Reforming the Supreme Court

I was happy to see that a letter went to Alito suggesting that he should resign because of his open biases that he applies to decisions he should recuse himself from, and his acceptance of inappropriate gifts. That news was followed by a discussion that the Democrats should include court reform in their platform, and a discussion of term limits and a strict code of ethics. So I wanted to put my 2 cents in. 

It seems to me that the Supreme Court more than any other institution must abide to a strict code of ethics. A reasonable code and adherence to it would have already eliminated Thomas and Alito who blatantly corrupt the court with their conduct and participation in decisions they clearly should have recused themselves from. The job of the court should be to determine if laws are legally constituted in adherence to the requirements of the constitution. The Justices should intend to, and to the best of their ability adhere to a standard of ethics that comfort us that they are doing their best to be objective in their decision-making. However, I am having a hard time endorsing term limits. I think an argument can be made that one of the things that helps keep outside influences from impacting decision-making by the Justices is that they are appointed for life, or until they resign. Just my thoughts

How about age limits?

No one should be appointed to a position of power for life.

Absolutely no one.

It would be hard to change the appointed for life as it's in Article III of the Constitution. But an interesting suggestion I've heard is that the Supreme Court appointment per se doesn't have to be for life. In other words, Madame Judge is from a District Court or an Appellate Court and gets the nod to be on the Supremes. That term could be for just 10 years or so and then it's back to a lower federal court. I almost like that better than adding more justices (i.e., packing the court).

That's a really interesting concept.

The court should be expanded simply for the reason that the workload has increased enormously over the past decades.

The current court is built for a 19th century society, not a 21st century one.

The plan I describe below will never happen, not in my lifetime anyway, but it's the the best plan I've heard of. I read this a couple of years ago so this is off the top of my head. Details and numbers are approximate but you'll get the idea.

1. increase the size significantly (like double it, maybe triple it). The NY southern district court has 28 judges. No reason SCOTUS can't be just as large or larger.
   
2. expansion would be gradual, I think. Either that or the initial expansion would give both parties an equal role in picking the new judges.
3. cases would be heard by 5(?) member panels, judges would be assigned randomly
   
4. limit terms to 10 years (as morganna said, judges would then rotate out to lower courts, so as to avoid the need for an amendment)
5. during every 4 year presidential term, 2(?) judges will rotate out so that the president gets to appoint replacements
6. there was a provision to try and give both parties equal chance to appoint judges so that over time the court would be split evenly, more or less. I'm not sure how that squares with the fact that presidents will be from different parties. But the intention is to try and get an even split eventually. maybe this is handled by number 2 above.

There are some missing details but I think the general intention is clear.

drummerboy said:

The court should be expanded simply for the reason that the workload has increased enormously over the past decades.

The current court is built for a 19th century society, not a 21st century one.

The plan I describe below will never happen, not in my lifetime anyway, but it's the the best plan I've heard of. I read this a couple of years ago so this is off the top of my head. Details and numbers are approximate but you'll get the idea.

1. increase the size significantly (like double it, maybe triple it). The NY southern district court has 28 judges. No reason SCOTUS can't be just as large or larger.
   
2. expansion would be gradual, I think. Either that or the initial expansion would give both parties an equal role in picking the new judges.
3. cases would be heard by 5(?) member panels, judges would be assigned randomly
   
4. limit terms to 10 years (as morganna said, judges would then rotate out to lower courts, so as to avoid the need for an amendment)
5. during every 4 year presidential term, 2(?) judges will rotate out so that the president gets to appoint replacements
6. there was a provision to try and give both parties equal chance to appoint judges so that over time the court would be split evenly, more or less. I'm not sure how that squares with the fact that presidents will be from different parties. But the intention is to try and get an even split eventually. maybe this is handled by number 2 above.

There are some missing details but I think the general intention is clear.

Sen. Markey was just discussing it with Jen Psaki.

