Restoring Integrity to the Federal Judiciary
At last night’s town hall meeting, Joe Biden expressed personal distaste for arbitrarily adding seats to the Court to counteract recent Republican overreach. However, he did not rule it out either, stating that his reaction depended on how the Republicans acted on the Barrett nomination. Biden promised a clear answer on “stacking” before election day.
Rather than reject or commit to stacking now, I think the better course would be to wait until it’s clear that the Democrats have won the Senate. At that point President-elect Biden should invite the Judiciary Committees of both houses to form a bicameral, bipartisan Select Committee to deliver, in sixty (60) days, recommendations for effectively depoliticizing the Federal judiciary. If Republicans balk, at least it can be pointed out that they were invited.
Recently, the New York Times collected letters from readers with suggestions for Supreme Court Reform, linked below. I’ve tried to organize some of these ideas by category here, and have added a few from other sources.
If you have comments or recommendations for amending this list, I’ll edit it periodically to add your thoughts.
[Note that this list only applies to Supreme Court reform. Trump and McConnell have been packing Federalist Society judges onto the Federal District and Appeals Courts for three years. Some of these ideas (particularly adding new judges) would apply, but there may need to be additional considerations for reforming and restructuring the lower courts.]
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Proposals for Supreme Court Reform
1. Minimum Requirements for Appointment
1.1. All candidates should have experience as judges or lawyers for at least 10 years.
1.2. Expand the types of people who become justices.
1.2.1. The Constitution does not specify qualifications for Justices such as age, education, profession, or native-born citizenship. A Justice does not have to be a lawyer or a law school graduate, but all Justices have been trained in the law.
1.2.2. The recent crop of justices have all been careerists, checking off the boxes as they climb: correct school, correct clerkship, correct opinions. Recruit justices who are more than achievers, who have rubbed elbows with all sorts of Americans, who have seen injustice up close, who recognize the practical implications of legal arguments — and of their decisions.
2. Resize the Court
The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred.
2.1. Republicans have used raw power to get three Trump appointments on the Bench. If Democrats win the White House and Senate they should “stack” (increase the number of justices on) the Court:
2.1.1. Get rid of the Senate filibuster so that a simple majority in both houses can restructure the Court.
2.1.2. Add enough progressive justices to counter the unfairness of the McConnell manipulations with Merrick Garland, Amy Coney Barrett, Brett Kavanaugh.
2.2. Adopt Pete Buttigieg’s idea of 15 justices: Five appointed by Republicans, five by Democrats and five by the justices themselves.
2.3. Increase the court to 15 members, but have only nine members randomly assigned to sit and rule on any given case.
2.3.1. This could reduce the controversy over any new nomination since adding one justice to the court will not be perceived as outcome determinative.
2.4. Shrink the court; remove the last two appointments.
2.4.1. Increasing the size of the court establishes a principle with no self-regulating limit and accelerates hyperpartisanship.
2.4.2. Instead let’s avoid that folly. That establishes a benign and fair principle: If you violate the norms of political civility and act in ways that undermine our constitutional union, what you do will be undone and you shall be remembered in history as dishonorable.
2.5. Impeach Trump appointees for lying to Congress during confirmation hearings to create openings
2.5.1. Even assuming that strong evidence exists to support removal, this would require 2/3 vote in the Senate.
2.5.2. There is some precedent for pressuring resignation based on ethical misconduct (see Abe Fortas). Brett Kavanaugh’s financial arrangements might be worth a look.
3. Term limits / Mandatory Retirement
The Constitution states that Justices “shall hold their Offices during good Behaviour.” This means that the Justices hold office as long as they choose and can only be removed from office by impeachment. However, many scholars believe it would be constitutional to move justices to senior status after they reach a certain age or have served on the high court for a number of years. Senior judges would continue to receive full salary (Constitution requires this) but could be assigned to sit by designation on Circuit Court cases.
3.1. Limit terms to 18 years and stagger them so that two vacancies come up in each presidential term.
3.2. Institute 15-year term limits.
3.3. Justices should be limited to one 12-year term, and they should be elected in a national election rather than chosen by the president.
3.4. Limit the justices to 9-year terms, so that one justice is replaced each year.
3.5. All justices should be required to step down at age 75.
4. Modification and Limits on Current Presidential Nomination Process
4.1. Both the Senate majority leader and the Senate minority leader have to agree on a nomination for it to go forward.
4.2. A nonpartisan committee — perhaps of retired justices and senators — should vet all prospective nominees and submit a list of approved candidates to the president. Maintain the constitutional process of nomination by the president with the advice and consent of the Senate.
4.3. Institute a mandatory 90-day process to ensure that appointments are not made close to an election — but also require that the vetting process must begin within 30 days of a vacancy.
4.4. First, retire the current batch. Second, establish a new method of appointing them: Put 10 vetted Democratic and 10 vetted Republican choices into a hat and pick out nine.
5. Alternative Selection and Confirmation Method
5.1. New Justices should chosen by lot from members of the 14 Circuit Courts.
5.2. Require the House to ratify a Senate confirmation with a simple majority before seating a justice.
5.3. Each year retire one Justice and rotate in a randomly selected Federal Appeals Court judges with a minimum of five years on the appellate bench.
5.4. Undo the “Nuclear Option”: Amend the Constitution to require confirmation of Supreme Court justices by a two-thirds vote in the Senate. This would encourage the nomination of widely acceptable candidates and deter the nomination of extremists. A stable Supreme Court, composed of justices who understand the value of compromise, stability and precedent, is unlikely to fall into the pit of corrosive partisan politics.
6. Supermajority Requirement for SCOTUS Decisions
6.1. Rulings should require a supermajority of the members.
6.1.1. It takes three-quarters of the states to ratify an amendment to the Constitution. Decisions of the court should be agreed to by at least three-quarters of the justices — which in the case of a nine-member court would mean seven justices.
7. Limit SCOTUS Jurisdiction
7.1. Create new specialized courts and vest them with exclusive jurisdiction over certain kinds of cases; do not permit appeals from these courts to the Supreme Court. Examples: Voting Rights And Health Care Rights (including abortion)
7.2. Use specific jurisdictional provisions in legislation to specify which Court(s) would have appellate jurisdiction
7.3. Limit Marbury v. Madison: Part of the answer rests in the fact that the role of the Supreme Court as the final arbiter of constitutionality is traditional, not legal. The court made it up 200 years ago and, for the most part, we all go along with it.
8. Provide for Veto of SCOTUS Opinions
8.1. The executive can veto the legislature, but the legislature can override the veto. This is understood.
8.1.1. So why is there no such counterpoint with regard to the Supreme Court?
8.1.2. Create a check against the Supreme Court. This should be in the form of a legislative veto, or more optimally a democratic referendum.
9. Popular Vote
9.1. To select Justices
9.1.1. Perhaps the court should be subject to periodic votes of confidence by which the citizens can disband the existing court if it rules contrary to the desires of the American people.
9.1.2. Justices should be limited to one 12-year term, and they should be elected in a national election rather than chosen by the president.
9.2. To Override Unpopular Decisions
9.2.1. We should create a check against the Supreme Court. This should be in the form of a legislative veto, or more optimally a democratic referendum.
10. Quit Electing Spineless Legislatures
The primary way to “fix” the Supreme Court is to fix our legislative process, so that major decisions don’t continue to be pushed up to the courts to solve. For too long, elected officials have failed to wrestle to the ground the thorniest issues facing the country — immigration, gun control, voting rights, policing — because they either are beholden to interest groups or fear short-term repercussions that affect their re-election.