For an idea that is 250 years old it's worked amazingly well. It's also in need of a rewrite. Much of it hasn't worked as intended or doesn't apply to a modem world.
In hindsight the idea of giving nine people unreviewable plenipotentiary power for life may not have been a good idea.
Yes there is. Both are bad (if the electorate is the general population) but the mechanism used by the United States to appoint judges to the supreme court can be gamed very easily, which is why it is full of Republican stooges now.
Beginning with Robert Bork. For the longest time, Senate approval for Supreme Court justices was essentially a rubber stamp. The notion that a candidate would be rejected was noteworthy at the time. Nowadays the confirmation hearings are covered live and have become highly partisan and contentious. And of course we have to talk about Justice Thomas' tempestuous confirmation. After that, it was reported that Thomas said his lifelong goal afterwards was to make liberals pay for that embarrassment.
Part of the reason Republicans had such an easy time packing the judiciary is that the Democrats let them for so many years. Not the Supreme Court so much as the lower judiciary. A lot of us spent many years yelling that the Republicans were packing the courts, and we were firmly told by corporate Democrats, "No, they aren't, don't be silly."
The practical fact is that the Supreme Court cannot hear every case they're petitioned to hear. So they can't fix everything. The appeals courts are where most law gets done. Before you ask, the trial level is where the fact-finding happens. But if you want a novel reading of the law or a ruling on a difficult fact pattern—90 percent of fact patterns aren't—you need an astute judgment at the appellate level. For practical purposes, most of these decisions need to stand as written, and up until now most have. We should be more afraid of Justice Emil Bové than Justice Barrett because he hears cases that have an appeal as of right.
You need to try to remove politics from the appointment process as much as possible because the judgements the courts make should be based on the law, not political biases.
I agree, and part of the problem we have with the present Supreme Court is that the Republican supermajority is blatantly just making stuff up at this point. Lacking four votes to grant certiorari, the liberal minority cannot even bring cases to the court to identify the problems with the majority's often hasty reasoning (think
Heller followed by
Bruen).
As a professor explained to me, the court has always been political, but it is rarely partisan. Guess where we are now. The notion that a President gets to appoint justices presumes that the choice embodies an ideological alignment. There is plenty of wiggle room within law for varying opinions. The Senate's role in confirmation is meant to check a rogue President or a rogue candidate, but that was based on the nominal role of the Senate as the sober patrician house of Congress instead of the populist rabble it has devolved into.
Most notably, the court is dabbling where it shouldn't now. Ordinarily the court becomes interested in a case only after its record has been fully developed, its final judgment rendered, and its appellate decisions written and debated. Now with the rise of the so-called shadow docket (cf. Steven Vladeck) we see the court diving into interlocutory motions, granting certiorari before judgment, and rendering incontestable rulings on pre-trial motions that incomprehensibly allow Pres. Trump to make fish soup. This degree of micromanagement is highly unusual. And if there were any doubt, the court's ruling in
Trump v. U.S. essentially absolving Donald Trump of any practical criminal liability has to invent the Bold Executive doctrine out of thin air to support the Republican partisan agenda.
You see this occasionally when they have public speaking engagements (which are becoming more frequent) - like we're really not as smart as you think we are, haha.
And they really aren't. There are judges on the federal bench who have far more jurisprudence experience and a far better knowledge of law than the justices on the Supreme Court. Justice Thomas was a federal judge for less than two years before being appointed to the Supreme Court. When these people spend decades in the rarified atmosphere of high-altitude appellate review after only a few years (if that) on the actual bench, they really do lose touch with how the law interacts with real life.
The law academy remains split on the prestige of the court. Most younger professors are quite aware that the Supreme Court justices are not really all that smart where the law is concerned. They aren't generally the wisest or widest read, or even the best lawyers. Consequently they have no problem offering even harsh criticism over recent decisions. On the other hand you have the old-guard professors who have been conditioned for years to treat the justices as the dispassionate priest-monarchs they like to portray themselves as—the only judges who ever wear their robes outside the courtroom (i.e., to the State of the Union address). In that view, the justices are holy oracles. To these old professors, the court's opinions are always regarded as visionary and incontestable. They'll happily toss their law review articles in the shredder if a court opinion contradicts them.
It's like they're saying we're all amicable and friendly and there's no hidden animosity between us. Our country's peace depends on it when the other two branches are in such disarray.
And therefore I have to end with Justice Sotomayor's recent apology to Justice Kavanaugh. In
Noem v. Vasquez Perdomo, Justice Kavanaugh described his oft-lambasted "Kavanaugh Stop," wherein he imagined that ICE encounters with people of suspected ethnicity are brief, cordial affairs where the suspect's attestation to be a U.S. citizen is taken at face value and the suspect is immediately left to go about his business. Social media has had a field day with this, presenting the obviously violent, unlawful activity by ICE and labeling it a Kavanaugh Stop. And to be honest: Justice Kavanaugh deserves every single bit of this. His concurrence in
Noem misstates fact to the point of sheer fantasy. This reinvention of the facts of the case has become a hallmark of the court's recent jurisprudence (See also
Kennedy v. Bremerton School District). But at this level of proceeding the justices' picture of the facts is unreviewable. They know no one can call them on it credibly except in the court of public opinion.
And the funny thing is that
Noem hasn't even gone to trial. This was a ruling on a temporary restraining order, which is normally not reviewable
at all much less to the Supreme Court. This is the degree to which the majority feels the need to meddle in lower courts' authority in order to preserve the Trump agenda.
But the story doesn't end even there. Just recently, Justice Sotomayor apologized publicly to Justice Kavanaugh for continuing to comment uncharitably on the ludicrous fiction of the Kavanaugh Stop. To me this seems like the minority having been bullied into respecting even obviously ludicrous public decisions by the majority. When you listen to the oral arguments in various cases alongside people who really can read between the lines, you learn just how much some of the justices are antagonists of the others. You hear questions whose answers are likely to embarrass positions held by some of the justices, even if they aren't especially relevant to the case. They really don't like each other.
We know the Chief Justice is understandably (if not deludedly) concerned with the perception of the impartiality, cordiality, and collegiality of the court. I wonder if she got called to the principal's office and told, "Now Sonia, you need to play nicely with Brett." It was a shadow-docket decision on a minor order! Kavanaugh didn't
need to write anything. For him to go out of his way to present an obviously Fake News version of the facts should really be something we talk about and something his more reasonable colleagues lambast him for. It's a bizarre, obviously partisan move. "Coach" Kavanaugh is clearly running judicial interference for some of the most hated and frankly fascist behavior from the Trump regime. Since we the people have no authority to challenge this, it falls to the associate justices to point out the blatant posturing.
