Fixing the Supreme Court

The Supreme Court has become radicalized. It has abandoned the principle of stare decisis - arguably the bedrock of our legal system - in favor of a cherry-picked version of originalism that relies on faulty history and is not even self-consistent.

How can we fix this?

First Proposal: Increase the number of Supreme Court Justices. 

A larger group would make it harder for those with extremist views to determine case outcomes. No voices would be silenced, but extremes would presumably be tempered. This would not be difficult to do. Article three of the Constitution established the Supreme Court, but it does not specify how many there should be.

Originally, in the Judiciary Act of 1789, Congress specified that the Court should consist of one Chief Justice and six Associate Justices. In the Judiciary Act of 1869, Congress increased this to one Chief Justice and eight Associate Justices. There is no reason Congress can’t increase it again.

In 1790, the US consisted of only the East coast, and the population was fewer than 4 million people. By 1870, the US (with territories) had grown to 39 million people. In 2020, we have nearly 308 million people. Just from the point of view of representation, it is not at all unreasonable to say it is time for another expansion, especially when Justices seem out of touch with current society.

On the other hand, the Founders went to great lengths to make sure the Supreme Court would be independent. The power of Judicial Review means that the Supreme Court can strike down laws that are unconstitutional, even if those laws are popular.

In any case, expanding the Court, while I believe warranted, is a short-term solution to the problem of partisanship. Right now, political factors dominate the composition of the Court. There is no schedule to retirements; it is left to the whim of the Justices, and confirmation has become a political football. There is no guarantee that simply increasing the number of Justices would result in a Court more dedicated to jurisprudence than to political ideology.

Second Proposal: Term limits for Supreme Court Justices

This is a popular idea that is gaining traction. The limit proposed by Fix the Court is a non-renewable 18 year term. This is about the length of time that most Justices have spent on the court before retiring, so should not affect the aggregate experience of the Court. Staggering the terms so an opening occurs every two years would allow two justices to be nominated in every Presidential term, which may help reduce ingrained partisanship.

The biggest problem I see with this is that it would require a Constitutional Amendment. The Constitution already talks about the terms of Supreme Court Justices.

However, contrary to popular belief, the Constitution does NOT say they are appointed for life.

The Constitution says that Supreme Court justices “shall hold their offices during good behaviour" The problem is that the Constitution does not define “good behavior”.

"Good behavior" has been interpreted to mean that Federal Judges (including Supreme Court Justices) can only be removed if impeached and convicted of "treason, bribery, or other high crimes and misdemeanors", as described in the section on the Executive Branch. But the Judicial Branch is not the Executive Branch, nor does it come under the purview of the Executive Branch.

A judge of any sort must meet higher ethical standards than that. Like Caesar's wife, a judge must be above reproach, and a Justice of the Supreme Court of the United States even more so.

Third Proposal: Create an Ethics Board for the Supreme Court

What I believe we need is an independent Ethics Board, whose sole responsibility is to define and monitor the “good behavior” of the justices.

Such a Board could be modeled after the Federal Reserve System Board. Such a Board should not be a House or Senate committee. An independent Board should (like the Fed) be somewhat insulated against political vagaries.

This Board would have two powers:

• To determine conflicts of interest, and be able to enforce recusal by a Justice when appropriate. 
• To determine whether “good behavior” has been violated, and in egregious cases, they could require a Justice to step down.

Creating such a Board would not require a Constitutional amendment. It does not change anything in the Constitution. It would merely be defining and enforcing a provision already in the Constitution.

Furthermore, we have a pool of retired Justices. Retired justices have an option to retain their status as fully compensated senior federal judges, and all the living retired SC Justices have chosen to do so. These Justices have already been approved by Congress. That approval does not expire; historically, Justices have returned to the Court after a lengthy absence, and have not needed to be re-approved. When a Justice is told to recuse, one of those Justices could be called upon to be a temporary substitute Justice.

I think having such a Board would address a gap in the Constitution, without requiring any changes to the Constitution itself.

Further reading:

https://www.law.cornell.edu/constitution/articleiii

https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/45

https://www.americanprogress.org/article/need-supreme-court-term-limits/

A better argument for choice

Some say a fetus is a person with a right to life. I can accept that argument (though that is a religious sentiment rather than a biological statement). But let’s explore it.

Rights are never absolute. This is usually phrased something like “your right to swing a fist ends at my nose”. There are always competing rights to be balanced. In this case, it would be the posited rights of the fetus versus the rights of the person who might be forced to host that fetus

There are a lot of situations in which a “right to life” is not absolute.

When a patient is on life support in the hospital, and the prognosis is hopeless, the hospital can “pull the plug”, and remove life support. The patient’s “right to life” is superseded by the right of the hospital to utilize resources as they see fit. We don’t say the patient is being killed, we say they are “allowed to die”. But there is a limit; if the patient is taken off life support and does not die, the hospital cannot now kill them. By proving they are viable *without life support*, their right to life is restored.

Suppose a patient needs a kidney or bone marrow transplant in order to live. That person has, in theory, a right to life, but that right does not include the right to order someone else to provide what is needed for them to live. If someone steps up to donate their organ, we consider them a hero. But we do not require anyone to make that sacrifice, nor do we call a potential donor a murderer if they refuse.

We recognize that there is a moral difference between killing someone and refusing to provide life support.

A fetus is not viable in the first trimester and most of the second. The fetus requires a womb for life support, or it will die.

