Kagan, COVID, Expanding SCOTUS

(Originally a Twitter thread.)

From Slate: Elena Kagan warns the Supreme Court’s new California COVId decision may kill people.

This is why we lack time for a 180 day thinking period on the USSC. 5 members are radical hard right Catholics. They are extremist activists far outside of mainstream.

The Supreme Court has had 9 members since just after the Civil War, when the US was about 38 million people. In simple population terms, SCOTUS (and the Federal Courts) are about 1/10th the size they should be, given population growth. But population isn’t the best metric here.

The SCOTUS & Federal case load has grown exponentially since the 1870s. We’re a more complex nation. Just think on financial crimes — money laundering didn’t exist. Income tax evasion didn’t exist. Wire fraud didn’t exist. Insider trading was normal. Counterfeiting was rampant.

Now multiply times everything.

Voting rights.
Civil rights.
Access to participate in civil society, from a right to education through right to a peaceful end of life.
Rights to the courts.

It should not take most of a decade for a case to reach the Supreme Court, but it does.

Adding 4 Justices is a bare minimum of what we need. We also need about 500 more federal judges, spread over the whole system. And probably 1000 investigators (who are not cops, whose job is to gather & preserve evidence for both sides) and an equal federal defense system…

We’re operating with a Victorian court system in a CRISPR world. (Hell, the rules of how scientific evidence works — and is admitted, and more importantly, discarded — is FUBAR’ed all by itself.) We definitely do not need Opus Dei’s version of religious courts in the majority.

We also have a real problem with regional representation (which matters since SCOTUS assigns a member to each federal court district). We’re a majority moderate-left country in population and in number of states, with a hard right senior judiciary. Big problem.

Because you know who we should not trust to take cases originating in Dearborn (highest per capita Muslim population) or Minneapolis (Hmong population base)?

Amy Barrett. She doesn’t behave like she believes they’re equal citizens with full rights to have their faith protected.

It’s not always about which cases come before the court — it’s also about which ones they don’t take. Think about a French no head coverings rule in a school district. The board’s real purpose being to push out Muslims, Amish & Jews, but they say it’s to prevent gang activity.

Extremist Christians tend to be fine with that. (Extremist Christians often don’t much like Amish anyway.) And don’t see how it could possibly be an imposition. So Amy Barrett would ignore it, and that school district gets away with religious persecution.

Last thing: it took Plessey v Ferguson 4 years to make it to the Supreme Court. Baker v Nelson (which Obergefell overturned) took 1 year in 1970-71. It took 6-7 years for most of the Obergfell cases to reach SCOTUS… and a bunch of them were fast tracked.

See the problem?