It took a few weeks, but the “Untitled Matt Ford Newsletter” joke finally lost its magic for me. The new name is debuting this week and will continue indefinitely. If you’re from the Ford Motor Company and you’d like to send me a cease-and-desist letter, please email me at matt@tnr.com. Feedback from other readers is also welcome.
I’ve written a few things over the past two weeks: on Anglo-Saxon political institutions, on the strange “abolition” of qualified immunity in a few states, on whether the Biden-Garland Justice Department can revive federal police-reform efforts, and more. But I’d like to highlight one recent article in particular: my critique last week of Democrats’ new court-packing bill.
Some background: A group of congressional Democrats introduced a bill last week that would expand the Supreme Court from nine seats to thirteen seats. The Judiciary Act of 2021 would ostensibly ensure that the number of Supreme Court seats matches the number of federal circuit courts of appeal, as it did until the late 19th century. But it’s really about undoing the Trump administration’s success at entrenching a conservative supermajority on the Supreme Court.
I find this debate irritating for multiple reasons, as I explained in the April 15 article. Obviously I share Democrats’ fears about what conservatives could do through the court over the next few years. At the same time, that fear doesn’t justify intellectually dishonest arguments for court-packing. Republicans didn’t “pack the courts” by filling regular vacancies over the past four years. Nor did they “steal a Supreme Court seat” by strategically refusing to confirm Merrick Garland. The conservative legal movement played hardball, got lucky with the 2016 election, and reaped the rewards of their gamble.
More than a few liberal politicians and observers now see court-packing as the only solution to these woes. Unfortunately, court-packing is tactically flawed, strategically foolish, and rhetorically indefensible as anything other than a naked power grab. Adding four new justices wouldn’t solve any of the long-term problems that its supporters decry while also creating a host of new ones. Court-packing doesn’t address the deeper problem of hyper-partisan Supreme Court nominations except to make them worse. It would fatally undermine public confidence in the court’s legitimacy—and the rule of law more generally—at a perilous moment for American democracy.
A few days after I published that article, I chatted with a few liberal and left-leaning acquaintances on Twitter about this subject. When I noted that the GOP would just add more justices the next time they’re in power in Washington, some of them admitted that was sort of the point. The unspoken goal, at least in some court-packers’ eyes, isn’t really to fix the Supreme Court, but to break it even further and set the stage for some sort of grand bargain of reforms down the line. I’m skeptical about the value of getting into an escalatory knife-fight with the faction that stormed the Capitol and tried to kill Congress four months ago.
So what’s my solution to the judicial wars? Mutual disarmament:
The root problem isn’t really the Supreme Court itself. It’s the way that justices are chosen. I’ve previously argued that the best course for the nation would be a constitutional amendment. My proposal would also expand the court to 13 justices, with a chief justice and one associate justice for each of the 12 federal circuit courts of appeal with a geographic jurisdiction.1 Vacancies would be filled at random from the judges within that circuit. And instead of lifetime tenure, each associate justice would serve for 18 years and then return to their previous court.
A constitutional amendment is obviously harder to enact than a federal law, but an easier path isn’t necessarily a better one. I’d also rather try to fix something than to intentionally make it worse. If a court-packing proponent rebuts my criticism or dissects my alternative plan, I’ll be sure to note it here.
Does it matter how the government kills a man? Zane Michael Floyd, a death-row prisoner in Nevada, believes it does. He filed a lawsuit last week to prevent the state from administering a three-drug lethal injection to him later this summer. Floyd’s preferred method is slightly more visceral: a firing squad. From the Associated Press:
“This is not a delaying tactic,” Brad Levenson, a federal public defender representing Floyd, said Monday.
But a challenge of the state execution protocol requires the defense to provide an alternative method, and Levenson said gunshots to the brain stem would be “the most humane way.”
“Execution by firing squad ... causes a faster and less painful death than lethal injection,” the attorneys said in a court filing Friday.
As you can imagine, this story immediately caught my attention. The first article I ever wrote for a magazine was about the history of American executions. It was only a brief sidebar for a cover story in The Atlantic about a botched execution in Oklahoma. But I still spent about a month researching and writing it, eager as I was to make a good impression on the editors. What I found was a long trail of gruesome deaths.
The history of the American death penalty is, in some ways, a history of making Americans more comfortable with killing prisoners. Hanging, for instance, can be a horrifying spectacle unless done exactly right. In Arizona, a poorly measured noose decapitated the first woman executed in the state in front of 70 witnesses in 1930, eventually prompting the state to switch to the gas chamber. The electric chair was also billed as a more humane alternative to hanging, but it was arguably even worse in practice.2
Nevada is no stranger to this problem. In 1913, condemned prisoner Andriza Mircovich invoked a state law that allowed him to be executed by firing squad. But the state struggled to find enough men to shoot him. The warden and multiple guards quit rather than take part, so the warden’s replacement jury-rigged a device with multiple guns to carry out the task. A few years later, Nevada became the first state to adopt lethal gas. The state, after another handful of resignations by prison officials, executed a Chinese laborer named Gee Jon with hydrogen cyanide in 1924.
After the Supreme Court revived capital punishment in 1976, states turned to lethal injection. The method, with its lab coats and syringes, gave the illusion of medical competence. If administered properly, the paralytics that hid any obvious signs of pain or discomfort to any witnesses. But the botched executions of the last decade—and a growing body of post-mortem evidence from autopsies—suggest that prisoners who undergo lethal injections may actually be dying in excruciating agony. Some Americans may not find that troubling, but the Eighth Amendment might.
It’s doubtful that Floyd will get his wish. Even if the lower courts side with him, the Supreme Court is unambiguously hostile to death-row prisoners these days. He may still avoid lethal injection another way. Earlier this month, the Nevada Assembly passed a bill to abolish the death penalty in the state outright. The bill now goes on to the state Senate, where it may yet run aground despite a Democratic trifecta in state government. From the Nevada Independent:
The bill faces a more uncertain climate in the Senate, where Senate Majority Leader Nicole Cannizzaro (D-Las Vegas), who is a prosecutor, would not commit on Tuesday to giving the bill a hearing. Both Cannizzaro and Melanie Scheible (D-Las Vegas), who chairs the Senate Judiciary Committee, have day jobs at the Clark County District Attorney's Office; District Attorney Steve Wolfson testified in opposition to the bill.
“Right now we've got a lot of Assembly bills coming over," Cannizzaro said in a brief interview. "We're looking at our schedules, and we'll go through the legislative process, but obviously haven't had time to sit down, make any commitments on anything."
Hopefully this potential conflict of interest does not delay senators from considering the bill for much longer. Some reporters who were present at Gee Jon’s execution praised the method as humane. Others took a different view. “One hundred years from now,” the San Jose Mercury Herald opined, “Nevada will be referred to as a heathen commonwealth controlled by savages with only the outward symbols of civilization.” I wouldn’t go quite that far in describing my home state. But the state legislature still has three years to prove it wrong.
I’ve been fascinated by the pandemic-inspired (or pandemic-accelerated, in some cases) discussions about the future of work. Journalist Anne Helen Peterson wrote earlier this week about how some employers are having trouble filling service and hospitality jobs under Before Times wages. A few business owners and Republican officials have called it laziness, blaming things like expanded UI benefits and direct stimulus payments for sapping decent Americans of their Protestant work ethic. Peterson had a different view:
Some of these unfillable jobs are in places without affordable housing — or, like Missoula, where cost of living has continued to rise over the course of the pandemic. Others are seasonal and/or tourist-adjacent. Many are at restaurants, particularly fast-food. Some are at retail stores with unpredictable scheduling. What goes unsaid in many of these stories is the fact that the jobs are shit jobs, whether because of the unsustainability of the pay, the Covid exposure, or the shit treatment they’ll receive from tourists.
Stick with me here, but what if people weren’t lazy — and instead, for the first time in a long time, were able to say no to exploitative working conditions and poverty-level wages? And what if business owners are scandalized, dismayed, frustrated, or bewildered by this scenario because their pre-pandemic business models were predicated on a steady stream of non-unionized labor with no other options? It’s not the labor force that’s breaking. It’s the economic model.
I can’t help but wonder if we’re seeing a version of Europe’s “zombie business” problem play out here in the United States. Over on the Continent, there’s a growing fear that a host of European business are effectively undead, kept alive by generous state support, but unable to dig themselves out of debt and stand on their own two feet. This smoldering anxiety didn’t start with the pandemic (or in Europe, for that matter) but the combination of massive aid packages and anemic incomes took these fears to new heights in economic circles.
