How To Resolve The Supreme Court Dilemma Open Thread
Okay, there is a vacancy on the Supreme Court. This vacancy is likely to be filled in the next month or so. The fact that this vacancy is likely to be filled is making a lot of people reach for their Pepto-Bismol.
So I wondered… how could we improve the system whereby we get justices? If there’s a Constitutional Amendment, what would it have to look like? If it’s a set of rules that the Senate adopts and can only get rid of with a supermajority, what would that look like?
And I came up with a set of rules that said “You have to assume that Trump gets re-elected… what rules would you institute then? Now assume that Biden gets elected. Are the rules in either case significantly different from each other?”
Here’s what Orin Kerr suggests:
The 28th Amendment to the U.S. Constitution.
(Just my proposal.) pic.twitter.com/REtfTGBWJE
— Orin Kerr (@OrinKerr) September 21, 2020
My suggestion also involves amending the Constitution. How I would have it done is like this:
50 justices, one per state. Justices are picked by the governor of the state and approved by the state legislature.
A lottery system picks which ones are on the bench for any given case.
You can’t be on the bench for a case that directly involves the state that picked you.
— Jaybird (@OG_Jaybird) September 21, 2020
(I didn’t have enough space but I don’t care about whether it’s fixed term or lifetime appointment. How I wanted it fixed was to remove the President from the process entirely. Oh, and the lottery would be to pick the 9 justices sitting on the bench.)
Now, the important question is “How would YOU fix it?”
Or, heck, talk about what you want. It’s an open thread.
(Featured image is “The Gordian Knot” by byronv2 and is licensed under CC BY-NC 2.0)
“Assume a can opener. Well, not a can opener, but a political party that respects democracy and the rule of law.”Report
1. Respect Democracy
2. Respect Rule of Law
Pick one.Report
Can’t have one without the other so I’m not sure what logic is at work here.Report
You’re using the terms differently than is common, then.
Let’s go to the wikipedia for “Rule of Law”:
Now, the wacky thing about Rule of Law is how it comes into conflict with Democracy which is notoriously fickle and subject to the whims of fashion and the desires of the mob.
It wasn’t *THAT* long ago that we were having debates about Gay Marriage.
Democracy had a bunch of conflicts with Gay Marriage… but it was Rule of Law that said “Nope, this is a thing that our Rule of Law covers.”
Which has primacy in your view? When the two come into conflict (and the two *WILL* come into conflict), you’ve got to pick the one that you’re going to respect.
Pick one.Report
Democracy and rule of law both depend on the same thing, which is mutual respect for the other citizens.
Mobocracy isn’t democracy, because it inevitably requires minority power to enforce.
A cursory history of Jim Crow demonstrates this neatly, as does the current incarnation of the Republican Party in states they control like Wisconsin.
What you’re looking for here in your examples of rule of law, is respect for minority opinions.
Once again, the history of how Jim Crow jurisdictions thwarted the rule of law after Brown illustrates this.Report
Democracy and rule of law both depend on the same thing, which is mutual respect for the other citizens.
This is not true.
(Stuff that follows from false premises shouldn’t be trusted to be true either.)Report
Well, I’m convinced.Report
That’s a statement about your internal state rather than about the truth of the proposition, though.Report
C’mon, Jaybird, that’s a statement about your weak explanation.
Chip, the conflict is between “rule of law” as rule of written down non-negotiables and “democracy” as the ongoing process of negotiation and/or the feelings of the mob. They come in conflict where the people decide there shouldn’t be a mosque near the site of the 9/11 attack, Or when a Supreme Court rules in favor of a New Deal plan in order to prevent the president from stacking the Court. In that sense, Jaybird is right. In the sense you’re talking about, there’s nothing contrary between rule of law and democracy, and they both do rely on goodwill.Report
Yes, that’s called respect for the minority view, where the majority willingly complies with the rule of law.
Sometimes they do, and sometimes they find ways to flout the law.
This proposed rule would work beautifully in a world where the majority and minority respect each other, and the rules.
We don’t live there anymore.Report
If he had opened with “We need two political parties that believe in mutual respect for the citizens in the other one”, I think I’ve have hurt myself in my haste to agree.
It’s the argument that “Democracy and rule of law both depend on the same thing, which is mutual respect for the other citizens” that is false.
I mean, it’s not that they are mutually exclusive with respect for the other citizens, of course… sometimes they have that!
They just don’t necessarily have to have that and, in living memory, there are numerous examples of them *NOT* having that.Report
Well, that may have been what you were thinking, but it read like you had spotted the highest horse in all the land and couldn’t wait to get on it. And this is the internet; we’re all only here for one reason, and that’s to get on that horse. We can’t rush it though. We need to approach it, make it feel safe but also know we’re in control, then when we get up on it everyone will say “look how well he rides that high horse!”Report
I’ll try to come across as more cynical and grounded in the future.Report
“look how well he rides that high horse!”
OK, that is the funniest thing I have read in weeks.
Bravo!Report
Fact: Amending the constitution is not easy.
Fact: Expanding or contracting the size of the Court is easier and that is not easy either.
