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Supreme Court Commission to Scrutinize Changes Beyond Expanding Justice Seats

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WASHINGTON — President Biden’s commission to evaluate proposed overhauls to the Supreme Court is planning to tackle potential changes that range far beyond the hotly disputed proposal to expand the number of justices, according to people familiar with the matter.

Named last week, the 36-member, ideologically diverse commission is expected to meet on Friday for a private and informal planning session. The agenda, the people said, is a proposal to divide into five working groups to develop research for the entire body to analyze a broad scope of issues, such as initiatives to impose term limits or mandatory retirement ages.

Other planned topics of future scrutiny include proposals to limit the court’s ability to strike down acts of Congress, to require it to hear more types of appeals in order to reverse the falling number of cases it resolves each year, and to limit its ability to resolve important matters without first hearing arguments and receiving full briefings, among other issues.

The meeting is private and has not been announced, but it and the draft road map were described by multiple people familiar with the commission who spoke on the condition of anonymity. Their account makes clear that the panel’s intellectual ambitions go beyond the notion of expanding the court — or “packing” it — even though nearly all of the early commentary has focused on that.

A spokesman for the White House declined to comment.

The meeting is not expected to include significant discussion of issues. By law, the commission will conduct its substantive work in public, including disclosing the materials it uses for discussions, hearing from witnesses and debating edits to an analytical report it is supposed to deliver by 180 days after its first public meeting, which is likely to be in May.

Mr. Biden decided to create the commission to defuse the thorny political question of whether to endorse adding seats to the Supreme Court. Some liberal activists have called for the step in response to Republican power plays in 2016 and 2020 that yielded a 6-to-3 conservative advantage on the court, even though Democrats won the popular vote in seven of the past eight presidential elections. Many conservatives vehemently oppose the idea.

The president has expressed skepticism about the wisdom of expanding the Supreme Court, and the idea is moot for now: A court expansion bill could be blocked by a filibuster in the Senate, and Democrats lack sufficient support in their own caucus to abolish the tactic. Speaker Nancy Pelosi said on Thursday that she did not intend to bring up a bill introduced by some Democrats this week that would expand the court to 13 justices.

Still, since Mr. Biden issued the executive order that established the commission and named its members last week, some conservatives have portrayed it as too tilted toward liberals and a plot to legitimize court packing. Some progressive activists who favor court expansion have denounced it as too ideologically moderate to be likely to help the idea gain traction.

But the commission’s proposed structure — developed by its co-chairs, Bob Bauer, an N.Y.U. Law professor who served as a White House counsel under President Barack Obama; and Cristina M. Rodríguez, a Yale Law School professor and former Justice Department official — suggests that focus may be myopic, and it has the potential to set in motion a political conversation about other consequential ideas for change.

About seven members will be on each working group, and they will be assigned to gather preliminary research and materials for the entire commission to study and debate for its eventual analysis. The working groups’ mandate would not include making any substantive recommendations, and their meetings are not likely to be public, the people said.

The first working group, they said, would assemble materials to set the stage for the commission’s work, including information on what problems have made changing the Supreme Court a matter of recurring debate, comparisons to historical periods in which there were serious calls for changing the court and criteria for evaluating arguments about changes to the court.

The second working group would gather materials about the Supreme Court’s role in the broader constitutional system, including as a final arbiter of major issues with a legal nexus. Among what it will prepare for are proposals for Congress to strip the court of jurisdiction over certain topics, and ideas such as requiring a supermajority to strike down an act of Congress and creating a mechanism for lawmakers to override court decisions.

The third working group would put together materials about length of service and turnover of justices on the Supreme Court, including proposals to create 18-year terms that are staggered so a seat comes up every two years or to impose a mandatory retirement age on older justices. Many other countries have such a safeguard.

The fourth group would develop materials about the membership and size of the Supreme Court. In addition to looking at the history of expansions and contractions of the number of justices by Congress, it will also examine other plans for reducing partisan tensions over the issue, like creating a nonpartisan commission to recommend potential justices or transforming the court into a rotating panel drawn by lottery from the ranks of sitting appeals court judges.

The last working group would collect materials about concerns about the Supreme Court’s case selection and review powers. These include the plummeting number of cases it resolves each year compared with what it did several generations ago, and its so-called shadow docket, when the court issues emergency orders and summary decisions that resolve important questions without full briefings and arguments.

