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In a recent Lawfare article I outlined the case against “packing” the Supreme Court, and explained why the Court’s recent decision in Louisiana v. Callais doesn’t justify such a measure. Court-packing is generally understood as an attempt to alter the Supreme Court’s ideological balance by increasing the number of justices. Thus, most current Democratic proposals would transform the current 6-3 conservative majority on the Court into a 7-6 progressive majority, by adding four justices.

But there are various non-packing rationales for increasing the number of Supreme Court justices. I sometimes see them brought in response to my criticisms of court-packing. In this post, I assess the most common of these arguments. In general, I think they are relatively weak. But, to the extent they have merit, they could potentially be addressed without packing the court, by means that ensure the new – larger court – would have roughly the same ideological balance as the old one. That would prevent the slippery slope escalation caused by court-packing would be likely to lead to destruction of judicial review. If you want to expand the Court, but oppose such compromise measures, that’s a strong sign that court-packing – not these other issues – is your main objective.

If your main reason for wanting to expand the court is to change its ideological balance, the points made in this post are unlikely to sway you (check out my various critiques of court-packing instead!). But if you do care about these other issues, read on.

The most often heard non-packing justification for increasing the size of the Court is the idea that we need to have thirteen justices because we now have thirteen appellate circuit courts. Thus, we should have one Supreme Court justice per circuit, as was the norm throughout much of the nineteenth century. For example, potential 2028 Democratic presidential candidate Pete Buttigieg recently stated that “Nowhere in the Constitution does it say that there have to be nine Supreme Court justices… It just takes a readiness to set up a court that fits this country. We could have 13 seats matching the district structure of the federal judiciary.”

The problem with this argument is that, as Josh Braver documents in an important article, the nineteenth century expansions of the size of the Supreme Court to match the number of circuits was primarily a result of the policy of “circuit riding,” under which Supreme Court justices routinely heard cases as circuit judges on “their” lower court. Circuit riding was a difficult and time-consuming responsibility, and one justice could not readily do it for two circuit at once (especially given relatively slow nineteenth century transportation). But mandatory circuit riding was abolished by Congress in 1891. Today, the supervisory responsibilities of Supreme Court justices with respect to their assigned circuit courts are fairly minimal. Thus, it is not a great imposition for some of the justices to have to oversee two or more circuits rather than just one one.

Currently, two justices – Alito and Kavanaugh – each oversee two circuits, while Chief Justice Roberts handles three. I am skeptical either that this is an excessive burden on these justices or that it gives them way too much power relative to the other six. But if you disagree, there’s a simple solution that does not create opportunities for court-packing: increase the number of justices to 13 (one per circuit), but let the party that does not control the White House select two of them. In that way, both the conservative and liberal blocs on the Court would add the same number of justices.Thus, no packing, and no slippery slope escalation.

There may be some moderately complicated political maneuvering required to do this; the president and his party would have to credibly commit to nominating and confirming two justices chosen by the “out” party. But such political deal-making is common place. One way to do it would be for the president and the opposition party to agree on the four names in advance, and include a provision in the expansion law that ensures it will only go into force if all four of these individuals are nominated and duly confirmed within a certain period of time (say, within one year of the law’s enactment).

A second possible non-packing rationale for court expansion is the idea that we need  more justices so the Supreme Court can hear more cases. Justice Brett Kavanaugh and a number of outside critics of the Court believe it hears way too few cases, and should take many more. Perhaps they are right. I don’t have a strong view about what the optimal total number of Supreme Court cases,  though there are certainly some specific areas where I would like to see the justices do more (e.g. – constitutional property rights cases).

But even if Court should take more cases, it is not clear that it needs more justices to do so. The Court currently hears only about fifty to sixty cases  on the regular docket per year, including just 56 last year (not counting “shadow docket” cases that don’t get full briefing and oral argument). But, as recently as the early 1980s, it was hearing 160 cases per year. And there were only nine justices then, too! Hearing more cases would actually be easier today than it was then, since modern technology (most notably specialized electronic databases and now AI) makes it easier to quickly research  and analyze relevant legal issues.

The reason why the Court hears so few cases is not because we have too few justices, but because the justices have near-total control over their docket, and (with, perhaps, a few exceptions) they don’t want to take more. There is no guarantee this would change merely by increasing the size of the Court. The new justices may be happy hearing relatively few cases, just like the current ones. Fewer cases means more free time and longer summer vacations! Who wouldn’t want that?

If Congress wants the justices to hear more cases, it could more effectively achieve that goal by increasing the scope of the Court’s mandatory jurisdiction. Before the enactment of the Judges Act of 1925, the Supreme Court had a sizable mandatory jurisdiction, and thereby heard more cases. Congress could repeal or modify that legislation, thereby increasing the justices’ workload.

There is some irony here. If, like many left-liberals, you think the Court does a terrible job on most important cases, you may not actually want them to hear more! Perhaps it would be better if they decided even fewer issues, thereby leaving more under the control of lower federal courts (which are, on average, somewhat more liberal than the present Supreme Court majority).

Even if you do want the Court to hear more cases, and you are persuaded that increasing the number of justices is the best way to achieve that result, it can be accomplished without changing the Court’s ideological balance. Simply adopt the ideologically balanced expansion outlined above. If you think 13 justices are not enough, the same approach can be used to increase to 15 or even more (with 15, the president’s party and the opposition party would each get to choose three new justices).

Finally, it is sometimes argued that a larger court would lead to a higher quality of deliberation and perhaps a greater diversity of experience among the justices. I am by no means sure this is true. For example, it does not seem like bigger state supreme courts make better decisions, on average, than smaller ones. The same is true for en banc circuit court rulings in circuits with more judges, as opposed to those on circuits with fewer judges.  At present, the total number of judges in a circuit varies from six in the First Circuit, all the way up to 29 on the Ninth. I see little, if any, correlation between numbers and quality here.

On the other hand, I am also not certain that nine is the optimal number of justices, as opposed to 11, 13, or 15. Once again, however, the number can be increased without changing the ideological balance, by the procedure already described.

As noted in my Lawfare article and other writings, I am far from an uncritical admirer of the current majority on the Court, and I think they get some important issues wrong. I oppose court-packing because it would make things much worse than they are now, not because the status quo is anywhere near ideal. I also favor a number of reforms that do not require changing the number of justices, most notably term limits.

I am not endorsing the status quo here. This post merely shows that we probably don’t need to expand the size of the court to achieve various other improvements in the Court’s work product. And to the extent that expansion is desirable, it can and should be done without creating opportunities for court-packing.

The post Assessing Non-Packing Rationales For Increasing the Size of the Supreme Court appeared first on Reason.com.

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From the long (20K-word) decision of the Washington Supreme Court Thursday in In the Matter of Disciplinary Proceeding Against Feyissa, written by Justice Sheryl Gordon McCloud:

After a 12-day disciplinary hearing, a hearing officer (HO) concluded that Shakespear N. Feyissa committed six counts of misconduct. The presumptive sanction for most of those counts was disbarment…. The Disciplinary Board (Board) of the Washington State Bar Association (Bar) unanimously adopted the HO’s disbarment recommendation. Feyissa appeals….

Attorney Shakespear N. Feyissa was born in Ethiopia. He immigrated to the United States at around age 17….

There’s a lot going on in the case, and you can read it for yourself here. But here’s one brief passage that particularly struck me:

Feyissa claims that the HO refused to consider cultural differences. But the record contradicts that assertion ….

As stated above, Feyissa’s friend testified about cultural differences between Ethiopian and Western cultures relating to norms in negotiations. The witness opined that “in Ethiopia, ‘If you tell a lie but everybody’s happy, then you didn’t do anything wrong.'”

The HO clearly did not refuse to consider this testimony or to evaluate its impact on the case, as evidenced by her conclusion of law on the issue; the HO made the sustainable legal conclusion that this cultural difference “does not exempt Respondent from his professional obligations under the RPCs, and thus cannot be accepted as a reason to mitigate Respondent’s conduct as a lawyer.”

Here are the passages from Feyissa’s counsel’s briefs that raise the argument to which the supreme court was apparently referring:

The complaint also alleged that Mr. Feyissa made false statements in negotiating on his clients’ behalf. As explained below, due to the very different set of norms in Ethiopian culture surrounding negotiations, he did not understand the limits of bluffing and puffery in negotiations, and made the false statements solely to get his clients more money.  Mr. Feyissa admitted the false statements for which he was responsible, stopped engaging in that practice after receiving the grievance; and expressed regret for his conduct during the hearing…..

[T]he Hearing Officer refused to consider evidence that in Mr. Feyissa’s culture, telling lies is accepted as long as it makes other happy and that in negotiations, both sides understand that the other will exaggerate and twist the truth….

The Hearing Officer also erred by refusing to consider Mr. Feyissa’s cultural background in finding that the false statements “seriously adversely reflected on his fitness to practice,” wrongly concluding that because his cultural background did not “exempt Respondent” from the RPCs, it should not be considered at all. Mr. Feyissa never asserted that he was exempt from the RPCs. Instead, the context for the misstatements is critical in evaluating whether the misrepresentations to third parties seriously adversely reflected on his fitness to practice. As discussed above, there was uncontested evidence that false statements are acceptable in negotiations in Ethiopian culture. Mr. Feyissa now understands that the rules governing his conduct in negotiations and agrees that he did not comply with the RPCs, but the reason he thought he was allowed to make such statements needs to be considered when determining the degree to which his conduct reflected on his fitness to practice….

ODC criticizes Mr. Feyissa’s counsel for asking race-related questions and claims that “[t]he Hearing Officer’s explicit rejection of Respondent’s attempt to inject race into the proceeding makes clear that the Hearing Officer had foreclosed any consideration of race as a factor in this case and undercuts the claim that the decision was tainted by racial bias.” That assertion is based on Respondent counsel attempting to impeach Dr. Britton after ODC opened the door by eliciting demonstrably false testimony that he and Mr. Feyissa had a similar skin tone. The Hearing Officer’s refusal to permit impeachment based on race-related testimony on direct is itself a potential instance of implicit racism. As discussed in the Opening Brief …, color-blindness is a contemporary form of racism. That is further reflected in the Hearing Officer’s refusal to consider evidence that falsehoods in negotiations are acceptable in Mr. Feyissa’s culture, which she wrongly viewed as using “cultural background [to] exempt Respondent from his professional obligations under the RPCs.”

Just to be clear, I have no reason to think that Ethiopians are indeed culturally more open to lying than Westerners in negotiations; of course, many Westerners lie about all sorts of things, including during negotiations; and the rules related to honesty in negotiation can be complex—to quote the comments to the Model Rules of Professional Conduct, for instance,

Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact [as to which a duty of honesty applies]. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.

But even if Feyissa’s counsel was correct that Ethiopian norms related to honesty in negotiation are different here, I agree with the hearing officer that this shouldn’t be seen as a mitigating factor here.

The post Cultural Difference "Cannot Be Accepted as a Reason to Mitigate" Ethiopian-Born Lawyer's Dishonesty-Related Misconduct appeared first on Reason.com.

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From 2015 to 2021, more than 28 billion pounds (about $37.5 billion) was given to terrorists and hostile states by the British government, according to The Telegraph.

As the outlet reports, a secret government dossier shows more than 28 billion pounds of spending ended up in the hands of terrorist groups and other national security threats. Sources told The Telegraph that an organized crime network linked to Eastern Europe made a “concerted effort to obtain British public funds.”

The document includes details of COVID loans being sent to Islamic State group terrorists, grants given to companies linked to the Russian government, and research spending on companies associated with the Chinese military. The report also outlines instances of human traffickers claiming government benefits and COVID relief grants being channeled to the Islamic State in Syria.

Officials have reportedly known the scathing details of the dossier—which was commissioned by security officials in 2023 after reports emerged of widespread fraud in the government’s pandemic-era rescue packages—for years. The secret dossier “was never made public to save the government from the political embarrassment of revealing the huge scale of misdirected funds,” according to the sources who spoke to The Telegraph.

This isn’t the first report on government waste during the COVID-19 pandemic. In 2025, the British government published a report to Parliament which found that 10.9 billion pounds (about $14.6 billion) of taxpayer money had been lost to “fraud and error” during the pandemic response. An estimated 324 million pounds ($434 million) of personal protective equipment spending was fraudulent. Meanwhile, the Bounce Back Loan Scheme issued 1.5 million loans worth 46.5 billion pounds ($62.3 billion), with an estimated 2.8 billion pounds ($3.75 billion) lost to fraud and error. That report found that “inadequate checks facilitated significant volumes of fraudulent applications,” and that loans were dished out to businesses, but “no checks were made.”

Officials knew of the risks associated with handing out such large sums of money from the start. That report said that they “lacked the necessary capabilities to effectively manage the fraud and error risks associated with a substantial loan portfolio,” and that they “recognised the high fraud risk.”

The secret dossier was compiled by analyzing government grants awarded between 2015 and 2021, a period in which even billions in misdirected funds represented only a fraction of the British state’s vast aid expenditure. During this period, Britain had one of the highest foreign aid budgets in the world, committing to 0.7 percent of gross national income toward foreign aid. Under the statutory target, foreign aid spending rose from 12.1 billion pounds (about $16.2 billion) in 2015 to 15.2 billion pounds (about $20.4 billion) in 2019, before falling to 11.4 billion pounds (about $15.3 billion) in 2021 after the government reduced the target to 0.5 percent of gross national income. Across the seven-year period, Britain spent roughly 95 billion pounds (about $127.4 billion) on foreign aid.

Indeed, wasteful spending under the guise of foreign aid is not a new phenomenon. As one report from the Institute of Economic Affairs, a British free market think tank, details, the government has spent foreign aid in regions that are wealthier than parts of Britain itself. The richest region that received foreign aid, Ordos in China, was richer than 69 regions in Britain. Projects funded include a temporary cycle lane in Mexico City and an all-female traditional Chinese opera in Shanghai.

However, The Telegraph‘s reporting reveals that the government has now well and truly outdone itself. The government does not just fund frivolous projects but also directly finances fraudsters, gangsters, terrorists, and hostile regimes. Looks like a government big enough to spend billions in the name of saving the world is also foolish enough to hand that money to some of the worst people in it.

The post Terrorists and Criminals Reportedly Got $37.5 Billion From COVID Relief and Other U.K. Aid Programs appeared first on Reason.com.

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From a Justice Department press release Wednesday:

“… In the dead of night, masked and hooded defendants allegedly threw noxious chemicals through the windows of families’ homes and taped demand letters to their front doors….,” said Jennifer Runyan, Special Agent in Charge of the FBI Detroit Field Office.

After the October 7, 2023, Hamas terrorist attacks in Israel, the defendants and unindicted conspirators enacted a series of coordinated “actions” threatening University of Michigan leaders, law enforcement, and businesses. Seemingly prompted by their perception of the University of Michigan’s and other victims’ purported financial support of Israel, the conspirators insisted publicly that they “must escalate, mobilize, and organize to demand divestment by any means necessary.”

According to the indictment, on October 20, 2023, the defendants publicly posted a list of demands on social media directed at University of Michigan leadership. Among the demands, they required the University to make a “full and complete divestment” from Israel and any businesses supporting Israel. Unsatisfied by the University’s response, the defendants “prepared to take action” against the leadership by what they called “autonomous actions,” which included forcibly entering and occupying University of Michigan buildings, defacing buildings, and blocking and disrupting events on campus. They also posted threats on the internet that included photos of their “autonomous actions.”  …

The defendants also allegedly held meetings to identify targets of their “autonomous actions.” They used the internet to research personal addresses, photographs, political and social connections, business ownership, and other personal details of the targets.

