Suggestions for Supreme Court Reform

If you are one of those people who holds quaint ideas that are no longer in fashion ... like, say, equal justice under law ... you've probably been incensed by the sudden rightward lurch of the Supreme Court and the shamelessly unethical behavior of some of the sitting justices. The questionably ethical acts of some of the justices, the fact that their lifetime appointments essentially place them above the law they oversee and interpret, the twisted reasoning behind some of their recent decisions, and their wholesale jettisoning of the doctrine of stare decisis has led to a crisis in the public's perception of a thoughtful and even-handed Supreme Court. This has, in turn, led to calls for changes to the structure and membership of the court*, and the imposition of detailed ethics requirements for the sitting justices. 

In April of 2021, President Biden chartered a bipartisan Presidential Commission on the Supreme Court of the United States (hereafter, "SCOTUS Study") to study the structure and function of the Supreme Court and make recommendations for changes that might be needed. The Commission issued its 294-page report in December of 2021 - a lengthy and well-argued document that provided excellent historical analysis and laid out numerous proposals for change along with their pros and cons ... but did not make any specific recommendations that might serve as starting points for action.

Because of the resounding positive response to my Immigration Reform Plan**, I've decided to go ahead and present

Bilbo's Initial Suggestions***

for

Reorganization and Improvement

of the

Supreme Court

1. Increase the size of the court from nine to 13, making the number of sitting justices equal to the number of US Federal District Courts. This would spread out the work of the Supreme Court among more justices, allowing them, when necessary, to take more cases and providing more time for consideration of cases and development of good rulings.

2. Apply the same ethics rules to Supreme Court justices that apply to all other federal judges. This is a complete and utter no-brainer, and can be imposed by Congress at any time. How anyone can possibly argue against this is beyond my imagination.

3. Eliminate lifetime appointments by establishing terms of service which are long enough to insulate individual justices from threat of removal other than for cause. This may be difficult to achieve without a Constitutional amendment, as the Constitution (Article III, Section 1) says that Supreme Court justices "shall hold their Offices during good Behaviour," which essentially means "for life, unless you do something so outrageously, blatantly, and offensively illegal that even the GOP couldn't stand the stench." I don't think this necessarily precludes term limits, because justices could still serve "during good behavior," but the terms would have to be long enough to satisfy those who believe that lifetime tenure insulates the justices from changes in the national political situation†. I suggest sixteen years, or the equivalent of four presidential terms; the SCOTUS Study suggested twelve- or eighteen-year terms. Justices who rotate out of the Supreme Court need not retire, but could be reassigned to vacant positions on other courts.

4. Stagger the terms of justices so that no more than two would be replaced by normal rotation in any single presidential term. This would help prevent presidents from stacking the court with ideologues, as happened under Der Furor.

5. Assign each case to a panel of seven justices randomly-assigned from the 13-justice bench. This will help prevent a single political or philosophical block from dominating all decisions, and the uneven number of justices would prevent tied decisions. The larger number of available justices in a 13-member court would also allow easier replacement of justices who must recuse themselves from cases to which they are assigned.

Those are my initial suggestions. None of them are new or original, but I think that, taken together, they are the ones that make the most sense. Of my five suggestions, only one - the ethics rules - can be done right now, and it should. Congress should seriously take up this issue, but as long as we have a divided Congress in which a noisily belligerent and authoritarian GOP wields outsized influence and would go all-out to protect its deeply conservative majority on the Supreme Court, there's no hope for change unless the Democrats regain control of both chambers.

Elections have consequences. We need to ensure that a Supreme Court that has - for the first time in history - taken freedoms away from us rather than protecting them is brought back to some semblance of fairness in the ideal of "equal justice under law." Think about this when you vote in this fall's general election, and especially when you vote for president next year.

Have a good day. More thoughts coming.

Bilbo 

* The Constitution does not mandate the size of the Supreme Court or the qualifications of its members, leaving that task up to Congress. Don't hold your breath waiting for Congress to take any action.

** Among readers of this blog, anyhow.

*** I was going to call it a "Plan," but I haven't worked out in my mind how it would be implemented ... thus, I'll just call it "Suggestions."

† We already know how well that has worked out for the nation, don't we?