Recent disclosures ranging from ethical improprieties to clear corruption have lent urgency to longstanding calls to reform the Supreme Court.
Before those disclosures, most of the lawyers and scholars advocating for such reforms did so on the basis of work product–including the dwindling number of decisions the Court issues annually.
Even before the recent disclosures, legal theorists were concerned with the Court’s loss of democratic legitimacy. It isn’t just the appalling shenanigans of Mitch McConnell; Neil Gorsuch was the first Supreme Court justice in American history to be nominated by a president who had lost the popular vote and confirmed by senators representing less than half of the country. Brett Kavanaugh was second, and Amy Coney Barrett was third.
The subsequent evidence of Thomas’ and Alito’s corrupt behavior has been especially unsettling.
I used to defend lifetime appointments to the federal judiciary to my students, pointing out that security shielded jurists from political pressure. But justices live a lot longer than they used to, and– as my lawyer son recently pointed out– the security afforded by those lifetime appointments also provides an incentive to ignore the rules. With a closely divided Congress, and in the absence of the enforceable ethical codes that bind lower-court judges, they are effectively shielded from consequences. As a practical matter, they’re above the law.
It’s time to consider reforms.
An article by the Brennan Center, published just after the leak of Dobbs suggested several. The article began by describing the far-right Federalist Society’s decades’ long, successful effort to capture the Court.
Beginning in the 1970s, corporate interests wary of 1960s socio-political movements developed and funded comprehensive infrastructure to advance a far-right agenda, focusing on the judiciary as an instrument for social, economic, and political change. A crucial component of the plan to push back against left-leaning legal successes was the organization and mobilization of conservative lawyers and judges who could ensure that corporate America’s preferred socioeconomic and political order was upheld in the courts. It is in this ecosystem that the Federalist Society emerged and built an empire around shepherding future leaders of the conservative legal movement into judgeships. All six justices appointed by Republican presidents are current or former Federalist Society members.
Some scholars recommended reforms that would constrain the Supreme Court’s ability to invalidate certain types of legislation. Others would regularize Supreme Court appointments and require periodic judicial turnover. Still others would expand the Court.
One of the most popular suggestions would impose term limits–terms long enough to insulate jurists from political passions–18 years is popular– but short enough to avoid the negatives of lifetime tenure.
An article in Politico argued that a proposal to impose term limits could generate bipartisan support.
The most common version of this reform contemplates justices serving nonrenewable 18-year terms, staggered so that one term ends every two years. This would mean that presidents would get to nominate new justices in the first and third years of their own administrations. Retirements and nominations would occur like clockwork. The result would be a court whose membership, at any given time, would reflect the selections of the past 4 1/2 presidential administrations.
There is a significant hurdle to overcome.
Because Article 3 of the Constitution confers life tenure upon all federal judges, term limits would likely require a constitutional amendment. Yes, constitutional amendments are hard to enact. We have not amended our Constitution since 1992, and we have done so only once in the past half-century. But there is reason — even in these politically polarized times — to believe that constitutional reform is possible.
As the essay from the Brennan Center noted, however. court reform movements have a long history at the state and federal level – and have often seemed impossible until changes in the political environment made them all but inevitable.
And as Politico reported,
What is more, almost every state in the union imposes term limits on its state supreme court justices, a mandatory retirement age, or both. Only Rhode Island has a system of life tenure akin to the federal model. It should come as no surprise, therefore, that when the National Constitution Center held an exercise in 2020 for drafting new constitutions, both the conservative and progressive teams adopted 18-year limits.
It is abundantly clear that we have reached a crisis point. The current court has issued a string of decisions that are not just wildly unpopular, but at odds with decades of precedent. it has increased its misuse of the shadow docket, and all but declared war on the agencies of the administrative state. Worst of all, sitting Justices have engaged in activities that range from demonstrably corrupt (Thomas, Alito) to ethically questionable (Roberts, Gorsuch, Barrett, Sotomayor).
It’s time for substantial reforms.
It is hard to see how we do that given the inability of the congress to agree on anything.
It is no longer a matter of SHOULD we reform the Supreme Court, but rather it is a matter of HOW.
To do nothing at this point is to seal into place the distrust for government felt by all law-abiding citizens and thus doom the republic.
The Republican puppet masters are much better at playing the long game than the Dems. If only they would use their power for good.
As the “lawyer son” referenced above, I should clarify that I didn’t say lifetime appointments provides merely an incentive to “ignore the rules.” I said it has become an incentive to outright corruption, as Justices recognize they can — and in several cases, pretty clearly do — take bribes or payoffs from obscenely rich “friends.”
