"My brother, who is 12 years my senior, witnessed my mother repeatedly slapping infant me, not stopping til my father restrained her."

"He told me some 30 years later, with visible guilt. I was appreciative. I had always felt fearful and alienated by my mother from an early age, but without knowing about that incident, thought it was due to some defect in my own character. Truth is a disinfectant, even if it hurts, initially."

That's the highest-rated comment on a NYT advice column, "My Sibling Was Abused as a Baby. Should I Share What I Saw? The magazine’s Ethicist columnist on the disclosure of a horrific event in a family’s past."

The columnist, Kwame Anthony Appiah, concludes "To insist on disclosure when the knowledge would only cause long-term distress would be acting on that old maxim fiat justitia, ruat caelum — let there be justice, though the heavens fall. That, I fear, would be a kind of moral fanaticism."

There's a Wikipedia article on fiat justitia, ruat caelum. I'll just quote some of the famous examples of the use of the Latin phrase, which The Ethicist used to warn against doing something for the sake of justice. Is that the way it always goes, or is it often — more often? — used to mean put justice first and let the chips fall where they may?

50 years ago today: The Supreme Court announced its decision in Miranda v. Arizona.

That's how it looked on the front page of the NYT. Here's the Wikipedia article on Miranda:

Chief Justice Earl Warren, a former prosecutor, delivered the opinion of the Court, ruling that due to the coercive nature of the custodial interrogation by police (Warren cited several police training manuals which had not been provided in the arguments), no confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless a suspect had been made aware of his rights and the suspect had then waived them:

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

In dissent, Justice John Marshall Harlan II wrote that "nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities". Harlan closed his remarks by quoting former Justice Robert H. Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."

But Miranda was a fine added story, and the temple held up pretty well.

(That other case on the NYT front page is important too: "Dissenters Fear Widening of Congressional Power." That was Katzenbach v. Morgan.)

How the Supreme Court decided the draft evasion case against Muhammad Ali.

It's hard to remember the details, and today's obituary's don't linger on this topic. For example, the NYT obituary just says: "As Ali’s draft-evasion case made its way to the United States Supreme Court, he returned to the ring on Oct. 26, 1970, through the efforts of black politicians in Atlanta."

But Ali had been convicted in 1967 and sentenced to 5 years in prison. The Supreme Court case that ultimately kept him out of prison came in 1971. What did the Court decide? Here's the very unusual inside story, found in "The Brethren" by Bob Woodward and Scott Armstrong:

Apart from the complicated war and draft issues, there were racial overtones to the case.... Public sympathy was growing for Ali, but at the same time the Black Muslim faith had been portrayed as separatist, antiwhite and bizarre....

"It used to be routine, too, Chief Justice Roberts said, for presidents to appoint prominent public figures to the court."

"In 1941, the year Hughes left the court, Chief Justice Roberts said, 'you had two senators on the court, a representative, three former attorneys general.' The court that decided Brown v. Board of Education, the 1954 decision banning segregation in public schools, included Chief Justice Earl Warren, a former governor of California; Hugo L. Black, a former United States senator; William O. Douglas, who had been chairman of the Securities and Exchange Commission; and Robert H. Jackson, who had been the attorney general. By contrast, Chief Justice Roberts said, until Justice Elena Kagan arrived in 2010, “every single member of the court had been a court of appeals judge.' He did not comment Friday on the significance of the narrowing of the career paths, but in 2009 he said the development was a positive one, resulting in decisions with 'a more legal perspective and less of a policy perspective.'"

From respectful coverage, by the NYT's Adam Liptak, of a talk by Chief Justice John G. Roberts Jr. at NYU School of Law. Roberts's subject was Charles Evans Hughes, who before becoming Chief Justice "had been governor of New York, an associate justice of the court, the Republican nominee for president (losing narrowly to Woodrow Wilson), secretary of state and a Wall Street lawyer who argued more than 50 cases in the court."