What are the incentives for partisans to ratify this amendment? I suppose I can see them theoretically and grandly but theoretical is not actual. Maybe the benefits are more present for my side than the GOP right now. McConnell is going to get his seat and even if he loses his majority it will not be a massive defeat probably. Democrats will have a bare majority and need to deal with inhouse moderates and diehard institutionalists who do not want to change tactics radically. Mitch’s gamble could very well pay off. A 6-3 majority on the Supreme Court and no court packing or Senate reform. Any legislative reform gets smashed by Trump’s right wing hacks and we have white minority rule.Report
How many judges do you think Trump should add to the court in the next month, Saul?
How many judges do you think he should have added from 2017-2019?Report
What happens when Trump nominates a Latina woman such as Barbara Lagoa?
Or does being conservative automagically make someone white? Is this done with tricknology?Report
Make the seats hereditary and you never have to worry about filling them again. Of course with advances in life extension and the potential to one day download a human consciousness into silicon, Trump’s picks might end up serving until the Sun runs out of hydrogen, swells into a red giant, and swallows the Earth.Report
Come now. Tell me again how inheriting position worked out without any sort of fighting in Europe. Let’s start with adoption. Does one of Roberts’ adopted kids inherit his seat? Who gets Thomas’s seat, the son he had with his long-divorced wife or the grand-nephew he later took legal custody of? Sotomayor is 67 and has no children.Report
If a justice has no children, their seat reverts to the executive.
The only downside is what happens in case of disputed succession.Report
I’d keep it simple. Cap it at 9 justices. Any nominee has to be voted on within 90 days. Failure to hold a vote results in appointment. Handle the business, no more parliamentary shenanigans, no way to dodge it or avoid going on record.Report
I struggle to see an issue with this. I mean, even if the Senate is on recess or something, is it ever longer than 90 days? I suppose it means that the background checks and what not will need to be faster and things may be missed. But it also seems like if you can’t find what you need in 90 days, it either isn’t there or you aren’t looking hard enough.Report
I believe one of the Sunday shows I was watching said since the late 70s the average time to confirm is something like 76 days and it has been done as quickly as 44. But if we need to make it 120 then that’s fine by me. I don’t think a term limit or some scheme to draw panels from the federal judiciary addresses the core issue. It would just take the fight we have now to the lower courts (not that they aren’t partially already there) and probably make the judiciary far more partisan than it is now (a problem that IMO is way overstated today).
My big beef is that there is no legitimate reason to not have an up or down vote. If a Senator believes someone isn’t fit own it. What shouldn’t be allowed is this BS defection routine where public servants chose not to do their jobs.Report
Well if enough of them get sent routinely packing for NOT doing their jobs that might work. As an astute Kentuckian noted to me yesterday however, as long as they vote for things their state wants, and they keep being returned to power, they have no incentive to change.Report
That sounds like a boo-hoo excuse for not winning an election. In a democracy you have to make the case for yourself. There have been D Senate majorities before and there will be again.Report
not my point. Elected “public servants” who routinely don’t do their jobs keep getting reelected. Thus they conclude based on feed back that they can keep not doing their jobs. And we keep getting ever more shrill about them not doing their jobs, and they keep getting reelected.Report
The public servant viewed stopping Garland as part of his job. That played a big role in Trump being elected.
We’re pretty deep into dirty politics, Blue-Red disagreeing on who should be a Supreme, and both sides do it.
This is lots of things but “not doing their job” isn’t one of them.Report
Well, what’s their job? Who decides?
If the voters are their bosses, then their job seems to be something other than voting on nominees.
If their job is determined by the Constitution, they’re undoubtedly being derelict.Report
Much of their work is directed by the Constitution, but not the timing. Take federal Spending – the Constitution lays out the requirements that Congress decides how much the government spends and forces the House to be the place where such bills start. Which is generally what happens, but then the Senate gets bogged and avoids it like the plague – and has for decades. We are 9 days from the end of the federal fiscal year, and there’s no completed appropriations bill. The house finished all 11 bills in July. the Senate has taken up none of them. Nor is a continuing resolution even being debated on the floor. In fact, we haven’t had regular order appropriations – meaning in place by 1 October – in my 18 year career as a fed. I would argue the Senate’s failure to do the job the Constitution gave it it dereliction of duty.
Likewise, the Constitution says the appoints with the Senate’s advice and consent. In the Garland case, they refuse to give advice, much less consent. They held no hearings and took no votes. That is certainly withholding consent, but its also dereliction of duty – which is how I read InMD’s post.Report
Why didn’t the GOP senate allow the Garland hearings and then just vote no? And keep voting no on every subsequent one? Did they fear that would look worse than then stalling for 10 months and 180-ing 4 years later?Report
Because it wouldn’t have worked. They’d need 51 votes and Team Blue would have put a lot of pressure on whoever was weakest.
What they did was played the Mitch-is-an-asshole card (he currently has Biden’s old job which is why it’s called the Biden rule) and limited the political damage and/or exposure.Report
1. Biden was never Majority Leader.
2. It’s only called ‘Biden Rule” by people who parrot Fox talking points.Report
You’re right, Mitch and Biden had different jobs so I’m wrong on the “same job” point… however I’m right as far as them both having that ability.
Biden was the chair of the Senate Judiciary Committee. Supremes need to move through that committee.
