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Orin Kerr

@OrinKerr

8 Oct

Here's a thread with a few random thoughts about "court packing," that is, changing the size of the Supreme Court.

Bonus: My views are somewhere in the middle and are likely to annoy most people.

1) Court packing is a really bad idea. It's a major norm violation, & it destabilizes the third branch in a really dangerous way. The counterargument, of course, is that the other side has *already* violated norms; this is a counter to that norm violation. I disagree, because....

it seems to me that the real cause of the claimed "norm breaking" is the gradual devolution, in both parties, to purely partisan Supreme Court votes in the Senate. This wasn't a big problem when Presidential and Senate control were form the same party. Partisan = confirmed.

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Orin Kerr

@OrinKerr

8 Oct

Some legal education history I didn't know -- a thread.

In 1950, a significant number of law schools refused to admit Black students. That year, the AALS considered a rule that to to be an AALS member school, you had to open your doors to students of all races.

This was during the period of "separate but equal," before Brown v. Board. Private law schools could be segregated. And public law schools could be segregated but only if they provided an "equal" alternative. See, e.g., Sweatt v. Painter, 339 U.S. 629 (1950).

@YaleLawSch

In December 1950, a group of faculty from @YaleLawSch proposed a non-discrimination rule: A school can't be allowed as an AALS member if it discriminates on the basis of race. Desegregate, or the school is booted out of @TheAALS.

www-jstor-org.libproxy.berkeley.edu/stable/2571990…

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Orin Kerr

@OrinKerr

1 Oct

Some interesting Supreme Court history I stumbled upon wasting time on Wikipedia:

On April 21, 1844, Justice Henry Baldwin died while in office. President Tyler had a little over ten months left in his Presidential term. Tyler tried to fill the seat, but was unsuccessful.

On June 5, 1844, President Tyler nominated Edward King to fill the seat. But Tyler had little support in Congress, and the Senate voted to table the King's nomination and not consider it on the merits. govtrack.us/congress/votes…

President Tyler withdrew the nomination, and then nominated John Read for the seat. The Senate ignored that nomination. President Tyler's Presidency ended with the seat still vacant in March 1845.

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Orin Kerr

@OrinKerr

30 Sep

A lot of law professors write about Supreme Court developments. I wonder what legal scholarship about the Supreme Court looks like in a world of a 6-3 conservative Supreme Court, with 5 Justices unambiguous conservatives. Does it try to meet the Court where it is? Reject it? /1

Of course, many different scholars write about SCOTUS in diff ways, on different topics. I realize I'm painting with a broad brush. But I suppose my main interest is in the internalists -- the ones who write about doctrine, implicitly or expicitly recommending different paths. /2

How many will try to speak the Court's language, such as by echoing or recognizing originalist methods? How many will just be in opposition, especially in light of the circumstances of how the Court came to have its conservative supermajority ? /3

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Orin Kerr

@OrinKerr

29 Sep

INTERESTING CASE: Police can detain a person on the scene when they execute a warrant. But can they call up a suspect and make up a fake story about needing him to be home to get him to be there so he can be detained? CA9 rules 2-1 that they cannot.
cdn.ca9.uscourts.gov/datastore/opin… #N

I'm not sure what I think of this. It's true that a ruse can expand what the government can search and seize, manipulating the rule. OTOH, don't Ky v. King and Navarette v. CA suggest that police steps that manipulate rules are okay as long as they don't themselves violate 4A?

The majority opinion is weirdly free form in some ways, in that it conducts a balancing test over the ruse: It concludes that the decision to do the ruse fails the balancing test. But the 4th Amendment balancing test is only for searches and seizures, and a ruse is neither.

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Orin Kerr

@OrinKerr

27 Sep

It might simultaneously be true that Republicans should wait to fill RBG’s seat because the election is near; that it is an act of stunning hypocrisy to fill it after refusing to act on Garland; and that, if the politics were reversed, Democrats would have done the same thing.

I should add, in response to comments, that by "Democrats would have done the same thing," I was referring to pushing forward now with a nominee with so little time before the election. /1

I don't have a strong sense of what Dems would have done with the 2016 equivalent of Garland -- would they have just voted him down, vs. not held a vote, for example. (But I also don't see a lot of difference between those two options.) /2

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