October 25, 2020

Harvard lawprof Noah Feldman answers no to the question "Does the Supreme Court really need reform?"

"It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the last 30 years give us [sic] gay rights, gay marriage, and now statutory protection for the rights of trans people. The same court has chipped away at affirmative action, but has not (yet) eliminated it. Ditto for abortion rights. Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose. In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives. That could change, to be sure. But Democrats need to think hard about the dangers of changing a Supreme Court that has, in many instances, advanced the causes of equality and justice even when most of its members were self-described conservatives appointed by Republicans."


It's also worth remembering that gay rights and gay marriage — along with trans rights — could have been given through statutory law and that the Supreme Court rules on a far wider array of issues than the conspicuous gay rights and abortion issues that Feldman forefronts in this effort to ward off Court reform. If the Supreme Court had not decided that abortion is a constitutional right, we would have fought over it in legislatures and, in all likelihood, it would be at least as available today as it is, probably less threatened, and it would not be such a huge factor in presidential elections and judicial appointments. 

But these are the issues that vast numbers of Americans want to think about, so it's not surprising that Feldman concentrates on them as he tries to convince liberals not to mess with the structure of the Supreme Court.

59 comments:

Ralph L said...

You needs an S on Answer.

Michael said...

Yes, of the court hadn't intervened with Roe, we would have experienced something similar to the issue of marijuana today. A couple of states would have led the way thru decriminalization to medical use to full legalization. Then the populace of other states would clamor for access as well. A few states would resist the trend, but residents there would find it easy to travel to other states to get what they want.

No marches, no rallies, no massive fundraising operations run by the grifters.

hawkeyedjb said...

OK, so the Supreme Court doesn't need reform as long as it delivers on the liberal wish list. I'm sure it would be in great need of reform if it began delivering conservative results. Everything is results-oriented, Our Betters don't even pretend it's anything else. The Court exists as a liberal super-legislature, to deliver the things that the Congress is too divided or cowardly to provide.

David Begley said...

Must have felt good for Ann to add that sic to a quote by a Harvard Law prof.

iowan2 said...

Why does the Supreme Court need reform?

That's a question I have been asking since the ACB nomination. This is where, "listen to the science", imperceptibly slides over into "the experts say". It's a conditioning exercise.
Who exactly says SCOTUS needs reform, and exactly what is wrong now. Oh, yea...show your work.

Kai Akker said...

Does anybody really know who Noah Feldman is? Does anybody really care?

iowan2 said...

Scalia pointed out in one of the gay cases, that SCOTUS, has no constitutional power to address the issue. It is NOT a constitutional issue. While he has empathy for the petitioners, goal, the proper path is through a self governing populace through their elected representatives, not judicial fiat. While true it may take time for government to catch up with new social constructs, catch up it will, with a better, logical solution. Time is a good thing.

rhhardin said...

The left always has enough blackmail material on justices to get their way.

Kevin said...

If the Supreme Court had not decided that abortion is a constitutional right, we would have fought over it in legislatures and, in all likelihood, it would be at least as available today as it it is, probably less threatened, and it would not be such a huge factor in presidential elections and judicial appointments.

The Democrats would rather have the issue.

It’s how they keep young women on their own political plantation.

Kevin said...

Our Legislature is broken as a direct result of Judicial legislating.

Why bargain for half a loaf when you can get the whole loaf through the courts?

Ann Althouse said...

"You needs an S on Answer."

Thanks. That goes to show that how it seems to always happen that you call attention to someone else's mistake, you make your own mistake. Look how it's exactly the same mistake! How do mistakes like that happen? It's just typing and then failing to proofread intensely enough. It's not ignorance of the grammar.

And that's why the response to DB's "Must have felt good for Ann to add that sic to a quote by a Harvard Law prof" is no, it didn't. I know it's just a typo without enough proofreading (or an edit that changed the subject to singular without attending to the verb). There's no possibility that NF is unfamiliar with subject/verb agreement.

I did see some value in letting readers see that even Harvard lawprofs make sloppy little mistakes (or publish in newspapers that don't provide professional proofreading). Hey, you'd think big billionaire Michael Bloomberg would pay for proofreaders.

rhhardin said...

