Jeff Jacoby

How not to fix the Supreme Court

FILE - In this Tuesday, Jan. 30, 2018 file photo, U.S. Supreme Court Chief Justice John Roberts listens as President Donald Trump delivers his first State of the Union address in the House chamber of the U.S. Capitol to a joint session of Congress Tuesday in Washington.
Win McNamee/Pool via AP
Chief Justice John Roberts listens as President Trump delivers his first State of the Union on Jan. 30, 2018.

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As soon as Justice Anthony Kennedy announced his retirement from the Supreme Court, the predictable teeth-gnashing began. Abortion! Conservative majority! But Merrick Garland! Stare decisis! With President Trump scheduled today to nominate Kennedy’s successor, the frenzy is about to ramp up into overdrive. Before this is over, you will be bombarded with more frantic warnings than you can count about the dystopia that looms if Trump’s nominee is confirmed. Jeffrey Toobin didn’t even wait for Trump to make a choice before enumerating, in the current New Yorker, all the terrible things it will mean “if such a nominee is confirmed” and the court’s “brazen conservative majority” gets to work.

It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend elite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.

Toobin was in such a hurry to set his parade of horribles a-marching that he left out a few old favorites, like the segregated lunch counters and the rogue police breaking down doors.

So far, so familiar. Left-wing panic has become customary whenever a high court vacancy is to be filled by a Republican president. And when a seat opens up during a Democratic administration, unpleasantness has been known to come from the right.


Judicial confirmations wouldn’t be this fraught if justices weren’t appointed for life. The Constitution’s framers thought life tenure was necessary to ensure judicial independence, but they didn’t foresee how immensely powerful the Supreme Court would become. Nor could they have predicted that the American life span, which averaged around 40 years in their day, would lengthen so dramatically over ensuing generations. Had the framers known in 1787 that the typical justice would hunker down on the court for two or three decades, often into advanced old age with all its deteriorations, would life tenure have struck them as such a good idea? I’d guess not.

So what can be done to fix the problem? One really bad answer to that question has popped up in the last few days from a number of left-wing pundits calling for a revival of one of the worst ideas of 1937: a court-packing scheme.

In articles bearing headlines such as “In Defense of Court-Packing” and “Democrats: Prepare to Pack the Supreme Court,” these writers urge the anti-Trump opposition in Congress to bide its time until it can enact legislation enlarging the size of the Supreme Court. There is no constitutional requirement that there be nine justices; the size of the Supreme Court (and every other federal court, for that matter) is dictated merely by statute. So as soon as Democrats win control of Capitol Hill and the White House, they can dilute Trump’s legacy by passing a bill to add a few seats to the Supreme Court.

Here’s how one writer makes the case at The Outline:

Under a Democratic president, Democrats in Congress should increase the number of Supreme Court seats to at least 11, and the new president should immediately fill those seats with new justices who are the ideological mirror image of Gorsuch. In future elections, Democratic voters should expect nothing less than this from their party if they want to have any hope of preserving their rights. While court packing might sound extreme, it is the only reasonable course of action under the circumstances, and it should be the default position for any Democratic politician interested in actually representing his base.

Presto change-o! The problem of a conservative majority on the Supreme Court is “solved.” Instead of waiting for vacancies to open up, just create new ones for the next liberal president to fill. Then any rulings that Democrats didn’t like can be promptly overruled by the new liberal majority.


There’s only one problem with this scheme: It’s completely nuts. It would subject the Supreme Court to eye-for-an-eye enlargements every time the party in power changed, destroying its dignity and jurisprudential authority and making a mockery of judicial independence. If even the great FDR couldn’t get away with such nakedly political manipulation — it was opposed by a majority of both the public and the Democratic-controlled Congress — how likely is it that a Democratic president in modern times would get away with it?

There is a much better way to cool down the superheated atmosphere generated by a Supreme Court vacancy: Amend the Constitution so that justices are appointed for a fixed term instead of for life. It would not be easy to get an amendment ratified, of course. But there is no reason why a broad bipartisan consensus couldn’t be forged in support of ending life tenure on the nation’s highest court. Unlike court packing, fixed terms would be designed to improve the judicial branch, not to advantage one political camp over another.

