I had this brilliant idea about how to fix the Supreme Court, but no one wanted to pay me for it. But the country needs to know! So here it is.
So what is the problem with the Supreme Court anyway? I would say there are 2.
(1) Judge’s have life tenures and life forever now because of pesky improving diet and healthcare. That means that your grandpappy’s electoral preferences determine who gets to marry and have abortions and have labor unions. Nothing against your grandpappy, but people shouldn’t have their lives mangled and stretched by elections that happened before they were born. The court needs to be more accountable to the current electorate. Or, in short, the court isn’t politicized enough.
(2) Partisan polarization means that battles over judges have become completely intractable. At the moment, it’s not entirely clear that we can ever get a judge approved again if the President and the Senate aren’t of the same party. Justices are also forced to try to time their retirement so they’re replaced by a President of the right party. The whole thing is undignified, distracting, and generally pitiful, as well as potentially interfering with the smooth functioning of the court. In short, the court is too politicized.
So, how do you fix the too much politicization and the too little politicization? It seems impossible…but I have the one perfect awesome solution that you can tell is awesome because no one would pay me for it.
Prepare for said solution…now.
Have each President appoint one and only one judge per term. Appointments should happen right after the President is elected; it can be one of the first things the President does.
This of course means that the number of judges on the court will change. But the number of judges isn’t set in stone, or even in the Constitution. It’s been as low as 7 and as high as 10. There’s no reason it can’t vary every four years (or more often if a judge retires or dies mid-term).
Let’s list the advantages of the Berlatsky plan:
1. Every Presidential election will be represented on the court. Voters will know that a vote for President is a vote for one (1) Supreme Court pick.
2. Since everyone knows there is a pick coming, the election will be a mandate for a Supreme Court selection. This will undermine the partisan “wait till the next election” nonsense. To prevent stalling and stonewalling, a bill could also provide that if there is no vote on a nominee within 6 months, the judge is automatically seated. Since everyone knows each president will get a judge, the stakes will be reduced; each party will hope that their own judge will affect the balance of the court in four short years.
3. Retirements would be divorced from Supreme Court nominations. Justices would have much less incentive to time their retirements, since every President would always get one pick, no matter when the sitting justices step down. Presumably, justices would often retire at the beginning of a presidential term, when the new judge would be selected…but if they didn’t, it wouldn’t make no nevermind.
4. At least in theory, this shouldn’t be a difficult reform to pass. It doesn’t give a clear advantage to either Democrats or Republicans; instead, it ensures that each President, from whichever party, has a chance to select a judge with much lower stakes and much less partisan squabbling. It also mean that Presidents, of whatever party, will be able immediately to somewhat reduce the chance that the court will interfere with their policy preferences. Democrats and Republicans alike should like that, since Democrats and Republicans alike always think they’re going to win the next election.
So there you have it. I could see various tweaks—maybe it should be two justices for each President rather than one? But overall, I think it’s a remarkably elegant solution if I do say so myself. Since all the policymakers read the Hooded Utilitarian religiously, I expect it to be adopted any minute now.
I John Marshall, old white dude, and I endorse this plan.
I find this oddly convincing. Though one flaw: there will be four-year periods with in which the court has an even number of judges, and so potentially a lot of deadlocked decisions, which are the same as no decisions, which is the same as not having a supreme court.
The Gavaler amendment to the Berlatsky plan: judges are appointed for 28-year terms, ie seven Presidential terms.
As nice as this sounds, the end result would be to directly tie the Supreme Court to the Executive which… I dunno, seems like it’s against the purpose of the separation of branches?
While the current system has obvious connections to whichever President is lucky enough to get to nominate, there’s no outright mandate there. And recent history has shown that the U.S. voter generally likes having it’s Executive and Legislative branches on opposite sides of the aisle, giving the nomination-approval process some real weight.
Unfortunately, that same split is resulting in the Republicans making stupid, possibly anti-Constitutional statements about not approving any Obama nomination. But I see much bigger issues with Noah’s proposed solution for that than the situation we have now.
If this was in place in 87, where a vote for a president equals a vote for their nominee, Bork would have been on the court, not Kennedy, which would not be good for gay marriage especially. If Romney were president I don’t think many liberals would have a problem if Harry Reid refused to consider any nominees to replace Scalia.
The supreme court isn’t a great institution, and lifetime nominees are a bad idea, but fixing it would require fixing a lot more first, starting with the fact that more people vote for democrat congressmen but republicans have more land, so get more representation in congress, and have a say in all levels of government disproportionate to their support.
One problem I see is that doing away with life terms has the potential to increase incentives and opportunities for corruption. I haven’t read about it I suspect this is already a problem with state judges. I’d be particularly worried about setting up a system in which quid pro quo rulings become an appealing option for outgoing judges who will soon be looking for new jobs in lobbying or business or other arms of the government.
Of course there’s also the logistical problem that a constitutional challenge to a law limiting Court terms would ultimately end up before… the Court.