So yes, he could do it.Report
Because if individual senators had been allowed to exercise independent judgment, Garland might have won.Report
Garland was approved for the DC Circuit by a large majority, and the Republicans who voted against him all said it wasn’t because Garland, it was because there was no need to fill that seat at all. He’d been a model of a moderate justice on the second most important court in the country, highly-regarded as the Chief Judge there, was considered brilliant and his opinions seldom had any dissenters. More embarrassing to vote against that record than to simply not vote.Report
I seem to recall doing this with Scalia. I’d bump it 22 years on the bench, but yes, I think the idea of lifetime appointments is past it’s sell by date. It was one thing when making it to 60 was a life long lived, but today…Report
No amendment needed, just some simple civics lessons.”Your party will not always win.” Followed by “the future does not have a liberal bias.”
And a strong dose of “hamartia, koros, hubris, atê, nemesis”Report
If you’re still butthurt that Bork lost and Democrats didn’t abandon Obama for Romney, you have not absorbed ”Your party will not always win.”Report
Switch Bork with Garland, and it applies equally.
What is the mathmatical term for this?Report
In game theory, it’s called the “grim trigger“.Report
This only makes sense if you know nothing about Bork and the reasons he got voted down. Granted i don’t think much of anybody cares to know the issues around him but big differences.Report
And your comment only makes sense if you know nothing about politics.Report
Saturday Night Massacre….anything???? Is this thing on? (taps mic)
Bork’s actual stated views….any info?Report
The politics were “you crushed my guy, I will crush your guy.”
No more, no less. Stated views, past votes, none of that matters. It is tit-for-tat in the crunch.Report
No, the politics were “You crushed our guy two decades ago and after holding that grudge but not taking it out on any liberal justice since then we will finally crush your guy by not even acknowledging him.”
I’d also note Bork got hearings and votes which Garland didn’t.Report
The politics were “Our base can stay butthurt forever.” It’s the Republican not-so-secret weapon.Report
“We can keep our base butt hurt to our advantage forever.”
Fix that for ya.Report
Pot.
Kettle.
Black.
Everyone thinks their shit don’t stink.
Everyone’s shit stinks.Report
Bork is a great distraction. Especially since he got a committee hearing and vote, and then a floor vote in the senate. And 6 of the senators voting against him (out of 42) were Republicans.
But sure, he and Garland are equal. and Garland is definitely payback as opposed to naked power politics.Report
“Revenge is a dish best served cold”
-KAAAAHHHHHNNNN!!!!Report
The *SMART* play would be to nominate Merrick Garland.
I mean, sure. He’s pretty problematic. Sexist, probably racist too. But I imagine he’d pick up enough democratic senators to make up for the republicans who’d be upset.Report
I’ve been saying this all along. Trump should nominate Merrick Garland and we all could enjoy a lot of “but achtuallys”.Report
From your lips……..Report
I’d be thrilled to see Garland nominated. He still deserves hearings and an up or down vote. And yes, he’d garner democratic support.
But we all know that won’t happen. None of the judges nominated so far in this administration come close to being liberals. So it would be hugely against type. Plus, he’s never been on any of the Heritage Foundation lists, and Trump is rubber stamping those left and right.Report
That’s nuts. If Garland was nominated the Dems would vote for him pretty much 100%. It’s an open question as to if Mitch would schedule a vote though. Also Trump would loose the election in a landslide as his enraged social con supporters suddenly discovered he’s an evil man.Report
I see no bad outcomes in that scenario.Report
Neither do I, but that is not the timeline we live in.Report
This is not going to happen. A Trump troll would be nominating someone like Neomi Rao. The whole point of this is to secure a 6-3 majority on the Supreme Court even if it damns GOP chances for the Senate. Maybe Mitch already thinks the GOP will lose its Senate majority anyway.
What Mitch is gambling on is that Democrats will essentially do nothing if they receive a majority and the Federal Courts will be staffed with young or youngish reactionary firebrands who will block progressive legislation for decades to come.Report
And I think the Republican Party would be willing to trade away national control of politics for the ability to increasingly lock in their power at the state and local level.
With a compliant SCOTUS, the new Jim Crow could be accelerated.Report
I have sometimes wondered about this. At the present time, I see no reason why the Republicans should think they are reduced to retreating to the state level. Presidents can do a lot without Congress — Congress has ceded enormous power to the executive branch in the last 120 years — and they’re still competitive for the Oval Office.Report
MItch is absolutely willing to do this. The GOP has said they are willing to do this for four decades. They control 26 governorships right now, and at least that many legislatures.Report
Why Rao vs. Lagoa.
I’ve heard from my Catholic network that Trump and ACB don’t like each other. Lagoa is Catholic (according to wikipedia) and a Latina from Florida…as far as ‘trolling’ goes puts the Dems in an even tougher spot. Although, I sometimes hear tell from the left that we can discount Cuban Americans as inauthentic Latinas. Which, I suppose, would be the point… lectures from the left on authentic and inauthentic Latinx.
