What progressive judges need to do
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Ryan D. Doerfler of Harvard and Samuel Moyn of Yale are law professors.
A pattern is emerging for liberal dissenters on the Supreme Court. Having lost a case, the justices — Elena Kagan and Sonia Sotomayor, who were joined this term by Ketanji Brown Jackson — warn of the costs of each mistake to the court’s public standing.
As a matter of both principle and strategy, this is the wrong choice for liberals on the court and for audiences tempted to cheer them on. Instead, the left-leaning justices should take a page from conservatives who were once in the minority and who argued that the institution was abusing its power and pre-empting democracy itself.
And the liberal justices should plead for — and thereby help legitimize — the imposition of external constraints on the Supreme Court’s powers.
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What a Black Judge’s family history teaches us that representation matters
At present, Black judges make up 12.77 percent of the federal bench. This is actually, finally, starting to approach adequate representation for Black people in this country, in no small part because President Joe Biden has put forward the most racially diverse set of judicial nominations in history. But for decades and indeed centuries, diversity on the bench has not been anywhere close to where it should be. Donald Trump’s judicial appointees were, recall, 84 percent white.
Diversity matters on the federal and state judiciaries for a whole host of reasons, chief among them that such diversity determines whose stories are told in court and how. As former head of the NAACP Legal Defense and Educational Fund, Sherrilyn Ifill, put it in the New York Review of Books last week, in describing Justice Ketanji Brown Jackson’s questions at oral arguments in October over the future of affirmative action: “It has been a long time since a Black justice on the Court has spoken with such depth and experience about the many ways in which race can be deeply entwined with identity and self-expression.”
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California Bar went after Black lawyers while giving Tom Girardi a pass
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The case was not glamorous, and the clients — 16 homeless people evicted from an encampment — didn’t have money for a retainer, but that was how things went at Chima Anyanwu’s one-man law practice in Koreatown. He agreed to represent the group in 2016, and later that year secured a settlement of $64,000 from the city of South Gate.
Anyanwu paid each client what they were owed, even accompanying one desperate woman to a bank branch on a Saturday to help her cash her settlement check, court records show.
Then the State Bar of California got involved. After receiving a complaint from one client, the agency responsible for policing the legal profession combed through Anyanwu’s files and bank records. An investigator uncovered no evidence of misappropriation but found that Anyanwu, who had gone abroad shortly after the settlement, delayed by five weeks withdrawing from a client trust account $4,000 that he was due in fees in the case.
For this and two other similarly minor violations, the State Bar suspended Anyanwu’s law license for 30 days, placed him on probation for two years, ordered him to retake a professional ethics exam and announced the punishment in a press release published on Facebook and in a legal newspaper.
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The rise of the “imperial Supreme Court”
Less of This Too
The conventional critique of the Supreme Court these days is that it has lurched to the right and is out of step with the public on many issues. That is true so far as it goes.
But a burst of recent legal scholarship makes a deeper point, saying the current court is distinctive in a different way: It has rapidly been accumulating power at the expense of every other part of the government.
The phenomenon was documented last month by Mark A. Lemley, a law professor at Stanford, in an article called “The Imperial Supreme Court” in The Harvard Law Review.
“The court has not been favoring one branch of government over another, or favoring states over the federal government, or the rights of people over governments,” Professor Lemley wrote. “Rather, it is withdrawing power from all of them at once.”
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