Snippets

The friend asked “Why?” when I told him that the spouse wanted to sell our second car. And I thought about how much mysterious excitement would be gone from the marriage if I knew and understood all the spouse’s whys.

“It is diverting to note how often people who offer good advice would benefit if you took it.” Old Saying.

The spouse and I got on the subway in midtown Manhattan on a Friday evening. Many people with suitcases got off while a few remained on the train. We assumed that they must be coming from an airport, but we did not know which one as we had never taken this route from an airport; all we knew was that this particular route could not have been straightforward. One of New York’s major failings is that it does not have efficient public transportation to its airports. A couple in their twenties, with suitcases, sat across from us on the train, and when I asked, they told me that they had arrived at JFK and gotten to a subway station. They said they managed that by following the crowd. From his accent, I correctly guessed that they had come from Ireland. He said that they were in NYC for four days, and according to her, “doing everything” was on her list. This included watching an Irish boxer at Madison Square Garden. The young man said that he was from County Cork, and she was from the “north.” He said that they had met at university in Dublin. When asked, he said that it was Trinity, and when I responded, “Oh, the fancy one,” he almost blushed. He told us that he had studied maths and she, almost inaudibly, said “theoretical physics.” There are many experiences and surprises on the subways. This was the first time I had met a young theoretical physicist.

“It is always a silly thing to give advice, but to give good advice is absolutely fatal.” Oscar Wilde.

I am surprised that somebody has not already perfected this way to become rich: Find a way to make some women’s shoes so they are larger inside than on the outside.

In the wake of the leak of the Supreme Court’s draft abortion opinion, Clarence Thomas said that people must accept outcomes they don’t like. I wonder if he preaches this to his wife about the last election.

Consultants are those who are smart enough to tell you how to run your

organization but too smart to start one of their own.

This is true for me: The only ambition in life a paper napkin has is to get down off a diner’s lap and play on the floor.

When people say that they will do this or that tomorrow, ask them what they did yesterday.

It seems that often when a politician supports “family values,” he means that for other people but not for himself.

“The measure of people’s real character is what they would do if they knew they would never be found out.” Macaulay.

To Recuse or Not to Recuse? Let’s Make the Question Easier

Messages from Ginni Thomas to Trump administration officials indicate she believes that the last election was stolen from the former president. This has brought calls that her husband Clarence Thomas recuse himself from any Supreme Court case that might involve that 2020 election.

I leave the merits of whether his recusal is appropriate to others or for another day. Instead, I have been struck by some of the commentary that says that Justice Thomas should refuse to recuse and refers to the well-known opinion (in certain nerd circles) when Antonin Scalia refused to recuse himself.

In that case, Vice-President Dick Cheney was a named party, and an opposing party moved that Scalia recuse himself because Cheney and Scalia for years had gone on a hunting vacation together. Before launching into the twenty pages defending his non-recusal decision, Scalia pointed out that the motion suggested that Scalia “resolve any doubts in favor of recusal.” Scalia responded: “That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”

Of course, Scalia was right that a recusal on a lower court is different from one on the Supreme Court. Throughout the country, we generally have three levels of courts. The lowest is often called a trial court where a legal matter originates. The proceedings are presided over by a single judge, but there are other trial judges in the jurisdiction. If a judge steps aside, another trial judge gets the matter, and the legal matter proceeds in the same fashion as if there had been no recusal.

An intermediate appellate court sitting above the trial courts decides cases with panels of judges—three in the federal Courts of Appeals. These appeals courts, however, retain more than three judges. The panel to decide a case is drawn from the greater number. For example, the federal Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. As Scalia indicated, if a judge assigned to a case is recused, then another appellate court judge steps in and the same sized panel still decides the case.

The Supreme Court is different. Nine justices decide a case and the Supreme Court has only nine justices. If a justice steps aside, the matter will be decided by the remaining justices, or if the justices split evenly, no decision is rendered. (A tie vote means the intermediate appellate court decision stands.) Scalia used the possibility of a four-four split as a justification to stay on the case, and it is now also cited as a reason why Clarence Thomas should not recuse himself.

While lower court judges may be expected to err on the side of recusal and step off a case when there is a reasonable chance that there is a conflict of interest or the perception of a conflict, Scalia’s approach was that a Supreme Court Justice should err on the side of non-recusal. More unfairness may result, and an increased perception of unfairness seems inevitable. The unavailability of a justice to replace a recused justice, however, is remediable, and reforms should be considered.

The Constitution neither defines the number of Supreme Court Justices nor does it define how many Justices should decide a case. It merely says: “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.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed since. That number has seemed sacrosanct after FDR’s failed attempt to expand the Court in 1937.

