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Ten Wild and Crazy Facts, a Few Opinions, and One Prediction About the Supreme Court

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The Supreme Court's new term begins Monday, October 1. As the Justices ponder affirmative action, voting rights and other important issues, here are some interesting facts (and opinions) about the Court.

1) Whether the president gets to appoint a Justice or not depends on luck, death, illness, and sometimes the politically strategic timing decisions of the Justices themselves. President Taft in one term appointed six Justices, Jimmy Carter appointed none. It is irrational to leave such important decisions up to chance and politics. This is one reason life tenure is a serious problem.

2) Americans are no longer allowed to enter the Supreme Court building through the majestic stairs in front of the building. Despite the court having its own police force of 125 officers and seven distinct units, the Justices think they would be too vulnerable if we could walk through the front door.

3) Every sitting Justice went to either Harvard or Yale Law Schools. This makes the Court the least diverse (really diverse) governmental institution in the United States.

4) The Ten Commandments adorn the walls of the Supreme Court building though the Court has held that they may not be placed in other courtrooms, except sometimes they can.

5) Justice Douglas was on the bench for 36 years, Oliver Wendell Holmes until he was 90, and there is some evidence that Justice Marshall spent his last couple of years telling his law clerks to vote the way Justice Brennan did, and he once became openly confused about the identity of the parties in an anti-trust case. This is another reason life tenure is a serious problem. Justice Marshall may have been a great Justice, but he didn't end that way.

6) Speaking of Justice Brennan, he used to ask his law clerks what was the most important rule of the Supreme Court. He would reject all suggestions and then hold up five fingers, indicating getting five votes was the key to the Court. Today, he would just hold up a picture of Justice Kennedy (OK, with one exception).

7) The Justices (all nine of them) together decide only about 80-90 cases a year (and are off between July 1 and October 1). They each have four full time (and I mean full time) law clerks. Perhaps this explains why each of the opinions of the Justices in District of Columbia v. Heller (2nd Amendment), Citizens United (corporations are people too); and the Affordable Care Act cases were over 100 pages each. How many citizens (or law professors) are willing to read over 100 pages of ruminations written in legalese (with footnotes)?

8) Supreme Court arguments are not televised or recorded in any way. There is no visual record of the arguments in the recent ACA case for future historians or students to study. There is nothing remotely funny to say about this anti-democratic desire for secrecy.

9) If the Court's arguments were televised, perhaps Justice Thomas wouldn't go seven years without asking a question. Then again, he might. But, at least his silence would be more conspicuous and transparent on a daily basis (between October and June anyway).

10) The Justices are the only judges in the world who sit on a nation's highest court and can decide for themselves when they want to retire. In the world. Maybe we are right to think life tenure is the only way to give judges enough independence (other countries use fixed terms and retirement ages), but if so, we stand alone. Are we really that much smarter than every other constitutional democracy?

11) Bonus Fact to Be: When the Justices decide this term's affirmative action case, neither Justice Scalia nor Justice Thomas will spend one syllable on the original intent of the drafters of the 14th Amendment but will vote to strike down the University of Texas' use of racial preferences to further diversity. Reason: That history supports the University of Texas.