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Since the early 1990s I’ve been writing op-eds backing the Good Government reform idea that Supreme Court nominees shouldn’t get lifetime appointments, but instead a single 18-year term. Since there are 9 Justices, that would mean a nomination fight would come up every two years. Win four years in the White House, you get to nominate two Justices. Win six years in the Senate, you get to vote on three nominations.
This would somewhat lower the pressure on each nomination, which presently can last more than twice 18 years (especially with longer lifespans). It would greatly reduce the frequency of mentally decrepit Justices like Thurgood Marshall trying to hang on until a change in Presidents.
The average Supreme Court justice would likely serve from something like age 52 to 70. To get around the Bill Clinton-style problem of post-bribery where, say, Goldman Sachs would pay $250,000 per retired Justices’ speeches, Justices could be banned from all income-generating activity for life. In return, give them a million dollar per year pension for life.
There are two methodological problems:
- What do you do when a Justice dies or resigns before completing his 18 year term?
- The bigger one is how to transition to the new system, which would probably require current Justices to be forced into retirement to allow new Justices to be appointed. I think an NBA draft-style weighted lottery where Justices are ranked in order of years served and then given a proportional chance to be selected might help. Another lubricant would be to delay the implementation of the system until, say, 2021, putting it well into the future so the plans are less personal.
Good idea Steve. You should print this out and leave it outside of the Capitol building.
Indeed, the first time I wrote it up, in an oped for the Chicago Sun-Times around 1993, I got a very nice letter from Senator Paul Simon (not the songwriter, the D-IL U.S. Senator) saying it was a good idea.
That was the high tide of my political influence.
That would have at least as much success as all the other times I’ve written up the idea.
Indeed, the first time I wrote it up, in an oped for the Chicago Sun-Times around 1993, I got a very nice letter from Senator Paul Simon (not the songwriter, the D-IL U.S. Senator) saying it was a good idea.
That was the high tide of my political influence.
Will GOP go 4 corners to try and get to Trump for next nominee? Is Dean Smith still alive?
The high tide of my political influence was being elected as the alternate student council representative for my 8th grade class. Oh, that and when I was considering law school in the mid '80s, a very short stint on my hometown's planning commission. And a very short stint on the Government Relations Committee on my local Chamber of Commerce about fifteen years ago.
I am, however, considering a run for my local City Council in about five years - primarily for the health insurance because I'll be way too young for Medicare.
I’ve posted on this before, but many states incorporate the idea of retention elections into their judicial systems. Every few years, the voters get to decide whether particular judges or justices “shall be retained in office.” Usually these are non-controversial, but not always. In the first retention election after the Iowa Supreme Court required homosexual marriage to be recognized as valid under the U.S. and Iowa Constitutions, the three justices up for retention lost the election and had to leave the court.
Service in the judiciary “during good Behaviour,” is an idea whose time has come and gone. The idea of retention elections should also be applied to court of appeals justices and district court judges.
I'd like a check on the popular vote.
But I don't see why we have to keep the magic number 9. It gives too much power to each vote. You could expand the number of justices a lot, and if a court of, say, 37 justices is too unwieldy but you're re-writing the court anyhow, you could just have a two-tiered system of simple voting justices and high justices who can do the other work like interrogation.
Why not just apply the 18 year term to all new appointees and keep the life term for sitting justices? There would be a mixed membership until all the old justices with life terms died off. Not a big deal.
P.S. Back when I was a teenager, I visited the capitol with my father and we happened to exchange hellos with Paul Simon, who was our Senator, in the hall near his office. That was the high tide of my political influence.
Indeed, the first time I wrote it up, in an oped for the Chicago Sun-Times around 1993, I got a very nice letter from Senator Paul Simon (not the songwriter, the D-IL U.S. Senator) saying it was a good idea.
That was the high tide of my political influence.
Well Krikorian retweeted you so that’s…..something.
Will GOP go 4 corners to try and get to Trump for next nominee? Is Dean Smith still alive?
https://news.google.com/newspapers?nid=1817&dat=19790225&id=MzAdAAAAIBAJ&sjid=2J4EAAAAIBAJ&pg=2857,5053336&hl=en
Indeed, the first time I wrote it up, in an oped for the Chicago Sun-Times around 1993, I got a very nice letter from Senator Paul Simon (not the songwriter, the D-IL U.S. Senator) saying it was a good idea.