Interesting to see the somewhat random appearance of the name Woodrow Wilson. The old president has become a big issue of late. In this very edition of the NYT, Woodrow Wilson comes up in 2 headlines:

Cass Sunstein picks the top 8 Supreme Court Justices of all time...

... and includes William Rehnquist.

When I was clerking at the court in the early 1980s, Rehnquist told me that the court was like a ship that had become badly tilted — and he made a gesture, signaling that the court had tilted left....

Reducing federal power and limiting the reach of numerous Warren court rulings, Rehnquist... succeeded in restoring what he considered to be the right constitutional balance.

Let's take a closer look at Jonathan Turley's reaction to the internet's response to his Court packing plan.

In the first post of the day — "Jonathan Turley's civility bullshit about my calling 'bullshit' on his Court-packing plan" — I said some things about why I don't give powerful speakers the insulation of so-called "civility" and about the interplay between big journalism and the law professoriat. Not wanting to go unbloggily overlong, I said I'd do a second post parsing the details of Turley's blog post criticizing me for criticizing his proposal to enlarge the Supreme Court to 19 Justices. I call it...



This might need to go a bit long, so let's go to an inside page.

Turley's post is titled "The Limits of Civility: How A Proposal On Reforming The Supreme Court Unleashed A Torrent Of Personal Attacks." Unleashed! Torrent! Personal! Attacks! You see how he goes big and emotional, not sober and restrained at all? He's a victim. But, I wonder, will there be any personal attacks made on me? I called his idea "bad" and his reason for it "bullshit." I rejected his implicit admiration for the utilitarian philosopher Jeremy Bentham, and I said he'd made an analogy that was "one of the worst... I'd ever seen." But I didn't make any personal attacks. Ironically, it's a personal attack on me to accuse me of making a personal attack. I attacked his ideas, not his person, but I did it with sharp language that was meant to hurt and did. He chose to respond in a personal way. Why? Because he can't or won't defend his ideas? Or is he simply taken aback that a law professor would attack with concision and ferocity?

On to the body of the Turleypost:

As many on this blog know, I rarely respond to criticism of columns that I run in USA Today or other newspapers. As a columnist, I feel that I am given a rare opportunity to express my views and criticism comes with the territory. However, I was taken aback by many of the comments in response to my Sunday column in The Washington Post discussing my proposal for the expansion of the United States Supreme Court. 

Why don't you normally respond to criticism? You take your high platform in mainstream media. You profess from that position, and the little people who carp about it may not seem worth your time. But now you will bother. Why? It seems that blogging has raised a few people to a significant enough level that it matches the perch you got from the Washington Post.

Though the proposal was given serious and supportive reviews by some sites like Forbes, some conservatives immediately assumed that I was a liberal simply upset with the anticipated ruling striking down the individual mandate provision of the health care law. When another law professor and blogger (Ann Althouse) joined this ill-informed and uncivil chorus, I thought I would respond. 

I didn't assume he was "a liberal simply upset with the anticipated ruling." What if he hadn't read my words carefully and he was attributing to me the things he believed he was hearing from a "chorus"? That would make him ill-informed. That would be ironic. And, as we shall see, that is what he is doing.

This blog has always strived to maintain a strict civility rule — distinguishing it from many other blogs by discouraging and sometimes eliminating ad hominem and personal attacks. 

But you just hurled a series of insults at me. I only attacked your ideas. But I myself don't preen about civility. I do what I do. It is what it is. And I leave it to the reader to figure out what it is. I have my standards, but I don't brag about how lofty they are. Turley trumpets his "strict civility rule," and he's already violated it.

Yet, I am still surprised by the lack of civility and responsibility by many — particularly fellow lawyers and academics — in responding to such proposals. 

