May 2009: Four Supremely Provocative Proposals

Washington Watch | May 2009
By Bruce Moyer

Not since the Judicial Reorganization Act of 1937, when President Franklin Roosevelt pursued his "court packing plan" has the U.S. Congress seriously considered the modernization of the membership and operation of the U.S. Supreme Court. Roosevelt’s legislative proposal may have gone down to defeat, but the issues it raised—leading in a direction beyond simply increasing the size of the Court—remain relevant today. Those questions deal not only with how many justices should sit on the Court, but also how to deal with the rare but difficult predicament of what to do with an aged and infirmed Supreme Court justice who declines to retire. American legal history reveals that such a scenario is not merely theoretical.

Now a group of 34 legal experts—including law professors, former state supreme court justices, and practitioners—have urged Congress and the U.S. attorney general to consider some of the same issues that Roosevelt and his legal team raised 70 years ago. The group seeking these reforms has proposed four major changes to the size, membership, and operation of the high court.

In February, the group of reformers, led by Paul Carrington, a professor of law at Duke University Law School, sent its set of proposals, which they dubbed the "Judiciary Act of 2009" to Vice President Joe Biden, Attorney General Eric Holder, and the leaders of the House and Senate Judiciary Committees. According to Carrington, the four proposals are the result of studies, commissions, and past reform efforts. Although the proponents of the proposals do not necessarily agree on all of them, they all agree that it is time for Congress to reconsider the laws governing the Supreme Court and its operations. Driving the proposals is the belief that Supreme Court justices are holding office for too long and have acquired too much discretion and political power.

The first proposal would establish regular appointments of new justices to the Supreme Court every two years in order to rotate the Court’s active membership. The reform would provide for the President to nominate a new justice during each new two-year term of Congress. If the appointment process resulted in more than the current nine justices serving on the Court, only the nine most junior justices would hear cases. The injection of new justices, according to the proposal, "will reflect the moral and political values of the contemporary citizens they govern." The proposal also would create a new system that includes senior justices, who, after serving 18 years on the Court, would be available to assist on cases. The presence of a senior justice system, the reformers believe, would mirror the approach employed in the lower federal courts and accommodate the Constitution’s requirement that justices serve for life.

The second proposal would establish a procedure for more strictly addressing the disability of justices, because, under current rules, a justice whose health is failing may continue to serve practically without limit. The proposal would require the Chief Justice to advise a justice who can no longer perform his or her duties to retire and report that fact to the Judicial Conference of the United States. (If the Chief Justice is the one in question, it falls to other justices to report him or her.) The Judicial Conference would then be required to advise the chief judges of the federal circuits of the report. If a majority of the circuit judges found substantial evidence of disability, they would be required to report that finding to the House Judiciary Committee. The proposal notes that the "Conference performs that duty with respect to all other Article III judges, and similar systems of accountability are commonplace in state judicial systems."

The third proposal would limit the term of a Chief Justice to seven years, with the possibility of automatic extension until the President has been authorized to appoint a new justice to the Court or until resolution of any pending impeachment proceeding over which the Chief Justice must preside. The extension is needed, the proposal notes, to assure that the selection of the new Chief Justice is not limited to the justices who are then sitting on the Court. It is also intended to introduce greater accountability to the President and the Senate. The final proposal would limit the exclusive discretion of the justice in choosing their tasks by altering the current certiorari process for the selection of cases to be decided by the Supreme Court, authorizing a group of senior justices and appellate judges—a "Certiorari Division" of the federal judiciary—to review certiorari petitions and send between 80 and 100 cases each year to the Supreme Court for a decision. (In the last term, the Supreme Court issued 67 merit opinions— the lowest number since the 1950s.) This, according to Carrington, would "ensure that justices carry a fair workload, diminish the influence of their politics in choosing their own agenda and assure lower courts of better guidance on many diverse legal questions that justices now elect not to consider."

Bruce Moyer is government relations counsel for the FBA.
© 2009 Bruce Moyer. All rights reserved.

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