Reforming the Supreme Court

There has been a great deal of discussion over the last year or two about reforming the Supreme Court. Exactly what that means and how it might be accomplished are being hotly debated, and there is - as always - a great deal of misinformation swirling around it. I have my own ideas, which we'll get to presently, but let's look at the history first.

The Supreme Court is established in Article III, Section 1 of the Constitution: 

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

There are two points to stress before we move on: (1) The Constitution does not specify how many Judges/Justices the Supreme Court will contain ... only that Congress will decide; and (2) The Constitution does not specify that an appointment to the Supreme Court is a lifetime job ... it says only that the appointees "shall hold their Offices during good Behaviour*." 

So, how did we come to have nine justices on the Supreme Court? The Judiciary Act of 1789 established the first Supreme Court, with six Justices: 

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum ...” 

Congress changed the number of justices on the Supreme Court several times for various reasons between 1789 and 1869, when the Judiciary Act of 1869 codified the current nine-justice court (a Chief Justice and eight Associate Justices, with six constituting a quorum). President Franklin Roosevelt tried unsuccessfully to add additional justices to the court in an attempt to advance his policy agenda, but this effort failed, and there has not been a serious attempt to change the size of the court since ... until now.

The present push to enlarge the Supreme Court began when Senate Republicans refused even to consider President Obama's nomination of Merrick Garland to the court, then pushed through the appointment of three new deeply-conservative justices** during Der Furor's administration ... including that of Justice Amy Coney Barrett, rushed through in that administration's last days in complete and shamelessly hypocritical disregard of the prior Republican justification for blocking the Garland nomination. 

The Court's sudden lurch to the conservative right, reflected in decisions that seemed to ignore both precedent and the evolving social and political environment of the nation, has rekindled the debate over the size of the Court and the tradition of lifetime appointments***. Incoming President Joe Biden issued Executive Order 14023 on April 9, 2021, directing establishment of a Presidential Commission to study the Supreme Court and make recommendations for possible changes or reforms, which commission released its draft final report earlier this month. Perhaps not surprisingly, given the political sensitivity of the topic and the present poisonous atmosphere surrounding the court and its newest members, the report identified and analyzed various options for reform and discussed their pros and cons, but did not make any specific recommendations.

I, of course, have my own ideas.

I think we can all agree that the authority and dignity of today's Supreme Court was badly damaged by the actions of Der Furor - whose routine desire to turn immediately to the Supreme Court to get his way on issues reflects his clear belief that the three justices he appointed are beholden to him alone, and not to the Constitution or the American people. The court's independence has also been seriously undermined by Congressional Republicans who bastardized the nomination and confirmation process to deny President Obama's choice, and have already stated that they will block any nomination made by President Biden. 

Given that any changes to the structure and function of the Supreme Court will be very difficult to achieve legislatively and will be angrily and bitterly fought by both sides, such changes are unlikely absent one party's control of the White House and of both Houses of Congress by overwhelming majorities†. Nevertheless, here's how I would proceed if the decision were mine ...

First, keep the court at nine justices. I think expanding it to include more justices working in rotating panels is probably a good idea that would allow more work to be done faster without compromising attention to legal detail, but it's just not worth cleaning up the mess left by all the exploding heads.

Second, if we are going to accept that the Supreme Court is the ultimate arbiter of what is and is not constitutional, nominees should be required to demonstrate a broad and deep knowledge of constitutional law.

Third, require Supreme Court nominees to be experienced judges who have served a minimum of six years on federal district courts.

Fourth, impose term limits on justices. Some have argued that this will somehow limit judicial independence, but I have yet to see a defensible argument about why that would be the case††. The term limits should be long enough to avoid turmoil on the bench, but short enough to allow each president to have an opportunity to nominate at least one justice in each four-year term. I believe a term limit of 18 years is reasonable.

Another interesting approach might be to rotate justices between the Supreme Court and the district courts, with no justice serving more than a single rotational term on the Supreme Court. This would ensure that Supreme Court justices have a practical understanding of the law as it is being applied by lower courts every day, as opposed how it was applied decades ago when they were appointed.

I believe that any of these measures would be an improvement on the situation we have now. The prospect of an America defined by decades of decisions made by the likes of Kavanaugh, Gorsuch, Barrett, Alito, and Thomas - who have already demonstrated their contempt for precedent and the evolving nature of American society, is terrifying.

Have a good day. More thoughts coming.

Bilbo

* "Good behaviour" is not defined, but I'm sure we all have our ideas of what it means. I'm sure that, for most Republicans in Congress, it would include standing naked on the steps of the Supreme Court and boffing a goat while waving a "Let's Go Brandon" flag. 

** There has also been extensive debate over the qualifications and temperament of the three newest justices (Gorsuch,  Kavanaugh, and Barrett), but that is beyond the scope of the present discussion.

*** Consider that Amy Coney Barrett, the youngest justice, is now 48 years old. If she remains in good health and follows the lead of the oldest justice to serve - Oliver Wendell Holmes, who retired at age 90 - she could be on the bench for another 42 years.

† Of course, should those majorities be Democratic, future Republicans will all but certainly refuse to accept the electoral results. 

†† I don't think anyone can argue that the current process limits judicial independence, when Der Furor clearly believes that "his" justices will do his bidding.