I'm not surprised that he's acting surprised, that he imagines he's a model of civility, or that he's making mistakes about me without noticing, or that he expects lawprofs to defer to other lawprofs. I find that all crushingly predictable. Can we get to the substance? I mean, my kindergarten teacher used to say "Ann, I'm surprised at you!" It hurt my feelings. But I'm old now, and I don't have much time.

[Update: Professor Ann Althouse has responded to my call for greater civility with a new blog entitled "Jonathan Turley's civility bullshit about my calling "bullshit" on his Court-packing plan." (Apparently both civility and factual accuracy fall into the same "BS" category for Professor Althouse). Notably, Professor Althouse does not address the fact that she was completely wrong in claiming that I was motivated by dislike for the anticipated ruling striking down the individual mandate in the health care case.]

And Professor Turley does not hurry to add that my new post includes a statement that I'm going to write another post — you're reading it now — in which "I'll respond to more of Turley's long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court's opinions." Notably, Professor Turley does not address any of what I did say in that post.

And speaking of "completely wrong," I never said he was motivated by his dislike for the anticipated ruling in the health care case. He has this long, long post about me, perseverating about how I have not read and understood him, but he has yet to read my writing with much care at all.

My original post accused the Washington Post of pushing the Court-packing proposal "in anticipation of the Obamacare decision." I'm saying that Turley was given an op-ed spot to promote his theory, last Sunday, because of the impending Obamacare decision, which WaPo is advance-spinning. It would be damned hard to deny that inference, and I stand by it. I then quote Turley saying "The health-care decision comes 75 years after the famous 'court packing' effort of President Franklin D. Roosevelt.... Roosevelt may have had the right idea for the wrong reason," and I assert that my belief that Turley has the essentially the same reason: "You don't like the opinions." The opinions. That's a large, nonspecific category. I do infer Turley wants to diminish the power and prestige of the Court, but I'm not focusing on a particular case in the future.

Back to Turley:

The column generated a torrent of comments (roughly 1100 on the Post site alone). Many of these comments came from conservatives who immediately assumed that I was a liberal law professor who was just proposing this reform because I expected to the Court to rule against the health care law. Others asked why I did not propose this in the past and just suddenly called for an expansion on the eve of the health care decision.

That's not about me. I guess that's the "chorus."

Just to set the record straight.

First, before the health care law was passed, I spoke on Capitol Hill and expressed my personal opposition to the individual mandate law on federalism grounds though I felt that the Administration would have the advantage in the lower courts due to the current precedent from the Supreme Court. I then wrote and spoke against the individual mandate provision in columns, blog entries, and speeches....

Turley only links to one column, and it doesn't say the individual mandate is unconstitutional. It merely states that there's a constitutional question that the courts will have to resolve. He's being very bland! (Actually, it's the same kind of restraint I've shown on the issue.)

Back to Turley:

Second, I did not just come up with this proposal on the eve of the decision. See, e.g., “Unpacking the Court: The Case for the Expansion of the United States Supreme Court in the Twenty-First Century.” 33 Perspectives on Political Science, no. 3, p. 155 (June 22, 2004). I proposed the expansion of the Supreme Court over ten years ago. I have discussed the reform with members of Congress and it has been debated in prior years.

2004... 2002... this is post-Bush v. Gore and post- a lot of cases that have led the law professoriate to work on ways to limit the power of the Court. I don't know (or assert that I know) the details about which cases bother Turley, but to resort to Wikipedia, he is "frequently regarded as a champion of liberal and progressive causes," he's appeared frequently "on Countdown with Keith Olbermann and The Rachel Maddow Show," and he "has called for criminal prosecution of Bush administration officials for war crimes." I don't think my inference of his hostility to the Court's opinions is wrong, and I stand by my suspicion that his desire to dilute the power of Supreme Court Justices arises out of — remember my exact phrase — "a distaste for the Supreme Court's opinions."

