Posted on by rjonakait

A Different Supreme Court

Almost half of Americans think the Supreme Court decides cases based on the Justices’ political views while only 25 percent believe the decisions are based on the law. Polls indicate that 55 percent disapprove of the Court’s performance while only 41 percent approve. A large majority of Americans do not think Supreme Court Justices should have life tenure, and an even greater majority would like term limits for the Justices. These changes would require amending the Constitution, an unlikely possibility. However, other reforms that might improve both the Supreme Court and the perception of it do not require new constitutional provisions.

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 ever since. That number has seemed sacrosanct since FDR’s failed attempt to expand the Court in 1937.

The Court in the 1930s 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 obscure Constitutional clauses 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.

Roosevelt’s proposal was soundly defeated after much heated rhetoric about his threat to our constitutional government. While FDR’s plan failed by a resounding vote, in the long run he was the winner, and the Supreme Court and conservatives were the losers. Soon after the proposal to enlarge the Court was presented, the Court began to uphold New Deal legislation with logic 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 focused attention on the Court whose questionable constitutional interpretations of the early 1930s became recognized as the overreach of biased judges trying to overturn 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.

Current Court decisions–as has been true for much of our history–are seen not as neutral constitutional and statutory rulings but as the imposition of personal, political, and religious views of the judges and those who placed them on the bench. We can’t remove politics from Supreme Court decisions. 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 a Court that is perceived as overly partisan and, in fact, may be so. Instead, in examining proposals for reforming the Supreme Court, we should seek ways to make it appear, and perhaps be, less politically biased and more politically neutral.

Merely expanding the Court is not a particularly good solution. If Democrats added more Justices when they had the power to do so, Republicans would do the same when they had 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 possibly make the Court less partisan. I have not studied them all, but one plan intrigues me. This is not my own plan. I read this proposal, or one much like it . . . somewhere. I have searched for it, but so far have not found it again. I apologize for not giving proper credit to its initiator.

Here is the idea behind the proposal: Each president gets to appoint one Supreme Court Justice every two years, starting perhaps on the July 1 after the presidential term begins. The Senate, as the Constitution requires, would have to consent to the nominations. 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.

However, the entire enlarged Court need not decide all the cases. For example, the nine most recently appointed Justices could regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. Reserve judges would be available whenever one of the regular nine was unavailable for whatever reason such as illness or 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. So 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 also major leaguers and remain on the team. 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 thirty-five years; Chief Justice John Roberts and Samuel Alito have each served for over twenty years.

That eighteen-year period could also lead to an expanded pool of people considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, current presidents 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.

Another possibility: Instead of having the last nine appointed Justices regularly decide, nine Justices could be picked at random from all the Supreme Court judges. 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 larger panel 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 as they do now. 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. So, for example, 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 litigant 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 can delay Supreme Court review until the time seems propitious. For example, assume the government has lost a case concerning some new scheme to avoid taxes and wants to seek redress from the Supreme Court. Government attorneys may believe that if they get immediate Supreme Court review, they will lose the case before the existing Supreme Court thereby allowing a precedent to be 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 will 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 a longer view than an individual litigant.

Other institutional groups also try to “time” Supreme Court review. These institutions represent a cause that goes beyond an individual client. Prime examples are the NAACP or the ACLU, but this list now includes a host of conservative organizations as well. These advocacy groups often seek judicial review only when they assess the Supreme Court lineup as favorable to their position. With Barrett’s ascension to the Court, conservative legal organization have seen a solid majority favoring certain kinds of religious claims and Second Amendment expansion, and they now seek to get Supreme Court review of cases containing such issues that they might not have appealed if the Supreme Court lineup were different.

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 could hope there would be more focus on the issues and less on the judges.

No matter the method for deciding cases, if there was a Supreme Court appointment every two years, the partisan games played by the Senate to deny consideration of Merrick Garland but force through the confirmation of Barrett should lessen if not end. Perceptions of the Court as a partisan body should drop. Perhaps Court performance will improve. And 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. Democracy, not just the Court, might improve.

Currently mere chance 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 the same. 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. I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally?

