Let’s Talk About How Truly Bizarre Our Supreme Court Is

Legal scholar Jamal Greene shares a “radical proposal” to reform the US Supreme Court and how the US recognizes human rights, on The Ezra Klein Show.

Actually, Greene shares several.

First, he says, the US has the wrong idea about human rights. We recognize only a few, consider each one of them absolute, and only recognize a human right when it is enforceable by government.

This results in a situation where drug companies enjoy an absolute right to perform data mining on private healthcare information, and then use that data to market to doctors. But people don’t have the right to food and shelter, Greene says.

Instead of the US system, Greene recommends how other nations recognize human rights—that there are many rights, and many are in opposition to each other. Germany recognizes fetal right-to-life but also recognizes women’s healthcare autonomy. This, says Greene, results in abortion laws that right-to-life and pro-choice groups had to compromise to achieve, and which are therefore more stable and less incendiary. Some matters should be decided politically, and not by courts.

He also recommends expanding the size of the Supreme Court, putting 10-year term limits on judges, and having only a subset of the judges rule on each case, in order to reduce power for each individual judge. These reforms would make the stakes for each individual judicial appointment less high.

Good recommendations,but right now the priority seems to be stopping the US from turning into a dictatorship or tearing itself apart in civil war. Supreme Court reform can come later.


“Getting race wrong early has led courts to get everything else wrong since,” writes Jamal Greene. But he probably doesn’t mean what you think he means.

Greene is a professor at Columbia Law School, and his book “How Rights Went Wrong” is filled with examples of just how bizarre American Supreme Court outcomes have become. An information processing company claims the right to sell its patients’ data to drug companies — it wins. A group of San Antonio parents whose children attend a school with no air-conditioning, uncertified teachers and a falling apart school building sue for the right to an equal education — they lose. A man from Long Island claims the right to use his homemade nunchucks to teach the “Shafan Ha Lavan” karate style, which he made up, to his children — he wins.

Greene’s argument is that in America, for specific reasons rooted in our ugly past, the way we think about rights has gone terribly awry. We don’t do constitutional law the way other countries do it. Rather, we recognize too few rights, and we protect them too strongly. That’s created a race to get everything ruled as a right, because once it’s a right, it’s unassailable. And that’s made the stakes of our constitutional conflicts too high. “If only one side can win, it might as well be mine,” Greene writes. “Conflict over rights can encourage us to take aim at our political opponents instead of speaking to them. And we shoot to kill.”

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