Supreme Court Think Piece

[Updated 9/20/2020]

With the passing of Ruth Bator Ginsberg, it is time to dust off and revisit this Think Piece.  The activities to replace her can expected to be even more brutal than the confirmation of Justice Kavanaugh and will surely include physical violence this time.

As earlier, I borrow heavily from writings on the subject by Mark Levin.

So, what is wrong with the Supreme Court?

Problem 1:  Appointments are for life.

While the constitution grants Congress the power to impeach and remove judges, short of this there is no effective recourse.  A judge remains on the court until he or she dies or resigns.  Sometimes that happens at an uncomfortable time, as it has now.

This scares the bejeebers out of the party not holding the presidency and not having a majority in the Senate, as we are witnessing now with democrats, and witnessed in 2016 with republicans.

And it isn’t helping matters, this time, as democrats realize that Justice Ginsberg’s replacement could be on the Court “for the next 40 years.”  That same fear was held by republicans in 2016 when Obama had the opportunity of replacing Justice Scalia.  This drove republicans to not consider any Obama nominee for confirmation.  (There’s something wrong with this as well.  Under the current rules, when a President wins an election, he or she should have the right to appoint justices when openings occur.)

So, if almost all candidates for the Supreme Court are thought to be so flawed that there is very strong opposition to their confirmation, why is it justified that they be on the court for life. 

And I can see no advantage to appointments being for life.  It would seem that if a supreme court majority of 5 lawyers has the final word on constitutional matters, then governance comes down to selecting 5 lawyers.  Five, count them, five – to decide such major issues.  I doubt that the framers intended so much power in the hands of so few.  If they realized this I doubt they would have conferred life terms upon them. And provided no effective recourse.  Not responsible to elective control.  As Thomas Jefferson wrote: “Our judges are as honest as other men and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control”.  We’ve had some pretty goofy justices in the past.

Too often justices look for ways to elude the Constitution’s limits in order to impose their own personal policy preferences on the parties and society generally.

To fix the life appointments problem, as Mark Levin recommends, the term of a Supreme Court justice be set at 12 years.

Problem 2:  There is no regular or natural occurrence to appointments.

There is a lot of political bias on the Supreme Court – so much so that you can usually predict the outcome of the vote for most decisions.

With the recent confirmation of Judge Brett Kavanaugh, there are 5 “conservative” justices and 4 liberals.  Many very important results end up being 5-4 decisions – but not always in favor of conservatives.  Once in a while, a conservative “swings” his or her vote and the decision will have a liberal bias – as in the cases of Justice Kennedy’s vote for Roe vs. Wade and Chief Justice Roberts’ vote upholding an Obamacare requirement that citizens to pay a penalty if they refuse to buy health insurance even when they didn’t want to – calling the penalty a “tax”.  The Supreme Court is widely seen as a vehicle for implementing the agenda of one of the two parties.

One of the soundest principles of jurisprudence is that judges should not make decisions on cases before them until they have considered all of the evidence.  In the case of the Supreme Court, even if a President nominates a candidate based on his or her judicial qualifications, you can be sure that senators will vote for or against that nominee based on how the nominee would vote on certain issues – not necessarily on the judicial qualifications of the nominee.  Too many justices have become activist judges.  They arrive at a conclusion and then figure out the reasoning to support their conclusion.

One tactic used by a party with a minority in the senate is to try to delay the confirmation of a Supreme Court nominee until after an upcoming election.  They hope that they can gain control of the Senate during that election and be in a position to refuse confirmation of a president’s nominee.  On the other side, a president who has confidence in a confirmation of the Senate at the time, will expedite nomination of a candidate.  Both sides of this were played out relative to the replacement for Justice Kennedy by Brett Kavanaugh and will be played out again this time.

To make the timing of Supreme Court appointments predicable and more evenly distributed the justices should be organized into three classes with one-third of justices being chosen every four years.  This is how it could be set up.