I have to assume drummerboy and Morgana have been conversing with each other given that he mentioned my pass along about the justices moving back to the lower courts but referenced Morgana. See 

1. limit terms to 10 years (as morganna said, judges would then rotate out to lower courts, so as to avoid the need for an amendment)
   
      But now I want in on this interesting conversation! lol. @ Morgana did this discussion happen on Jen's show this week? I'll search it. Starting to really like Jen more and more. She just recently was on as a guest host on a Pod Save America show too. 
   
   

wendy said:

I have to assume drummerboy and Morgana have been conversing with each other given that he mentioned my pass along about the justices moving back to the lower courts but referenced Morgana. See 

1. limit terms to 10 years (as morganna said, judges would then rotate out to lower courts, so as to avoid the need for an amendment)
   
      But now I want in on this interesting conversation! lol. @ Morgana did this discussion happen on Jen's show this week? I'll search it. Starting to really like Jen more and more. She just recently was on as a guest host on a Pod Save America show too. 
   
   

Jump in! I'm not sure where it began but I've mentioned it on Soapbox All Politics. With all of the thread drifts it might be a challenge to find the start. 

Might be worth moving this thread to All Politics. I don't think anyone is against either term limits or age limits in theory, but some have concerns about how it could work. I was angered when 3 Trump appointees, who I watched being interviewed in Congress, all gave assurances about precedent. I didn't buy it.

Which Jen show was it that Markey was on if you know? As to term limits unless you're talking about just Supreme Court limits and then a switch back to Court of Appeals or District court not gonna happen It's in the constitution. I'd rather work on the ERA rather than that as it has a better chance to happen albeit not much. As to other options, yeah, let's look into adding more justices. The switch in time that saved nine from the FDR era is worthy of study.
FWIW, the term is precedent not precedence. And yes, they are liars just like Trump. And they don't even understand originalism. Both Alito and Thomas should have recused themselves from these opinions by the way.

wendy said:

I have to assume drummerboy and Morgana have been conversing with each other given that he mentioned my pass along about the justices moving back to the lower courts but referenced Morgana. See 

1. limit terms to 10 years (as morganna said, judges would then rotate out to lower courts, so as to avoid the need for an amendment)
   
      But now I want in on this interesting conversation! lol. @ Morgana did this discussion happen on Jen's show this week? I'll search it. Starting to really like Jen more and more. She just recently was on as a guest host on a Pod Save America show too. 
   
   

oh. you said that? sorry.

(to be clear, I did already know this. I was just trying to give credit to whoever mentioned it first here. albeit incorrectly)

I quoted Markey when I suggested it on the other page on the Biden's Bucket List thread.

Morganna

Senator Markey was just on with Jen Psaki discussing expanding the Supreme Court. He's convinced VP Harris can make sound arguments and elaborated on some of their recent decisions, not to mention the ethics scandals. Earlier MSNBC was citing Fox polls about the Court. Most polled were for term limits, I think I saw 18 years, there was dissatisfaction with the Presidential immunity deal as well.

So, a more serious look at my earlier suggestions about expanding the court.

https://www.politico.com/news/2024/07/26/biden-supreme-court-reform-plans-00171493

PVW said:

https://www.politico.com/news/2024/07/26/biden-supreme-court-reform-plans-00171493

Perhaps he feels by tackling term limits and the Immunity decision he can give Harris an opportunity to hear the arguments and prepare strategy for pursuing it when she gets elected. Or as it is so unpopular based on even the FOX polls, he can stir up some animosity towards Republicans from the undecided to help tip the scales in her favor.

Rotating them out every x years seems like a limit.  I doubt it would survive a challenge.

The Supreme Court has been weaponized (probably a long time ago).  I'm not sure the founding fathers had this in mind. Any attempts to reform for the Supreme Court will be challenged in court and ultimately be decide by the Supreme Court.

dave said:

Rotating them out every x years seems like a limit.  I doubt it would survive a challenge.

well, with this court, sure.

I gotta go with dave on this one.

Article III speaks to One Supreme Court, and whatever other courts Congress gets around to creating. It then  goes on to tell us that: judges of the Supreme Court, and those other  courts, shall enjoy tenure during good behavior.

