Thursday, September 02, 2021

Not bad

Washington, D.C. and Menlo Park, CA-- Today Facebook and the United States Supreme Court announced a joint venture, the creation of a Supreme Court Oversight Board that will perform tasks that the Supreme Court is no longer able to perform: hearing cases on the merits after full oral argument and briefing, and rendering reasoned opinions explaining its conclusions to the public. 

To this end, the new Supreme Court Oversight Board (SCOBUS) will contract with a group of former judges to do what Supreme Court Justices used to do. The U.S. Supreme Court will continue to tweet out its decisions at or around midnight, and leave it to the new Oversight Board to explain their legal meaning to others and take all responsibility for decisions that people don't like.

"We're extremely grateful to Facebook for suggesting this possibility to us," Justice Samuel Alito explained. "With 60 to 80 cases a year and only four clerks per Justice, we can't possibly carefully consider every case brought before us, much less justify our conclusions. Frankly, we're swamped. Many of us are busy writing best-selling books and doing book tours, which consumes a lot of our time."

"We think that this is a win-win for the Supreme Court," added Mark Zuckerberg, Facebook's founder. "We know what it's like to be a secretive, all-powerful body, accountable to nobody, that holds the fate of countless people in its hands."

I wonder who wrote it. It wasn't Balkin. Or maybe it was. 

And another: Private Enforcement Mechanisms and You

Draft and enact a statute – maybe in CT but no, especially in DC -- that prohibits the expression of anti-choice views and anti-choice advocacy and delegates enforcement of that law to “any person.”  Statutory damages for violation of the statutory would be – let’s go big -- $100,000.  Anyone could then sue Americans United for Life and individuals (politicians) advocating for the overthrow of Roe.   

Or here’s another one. Prohibit entry to the bar to a group of people (you pick) and also prohibit anyone from aiding or abetting a member of that group who is trying to become a member of the Bar.  (See, e.g., Law Schools, Professors, the LSAT people, me – I’m a clinical professor). The law could even be applied retrospectively to members of this group who are members of the Bar.  Delegate enforcement of the law to another specific group of people).  Statutory damages for violation of the law again 100,000.  A form of reparations.

Let’s see how quickly things would change. I suspect the Court would rush to prevent such laws from taking effect. It would decide we need to have a mechanism for enforcement of federal constitutional rights in federal court and states can’t void this mechanism by playing these sorts of games.  Either our interpretation of the 11th amendment must change or the Ex Parte Young doctrine – already a ‘fiction’ after all – must be broadened.  Would they limit these mechanisms to the fancy First Amendment, cuz it’s the most important – it was first, foundation of democracy, etc., etc.  You be the Judge.

new tag for Judicial Review.  a bit late.

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