That was the high tide of my political influence.
You sell yourself short. The Sailer Strategy is being implemented by Trump as we speak. Sure, the GOP establishment has pointedly ignored you but someone was paying attention, if only through Coulter.
you can’t get there from here….such a constitutional amendment would never get out of DC.
The supreme ct is a major throttle on democracy. The big corporations and plutocrats control DC, and they don’t like democracy.
An article 5 convention is the only hope of fighting back against SCOTUS.
Another idea would be to mandate a minimum age of, say, 70, for Supreme Court Justice appointees. Some benefits of that:
– Some of the country’s best jurists who are in that age range would have a shot.
– No mystery about their judicial philosophy.
This is of course true. And yet as mild mannered and thoughtful as Steve is very few mainstream journos can mention or link to him. The cowardice is amazing.
Thank God Ann Coulter made so much $$ off her books.
- Some of the country's best jurists who are in that age range would have a shot.
- No mystery about their judicial philosophy.
Too many people experience years of mental decline before they die.
They really should expand the Supreme Court beyond 9. The 9 came into play due to , at one point, a desire to have 1 justice from each federal judicial circuit. Geographic diversity was important, since the country was trying to remain united (especially post-Civil War), and a local judge could explain the unique problems that district faced (for example, few non-Western few judges would be familiar with tribal law, rustling law, or with water courts, and there was no Westlaw in the 19th century).
The emphasis shifted to identity politics from geographic diversity. Thats more problematic.
We should at least have 11 justices, 1 for each judicial circuit. I’d vote for 2 myself, with a at-large nomination.
I think this would break checks and balances.
I’d like a check on the popular vote.
But I don’t see why we have to keep the magic number 9. It gives too much power to each vote. You could expand the number of justices a lot, and if a court of, say, 37 justices is too unwieldy but you’re re-writing the court anyhow, you could just have a two-tiered system of simple voting justices and high justices who can do the other work like interrogation.
This is a good idea. By the way, the American way of doing this is now an outlier. The U.S. was the first country to have a Supreme Court, so you would expect kinks in the system that would have to be worked out later. The problem is that they never were worked out, expect for expanding the number of justices from six to nine, and not making them ride circuit.
For some data points, here are some Supreme Court equivalents in other countries, where they organized their version later (all information taken from Wikipedia):
German Constitutional Court (1949): Sixteen justices sitting for twelve year terms, with a retirement age of 68. Incidentally, they are all elected by the legislature.
South African Constitutional Court (1993): Eleven justices sitting for twelve year terms, which can be extended by act of Parliament
Indonesian Constitutional Court (2001): Nine justices sitting for five year terms
France Constitutional Council (1958): Nine justices sitting for nine year terms, six elected by the legislature, plus former Presidents of the Republic who are not politically active and want to participate
Japan Supreme Court (1947): Fifteen justices, no fixed terms but mandatory retirement at 70, plus they can periodically be kicked out by the Japanese voters
Korea Supreme Court (1988): Nine justices, six year terms. The terms are renewable, however there is a mandatory retirement age of 65
Russia Constitutional Court (1991): Nineteen justices, twelve year terms
Spain Constitutional Court (1979: Twelve justices, nine year terms
India Supreme Court (1938): Thirty-one justices (originally eight), no fixed terms but mandatory retirement at 65
Australia High Court (1903): Seven justices, no fixed terms but mandatory retirement at 70
Canada Supreme Court (1875): Nine justices, no fixed terms but mandatory retirement at 75
U.K. Supreme Court (2005): Twelve justices, no fixed terms but mandatory retirement at 70
Generally speaking, other countries have liked the American idea of a Supreme Court, but made sure to put in fixed terms and/ or mandatory retirement ages.
There have been some other differences. Many countries got away from the Presidential appointment/ Senate confirmation model and used instead legislative appointments, recommendations from commissions of experts, and/ or listing fairly detailed qualifications that justices are supposed to have. They also tend to have more justices.
Incidentally, FDR’s infamous “pack the court” proposal was actually quite reasonable. If anything he over-accomodated the justices of the time and should have insisted on a mandatory retirement age.
