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The faculty lounge reopens for a special summer session and there is plenty for professors Epstein and Yoo to talk about. First up, the gay marriage decision: Is this really what the Fourteenth Amendment means? Is Justice Kennedy’s florid decision an invitation for mischief? And how concerned should defenders of religious liberty be? Then, it’s on to Obamacare. Has Chief Justice Roberts gone over to the dark side? Why is that liberal justices never “grow” on the court? And what do the professors make of Ted Cruz’s proposal to reform the Supreme Court? Also on the docket: redistricting in Arizona and disparate impact in Texas. And finally: what underappreciated Americans do Epstein and Yoo want to see take their star turn on the Fourth of July (don’t worry — it turns into an opportunity to throw shade at 19th century presidents). All that and more in this week’s Law Talk!
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I didn’t notice Professor Yoo’s right hand. I just didn’t.
Yee-haw!
Yoo couldn’t be more wrong about leaving life time appointment in place… It’s not the success you make it out to be …
I was going to say he looks like he’s enjoying it a little too much.
Thank you very much for this podcast. Ever since the Supreme Court issued its rulings last week, I have been hitting the refresh button for this podcast. At last I have been amply rewarded for my rat like behavior. And it did not dissapoint – it was both on point and elucidating. Thank you.
What sort of editorial process do SCOTUS opinions go through? I assume (correctly?) that those joining an opinion have some input to the wording. But the Kennedy gay marriage opinions surely could have benefited from an editor. Is anyone empowered to say things like “maybe we should tone this down a bit (the irrational animus of the DOMA opinion)” , or “this sounds good but what might it mean? Could you be a a little clearer?” or “This is too much purple prose for a legal opinion.” Or (heaven help us) is what we see what is left after such internal criticisms/editing?
I also assume these people talk to each other, so the views of the dissenters would be known to the writer of the majority opinion, and thus might be addressed (preemptively, as it were). This s doesn’t seem to happen (at least not consistently).
And while we’re at it, though we all love Scalia’s effective use of sarcasm, does it have any place in a legal opinion? Presumably Harvard & Yale teach legal writing. How would Scalia’s sarcasm be greeted in an academic environment?
How would academics like Justice Scalia? Rendered breathless, no doubt. They stand for very different understanding of the law & that on one side, at least, understanding the laws requires the kind of attachment that issues in contempt for people who think cunning lawlessness is better than law-
Professor Yoo said conservatives are overreacting, and that we should follow the example of the pro-life movement and the regulations it has successfully imposed on abortion at the state level.
First of all I question whether the pro-life movement has been as successful as he seems to think. Yes, we’ve moved the needle of public opinion somewhat, but the few legislative victories like banning partial birth abortion were more symbolic than substantial, as the affect only a tiny number of the million plus abortions per year. The primary goal of the movement is to overturn Roe v. Wade and return power to the states to regulate (or outlaw) abortion, and so far this has failed — despite the fact that Republicans have nominated the majority of the justices on the Court.
But even setting that aside, Roe created a complex framework of trimesters that permitted states some leeway to regulate abortion in the later stages. Is there any sort of regulation or restriction a state could conceivably put on SSM that the courts would uphold? I’d like to hear some specific proposals from Prof. Yoo, because to me the analogy makes no sense at all.
I don’t believe, strictly speaking, that packing the courts is unconstitutional. The number of supreme court justices is set by the congress and has varied in the past.
Question: assuming congress reduced the number of justices who decides who stays and who goes?
I do not believe the Congress has the power to remove justices otherwise than by impeachment. Reducing the number would mean not replacing some number of justices who die or retire–of course, the legal forms & the popular support implied in the act of changing the number of justices might persuade some or all to retire-
Well, I understand judicial impeachment to be a dead letter for the past two hundred years, but I have some suggestions…
Wasn’t it used in the LBJ days? Well, it was threatened, so Justice Fortas unjusticed himself–or divested himself of justice–or however you like to put it. But yes, there is far more to be done!
Merely the threat of packing the court got FDR the result he wanted (the “switch in time that saved nine”). I suspect that if enough conservatives merely threatened to try to pack the court and/or impeach a liberal justice next time we had the power to do so it might sway the direction of the Court — especially Chief Justice Roberts, whose overriding goal seems to be to protect the Court’s reputation and try to make it less politicized.
On the podcast Prof. Yoo speculated that all the criticism and political attacks on the Court from the Obama administration and the liberal media have swayed Roberts’ votes on Obamacare and other cases. If he starts to hear the conservative base crying out for Court packing schemes, defunding the Court, and so on, and a few GOP candidates like Cruz voicing support for these ideas, I think that alone could push him back in the other direction on future votes — but only if he takes this as a serious threat.
Did not FDR get to appoint eight justices? SCOTUS really got the measure of American democracy & said, thank you, sir, may I have another?
It’s not enough to threaten–conservatives need to become far better at coalition building. Winning an election & losing the next is just not enough-
Some good points sent in from a lawyer on this episode: