Does SCOTUS deserve its exalted status?

[JayUtah]

The real problem with court reform is the elephant in the room: almost anything beyond changing the number of justices requires an Article V amendment, which is about as likely as a pink unicorn suddenly materializing in your living room. So there's a certain sense of futility in discussing even the best ideas.

Another idea is to change the rules of the court so that it more closely resembles the U.K. Supreme Court. In the U.S., the Supreme Court hears all cases en banc. In the U.K., cases are heard by a panel of justices drawn at random, and that decision is final. The U.S. does a similar thing at the intermediate appellate level, but there is a possibility for a case to be reheard en banc. This way, a case stands a chance of being heard by a selection of justices whose partisan leanings may not reflect that of the entire court. But as with many other ideas, this would require the court to agree to change its rules. New rules cannot be imposed on it.

 

[Suddenly]

But as with many other ideas, this would require the court to agree to change its rules. New rules cannot be imposed on it.

Why not? There has to be a supreme court, they have jurisdiction over certain cases, you can't give judges a pay cut, they are judges for life, and they can be impeached for a lack of good behavior. After that all bets are off. There even being other federal courts is up to congress.

Congress and the executive can force the court to do whatever if they really feel like it. There is the impeachment power. Cut their budget. Restructure the federal courts in a way to force them to more or less ride circuit. They would be trivially easy to bring to heel if they resist change.

There has been a reason why the Supreme Court has historically tried to appear fair beyond reproach. It's because they lack any real power and what they have is a built up moral authority. Even ignoring that so many recent decisions by this court are bonkers, just their corruption and failure to address same is not something that should be tolerated. This latest leak is just another example. This sort of thing used to bother me a bit. Then I was a judge for a while and saw things from a different perspective and now it enrages me to the point where thinking about it endangers my health.

The political opposition will do nothing of substance because, well, my assessment of the stagnant thinking, institutional cowardice, and incompetence of the Democratic Party is only tangentially relevant here and just thinking about this is making my eye twitch,

 

[Suddenly]

The argument against term limits is that would mean the are even more political and probably more prone to corruption.

I'm not sure that's possible.

As to corruption the veil of secrecy they use to escape scrutiny is a billion times the factor that any potential transactional issues would be. That and the sanctimonious haze that still lingers.

Seeing that Trump has effectively outsourced judicial selection to the right wing Federalist Society it would be impossible for it to be more political.

 

[PitPat]

The real problem with court reform is the elephant in the room: almost anything beyond changing the number of justices requires an Article V amendment, which is about as likely as a pink unicorn suddenly materializing in your living room. So there's a certain sense of futility in discussing even the best ideas.

Another idea is to change the rules of the court so that it more closely resembles the U.K. Supreme Court. In the U.S., the Supreme Court hears all cases en banc. In the U.K., cases are heard by a panel of justices drawn at random, and that decision is final. The U.S. does a similar thing at the intermediate appellate level, but there is a possibility for a case to be reheard en banc. This way, a case stands a chance of being heard by a selection of justices whose partisan leanings may not reflect that of the entire court. But as with many other ideas, this would require the court to agree to change its rules. New rules cannot be imposed on it.

Well stacking the court attempts haven't been successful and would probably require an amendment to expand it (thanks FDR!)

But just how about, let's say, a 20 year term - kinda like FBI Director. Presidents would still get to appoint.

 

[Darat]

Or have a retirement age.

 

[JayUtah]

Well stacking the court attempts haven't been successful and would probably require an amendment to expand it (thanks FDR!)

The number of seats on the Supreme Court can be adjusted by Congress. It doesn't need a constitutional amendment. The convention view of history is that while FDR did not pack the court as he threatened to do, the threat put enough pressure on the court to stop ruling against his economic recovery measures.

Or have a retirement age.

The Constitution presently doesn't allow this, as justices serve "during good behavior." A mandatory retirement age would ostensibly solve and create the same problem as term limits.

 

[ahhell]

Or have a retirement age.

I'm not opposed to that, but it would have similar issues to term limits, unless we want to legally mandate that they can't get another job.

I'm not sure that's possible.

As to corruption the veil of secrecy they use to escape scrutiny is a billion times the factor that any potential transactional issues would be. That and the sanctimonious haze that still lingers.

Seeing that Trump has effectively outsourced judicial selection to the right wing Federalist Society it would be impossible for it to be more political.

If they were so corrupt and political, they'd rule in favor of Trump far more often. last term the 3 liberal justices were as likely to be in a 6-3 descent as the 3 most conservative justices. If folks aren't cherry picking cases, its a lot harder to create a narrative that the SCOTUS or any othe courts are hopelessly partisan. I think you both overestimate how political and corrupt they actually are and underrate how political and corrupt they could be.
Any rate there are lot of things that can be done without an amendment. Term limits and retirement ages, those require amendments. All the consitution says is that that there shall be a supreme court, chief justice, inferior courts as congress sees fit, and they shall have lifetime appointments on good behavior.

Seems to me they could easily change how they are chosen and probably how the court is organized including the number of justices.

This would require congress to actually do something which is really the problem with the court. Congress doesn't actually do its job, so the president has started doing it for them, which means the courts get involved.

 

[ahhell]

Yeah I get your ambivalence. There just doesn't seem to be a good answer right now.

Maybe still appointments but with a higher threshold of Senate confirmation?

Maybe like a......filibuster?

 

[JayUtah]

If they were so corrupt and political, they'd rule in favor of Trump far more often. last term the 3 liberal justices were as likely to be in a 6-3 descent as the 3 most conservative justices. If folks aren't cherry picking cases, its a lot harder to create a narrative that the SCOTUS or any othe courts are hopelessly partisan. I think you both overestimate how political and corrupt they actually are and underrate how political and corrupt they could be.

"They aren't nearly as biased and corrupt as they could be, therefore they aren't biased and corrupt."

 

[ahhell]

The real problem with court reform is the elephant in the room: almost anything beyond changing the number of justices requires an Article V amendment, which is about as likely as a pink unicorn suddenly materializing in your living room. So there's a certain sense of futility in discussing even the best ideas.

Another idea is to change the rules of the court so that it more closely resembles the U.K. Supreme Court. In the U.S., the Supreme Court hears all cases en banc. In the U.K., cases are heard by a panel of justices drawn at random, and that decision is final. The U.S. does a similar thing at the intermediate appellate level, but there is a possibility for a case to be reheard en banc. This way, a case stands a chance of being heard by a selection of justices whose partisan leanings may not reflect that of the entire court. But as with many other ideas, this would require the court to agree to change its rules. New rules cannot be imposed on it.

I generally like this idea, it would also make the notion of adding justices go down easier. From a workload standpoint it makes sense.

 

[Suddenly]

If they were so corrupt and political, they'd rule in favor of Trump far more often. last term the 3 liberal justices were as likely to be in a 6-3 descent as the 3 most conservative justices. If folks aren't cherry picking cases, its a lot harder to create a narrative that the SCOTUS or any othe courts are hopelessly partisan. I think you both overestimate how political and corrupt they actually are and underrate how political and corrupt they could be.
Any rate there are lot of things that can be done without an amendment. Term limits and retirement ages, those require amendments. All the consitution says is that that there shall be a supreme court, chief justice, inferior courts as congress sees fit, and they shall have lifetime appointments on good behavior.

This ignores the shadow docket which is a thing. Whether, how, and when things are taken up by the court or dealt with in a summary fashion has a huge effect.

That's where it gets dirty. They've got some at best interesting standards for what sorts of favors and gifts they can accept and effectively zero oversight or transparency. No real guardrails on conflict of interest.

We really have no idea how corrupt they are given the lack of any transparency, but what has leaked through has suggested it's pretty grim.

 

[ahhell]

This ignores the shadow docket which is a thing. Whether, how, and when things are taken up by the court or dealt with in a summary fashion has a huge effect.

That's where it gets dirty. They've got some at best interesting standards for what sorts of favors and gifts they can accept and effectively zero oversight or transparency. No real guardrails on conflict of interest.

We really have no idea how corrupt they are given the lack of any transparency, but what has leaked through has suggested it's pretty grim.

That story is a lot of not much really. What's the scotus suppose to do when presidents or states are doing potentially illegal things, let them do it while it takes years for a case to work its way through the court? The generally don't end those proceedings but rather rule on what can happen in the mean time. The whole recent article on it was mostly BS, Birth of the shadow docket? Its existed longer than I have. Granted, there's more now, that's not the courts fault, they can only respond to what others bring to them. I guess they could refuse and let potentially illegal things happen while case work their way through the court.