Spotting your own typos is easier if you see it reformatted (so the typos move relative to line boundaries).

Matt Sablan said...

"Scalia pointed out in one of the gay cases, that SCOTUS, has no constitutional power to address the issue. It is NOT a constitutional issue."

-- Unfortunately, our Congress is a lazy, cowardly group of people, who would rather take no position on the important issue of the day except, "Other people should make decisions."

AllenS said...

Is marijuana legal in some states, or is it only legal in those states if purchased through a state sanctioned tax paying business? Big difference.

Matt Sablan said...

While I agree on protecting the rights of LBGTQ people, doesn't it strike the author as odd that the court is the one giving us statutory protections? I think that's just another example of his sloppy writing (I think he means "has upheld statutory protections," but the way it is worded gets to the heart of the liberal/conservative divide on what courts ought to do.)

unknown said...

How is it that a court gave us “statutory protection for the rights of trans people”? Isn’t it the job of Congress to enact statutes?

narciso said...

Noah feldman institutionalized islam in the afghan and iraqi constitution, so hes an authority.

iowan2 said...

Yes, of the court hadn't intervened with Roe, we would have experienced something similar to the issue of marijuana today.

Abortion was never illegal. Individual jurisdictions (local) enforced the will of the people. Abortions could be performed, for reasons acceptable to the residences of that jurisdiction. If they were too 'liberal' or too 'conservative' the prosecutor that pressed the issue, or turned a blind eye, were challenged in the next election. The people that marshalled the better public information campaign for their choosen candidated, set that jurisdiction's stance of abortion.

Kate said...

What if I don't want the Court to "advance the causes of equality and justice"? Who do I nominate that gets me that Court?

unknown said...

That [sic] highlights something interesting. The Court doesn’t “give” rights. It just recognizes what has already been “given.”

rehajm said...

It's more cart before the horse fantasies. I guess you wheel them out now in case all roads to make them reality fades in a few days.

Owen said...

Feldman: Look at the record. Be reasonable. Fair is fair.
Left: Too much ain’t enough.

wendybar said...

Kate said...
What if I don't want the Court to "advance the causes of equality and justice"? Who do I nominate that gets me that Court?

10/25/20, 8:19 AM

THIS!!^^^^^

Mattman26 said...

Anyone who says the Supreme Court eviscerated the Voting Rights Act has forfeited the right to be taken seriously.

It’s as big a lie as any left-wing talking point, and that’s saying something.

J said...

Geez what an ends justifies the means analysis.

Fernandinande said...

Supreme Court g[a]ve us ...rights,

that gay rights and gay marriage — along with trans rights — could have been given through statutory law

IOW, the SC creates rights and laws rather than interpreting and applying current laws passed by elected representatives or referendums.

Real reform would end that practice by impeaching such judges for lack of "good behavior".

gilbar said...

people said..
How is it that a court gave us “statutory protection for the rights of trans people”?
Isn’t it the job of Congress to enact statutes?

The Court doesn’t “give” rights. It just recognizes what has already been “given.”


in the immortal words of SE Hinton: That Was THEN, This Is NOW
now the court makes laws, now the court gives rights
the 'living constitution' says so.
SCOTUS are our GODS! All hail our Masters! ALL rights flow from SCOTUS

rehajm said...

...and since we're wheeling these things out- what will happen when there's a definitive rejection of all the leftie 'inevitability'? Will the old lefties fade away? Concede they were all wrong? Will the righteous choose vengeance or mercy for those exposed as irreparably wicked? Will the media, exhausted of their arsenal of ineffective weapons choose an honorable seppuku exit?

Temujin said...

"...advanced the causes of equality and justice even when most of its members were self-described conservatives appointed by Republicans."

Yes, of course. Because everyone knows that conservatives abhor equal justice under the law. Or is it that Noah Feldman is not talking about equal justice, but rather, manipulating the laws to arrive at a solution that creates 'equal' outcomes? That is, outcomes that make Noah and his friends feel better about themselves.

How does one measure Noah Feldman's definition of equality?

