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What if we just took the politics out of politics


A little historical knowledge can be a dangerous thing:

As a constitutional law scholar who has written extensively about the Supreme Court, I believe there is a ready solution to this exclusion of minority viewpoints. Drawing from the example of jurors and the history of the court between 1801 and 1940, the justices could decide their cases by a unanimous vote.

Criminal juries decide their cases unanimously, and studies demonstrate that, as a result, the majority gives greater consideration to minority viewpoints. Those in the minority participate more in the jury’s deliberations, and their perspectives play a greater role in shaping the jury’s decision.

The Supreme Court also could ensure minority participation by deciding its cases unanimously.

Between 1801 and 1940, the high court generally decided its cases with a single, consensus opinion. As Chief Justice John Marshall recognized in 1801, the court strengthens its authority when it speaks in a unified voice. Hence, he established a norm for the court of consensus decisions.

Wow! Maybe the justices could go back to all living in the same boardinghouse and hashing out cases over 5-maderia dinners too, just like they did 200 years ago!

Anyway, I’m amazed nobody has thought of this before. All we need is a “compromise” between Clarence Thomas’s position that Section 2 of the 15th Amendment was a drafting error and Sonia Sotomayor’s view that Section 4 of the Voting Rights is obviously constitutional that everyone can agree to! Nor can I see any difference between an appellate court and a jury in a criminal case. I see no flaws whatsoever in that plan!

“Political conflict can go away if we just wanted it to go away” is the most useless genre of punditry there is, but it never dies.

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