Tuesday, December 26, 2017

My SCOTUS 12 Days of Christmas Wish List

By Eric Segall

This term the Supreme Court is tackling an array of important constitutional questions, including how states organize their voting districts, the relationship between sexual orientation discrimination and freedom of speech and religion, and whether states may charge state employees mandatory fees for the work public sector unions do on their behalf. I certainly have a rooting interest in all three cases: please do something about partisan redistricting; don't cave to the discrimination is really free speech/freedom of religion trope; and, of course,s tates can charge fees to public sector union workers without first amendment restraint. However, my wish list is less substantive, but still important. So here goes:

1) The American people want to see the Supreme Court's oral arguments and decision announcements. State courts, courts in other countries, fake TV courts, all show their public hearings. Enough is enough. Put cameras in the Court, and in lower federal courts too.

2) If you really can't stomach Number 1, live audio is next best. That is like 1950's radio.

3) The Court should get out of the business of putting false deadlines on itself and announcing most important decisions at the end of June. Do the Justices really need a summer vacation like fourth graders? Thousands of other judges don't do this, so why should SCOTUS? The quality of decisions may go way up without false deadlines.

4) When a Justice recuses, please provide an explanation. This is basic rule of law stuff.

5) When a Justice is formally asked to recuse and declines, please provide an explanation. This is basic rule of law stuff.

6) Where possible, inform the parties and the media 24 hours in advance of when the case is going to be announced. This is just basic fairness and good faith stuff.

7) To Justice Gorsuch, when you vote in favor of the Colorado baker and against public sector unions, two aggressive anti-states' right decisions, please explain how the original meaning of the First Amendment justifies both opinions. You are limited to the time period 1776-1800ish and 1868-1875ish. I double-dare you.

8) To Justice Ginsburg, please keep working out and eating well.

9) To Justice Thomas, say something, anything, please.

10) For the love of God, hire more female and people of color law clerks from more diverse schools than Harvard and Yale.

11) Please don't have any line-ups more complicated than 5-4, 6-3, 7-2, 8-1, 9-0. We are lawyers, not accountants.

12). To Justice Kennedy, please, please, please don't retire. Also, remember that you are the champion of gay rights.

Happy Holidays to one and all!!!


Shag from Brookline said...

Eric, you have given a challenge to songwriters. Here's a start: "On the first day of Christmas, Eric Segal said, ...." Jumping ahead: "On the 12th day of Christmas, Eric Segall said, 'Please, please stay Justice Kennedy.'" Alas, there are no Irving Berlins around to write Christmas songs.

Let me thank all the posters and commenters for their contributions to this Blog, wishing all Season's Greetings. I visit at least once daily, looking forward to what comes next. In the age of the Internet old lawyers never die, they just visit legal blogs, keeping an eye on the game.

Joe said...

Don't really care much about the summer recess especially with their reduced docket. Besides, D.C. is a malaria filled swamp in the summer.

Shag from Brookline said...

Reduced dockets have led to lengthier decisions, multiple opinions, dissents. I remember in the good old days here in MA before the establishment of its Appeals Court in the course of my practice how concise were decisions of the Supreme Judicial Court. And SCOTUS used to have landmark decisions that were fairly short (I'm thinking of Justice Holmes). Now we are swamped with dicta that make decisions swampier and permitting legal academics to conjure legal theories in lengthy law review articles and books on the meaning of the Constitution, originally and otherwise, often reading between lines of dicta.

As I used to say during my salad days of law practice, "What's a vacation?" as reducing clients' demands could result in losing clients, in which case there would be a lack of vacation funding. But Justices serve for life on "good behavior" in a behavior funded by taxpayers. Attorneys in private practice in my day did not have that luxury. Do they today?

Eric Segall said...

Thanks for the kind words Shag!!

Shag from Brookline said...

Eric's wish 7) touches on originalism but it is not the prime subject of this post. I recently read:

D A V I D S I N G H G R E WA L & J E D E D I AH P U R D Y's
"The Original Theory of Originalism" which is a review of:
"The Sleeping Sovereign: The Invention of Modern Democracy"
C AMB R I D G E U N I V E R S I T Y P R E S S , 2 0 1 6

The review (42 pages in length) is available on SSRN at: https://ssrn.com/abstract=3084763

I haven't read Tuck's book and don't plan to because of eyesight limitation. But this review is very interesting as it focuses on the Constitution's "We the People" and their sovereignty, the dead hand, the consent of future generations to the Constitution, the difficulties of amending the Constitution per Article V, democracy, etc, by examining the late 20th century originalism, living constitutionalism and Bruce Ackerman on the New Deal, finding that each has failings. Perhaps Eric has read the review and hopefully might post on it. For me, the review's focus differs from the usual battles over interpretation/construction of the Constitution between these different approaches. I'm sure I'm missing much by not having read Tuck's book.

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