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Ohiogal

(32,002 posts) Tue Oct 8, 2019, 08:28 AM Oct 2019

Don't Pack the Supreme Court. Fix It For Good.

A good analysis and some good ideas from the author of this piece.

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There are a few primary problems with how the Court currently functions. First, with only nine justices on the Court, and many critical opinions being decided by a slim five to four majority, each individual justice has too much influence. One justice replacing another can significantly alter the Court’s ideological balance, leading to troubling inconsistency and uncertainty on many major issues.

(snip)

Fortunately, there are solutions to these problems. A long-term strategy might involve limiting the length of justices’ terms to ten years, or even having justices chosen out of a pool of qualified candidates via lottery. That would significantly diminish the impact of any single justice, incentivize deference to precedent, and eliminate the problem of justices being an ideological extension of the presidents who nominated them.

Of course, that would require a constitutional amendment, but there are other positive changes that could be implemented immediately. The Judiciary Act of 1869 set the number of justices at nine. New legislation could increase that number to thirteen or fifteen. That would make each individual justice would be less influential. In addition, the Senate could raise the threshold for confirmation to 75 percent of Senate votes to ensure that every justice would need bipartisan support to get confirmed. If those two reforms were enacted together, it wouldn’t be partisan court packing; it would be a permanent safeguard against ideological extremism. At the same time, it would encourage bipartisan compromise. There might need to be an enforcement mechanism to ensure that seats were not left vacant for too long, but most Americans would likely be thrilled to see Senators working together instead of continuing their ceaseless tug of war.

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https://washingtonmonthly.com/2019/10/07/dont-pack-the-supreme-court-fix-it-for-good/

8 replies

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Don't Pack the Supreme Court. Fix It For Good. (Original Post) Ohiogal Oct 2019 OP

Yeah, let's raise the threshold to 75% and make it harder for the next Democratic president dalton99a Oct 2019 #1

Hmmm. I wonder if something could be done with the power of the Majority Leader instead. chowder66 Oct 2019 #2

The Speaker of the House has nothing to do with SCOTUS appointments Proud Liberal Dem Oct 2019 #3

My bad. I meant Majority Leader's power. nt chowder66 Oct 2019 #5

I like the rationale behind more judges Buckeyeblue Oct 2019 #4

Exec nominates; Legislative confirms. There is a check and balance over the Judicial that way. Cuthbert Allgood Oct 2019 #6

"Packing" implies skullduggery DavidDvorkin Oct 2019 #7

Interesting ideas. Xolodno Oct 2019 #8

dalton99a

(81,513 posts)

1. Yeah, let's raise the threshold to 75% and make it harder for the next Democratic president

Reply to Ohiogal (Original post)

Tue Oct 8, 2019, 09:10 AM

Oct 2019

Bipartisan, my ass

chowder66

(9,070 posts)

2. Hmmm. I wonder if something could be done with the power of the Majority Leader instead.

Reply to Ohiogal (Original post)

Tue Oct 8, 2019, 03:35 PM

Oct 2019

Maybe some mechanism that won't allow for blocking of judges/nomination processes, etc.

Proud Liberal Dem

(24,412 posts)

3. The Speaker of the House has nothing to do with SCOTUS appointments

Reply to chowder66 (Reply #2)

Tue Oct 8, 2019, 03:39 PM

Oct 2019

That's the Senate. And I agree that the Senate Majority Leader shouldn't have the power to unilaterally block confirmation of judges (or bringing legislation to the floor of the Senate).

chowder66

(9,070 posts)

5. My bad. I meant Majority Leader's power. nt

Reply to Proud Liberal Dem (Reply #3)

Tue Oct 8, 2019, 03:57 PM

Oct 2019

Buckeyeblue

(5,499 posts)

4. I like the rationale behind more judges

Reply to Ohiogal (Original post)

Tue Oct 8, 2019, 03:46 PM

Oct 2019

I like the idea of a 10 year term as well. I think it's difficult for the judiciary branch to be independent when they are nominated by the executive branch. Maybe each region of the country elects an SC justice or two.

Cuthbert Allgood

(4,921 posts)

6. Exec nominates; Legislative confirms. There is a check and balance over the Judicial that way.

Reply to Buckeyeblue (Reply #4)

Tue Oct 8, 2019, 04:03 PM

Oct 2019

If every region elects a justice, then the Judicial basically becomes the same as the Legislative with no check and balance over judicial by exec and legislative.

Term limits screw up what the Constitution sets out. The House is supposed to be volatile. It can 100% change every 2 years. The senate is supposed to not be changed significantly by quick societal changes that come and go. Only 1/3 can change every 2 years. The president is in between that with a 4 year. The judicial is supposed to be extremely slow in changing—hence the lifetime.

It's fine as it is. If the Senate had done their job and put in Obama's nomination, it would have worked as it was supposed to. That is a problem with the Senate, their leadership, and the Senate rules and not a problem with the Judicial terms and appointment.

DavidDvorkin

(19,479 posts)

7. "Packing" implies skullduggery

Reply to Ohiogal (Original post)

Tue Oct 8, 2019, 04:04 PM

Oct 2019

It's simply changing the number of justices, which has been done quite a few times before.

Xolodno

(6,395 posts)

8. Interesting ideas.

Reply to Ohiogal (Original post)

Tue Oct 8, 2019, 04:36 PM

Oct 2019

A 10 year term is a bit too short. Once you've been on the Supreme Court, what else is there in your career? I think a lot of qualified candidates will end up declining nomination if they know their job is gone in 10 years but plan to work at least another 20. I think a 20 year term would be more realistic. You guarantee Justices who are experienced and in mid to mid late career.

A 75% threshold...that seems a bit unrealistic. A two thirds is tough as it is.

As for expanding the court, I think it should go from 9 to 11.

I don't like the lottery system, a seemingly qualified candidate could turn out to be bad news. Some Congressional vetting should be done.

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