Turley goes on:

Third, I have often agreed with the conservatives on the Court in its most controversial decisions. For example, like many in the free speech community, I agreed with the holding in Citizen’s United even though I disagreed with parts of the decision’s analysis and language. I have also said that I felt Arizona has a strong case on the immigration matter in claiming the right to enforce federal laws on illegal status.

Fine. I can see he's not the most predictably left lawprof in the academy. I never said he was.

Finally, the criticism of these readers and Professor Althouse below appear based on an assumption that the expansion of the Supreme Court would predictably add liberals. 

Now, you're making inferences about me, so I guess inferences are okay. I made mine and you made yours. I'll set a good example by treating your assumption as a request to say whether that's what I really think. I don't!

There is no reason to make such an assumption since the expansion is spread over a decade. 

I know that's the proposal, and I quoted your language to that effect in my original post. Without that slow phase-in, the proposal would be truly ridiculous (an obvious, partisan power-grab).

Moreover, the Senate is expected to either continue to be split roughly evenly between the parties or actually go Republican in the next election. There is certainly no reason to assume that the additions to the Supreme Court would include candidates to my liking. 

Oops! He just admitted he wants liberals.  Also, let me point out that it's Republican Presidents who've been disappointed by appointees who turn liberal. In recent years, we've seen Blackmun, Stevens, and Souter skew far from the politics of the Republican Presidents who appointed them. When's the last Democratic President whose appointee skewed conservative?

Indeed, I criticized Obama’s selections. I do believe that additional justices will add a diversity of experience and viewpoints regardless of philosophical leanings.

I agree the Court lacks diversity. (For example: no Protestants.) But I think more Justices will mainly dilute the significance of the position. As Turley ended his op-ed: "the power of individual judges is diluted." You get more of a faceless panel of legal experts, much less of a sense of particular human beings making decisions.

After a couple of decades writing as a columnist and doing legal commentary, I have no illusions about people writing anonymously about articles or positions. The Internet often seems to unleash the most vicious side of people who seem to believe that they are relieved of basic decency or civility by anonymity. However, I was surprised by lawyers who made these baseless claims, including claims that are directly contradicted in the article (like the notion that one president would appoint all ten justices or that the number was simply selected arbitrarily). A simple search on the Internet would have shown that I am in fact a critic of the health care law.

You have already made statements about me that are directly contradicted by the blog post you are talking about. So this hand-wringing about what other people do is annoying. But hang on, because next is the part about me:

That brings us to University of Wisconsin Professor Ann Althouse who ran a blog blasting my column. Althouse makes the point in her headline: “Don’t like the Supreme Court’s decision? Propose a Court-packing plan!” She then states the column pushes for the packing of the court “in anticipation of the Obamacare decision.” She responds to the proposal with “Oh, spare me the bullshit. It’s the same reason. You don’t like the opinions. It was a bad idea then, and it’s a bad idea now.” I must confess that, when one of our regulars sent me this link, I was taken aback. 

There's that word "aback" again. How many times does he need to tell us how emotional he got over the criticism? I mean, talk about bullshit. I don't really believe the Turley vapors come on that easily. Why is he begging readers to feel sorry for him? I suppose the answer is that he wants readers to get mad at me. Aren't I terrible? He had an op-ed in the WaPo and I... I... criticized it!

I do not expect such ill-informed and uncivil attacks from a fellow academic. While Althouse writes a conservative blog....

Wait! Wait! Wait! Now, now, you wouldn't! You wouldn't commit the very offense you accuse me of? Ah ha ha. Too rich! Too funny!

... and has been something of a lightning rod in the past, I would have thought that she would do a little research before going after another professor. 

And I wouldn't have thought that you, a law professor, would talk about me not doing a little research before talking about me, a law professor, not doing a little research before talking about me (a law professor!). I write a conservative blog? You mean the one where I wrote about why I voted for Obama? The one with 300+ posts favoring same-sex marriage? The one that consistently supports abortion rights?

