As my regular readers know I’ve been complaining about the Supreme Court for much longer than the last week. In fact, along with climate change and the right wing domestic terrorism, the Court is one of the biggest challenges to American. My question, as posed in today’s title is: Is anyone in Congress listening?
The first step in problem solving is acknowledging the existence of the problem. A majority of Americans recognize the problem; I’m not sure I can say the same for many members of Congress.
Many have done extensive work on suggestions to improve the Court. Over the next few paragraphs I will very briefly cover a few of the suggestions.
Expansion
This proposal calls for simply expanding the number of justices. It always comes from the political left (which I proudly admit to being a member of). Not coincidentally the expansion is always called for when Democrats control the process and the number always yields a liberal majority on the Court.
To me it is a temporary fix at best. At some point the other side will control the process and what do you expect them to do? Down the road I would see a Court that will be so large it will need to hold oral arguments in an arena.
The main advantage of expansion over all other suggestions is that it does not require a constitutional amendment.
Ethics/Oversight
The Supreme Court effectively has no code of ethics. Financial disclosures are theoretically required but if they are missed or full of omissions there is no real penalty. The Roberts Court acts insulted by any effort at ethics reform and I’m certain they would rule any legislative effort as unconstitutional. Among other things the Roberts Court doesn’t seem to think that things like checks and balances apply to them.
While obviously needed, ethics reform alone will not happen.
Term Limits
The most interesting proposal I have heard is term limits for Supreme Court Justices. This would be tricky. It would have to be a long term, say a single 18-year term. (The possibility of reelection/reappointment makes them politically vulnerable.) The idea behind a lifetime appointment (which is what all federal judges currently have) is that they are not bribable. After all, they have a great job for as long as they want to keep working. That would also eliminate the incentive for naming relatively young judges (say 40-year-olds) with thinner resumes to the Court. Under this plan if seated at 50 you would effectively retire at 68.
This would certainly require a constitutional amendment. In the current political climate; good luck with that!
Linking Appointments To A Presidential Term
Donald Trump nominated three of the current nine justices during his single term. If you can’t see the problems with that, please stop wasting your time reading this blog. The idea of guaranteeing probably one appointment per term would bring the people into the process and highlight the importance of justices in both presidential and senate elections.
Again, this would require a constitutional amendment. That’s a high bar (and should be so) in any set of circumstances.
The reality is that some combination of the above suggestions, complete with modifications, is probably the optimal solution. I can’t see it until the people start voting in federal and state (an amendment requires ratification from three quarters of the state legislatures) with an eye to the Court.
I guess I shouldn’t jump to the conclusion. The process starts with a group of Congress members listening. Are they? As with gun regulation, you may not reach a perfect solution but do something. The status quo isn’t working.
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