maintain racial diversity, lamented that “it is not often in the law that so few have so quickly changed so much.” “

Linda Greenhouse | What Sandra Day O’Connor Stood For on the Supreme Court – The New York Times

Ms. Greenhouse, a contributing Opinion writer, covered the Supreme Court for The Times from 1978 to 2008.

“This has been a month of sad remembrances — the 20th anniversary of Sept. 11, of course, and the anniversary last Saturday of the death of Justice Ruth Bader Ginsburg. An additional, less noted anniversary is an occasion not for sorrow but for wonder. Forty years ago this Saturday, on Sept. 25, 1981, Sandra Day O’Connor took her seat on the Supreme Court.

I use the word “wonder” because of how what once seemed remarkable is today a commonplace; of the 12 justices to join the court in the ensuing decades, four have been women, including three of the last five. Most people in the United States today were not yet born on that early fall afternoon when Sandra O’Connor took the oath of office and ended 191 years of an all-male Supreme Court.

The overflowing audience included President Ronald Reagan, whose nomination of a little-known judge on Arizona’s intermediate appellate court fulfilled a campaign promise — regarded by some as impetuous — to name the first woman to the court. For those of us who were old enough in 1981 to recognize the significance of the breakthrough, the sight of Justice O’Connor on a bench that included aging nominees of Presidents John F. Kennedy and Lyndon Johnson was electrifying.”

Lovely tribute. But many comments criticized it, as did, the most recommended one.

Daniel Fleisher
Baltimore7h ago

A respectful and moving tribute to Justice O’Connor. But there is a dark cloud over all of it. Ms. Greenhouse’s admiration is based largely on Justice O’Connor’s concern for the practical effects of her jurisprudence. But O’Connor ignored practical effects–as well as law–in deciding perhaps the most consequential case during her tenure: Bush v. Gore. In this infamous, unprincipled decision, O’Connor acted simply as a partisan– stopping the vote count in order to lift into power her preferred candidate. In her tribute, Ms. Greenhouse chose to omit this decision, despite the enormity of its corruption and consequence. Presumably, she omitted it because it was a poor fit with the tribute she was fashioning. But, for those of us who remember the Supreme Court’s soon-to-be disastrous intervention in the 2000 presidential election, Ms. Greenhouse’s omission is fatal.

9 Replies338 Recommended

Jesse Wegman | Will We Ever Amend the Constitution Again? – The New York Times

Mr. Wegman is a member of the editorial board.

This essay is part of a series exploring bold ideas to revitalize and renew the American experiment. Read more about this project in a note from Ezekiel Kweku, Opinion’s politics editor.

“The 26th Amendment to the Constitution took effect 50 years ago this summer, extending the right to vote to all Americans age 18 and older. It was the fourth amendment in the span of a decade, three of which expanded voting rights — a burst of democratic reform nearly unequaled in the nation’s history.”

Spencer Bokat-Lindell | Did the Supreme Court Just Kill the Voting Rights Act? – The New York Times

Mr. Bokat-Lindell is a staff editor.

This article is part of the Debatable newsletter. You can sign up here to receive it on Tuesdays and Thursdays.

“Bans on ballot collectionLimits on vote-by-mail drop boxesShorter hours at polling places. Across the country, Republican legislatures are passing laws to make it harder to vote. Which is why, for proponents of expansive voting rights, the Supreme Court decision last week upholding two such laws could scarcely have come at a worse time.

“What is tragic here is that the court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses,” Justice Elena Kagan wrote in her dissent, which was joined by the two other liberal justices. “What is tragic is that the court has damaged a statute designed to bring about ‘the end of discrimination in voting.’” “

Opinion | My Joe Biden Story – By Linda – Greenhouse – The New York Times

Contributing Opinion Writer

Credit…John Duricka/Associated Press

“As Ben Smith, the media columnist for The Times, suggested a few weeks ago, pretty much every journalist who passed through Washington, D.C., during the past half century knows President-elect Joe Biden and has a story to tell. I’d like to end this strange year, and welcome the new one and the new president, by telling mine.

