Dana Blankenhorn

Solving the Barrett Problem

The problem of Amy Barrett is solvable.

You don’t have to increase the size of the Supreme Court. Congress can simply create an “emeritus” class of Supreme Court justices.

Any justice age 70 or over becomes “emeritus.” They no longer sit in the chamber during arguments. They no longer must live in Washington. They can advise during arguments, they can file briefs on cases, and they can act as District Court judges when needed. Richard Posner did this in the case of Apple vs. Motorola, telling both sides they had lost. Emeritus judges can also work on their legacies, something they can’t do now. They can take gigs at law schools, or at law firms.

Right now, 3 justices are 70 and over – Stephen Breyer, Clarence Thomas, and Samuel Alito. Under this Judiciary Act of 2021 they would automatically go to emeritus status, with all the perks and opportunities that provides. Younger justices may also choose to retire early. I suspect a “former Supreme Court justice” can make a pile of coin.

Then you appoint replacements. Get two young progressives in for Thomas and Alito to balance the court. Maybe toss Republicans a bone and name Merrick Garland to the third seat.

This assures a steady flow of judicial appointments to every President. It means the court can be renewed continuously, as it should be. The idea of sitting for decades to scratch an ideological itch is ridiculous. A judge is not supposed to care who wins.

The authority of the President and the Congress in this matter is unquestioned. The first Supreme Court, under John Jay, had just 6 justices. Those jurists also had to “ride circuit,” hearing appeals. That’s why our regional appeals courts are called “circuit” courts. The current count of 9 came about in 1869, after Republicans had cut the number to 7, to keep Andrew Johnson from appointing any.  (That law also established the circuit courts.) 

This isn’t “court packing.” If anything, it’s court unpacking. If we get a solid Senate majority, I’m guessing some Republicans will support it. Then we go about increasing the number of District and Circuit court judgeships, to reduce the present backlog of cases. That’s how you balance those courts ideologically.

This is a quick, even fair way of making a one-time reform to the courts and reducing the ideological temperature. You’re appointed for life but go on emeritus status at 70, or whenever you feel ready. You remain useful in that position for life, able to discuss and dispose on legal issues as they come up.

Biden’s Solar Problem

Assuming Joe Biden wins Tuesday, he has a problem.

If he doesn’t win, America and the world have a bigger problem, one I don’t think we can overcome. So, let’s assume the world goes on for a moment.

Joe’s solar problem is something the computer industry faced around the time when I was becoming a reporter, in the late 1970s. Until then, computers were capital goods. They were either leased or purchased over time with loans. Even my first PC purchase, in 1982, was with a loan.

Loans and leases built a business model that was smashed by the PC era. Both loans and leases carry huge external costs and margins. My Massapequa neighbors had nice houses and cars. Their fat sales or engineering salaries were paid for by IBM customers, who compared the cost of having IBM handle their problems to the cost of doing things manually and signed their names to lines that were dotted.

In 1981 IBM didn’t just start selling a PC. It became a computer products company. It licensed the likeness of Charlie Chaplin, who had died in 1976, from his estate. It used the rose he offered his amour in City Lights, painting it a bright red. Then it distributed the PC through computer stores, who placed it on shelves alongside the printers and other peripherals. By the 1990s you wouldn’t think of hiring a “computer specialist” to sell you stuff, unless we were talking about a networking expert who got his own hands dirty.