(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . A Possible Alternative/Additional Fix for the Supreme Court [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2024-06-28 Briefly: Since a reform law was passed in 1925, the Supreme Court only chooses a few cases each year (fewer than 2% of the total presented to it). This has enabled the Court to become an unpopular, unelected policymaker with lifetime tenure. Congress could remove the choosing-cases part of the Supreme Court’s duties and create a new organization whose only job is to choose which cases the Court decides and which questions it will answer/decide. This part of the process can be very political, so these decisions should explicitly be made by a political body with high turnover so that it better reflects the current desires of the American people. This change could partially fix some of the anti-democratic aspects of the current Court and might be easier for Congress to pass than some of the other proposed fixes. Background In this New York Times column, "Does the Supreme Court’s Cherry-Picking Inject Politics Into Judging?" by Adam Liptak, New York Times, October 9, 2023, Liptak references and summarizes three academic articles by Ben Johnson, now a law professor at the University of Florida. Johnson argues that the Supreme Court was set up to be an impartial place to appeal court cases and the reason the justices were given lifetime appointments was to try to isolate them from ordinary temptations (future job prospects, etc.). As the court docket increased beyond a reasonable load, Congress first created the Appeals Courts (Circuit Courts) to cover most cases and then allowed the Supreme Court to choose to decide only a subset of cases appealed from those courts (now fewer than 2% of them). He argues that once the court could decide which cases to choose, they began choosing which questions to answer too (even though they promised Congress they wouldn't) and that has led to the current situation in which they even make up questions that were not part of the original cases and answer those questions instead of deciding the cases. This has turned the Court into an unpopular and democratically illegitimate policymaker with lifetime tenure. Courts, of course, always have some political bias (see the 5th Circuit Court!!) but Johnson argues that the Supreme Court has become particularly political in the last few decades and he attributes a lot of this to the Court's ability to choose cases and questions. Johnson's analysis helps explain why the Court has been able to act the way it has and issue the terrible decisions we've seen in the last few decades (like Bush-Gore, Citizens United, Heller, and Dobbs). To address problems with this Court, progressive political activists have argued for instituting term limits, expanding the size of the court, or impeaching some of the current Justices. But these are potentially difficult, even dangerous actions: term limits may require a Constitutional amendment; Court expansion might lead to tit-for-tat escalation and getting a 2/3 impeachment conviction in the Senate would be very hard; attempting to impeach a Justice might also lead to tit-for-tat retaliation). As a result, none of these options seem politically possible in the near term. [By the way, my favorite solution in this vein has been a Supreme Court with 13-members, a new one appointed every 2 years in July of odd-numbered years with Justices forced into "senior status" after 26-year terms.] Johnson argues that the Supreme Court should revert to deciding cases instead of questions [unlikely], or if that is not practical, to at least acknowledge that they are no longer deciding cases and are now doing something else. His "solution" would be somewhat satisfying, but I'm not sure that it would actually provide much relief. Alternative/Additional Proposal Johnson's papers suggest another solution: Congress could remove the choosing-cases part of the Supreme Court's duties by creating a new commission/organization whose only job is to decide which cases should be heard by the Supreme Court and which questions should be answered/decided by it. This is the part of the process that is very political, so these decisions should explicitly be made by a political body with high turnover so that it better reflects the current desires of the American people. The Supreme Court could then go back to being a real court that only decides these chosen cases and only the questions put before it, and it would be forced to decide ALL the cases put before it. This would possibly turn the Supreme Court back into more of a boring technical organization focused on what the Constitution/law says regarding those cases, for which lifetime appointment is more appropriate. Since they would no longer be deciding cert cases, etc., the Court could also handle a lot more appeal cases than it currently does. As I see it, the new commission/organization members would be appointed by the President and confirmed by the Senate so that they are clearly direct political appointments. It would make sense that those appointed would all be lawyers or constitutional scholars, though I don't know if there is any way to require that. To lessen gamesmanship in the Senate, perhaps they would win confirmation automatically if they were not explicitly confirmed or denied within 30 days. And if the Senate rejects all 3 of the first 3 presidential appointments, then the first candidate denied would automatically be confirmed (so the Senate would be forced to choose one of the 3 President's picks, or the first would be put in place in a timely fashion anyway). This commission/organization could perhaps have 7 members with a new member appointed every 2 years and term-limits of 14 years (like members of the Board of Governors of the Federal Reserve System). The member with the longest tenure would automatically be assigned to the role of chairperson (and that person would have this duty only for 2 years). This structure would ensure that each president could appoint at least 2 members (during a 4-year term) and every 2-term president would be able to eventually appoint a majority of 4 members (near the end of his/her presidential tenure). This arrangement would give a lot of power to the political system (president and Congress), but hopefully not too much to any one person or party (unless they are really popular, like FDR). This solution has several advantages: 1. It doesn't require amending the Constitution. It can be implemented by Congress the same way the previous Supreme Court reforms were (Judiciary Act of 1869, Judiciary Act of 1891, Judicial Code of 1911, Judiciary Act of 1925, Supreme Court Case Selections Act of 1988). 2. It would be relatively easy to pass this legislation (compared to most of the other possible solutions) and it could be done relatively soon (within a few years if Democrats can continue to win majorities and the Senate abandons the filibuster rule). 3. It somewhat separates political decisions from legal/Constitutional decisions and puts the legal/Constitutional decisions in the hands of judges with lifetime appointments (to protect them from political interference or bias) and it puts the political decisions in the hands of an explicitly political body with members with relatively short terms so they are more likely to incorporate the desires/needs of the current American public. This solution seems legally and politically viable to me (though I am not a lawyer). It might not actually solve the real problem (wrong people on the Supreme Court and 60 years of domination by conservative Republican-appointed Justices including every Chief Justice since the 1950s). But it might be a step in the right direction. I hope this possible alternative will at least help stimulate more discussion about the need for reforming the Supreme Court and perhaps offer another or an additional avenue to do so. What do you think of this idea? Since I am neither a lawyer or a constitutional scholar, I’d love to hear from those who are. [END] --- [1] Url: https://www.dailykos.com/stories/2024/6/28/2215924/-A-Possible-Alternative-Additional-Fix-for-the-Supreme-Court?pm_campaign=front_page&pm_source=community_spotlight&pm_medium=web Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/