Skip to main content

View Diary: This is for you, Its the Supreme Court, Stupid (216 comments)

Comment Preferences

  •  Stella - all federal judges serve for life. (6+ / 0-)

    As Adam notes the founders wanted the judiciary to not be subject to political pressure. However, I believe there is bi-partisan support for 18 year terms for the SCOTUS.  Once the lifetime appointees had retired, there would be a new SCOTUS judge every two years. It will take a Constitutional Amendment, but I think there is support from liberals and conservatives on this issue.

    "let's talk about that"

    by VClib on Sat Jan 28, 2012 at 09:41:51 PM PST

    [ Parent ]

    •  Actually, there is a proposal that would not (4+ / 0-)
      Recommended by:
      badlands, Adam B, glorificus, StellaRay

      take an amendment. Of course the justices would continue as federal judges without reduction in salary, but the plan would allow for rotation into senior status as every two years a slot opens for a nomination. It would also alleviate whatever good faith reluctance justices have to recuse themselves, by supplying a backup corps of justices who could eliminate the risk of ties. It's not perfect, but it is simpler than passing a constitutional amendment.

      Carrington et al. proposals

      •  VR - That's going to be difficult (1+ / 0-)
        Recommended by:
        Villanova Rhodes

        There is no bipartisan support for anything that would allow the President to replace any member of the conservative majority with one of his picks so this has no chance unless the Dems take the House and build on their majority in the Senate, both of which seem doubtful.

        What would determine who stepped down, age or length of service?

        "let's talk about that"

        by VClib on Sun Jan 29, 2012 at 10:02:23 AM PST

        [ Parent ]

        •  Oh, it's highly unlikely, (1+ / 0-)
          Recommended by:
          VClib

          just not as difficult to accomplish as a constitutional amendment. I give it no chance in the current climate, nor would it be my first priority for a judiciary act. As for how it would work:

          (1) It wouldn't apply to any of the current justices (or others appointed before the new act takes effect) except insofar as one might choose to take senior justice status rather than fully retire.

          (2) Seniority on the Supreme Court, not age, is the trigger. The nine most junior justices would comprise the active Court. Where, as in the case of a recusal, a senior justice needs to be brought in to fill out the nine, it would be done by reverse seniority -- last rotated out is the first to be called back. (In general, a Chief Justice would serve for seven years.)

          As proposed, it would take quite a while to phase in, so the current President/Congress alignment isn't particularly important -- the gaming comes in predicting what future alignments will be. It's a "goo goo" proposal that would only happen if both parties are uncertain enough about their future strength to agree that any given appointment would typically yield an 18-year term, not influence for generations to come. If people really wanted to lower the temperature and reduce the power of the "it's the Supreme Court, stupid" meme, and -- more likely -- dilute the power of individual justices, it would make sense. But if Bush v. Gore didn't drive such a change, it's hard to imagine what will. Perhaps an equivalent overreach by a Democratically dominated Court, someday.  

          Would the bar and legal academy favor it? I'm not sure (if that even matters). Regular rotation would reduce predictability, which is supposedly one of the system's highest values. If it were in place now, it would be hard to ever define something as "the Roberts' Court" in the sense that we talk about Warren, Burger, or Rehnquist Courts. Would that be bad or good? Different, at any rate. (Personally, I think a new justice every two years is too frequent, but I haven't thought through how to make it less frequent without creating other issues.)

          Lots of potential collateral effects, including on the courts of appeals, if the recent trend toward elevating circuit judges holds. As far as structural problems go, in fact, the courts of appeals need attention more than the Supreme Court. If I had to choose where to spend capital, it would be there, but big changes tend to come in sweeping judiciary acts, not tinkering. (God help us if this has to be hashed out under a Sessions chairmanship.) There are too many other big things that need to be done that have a constituency behind them, but it's good to have the groundwork done for when the stars align.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site