In addition to the factual and policy questions surrounding the issues, the commission also intends to provide analysis about legal matters, scrutinizing whether proposed reforms could be accomplished by a congressional statute or whether they are likely to require the much heavier lift of amending the Constitution.

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Teachers shouldn’t have to be superheroes, this week in the war on workers

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Care work was already work before the pandemic, and there was already a crisis. But the coronavirus pandemic made the crisis exponentially worse. Sarah Jaffe takes on the policy and personal roots of that crisis in a searing, rage-filled piece that you really should read, from the parts about motherhood and the men who get let off the hook, to the welfare rights movement, to—especially—the part about teachers during COVID-19 and the way they’ve been scapegoated in debates about in-person education.

This is the crux of it: “Get Covid and die, get written about in glowing terms,” she writes. “Collectively refuse to die (or to spread the virus to your students and their families), and your ‘allies’ will begin to threaten you.”

Teachers, she writes, have been “goddamn superheroes,” and, “If we, collectively, gave a shit about kids’ learning conditions, they would not be attending overcrowded schools with lousy ventilation; ancient, crumbling textbooks; ice-cold water in the sinks; and no nurses. Teachers would not be the ones bargaining for smaller class sizes and counselors in the buildings and green space and recess time. They would not be sharing photos of mold and mouse droppings in their buildings online. Or they would, but they’d have actual support from all the current scolds. They wouldn’t have to be superheroes; they could be human, grieving, depressed, struggling, messy, and mortal like the rest of us.”

That. All of that. Read the whole thing.


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Studies show meeting current agreements won’t be enough to stop melting of Antarctic ice sheets

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The one good thing about isostasy is that it does happen slowly. Not slowly as far as geologists are concerned, but slowly for people who don’t spend every day thinking in terms of “deep time.” For example, if the West Antarctic Ice Sheet were to melt, it would likely take 1,000 years for the continent to rebound. 

But even if the pressure between crust and mantle will be adjusted over a millennia, that doesn’t mean that sea level increases won’t be evident until 3021. That Antarctic rock bounce would add about a meter to sea level rise, but that’s just a fraction of the total increase expected.

As a paper from a team of international researchers predicts, melting land ice can be expected to add more than 42cm (1.4’) to sea level in this century—and that’s if all nations meet the obligations under the Paris agreement. If the increase in global warming could be limited to 1.5°C, the increase could be cut by two-thirds, but that would require significant additional changes.

An increase of under two feet may not seem like much, but it’s an enormous change for coastal communities. In fact, it’s over twice as much increase has occurred since 1880. Combined with high tides and storms, it would overwhelm many cities, push saltwater far into many estuaries, ruin aquifers in multiple areas, and mean the loss of millions of acres of low-lying agriculture. 

A second paper also examines the relationship between the commitments under the Paris agreement and the expected rise in sea level. That paper predicts that meltwater from Antarctica will contribute about 0.5cm (0.2”) per year, which also sounds relatively mild—but it’s an order of magnitude greater than previous measures. That paper also provides a mind-boggling number for the total amount of water contained in the Antarctic Ice Sheet, showing it as enough to raise the global sea level by 57.9 meters. That would be 190 feet. Now add in that isostasy, and the resulting change would be more like 250’.

That’s not quite enough to bring on Waterworld, but more than enough to render a map of the coastlines unrecognizable. How big would the change be? These two maps in the Miami Herald max out at just 10 meters (33 feet). In fact, the highest point in Florida is just 197 feet above sea level. 

What both papers show is how exquisitely sensitive to small changes these system are, with differences of a degree causing huge changes in outcomes. In an interview with The Guardian, one of the lead authors of the second study made it clear.

“If the world warms up at a rate dictated by current policies we will see the Antarctic system start to get away from us around 2060,” said Robert DeConto. “Once you put enough heat into the climate system, you are going to lose those ice shelves, and once that is set in motion you can’t reverse it.”

Keep in mind that the numbers being posted here are the “good” scenarios, the ones where the world sticks with climate agreements. Fortunately, current pricing on energy make doing the right thing also the cheap thing as solar power and wind power have moved well below the cost of coal and are competing directly with the price of natural gas. Still, it is not a given that the economics will always favor renewable energy, Anyone who thinks that simply relying on the market to do the right thing … has never watched how the market deals with anything. Preventing trillions of tons of additional carbon from being injected into the atmosphere will take serious, enforceable, itnernational agreements.