Legal experts have spoken warmly of the idea. “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence,” wrote John Roberts, the future chief justice, when he was an attorney in the White House counsel’s office during the Reagan administration. “It would also provide a more regular and greater degree of turnover among the judges.”

Naturally Roberts walked back that view when he was nominated, years later, to be chief justice. But his initial take was sound.

It isn’t hard to imagine a system in which Supreme Court justices are appointed to staggered 18-year terms, with a new member being appointed in the first and third year of every presidential quadrennium. That would transform vacancies from rare, high-stakes flukes to habitual occurrences, similar to openings on the Federal Reserve Board. It would give each president the certainty of naming at least two jurists to the high court (four when a president wins a second term). With the political composition of the court shifting regularly, its members would mirror the political orientation of the White House and the Senate more faithfully — i.e., more democratically — than it does now. Since everyone would know that the next SCOTUS vacancy was never more than two years away, Supreme Court confirmations would no longer be fights to the death.


Polls suggest that Americans would support a term-limits amendment for Supreme Court justices. If a pair of respected leaders from across the political divide — say, former presidents George W. Bush and Barack Obama — were to join in promoting the idea, it might well have a strong chance of passage in Congress and ratification in the states.

Americans gain nothing from the unhealthy fear that makes Supreme Court nomination contests such frantic, bitter affairs. Fixed terms, by making nominations an ordinary feature of every presidential administration, are the best way to dispel that fear and eliminate the rage from Supreme Court confirmations.

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Crown thy good with brotherhood

Hey, America, who’s proud of you?

Republicans, mostly.

According to Gallup’s latest survey of patriotism in the United States, released just before Independence Day, 74% of respondents who identify themselves as Republican say they are “extremely proud” to be Americans. Among Democrats, only 32% express a similar degree of pride in their country. That’s a 42-point gap — the widest Gallup has ever measured.

Politics being what it is these days, it might seem logical that this stark partisan divide is just another reflection of how Donald Trump has polarized American culture. But Gallup’s findings say otherwise. To be sure, the number of Republicans who are extremely proud to be American has ticked up a few points since Trump became president. But even at the height of Barack Obama’s presidency, Republicans were far more likely than Democrats to express pride in their country. Five years ago, early in Obama’s second term, 71% of Republicans told Gallup they were extremely proud to be American, while only 56% of Democrats felt the same way. At no point during the Obama years did fewer than 68% of Republicans call themselves “extremely proud” to be American. Democrats haven’t come close to meeting that mark.

Change the focus from party (Republican/Democrat) to ideology (conservative/liberal), and the contrast is equally striking. According to Gallup, 65% of conservatives are extremely proud to be American. Of liberals? Just 23%.

Gallup has been calling attention to this phenomenon for some time. When it released its survey results a year ago, its news release was headlined “Sharply Fewer Democrats Say They Are Proud to Be Americans.” Two years ago, Gallup reported: “Political liberals join young adults as the least patriotic major subgroup today.” Three years ago: “Sixty-eight percent of Republicans say they are extremely proud to be an American, much higher than the 47% of Democrats who say the same.”

It should go without saying, but I’ll say it anyway, that there are certainly many Democrats and liberals who are proud to be American. Patriotism and love of country isn’t the exclusive property of one political party or ideology. Nevertheless, Gallup’s numbers don’t lie. Americans who lean to the right are more likely to express pride in their country; Americans who lean to the left aren’t. As her husband racked up primary victories during his 2008 presidential run, Michelle Obama famously announced that it was only then, “for the first time in [her] adult life,” that she was “really proud of [her] country.”

What has happened to the left? Why do so many liberals see America in such disparaging terms? On the Fourth of July, the Democratic National Committee couldn’t quite bring itself to rejoice in America’s ongoing experiment in liberty and self-government. Instead it issued what could only be called a statement of mourning. Lamented the DNC:

As we celebrate our nation’s independence, we recognize that America’s founding promise remains out of reach for too many families. Too many members of our society are still struggling to find a good-paying job or get the health care they need. Too many women, LGBTQ Americans, people of color, and people with disabilities still face inequality and injustice across our society.

Everywhere we look, our most fundamental values are under attack.