So, yeah, that’s a form of “ignoring rules,” but it is so much worse, and obviously abetted by the insulation they receive from lifetime appointments (and a GOP who will shield them from consequences even when caught red-handed).
Corruption has been throughout the justice system in this country for countless decades; a creeping, insidious, treasonous taint which has been released as blatant judicial corruption by Trump’s trifecta of Gorsuch, Kavanaugh and Comey Barrett. The loss of Ruth Bader Ginsberg (whose memory, like John Lewis’, is lost in our recent past), provided McConnell and Trump the opening for their final majority vote. RBG was the conscience of SCOTUS; probably keeping Alito and Thomas from being worse than we now know them to be. The wives of Roberts and Thomas were never considered as part of the equation of questionable votes passed prior to her death. We now know the wives and friends of the justices to be major factors in our future survival as a democracy.
The media is currently aiding and abetting the election or reappointment of Trump to the White House with their unending, free, 24/7 publicity for his presidential reelection campaign. Proving an old adage is frighteningly true, “Even bad publicity is good publicity.” The return of Trump to the White House will find a way to remove the opposing justices or overload it by increasing the number of far right-wing justices. President Joe Biden has stated too many times to count, throughout his candidacy and during his presidency, that we are fighting for the soul of America. The media is providing fodder for the soulless MAGA, White Nationalist, Freedom Caucus, Trump party.
We must begin our fight for “truth, justice and the American way” at local and state levels to prevent more and worse lawmakers and lawbreakers before they reach the federal level.
Per James: “The Republican puppet masters are much better at playing the long game than the Dems. If only they would use their power for good.” The Dems have NO long game…a root cause of a lot of stuff.
“…when the National Constitution Center held an exercise in 2020 for drafting new constitutions, both the conservative and progressive teams adopted 18-year limits.”
As long as they know it’s just an “exercise”, conservatives will recommend any number of sensible ideas. That won’t translate to sensible action, when they think a proposal would weaken their power,
Reasonable term limits of all elected positions at the local, state and national level is a good thing to consider.
“Others would regularize Supreme Court appointments and require periodic judicial turnover. Still others would expand the Court.”
I say BOTH, but in a principled way particularly aimed at depoliticizing the Court.
In strict rotation, once every 13 years the Bar Association(s) of each Appellate Circuit appoint(s) a Justice to represent its Circuit. The President is entirely out of the picture. No more “to the victor belong the spoils” method of choosing a Justice based on his or her known ideological bias.
The Senate does not have to confirm the appointment, but may veto it by a super-majority vote.
As one Justice retires, a new one from the same Circuit takes office. Lather, rinse, repeat.
The Justice who is next in line to retire will become the Chief Justice for his or her last year on the bench. Largely a ceremonial function to allow each Justice to retire in a blaze of glory after 13 years of honest service and “good behavior”
I intended several separated paragraphs to make for easier reading, but unfortunately, the comment field does not allow for formatting. Everything comes out as one long paragraph. Sorry, folks.
I’m from the Expand the court and a 12 year term school along with an ethics statement for reform of the court. A judge, after all, is only a lawyer with a robe, and their choice is a political choice whether by appointment or election. I have never been an elected or appointed judge but have served as special or pro tem judge in hundreds of cases, ranging from uncontested divorce cases as a pro tem judge to an attempt by a landowner to stop the building of the interstate system as a special judge (which gives away by age).
What I find most most disconcerting about the present mess with the court (other than the obvious corruption of some of the justices) is not a Trump or Biden choice but rather the monopoly Leo and the Federalist Society enjoy in limiting their ranges of choice. Thus we hear that the “Catholics” are in charge of naming our new justices, but even if so it does not matter since it would be just as wrong if it were the “Baptists” or “Lutherans” who were in charge of such limitations, for instance, since such monopoly merges church and state, a no-no so brilliantly set forth by Madison.
Perhaps a congressional intervention into this mess should consider the possibility of a bipartisan commission charged with selection of prospective justices to the president for appointment – and thus keep government in charge of government.
“One of the most popular suggestions would impose term limits–terms long enough to insulate jurists from political passions–18 years is popular– but short enough to avoid the negatives of lifetime tenure.”
Amen. I don’t know why we insist that the Founders got everything write about the Constitution. I can come up with several mistakes off the type of my head:
1) Impeachment Power (should have given it to a non-political body)
2) Pardon Power (executive pardon should have require 2/3 approval of Senate or some check like that)
3) Two year terms for House members (too short…should have been 4 years, with 1/2 up every 2 years)
4) Lifetime tenure for federal judges
Stop thinking federal judges are not political because of lifetime tenure. Most at the lower federal court level would like to be appointed by the President to a higher position…a district court judge to the Circuit Court of Appeals and appellate federal judges to the SCT. Thus, they can be very political. Plus, there often is no meaningful check on their authority (how in the heck can federal district judges issue nationwide injunctions…I missed that day in law school) and the little in the way of ethics rules they have to follow or penalties for them if they don’t. It’s not just SCt judges.