Now, I also have no idea what Lagoa’s judicial philosophy/chops might be… and it would be the ultimate Trump Troll to use his pick to seat a female Souter… but hey, that’s precisely the level of presidenting we’ve come to expect from him.Report
Well there is this reason to think Lagoa is not good and also a reason why T might want her.
https://slate.com/news-and-politics/2020/09/barbara-lagoa-supreme-court-poll-tax.html
If it’s her i have no doubt plenty of D’s will make bad arguments against her. But Biden is also a practicing Catholic so i’m expecting plenty of bad faith arguments coming back.Report
Well of course she’s not good in an article written on Sept 21, 2020… I’m curious in what ways she was not good before RBG died.Report
This is from March:
Personally, I think that there *MIGHT* be some fertile ground in the whole “why in the hell don’t we have public defenders on the bench?!?!?” but I’m a bleeding heart.Report
I read today that Kamala Harris is going to spearhead the opposition: No more cops! No more Cops! No more… shit… Let’s go back to that Latinx thing.Report
Oh, I’m sure Democrats are just filling out the standardized “This nominee _______ me at a ________” forms, complete with checkboxes like:
_ Murdered puppies with a lawnmower.
_ Took part in Satanic orgies.
_ Ran a sex trafficking ring.
_ Works directly for the Pope.
_ Owns a Confederate flag bedspread and an MLK Jr. dart board.
The Senate confirmed Lagao for the 11th circuit last year, 80-15.Report
Who were the 15?Report
Question: On the Nomination (Confirmation: Barbara Lagoa, of Florida, to be U.S. Circuit Judge for the Eleventh Circuit )
Voting Nay:
Bennett (CO)
Brown (OH)
Cantwell (WA)
Cortez Masto (NV)
Gillibrand (NY)
Hirono (HI)
Markey (MA)
Merkley (OR)
Murray (WA)
Rosen (NV)
Schatz (HI)
Schumer (NY)
Stabenow (MI)
Van Hollen (MD)
Wyden (OR).
Not voting:
Booker (NJ)
Harris (CA)
Klobuchar (MN)
Sanders (VT)
Warren (MA)
Roll call vote 360 of 116th CongressReport
My solution: do away with separate seats for the Supreme Court. Instead, the Circuit courts will have Justices and Associate Justices. The Supreme Court will consist of the Justices of the Circuit courts.
The Court will empanel cert committees from time to time; and each case will be heard by a panel of seven Justices chosen by lot. (No Justice who heard a case at a lower level shall hear it again at the SCOTUS level.)
I still haven’t figured out the role of the Chief Justice.Report
Chief Justice chosen by lot per case. Closer to having the role of Jury Foreman.Report
Obviously the CJ picks the take out place for lunch.Report
I vote for Arby’s!Report
Arby’s? Talk about knocking yourself off the short list.Report
What is the definition of “each case”? The Supremes are asked to rule on FAR more cases than they actually do.
Picture dozens of abortion rights cases making their way up to the court. If choice/life justices are split 50/50, then just by flipping a coin you should expect SERIOUS differences between the rulings even in the same year.
What happens when one set of Supremes say “Roe is gone” and another says “Roe is the law”?Report
18-yr terms with the President Appointing 2-justices every Term (Year 1 and Year 3) … with InMD’s 90-day ‘silence = consent’ approval process is probably the simplest reform that de-escalates and has a chance of passing since each side doesn’t see an obvious loss. The avg. age of a justice at appointment appears to be 50+/- so, mandatory retirement around 70 could be viewed as a mercy.
I’m on the fence about having the pool pre-selected by the States… I kinda like it with my decentralization hat on, but I kinda don’t with my ‘states are broken’ hat on.
Chief Justice would the Senior Juror… which after 18-yrs would just be a simple 2-yr rotation.
And, as luck would have it… the justices by age are paired L/R for the next Three presidential terms.Report
Don’t nominate anybody, and make it a campaign issue. “You know there’s just gonna be a big fight and there’s no way the Democrats will let someone get nominated, they’ll use whatever dirty tricks they can pull, so I’m not gonna waste my time, but you better get out there and vote to make sure I’m still President after November so that we can make sure that seat stays Republican!”Report
Romney has announced that he’s going to vote on (not necessarily *FOR*) the nominee if put up for a vote.
Looks like we can dig up and brush off “Mittler Rommelney” again.Report
Expand the Supreme Court and other Federal Courts to get more liberal justices in. Ignore the normal procedural rules and do it fast.Report
Do it fast? Like in the next 40 days?Report
And this is why you can’t have nice things.Report
Remember when Bork’s bipartisan loss was the worst outrage in history?
Good times, good times.Report
Merrick Garland was the tat for that tit.
Now everybody is even.Report
It’s the usual Republican thing, where the response to any perceived slight is total warfare forever.Report
Personally, I’d argue that there are limits to their jurisdiction and it is far, far, far from where they think it is.
Even at the cost of having limits to my own jurisdiction.
But I would.Report
Damn, Bork was in ’87. Talk about a dish best served cold.Report
I, personally, am still pissed off about Doug Ginsburg.
Thanks, Nina Totenburg!Report
No kidding! Bounced for some 20 year old weed smoking.Report
He wasn’t actually “bounced.” We have no idea how a vote would have gone because Ginsburg withdrew himself from consideration before any significant opposition emerged.Report
I gotta think the writing was on the wall for the nomination. Reagan probably didn’t want another fight in the Senate after Bork.
I do recall thinking, even at that time, that surely no one would be surprised that someone who was spending time in college, then in a collegiate setting, would be blowing the occasional doob.Report
There are actually several problems to solve here:
Problem 1: Obstruction by the Senate
Solution:
Give the Senate a maximum time to approve or reject, with appointment happening by default.
