Would a term limit by itself ensure that each president gets two appointments, if justices time their retirements strategically to preserve their faction on the court?
Suppose all the conservative justices retire en bloc as soon as a Republican wins the presidency, resetting the terms for all their seats to another 18 years. As long as another Republican wins within the next 18 years and the new justices continue the tactic, they can prevent a Democrat from replacing any of them indefinitely.
exactly, no matter the rules the system will be gamed. retirements, deaths, stonewalling al la mcconnell… there’s no way to account for it all.
I think you could set it up in case of a vacancy (retirement/resignation /impeachment/death) someone would be nominated to fill that slot but it’s term limit would still be the same as when the person vacated, so if they were 10 years in, whoever it would be could only serve 8 more years
That wouldn’t really be a term limit so much as a fixed term, then—and for partial/suffect terms, it might conflict with the original intention that the Supreme Court be immune from short-term political intrigues. (And of course it would also give some presidents more than two appointments per term.)
Another option might be to appoint one justice strictly every two years, with no fixed term and no fixed number of justices. Then the number of justices would fluctuate around half the number of years in the average term—so nine justices with an average term of 18 years, twelve justices with an average term of 24 years, etc.
This is just my personal view but I don’t think we should have one Supreme Court. Every case should get a random assortment of 9 judges drawn from the several circuit courts and even the most minor of conflicts of interest should mean you’re ineligible for the random selection.
And if the downside of that is we get constant conflicting precedents due to ideological judges, then why have a Supreme Court at all? If it’s Calvinball anyway, just switch to a parliamentary system.
I like your idea, but I think they’d manage to corrupt it somehow. Like picking jury members, they’d want a say over which judges get the case because politics, not because justice or impartiality.
Exactly. Appellants would separately escalate a dozen similar cases, and only proceed with those cases that draw a favorable panel.
This is a much better idea. There should still be term limits, though.
Term limits will require a constitutional amendment. We don’t actually need term limits.
What we can do instead is remove the fixed size of the court, and impose a fixed rate of appointments to the court. One appointment should be made between 6 and 12 months after the presidential inauguration, then another between 30 and 36 months. No appointments can be made outside these windows. When a justice dies or retires, their seat is not filled.
We will need a method of quickly replenishing the court in case of disaster, so I would establish a line of succession. If the court falls below 7 members, the senior Chief Judge in the 13 circuit courts is automatically elevated to SCOTUS.
This line of succession also gives us a means for preventing the Senate from gaming the system: all of the Circuit Chief Judges are pre-confirmed by the Senate to a position that places then in line for the court. If the president appoints someone from the SCOTUS line of succession, they are immediately elevated, without needing to be reconfirmed by the Senate.
Restore the court’s eroded legitimacy? Two justices at a time per term? Even if Harris wins and gets two in her first term and manages to replace two conservative justices with two liberal justices, that would still leave the court at 5/4 in the Conservatives favor. That would mean at least four more years of conservative zealotry handed down by the court.
The problem needs to be fixed as soon as possible. This is a good first step, or would have been 10 or 20 years ago but it isn’t enough right now. Biden needs to add members to the court as well as adding term limits. Or to be more realistic, Harris will need to do it. There’s no way a Republican House or 50/50 Senate is going to let Biden do anything in the next 5 months.
replace two conservative justices with two liberal justices, that would still leave the court at 5/4 in the Conservatives favor.
Not sure how you get that. The current 6/3 conservative majority would become a 5/4 liberal majority.
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I fail to see the reasoning there, but I did mention in my post that Biden would not be able to do it anyway. He will not be able to push through any reforms because the House will block him from doing so.
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Congress sets the number of seats on the court, so the House does have an important role.
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Or to be more realistic, Harris will need to do it.
Or to be even more realistic, Congress needs to.
This is one of the exact reforms I’ve been talking about wanting for years at this point. 18 years is a perfect tenure for someone as influential as a Supreme Court Justice, and giving every president 2 nominations is a good number to keep the values of the Supreme Court in line with those of the public.
1 every 2 years.
How do we handle deaths?
Edit: seems the median tenure is currently just over 15 years. Mode may well be 5 years.
also early retirements, stonewalling via the senate as with Merrick Garland… guaranteed gaming the system with those would become much more common. So yeah it’s much much more complicated than just saying one every two years.