I met then-Senator Biden in the mid-1980s, when he was a member of the Judiciary Committee and I was covering the occasional judicial confirmation. By 1987, he was chairman of the committee, after the Democrats retook the Senate in the 1986 midterms. That summer, President Ronald Reagan nominated Judge Robert Bork to the Supreme Court.

Given the president’s success the year before in naming Justice William Rehnquist as chief justice and a little-known judge, Antonin Scalia, to fill Rehnquist’s associate justice seat, this nomination presented a huge challenge to Judge Bork’s opponents, and a disheartening one. Leaders of the liberal groups that assembled to fight the nomination of the outspoken conservative, a judge with reactionary views on civil rights and free speech, had little confidence that the Judiciary Committee’s chairman was up to the job.

Opinion | Thank You, Justice Gorsuch – By Bret Stephens – The New York Times

By 

Opinion Columnist

Credit…Spencer Platt/Getty Images

“It may take a terrorist attack, a war or some other national emergency, but America will one day thank Justice Neil Gorsuch for his stirring words last week in Roman Catholic Diocese of Brooklyn v. Cuomo. “Government,” he wrote in a concurrence to the 5-4 majority opinion, “is not free to disregard the First Amendment in times of crisis.”

The case arises from restrictions Andrew Cuomo imposed by executive order in October that sharply limit attendance at houses of worship in zones designated by the New York governor as pandemic hot spots. In so-called orange zones, attendance is capped at 25 people; in red zones, at 10. That goes for churches and synagogues that can seat hundreds and that were already limiting attendance, barring singing, practicing social distancing and taking other precautions.

The Catholic diocese, along with Agudath Israel of America and affiliated entities, sued, arguing the restrictions amounted to religious discrimination. The crux of the matter was that businesses in orange and red zones, ranging from liquor stores to bike shops to acupuncturists, were subject to no such restrictions because the governor had deemed them “essential.”

“So, at least according to the governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike or spend the afternoon exploring your distal points and meridians,” Gorsuch wrote. “Who knew public health would so perfectly align with secular convenience?” “

Opinion | How to Fix the Supreme Court – by Emily Bazelon et al – The New York Times

How We Got Here

In the 1803 case Marbury v. Madison, the Supreme Court took for itself the power to determine the meaning of the Constitution. Ever since, the federal courts have used judicial review, selectively, as a counterweight to majority rule.

The court has hit historic high points by siding with minorities that lack political power, especially to expand civil rights. The signature example is the unanimous 1954 ruling that called for an end to legally mandated school desegregation in Brown v. Board of Education — a ruling embraced by every recent nominee to the court, across the ideological spectrum.

But the court has also gone historically off course in making major counter-majoritarian moves — and been smacked down for it by the elected branches. In the aftermath of the Civil War, Congress passed a law requiring the Southern states, in order to re-enter the Union, to allow Black people, as well as white, to vote to ratify the 14th Amendment, which promised equal rights.

When this pillar of Reconstruction was challenged in the case Ex Parte McCardle, Congress worried that the Supreme Court would strike it down. So it stripped the court’s jurisdiction over Reconstruction and raised the number of justices to nine. (It was the third time Congress had changed the number of justices during the 1860s.)

By Calling Climate Change ‘Controversial,’ Barrett Created Controversy – By John Schwartz and Hiroko Tabuchi – The New York Times

David Lindsay: I’m afraid that the apple doesn’t usually fall far from the tree.

“During two grueling days of questioning over her Supreme Court confirmation, Judge Amy Coney Barrett did her best to avoid controversy. But her efforts to play it safe on the subject of climate change have created perhaps the most tangible backlash of her hearings.

In her responses, the nominee to take the place of Ruth Bader Ginsburg, an environmental stalwart, used language that alarmed some environmentalists and suggested rough going for initiatives to fight climate change, if as expected she wins confirmation and cements a 6-3 conservative majority on the court.