Nine remains sacred because proposals to change the size seem partisan. Recent suggestions of enlarging the Court came because that body is firmly conservative and because Republican partisan activities insured a firm majority of rightist Justices. However, there are proposals that would lead to more than nine Justices that could make the Court appear, and perhaps be, less partisan. The reforms could lead to better Justices and make the nomination and approval process less partisan.

The core of the proposal is that each president gets to appoint a Supreme Court Justice every two years, say on the July 1 after the presidential term begins. Presidents would make another appointment every two years thereafter. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy if all of them decided each case. Instead, nine Justices would be picked at random from all the Supreme Court judges to hear a matter.

There are obvious advantages to this scheme. First, of course, there would be replacements for recused justices, and there would be no possibility of an equal split among the justices. The decision to recuse can then concentrate solely on conflicts of interests.

Another advantage is that the enlarged Court could take on more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the result in a litigation. This would give more certainty, uniformity, and finality to the law than we have now.

Drawing nine from a broader roster of justices also would have the advantage of dampening lawyerly gamesmanship. Attorneys now try to predict how each of the nine justices might decide a particular issue and seek review only when they assess the Supreme Court lineup as favorable to their position. That gamesmanship was evident with Amy Coney Barrett’s ascension to the Court. Conservative legal organizations now see a solid Supreme Court majority favoring certain kinds of religious claims, Second Amendment expansion, and the limitation or elimination of the right to abortion and are seeking to get Supreme Court review of cases containing such issues before a Court they see as especially favorable to their viewpoints.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more public focus on the issues and less on the judges. That would be a good thing.

(concluded April 8)

Snippets

His ex-wife said a Republican seeking a senate seat had physically abused her and their son. Previously, he had left office when it was learned that he had taken pictures of his naked hairstylist without her consent. Am I being sexist if I think that it should disqualify any male from being elected to office if he has a hairstylist?

We have honored people by naming parks, craters, stars, mountains, prizes, streets, buildings, campuses, and more after them. Doctors, however, often have maladies named after them. Do they like that?

The Supreme Court justice was hospitalized for an infection. He stayed in the hospital longer than first predicted. We were told that he did not have Covid, but there was nothing said further about the nature of the infection. How many of us were hoping that it was related to an STD?

Nearly 90% of American students attend public secondary schools. Only three of the present nine Supreme Court justices did. None of the justices attended a public college, university, or law school.

The Final Four is alliterative. Did the NCAA phrasemongers also think Elite Eight and Sweet Sixteen were alliterations?

I have been trying but failing to understand who comprise “the elites” conservatives rail against. Are the Elite Eight in that group or do they comprise it?

I received a letter “signed” by Donald J. Trump urging me to become a member of the Republican National Committee. It did not offer me any membership benefits but urged a money contribution. The letter pointed out Biden’s less than stellar poll numbers and continued, “And my polls are at an all-time high.” I wondered about that and went to RealClearPolitics, which aggregates polls. It reported that Trump’s favorability number was 44.6 and his unfavorable rating was 50.8. They are a bit better than Biden’s, which were 42.5 and 52.0, but would you brag about polls that show the majority of the country views you with distaste?

The letter’s salutation from the RNC signed by Trump was “Dear Fellow Patriot.” And I have thought that “Trump, the patriot” was a very short joke.

Why is it that some jokes are painful if told by the comedian but make me laugh when told by a ventriloquist’s dummy?

“A different taste in jokes is a great strain on the affections.” George Eliot.

Even though the book review interview stated that the author had written many books and I have not, I felt as if I were the same as the writer when the interview reported that the novelist can’t read Proust anymore.

Proper perspective. After that incident that got a lot of attention at the Oscars, a Brooklyn news source had the headline, “Brooklyn Man Gets Slapped on National TV.”

Stitching a New Nine this Time

President Biden has put together a commission to examine the size of the Supreme Court. A bill was introduced in Congress to expand the Supreme Court from nine to thirteen justices. In response, a Republican congressman said the Democrats’ plan is to do as much harm to “our democracy” as possible. I wondered about his definition of democracy for, while the Supreme Court is an important American institution, it is one of our least democratic features.

The Supreme Court, of course, is not an elected body; the Justices are neither voted in nor answerable to “the people.” Since Justices may sit for thirty or more years, they make decisions for decades after the officials who appointed and confirmed them have left office. This can also be long after many  Americans were even eligible to vote for the president and senators who appointed and confirmed them. The Supreme Court is not a democratic body. Indeed, in finding validly enacted laws unconstitutional, it is often acting anti-democratically.

Furthermore, many do not see the Supreme Court as a neutral, thoughtful legal body, but a political one. Such a notion finds traction any time a presidential candidate pledges to appoint Justices not just for their legal acumen or wisdom but also for their perceived views. We know that the backgrounds of possible Supreme Court nominees are analyzed to foretell their ruling on important issues.