By betting on who’s out in Vegas.
Since I only just now saw this, the idea I had was to reinstate the most recently retired justice as the most fair solution I could think of.
If it’s Thomas or Alito, we handle it by laughing and arrest everyone who bribed them.
Why wait 'til they die?
Most likely you’d have to allow the sitting president to appoint an acting justice to serve out the remainder of that justice’s term. Yeah we’d still have the problem of RBG dying under Trump and giving us a 6-3 conservative majority, but if she only had a few years left on her term when she died the damage would at least be limited.
As for what McConnell did to Garland, having term endings scheduled would make that a lot harder. If their terms are staggered such that they always end 1 year and 3 years into each president’s term it destroys the argument that it’s too close to an election and the people should get to decide who makes the appointment. They’d be forced to outright deny the nominee and let the president try again. That’s much harder to maintain.
This is s great idea, not to extreme that it’s impossible but powerful enough to make a real difference for the better
Yeah, sorry to say, not gonna happen.
Not immediately, but that is not the point.
- He is setting up his legacy.
Supreme Court reform is widely supported. When, not if, it happens, Biden’s name will be attached to history as being the first to call for it. He is also saying to us, “this is what I would have pushed if I had a second term.” Legacy matters to presidents.
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He is handing this issue to Kamala to aid in her election campaign. She can use this as a campaign promise, and as a continuance of their administration.
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It would never happen if nobody proposed it. This is him proposing it.
Think there should be something in there about if the senate doesn’t go through with the hearing that it’s “implied consent”. Not that Mitch McConnell bs.
President Harris could and should get ten new picks.
She should expand the courts
She should announce that as her plan to pressure the passage of Biden’s plan
Well, she has immunity for official acts…
If she provides the direction directly to the person/people who are to follow that instruction, how is that now (now) a Constitutional order?
Asking theoretically, but I really don’t know how that wouldnt be Constitutional. We already kill US citizens abroad…
Just type it up on the White House letterhead and you’re probably good to go.
Amy Covid Barrett and Beer Kavanaugh are completely illegitimate
ACB is not nearly as insane as I thought. Thomas and Roberts need to be kicked out first.
Alito is worse than Roberts.
There isn’t a plan.
A plan would list the steps necessary to enact Biden’s wishlist, but so far I have not seen a plan for how to actually enact any of the changes he has proposed. It will require constitutional amendments, which is impossible thanks to the undemocratic electoral process enshrined by the Supreme Court. Without amendments literally any legislation can just be struck down by the Court.
Instead of using the unlimited power the Court just granted him, he’s just wasting time on a wishlist that won’t happen.
We would need an amendment for term limits, but we don’t actually need term limits. The size of the court is set by Congress, not the Constitution, and there is no requirement that it be a fixed number.
So, we can just give every president two appointments, in their first and third year in each term. Life terms, per the constitution, but any who die or retire are not replaced.
That’s a plan! Sadly, this proposal does not include Court expansion. There is no plan.
You claim he has unlimited power but also that this is so impossible he can’t do a single thing to progress the idea.
Seems like you’re just taking extreme opinions to criticise a person you already dislike.
You claim he has unlimited power but also that this is so impossible he can’t do a single thing to progress the idea.
I said he has unlimited power and he’s not fucking using it. There needs to be a plan for how his wishlist can be put into action, otherwise it’s just daydreaming.
Do you mean that the headline doesn’t contain all the details?
I get that it’s nice to imagine the world is no more complex than the things we see but the president doesn’t just come up with cool sounding things while he’s up on his podium - Biden has been a hugely effective policy maker and actually got stuff to happen so I think it’s silly to suggest he’s not got a plan.
I mean Biden’s wishlist on whitehouse.gov which contained no details for how to make any of it happen. Go read it yourself. He’s talking about pie-in-the-sky bullshit like constitutional amendments with no details for how he plans to make it happen, or how he plans to put ethics rules in place without the Court ruling it unconstitional.
Don’t talk down to me. No one has any idea how he’s going to do any of this, or how Harris is going to do any of it. There. Is. No. Plan!
