Five years ago, I wrote this post about my thoughts on reforming the Supreme Court. My thoughts were intended as an “intro” to the topic, and I got some interesting commentary response. I have been thinking about the topic again, because the Court is an even bigger problem now, to the point that addressing its problems is rapidly becoming essential, once–and if–saner voices take elective power in Washington. I present below the text of that original post of mine, a lot of which I still think might be a good way of approaching things; lifetime tenure needs to go away, but so does the “accidental” nature of which President gets to make a lot of appointments to the Court and which one does not. I also gave a lot of thought to the shenanigans of one Senator Mitch McConnell, who used the power of the Senate to simply deny a Democratic President a Supreme Court appointment. My attempt to address this got some interesting pushback, and I’m open to suggestion, but I still believe that fundamentally the Senate cannot be allowed to do nothing when an active Supreme Court nomination lies before it. Maybe in addition to requiring a vote, and forbidding the Senate to adjourn while a nomination lies before it, we also change the voting procedure so the vote is not one to confirm, but to deny, with a 3/5 majority required to decline a nomination. Also, re-reading my post, I see that I wrote against expanding the Court. I have changed my mind, and frankly, expanding it to 21 would be OK with me.
Before delving into my own thoughts, though, here’s a video on the topic of our corrupt Supreme Court by the always-brilliant Jamelle Bouie. It’s always worth remembering that our government was structured such that each branch’s power would be checked and balanced by the other two, and that the current state of affairs–in which Congress, run by Republicans, has completed abdicated its responsibility to check or balance anything–is a voluntary one, and also a political one. Nothing in the US Constitution establishes the Supreme Court as a de facto royal body that governs by decree, and in fact, there is a great deal of power that the Congress holds over the Court.
Here is my original post from five years ago:
Here’s something I’ve been thinking about for quite a while: how I would fix the Supreme Court. Obviously, I’m not an expert and am quite possibly wrong in many ways, but you have to start SOMEWHERE, right? Here’s my proposed Amendment which would fix the Court, with interspersed commentary.
WHEREAS it is sufficiently clear in 2021 that the current structure of the United States Supreme Court has proven too easily forced by concerted effort by various factions to extended periods of ideological extremity, I propose the following alterations in how the Court is structured.
While I’m sure American conservatives are all kinds of gleeful that they have finally, after years of focus and hard work, managed to create a Court majority that will favor their ideological goals for quite possibly decades to come, I hope most Americans will agree that this is not a desirable state of affairs.
1. The Supreme Court shall consist of 9 seats, with each Seat being held by one Justice.
Why 9? Why not engage in the current liberal wishlist of bumping it up to 13, thus allowing President Biden to name four liberals and immediately grab the balance of the Court back? Well, as much as I’d be on board with that concept in my angrier moments, I’m trying for a more nuanced approach right here. Currently the number of Justices is set by Congress, and there’s no reason to believe that even if the Democrats in Congress pulled this off right now that a future President Hawley (God help us all) and a Republican Congress to come wouldn’t just do the same thing right back, and somehow find a weaselly way to make it worse. Remember, they were quite content to engage in reverse Court-packing by holding the number of Justices at 8 until they could control the nominee. I’d hardwire the 9 into the Constitution at this point. Also, there’s math involved. And why am I referring to nine seats, instead of nine Justices? Read on! We’re getting to the meat of it now:
2. One Seat on the Supreme Court shall be vacated on July 5 of each year numbered Oddly, to be filled by an individual named by the sitting President of the United States, with the nominated Justice taking the vacant Seat upon confirmation by a simple Majority vote in the United States Senate.
3. The Senate shall bring any nomination of a Supreme Court Justice to its Floor for a full Confirmation vote within TWO WEEKS of the President’s official Nomination of said Justice, regardless of whether the Senate has concluded its Business in the course of Advising and Consenting. In the event that the Senate fails to confirm a nominated Justice or Judge on three consecutive Votes, the President shall name an APPOINTED JUSTICE to serve on that Seat until either the swearing-in of the Next Senate or the beginning of that Seat’s next term, whichever comes first. No Nominee for the Court, having been rejected by full vote of the Senate, shall be eligible for Renomination before the beginning of a new Senate.
4. Upon confirmation and installation, a Justice shall hold their Seat for a single term of EIGHTEEN years, at the conclusion of which their Seat shall become again vacant and the sitting President shall name their Successor.
OK. Let’s unpack. What am I getting at here?
First: No more lifetime tenure to the Court for judges. That shit is OVER. No more nominating young judges who will then sit for thirty or forty years or longer. Yes, I’m quite annoyed at the fact that I may well need to adjust my diet to include large amounts of broccoli at this point if I have any hope of seeing a liberal court in my lifetime. Moreover, I don’t think a President, any President, should be able to extend their legacy so far into the future, either through chicanery or by accident of timing or some combination thereof.
It is utterly absurd to me that our 45th President, in his one disastrous term, was able to name three Supreme Court Justice while Presidents Carter, Clinton, and Obama combined for four in their twenty combined years in office. That 45’s nominations came respectively via Mitch McConnell’s gaming of the rules, Anthony Kennedy’s oddly convenient decision to step down, and Ruth Bader Ginsburg’s passing (which gave McConnell a chance to demonstrate just how low his actual commitment was to his previous deeply held principle of not voting on Judicial nominees in election years) isn’t relevant, but we should make sure that this kind of gamesmanship is much harder to pull off, moving forward.
