Let’s Talk About How Truly Bizarre Our Supreme Court Is

Legal scholar Jamal Greene shares a “radical proposal” to reform the US Supreme Court and how the US recognizes human rights, on The Ezra Klein Show.

Actually, Greene shares several.

First, he says, the US has the wrong idea about human rights. We recognize only a few, consider each one of them absolute, and only recognize a human right when it is enforceable by government.

This results in a situation where drug companies enjoy an absolute right to perform data mining on private healthcare information, and then use that data to market to doctors. But people don’t have the right to food and shelter, Greene says.

Instead of the US system, Greene recommends how other nations recognize human rights—that there are many rights, and many are in opposition to each other. Germany recognizes fetal right-to-life but also recognizes women’s healthcare autonomy. This, says Greene, results in abortion laws that right-to-life and pro-choice groups had to compromise to achieve, and which are therefore more stable and less incendiary. Some matters should be decided politically, and not by courts.

He also recommends expanding the size of the Supreme Court, putting 10-year term limits on judges, and having only a subset of the judges rule on each case, in order to reduce power for each individual judge. These reforms would make the stakes for each individual judicial appointment less high.

Good recommendations,but right now the priority seems to be stopping the US from turning into a dictatorship or tearing itself apart in civil war. Supreme Court reform can come later.


“Getting race wrong early has led courts to get everything else wrong since,” writes Jamal Greene. But he probably doesn’t mean what you think he means.

Greene is a professor at Columbia Law School, and his book “How Rights Went Wrong” is filled with examples of just how bizarre American Supreme Court outcomes have become. An information processing company claims the right to sell its patients’ data to drug companies — it wins. A group of San Antonio parents whose children attend a school with no air-conditioning, uncertified teachers and a falling apart school building sue for the right to an equal education — they lose. A man from Long Island claims the right to use his homemade nunchucks to teach the “Shafan Ha Lavan” karate style, which he made up, to his children — he wins.

Greene’s argument is that in America, for specific reasons rooted in our ugly past, the way we think about rights has gone terribly awry. We don’t do constitutional law the way other countries do it. Rather, we recognize too few rights, and we protect them too strongly. That’s created a race to get everything ruled as a right, because once it’s a right, it’s unassailable. And that’s made the stakes of our constitutional conflicts too high. “If only one side can win, it might as well be mine,” Greene writes. “Conflict over rights can encourage us to take aim at our political opponents instead of speaking to them. And we shoot to kill.”

James Fallows: The filibuster is a perversion of the Constitution

Fallows, on his Breaking the News Substack

1. The filibuster is not in the Constitution.

2. Its modern abuse realizes the founders’ greatest fears.

3. We are living through a super-cynical, stealth version of the filibuster.

4. Let’s at least force its abusers out into the light.

The Founders explicitly required a majority vote in the Senate, not a supermajority. The Founders acted after 13 years under the Articles of Confederation, which required a supermajority, which nearly destroyed the US—just as the US is teetering on the verge of destruction today.

We no longer have even a “talking filibuster,” as in the movie “Mr. Smith Goes to Washington.” Instead, any Senator can simply and silently force a supermajority vote on any measure—and they routinely do. This is great for the minority party, because it operates from stealth and shadows. The majority party gets all the blame for gridlock and failure, even though it’s the majority party that’s at fault.

Quick hits 2 — Wes Anderson, the mass-murdering Sacklers, California broadband deal, and voting rights

Wes Anderson’s ode to print journalism is a periodic delight. By Peter Bradshaw at The Guardian — Wes Anderson’s latest, “The French Dispatch,” is about 20th Century American journalism, features a French town called “Ennui-Sur-Blasé,” and the cast includes Bill Murray and Frances McDormand. I love it already! Also, this review includes the words “pasticheurs” and “feuilleton.”

— Cory Doctorow: The mass-murdering Sacklers will get to keep billions, thanks to their skill at shopping until they find a corrupt judge.

Governor, Legislative Leaders Reach Deal on $5.25 Billion California Broadband Expansion. By Chris Jennewein at the Times of San Diego — “Gov. Gavin Newsom and the leaders of the Senate and Assembly reached a deal Monday to spend $5.25 billion expanding California’s broadband internet connectivity for families and businesses.”

Vox explains the GOP voting bill that literally caused Texas Democrats to flee the state. By Ian Millhiser — The Texas GOP wants to make it harder for people to vote, make it harder to eject partisan poll-watchers who disrupt the electoral process, and impose draconian penalties for minor violations of voting laws, to prevent repeating imaginary voter fraud.

Biden Labels GOP Voting Laws Greatest Threat to American Democracy Since Civil War. By Zachary Evans at the National Review — “‘The Confederates, back then, never breached the Capitol as insurrectionists did on January the 6th,’ Biden said…. ‘I’m not saying this to alarm you; I’m saying this because you should be alarmed.’”

Trump to sue Facebook, Twitter CEOs over being banned from their platforms


WASHINGTON — Former President Donald Trump said Wednesday that he is filing a class-action lawsuit against tech giants Facebook and Twitter — along with their CEOs, Mark Zuckerberg and Jack Dorsey — because of bans imposed on him and others.

“We’re demanding an end to the shadow banning, a stop to the silencing, a stop to the blacklisting, vanishing and canceling,” Trump said at a news conference in Bedminster, New Jersey, adding that “we are asking the court to impose punitive damages.”

He spoke from behind a lectern bedecked with an insignia designed to look like the presidential seal and in front of a backdrop reminiscent of a White House portico.

Trump argued that the suspension of his social media accounts amounts to an infringement on the First Amendment’s guarantee that speech won’t be curtailed by the government.

Fundamental to that case is his relatively novel contention that the major tech firms function as arms of the federal government rather than as private companies.

“novel” = “completely bonkers.”

Republicans support freedom of speech so long as you exercise that freedom in ways they approve.

The Supreme Court says it’s not a violation of the Computer Fraud and Abuse Act to use your lawful access to a computer for unlawful purposes.

Supreme Court limits reach of computer crime law

Pete Williams at CNBC:

The case involved a former police sergeant in Georgia who was offered money to look up a driver’s license record. A man said he’d pay around $5,000 for information about the record of a woman he thought might be an undercover officer.

It turned out to be an FBI sting. After the policeman used a patrol car computer terminal to look up the record, he was arrested and charged with violating the 1986 Computer Fraud and Abuse Act. That law makes it illegal ‘to access a computer and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.'”

Mark Rasch, a former Justice Department computer crimes prosecutor, said the police officer could still be charged with other crimes, such as embezzlement or theft.

Interesting case. My first impression is it decriminalizes things that should not be covered by criminal law. As the ruling notes, the broader reading of the law would “attach criminal penalties to a breathtaking amount of commonplace computer activity,” such as using a work computer to send a private e-mail.

“Rasch agreed. ‘The court had a choice between two readings of the statute. One would have made the majority of people who use the Internet into criminals. The other would not. It chose the latter.’

“Justice Clarence Thomas dissented, in an opinion joined by Chief Justice John Roberts and Samuel Alito. They said the majority’s ruling means the law would not apply to a computer technician who has authority to access a celebrity’s computer to fix a defective hard drive and who then copies and leaks pictures stored on the computer.

Shouldn’t offenses like that be covered by more narrowly focused laws?