A sitting president is opening discussing changing an equal branch of government. He’s using the bully pulpit to introduce and normalize the idea to an entire nation. That itself is valuable, and where this has to start.
This should have started four fucking years ago, but four years ago even talking about Court reform was too extreme.
This is progress, but we’re behind where we should be.
This could bring abortion every few times to try and overturn previous ruling. and keep it as the single most important issue at every election while they keep screwing the working class. rinse and repeat
Here’s an idea: elect supreme Court justices by popular vote. By the people, for the people. This way, they can’t strategically do shit to pack it their way
Because that works so well for politicians.
No.
A country of +330M habitants could and should have more than 9 Supreme Court justices, also the ninth Circuit should have been splitted long ago
And the 5th circuit should be launched into orbit.
But orbits decay. Even if they burn up on re-entry, I don’t want to risk inhaling vaporized fascist bootlicker. That shit causes cancer.
Oh, I meant a solar grazing orbit. With multiple gravity assists from Venus.
That’s more like it.
That’s an orbit worth pondering.
Huh. Did not realize that was considered an orbit. #themoreyouknow
why does the quantity of justices need to scale with population? i get that with house representatives since they’re supposed to represent a cohesive population of the country with similar local interests, but that isn’t the case with SCOTUS.
In the 2022-2023 term, the U.S. Supreme Court received approximately 7,000 to 8,000 petitions for certiorari, of which only a small fraction were granted a hearing. The Court agreed to hear about 70 cases. This means that the vast majority of cases—about 99%—were rejected and did not make it onto the Court’s docket.
how does more justices help with that? do they not all hear every case? wouldn’t that end up being inconsistent?
The idea would essentially be that they wouldn’t all hear every case. You’d randomly assign a panel of say 5 justices from the pool and each panel would hear their own cases.
That way we stop bullshit like what Thomas did in his Dobbs concurrence where he straight up said he thinks cases like Obergefell (gay marriage), Lawrence (can’t criminalize gay sexual acts), and Griswold (contraception) also need to be reversed and all but instructed conservative legal circles to back challenges to those cases. Since there’d be no guarantee that a baseless partisan legal challenge would end up in front of favorable justices they would be much less likely to succeed.
This does potentially introduce a problem with consistency, but such a problem isn’t unsolvable. You could institute a rule that allows for basically an appeal on a SCOTUS ruling to be heard by either a different panel of justices or the entire body as a whole, for example. It obviously wouldn’t be perfect, but we don’t need perfection. We need SCOTUS to not be some unaccountable council of high priests who can act with blatant partisan interest and we can’t do anything about it.
I’m not sure how more justices would help that. They don’t all hear separate cases - they rule together as one court.
Americans, take a look at how the European Court of Justice is staffed:
The Court of Justice consists of 27 Judges who are assisted by 11 Advocates-General. The Judges and Advocates-General are appointed by common accord of the governments of the member states[7] and hold office for a renewable term of six years. The treaties require that they are chosen from legal experts whose independence is “beyond doubt” and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are of recognised competence.[7] In practice, each member state nominates a judge whose nomination is then ratified by all other member states.[8]
The Court can sit in plenary session, as a Grand Chamber of fifteen judges (including the president and vice-president), or in chambers of three or five judges. Plenary sittings are now very rare, and the court mostly sits in chambers of three or five judges.[19] Each chamber elects its own president who is elected for a term of three years in the case of the five-judge chambers or one year in the case of three-judge chambers.
https://en.m.wikipedia.org/wiki/European_Court_of_Justice
Not to mention that there are more than one “supreme courts” with different types of expertise.
There is the General Court, the Civil Service Tribunal, and of course very importantly the European Court of Human Rights.
Spread the hazard of hyper-concentration as thin as possible.
The issue for the United States is that the system was designed from the start to guarantee unending political gridlock. Then SCOTUS is the only pressure relief valve to allow legal changes to take place. Thus it has become the focal point for all political energy.
No system can produce an independent court when all of the population is intensely focused on that court as an outlet for political change.
Yes, I’ve argued elsewhere that the Americans need to relearn federalism. Canada, Switzerland, the EU, all have more modern and better functioning federal or federal-like institutions (with their own problems of course, but nowhere near as broken as in the US). Hell, India has a mandatory retirement age for supreme court justices.
