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/
