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

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  •  Oh, it's highly unlikely, (1+ / 0-)
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    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.

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