So, given that the Article speaks specifically to judges of the Supreme Court having lifetime tenure, absent an impeachment and conviction, we are stuck with the nine wise ones we presently have.

It will come back to our liking: just give it some time.

TomR

They can have lifetime tenure but after 18 years if Congress approves they are to go to senior status. Biden just presented it as they are to be confined to just ruling on cases of original jurisdiction. Interesting. Forget constitutional amendments. Never happen. Look at the ERA.

As to coming back to our liking if it doesn't happen this election year we are doomed. That is because then both Thomas and Alito will be sure to retire if the sociopath is elected. Since the Heritage Foundation/Heritage movement has come into existence all has changed. So no. Totally disagree with the "just give it some time." You and others may not see the danger. Many of us do.

Wendy Lauter

I'm also very concerned. If Thomas and Alito are replaced with young extremists that will mean decades under their rule. Is Judge Eileen Cannon auditioning?

Get out and call, donate and volunteer. And right on Morganna!

A bit of a surprise, a PBS animated series for children, Alma's Way about a little girl from the Bronx, featured a story about Justice Sonia Sotomayor.

Very sweet.

This is an outstanding interview with Sen. Sheldon Whitehouse, IMO the top Senate expert on the judiciary. I found it very informative and insightful. They discuss the proposed reforms and related issues.

One encouraging aspect was when Whitehouse talked about possible constitutional challenges to the reforms, like term limits. He's confident that they are constitutionally sound, and explains why.

The interviewer said something that really struck me, and which I hadn't heard put that way before. He said that we always talk about the "three co-equal branches" of government. It's what we've been taught since grade school. But there is nothing in the constitution about the branches being co-equal, and, in fact, the framers clearly meant the judiciary to be the weakest of the three.  Come to today, and the world is upside-down and the (un-elected and largely unaccountable) judiciary lords their power over the other two branches. Some democracy.

Ignore the over-the-top titles below. These youtubers are in fierce competition for views.

drummerboy said:

But there is nothing in the constitution about the branches being co-equal, and, in fact, the framers clearly meant the judiciary to be the weakest of the three.

Did they?

Unlike today, where Americans often deeply disagree, the Founders spoke with a unanimity of vision. That's why we can so easily say "The Founders" believes this or that, and why every bit of documentary evidence that seems to show one particular founder disagreeing with another is simply a sign that whoever disagrees with me clearly misunderstands the true meaning of what the Founders intended.

PVW said:

Unlike today, where Americans often deeply disagree, the Founders spoke with a unanimity of vision. That's why we can so easily say "The Founders" believes this or that, and why every bit of documentary evidence that seems to show one particular founder disagreeing with another is simply a sign that whoever disagrees with me clearly misunderstands the true meaning of what the Founders intended.

Virginia’s ratifying convention was divided in 1788, but a delegate from Henrico County, where anti-ratification sentiment ran strong, argued in favor of the Constitution, focusing in part on the benefits of a federal judiciary system. His participation was considered crucial in getting the Constitution over the finish line in the Old Dominion.

A mere 15 years later, he had something more to say to any “in fact weakest of the three branches” founders in a case called Marbury v. Madison, putting his name, John Marshall, down as the author of the 4-0 opinion.

My comment wasn't really directed at you, more at the way we tend to talk about "the Founders" in a way that downplays or ignores the way the founding generation had a great diversity of opinions.

PVW said:

My comment wasn't really directed at you, more at the way we tend to talk about "the Founders" in a way that downplays or ignores the way the founding generation had a great diversity of opinions.

Oh, I know. I was just piggybacking off it.

DaveSchmidt said:

drummerboy said:

But there is nothing in the constitution about the branches being co-equal, and, in fact, the framers clearly meant the judiciary to be the weakest of the three.

Did they?

Yes.

I can’t decide what I’m enjoying more — drummerboy’s appeal to originalism, or my mental picture of his look of awe when a college dorm mate passes the bong and shares the epiphany that the Constitution contains no mention of the co-equality of the branches of government.