Posted on by rjonakait · 1 Comment

Paige Against the Machine and Term Limits

I recently attended a fundraiser at a friend’s summer home for Paige Cognetti. She is Mayor of Scranton and running for a seat in the House of Representatives from a district in Northeast Pennsylvania. She is styles herself an outsider as she did for the mayoralty and embraces the slogan, “Paige Against the Machine.”

The contest is in an important district because it is one of the increasingly rare ones where seats are not safe. Her opponent, first-term incumbent Rob Bresnahan, won by a few thousand votes, underperforming Trump who carried the district. Previously a Democrat held the seat, and the district had voted for the Democratic nominee in at least the last three previous presidential elections. 

Earlier in the day of the fundraiser she had held a press conference laying out an eight-point proposal as a basis for her campaign, and she repeated much of it that evening to the 70-or-so people crowded into the living room. Her bullet points did not address many issues that seem important to the electorate: affordability, healthcare, housing, immigration, Iran, the War Powers Act, assaults on science, assaults on free speech, assaults on fair elections. Instead, she has made “corruption” the center of her campaign, an issue on which her opponent seems vulnerable.

Although in his 2024 campaign Bresnahan said that he supported banning stock trades by congressional members, his accounts reveal prolific equities trading with some transactions apparently showing him benefiting from inside government knowledge. Not surprisingly, Cognetti proposes prohibiting Senators and Representatives from trading stocks while in office. She also seeks a long list of reforms. She hopes to prevent congressional members from serving on corporate boards, block their pay if they do not adopt a budget, ban corporate political action committees from contributing to congressional candidates, require audits of federal agencies (and require agencies to implement auditors’ recommendations), ban departing members of Congress from lobbying Congress, and ban members and their staff from betting in prediction markets on war, elections, and government activity. Cognetti, acknowledging the difficulty of adopting many of these reforms, says much of this will “take time” — an understatement.

Some of these reforms could be adopted by legislation, but many would need revisions of the Constitution. This raises another of her proposals: eighteen-year term limits for the Senate, House, and the Supreme Court. The only constitutional requirements for a Senator are to be  at least 30 years of age, a citizen for nine years, and an inhabitant of the state where elected. The only requirements for the House are being 25, seven years a citizen, and an inhabitant of the state where elected. (It is not a constitutional requirement to reside in the district where elected.) The Constitution imposes no other requirements for membership in Congress. One can even be a felon. One does not have to pass a mental, cognitive, or other competency exam. And one can be a member, according to the Constitution, even if one has already served eighteen years. The only time requirement is that a Representative serve for a two-year term while a Senator may serve for six. (The 1994 Republican “Contract with America” championed by Newt Gingrich proposed twelve-year limits for the House and Senate. A constitutional amendment to that effect received a majority in the House but not the constitutionally required two-thirds vote, and it died. The Contract limited congressional committee chairs to three two-year terms, but this did not require a Constitutional amendment.)

The Constitution does not list even minimum requirements to be a Supreme Court Justice. It does not say that a Justice has to be a certain age. It does not have a residency requirement. It does not say that a Justice must be a citizen. It does not say that a Justice has to be a lawyer. The Constitution does say, however, that all federal judges “shall hold their Offices during good Behaviour,” which usually is interpreted as lifetime appointments. Term limits for the Supreme Court, therefore, would require a constitutional amendment. (The Constitution does, of course, impose a two-term limit for the president. That limitation came via a required constitutional amendment, the 22nd, adopted in 1951.)

Polls show that disapproval of the Supreme Court in recent years has rapidly increased. A 70% approval rating in 2020 has now dropped below 50%, with at least one poll showing only a 39% approval rating. Disapproval rates are consistently above 50%. The polls also show a strong desire for Supreme Court reform. Almost 70% desire the end of life tenure. Term limits are extremely popular, polling up to 83%. But because these reforms would require amending the Constitution, such Supreme Court reforms are not likely ever to happen.

However, next time I hope to discuss reforms that could be legislatively instituted that might improve the public’s perception of the Court and, perhaps, even improve its performance.