This solution has been mentioned by others here, with additional arguments; it needs some refinement, though, see problem 3.
Problem 2: The urgency to have a full court
Solution:
Add a number of judges to the court, like 3, with a lottery determining which 8 judges sit for a case in addition to the chief justice.
The chief justice has the task to guard consistency of court rulings, so should be the only permanent member.
In case of a vacancy nothing changes as there will always be 9 judges sitting to hear and decide a case. Without urgency solutions to problems that extend the duration of the process become feasible.
Problem 3: Rushing through an appointment
Solution:
Let the Supreme Court prepare a shortlist of candidate judges, with 7 names on it to be presented to the president within 30 day of the vacancy. If the court fails to deliver, the President can nominate anyone he wants. If the Senate rejects the first 6 nominees from the shortlist the last one is confirmed by default.
The court can decide to take its time to prevent a rushed decision. The shirt list and default nomination of the last one also prevents the senate from stretching the process by repeated rejections. By being proposed by the court it self, the default candidate is assumed to be qualified. To determine the short list the judges could use a suitable election system like a transferable vote.
Problem 4: Transparency of nomination.
Solution:
have the states nominate a long-list of candidate judges ,e.g. maximally two per state, from which the court picks its short list. That list should be presented to the court within 21 days. In this case the Supreme Court should also have 21 days to make its short list. If the states provide less than 3 times the number on the shortlist, the supreme court first publicly complements the long list to that number.
The state should decide how to do this nomination, the Governor might be a good pick to have it done fast enough. Such a large list of candidate judges makes it very hard for the preferential treatment of any candidate in particular, so the nominees on this list are likely to be chosen as much for their qualifications as for their ties with the deciding body in each state.
Problem 5: Gender balance:
This can be done by solution #3 with: The shortlist should evenly contain both genders. When adding a second candidate a state should nominate one with the opposite gender.
The solution to this problem can only be a strong recommendation for the shortlist, and a weak requirement for the states.
Problem 6: The possibility of an politically biased court
Solution: most of the preceding solutions contribute to addressing this.
Problem 7: Lifetime judgeship.
Solution: Retirement of judges after a specific age, e.g. 75.
Retired judges could be granted the title of judge emeritus/emerita, and as such still partake in the vote on the short list.
—-
It may be that none of those solutions require a change of the constitution. A law that seals itself with a qualified majority could encode the desired procedures. For instance the retirement solution could be accomplished by adding a new judge, with the court applying a rule that does excludes a retired judges from being called to sit on a case.
A constitutional change might seem to protect against a misbehaving Senate, however that only works if the supreme court has the effective power to enforce that, meaning that the situation would be in constitutional crises mode.
A law that clearly specifies the behaviour and (moral) responsibilities of all involved would at least cmake clear where the misbehaving happens.Report
I like 1, I like 2…
I don’t like 3. It’s a formula to have the court’s bubble be enforced by law. (I mean, sure, we all know that the Supreme Court has either Harvard Law School judges on it or Yale Law School judges on it but that’s not mandated… if the court is stuck with knowing a guy who knows a guy, it’s *NEVER* going to change.)
Oh, wait. I like how 4 addresses this.
5? I haven’t an opinion.
6? I’d like for there to be a national conversation about what the law is supposed to be and what it’s supposed to mean. I’d like everybody be able to talk about legal interpretation and talk about how they interpret such things as “the people” or “cruel and unusual” or “speedy”.
7… eh. I don’t see the age of judges as a problem, really. I see the lack of diversity on the court to be related to Harvard and Yale rather than to whether someone remembers the introduction of color television.
Half of the problem is that we have a citizenry that is less than engaged and the other half has no idea that there might be limits to its jurisdiction (or whether there ought to be).Report
#3 purpose is to add a delay at the start of the process, in order to mitigate a rush-through. Whish is what we presently see. I agree, it introduces the negative of a coopting body. #4 is directly based n your suggestion and it takes care of the cooptation problem.
#5 would be a no brainer in Europe, I suspect it would be a major political battle in the US.
#6 I agree, those issues should be discussed as political item on which a difference of opinion may be possible and for which a compromise can be found that has everybody equally happy and unhappy. By not having the discussion in legislative bodies, it is left to the Supreme Court to take care of loose ends. That’s a bad place for it to be.
A politically biased court ruling, a bit more likely on such holes left by missing legislation based on lack of public discourse, may damage its legitimacy with is bad for everybody.
#7 Age of a person is not the problem it’s the gerontocratic trend that I’d identify here. In that aspect an age limit could mitigate this trend.Report
Nice ideas, let us do what we do and parse:
1. Sure… my primary objection to the Garland episode was not holding a vote… if you have the power to approve, then you must use it or the approval is assumed.
2 is interesting… but it would mess with my preferred Term Limit… I suppose we could go 22-yrs terms with 11 justices and a weighted lottery. (Would have to do something to account for odd RNG that might under/over-utilize a justice)
3. No, as JB says last thing I’d ever do is have the SCOTUS participate in their make-up.
4. Not as it’s related to #3, but open to it as a pool of qualifieds.
5. Preemptive no on identity quotas as the Left has shown itself to be unreliable on the definition of and proliferation of identity…
7. The issue with mandatory age vs. term is that you could bunch-up a whole contingent of justices who’d turn 75 in the same presidential term.