Here in America, the zombification force might also be the other way around: the lack of a reliable social-safety net instead of the presence of one. Now that workers are temporarily free from the safety net’s coercive absence, the businesses that relied on workers’ desperation may be unable to survive as they once did. Obviously it’s tragic if a healthy business failed over the past year through no fault of its own, as many did. But a business that was only healthy when its employees barely made enough money to survive wasn’t actually a healthy business at all.
Peterson is writing a book on the future of work with her partner Charlie Warzel, late of The New York Times. I can’t wait to read it later this year. Warzel also wrote an interesting piece about post-pandemic workplaces over at his new Substack called Galaxy Brain3 earlier this week. He took a look at a tech company with no offices, no meetings, no deadlines, and no internal culture to speak of—all by design.
Over the last five years [CEO Sahil] Lavingia purposefully destroyed Gumroad’s corporate culture. This isn’t to say Gumroad has a bad or peculiar culture — it has no culture at all. “I’m not friends with any of my [part-time] employees,” Lavingia told me recently. “We get along fine but there’s no real a water cooler talk or chit chat. Every time we talk, it’s about Gumroad.”
This policy probably sounds cold and joyless. But I’d argue there’s also something admirable about it. All work — even in the best companies — is transactional, but we disguise this fact by dressing our jobs up in the language of corporate culture. We use language like ‘we’re all a family, here,’ which sounds really nice in theory but is often a clever way to break down the boundaries between work and life. Even if you genuinely care about your company and your coworkers, the family posture is still a lie. It frames a primarily transactional relationship as a primarily emotional one.
[…]
Lavingia’s ideas, once put into practice, are extreme. But what he describes above — workers who are miserable because their identities are wrapped up in their jobs and the status conferred by their companies — is a phenomenon I’ve seen throughout our reporting for the book. I’ve also felt it personally. For years, I’ve let the status of a job title or the brand of an organization stand in for my feelings about the actual work I was doing. And then there’s the insidious family issue. When relationships with bosses feel familial, the dynamic introduces guilt and passive aggression into the workplace. Workers begin to sublimate their own desires and needs for those of the company. Our reporting suggests that suppressing these feelings leads to resentment and eventually depression or total burnout.
This model is not reproducible in most places, of course. Tech workers can work more easily from home and on their own than just about anyone else. And I’m not sure I’d personally want to give up full-time status or a salary. There’s something to be said for the stability of a steady paycheck and a regular job.
But I’m really intrigued by the conscious refusal to treat a workplace as a substitute for a family life and a social life. I fell into this trap in my first journalism job, working awful hours without proper compensation for indefinite periods of time. I took the absence of social interaction in stride because I saw my coworkers as close friends. (Some of them still are.) Only when I was laid off did I realize how unhealthy this approach to a social life was. Whatever the future of work looks like, I hope it will be less exploitative than what came before.
Lightning round! Oklahoma now leads the nation in thunderstorms. Archaeologists unearthed Harriet Tubman’s long-lost home. Italy dethroned its “king of absentees.” A head of state died in battle for the first time in 132 years. There’s a “certifiably haunted” jail on the market in Florida. Are you rich enough for a trophy tree?
Thanks again for reading and subscribing. Feedback on this newsletter, whether positive or negative, is always welcomed at matt@tnr.com.
The Democrats’ court-packing bill calls for thirteen justices to reflect the thirteen federal circuit courts of appeal. My proposal would also result in thirteen justices, but with each of the associate justices’ seats assigned to each of the twelve geographic circuits. I only counted the First through Eleventh Circuits and the D.C. Circuit. The Democrats also counted the Federal Circuit, which mostly hears cases about patents, trademarks, and various administrative claims. While I intend no disrespect to the Federal Circuit or its judges, I think my approach makes more sense.
The Supreme Court has never struck down an execution method as unconstitutional, but it came damn close with electrocution in the late 1990s. After a series of gruesome botched executions in Florida, including a few instances where “flames shot out from the masks of the inmates,” the justices agreed to take up an Eighth Amendment challenge to the practice in October 1999. The Florida legislature switched to lethal injection before they could hear the case, however, and the court never delivered a ruling. Alas.
It’s hard to overstate how jealous I am of this name.