Reform of SCOTUS:
1. Always an even number of justices and no fewer than 8
2. 16-yr term limits
3. Congress allowed to establish other term limits for lower court judges
4. No nationwide injunctions by a single judge … @DemJournal
5. No Act of Congress may be invalidated unless 3/4 of justices agree
6. If threshold met, Congress given 18 months in which to remedy through further legislation unless “manifestly” unconstitutional—in which immediate injunction may issue.
During deliberations, I pushed for 12-15 year term limits for federal judges though I lost. I think anything longer than 8 years—beyond a typical president’s tenure—is enough to insulate from politics. Much longer and the temptation to entrench party policies grows.
A combination of approaches is necessary to prevent jurisprudence from being too far out of alignment with a community’s preference as well as reducing the likelihood of destroying hard-won Congressional compromises via winning a single election and appointing some judges.
Federal judges would remain comparatively free to declare state and local laws unconstitutional and enjoin them.
Do these measures strike the right balance? I’m not sure. But some of us (myself included) didn’t want to mandate particular interpretive methodologies and were skeptical of rules that would be applied by judges themselves.
Some of us wanted to go further to reimagine the Judiciary. As I suggest in my essay, we should experiment with more popular checks on outrageous SCOTUS decisions. The goal should be to afford citizens “multiple methods of exercising power.”
History shows that dependence on judges as primary guardians of equality and liberty have failed. Instead, court-centered theories of rights have simply played into the hands of those interested in partisan entrenchment or oligarchy. We need to try new things.
* has *
A lot of smart people have been hard at work on judicial reform proposals. Consider their ideas and read their scholarship—much of which was discussed. @samuelmoyn @rddoerfler @danepps @FixTheCourt @CJSprigman @espinsegall
One more feature of the proposals: federal judges have to be confirmed by a supermajority of the House. This is part of a more complicated reform to reduce the ability of the Senate to blockade the people’s business. It may leave some seats unfilled as a matter of politics.
Another super-majority rule for the appointment of the AG. I’m not wild about supermajority requirements for appointment of either judges or the AG. I do like the procedural addition that inaction by the House within 90 days of appointment means automatic confirmation.
Anyway, Sandy Levinson says here that we wouldn’t get justices like ACB but if the same party holds the presidency and the House, they can get their nominee through despite the 2/3 rule just by sitting for 90 days on it.
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More from @robertltsai

10 Jun
For those interested in criminal justice reform, here’s a thread on some of our constitutional tweaks in the @DemJournal draft Constitution. The first set of changes is to try to reduce coerced confessions by excluding them unless their substance can be confirmed in open court. ImageImage
This will surely be harder to do and so will probably reduce reliance on confessions alone. We also incorporate and expand Brady to help with the asymmetrical access to evidence and resources in the criminal justice system. /2
We explicitly expand the right to counsel not only to incorporate any hearing to confirm the substance of so-called confessions but also for pleas, appeal, and post-conviction review. /3 Image
Read 11 tweets
11 Nov 20
On this Veteran’s Day, many are worried about a coup by the president. Let’s be watchful but trust the patriotic and law-abiding citizens among us to do their jobs as professionals. There are certainly alarming things about Trump’s post-election rhetoric and that of his allies.
/2 Repeatedly claiming the election was rigged is disgraceful and anti-democratic. It sows suspicion and division. It raises outsized hopes that the will of the people will somehow be overthrown. Such language undermines our institutions.
/3 But a coup can’t happen without a lot of orchestration and acquiescence. There has been more norm-breaking but not yet any lawbreaking. Trust election officials—Democrats, Republicans, and volunteers—to finish counting the votes and certify the election results in every state.
Read 8 tweets
9 Nov 20
So this is Trump’s final Hail Mary: an assault on mail-in voting by invoking Bush v. Gore. But this would bring down the entire election in PA. I also see no limiting principle to prevent such a precedent from also invalidating mail-in voting systems in other states.
Another problem with this radical reading of Bush v. Gore is that it uses the idea of equality to dismantle a system of voting created in advance by the state, rather than to stop a state official from changing recount standards after people have voted.
In any event, the theory of unequal or unfair treatment falls apart when you think about it. They argue that mail-in ballots are “devaluing in-person votes,” but it does no such thing. Each person had an equal opportunity formally to decide how to cast one vote.
Read 12 tweets
10 Jun 20
4th Cir denies QI where 5 officers shot a man 22 times as he lay motionless: “Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives.”
/2 The man was apparently homeless and walking, but had committed no offense. The cops initiated the encounter, demanding that he provide ID and asking if he had a weapon. He did have a knife on him and so he asked a clarifying question. Things went sideways from there.
/3 Before the 5 cops shot him 22 times, the facts suggest “Jones had been tased four times, hit in the brachial plexus, kicked, and placed in a choke hold, at which point gurgling can be heard in the video. A jury could reasonably infer that Jones was struggling to breathe.”
Read 21 tweets
29 May 20
SCOTUS has been no friend to victims of police choke holds in their search for accountability. In 1976, Adolph Lyons, a 24-yr-old black man, was stopped by the LAPD during a traffic stop. Officers put him in a chokehold until he blacked out. He woke up spitting blood and gasping.
/2 In 1983, SCOTUS ruled 5-4 decision against Lyons, insulating the LAPD from an injunction, finding it unbelievable that African Americans faced a higher risk of such dangerous encounters with the police. Justice White was joined by Burger, Powell, Rehnquist, & O'Connor.
/3 The majority found it "surely no more than speculation to assert ... that Lyons himself will again be involved in one of those unfortunate instances."
Read 11 tweets
10 May 20
Raise your hand if you knew that in May 1937 the New York Times did a gauzy profile of Hitler, painting him as a “Bohemian” with an “artistic temperament”? 🙋🏼‍♂️
/2 Here he is lauded as “a great improvisator” who loves to talk with “many kinds of people”
/3 “Where Hitler Dreams” and eats his honey and cheese. He’s practically an “unaffected private gentleman.”
Read 10 tweets

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