Steve’s proposal is good, and the only modification I would really make, though there is a case for more justices, is to not have terms come up regularly. When a justice leaves the Court, a new one is appointed for whatever the fixed term is, and if vacancies occur irregularly so be. Someone will always be dying or just want to leave unexpectedly before their term is up. This also helps with the transition.
To his credit, he did retire once he became terminally ill and let Bush replace him. He did not actually die until Clinton was president.
Thank God Steve can afford to eat and get new things like dishwashers occasionally.
We need that for Congressmen and Presidents as well. Plus anyone in the military with high level authority over procurement, who like Congressmen quite often find themselves will million dollar a year make-work jobs with defense contractors.
I think the female Air Force general who went on to work for Boeing was getting several million a year.
Also, Steve, do you really think either party wants to make the Supreme Court appointments more fair and less controversial?
The left’s been kickin ass on nominations and decisions since FDR. The right keeps promising if we juuuust geeet onnnne more right-thinking justice up there, Roe v. Wade is dead. Both sides drum up the base by screaming about the next president might have 5 nominations!
So why would they change the status quo? Steve, you’re dreaming. No one believes in Good Government anymore.
I oppose this plan because it would might reduce the proper representation of Jewish candidates, which is already woefully low. I also resent the characterization of old judges as mentally decrepit. The younger ones are significantly less cognitively capable. Our nine kings in black deserve a full lifespan to properly rule us. Next, you will be proposing that Kim Jong Un be limited to just 18 years. Outrageous!
It’d require an amendment.
"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 Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."
The number of justices on the Supreme Court is not set by the Constitution and can be and also has been changed by an ordinary federal statute.
The language does say that the justices "shall hold their offices during good behavior." That is usually taken to mean "appointed for life unless impeached and removed by Congress." I think it precludes fixed terms without an amendment, but does not preclude setting a retirement age, or if not that a provision for some sort of annual exam to see if the justice is still mentally capable of doing his job. Faced with that choice, I think the justices themselves would prefer the retirement age. I think Congress could get away with putting in a retirement age, just like as in most other countries.
There is no language at all about qualifications for the position. With ordinary legislation, Congress could do all sorts of things that are done in other countries, such as set up a neutral commission to fill and/ or vet vacancies, or put in some qualifications. Even if this can't be binding, the Senate could always pass a resolution saying they want certain qualifications and just refuse to confirm anyone that doesn't meet them.
Really the only reform that would probably need an amendment would be fixed terms.
Good idea but don’t hold your breath. We can’t even get rid of the penny .
Keep the number of justices at 8. All ties go to overtime until there is a 5 to 3 split. If no one budges then 4-4 ties go to a best-of-7 coin toss.
Will GOP go 4 corners to try and get to Trump for next nominee? Is Dean Smith still alive?
I remember it well. Halftime score: Duke 7 UNC 0, and it was not a football game.
https://news.google.com/newspapers?nid=1817&dat=19790225&id=MzAdAAAAIBAJ&sjid=2J4EAAAAIBAJ&pg=2857,5053336&hl=en
https://www.youtube.com/watch?v=pSANTRnEBgg
The composition of the Supreme Court is governed by Section 1 of Article III, which has yet to be amended. Its short enough to quote in full in a blog comment:
“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 Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”
The number of justices on the Supreme Court is not set by the Constitution and can be and also has been changed by an ordinary federal statute.
The language does say that the justices “shall hold their offices during good behavior.” That is usually taken to mean “appointed for life unless impeached and removed by Congress.” I think it precludes fixed terms without an amendment, but does not preclude setting a retirement age, or if not that a provision for some sort of annual exam to see if the justice is still mentally capable of doing his job. Faced with that choice, I think the justices themselves would prefer the retirement age. I think Congress could get away with putting in a retirement age, just like as in most other countries.
There is no language at all about qualifications for the position. With ordinary legislation, Congress could do all sorts of things that are done in other countries, such as set up a neutral commission to fill and/ or vet vacancies, or put in some qualifications. Even if this can’t be binding, the Senate could always pass a resolution saying they want certain qualifications and just refuse to confirm anyone that doesn’t meet them.
Really the only reform that would probably need an amendment would be fixed terms.
Do something bold: shitcan the US Supreme Court and have the state Supreme Courts determine constitutionality of federal laws.
