Friday, February 13, 2009

Reforming the Supreme Court


A group of 33 legal academics, former state court judges and practitioners, headed by Duke University's Paul Carrington, has sent a letter to the Vice President, the Attorney General, and the chairs of the House and Senate Judiciary committees recommending four proposals for reform of the federal judiciary, and in particular, the Supreme Court.

Not all of the participants supported all four proposals. For example, I signed on only to the proposal calling for regular appointments of Supreme Court justices. The proposal calls for new appointments every two years and creates a new senior status for the most senior justices similar in various ways to what we already have for the circuit and district courts. Sandy Levinson of this blog has also signed onto that proposal; however, in this op-ed Sandy has also argued for a different proposal that would feature fixed 18 year terms for the Justices.

Here is the proposal for regularizing Supreme Court appointments:


One question to be considered is the prospect that as Justices retain power for extended lengths of time, appointments to the Court are made so infrequently as to diminish the likelihood that the Court's many important policy decisions will reflect the moral and political values of the contemporary citizens they govern.

The first reform presented here therefore provides for regular biennial appointments of new Justices selected by the then sitting President and Senate in order to assure timely rotation within the membership of the Court. To assure a Court of nine Justices, this will require a modification of the duties of Justices who have remained on the Court for more than eighteen years. A variation on this specific proposal was advanced and widely discussed in 2005. It won approval from many, including bar leaders and former judges. Most opposition rested on a constitutional argument that any term or age limits imposed by Congress would violate Article III and require a constitutional amendment. But no proposal for such an amendment has been advanced, and we see no serious constitutional problem in legislating regularized appointments with diminished but continuing roles for those Justices holding office for very long terms.

Almost everywhere high court judges are subject to term or age limits that prevent the risk of superannuation. Our proposal is not a term limit but a system of rotation to assure some regularity of change in the composition of the Court. If necessary to meet the constitutional objection, the allocation and assignment of duties when there are more than nine active Justices could be left for the Justices themselves to resolve by a rule of court. There is surely no constitutional objection that could be made to that scheme, but it would be more cumbersome than the one proposed.
Two alternatives for avoiding any constitutional problem are available if thought to be necessary. One response would be to provide a large bonus to Justices who retire in good time. It would seem unjust to give such a bonus to Justices and not to circuit or district judges who now tend to surrender their power and accept senior status in good time. Another response to the constitutional question would be to revive the practice of required circuit riding. If each Justice were required to sit on a district court bench a few times a year, that requirement would again serve, as it long did, to keep the Justices in closer contact with the citizens they govern and the realities that citizens perceive. And it would reduce the likelihood that Justices will cling to an office they are no longer willing or able fully to perform. We do not favor either of these reforms but mention them as alternatives to be considered if the more modest proposal we advance is thought to raise a problem under Article III.

Our specific proposal is:


§1. NUMBER OF JUSTICES SITTING TO DECIDE CASES ON THE MERITS; QUORUM. The Supreme Court shall generally sit as a Court of nine Justices but if necessary six Justices shall constitute a quorum. The Court may by rule authorize a single Justice to make provisional rulings when necessary.

§2. REGULARITY OF APPOINTMENTS. One Justice, and only one, shall be appointed during the first session of Congress after each federal election, unless during that Congress one or more appointments are required by Section 3. Each appointment shall become effective on August 1 of the year following the election. If an appointment under this section results in the availability of more than nine Justices, the nine who are junior in time of service shall sit to decide each appeal certified for its decision on the merits.

§3. VACANCIES. If a retirement, death or removal of a Justice results in there being fewer than nine Justices, including Senior Justices, a new Justice or Chief Justice shall be appointed and considered as the Justice required to be appointed during that Congress, if that appointment has not already been made. If more than one such vacancy arises, any additional appointment will be considered as the Justice required to be appointed during the next Congress for which no appointment has yet been made.

§4. THE OFFICE OF SENIOR JUSTICE. A Justice who is senior to nine or more Justices shall unless disabled continue to hold office as a Senior Justice. If there is a vacancy on the Court or if a Justice is recused a Senior Justice shall be called by the Chief Justice in reverse order of seniority to sit when needed to provide a nine-member Court to decide a case. A Senior Justice shall also participate in any other matter before the Court including decisions to grant or deny a petition for certiorari or to promulgate rules of court in compliance with the rules enabling provisions of Title 28.

§5. TEMPORARY DELAY IN COMMENCEMENT OF REGULARITY OF APPOINTMENTS. Justices sitting on the Court at the time of this enactment shall sit regularly on the Court until their retirement, death, removal or voluntary acceptance of status as a Senior Justice. No appointments shall be made under Section 2 of this Title before the Congress that begins after the last of the present Justices so leaves the Court, but any Justice appointed after the date of enactment shall become a Senior Justice in accordance with the provisions of Section 4 of this Title.

Vikram D. Amar
Barbara A. Babcock
Jack M. Balkin
Robert A. Burt
Paul D. Carrington
Roger C. Cramton
Lino A. Graglia
Yale Kamisar
Harry T. Lemmon
Sanford Levinson
George W. Liebmann
Frank L. Michelman
Paul J. Mishkin
Alan B. Morrison
Daniel J. Meador
Robert F. Nagel
Philip D. Oliver
Sallyanne Payton
Eric A. Posner
L. A. Scot Powe, Jr.
Jeffersson Powell
William L. Reynolds
William M. Richman
Mark D. Rosen
Christoper H. Schroeder
David L. Shapiro
Theodore J. St. Antoine
Joan Steinman
Peter L. Strauss
Herbert P. Wilkins

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