Other than jurisdiction, the scope of which the court appropriated for itself, the plain text of the constitution is pretty sparse, and I’m given to believe that Congress has great latitude in it’s make-up … so yeah, not sure any of these really require a constitutional change (unless i’m overlooking something obvious somewhere in the constitution).Report
Keep the number of justices at 9. The justices will be the starting offensive and defensive linemen from the team that won the Super Bowl. Their term shall be from one week after the game is played up until the week before the start of training camp. The Center is Chief Justice.
In cases where the defense plays a 3-4 and not a 4-3, the final seat shall be filled by either one of the middle linebackers or starting strong safety, chosen by lottery.Report
Stuff like this would make Belichick’s cheating a national crisis.
Also, we’d have to mandate stuff like The National Anthem happening before a game.
OH MY GOSH AND THE REFSReport
James Joyner has an interesting suggestion from a commenter:
Report
What “legitimacy” problem?
What has happened is Team Red put “too many” judges on the Court and Blue wants to court pack so they can have too many judges.
If you flip a coin 9 times then your odds of getting an even split are not good.
If your definition of “fair” or “legitimate” is “my side has more” then the problem isn’t with the coin.Report
Well, I tend to agree with the idea that judges shouldn’t be partisan legislators.
I like the idea of a judge who says “what does the law say? What does the Constitution say?” and then, if those two questions don’t get us to a quick answer, asks “what does precedent say?”
Of course, I’d also like “What does the Constitution say?” to include a moment wandering through the 9th Amendment… but the idea of a judge making a partisan ruling is *BAD*.Report
If you really want judges who will follow the law rather than their party, you want Republicans nominating them. It’s true in both theory and practice. The Republican-nominated justices believe in impartial ruling, and they don’t decide in packs like those nominate by the Democrats. Let’s be honest: did Ginsburg ever “surprise friend and foe alike”?Report
As they say, a good ruling makes both parties unhappy.Report
You want Reagan and George HW Bush picking them. I don’t think Alito is ever going to surprise anybody.
But the real problem is that at SCOTUS level, there’s rarely such a thing as “following the law”, because if it gets that far, the law probably doesn’t contain an easy answer.Report
The question that this essay sidesteps is what “problem” is it attempting to solve, and is it even a problem to begin with?Report
Well, Trump is going to nominate a judge for the Supreme Court.
This is making a lot of people upset.
How could we set stuff up so that it doesn’t make a lot of people upset?
And if you say “well, you’re not saying *WHY* they’re upset!”, you’re right. I’m not. I assume that there are a bunch of reasons and different people are upset about different ones.
What I want is a “solution” to the “problem” that will “result” in the “fewest” people “yelling” that they’re going to “burn” the “system” “down”.Report
In reviewing the history of the United States, why would anyone assume that a tweaking of the procedural rules for SCOTUS appointments would solve the problem of people getting upset?
I think a lot of this is the amnesia of our generation that came of age in an unusual era of relative bipartisan agreement on the fundamental character of America, and what a republican democracy meant.
The Founders would have understood this political moment very well, and felt right at home in it.Report
Well, I suppose Civil War remains on the table.
It was a good run, I guess.Report
If the Civil War is your only data point for “ferociously contested issues” then yeah, I guess.
But American history is amazingly easy to find online. Heck, its even in a Broadway musical.Report
“The slave owners who shot each other would have been comfortable with this situation.”
“I’m not certain what my takeaway from that observation needs to be.”Report
Your takeaway should be that this is not a new situation.
Visit Wikipedia and browse Marbury v Madison, or the 1876 election, or the battles over the New Deal, or any of the other highly contentious battles over the procedures and structure of the US government.
Americans have gotten upset with each other many times in the past, and in fact, the structure is set up to accommodate this.
Sneaking in a court appointment at the last moment is perfectly in keeping with the Constitution, as is adding three new states and 5 new justices.Report
“Sneaking in a court appointment” falls into bsdi territory and there are natural limits on when and how often it can be done.
Creating new states would be fine, there are also natural limits there. However none of the proposed new states are viable economic entities. Puerto Rico is the most viable and it’s repeatedly refused to try to become a state.
5 new justices has no upper limits on it. If you do that then does anything stop the GOP from creating 10 the next time they have power? The tit-for-tat aspect of this would be extremely destructive.Report
Indeed on the justices, but why stop at ten? It might be easier to reduce it by [how many the Dems introduce] to get it back in “balance.”
Also, this:
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*Snicker @ “give McConnell the moral basis*
The GOP currently has no self imposed limit on their grasp for power.
Yes, if they have the ability they will pack the court. The Dems have no power to stop this.Report
Remember “elections have consequences?” Well, this is what a consequence looks like. Screaming about packing the courts at the first opportunity? What self imposed limit does that show?
As of now, the R’s have never to my knowledge said anything, or shown anything about increasing the numbers of justices. But as soon as the Dem party figures out that they might be on the losing end of the nomination process, they scream bloody murder and then plot to stuff the courts.
Girlfriend, please.Report
Where in the Constitution does it say anything about “viable economic entities”?