However, while I do favor eliminating lifetime tenure, I do think it’s important to remove the Court as much as we can from the normal cycles of political life in Washington. So I have Justices serving eighteen years: a good long term that gives them political independence that lasts well beyond the reahc of a single Presidential term. As of this writing, eighteen years has spanned four Presidents, two from each party.
Next: Well, since we already know the Mitch McConnells of the world will simply change rules any which way they need to in order to make sure that Republicans are the ones controlling the judiciary (and not just the Supreme Court–look at the ways they changed rules for Federal judicial appointments constantly starting in 1995 and then with each subsequent time they either had the Senate, the Presidency, or both), I suppose we need to hard-wire into the Constitution that the Senate will vote on Supreme Court nominees. As a writer whose work involves occasional villains, I have to admit that McConnell’s simple tactic of just not voting at all on Merrick Garland was some Class-A villainy in its ruthless cunning. So, that shot having been fired once, I’d like to take that one permanently out of circulation.
But! Here’s the thing: since 1981–the last forty years–only 22 of those years, barely more than half the time, has seen a President and the Majority of the United States Senate serving from the same party at the same time. It’s easy to see a Republican Senate saying to a Democratic President: “OK, we’re required to give your nominee an up or down vote, so we’re just gonna keep voting your nominees down and run out the clock that way.”
Well…no dice there, either. Three times in a row and the President gets to fill the seat on the Court temporarily, until either the Seat’s term ends (i.e., the 18 years ends) or a Congressional election happens and a new Senate is seated. Then the whole thing starts up again, and the President can nominate the person he or she chose in the first place. Also, note the required time frame: just two weeks, and the Senate is required to vote. If they can’t figure out if they’re on board with a Justice or not within two weeks, they shouldn’t be in that job, and obviously the possibility of any filibustering has to be neutered right in the Constitution. (But ixnay on the President just nominating the same person three times and then seating that person anyway. We still need to take the Senate’s “advise and consent” thing a little seriously.)
Oh, and I said up above that there’s math involved in picking nine judges? Well, assuming an 18-year-term, if you have more than nine judges, then eventually you get to a situation where multiple seats are opening up in odd years. This system guarantees that every President will make some mark on the Supreme Court, as every President will name at least two Justices. But I don’t want a President naming as many as eight. Of course, you could get around this by extending the term of a Justice’s service to twice the number of years as there are sitting Justices, but then terms start getting uncomfortably long again.
All right. We’ve got our Justices serving one eighteen year term on the Supreme Court. Also note that they’re ineligible to hold any other judicial position in the country after they leave! I’m not sure if that would be a big deal or not, but you wouldn’t get to have a Republican President give us a bitter pill like Brett Kavanaugh and then, if his term happens to end during another Republican presidency, just get re-nominated for another 18 years. Also, the eighteen-year-term refers to the seat on the Court, not the specific Justice holding it. In this respect it would be like the Presidency: the term is four years, but if the sitting President dies and the Vice President becomes President, they don’t get four new years: the Presidential term ends at noon on January 20 every four years, no matter what. Likewise, if a Justice dies fifteen years in, obviously you need a replacement–but you do not get to reset the clock with someone to your ideological liking. No getting around it: eighteen years. That’s it. So we would have this provision:
5. In the event that a Seat on the Supreme Court becomes vacant sooner than the conclusion of its Eighteen Year Term, the sitting President shall name a Justice to that seat, also pending Senate majority confirmation, to serve only the remaining time in that Seat’s term, at the end of which that Justice shall leave the Court.
Now, we well know that for all the “the Courts are apolitical!” talk we hear a lot, the fact is that the Courts and people on them are as much a part of the political life in this country as anyone else. But to help foster as much political independence as we possibly can, I’d add this:
6. No person, having held any portion of a Seat on the United States Supreme Court, shall be eligible for any Senate-confirmable position upon leaving said Seat, or for any Judicial position in the United States; also, no member of that Justice’s family shall be eligible for any Senate-confirmable position for a period beginning with their assumption of that Seat until five years after their departure from it.
In short, no “Hey Judge, I’ll make your kid or your wife Ambassador to the Bahamas”, and no “Hey Judge, if you’re looking to retire early, I might need a new Ambassador to Sweden”. Also, once you leave the Supreme Court, that’s it for your legal career. And really, there’s nowhere else to go after that but write your books and be on a corporate board or two, right? No, I’m not worried about what our Justices will do in their now-much-longer retirements. They’ll make out just fine, I suspect.
Of course, if you’re going to limit the terms, then you have to schedule the terms as well. If we just wait for the existing judges to die or retire and then start the eighteen year thing, then you’d have nominations clustering at eighteen year intervals from whenever those passings happen. So, one seat will open on the Supreme Court every two years, during the odd-numbered years to minimize the degree to which federal-level elections play a role in the politics.
7. The transition to this prescription for Supreme Court tenure shall begin on July 5 of the first odd-numbered year following Ratification of this Amendment, with pre-existing terms ending in reverse order of service on the Court.
You have to make your transition some way, right? For my purposes, if I could wave my magic wand and instantly ratify this amendment, then Clarence Thomas would get the boot on July 5, 2023.
As noted above, I’m sure I’ve missed something, and I’m sure there are ways this system would work badly, but…we’ve got to start somewhere, right? And while I yield to no one in my anger at the way Republicans have been gaming our democracy against us (and are still doing so, to what I expect may be our eternal regret, and sooner than we think), I do not want to just shift the gaming-of-the-system to the Democrats just because I’m currently on their side. If there’s one thing the post-2016 era has shown me, it’s that our Constitutional systems are nowhere near as robust as they need to be to withstand the threats confronting them now.
