2009 Judiciary Act: Part One
A group of law professors has offered to Congress four proposals for a Judiciary Act of 2009 that would make some changes in the composition and duties of the Supreme Court. In a series of posts this week, I will address those four proposals and present also my own proposal for reform.
The first proposal the professors offer is for regular appointments to the Supreme Court. The professors who offer this (not all the professors in the group sign on to each of the individual proposals) say that when the Justices stay on the Court for extended periods, the Court’s “many policy decisions” do not “reflect the moral and political values” of the general public. Instead of term limits, which exist in other countries and in the state courts, the professors propose that, in addition to filling in vacancies when a Justice retires or resign, the President should appoint one new Justice during the first session of Congress after each federal election. The nine most junior Justices would then sit to hear cases. The remaining Justices would be designated Senior Justices. A Senior Justice would fill in where an active Justice is unable to participate in a case. Senior Justices would also play a role in decisions to grant or deny certiorari.
Leaving aside the questions of whether the Court makes policy decisions and whether it is desirable for the Justices to be updated on contemporary mores, I generally agree with the goal of the proposal. I think turnover is healthy. Roberts and Alito have brought some welcome energy to the Court. Oral argument is more interesting nowadays with new voices weighing in (and with Roberts increasing the time available to lawyers to argue their cases).
The big issue here, as the professors recognize, is how to put this plan in action. Article III specifies that the Justices “shall hold their offices during good behavior.” The question, then, becomes whether a Senior Justice is still holding the office to which the justice was originally confirmed. David Stras and Ryan Scott have identified the relevant concerns in the context of lower federal judges taking senior status.
The professors have three possible ways to avoid a constitutional problem. One is to for the Court itself, rather than Congress, to decide which nine Justices hear a case. The second is to give a monetary bonus to Justices who retire early. A third is to make life unpleasant by restoring circuit riding.
I have a better fix.
I would not turn Justices into Senior Justices and virtually eliminate their role in deciding cases. Instead, I would allow a new President, in the first year of office, to make an additional appointment to the Court. Thus, instead of a new Justice every two years (under the professors’ proposal), there would be one new Justice every four years. All of the Justices would continue to be active Justices hearing cases. If a Justice retires or dies, the President would only make a new appointment if the retirement or death led to there being fewer than than nine Justices on the Court.
In addition to avoiding the constitutional problem, this approach deals with another concern the professors have, that of strategic retirement: a Justice staying in office until a particular President is elected so the Justice can exercise some control over his or her successor. Under my approach, a retirement would be unlikely to lead to a new appointment.
My approach allows for the number of Justices to exceed nine. It could, therefore, produce a larger number of opinions and even more fractured decisions than we already see. Yet the total number of Justices is not likely to be so high as to be an unworkable number. Moreover, there are likely ways to promote unity. Congress could, perhaps, require the Court to issue a single opinion for the Court representing the views of a super majority.
My fix could be readily enacted and would be an easier sell than turning current Justices into Senior Justices.