On Thursday, the last of four days of confirmation hearings, Republicans on the Senate Judiciary Committee set a committee vote on Judge Barrett’s nomination for Oct. 22 hoping to speed a final vote to as soon as Oct. 26 — one week and a day before Election Day.

As she did on judicial matters, such as her views on Roe v. Wade, Judge Barrett declined to state her thoughts on climate change in exchange after exchange this week, equating her evasions to the well-established precedent of refusing to comment on issues that could come before the court.

But with Senator Kamala Harris of California, the Democratic candidate for vice president, Judge Barrett, the daughter of an oil executive, went further. She described the settled science of climate change as still in dispute, compared to Ms. Harris’s other examples, including whether smoking causes cancer and the coronavirus is infectious.

“Do you believe that climate change is happening and threatening the air we breathe and the water that we drink?” Ms. Harris asked.

Judge Barrett responded, “You asked me uncontroversial questions, like Covid-19 being infectious or if smoking causes cancer” to solicit “an opinion from me on a very contentious matter of public debate,” climate change.

“I will not do that,” Judge Barrett concluded. “I will not express a view on a matter of public policy, especially one that is politically controversial.”

Republicans showed no sign of discomfort with that answer. But her performance raised alarm bells around the world. Greta Thunberg, the young Swedish climate activist, took to Twitter to quip, “To be fair, I don’t have any ‘views on climate change’ either. Just like I don’t have any ‘views’ on gravity, the fact that the earth is round, photosynthesis nor evolution.”

“. . . .  A Justice Barrett could have real effects on efforts to address climate change.

The prior jurisprudence is clear. In the 2007 case Massachusetts v. the Environmental Protection Agency, the Supreme Court declared that greenhouse gases are covered under the Clean Air Act and that the agency can act to counter climate change. In 2009, the E.P.A. issued what is known as the “endangerment finding,” which said that greenhouse gases endanger public health and welfare. That finding was challenged in the courts and survived: the Court of Appeals for the D.C. Circuit upheld the finding in 2012, and the Supreme Court declined to review the lower court’s decision, allowing it to stand.

If President Trump were to win a second term, Professor Revesz said, the government could withdraw the endangerment finding, and the inevitable court challenge could bring the fundamental question of climate change back before the Supreme Court.

There is also the question of how Judge Barrett would approach regulatory matters. Professor Carlson suggested that Judge Barrett would seek to interpret the E.P.A.’s powers narrowly. Other conservative members of the Supreme Court have indicated a willingness to revive a legal doctrine that holds that Congress should not give regulatory agencies much leeway in executing policies. With six votes, the conservative bloc could tie the hands of regulators.

“The future of the administrative state, in many respects, is on the line — and her refusal to answer basic questions about things like climate science makes me worry that we could see a whole dismantling of agencies that we have come to rely on for environmental protection,” she said.

Limits on administrative power would leave Congress with the task of being much more specific in drafting environmental legislation, Professor Gerrard said. “A very specific, well crafted law by Congress would be very hard for the courts to get around,” he said. Yet narrowly crafted laws don’t always adapt well to changing circumstances, as the years pass.

Leaving statutes vague, however, has been a way for Congress to finesse fights. A demand for specificity would make passage of environmental legislation even harder than it is now.

Judge Barrett’s family has strong ties to the fossil fuel industry.

Her father, Michael E. Coney, worked as a prominent attorney at Shell Oil in New Orleans and Houston for 29 years, from 1978 to 2007, focusing on deep sea exploration and drilling in the Outer Continental Shelf. As part of his work, he represented the oil and gas giant before the federal government, frequently dealing with the Department of Interior on royalties, regulations and compliance issues.

Mr. Coney was also an active member of the powerful oil and gas trade organization, the American Petroleum Institute, twice serving as chairman of its Subcommittee on Exploration and Production Law. On top of being the industry’s main lobby group, A.P.I. has played a critical role in casting doubt on climate science and opposing policies to address climate change.”

