Presidential Commission on the Supreme Court of the United States
meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”).
- ↑ See Alison Gash & Angelo Gonzales, School Prayer, in Public Opinion and Constitutional Controversy 62, 68–70, 77 (Nathaniel Persily, Jack Citrin & Patrick J. Egan eds., 2008) [hereinafter Public Opinion] (showing that, in the 1970s, over seventy percent of the public disapproved of the Court’s school prayerdecisions); Amy E. Lerman, The Rights of the Accused, in Public Opinion, supra, at 42–43 (“In many ways,” the Warren Court’s criminal procedure decisions “were out of step with public opinion and may even have shifted public opinion against the Court’s pro-rights position.”).
- ↑ See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (“Separate educational facilities are inherently unequal.”); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963, 1018 (1998) (describing Brown as “[t]he classic example” of a canonical case); Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 381 (2011) (“[T]he constitutional canon” is “the set of decisions whose correctness participants in constitutional argument must always assume. Brown … is the classic example.”). For discussions of the resistance to school desegregation, see Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind 242–314 (2019); Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 290–442 (2004).
- ↑ See, e.g., Obergefell v. Hodges, 576 U.S. 644, 675–76 (2015) (holding that “under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of” the right to marry); United States v. Windsor, 570 U.S. 744, 774–75 (2013) (holding invalid the Defense of Marriage Act, which allowed states to refuse to recognize same-sex marriages that were lawful under another state’s law); United States v. Virginia, 518 U.S. 515, 556–58 (1996) (holding that a state university could not lawfully exclude women).
- ↑ See Reynolds v. Sims, 377 U.S. 533, 568 (1964) (establishing the one-person, one-vote rule for legislative apportionment).
- ↑ Siegel Testimony, supra note 109, at 20 (“Repeated Court-packing, or repeated threats of it, would make it increasingly difficult for the Supreme Court to perform functions that no other governmental institution is likely to perform better.”).
- ↑ See Guillermo O’Donnell, Delegative Democracy, 5 J. Democracy 55, 55, 60 (1994) (asserting that elections, when elections exist at all, in political systems where courts are treated as “nuisances” and “impediments” to be overcome, “are [] very emotional and high-stakes events: candidates compete for a chance to rule virtually free of all constraints save those imposed by naked, noninstitutionalized power relations”); see also Whittington, supra note 70, at 2134 (asserting that Roosevelt’s 1937 “Court-packing plan might have indicated that the President no longer took constitutional constraints seriously, that the Constitution was suffering a crisis of fidelity.”).
- ↑ Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. 148, 181 (2019); see also John O. McGinnis, Justice Without Justices, 16 Const. Comment. 541, 541 (1999) (making a similar proposal with six- to twelve-month stints on the Court); Greene Testimony, supra note 100, at 17 (“[T]he suggestion is for a 16-member Court whose members serve 16-year terms and are drawn from what are now designated as the courts of appeals. … [T]he first step in the proposal would be to expand the formal size of the Supreme Court to equal the size of the Article III appellate bench—currently 179 authorized positions. … The second step would be to enact, via statute, an appointment procedure that would designate which judges of the formally expanded Supreme Court exercise the powers of the functional Supreme Court. The remaining judges of the formal Supreme Court would exercise roughly the same powers, including appeals of right from federal district courts, that the courts of appeals enjoy today.”).
- ↑ E.g., Jack Balkin, Don’t Pack the Court. Regularize Appointments, Balkanization (Oct. 5, 2020), https://balkin.blogspot.com/2020/10/dont-pack-court-regularize-appointments.html.
- ↑ E.g., Bruce Ackerman, Trust in the Justices of the Supreme Court is Waning. Here are Three Ways to Fortify the Court, L.A. Times (Dec. 20, 2018, 3:15 AM), https://www.latimes.com/opinion/op-ed/la-oe-ackerman-supreme-court-reconstruction-20181220-story.html.
- ↑ See Epps & Sitaraman, supra note 145, at 193.
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