If the Court was to be expanded, Biden would be expected by many to nominate people who would rule in a “liberal” fashion, which means that the Republicans will oppose any expansion of the Supreme Court. Unless changes are made to the anti-democratic filibuster rules, a larger Supreme Court is unlikely. Even so, that should not end considerations for reforming the process even if a larger Court resulted. The Supreme Court is an important institution but not a perfect one, and perhaps it can be made even better. What is clear, however, is that a change in its size and the timing of who will be on the Court will not destroy or harm democracy.

The Constitution does not define the number of Supreme Court Justices. It merely says: “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.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed since. That number has seemed sacrosanct since FDR’s failed attempt to expand the Court in 1937.

The Court had found many pieces of New Deal legislation unconstitutional. As Jeff Shesol reports in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), the Supreme Court between 1933 and 1936 overturned congressional acts at ten times the historic rate often using long neglected doctrines and breathing new life into obscure clauses of the Constitution to do so. Roosevelt then sought an expansion of the Court. Although Roosevelt gave varying nonpolitical reasons for his plan (What a shock! A politician being disingenuous!), the assumption was that he wanted more Justices so that he could appoint sympathetic people, who would uphold legislation passed by Congress and signed by the president. Or as one might put it, accept democratically enacted laws.

Roosevelt’s proposal was soundly defeated after much rhetoric about his threat to our constitutional government. While FDR’s plan failed by a resounding vote, ultimately he was the winner, and the Supreme Court and conservatives the losers. Here’s why. Soon after the proposal to enlarge the Court was presented, the Court began to uphold New Deal legislation with logic that seemed inconsistent with its previous holdings. To many the Court seemed to be bending to political winds, and the perception of it as a partisan institution increased. The proposal to enlarge the Supreme Court did not put Roosevelt in a good light. However, it also put the Court in a­ bad a light when its questionable constitutional interpretations became recognized as being the overreach of biased judges reacting to legislation they did not favor.

Any suggestion since then to expand the Court has met with outcries that our constitutional way of life will be overthrown. Adding Justices only seems to be a partisan power play and not something that could improve justice, the Court, or the perception of the Court. Something like this passage from an email I have just received from a conservative institution will be repeated many times:

Political elites on the radical Left have officially taken the first step in their plot to overthrow the U.S. Supreme Court. With the Biden Administration’s recent announcement of their new Supreme Court “reform” commission, there’s no mistaking it any longer: the extreme Left set its sights on permanently turning our independent judiciary into a tool of raw political power. And now taking it even further, Democrats have filed a bill to add 4 seats to the U.S. Supreme Court. Let’s call it what it is: a coup.

Liberals, on the other hand, have seen the Republican denial of the Merrick Garland nomination and the subsequent approval of Amy Coney Barrett as exercises of raw political power. These moves are seen not as a coup, but as a means of transforming the judiciary into a more partisan institution. A Democratic congressional candidate in the last election, when asked about court packing, said what many others think:

Sure, let’s talk about packing the court. Let’s talk about how Republicans have won the popular vote only 1 of last 7 Presidential elections but have nominated 14 of last 19 SCOTUS picks. Let’s talk about how Mitch McConnell denied President Obama’s appointments of 110 Federal judges, and a SCOTUS appointment. Those 110 appointments were then appointed by President Trump with conservative judges, and the SCOTUS pick denied to Obama was given to Trump. And now, going back on their own rule to not appoint SCOTUS justices in an election year, the GOP wants to appoint a justice in an election year. You can’t accuse Democrats of a hypothetical event that never happened while ignoring the actual court packing done by Republicans.

It seems inevitable that those holding this latter view want to use present Democratic political power to balance the partisan Republican actions. Our country is harmed the more that Supreme Court rulings are seen not as neutral constitutional and statutory rulings but as merely the imposition of personal, political, and increasingly religious views of the judges and those who placed them on the bench. An expanded Court might bring us a more balanced Court now, but ultimately, just as the Republicans have damaged the Supreme Court by their actions, the Democrats may do the same in the name of balance. The functioning of our constitutional government is harmed if we all believe as Roy Cohn did when he said, “I don’t want to know what the law is, I want to know who the judge is.” The Republican actions foster that feeling, and actions to counterbalance them by expanding the Court can do the same.

We can’t remove politics from Supreme Court decisions. On some level, all government decisions are political, and the Court is not immune. Writing about a famous case, legal scholar Fred Rodell said, “Both the plaudits and the deference, like the decision itself, and like every significant Supreme Court decision since, were and are rooted in politics, not in law. This only the ignorant would deny and only the naïve deplore.” This may be so, but that does not mean that we should just throw up our hands and accept an overly partisan Court. Instead, in examining proposals for reforming the Supreme Court, we should be seeking ways to make it look, and perhaps be, less politically partisan and more politically neutral.