A written and enforceable ethics code is needed but mostly from an appearance thing. There's no real evidence that anyone is taking bribes but there is the appearance of impropriety.

"They aren't nearly as biased and corrupt as they could be, therefore they aren't biased and corrupt."

They aren't any more biased than any other group of 9 people. I don't think they are especially corrupt either. That's all mostly just innuendo by folks that want to undermine the current court because they don't like 6 of the justices. The best evidence for corruption, Thomas has a rich friend and a nutty wife.

 

[JayUtah]

They aren't any more biased than any other group of 9 people. I don't think they are especially corrupt either. That's all mostly just innuendo by folks that want to undermine the current court because they don't like 6 of the justices. The best evidence for corruption, Thomas has a rich friend and a nutty wife.

Wow.

You really don't have a lot of experience with laws or courts or judges, do you?

 

[Suddenly]

There's no real evidence that anyone is taking bribes but there is the appearance of impropriety.

Well, that' the point. The appearance is enough, and in their case the appearance of impropriety is completely self inflicted so they deserve exactly zero benefit of the doubt. They could adopt disclosure practices that would drag all of this into the daylight but they don't.

I was a judge. I had to report the $4 or so in royalties I get every year from a book published in 2011. If I so much as went on facebook and said I liked a restaurant I'd get a call from the ethics people. I had to disassociate myself from my daughter's activity fundraising. I could go on for quite a while.

The restrictions on my personal liberty were substantial but that goes with the office. The whole point is avoiding the appearance of impropriety because that appearance degrades the legitimacy of the judicial function. That is supposed to be the primary concern. Not whether any of that is fair or convenient to me. If not being able to shill candles to pay for dance costumes would cause trouble at home, I am free to resign.

I resigned because personal reasons made it that I had other priorities that conflicted with the office. I didn't whine about how none of these reasons were my fault and now my life is ruined and blah blah blah.

They aren't any more biased than any other group of 9 people. I don't think they are especially corrupt either. That's all mostly just innuendo by folks that want to undermine the current court because they don't like 6 of the justices. The best evidence for corruption, Thomas has a rich friend and a nutty wife.

Being closely associated with an attempted overthrow of the government that would obviously become an issue before the Court isn't so easily brushed off as some sort of quirkiness. It creates a pretty massive conflict of interest that should disqualify Thomas from getting within 100 miles of an even remotely related case and if Thomas had a shred of decency he would have resigned for the good of the judiciary as a whole. But you see this wouldn't be fair to him, and fairness to a privileged individual is obviously way more important than protecting the legitimacy of the office that person holds.

That there is plenty of justification to conclude she is treading on his name in a way that looks awfully like corruption by proxy is somehow only the second most worrisome thing.

This has nothing to do my appraisal of anyone's jurisprudence.

 

[PitPat]

A lot of good points. Well you can't stack the court (without congressional approval) and can't impeach them unless you're Samuel Chase and pretty sure you aren't.

Even hypothetically speaking, I can't think of a way to keep SCOTUS non-political given our current framework..

 

[Suddenly]

A lot of good points. Well you can't stack the court (without congressional approval) and can't impeach them unless you're Samuel Chase and pretty sure you aren't.

Even hypothetically speaking, I can't think of a way to keep SCOTUS non-political given our current framework..

The solution would require a party with an interest in ending the status quo having both houses of congress and the presidency. The courts are an easy fix. Stacking the crap out of the courts is necessary before even bothering with anything else. That's assuming that peaceful transition of power happens. Which is a stretch.

Maybe just admit the whole thing was a dreadful mistake and rejoin the UK. Or completely uno reverso on Greenland and we pay Denmark to take over the US.

There was a realistic, albeit aggressive, path forward in 2021 but it wasn't taken seriously and it's a bit late now.

 

[PitPat]

The solution would require a party with an interest in ending the status quo having both houses of congress and the presidency. The courts are an easy fix. Stacking the crap out of the courts is necessary before even bothering with anything else. That's assuming that peaceful transition of power happens. Which is a stretch.
Maybe just admit the whole thing was a dreadful mistake and rejoin the UK. Or completely uno reverso on Greenland and we pay Denmark to take over the US.

There was a realistic, albeit aggressive, path forward in 2021 but it wasn't taken seriously and it's a bit late now.

I can't learn how to drive on the left side of the road, so no.

Judges are appointed for a reason, and those reasons may have worn out their welcome.