In reality, I am calling for the expansion of the Court despite the fact that I would agree with the anticipated decision from the Court striking down the individual mandate. It is precisely the opposite of what is being suggested. Even though I expect to be on the winning side, I still do not believe it should be left to a single swing justice. 

And, as explained above, I did not say one word about what I thought you thought about the health-care case. Think you might want to back off? You really deeply committed to this. It seems to me that you just don't want to hear any suspicion that your Court-packing proposal has a motivation based on the substance of the Supreme Court's opinions.

I understand that some bloggers are given to hyperbole like Althouse asking “If the greatest good is in the greatest number, why not 100? Why not 1000?” — even though the column (and longer original article) addresses this question with reference to how en banc appellate courts work and more importantly the high courts of other countries. 

It was mockery based on your statement "sometimes the greatest good can be found in the greater number." Since you admit a desire to dilute the power of judges, it was fair criticism to link this idea of yours — the superiority of the greater number — to the hypothetical problem of majoritarian decisionmaking about what the Constitution means (which would be antithetical to the idea that it is the role of the judges to say what the law is).

(I must confess that I find it odd to see the arbitrarily selected number of 9 defended by objecting that adopting the average size of other top courts is arbitrary). 

I didn't say it was arbitrary. I didn't delve into the comparison to circuit courts, but if you want to know, I think it's a bad comparison, because what the Supreme Court does in its ordinary cases isn't like an entire circuit of Courts of Appeals judges, who only occasionally come together for an en banc decision. Ordinarily, Courts of Appeals judges decide cases in 3-person sets. Those case-deciding units are one-third the size of the Supreme Court, so we learn, if anything, that a smaller decisionmaking group is better. In other words, the Supreme Court is already expanded.

It is the allegation that I am just making this proposal due to my opposition to the expected decision that is beyond the pale in my view. 

Your view is bad. You're hearing a "chorus" and seeing beyond "the pale." Wake up. Sharpen up.

I understand that we cannot always control comments on our blogs (and free speech allows for considerable room of expression), but such attacks do not present a particularly good model for our students.

Yeah, so you need to stop. You, with the "strict civility" rule.

In her response to my call for greater civility and responsibility, Althouse responds by calling civility “bullshit” and says that she is “merely passionate and serious.” 

Professor Turley, you have put something in quotes that is not a quote. I said "I am passionate and serious about what I am doing...." I didn't say I was "merely passionate and serious." I am many other things too, including fun-loving. And law-professor-ass-kicking. You're being such a stickler that you are making yourself into such a big target that this isn't even fun. What I am passionate and serious about is, as I say right there, "speaking clearly" and showing my readers things they might find it hard to see, such as how law professors, facilitated by elite media, try to trick them with words. That's what bullshit is. I am passionate and serious about calling bullshit on law professors. And I'm doing it again.

Rather than simply admit that she was wrong...

Because I wasn't!

... in suggesting that I was motivated by opposition to the expected ruling invalidating the individual mandate provision and a failure to simply confirm my position (which has been widely cited supporting the challengers), she again portrays the column as another example of how the Washington Post publishes columns “from law professors to launder its partisan politics into something with that looks scholarly and thoughtful.” 

Hey, how about proving your good faith by simply admitting you were wrong? And show me you understand that I'm saying the Washington Post was using you, with your theory, at a particular time for a particular reason. You're essentially discounting this point as if it's only a distraction that I'm putting up to keep from admitting I was wrong (which — have I ever told you? — I wasn't).

It appears that “passionate and serious” includes falsely stating another professor’s positions on cases as the basis for a personal attack.

No, but I will passionately and seriously say right now that you are misstating what I have said.

Indeed, Professor Althouse has yet to inform her readers that she was wrong in suggesting that I disagreed with the conservatives in the health care litigation (and that my proposal was motivated by that opposition). 

You disagreed with the conservatives? Ahem.

She merely states that “In a later post, I’ll respond to more of Turley’s long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court’s opinions.”