Of course, sea level increase is not happening tomorrow. Because it’s happening today. The sea level has already been rising. Now it’s rising faster.


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Puerto Rican feminists and transactivists continue the fight against the gender violence epidemic

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Activists were out in the streets Friday, in every one of the island’s municipalities.

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Christina Corujo, writing for ABC News, reported that “An uptick (in gendered violence) over the last four years had protesters demanding government action.”

More than 100 days after declaring a state of emergency, Puerto Rico finally will have some funding to address an alarming rise in gender-based violence on the island.

The Financial Oversight Management Board, which is in charge of the island’s finances, on Wednesday approved a $7 million request by Gov. Pedro Pierluisi to be used for different programs aimed at preventing gender-based violence.

“We favor the Fiscal Control Board’s decision to allocate the $7 million budget … for the implementation of public policy to eradicate sexist violence,” Colectiva Feminista, a community-based group, wrote on Twitter.[…]

After the state of emergency was declared and the $7 million was requested, the FOMB initially approved just $200,000. Because Puerto Rico is going through a bankruptcy that began in 2016, the FOMB has the final say in all economic decisions of the government. The island has over $100 billion in debt and pension obligations.

However, that was not all that Colectiva Feminista had to say about the news. 

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Translation: “HOWEVER, it seems to us hypocritical for the Board to approve austerity measures that imply CUTS to pensions, education, health services, public housing and labor rights. GENDER VIOLENCE IS STRUCTURAL.”

“State of emergency”

So while the Junta authorized more than the initial piddling peanuts, its members also appear to be talking out of both sides of their necks when they offer money in response to the protests, and because the mainland media is now covering the story, while they simultaneously attempt to slash major economic services the island needs—which, as the Colectiva points out, are part of the root causes of the epidemic of violence.

Andrea González-Ramírez, writing for The Cut, offers background on the issue.

This year alone there have been at least 21 femicides, per the Puerto Rico Gender Equality Observatory; since 2010, more than 150 women have been killed by their intimate partners; and last year, six transgender women were murdered — the highest number in any U.S. state or territory. My yearlong investigation into gender violence found that in 2018, in the aftermath of Hurricane Maria, the intimate-partner murder rate in Puerto Rico spiked to 1.77 out of 100,000 — more than double that of the entire U.S.

The horror of the recent killings and all the violence I’ve reported on before is etched into my brain. How do you make sense of loving your homeland while knowing that so many of your compatriotas hold such a deep hatred of women? How do you live in peace when you often think about the mujeres in your life and whether they are safe? How do you carry the grief of losing every cis, trans, nonbinary, straight, or gay woman who dies at the hands of men? (The perpetrators are almost always men.)

The frequency of femicide in Puerto Rico is alarming, alongside of the number of murders of transgender people. This is not a new problem, nor is it only a problem on the island, given the fact that it is a global phenomenon.

What bothers me is that, though it has briefly become “headline news” in the U.S. mainstream media, it seems to only be because, in the latest brutal murder on the island, the person arrested and charged with the murder of his pregnant girlfriend is a sports celebrity. In some ways, he has garnered more attention than the woman who was killed.  

Such is the nature of the media, however we can do better—we can help shine a spotlight on not just “perps,” or even the victims—we can help raise the profiles of the groups who are fighting this ongoing murder epidemic, and support them.

Two women hug as people led by the activist group, Feminist Collective, protest to demand Governor Wanda Vazquez to declare a state of emergency in response to recent gender based, femicides, assaults, and the disappearance of women in San Juan, Puerto Rico on September 28, 2020. (Photo by Ricardo ARDUENGO / AFP) (Photo by RICARDO ARDUENGO/AFP via Getty Images)

It is these groups who have forced both Pierluisi, and The Junta, to address the issue, and put some funds into the fight.

I realize many readers here and on social media do not read Spanish, and most of the posts from activists on the island are in their language. Here are some groups you can follow; support them by sharing their posts.  

The struggle continues.

Pa’lante Puerto Rico. #NiUnaMas


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