But until we develop an artificial womb, the womb that the fetus needs for life support is attached to someone who also has rights. She will undergo irreversible biological changes, and some of them will change or even threaten her life. There are also mental and societal repercussions that will follow her all her life. Does she have the right to refuse to provide that life support?

As Americans, we tend to look for an enumeration of our rights in the Constitution. Many rights are implied rather than enumerated, something Justice Alito danced around in his opinion. There is no "Right to Privacy" in the Constitution, even though it can be inferred from the 1st, 3rd, 4th, 5th, 9th and 14th Amendments.

However, the 13th Amendment to the US Constitution explicitly says:

Amendment XIII

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have the power to enforce this article by appropriate legislation.

 

Isn't being forced to, not just provide, but BE the life support system for someone, a case of involuntary servitude?

And doesn't section 2 explicitly state that enforcing this right is a federal responsibility and not something to be left to the individual states? Someone needs to challenge the radical first-term anti-abortion laws on the basis of the 13th Amendment.

McConnell's shutdown and Trump's pocket veto

How is it possible that the refusal of the President to sign a bill — one that passed both the House and Senate — can (partially) shut down the government? 

Our government has a system of checks and balances. The Constitution gives the President 10 days to review a bill passed by the legislature. If he signs it, it becomes law; if he vetos it, Congress can vote to override that veto. If the President does nothing during that time, the bill becomes law without his signature. 

But there is a loophole. If Congress adjourns during those 10 days, then, if the President takes no action, the bill simply lapses. It does not become law, and since there was no veto to override, Congress cannot override this “pocket veto”. Hence the current shutdown. 

Events: 

Dec 6 -  Congress voted to delay action until after GHW Bush’s funeral. 

Dec 19 - Congress passed a bill that would keep the government open. Trump supposedly supported it. 

Dec 20 - Trump flip-flopped, after watching Fox and Friends, and announced he would not sign the bill after all.

Dec 22 - McConnell adjourned the Senate, making Trump’s refusal to sign into a pocket veto. 

By adjourning the Senate, McConnell converted Trump's refusal to sign into a pocket veto. This wiped out the previous negotiations and forced a return to square one. 

Although the House has new leadership, McConnell is still the Senate Majority leader, and he refuses to let any bills come to the floor for a vote unless it already has the support of the President. He is, in short, acting as the President’s agent rather than as the leader of a separate branch of government.

Trump was happy to claim responsibility for the shutdown, but I think history will point the finger at McConnell as the one responsible. He turned Trump's inaction into a pocket veto, and is now single-handedly ensuring that the shutdown endures. 

It is absurd that one person should have that power. A system of checks and balances demands that such stonewalling by one person can be overridden. (Note that control of the Senate (or House) by the majority party is not in the Constitution; in fact political parties are not granted any power.)  I suggest that it is completely consistent for members of Congress to be able to bring a bill to the floor, despite obstruction by the majority leader, by using a referendum or petition by ⅔ of the members of that Chamber.

So that’s how we got here. How can we mitigate the effects of a shutdown? For that matter, what exactly is a shutdown? 

A shutdown means that Congress hasn’t allocated the money for certain things, and so the government cannot spend money on them. The result is a partial shut down. Technically, that is ALL it means; there is no money. 

But some people interpret the idea of a shutdown in ways that make the problem worse. 

Having no money to pay for something is different from preventing action. But the government is forbidding anything that might be interpreted as work, even when people are willing to risk not being paid. For instance, NASA scientists were forbidden to attend the American Astronomical Society meeting, even if they were willing to foot the bill themselves. And some park rangers have said that they would have been willing to maintain a presence in Joshua Tree National Park that might have prevented the horrible vandalism there. But they were not permitted.  

It seems to me that if someone is willing to run the risk that they may not get paid or reimbursed, they should be allowed to continue their work. This especially applies to fields that are time-dependent and/or fueled by passion, such as scientific research or places where inaction causes real hardship. Such employees should not be actively prevented from doing their work, especially since such obstruction may waste more money than letting the work go forward. 

The government should also protect the employees who, though no fault of their own, are not being paid. Those called for jury duty, those who serve in the National Guard, or are volunteer firefighters or EMTs, all have legal protections against being penalized by their employers. A similar law could require forbearance by creditors towards those affected by a government shutdown. This involves little risk to the creditors, especially as wages are usually only delayed, not lost. 

Alternatively, a sort of unemployment (actually, furlough) insurance could be provided via a private insurance company, so that the administration of benefits does not depend on federal employees. This has the additional benefit of maintaining money flow, which will help maintain those who are not government employees but who depend on that community for their livelihood. 

Finally, federal employees often have clauses in their contract that prevent them from taking a second job. These clauses should be declared to be not in effect when there is a government shutdown. Confidentiality and security restrictions would still apply, but it is absurd to insist that someone not work at all, even in an unrelated field, when they are willing and able to do so.  

I believe that resistance to some of these common-sense measures stems from the idea that a government shutdown HAS to be painful, so that there is pressure for the negotiators to come to an agreement. I reject that as simple hostage-taking. 

Here is something to remember: NO ONE serving our government is the ENEMY of anyone else. Rivals, yes. Competitors, yes. But not enemies. Both sides -- all sides --  want the best for our country. They just have different visions of what "best" means. This is not grounds for demonization. We are not citizens of the Republican or Democratic Party; we are citizens of the United States of America. 

I recently heard a (Republican) Congressman say that the voters elected a mixed government, which means that the people WANT the parties to work together and compromise. Yes. 

Government is a collaborative enterprise, not a zero-sum game.