It’s weeping and gnashing of teeth for David in today's podcast as the Supreme Court deals a devastating blow to his dreams of abolishing qualified immunity. But Sarah saves the AO crew from despair by conducting another Supreme Court symphony regarding the Biden commission. Come for the despair, stay for the analysis, and relish a deep dive into Supreme Court reform.
Show Notes:
At some point toward the end of the podcast, David French noted that customs and practices of SCOTUS are not explicit rules and--I think--seemed to suggest that they ought to be.
Even as a non-lawyer, I can appreciate why that might be the case in a courtroom. However, I am generally fond of custom and practices that are so universally accepted that they do not require a formal rule. Here are some examples of what I mean:
-The Hoover Institution Fellow Niall Ferguson has written that it was the effective replacement of financial industry norms with financial industry rules that helped facilitate the Great Recession. Bankers stopped asking "is this right" and started asking merely "is this compliant." Written rules might be more open to efforts to game them than mere "this is the way we do things" norms. Google "Governor of Bank of England eyebrows" to see how customs used to work to restraint risky and imprudent decisions.
-Yuval Levin has written and spoke about the needs for people to conform the institutional norms. SCOTUS has allowed a set of norms and customs to build up around how it does things, and I think its perhaps more valuable as a culture-building and expectation-setting tool to have those things exist informally than formally.
Because SCOTUS Justice have, by and large, conformed to the norms of their institution, they have avoided the sort of institutional degradation we see in the Congress, where members game the written rules and ignore longstanding customs and courtesies.
In my view, so long as the Court functions under a system of norms and courtesies, there's little reason to make the "not rules" into "rules."
Am I wrong? Missing something? Overblowing French's comment? Listening to too much Yuval Levin and Jonah Goldberg?
Please record the AMA, David, and post it on the site for those of us who might miss it! I’d like to submit a question: who was the second guest from the week where Sarah was gone and will you have this person on a future podcast to have the conversation you were going to have?
To Sarah’s point at the end: I might support making it slightly easier to amend the Constitution. But on the whole I think it’s better to have a difficult amendment process. When we amend the Constitution, that should mean something! Thomas Jefferson may have founded the greatest public university in America, but he was wrong that the Constitution should be rewritten every generation. An amendment process that is too easy will result in the kind of wild swings we saw with Prohibition/18th and 21st amendments.
That said, I would love to hear what other amendments David and Sarah would support. Sounds like a good 3/4 baked ideas podcast to me!