A new year is a traditional occasion for taking stock of your conduct and what changes you should make to be your best self. Not so for the legal profession, which is, as Chief Justice John Roberts wrote in his annual report on the federal judiciary, “notoriously averse to change.” This year’s version focuses almost entirely on the advent of artificial intelligence and how it might impact the future of legal work. Conspicuously absent from this glorified judicial Christmas card are more immediate concerns like the Court’s high-profile ethical lapses, historically low approval ratings, or the reactionary Supreme Court decisions that brought those historically low approval ratings about.
Given the Court’s apparent lack of will or ability to engage in meaningful self-reflection, here are a few New Year’s resolutions for the judiciary, any of which would be a worthwhile step towards making the legal system suck a little less in 2024!
1. Get real about the sham of “standing”
In theory, before a court can hear a case, plaintiffs need to establish that they have “standing”—that they suffered an actual injury a court can fix. In practice, standing doesn’t matter if the court is eager to reach a case’s merits. Literally nothing happened to Lorie Smith, for example, a Colorado designer who wanted a preemptive pass to violate state antidiscrimination law on the off-chance that a gay couple ever asked her to design a wedding website. Fortunately for her, the Court’s conservative justices actually gave her (and people like her) one! The Court should resolve to stop hearing fake cases where the only “harm” is “I want to be a worse person.”
2. Remember why the Fourteenth Amendment exists
Congress designed the Fourteenth Amendment to confront white supremacy and eliminate second-class citizenship. But the Court’s recent decision overturning race-conscious admissions programs got this completely, embarrassingly backwards. Going forward, I suggest that judges try memory tricks, like tying a string around a finger, to keep from forgetting that the Fourteenth Amendment exists to end oppression, not entrench it.
3. Preserve one (1) civil right
The judiciary excels at stuff like protecting the ability of employers to squash unions, or state governments to violate federal laws that don’t line up with Republican policy priorities. But when called to protect pregnant people’s right to bodily autonomy, or incarcerated people’s freedom from cruel and unusual punishments, courts fall down on the job. Maybe give protecting an actual civil right a shot this year! Just to see what it feels like!
4. Stop letting James Ho write opinions
Ho, a conservative provocateur who also sits on the Fifth Circuit Court of Appeals, recently argued that doctors have legal standing to prevent their patients from having an abortion if it would give them a case of the sads. “Doctors delight in working with their unborn patients,” Ho wrote, “and experience an aesthetic injury when they are aborted.” His other greatest hits include defending torture, argued that domestic violence protective orders should not be a legal barrier to gun ownership, and generally using his judgeship to further conservative grievance politics. Shutting James Ho up would be a simple but significant step to improving the legal system in 2024.
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5. Stop letting Matt Kacsmaryk write opinions, too
Kacsmaryk is a reactionary blogger who was elevated to a federal district judgeship in 2019 after the Senate rejected him multiple times due to his past (and present) advocacy against LGBTQ people. As a judge, Kacsmaryk has become a forum-shopping icon, as conservative crackpots rush to his courtroom whenever they want to try to outlaw contraception or abortion nationwide. Letting Matt Kacsmaryk make decisions is the sort of bad habit the judiciary should break this year.
6. Become financially independent from the Federalist Society
Judges’ authority comes from public perception of them as impartial decisionmakers. This already requires considerable suspension of disbelief, but disbelief can only be suspended so much when far-right financiers reward their favorite judges for their job performance. A friendly tip for Supreme Court justices is that if you really need someone to arrange a luxury vacation, hire a travel agent who doesn’t have business before you.
7. Stop defining women’s rights based on a time when women had no rights
Originalism, the idea that judges must interpret the Constitution today as Republicans claim it was interpreted in the 18th century, continues to drive galaxy-brain arguments before the Supreme Court like “the Founders didn’t disarm domestic abusers so protecting women from gun violence is illegal.” The judiciary should resolve to leave originalism in the dustbin of pseudohistory where it belongs.
8. Subdivide your offices
Supreme Court expansion would do a lot of good things: Put an off-the-rails Court on track, make the judiciary more representative, and end the crisis of conservative dominance of the institution. Expansion is getting more popular: Polling data shows that 54 percent of Americans support adding justices to the Court; among Black voters, support is even higher. The justices should make some room in chambers for potential new colleagues, just in case.
9. Consider quitting
There’s more than one way to make space over at One First Street! Many recent decisions consolidating political power in the Court suggest that some justices are actually in the wrong branch of government. If Sam Alito wants to rewrite the law this badly, he should run for Congress so he can finally move over to the Capitol and do the legislative work he dreams about.
10. Admit who leaked the Dobbs draft.
Last spring, Alito told the Wall Street Journal that he has a “pretty good idea” who leaked his draft opinion rescinding the constitutional right to abortion. Yet the typically talkative justice has kept the leaker’s identity close to his vest. There’s no need to play coy when there’s no real code of conduct for Supreme Court justices—in 2024, get it off your chest, Sam!
