This diary is predicated on the wide opinion that the current SCOTUS has lost its way. The motivation towards reform isn’t simply that the court isn’t deciding things to suit us on the left, but by a strong impression that the Court has broken its sacred duty to act as an honest arbiter. The dominance of interested parties willing to nominate and approve highly partisan justices has exposed serious weaknesses in the status quo requiring restorative action.
In my opinion, all current proposals for SCOTUS reform fall short in coping with this fundamental problem. What is really needed is a deep reorganization with the dual goals of reducing the stakes surrounding individual SCOTUS appointments and increasing the critically important public faith in the legitimacy and fairness of the process.
The only thing the US constitution mentions in connection with the Supreme Court is that it exist and that the justices serve ‘on good behavior,’ effectively a life tenure. Essentially everything else is arguably subject to Congressional debate and legislation.* edit below
Article III, Section 1: ”The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
Any reform we might contemplate must be politically practical, meaning that, although it must necessarily require legislation, it must avoid the insurmountable barrier of constitutional amendment . My proposal represents a radical shift but I believe that it meets all the above requirements:
Start with all authorized, confirmed Article III federal judges (currently numbering 890).
Eliminate from eligibility all those with less than ten years' seniority in their federal roles as Senate-confirmed judges.
Place all in a random rotation for three-year Supreme Court terms.
Increase the sitting court to 15.
Beef up the permanent SCOTUS support staff.
Have the justices serve in a rotation of five per year. This way, a third of the court changes on a yearly basis.
Resolve an understanding that these federal judges’ preexisting subjection to a judicial code of ethics follows them to their tenures on the SCOTUS.
Give currently sitting Supreme Court Justices the choice of joining the rotation or accepting emeritus status.
The advantages of this superficially crazy but fundamentally sound repair for the court include:
The reform can be accomplished through legislation alone
No constitutional amendment is needed.
Federal judges are already confirmed by the Senate, arguably precluding the need for full-dress individual reconfirmation, or at least lessening the stakes surrounding each individual reconfirmation.
This process will make it extremely difficult for any single partisan group to fundamentally affect the court makeup to their ideological advantage, vastly decreasing the the stakes surrounding SCOTUS appointments and increasing not only the court’s overall stability but the impression of rectitude, legitimacy, and fairness that is absolutely necessary for the Court’s role as a foundation of our constitutional system. The focus will then shift to selection and confirmation of members of the entire Federal judiciary, with a built in decade-long training and cooling off period, to the advantage of all.
Edit: a commenter points out that the SCOTUS is mentioned under the article outlining the President’s power of appointment. I’ve suggested how this might be finessed in comment.
Respectfully submitted