“I haven’t read about it *but* I suspect…”
Federal Bankruptcy judges get 14 year appointment terms. I would be fine with that but someone must have studied the comparisons between BK judges and lifetime judges. I would bet most currently get re-affirmed. As said above maybe 28 year terms would work better? That would put them at retirement age. There is still the possibility of corruption but it seems like a long way to go. The time on the court is increasing, if this is to be believed.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=701121
Huh; I wondered if I’d get some objections that made me rethink…but none so far.
“If this was in place in 87, where a vote for a president equals a vote for their nominee, Bork would have been on the court, not Kennedy, which would not be good for gay marriage especially”
Nah. The Senate still would have to advise and consent; that’s in the Constitution. Senators still have to approve a nominee…which they should! Vetting is good! The point is simply that right after an election Congress would have much less ground to declare they will vote on *no* nominees, no matter what.
“One problem I see is that doing away with life terms has the potential to increase incentives and opportunities for corruption.”
I’m not doing away with life terms! Justices still serve for life and retire whenever they want. Presidents appoint a new justice at the beginning of their term *whether a judge retires or not*.
So, say Scalia hadn’t died. In 2016, the new president would appoint a new justice, which means for a while there’d be 10 judges on the court (until someone died or retired.) The number of judges on the court will vary, but all judges appointed still serve for life.
Dan, the executive and judicial are already tied together; that’s constitutionally mandated in the appointment process. But judges won’t be any more indebted to the president in my system than in the old one. They still serve for life. It’s just that the appointment process would be more predictable and less chaotic—which I think is a good thing.
I dunno – I find the proposal laudably plausible. I was expecting a modest proposal or something unworkable. Some of the tweaks suggested have merit, but this has some promise.
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Incidentally, I don’t refer to HU as a ‘comics blog’ to people; more like “popular culture -mostly comics- blog with academic aspirations -and some actual academics- and a strong progressive bent”.
The most plausible objection on twitter was that number of justices would go up too quickly. I don’t know though…I think one justice dropping out a term is historically close to what we’ve gotten in the past, and it seems like my proposal could feasibly speed up retirements, since justices woulnd’t be trying to hang on till the right president shows up…
Yeah, checking, Reagan appointed 3 in 2 terms; George HW appointed 2 in one term, clinton 2 in 2 terms, george w. 2 in 2 terms, obama 2 in 2 terms…and carter 0 in 1 term. So it really is roughly 1 a term for the last 40 years.
in fact, it’s 11 in 40 years (or 12 if you count Scalia,) almost exactly what you’d get under the Berlatsky plan.
It seems like the main difference between this and reality is that a judge gets elected without needing the consent of the senate in six months, which means presidents don’t have to negotiate in good faith. Which you say is a bill that could perhaps be introduced and not the Berlatsky plan per se, but it seems like the major difference between now and the current system.
The other being that the number of judges doesn’t have to be nine and could end up tying a lot, but I’m not sure it’s in the nation’s interest to create a political body that can’t do anything half the time.
Other people seem to like the plan though, maybe I’m missing something.
Hey Isaac. It’s possible you wouldn’t need a six month failsafe. Probably you wouldn’t, I’d guess; with the election giving legitimacy, and the guarantee that all presidents will put a judge on the court, I’d think there’d be lots of incentives for legislatures to vote on nominees.
Again, I don’t think that my plan would change the number of justices that much. There have been I think 41 judges chosen over the last 40 years. That’s almost exactly on track with the replacement rate of my plan (mine is a little low, if anything, not a little high.)
Noah:
“I’m not doing away with life terms! Justices still serve for life and retire whenever they want. Presidents appoint a new justice at the beginning of their term *whether a judge retires or not*.”
Ah, okay, I misunderstood. I must have just assumed that doing away with life terms figured into this plan somehow, because I seem to recall you critiquing that as well recently.
andrew:
“Federal Bankruptcy judges get 14 year appointment terms. I would be fine with that but someone must have studied the comparisons between BK judges and lifetime judges.”
There’s a distiction between article 1 judges and article 3 judges. Article 1 of the constitution deals with congress, and among other things gives them power to make laws that set up tribunals with special jurisdictions (such as over bankruptcy or the military). Their terms are set by statute, not the constitution, so congress can limit them.
Article 3 sets up the Supreme and lower federal courts, which have much wider jurisdiction and a much broader impact on people’s lives. That’s part of the reasoning for why they get life terms while article 1 judges don’t – corrupt article 3 judges can do a lot more damage than corrupt article 1 judges. Whatever you think of that justification, as I was saying before I think limiting the terms of article 3 judges is highly unlikely because their terms are in the constitution. Any attempt to limit them would either have to be by amendment or statute. The constitutionality of such a statute could be decided by the judges themselves in the event of a legal challenge. An amendment would get around that obstacle but those are a lot harder to pass.