They also discussed methods by which to harm the targets and their families, including poison, bombs, and psychological torture. For example, on May 21, 2024, [defendant Paige Elizabeth] Feyock and then-medical student [defendant Ahmet Kerem] Korkaya agreed to “kill,” “torment,” and “terrorize” their targets and families. Referring to one victim, Korkaya stated his “entire family” was on his “hit list” Feyock added that they should “get” the “kids” of two victims.  Korkaya, referring to another victim, stated, “I’m gonna be the dirtiest f——- doctor ever / I’m gonna be [victim’s] doctor / poison her a– slowly.” Feyock agreed, “We need people following [victim] / get into that house then burn it down.”

As part of the conspiracy, the defendants are alleged to have traveled at night to the targeted homes and businesses. They damaged and defaced homes and businesses with spray-painted messages, threats, and symbols, including inverted triangles, which Hamas has used in its military videos to mark targets for death; red handprints, which Hamas has used to symbolize the Ramallah Lynching of 2000 and the murder of two Israeli military reservists during the Second Intifada; and phrases such as “INTIFADA” and “DIVEST NOW.” The defendants also left demand notes containing additional threats, caulked doors shut, bike-locked entryways, broke windows, and threw glass jars filled with butyric acid and dye into the homes. The defendants took photographs of the destruction and posted the photos online with “official statements” and additional warnings and threats, such as “you cannot hide” and “we only come back stronger.”

Below are photos of the alleged threats spray-painted on the Jewish Federation Building on the one-year anniversary of the October 7, 2023, Hamas terrorist attacks in Israel, as well as two other businesses.

The indictment also charges Zainab Aliasgar Hakim and … Feyock with witness intimidation. In July and August 2024, Hakim and Feyock devised a plan to confront the victim, a University of Michigan student whom they believed may have been cooperating with federal authorities. They planned to convince the victim not to provide information about the defendants’ criminal activities.

Hakim warned that the victim was “going to send us to federal prison.” Feyock explained, “we have to do something about [victim] / [victim] is actually a liability / the fact that [victim] is naming you to [unindicted conspirator] is a major issue.”  Feyock told other conspirators that the victim “has to be neutralized” and that she and Hakim were going to “strip search” the victim “to see if he is wearing a wire / not taking no chances with him.” Hakim and Feyock confronted the victim on August 6, 2024, and afterward, Feyock told another conspirator that the victim “knows not to talk about [the autonomous actions].”

Alexander Matthew Sepulveda is also charged in the indictment with destruction of property to prevent seizure. According to the indictment, Sepulveda and Jonathan Hongru Zou were involved in an “autonomous action” at the home of the University of Michigan’s Provost. Sepulveda and Zou threw two glass jars filled with a blue substance and food compost through a window of the Provost’s home.  They also spray painted the home with inverted red triangles and phrases including “Divest” and “Free Palestine.” …

The post "Eight Conspirators … Threatened University of Michigan Officials, Businesses, and the Jewish Federation" appeared first on Reason.com.

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This story keeps getting weirder. @Jimmy_Esq flags the fact that Judge Ross writes like a toddler. The problem is worse.

Here is her signature on the May 29 letter:

That is fourth grade penmanship.

And here is her signature on the June 11 letter:

That is an adult’s signature.

And here is Ross’s digital signature from the Raffensperger case (an order she certainly didn’t read):

 

The signatures on May 29 and June 11 are totally different. The May 29 signature includes “Judge” as a her first name. Who does that?? In the second letter has initial “E.”

The letters from June 11 are far more angular, and match the type of letter in her standard digital signature. I realize I have some expertise in authenticating the provenance of Alexander Hamilton’s signatures, but this one wasn’t too hard.

I suspect Judge Ross didn’t even sign her first, completely unremorseful letter. She couldn’t even bring herself to put her name on it. It is clear she asked some subordinate to sign it for her, and that person actually signed it “Judge Ross.”

Judge Ross should be ashamed of herself. She materially breached the terms of her private reprimand many times over. Impeach her.

The post Judge Ross Did Not Even Sign Her First Apology Letter appeared first on Reason.com.

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