What is the function of the word "merely" for Turley? Could it be... bullshit?

Of course, the obvious suggestion was that the column was timed to anticipate the health care decision — a common theme in comments on her blog. I am not sure what “distaste for the Supreme Court’s opinions” means (though Professor Althouse’s reference to my dislike for a “decision” is now distaste for “opinions.”). 

Oh! See, after all that bullshit, he's finally noticing my actual words. With his strict civility rule and staunch demands for accuracy, you might think that after he wrote that he'd realize that he needs to rewrite everything he's just said about me. Why didn't he?! Where is the civility? He's "not sure" but he can't make the mental effort to read the actual words of my original paragraph (even as amplified in this morning's post). Hello? Fellow law professor?! I said that the Washington Post decided to run this op-ed in anticipation of the Obamacare decision and that I presume that you have a distaste for (unspecified) opinions.

We all disagree with some of the Court’s decisions — even though I have agreed with the majority of the decisions from this Court. I often side with conservatives on federalism and other areas while disagreeing on other areas like free speech and criminal cases. I disagree with the liberal justices on other cases, but I am not motivated by a desire to pack the Court with libertarians (which is widely cited as closer to my own views on many issues) rather than liberals. 

Fine. I still suspect that your desire to dilute the influence of individual Justices arises from a distaste for the substance of their work and not merely — merely! — from some wholly neutral, disembodied structural conception of decisionmaking supposedly modeled on en banc Court of Appeals decisions. 

It would make no difference to me if this was the Warren Court. It is in my view demonstrably too small. While it may seem highly improbable in today’s rabidly political environment, it is possible to make such a proposal out of principle. 

With or without rabies, the human mind does not operate in a substance-free vacuum. 

Moreover, in a term with a series of 5-4 decisions on major cases and polls showing an increasingly unpopular Supreme Court, the proposal is obviously relevant to the current debate.

I have spent over ten years advocating for the expansion of the Court even though I often agree with the rulings of swing Associate Justice Anthony Kennedy. Putting aside the possibility that my proposal is based on principle rather than partisanship, I have never encountered a law professor advocating for incivility as a type of personal signature (a reaction shared by other leading legal bloggers like Scott Greenfield). I was hoping that raising the issue would result is a bit of self-reflection and possible dialogue on the loss of civility in our national discourse. While I did not expect an apology from Professor Althouse, I did not expect an academic to affirm the value of name calling and incivility — even when the blog is shown to be wrong on critical allegations.

And I don't expect an apology from you either. I've read what you have to say and given my response. I'd like to see you truly engage with the substance of what I've written about you. And feel free to keep talking about the form of what I've written. You've got a thing about form instead of substance. I care about form too. I care about sharp and interesting writing, and I intend to keep it sharp. And when that sharpness hurts elite law professors, I'm fine with it.

My only point is that the overall commentary following the column shows once again how we have lost the tradition of civil discourse in this country. The tendency today is to personally attack people with whom you disagree...

Remember your idea about "a bit of self-reflection"!

... and suggest hidden agendas or conspiracies. 

That sounds sinister, but what does it say about me? Of course, I don't take things at face value! Of course, I don't assume people only mean the things they are willing to put in writing! Law professors (and lawyers and judges and politicians) use words to manipulate people all the time. What I do on this blog is to try to pull apart those manipulations. With me, that's not just a "tendency." It's a mission.

I am always delighted to see spirited debate following a column, including those with whom I disagree. As in a classroom, I value the debate for its own sake — forcing people to consider alternative views and possibilities. The current tendency to shout down other voices with shrill or sophomoric attacks is degrading our politics and our society.

Oh, bullshit!

"Ponchos and sombreros: Partygoers don ‘insensitive’ attire despite student efforts."

Imagine! Student efforts failing to sear prick the conscience of the Mifflin Street Block Party people.