Fifty different guardians would have definitely slowed down governmentalism.
https://www.youtube.com/watch?v=pSANTRnEBgg
And even then, the liberal wing of the court would just rule that 37 years can sometimes be “18 years” under the doctrine of a “living” space-time continuum. After all, 18 years on earth to an old white male is not the same as 18 years on the cusp of an event horizon, let alone 18 years on a speeding refugee capsule full of transgender Klingon cyborgs.
Give them a 6 year term, and then place them on the federal ballot. So long as they keep receiving a plurality of votes at the end of their term, they can stay on for another 6 year term, so long as they live. If they lose the vote, the President appoints a new Justice to the vacant seat.
The current Justices are all pretty smart, and they all know where the bread is buttered, so I am sure they could adapt.
We should get right on this as soon as we finish building those cold fusion reactors in our basements…
…and waxing our flying cars.
Everyone thinks he can out-think the Founding Fathers.
He can’t.
Not a lot was known in the days of the founding fathers re: dementia. Nor did many men live to ages when dementia ravages an increasing number of people. The founding fathers were not dummies but not everything could be anticipated. It is like expecting the best and brightest of today to anticipate a world 2+ centuries in the future.
"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 Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."
The number of justices on the Supreme Court is not set by the Constitution and can be and also has been changed by an ordinary federal statute.
The language does say that the justices "shall hold their offices during good behavior." That is usually taken to mean "appointed for life unless impeached and removed by Congress." I think it precludes fixed terms without an amendment, but does not preclude setting a retirement age, or if not that a provision for some sort of annual exam to see if the justice is still mentally capable of doing his job. Faced with that choice, I think the justices themselves would prefer the retirement age. I think Congress could get away with putting in a retirement age, just like as in most other countries.
There is no language at all about qualifications for the position. With ordinary legislation, Congress could do all sorts of things that are done in other countries, such as set up a neutral commission to fill and/ or vet vacancies, or put in some qualifications. Even if this can't be binding, the Senate could always pass a resolution saying they want certain qualifications and just refuse to confirm anyone that doesn't meet them.
Really the only reform that would probably need an amendment would be fixed terms.
It may be possible for Congress to establish provisions or conditions to determine the fitness of a federal judge to continue to serve and conditions for their retirement or elevation to senior status. See 28 U.S.C. 371-372. Obviously this punts the ball to determinations of fitness back into the judicial branch as written.
You need a Constitutional Amendment to do it anyway. So you can just assign the current justices to a particular seat and then say when each seat will become open in what year. Fairness is irrelevant except as to whether or not it will get the necessary votes in the amendment process.
Premature death/retirement would need to be dealt with.
You could do something like:
1) If the President that appointed the justice that died/retired is still in office, they will appoint another to serve the remainder of the term.
2) If the justice that died/retired would be appointed in the Presidents current term anyway they will be appointed for a single term up to 22 years instead of the usual 18.
3) In all other cases the President’s appointed justice will serve the remainder of the deceased/retired justice’s term but will require 60% of the Senatorial confirmation votes instead of the usual 50%
the siting President will appoint Chief Justice for the duration of his or her presidential term. He or she may not change once selected.
Everyone thinks he can out-think the Founding Fathers. He can’t.
Not a lot was known in the days of the founding fathers re: dementia. Nor did many men live to ages when dementia ravages an increasing number of people. The founding fathers were not dummies but not everything could be anticipated. It is like expecting the best and brightest of today to anticipate a world 2+ centuries in the future.
The Founding Fathers evidently disagreed since they provided for an explicit amendment procedure in the original Constitution.
Not sure how a draft NBA-style would play out but, overall a good idea. Term limits on SCOTUS appointees should have been imposed years ago. Now we are paying the price. Oh, and Marshall wasn’t the only justice who belonged in a vegetable garden. The other was William O. Douglas. Both were libs. Must be something about liberalism that turns the mind into tomato puree.
Not a lot was known in the days of the founding fathers re: dementia. Nor did many men live to ages when dementia ravages an increasing number of people. The founding fathers were not dummies but not everything could be anticipated. It is like expecting the best and brightest of today to anticipate a world 2+ centuries in the future.