• During each year following the election or reelection of a president, e.g. 2021 and 2025, three new justices are to be nominated by the President and confirmed by the Senate.  

To begin with, the three longest tenured of the existing justices would resign, as they are being replaced by 3 new justices.  The terms of these new justices will end on the 12^th anniversary of their being sworn in.

With Ruth Bader Ginsberg’s passing, the three longest tenured justices currently are, Clarence Thomas (1991), Steven Breyer (1994) and John Roberts (2005).  So, following ratification of the constitutional amendment to establish term limits for the Supreme Court, these three would be forced to resign when new justices are nominated and confirmed to replace them with their resignation dates coinciding with the swearing-in dates of their replacements.    

The next three longest tenured justices currently are Samuel Alito (2006), Sonja Sotomayor (2009), Elena Kagan (2010).  So they would be forced to resign during the next presidential term when new justices to replace them have been nominated and confirmed.

The final two surviving justices of the current court are Neil Gorsuch (2017) and Bret Kavanaugh (2018).  Add to them the replacement for Justice Ginsberg, who will be confirmed either before or after the upcoming Presidential election.  

Since the required constitutional amendment is not likely to be ratified before 2021, these last three will have served less than 12 years on the court. (I say we will be able to solve that problem before then.)

• After three successive presidential terms, (12 years), each member of the nine member court will be serving a 12 year term;
• 3 having no more than 4 years remaining in their term,
• 3 having no more than 8 years remaining in their term, and
• 3 having no more than 12 years remaining in their term.

A result is that three (one-third) of the justices are nominated and approved every fourth year, bringing a natural rhythm to the approval process.  Each President would get to appoint three new justices during his or her term.  A two-term president would get to nominate 6 of the justices.  (The last three two-term presidents – Clinton, G.W. Bush and Obama – got to appoint just two members of the Court apiece.)

It is worth recalling the fact that the term of senators is organized into three classes with one-third of the senators chosen every two years.

• When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, upon approval of a majority of the Senate shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of the unexpired term may not be nominated to a full term.

Problem 3:  There is no way to override a majority opinion rendered by the Supreme Court. 

I am especially concerned about the practice of justices who make decisions on the basis of political ideology rather than logic and judgement, as I pointed out above.  Not only is the Supreme Court guilty of this but even more so the lower courts, particularly those circuit courts that have become known for political bias.

There are examples of very bad decisions of the court that remained in effect for very long periods.

• Dred Scott vs. Stanford in which the U.S. Supreme Court on March 6, 1857, ruled (7–2) that a slave (Dred Scott) who had resided in a free state and territory (where slavery was prohibited) was not thereby entitled to his freedom; that African Americans were not and could never be citizens of the United States; and that the federal government had no power to regulate slavery in the federal territoriesacquired after the creation of the United States.
• Plessy v. Ferguson, was a landmark decisionof the U.S. Supreme Court issued in 1896. It upheld the constitutionality of racial segregation laws for public facilities as long as the segregated facilities were equal in quality – a doctrine that came to be known as “separate but equal”.
•  Incarceration of Japanese during WWII.  This edict, authorized by President Franklin Roosevelt, was used to declare that all people of Japanese ancestry were excluded from the West Coast, except for those in government camps.  The majority of nearly 130,000 Japanese Americans living in the U.S. mainland were forcibly relocated from their West Coast homes during the spring of 1942.  In 1944, the S. Supreme Court upheld the constitutionality of the removal by ruling against Fred Korematsu’s appeal for violating an exclusion order.  The Court limited its decision to the validity of the exclusion orders, avoiding the issue of the incarceration of U.S. citizens without due process.

To override a majority opinion rendered by the Supreme Court I recommend a solution presented by Marc Levin in his book The Liberty Amendments.  He suggests two ways to do this.  One, upon three-fifths vote of both houses of congress (not subject to a Presidential veto) and/or another, upon three-fifths vote of the several state legislatures. 

This addresses my concern that with the majority of 5 justices having the final word on constitutional matters comes down to selecting those five justices.