It wasn’t all that long ago that even the most passionate liberals, eyes wide open to America’s shortcomings, nevertheless regarded the United States and the history-changing promise of its Founding with love and hopeful pride. Consider the Rev. Martin Luther King Jr. If ever an American liberal could enumerate in devastating detail all the ways in which America had fallen short, it was King. Yet his awareness of America’s shameful lapses never led him to question America’s essential goodness, or to doubt that if its conscience were aroused, it would live up to its great creed of liberty and justice for all.

Over and over, King celebrated what was best in the American tradition.

“I accept this award today with an abiding faith in America,” he said upon receiving the Nobel Peace Prize. At the great March on Washington in 1963, he anticipated the day “when all of God’s children will be able to sing with new meaning, ‘My country ‘tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the Pilgrims’ pride, from every mountainside, let freedom ring.’”

On the last day of his life, in the last public remarks he ever made, Dr. King, great patriot that he was, reminded his listeners that those who struggled for civil rights “were really standing up for the best in the American dream, and taking the whole nation back to those great wells of democracy which were dug deep by the Founding Fathers.”

It is possible to see everything that is wrong with America, yet still be proud because of everything that is right. Why have so many liberals and Democrats grown unable to do so?

Writing in Newsweek, the conservative commentator Ben Shapiro reflected on what has been lost on the left:

Perhaps it’s a sense of national mission. More likely, it’s a sense of national goodness. Republicans tend to tell the American story in one way, Democrats in another. Republicans see the story of America as that of a nation conceived in freedom but flawed in its implementation of it — a nation constantly striving to live up to its founding vision. . . .

Democrats, by contrast, see America as a country founded in slavery and bigotry, in repression and greed, perfected over time through public action. For Republicans, the Civil War was an attempt to live up to the Constitution’s ideals; for Democrats, the Civil War was an attempt to rewrite the Constitution entirely. For Republicans, racism is a horrible part of our past and present, but we can work to rise above it; for Democrats, racism is a part of our American DNA, as Barack Obama put it. This has significant ramifications in terms of patriotic feeling.

Among those ramifications is how the younger generation is taught to regard American icons and traditions. “Republicans and Democrats teach their children differently,” Shapiro remarks. “Symbols of America make Republicans proud; they make Democrats a bit more trepidatious, as a general rule.” He cites a 2011 Harvard University study, which found that children who attended Fourth of July parades were measurably more likely to vote Republican when they became adults.

“Democrats think Donald Glover’s ‘This is America’ is America,” writes Shapiro. “Republicans think Lee Greenwood’s ‘God Bless The USA’ is America.” Of course he is generalizing. But if Gallup’s trendlines are correct, those generalizations aren’t so far off the mark.

Those generalizations should concern all Americans of goodwill. What happens to a nation when half its people no longer can muster up the national pride and love that their parents or grandparents would have taken for granted? If honest patriotism disappears from the left, what will take its place? If tens of millions of Americans are unable to summon pride in their country because it has gotten many things wrong, what will sustain its ability to go on getting so many other things right?

Republicans and Democrats have always disagreed with each other. But at least pride in America used to unite most of them. If we no longer have even that in common, boy, are we in trouble.

The day I shook Claude Lanzmann’s hand

Claude Lanzmann, the renowned French writer and filmmaker, died last week at 92. His 1985 documentary “Shoah” was an extraordinary work of history and art, a 9½-hour movie about the Holocaust that used the testimony of living witnesses — perpetrators, survivors, and, most chilling of all, bystanders — to tell the story of the Nazi genocide in a way it had never been told before.

I met Lanzmann once, just long enough to be introduced and shake his hand. Here’s how it happened.

It was in the late 1980s, and I was visiting Israel on a reporting trip. I had had reached out to Uri Dan, the veteran Israel journalist whose work often appeared in the Boston Herald and New York Post. Dan was one of those reporters who seemed to know everyone and everything — he was particularly close with Ariel Sharon, whose crossing of the Suez Canal he had covered as an embedded journalist during the Yom Kippur War — and I was hoping for some advice on covering the First Intifada, which was then raging in the Gaza Strip and the West Bank. When I got him on the phone, he instantly agreed to see me, and told me to join him at the King David Hotel in Jerusalem for coffee the next morning.

When we met the next day, he insisted that we drink our coffee not in the hotel restaurant, but in the middle of the King David’s lobby.