It’s pretty clear that the FFs, including the guys whose names you never hear about, were thoughtful, well-read men who had real insights into human nature thanks to centuries of collected wisdom. But they were freaking clueless about how the US would turn out. Utterly, freaking clueless. Not their fault, but there it is.
Even Mr. Louisiana Purchase himself, Jefferson, for example, did not envision a continent-wide country. And it just goes on from there….
That’s why constitutionally-minded libertarian and Cruzitarian “conservatives” are so politically off. The constitution is a means to an end, i.e. a document meant to provide for good government to benefit our community, not a Torah-esque directive given us to save the world. That it has been misused in subsequent generations for idiocies like birthright citizenship- and the amendment that idea is based on- is proof of its limitations.
Indeed, the first time I wrote it up, in an oped for the Chicago Sun-Times around 1993, I got a very nice letter from Senator Paul Simon (not the songwriter, the D-IL U.S. Senator) saying it was a good idea.
That was the high tide of my political influence.
That was the high tide of my political influence.
The high tide of my political influence was being elected as the alternate student council representative for my 8th grade class. Oh, that and when I was considering law school in the mid ’80s, a very short stint on my hometown’s planning commission. And a very short stint on the Government Relations Committee on my local Chamber of Commerce about fifteen years ago.
I am, however, considering a run for my local City Council in about five years – primarily for the health insurance because I’ll be way too young for Medicare.
In fairness, Chief Justice William Rehnquist stayed on the court far too long, although I think it was ego and not opposition to the President who would appoint his successor. Towards the end he was so ill that he could no longer attend oral arguments or judicial conferences. Term limits and/or retention elections should be imposed.
I think all life appointed Federal judges should have a mandatory retirement age of 70. Let’s get on amending the Constitution.
It’s a good proposal. Lifetime tenure with no accountability is a bad idea, whether for university professors or judges. In the entire history of the country, only one Supreme Court justice, Samuel Chase, was impeached, and he was not convicted. One other justice, Abe Fortas, resigned under threat of impeachment. Not much of a track record.
Actually, I think ALL federal judges should be elected and serve fixed terms with limits. I’m not sure what the correct term is, but eighteen years is much too long. Something like six years sounds better. Let the judges answer to the voters – most state judges have to. What’s wrong with accountability?
The Founders gave federal judges lifetime tenure because of bad experiences with the judiciary under colonial rule. The king appointed the judges, and if their rulings did not please him, he got rid of them. So our Founders went to the other extreme and made sure they could almost never be removed. Bad deal all around.
Yes, it would take a constitutional amendment, and the chances for that are not good. But I would propose something even more radical – that any decision made by the federal government, by the executive, legislative or judicial branches, could be overturned by a two-thirds vote of the state legislatures. And, just to sweeten the pot, we need a permanent special prosecutor in Washington. This individual would be appointed by a majority vote of the Supreme Court and require confirmation by a majority vote of the state legislatures. He or she would serve a fixed term (six years?) and could only be removed from office by a two-thirds vote of the state legislatures. Such a prosecutor would have the authority to convene grand juries, issue subpoenas, and bring indictments.
The supreme ct is a major throttle on democracy. The big corporations and plutocrats control DC, and they don't like democracy.
An article 5 convention is the only hope of fighting back against SCOTUS.
The U.S. Constitution is a “major throttle on democracy.”
The high tide of my political influence was being elected as the alternate student council representative for my 8th grade class. Oh, that and when I was considering law school in the mid '80s, a very short stint on my hometown's planning commission. And a very short stint on the Government Relations Committee on my local Chamber of Commerce about fifteen years ago.
I am, however, considering a run for my local City Council in about five years - primarily for the health insurance because I'll be way too young for Medicare.
What was your platform?
How about the President, Senate, and House each get to appoint three members of the court? The House gets to replace/retain one every three years. The Senate every three. And the president one every four. The appointments get made at the beginning of the session. Let’s face it, the court isn’t some non-political body. This method at least get’s some diversity on the court and maybe reigns it in a bit.
This would lead to the problem of parties using delaying tactics on their cases, in some cases indefinitely. Just wait a year to see if the composition of the SCOTUS is more favorable. If it turns out it isn’t, just wait two more years. The wheels of Constitutional jurisprudence would gring to a halt.