The student group that wants respectful seriousness and no horsing around on the subject of Cinco de Mayo calls itself Badgers Against Racism... or "BAR."

IN THE COMMENTS: pduggie said:

"sear the conscience" is the opposite of what you mean.

To have a seared conscience is to have one that is locked out from all claims of injustice.

I think you mean wound or prick.

He refers me to the New Testament, 1 Timothy:

¹The Spirit clearly says that in later times some will abandon the faith and follow deceiving spirits and things taught by demons. ²Such teachings come through hypocritical liars, whose consciences have been seared as with a hot iron. ³They forbid people to marry and order them to abstain from certain foods, which God created to be received with thanksgiving by those who believe and who know the truth. ⁴For everything God created is good, and nothing is to be rejected if it is received with thanksgiving, ⁵because it is consecrated by the word of God and prayer.

I stand corrected. Prick is a much better word.

And by the way — I'm sure I'm not the first person to notice — there's a nice biblical argument for same sex marriage. St. Paul contemned the bad religionists who "forbid people to marry," and — right at that point — said "For everything God created is good, and nothing is to be rejected if it is received with thanksgiving." Did God not create gay people?

Here we are "in later times." Is your conscience seared or pricked?

AND: Though I've read the New Testament many times (though mostly the Gospels), my experience with searing the conscience is overwhelmingly from something written by Felix Frankfurter, in a passage I've used repeated in my constitutional law classes. The case is Baker v. Carr — a great Warren Court landmark — and Justice Frankfurter articulates what is, to me, the most memorable statement of judicial restraint in the Supreme Court reporters:

We were soothingly told at the bar of this Court that we need not worry about the kind of remedy a court could effectively fashion once the abstract constitutional right to have courts pass on a statewide system of electoral districting is recognized as a matter of judicial rhetoric, because legislatures would heed the Court's admonition. This is not only a euphoric hope. It implies a sorry confession of judicial impotence in place of a frank acknowledgment that there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers, carefully and with deliberate forethought, refused so to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives. In any event, there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear sure to be disappointing to the hope.

I'm quite shocked to discover Frankfurter misused the phrase! But then — did you know? — English was a second language for Felix Frankfurter, who was born in Vienna.

Prof. Chemerinsky says Justice Ginsburg "has in her power the ability to prevent a real shift in the balance of power on the court."

"On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

Wow! How much of this kind of moral pressure is being applied to the venerable Justice?

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

Abortion and affirmative action. Abortion and affirmative action. That's the fixed point in constitutional law for a lot of people: it must work out in favor of abortion and affirmative action.

[S]ome on the left say ... Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too....

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

David Garrow, a Cambridge University historian who follows the court, said Ginsburg's situation points to an institutional problem for the court, "the arguably narcissistic attitude that longer is better."

Narcissist!

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama's electoral prospects seem shaky.

The rest of the article is a history lesson about how waiting too long doesn't work. Earl Warren, LBJ, Richard Nixon, Warren Burger and all that. The message is clear. The liberal media want Ruth Bader Ginsburg out now.

I know that sounds mean, but it's not me saying it. I'm just paraphrasing for clarity.

A 1933 Washington Post headline: "Present Lame Duck Session Will Be Last."

David A. Fahrenthoid explains the 20th Amendment to the U.S. Constitution:

The trouble with lame-duck sessions began in 1801, when the outgoing Federalists used their last days in power to help appoint a bunch of judges. It flared up again in 1922, when President Warren Harding and the lame-duck Republicans tried to ram through unpopular legislation after their defeats.

Opponents said this was un-democratic: These sessions seemed to violate the ever-popular Washington rule that "elections have consequences." Finally, Congress passed - and the states ratified - the 20th Amendment.

Historians say lawmakers thought they were ending lame-duck Congresses forever.

"This amendment will free Congress of the dead hand of the so-called 'lame duck,' " Rep. Wilburn Cartwright (D-Okla.) said as it was debated in 1932.