Opinion |  – By Paul Krugman – The New York Times

By 

Opinion Columnist

Credit…Shannon Stapleton/Reuters

“After 2016, nobody will or should take anything for granted, but at this point Joe Biden is strongly favored to beat Donald Trump, quite possibly by a landslide. However, Trump’s party may still be in a position to inflict enormous damage on America and the world over the next few years.

For one thing, while Democrats are also favored to take control of the Senate, the odds aren’t nearly as high as they are in the presidential race. Why? Because the Senate, which gives the average voter in Wyoming 70 times as much weight as the average voter in California, is a deeply unrepresentative body.

And it looks as if a president who is probably about to become a lame duck — and who lost the popular vote even in 2016 — together with a Senate that represents a minority of the American people are about to install a right-wing supermajority on the Supreme Court.

If you want a preview of how badly this can go, look at what’s happening in Wisconsin.

In 2018, Wisconsin voters elected a Democratic governor. A strong majority — 53 percent — also voted for Democratic legislators. But given the way the state’s districts are drawn, Democrats ended up with only 36 out of 99 seats in the State Assembly. And Wisconsin’s elected judiciary is also dominated by Republicans.”

“. . .  But I’d argue that the biggest threat this court will pose is to environmental policy.

Put it this way: Charles Koch is reportedly investing millions trying to get Barrett confirmed. That’s not because he’s passionately opposed to abortion rights, or, probably, even because he wants the A.C.A. overturned. What he’s looking for, surely, is a court that will block government regulation of business — and above all a court that will hamstring a Biden administration’s efforts to take action against climate change.

Sure enough, during her hearing, Barrett, asked about climate change, uttered the dreaded words, “I’m certainly not a scientist.” At this point everyone knows what that means. It’s not an expression of humility; it’s a signal that the speaker intends to ignore the science and to oppose any attempt to avert the biggest threat facing humanity.

It’s hard to overstate just how dangerous it will be if the power of the Supreme Court ends up being used to undermine environmental protection. Biden has made it clear that climate action will be at the core of his economic agenda. And this action would come not a moment too soon. We’re already starting to see the effects of global warming in the form of fires and floods, and if we waste the next few years it will probably be too late to avoid catastrophe.

In other words, if a G.O.P.-stacked Supreme Court blocks effective climate policy, it won’t just be an outrage, it will be a disaster, for America and the world. So that can’t be allowed to happen. Never mind all the talk about norms (which only seem to apply to Democrats, anyway.) What’s at stake here could be the future of civilization.”

Opinion | Republican Judges Are Quietly Upending Public Health Laws – By John Fabian Witt – The New York Times

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Mr. Witt is a law professor at Yale and the author of the forthcoming “American Contagions: Epidemics and the Law From Smallpox to Covid-19.”

Credit…Associated Press

“Alongside growing controversy over judicial nominations, court reform and Covid-19 policies, American law is in the midst of a little-noticed paradigm shift in courts’ treatment of public health measures.

The Republican Party’s campaign to take over the federal and state courts is quietly upending a long and deeply embedded tradition of upholding vital public health regulations. The result has been a radically novel and potentially catastrophic sequence of decisions blocking state responses to the coronavirus pandemic.

For centuries, American constitutional law granted state governments broad public health powers. “Salus populi suprema lex,” the old saying went: The health of the people is the supreme law. Such authority went back to the beginning of the Republic. In the famous 1824 case of Gibbons v. Ogden, Chief Justice John Marshall defended the “acknowledged power of a State to provide for the health of its citizens.” States, he explained, were empowered to enact “inspection laws, quarantine laws” and “health laws of every description.”

Lemuel Shaw of Massachusetts, who was arguably the most respected state judge of the 19th century, supported vast public health powers and described states’ authority to control epidemics as central to the sovereign power of government. The Alabama Supreme Court agreed, citing the old dictum of salus populi, and courts in states like Georgia and Louisiana followed. In New York, the state’s highest court upheld disruptive health regulations like a ban on burials in urban church cemeteries. After the Civil War, New York’s courts upheld the Legislature’s decision to vest local boards with “absolute control over persons and property, so far as the public health was concerned.”