Many reforms have been proposed including adding Justices now, which, of course, will be seen as and would be a partisan move even if it is warranted by Republican actions. Expansion would apparently be a one-shot deal, but of course, Republicans would be urged to do something comparable when they have the opportunity.

Other proposals, however, offer institutional changes in the timing of Supreme Court nominations that, even though they would lead to a larger body, could make the Court appear, and perhaps be, less partisan. I have not studied them all, but one has intrigued me. But now my embarrassment. I know that I read this proposal, or one much like it, somewhere. It was online, and I did not save it. I have looked for it, but so far have not found it again. I apologize for not giving proper credit, which I hope to correct.

The core of this unique proposal is that each president gets to appoint a Supreme Court Justice every two years, say on the July 1 after the presidential term begins. Presidents would make another appointment every two years thereafter. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy. Instead, in this scenario nine Justices would be picked at random from all the Supreme Court judges to decide a case. Many courts already operate this way. Intermediate appellate courts, such as the federal Courts of Appeals, have panels of three judges deciding a case but have more than that number sitting on that court. From the panoply of judges, the requisite number are selected to resolve a case. For example, the Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. The court can, therefore, take on more cases and decide them more quickly. Similarly, a Supreme Court that had more than nine judges could consider more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept for review fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the final result in a litigation. This could give more certainty, uniformity, and finality to the law.

This would also dampen lawyerly gamesmanship. Deadlines are in place to seek Supreme Court review. If they are not met, the lower court decision becomes final. If a party has been ordered to pay $1million or to serve a twenty-year sentence, the money must be paid or the imprisonment served if the petition for Supreme Court review is not timely filed. The party cannot wait for a change in Court Justices hoping that they will receive a more favorable chance in front of a newly-constituted Supreme Court.

Unlike individuals, some institutions are able to wait for Supreme Court review until the time seems propitious. For example, assume the government has lost a tax case concerning some new scheme to avoid taxes. Government attorneys may believe that if they get Supreme Court review, they will lose the case before an existing Supreme Court thereby allowing a precedent being set that allows the scheme to be used by other taxpayers indefinitely. Instead, the government may decide not to seek review in hopes that the makeup of a future Court may be more amenable to its contentions. It may be better for the government to let that individual taxpayer keep the contested moneys to avoid a bad precedent and instead seek review with some other future taxpayer when the Court makeup is different. The government can take the longer view than an individual litigant.

Other institutional groups also try to time Supreme Court review. These institutions represent a cause more than an individual client. Prime examples are the NAACP or the ACLU, but they have been joined by a host of conservative organizations. These advocacy groups often seek review only on issues when they assess the Supreme Court lineup as favorable to their position. We can expect to see that gamesmanship being played repeatedly in the coming years. With Barrett’s ascension to the Court, conservative legal organization see a solid majority favoring certain kinds of religious claims, Second Amendment expansion, and claims limiting or perhaps eliminating the right to abortion, and they will seek to get Supreme Court review of cases containing such issues.

Such gamesmanship only furthers the notion that it is not truly the Constitution or the law that determines an issue, but the personal predilections of the Justices. The intrinsic merits of a legal argument may stay the same, but the likelihood of an outcome can vary depending on the timing of Supreme Court review.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more focus on the issues and less on the judges.

I also saw another option if we had a new Justice every two years, and we had a Supreme Court larger than nine. It is the one I find most interesting.

If every two years the president could nominate a new person to the Supreme Court Justice, the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine from all the Justices, there is another intriguing possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. That judge would be available whenever one of the regular nine was unavailable for whatever reason such as illness or a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are major leaguers and are on the team, too. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for twenty-nine years and Stephen Breyer for twenty-six. Chief Justice Roberts and Samuel Alito have been on the Court for fifteen years while the other Justices have been sitting for shorter periods.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.

The partisan games we have just witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end. Such maneuvers that strengthen the notion that the Court is not a neutral body might end. Similarly, the present situation calling for the resignation of Justice Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it gave Biden two appointments in the next four years. Instead, it should start after the next presidential election with the newly-elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

Stitching a New Nine this Time (concluded)

If every two years the president could nominate a new person to the Supreme Court Justice, the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine from all the Justices, there is another intriguing possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. That judge would be available whenever one of the regular nine was unavailable for whatever reason such as illness or a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are major leaguers and are on the team, too. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for twenty-nine years and Stephen Breyer for twenty-six. Chief Justice Roberts and Samuel Alito have been on the Court for fifteen years while the other Justices have been sitting for shorter periods.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.

The partisan games we have just witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end. Such maneuvers that strengthen the notion that the Court is not a neutral body might end. Similarly, the present situation calling for the resignation of Justice Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it gave Biden two appointments in the next four years. Instead, it should start after the next presidential election with the newly-elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

(This essay will be posted in order on Monday May 3)