I love the idea of SCT judges being on 18 year terms with a justice’s term expiring every 2 years. Every president would be afforded at least two appointments. And it would stop the practice of Presidents appointing less experienced attorneys and judges to federal positions because they’re in their 40s and likely to be on the bench for four decades. A healthy 58 year old could easily live to 76. Plus, the 18 year term limit would deal with the problem of really old justices getting dementia but refusing to retire. I’m fine with the 18 year terms limit applying to all federal judges.
Another thing. The Constitution says federal judges serve life terms. It doesn’t say you have life terms at your current judicial appointment. It’s arguable that Congress could adopt a law providing that SCT justices, after 18 years of service, are reassigned to a lower federal court. They would still be a federal judge and arguably the Constitution not violated.
I say put Paul Ogden in charge of cleaning up the Supreme Court mess.
Yes, the conservatives freaked out in response to the ’60’s counter-culture!
Gerald, what you say makes the best sense to me.
The long game has been a feature of the Koch boys ever since their father
used it to win a now very old case. And, they, and their ilk, have the wherewithal
to sustain it.
Interestingly, and sadly, the court has become its own worst enemy, making it
hugely clear that it is, essentially, contaminated.
Copied and pasted from the CBS web site: “Washington — The Supreme Court on Thursday ruled that race-conscious admission policies of Harvard College and the University of North Carolina violate the Constitution, bringing an end to affirmative action in higher education in a decision that will reverberate across campuses nationwide.
The court ruled 6-3 along ideological lines in the University of North Carolina case, and 6-2 in the Harvard dispute, as Justice Ketanji Brown Jackson recused herself. Chief Justice John Roberts authored the majority opinion, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Thomas read a concurring opinion from the bench. Justice Sonia Sotomayor also read her dissent aloud, the first time a dissenting justice has done so this term.”
The ruling refers to only “race-conscious ADMISSION policies”; how long have race-conscious REJECTION policies been a or “the” deciding factor in higher education admission. Not only college admission and/or rejection but a deciding factor in student loan applicants? Just askin’
You know before we talk about reforming the court, I think the laws should be reformed!
I’ve been looking into a few things, and I would like to ask the professor if this country still basically runs more on a corporate type of law base rather than civil rights and human rights. Also, the Congress never convened to form a government after the Constitution was signed. I guess that’s another issue Sheila could comment on.
It seems to me that by signing contracts and such they try to incorporate every person in this country through their social security number and such and before that probably citizenship papers. We are not free, we are constrained by contracts from birth until death.
From what I had read, when you’re getting papers from the courts, or if someone’s suing you especially a corporation suing a civilian, your name is printed in capital letters like you’re a corporation. Now I’m not sure about all the nuances of this, because I’m not steeped in the law. But it seems to me that they give the corporations and those wealthy who incorporate themselves an advantage by using corporate law in civil society.
And from what I’ve seen, corporate law makes the oligarchs more wealthy, because they are part of these monstrous powerful corporations, and the rest are more slave-like. Those that are under the civil law or civil rights and human rights.
What I’ve noticed also is specific courts or court systems that you go into, the flag standard is either an eagle, a round ball, or a spear. And each one of those things means something different. But again, I’m not sure about all the nuances. Someone I know, who is fairly up the chain in the military said the spear is for Marshall law courts. That would be an interesting thing to comment on Sheila. But it seems to me that there needs to be a reform in government across the board and all of the laws before even the courts can be reformed.
I think what flummoxed so many of the politicians when Obama was elected, he was a professor of constitutional law. So he knew what was what. It would have been nice if he would have let everyone in on the secret.
Remember, when the Constitution was written, the only ones that could vote were wealthy landowning, slave owning, white Christians.
Has anything changed in the hierarchy of this country? Mostly the courts, the politicians, the corporate honchos, are all white! Especially compared to the makeup of the population.
The pushing and shoving is happening because those who’ve been the source of power are becoming concerned. And they want to eliminate melanin enhanced folks from the power structure.
Maybe there should be a taxpayer revolt, everyone just quit paying taxes, would they arrest the entire workforce of this country? Or 50%? Or even 25%?
We always hear about constitutional crisis, maybe the constitutional crisis is what we are living in right now, and it needs to get straightened out.