How about just a straight-up election for SCOTUS?

That would rely on the voting population's collective intelligence though and we've seen how that works.

Maybe Churchill's quote, paraphrasing: Democracy is the worst form of government except for all the others.

 

[jeremyp]

The argument against term limits is that would mean the are even more political and probably more prone to corruption. Basically every president would get some number(usually 2 is suggested) nominees so they'd start campaigning with the nominees. Then at the end they'll still be in the job market, so, if you are looking for a job maybe you'll rule differently hoping to get paid off. I'm ambivalent about it. I do think we need to do something to reduce the stakes of who gets to pick justices. Its distorted our politics. I've heard some other suggestions that may reduce those down sides. Random panels drawn for the circuit courts or the Supremes get drawn from the circuit courts when one retires. Either randomly or by seniority. The idea being that there's a lot lower stakes when appointing circuit judges on account of their being so many of them.

If not a term limit then definitely an age limit. Justices should retire at 70 I reckon. While we are at it, an upper age limit on the presidency would also be a great idea. The biggest problem with the SCOTUS though is that the justices are selected in a partisan way. Other countries have different models that try to remove politics from selection.

 

[Suddenly]

I can't learn how to drive on the left side of the road, so no.

Judges are appointed for a reason, and those reasons may have worn out their welcome.

How about just a straight-up election for SCOTUS?

That would rely on the voting population's collective intelligence though and we've seen how that works.

Maybe Churchill's quote, paraphrasing: Democracy is the worst form of government except for all the others.

The problem from combining election politics and the judicial function is the ethical backdrop. A candidate can not say anything of substance. An outside person can distort and outright lie about a case and as a judge you really can't go on the defensive. Which is part of the job. You get to eat criticism and take the high road. Which is fine, but it makes the dynamics of an election completely bizarre because it is one that by definition you can not engage on substance

There was a race here where the prosecutor ran against a long standing judge because the judge was showing clear signs of senility. He couldn't directly raise the senility issue because it was treated as a personal attack. Which good grief.

So it becomes a combination of which candidate is willing to ignore these ethical limitations and who winds up with the most dark money in their camp as a third party isn't ethically restricted. Fundraising gets weird.

I've in my email trash a metric ton of invites to fundraisers for a state supreme court justice appointed to finish out a term and thus has a special election coming up. A healthy chunk of my practice is before that court. I had an oral argument about six weeks ago and am waiting for the opinion. Meanwhile the judge, or to be clear the judge's "Committee" is hitting me up for dough.

This... is less than optimal.

At the supreme court level there really isn't a need for structural change. Legitimacy is the issue. If there emerges a strong Democratic majority and consensus for reforms the tension with the court will turn on this perception of legitimacy. That's the avenue of attack for Democrats. They have to be very direct about the legitimacy of the court and their willingness to attack it or they might as well not bother.

The strong threat is stacking. The nuclear option would be to ignore court rulings as the court has no direct power to enforce anything.

How that shakes out is a matter of political consensus and how that consensus would be built is by sustained attacks over the corruption and bad faith rulings of this court. Which means willingness to very blunt without flinching about the rot. Normalizing more direct criticism of the courts is at this point essential.

None of that is inherently partisan. It is just that the Democrats are the party with any motivation to clean up this mess. Any judges they put in there will be subject to the same kinds of criticism. It isn't partisan politics if the more liberal justices happen to be engaged in less corrupt behavior.

 

[ahhell]

If not a term limit then definitely an age limit. Justices should retire at 70 I reckon. While we are at it, an upper age limit on the presidency would also be a great idea. The biggest problem with the SCOTUS though is that the justices are selected in a partisan way. Other countries have different models that try to remove politics from selection.

The issue there is, how do you do that without getting rid of democracy in the selection? As far as I can tell, there's no legal reason congress can't change the way they are selected and confirmed. I currently lean towards picking them from the circuit courts by seniority or lottery. As I said early, we really need to reduce the political stakes somehow so, almost anything is better than the current system. How about, each year a new court drawn from the circuits? No term limit so no amendment...maybe? Each case gets a different random court from the circuits? Cumbersome though, unless it just rotates through each circuit but excludes the circuit it came from?

@Suddenly, packing the courts is a terrible idea. You think the court is illegitimate now, wait until there's 50 justices with 26 chosen by the last president. Unless you find a way to keep any other party out of power for the rest of time, that would be a disaster.