Congress could keep going and make Samoa, the Northern Mariana Islands and US Virgin Islands states each.
“When you have the Senate, you can do whatever you want”.Report
Clearly it doesn’t. However let’s walk through the steps in this plan slowly.
Step One: You take a group of economic entities and you make them states. This is done against their will because they understand that you’re burning down their economies even if you don’t. (PR has repeatedly voted this down for good reason.)
Step Two: ???
Step Three: Profit!
The part I don’t understand is Step Two. There seems to be a disconnect in there somewhere.Report
I’m pretty sure the Constitution says that you can’t make a place a state against its will. Its own local gummint has to be on board with it.Report
Stop using the Supremes as a way to solve identity issues. Treat the states as mini-countries for most identity + civil rights issues and let them come up with their own solutions.
So while we might still have maybe 5 states without gay marriage, we’d also have national pressure on local scumbag politicians and they’d fold sooner or later.
The court is still riding on its success in getting rid of Jim Crow… but not every issue has that kind of moral weight nor that level of clarity and there are serious costs and limits to social engineering.Report
I agree with Chip, on this one issue at least. This is why I didn’t list any rules changes up above when I first answered this question.Report
My plan is simple, and doesn’t require a constitutional amendment:
*Size of court not fixed
*A new justice appointed by the president every 2 years, immediately following the election and new president/congress taking seats.
*Justices have no term limits. They die or retire without getting replaced.
*President nominates the Chief Justice from among members of the court when previous CJ dies or retires.
Nominating right away means that the president probably doesn’t have to worry about the senate filibustering all possible nominees. I don’t think the Senate can hold seats open for two years, given that the president can use the veto to shut down all legislation if it comes to that.
Let justices establish their own norms about retiring. I expect you’ll see something like 18-22 year terms happening on their own, pairs of ideologically opposite justices agreeing to retire at the same time, etc.
Fundamentally, I think the arrangement I’ve proposed above just lowers the stakes a bit. And I think lowering the stakes is good for our court and our country as a whole.Report
You know what?
That’s not bad.Report
Do away with the concept of judicial review and force Congress to actually legislate. Co-equal branches should not mean that the supreme Court is the arbiter of our democracy because nine unelected people or however many unelected people shouldn’t be the goddamn arbiters of our democracy.
once the supreme Court’s not the be all and all we’ll probably find ourselves nominating judges for the basis of judicial decisions not the basis of their ideological compatibilityReport
What’s the alternative solution for unconstitutional laws? I’m not sure constant, unchecked and unprincipled swinging back and forth between majoritarian impulses is an improvement. At the very least such a position has quite the burden of persuasion.Report
One of the points of SCOTUS is to be a trailing indicator of law. There is a very solid reason that it takes both of the other branches to decide on a justice (and yes, both of those branches are elected) along with the lifetime appointments and the need for a multiplicity of them. It is a smoothing factor.
The real reason it is so fraught isn’t SCOTUS itself (usually) but congress abdicating its job. A whole lot more laws need to be tossed back as unconstitutional.Report
I too see the issues as arising more from the political branches than the court itself. All it has is its integrity and the assault on that is coming from without, not within. It isn’t like the political criticisms you hear are grounded in jurisprudence, aggregate decisions, or even the facts of a given case. They’re outcome based gripes about a handful of difficult issues that touch on the culture war or other big partisan flashpoints.
Which isn’t to say there’s no partisanship in the judiciary just that it’s vastly overstated and could be mitigated by a less dysfunctional Congress. There isn’t anything inherently wrong with a court acting as a backstop in the balance of individual rights and the perogatives of the state.Report
Before more laws can get tossed back, the courts have to stop tossing them for standing.Report
They can’t do that without tossing out centuries of Western law. I can’t sue Oklahoma “on behalf” of the Cherokee. I can’t sue the city on behalf of some victim I read about in the paper. A court case has to be between two parties who have a dispute, otherwise one or both parties to the dispute aren’t actually in court to make their case.Report
My general thought on standing is that if a court is going to rule on whether or not someone is eligible to sue, then they have to be crystal clear on who can sue. And if they aren’t going to do that, they everyone has standing, everyone can sue.
Also, the legislative branch needs to be more proactive in impeaching justices that overstep the bounds of its remit. No more legislating from the bench. That guarantees a culture flame point.Report
Exactly. Standing always seems to me (and perhaps the lawyers here know better) to be determined ad hoc, and depends an awful lot on how a given judge feels about the case or the participants.
Personally, I have a problem with the idea that at a minimum, a person has to be impacted by a law before it can be challenged. There should be a way to challenge the constitutionality of a law without first having to run afoul of it. A person should not have to risk prison for the opportunity to challenge something.
I get that limiting standing prevents every yahoo who thinks they have a novel legal theory from wasting the courts time, but there should be some mechanism by which a law can be challenged before it risks destroying a person.Report
Keeping projects classified is also a great way to deny standing.
“I’d like to sue the government for testing LSD on me without my consent between 1957 and 1960.”
“There’s no evidence that that happened.”