“There are two ways for a journalist to meet people in Israel,” Dan told me with the air of one imparting a hard-won secret of success. “You can run all over the country trying to track them down,” he said. “Or you can sit in the lobby of the King David Hotel and wait for them to come to you.”

So we sat there with our coffee for about 45 minutes, during which, sure enough, one eminento and newsmaker after another appeared: members of parliament, Army generals, a Jerusalem Post editor. Some of them stopped to chat with Dan; others he intercepted. Of the people he introduced me to that morning, I remember the names of only two. One was Shimon Peres, who was then Israel’s finance minister. The other was Claude Lanzmann.

My conversation with Lanzmann lasted all of about 90 seconds. I praised “Shoah,” and told him that I had had to take off two afternoons from work to go see it (at the old Nickelodeon cinema in Boston). He nodded politely, and that was that.

Site to see

Amid the internet’s vast ocean of drivel, some websites are alluring islands of knowledge and discovery. Each week, in “Site to See,” I call attention to one of these online treasures.

This week’s site, The Ultimate History Project[URL: http://ultimatehistoryproject.com ] is a compendium of lively, short-form history articles on scores of interesting and quirky topics. As best as I can tell, the site has not been added to since 2014, and some of its links no longer work. But for anyone interested in browsing through history high and low, it remains an eye-catching candy shop stocked with, in the editors’ words, “cutting-edge historical scholarship intended for everyone.”

Entries are organized in 17 categories ranging from “Armed and Dangerous” to “Places of the Past.” The only thing they all seem to have in common is that the topic intrigued a historian enough to research it and write it up. Here, from the category labeled “Disaster!” is an excerpt from an article on “Boston’s First Big Dig.”

On March 4, 1897, James Hardeman hopped on an electric streetcar and headed to downtown Boston. On that cold morning, the electric streetcar that Hardeman boarded had been in operation for nearly 10 years. For Bostonians, commuting on the streetcar had become routine.

In fact, the city’s commuters had become somewhat dismissive of the electric streetcars, with many Bostonians looking forward to the next new thing: an underground railway system which promised to render traffic jams obsolete. In early 1897, Boston city leaders were congratulating themselves on their foresight in constructing what would be the country’s first subway system. The “T,” as Boston’s subway would come to be known, was already nearing completion and would open later that year. . . .

This morning, as the streetcar passed over the site of the subway construction, Hardeman and his fellow passengers caught a whiff of something unusual: the smell of gas.

“The odor was . . . pungent,” he noted later. “I saw the car go up in the air. . . In a second it was in flames.”

The explosion rocked the streetcar, throwing it skyward and bending the trolley tracks on the street. Witnesses later testified that a tremendous boom echoed through the city just before the explosion. Plate-glass windows shattered in almost all the buildings in the immediate vicinity of the eruption. In the nearby Miller Piano Company, pianos vibrated and shook, adding to the din and chaos.

The big news story that day should have been the inauguration of President William McKinley. But the presidential swearing-in was relegated to the back pages as editors tore up Page 1 to report on a calamity ‘neath the streets of Boston. It wouldn’t be the last time.

Recommend a website for this feature! Send me the link and a short description (jeff.jacoby@globe.com), and put “Site to See” in the subject line.


My Sunday column recounted a notable moment in Democratic Party history — Hubert Humphrey’s speech to the 1948 Democratic national convention. It marked the first time the party pried itself from the iron grip of its “solid South,” which had always prevented Democrats from taking a stand against racial segregation. Party elders at the 1948 convention, seeking to nominate Harry Truman for president with no distracting controversy, had tried to steer clear of racial matters. In the platform committee they approved a bland civil-rights plank that said nothing about civil rights. Humphrey, then the young mayor of Minneapolis, decided to fight for something stronger on the floor of the convention. In a dramatic convention speech, he implored a majority of the delegates “to get out of the shadow of states’ rights and to walk forthrightly into the bright sunshine of human rights.” For the first time, the Democrats broke with the South, and made history by embracing — not suppressing — the cause of civil rights.

The last line

“Yes, she thought, laying down her brush in extreme fatigue, I have had my vision.” — Virginia Woolf, “To the Lighthouse” (1927)

Jeff Jacoby can be reached at jacoby@globe.com.