Abortion is not a 'right'. Nor is healthcare. We've destroyed the concept of what is actually a right vs. a want or need. Because you need something does not make it a right.

I Callahan said...

Unfortunately, our Congress is a lazy, cowardly group of people, who would rather take no position on the important issue of the day except, "Other people should make decisions."

Or the inverse: if the USSC wasn’t legislating from the bench, Congress would be forced to make some decisions on difficult issues. Or, maybe the country is too divided on certain issues and Congress SHOULDN’T legislate?

RNB said...

"...these are the issues that vast numbers of Americans want to think about..." Gay rights? Trans rights? Affirmative action? Abortion? Where do those show up on the lists of "Topics Voters Are Most Concerned About"?

Lucien said...

It's hard enough now when there are plurality opinions based on four or five opinions along the lines of "I join parts I, A., (2) and IV, B. of Justice Jones's opinion and concur with Justice Smith's opinion, except for Part III, and write separately to say . . ."
Imagine doing that with 13 justices instead of 9, and trying to decide who has the most narrow view consistent with a majority in order to say that that is the controlling opinion. Con. Law Professors' Full Employment Act.

Sebastian said...

"It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the last 30 years"

What do you mean, undoubtedly? I doubt it, so there. SSM, ACA, now Roberts chickening out on abortion and voting, Gorsuch going full prog on the CRA--"conservative"?

"Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose."

Oh, wait, Congress has a job to do?

"In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives."

Umm, yeah, but the prog motto is never enough. They want absolute power, absolutely all the time. And since SCOTUS is in a practical sense beyond the law, they absolutely mean to rule it, as a way to lock in prog preferences forever. Feldman ain't gonna stop them.

MD Greene said...

While Republicans have put more justices on the USSC, whether that has caused a "conservative" tilt is open to question. At the end of his two terms, Eisenhower acknowledged making some mistakes and said, "Two of them are on the Supreme Court," which probably was mostly about Earl Warren. David Souter, championed by Sununu and nominated by GW, IIRC, seemed to go native when he got to DC. Now the donks are saying the same thing about John Roberts.

You just never know.

wild chicken said...

I don't think this Court will ever buck popular opinion that much. Wobbly justices like Kennedy or Roberts will switch sides to keep the peace.

The most we can hope is that these appointments may prevent any more radical lurch to the left like we got with the Warren court.


Big Mike said...

If the Supreme Court had not decided that abortion is a constitutional right, we would have fought over it in legislatures and, in all likelihood, it would be at least as available today as it it is, probably less threatened, and it would not be such a huge factor in presidential elections and judicial appointments.

Oh, come off it, Althouse. Is there going to come a day when you admit that Roe is why you fell so readily for Christine Blasey Ford’s schtick in the Kavanaugh hearings, and that replacing Ginsburg with Amy Coney Barrett, who is several times the legal scholar you were in your day but Catholic and presumed to be philosophically opposed to Roe, is your only real gripe with Donald Trump? Well, that and your elitism.

Birkel said...

Democraticals care only about exercising their power over you.
Everything else is window dressing or gaslighting.

Bill, Republic of Texas said...

I did see some value in letting readers see that even Harvard lawprofs make sloppy little mistakes

Mind status:

Blown.

Thanks Althouse. My whole world view is changed. Imagine even Harvard lawprofs can make silly little mistakes. I guess the are not gods after all.

Does that mean I should stop praying to them? Or is it better to keep praying just as a hedge against the fact they may actually be gods.

Please Althouse tell us! I don't know what to do or think! Don't abandon us now you have shaken our entire world view.

Maillard Reactionary said...

Not a method to count on, but sometimes the correct conclusion is made through reasoning that is specious.

On the substance of the topic, iowan2 @7:43 AM is correct.

James K said...

"the undoubtedly conservative Supreme Court that has existed over the last 30 years"

Well if it's "undoubtedly conservative," I guess we're not allowed to doubt it, despite the long list of decidedly activist and non-conservative rulings that he immediately goes on to list? We see that to a leftist, "conservative" means "anything that doesn't reflect my views on every issue."

Joe Smith said...