But Congress follows the letter of the law, and the amendment only changed the date of the end of congressional terms. It's a lot earlier than it was under the original Constitution, but it's still far enough from the elections to give a modern Congress plenty of time to work its will on the American people who may have just decisively rejected them.

With a devastating electoral loss behind them and a 13% approval rating, Congress flouts the intent of the framers and ratifiers of the 20th Amendment.

"The Top 100 Influential Figures in American History."

I'm going to click through all this, beginning with Herman Melville at #100 — he's "the American Shakespeare." Come with me. #99 is Nixon! Why's Nixon only 99? I know. He's ugly. And we hate him. Have to click to 86 to get to the first woman. It's Mary Baker Eddy, who, of course, influenced health care reform. Another lady at 81. It's Margaret Mead, famous for being had by 3d world pranksters. Nothing more American than that. A woman at 77: Betty Friedan. I never read her book. I thought it was for my parents' generation. My — my my my — generation transcended sex roles. We were star dust, we were golden.

Frank Lloyd Wright is 76. Architects may come and architects may go, and never change your point of view. Not Frank. He'd sock you in the head with a low-hanging roof as soon as look at you. He was from Wisconsin. That's important. So was Georgia O'Keeffe, who might be on this list. She's a woman, you know. 20 bonus points for being a woman? Here's Jane Addams at 64. Another woman. And I, your humble female blogger, would like to register a complaint against my high school speech teacher who rejected my proposal to do a speech on the topic of Jane Addams. He said she wasn't important enough. I used to want to be a social worker.

Oliver Wendell Holmes Jr. is 53. The only judge so far. Another woman at 51: Margaret Sanger. (A "thoroughgoing racist" says Jonah Goldberg.) Not too many Presidents. After Nixon, you have to wait until #44 for another President. It's Lyndon Johnson. I call him "LBJ." Works better in rhyming chants. LOL! It's Eleanor Roosevelt at #42. "She used the first lady’s office and the mass media to become 'first lady of the world.'" Women playing the media to focus attention on themselves. Yeah, I guess that's a big deal in American culture. She's responsible for that? All right then. 

Harriet Beecher Stowe. #41. The power of novels. Rachel Carson is #39. She saved the eagles... and the mosquitoes. Susan B. Anthony is 38. Elizabeth Cady Stanton is #30. Women's rights. Earl Warren is 29. A second judge. Eisenhower is 28. A third President. Eli Whitney deserves to be 27: "His gin made cotton king and sustained an empire for slavery."

John Adams at 25? Come on? Is HBO/David McCullough the arbiter of history? But yeah, he was President. Truman is 21. A 5th President. Man, get a David McCullough biography about you to cement your historical importance. Andrew Jackson is 18. A 6th President. Reagan's 17. That's 7. Theodore Roosevelt is 15. The 8th Prez on the list, and the 2d of what I predict will be 3 Roosevelts. James Madison is 13. The 9th President, a Founding Father. Ulysses S. Grant gets to be 12. A 10th Prez. And he won the war. Woodrow Wilson is #10 and the 11th President on the list. Martin Luther King Jr. is only #8. John Marshall is #7, the 3d judge. Ben Franklin is 6, deservedly. Another Founder at 5: Alexander Hamilton. FDR snags #4 and is the 12th President on the list. Jefferson is #3, so you know who ##1 and 2 are. And Lincoln beats Washington for the top spot. A total of 15 Presidents.

The final count for women was 10. 10 out of 100. (I think.) Fair enough. I'm not going to say there should have been more. If they'd counted femaleness as a plus factor, they'd have had to "plus-factor" a lot of other groups, and they didn't. Not one Native American?! That's politically incorrect.

ADDED: Actually there were a couple more Presidents, Polk and John Quincy Adams. I'm noticing this leaning over Meade's shoulder as he clicks through. Sorry. My effort was studiously haphazard.