(paperwork gets released by a FOIA request a couple of decades later)
“Sorry, the statute of limitations has passed.”Report
I absolutely agree about being able to sue before being directly affected by a bad law.Report
You can go to a court seeking injunctive relief. The concept for what I think you’re describing exists, but obviously requires the resources to pursue it.Report
But even injuctive relief seems riddled with questions of standing.Report
I made my proposal back in July of 2018; please click this link for the original post. I still think I got it more or less right. It’s based upon the relatively widely-used Missouri Plan for judicial selection, which places the initial identification of candidates for judicial appointment in the hands of a judicial commission, and lets the chief executive select from there. I put relatively short time frames for the appointments committee to select candidates, the President to select from the proposed list, and for the Senate to act.
What I proposed differently from the Missouri Plan was to indicate that if the Senate failed to reject the nominee within 30 days, the nominee would be automatically elevated. And I capped the size of the Supreme Court at nine Justices.
I’d be willing to consider a hard cap on years of service of 18 or more years (with staggered terms) but do not consider it necessary. I’d be willing to consider longer periods of time for each of the three steps to occur, but not that much. If the selection committee does its job properly, the candidates will already have financial disclosures and judicial histories available for review because they will already be experienced judges.
Since some people seem able to respond to things that are immediately in front of them rather than imagining any possible future alternative scenario, let’s consider the immediate situation. Here’s what would have happened had my proposed Amendment been in effect recently. Perhaps this is a decent enough theoretical stress test for any timelined selection process.
As we know, Justice Ginsburg passed away on 18 September 2020. The President could have immediately called for the selection committee to form, perhaps as early as 18 September 2020. The committee would have had until 18 October 2020 to produce three potential names, and likely would have taken about that long. Would Amy Coney Barrett have been on that list? Hard to say, unless the luck of the draw produced four Federalist Society-partisan judges to sit on the selection committee.
The President then could have immediately nominated someone. Or he could have waited up to 30 days to pick someone, until 18 November 2020 — after the election. But his universe of choices would be limited to three, and the point of the amendment is to create a group of people who will look for judicially-capable, moderate judges acceptable to a wide variety of other judges who know what it is to do that job. So it’s quite likely that there would be no one of particular partisan slant one way or another on the list.
Then, the Senate would have had to have convened for a vote, else the nominee would have been elevated by default. Given the timing above, and the Senate’s own need to review the nominee’s qualifications and background, and conduct hearings if it wished, it’s all but certain the vote would have occurred in the lame duck period. But that maybe wouldn’t matter, even if the result of the election indicated an imminent shift in partisan control of that body, because the nominee would likely have been relatively gray and politically moderate to begin with.
Which is the whole point of the multi-step nomination process in the first place: filter out people who hold extreme views and filter for judges who command the respect of their colleagues on the bench.Report
Not my plan, but the plan of a good friend of mine who is an accomplished attorney for the government. Copied from his personal post to Facebook (which he approved public sharing of):
1. The Court should have 17 members, with the new appointments staggered over 13 years, with two seats being added every four years. So in 2021 the Court would have 11 justices, in 2025 – 13, in 2029 it 15 and 2033 maxing at 17. Vacancies would continue to be filled, but each four year presidential term would only add two additional seats.
2. However, the number of justices hearing each case would stay at nine. Much like how the 9th Circuit comprises its en banc panels (15 of 29 active judges) and the UK Supreme Court comprises most of its hearing panels 5-7 of 12) there would be randomness to the panel selection process. There would be a vice Chief Justice, and the CJ and VCJ would rotate cases as presiding officer and the remaining 8 judges would be randomly selected per case. Litigants would no longer be able to predict the ideological makeup of the court, and legal decision making would be less political because one or two judges would not be able to control the balance of the Court.
3. The number of cases heard by the court should be increased. Currently the workload of the Supreme Court is at an all time low. For example, in 1970, the Court heard argument in 151 cases. But by 2015 that number was only 72. Up through 1988, the Court had certain mandatory appeals, but those were eliminated. Given the doubling of the court size, Congress should require certain appeals to be heard, including death penalty appeals and cases on which there is a circuit split of two or more circuits on each side. This would also reduce the influence of certain litigators, mostly former law Clerk’s, who have an undue influence on the current certiorari process.Report
Half the Court would love to outlaw the Death Penalty because it’s so repulsive to them that “it’s unconstitutional”.
The other half thinks DP appeals should be shut down because it’s an abuse of the court system and DP is just fine.
What happens when the SC keeps ruling against itself depending on which judges you randomly pick?Report
Keeps ruling against itself? Umm, there’s this thing called “precedent” that all serious judges ascribe to, and as the highest court in the land, that would be some serious precedent. Similarly, the SC doesn’t generally take up a ton of separate cases on the same subject. They either get consolidated into one, or there is a separate legal matter that has not previously been ruled on which rises to a need to have a SC ruling. It’s not like they’re going to just take every case that comes along, even if the cases are all basically the same thing. That doesn’t happen in practice. Yes, a ruling will come along every few decades that reverses previous precedent, but those are both rare and carefully considered by the court.
So, instead of playing the “what if…?” game, which could be done ad nauseum for any proposal, why not posit instead why you believe it wouldn’t work? Why does this type of system work in other modern judicial systems like Great Britain’s, but wouldn’t here?
Either the Supreme Court is the final word, the last stop, or it’s just a court that takes everything thrown its way and rules on it. The latter is what you are positing, however the former is what history has shown us is reality.Report