Wait, so what they're saying is states should be left to make their own policies on things like abortion.

Who knew?

Oh yeah, those pesky, evil, dead, white founders.

Ann Althouse said...

@ bill

LOL

Unknown said...

If the Republicans win the White House and the Senate, and they start packing the Supreme Court, what would Democrats say?

"We didn't mean it."

"We were just kidding."

"You didn't say you were going to do that."

"This is outrageous."

"You have no respect for the Constitution."

It would be awful, really awful, for any party to try to pack the court. Obviously political and diabolical. Yes? Astounding to me that people on the Democrat side are seemingly unable to take a long view. It's like they can't imagine ever losing an election. What a weird and idiotic party they've become.

Browndog said...

Matt Sablan said...

While I agree on protecting the rights of LBGTQ people...


A new study shows 30% of American women 25-under identify as LGBTQ.

Chew on that one...

rcocean said...

Amazing how passive and dumb the center-right is when it comes to the SCOTUS. They NEVER understand the power of a Left-wing SCOTUS to drastically change American society. We dodged a bullet when Trump replaced Ginsberg and Scalia with two moderate Republicans. If we had Hillary put in two more Sotomayor types, and nominate additional extreme leftist Appeals Court Judges, it would have been the Warren Court on steroids.

But the dumb R's never wake up. Trump saved them, despite themselves. Now if Biden decides to pack the court, will they fight it, or do their usual "What me worry?" number.

Unknown said...

I'm convinced that all of this war over the Supreme Court is based on Roe v. Wade. It's why Republicans keep nominating Roman Catholics. It's why Democrats accused a Supreme Court nominee of sexual assault at his confirmation hearing. It's why the Democrats are talking about packing the court today.

I think it's likely that most states would have approved some forms of abortion, if it was left to ordinary political processes. But there's no way in hell any state would have ratified partial-birth abortion. To do that sort of barbaric baby-killing, you need "elite" unelected people to dictate that sort of thing.

Now, of course, it's entirely likely that some states will ratify partial-birth abortion. And other states will outlaw abortion entirely. We've become more divided, not less, over abortion. The Supreme Court has made it worse, not better.

The Supreme Court screwed this pooch by saying the Constitution "commands" these made-up rules. Honesty was thrown out the window. And moderation was thrown out as well, as the Supreme Court's rules were never "moderate." A moderate position would align with a state's death statutes, for instance. You can have an abortion in the first six weeks.

What the Supreme Court did was make everything absolutist. So people divide up. You either love all abortions or you hate all of them.

The media has been just as bad as our legal authorities. The media has been hiding abortion violence for 40 years. I think when abortion goes back into the public realm, and people vote on it, we're going to start seeing more and more abortion photographs in the media. The media has been working hand-in-hand with the Democrat party for decades, and it's gotten a lot worse.

I can't help but think that abortion is very analogous to slavery. It's equally divisive, and inspires awful violence. Dred Scott and Roe didn't resolve anything, but made our divisions worse.

The only way to resolve this dispute fairly is to recognize the humanity of unborn children, and to apply our death statutes and homicide rules to unborn babies. That makes clear that many abortions are homicide, and some of them are not homicide under our rules for when people die. And if we don't like that result, then we should change the laws in regard to when people die. The Constitution doesn't say when life begins, or when people die. All it says is that whatever your rule is, apply it to all people.

I think it's going to get worse before it gets better. Our authorities are too dishonest to solve the problem now. And all our media can do is hide the bodies.

The Cracker Emcee Refulgent said...

Pack the Court (the SC and, by extension, any lower court you wish to ignore). Delegitimize it. Give localities a blank check to nullify whatever laws the locals aren’t down with. Want to murder, burn, and riot in the Blue cities? The real court doesn’t care. Want to lynch Black folks in the backwoods? The real court doesn’t care. And abortion? Good God. Delegitimize the court and abortion becomes illegal in, geographically, 80% of the country.

It’s staggering that Progs are so utterly incapable of thinking this shit through.

Achilles said...

The supreme court needs to be reformed.

Marbury vs. Madison has to go.

Zach said...

The whole thing seems completely stupid to me. Why tear up the rules when you're on a winning streak?

The approach of the Roberts course has been minimalist in most things, with the exception of a few major cases where the liberals got everything they wanted. Roberts himself has a bad habit of switching sides when he thinks the law points to a result that's more conservative than he personally would prefer.

The idea that the court is going to go around ruling on every single case 6-3 is just silly.

n.n said...

Trans/homo rights, trans/homo marriage, and trans/bi etc. rights, too? How very politically congruent. Lose your Pro-Choice quasi-religion.

Abortion rites? No. One-child, and the Progressive Church's counterpart Selective-child, or human sacrificial rites for social progress, social justice, medical progress (e.g. Mengele/Cecile clinics) are antithetical to American... humane values.

Feldman is trapped playing liberal games, and steeped in the progressive misconceptions and judgment of American conservativism. Americans are Pro-Life, Liberty, and the pursuit of Happiness. The Constitution a social compact with the People and our [unPlanned] Posterity.

n.n said...

Trans/homos always had a right to marriage. All couples, couplets, friends with benefits (e.g. polygamy), too? would have had a right to civil unions outside the Progressive Church's endorsement of political congruence ("=") or selective exclusion under its Pro-Choice quasi-religion. The purpose of marriage was to recognize and normalize a favorable union of the male and female sexes, of couples, and duck dynasties. Yeah, The Constitution is tolerant and discerning.

Caligula said...

"Democrats need to think hard about the dangers of changing a Supreme Court that has, in many instances, advanced the causes of equality and justice ...

BUT, what if it's just not the Court's job to "advance the causes of equality and justice," except insofar as these are actually expressed in statute or Constitutional law?

How about if we just had a legitimate Court again- one that decides cases based not on some airy idea of what the law should be, but on what it actually is?

The Godfather said...

Before you can decide whether the Supreme Court needs to be reformed, you need to decide what you think the Supreme Court should be doing? If, like the author, you think that the job of the Supreme Court is to "give us [sic] gay rights, gay marriage, and now statutory protection for the rights of trans people", that is, if you think the Court should be a super-legislature empowered to make laws that Congress and the State Legislatures don't or can't make, then, yes, the Court should be substantially reformed. It should be larger and its membership should turn over faster, and The People should have a greater voice in selecting its members. Our government is a republic, indeed a democratic republic. Such issues should be decided by a democratic republican institution, not a bunch of philospher kings.

Or, we could go back to the Founders' original plan and have Congress execute the national legislative power, and the State legislatures execute the legislative powers in their jurisdictions. And the Supreme Court could be expected to just be a court.

Spiros said...

Is an independent and powerful Supreme Court essential if our politics are divided or deadlocked? Somebody has to answer the big constitutional questions.

Spiros said...

I can't believe that these douche bags want to pack the Supreme Court. Democrats are bluntly stating that they want a totally dependent Court that can be easily manipulated to achieve their policy outcomes. They are not sugarcoating this.

Spiros said...

As democratization has spread across the globe, so too has the expansion of judicial power. An independent judiciary is the sine qua non of democracy. Dictators do not need judicial review.

I am not happy about a senile old man threatening to destroy the Supreme Court. If the Democrats win big, pack the Court and run roughshod over Republican Party, I think the Constitution itself may fail.

Bilwick said...

I'm not religious, but Kanye's vision is less frightening to me than the "liberal" Hive's wet dream of millions of Eloi singing "Glory, Glory, Glory" to The State.

Gahrie said...

If the Supreme Court had not decided that abortion is a constitutional right, we would have fought over it in legislatures

"Decided" can be an interesting word. "Created" is too. I'm a little surprised at you though. Wouldn't that be ignoring the intent of the Radical Republicans in 1868?

Gahrie said...

Is marijuana legal in some states, or is it only legal in those states if purchased through a state sanctioned tax paying business? Big difference.

If you are in search of an honest answer, in most places it depends. Generally a medical marijuana prescription will allow you to obtain and use from anywhere, including growing your own. Recreational use is restricted to legally obtained weed. Legal weed is taxed heavily. Most places do allow you to grow your own.