Washington Monthly: "How to Fix the Supreme Court

[ginnyinWI]

...without Blowing it Up."

https://washingtonmonthly.com/2018/10/26/how-to-fix-the-supreme-court-without-blowing-it-up/

I like this!

There is an alternative to escalating constitutional brinkmanship, though. To make the Supreme Court more accountable, and more reflective of the popular will, the key is to change institutional incentives so that the court has a more natural cycle of replacement and renewal, and partisans on both sides feel like they can have a chance to influence it through normal electoral methods rather than procedural gimmicks. One promising way to achieve that would be for Congress to implement a system of one new justice per term.

A one judge per term system would be very straightforward: each new president would be allowed to appoint exactly one justice immediately after being elected. They would no longer appoint judges when a sitting justice retires or dies. Thus, the size of the court could fluctuate somewhat over time. None of this would require a Constitutional Amendment; justices would still serve for life, as mandated in Article III.

This plan would mean that voters would have regular input into the partisan make up of the court every four years. Partisans would know they’d have a chance to influence the court every presidential election; it would be regular and predictable, not subject to the vicissitudes of when justices die or choose to retire. This would reduce the need for partisan games. Justices would have less incentive to time their retirements, since they could not choose their own replacements, as Kennedy did. And Congress would have much less reason to treat each Supreme Court appointment as a final, must-win battle.

No system is perfect; there would be downsides to one judge per term as well. There have been thirteen justices appointed over the last twelve presidential terms, so the rate of replacement shouldn’t change that much. But it’s likely that there would be periods where the court had an even number of justices, and the potential for split decisions. Split decisions uphold lower court rulings, without setting national precedents—so different federal circuits could end up following different interpretations of law.

[Rizen]

1. The SC system is bad but

I think the real problem lies in the American public's mental disconnect about elections and all the government positions a single one effects. The silver lining from the kavanaugh appointment is at least people are now paying attention to it, although the time to fight for the SC was in the 2016 elections. People need to grow up and vote democrat.

[Squinch]

2. That seems to me like a great idea. I imagine there are pitfalls I am not thinking of, but

the current system is not working. The republicans broke it.

[DetroitLegalBeagle]

3. The appointment of Justices is also covered in the Constitution

Not just their life term. You cannot get around either with simple legislation. The Senate could adopt this method in practice, but that would depend on 51 Senators wanting to follow this principle. And I highly doubt the Senate would willfully diminish it's own power, regardless of what party is in control.

[unblock]

7. article 2 specified nomination by potus and advice and consent of senate, but size is by federal law

So we could have a law that says the size of the Supreme Court goes up by one every four years and down by one whenever a justice dies or otherwise leaves their spot on the court.

But yes, the senate could still play tricks like mcturtle did and deny an appointment until the potus is of the same party.

[TeamPooka]

4. Or we could just unite together as Democrats for each nominee to POTUS and vote because

SCOTUS matters no matter who in their party is going to be President.
That's what the GOP does.
Let's do that and win elections instead.

[Polybius]

5. So Clinton, Bush II, and Obama all would have gotten two, just like they did anyway

Not much would have changed.

[unblock]

6. Interesting, but doesn't really address the problems

If there's a stolen on controversial election, we'd still have half the country feeling that we got a justice appointed by a president from the "wrong" party.
Instead of getting an unknown number of appointments from zero to two or three maybe, there's a guaranteed exactly one. Not sure that helps much if anything.

And what about the senate? A hyperpartisan like mcturtle could still refuse to confirm anyone appointed by a president from the other party, denying them their one nomination.

I suppose you could alter the plan to remove advice and consent, but that would require a constitutional amendment and I don't see the wisdom in a unilateral presidential appointment anyway.

[RainCaster]

8. We still have a SCOTUS that can be bought

It seems that it is perfectly acceptable to buy the votes of our justices. They can be flown anywhere on private jets, housed in luxury hunting lodges, (remember where Scalia died?) and fed the finest meals by anyone with enough money. That would not be allowed in the rest of the business world, but it is acceptable for the highest court in the land.

[Jim Lane]

9. The possibility of an even number of Justices isn't a big problem.

From the excerpt:

But it’s likely that there would be periods where the court had an even number of justices, and the potential for split decisions. Split decisions uphold lower court rulings, without setting national precedents—so different federal circuits could end up following different interpretations of law.

Under the current system, there are times when a case is heard by eight Justices. There can be an unfilled vacancy, as there was (for far too long) after Scalia's death.

When there are nine sitting Justices, one may recuse himself or herself for various reasons. For example, an important case about sex discrimination, United States v. Virginia, held that the state's operation of the all-male Virginia Military Institute violated the Equal Protection Clause. Only eight Justices participated because Clarence Thomas, whose son was at VMI, recused himself. The decision was 7-1 (you lost, Scalia), illustrating that a Court with an even number will often not split evenly.

[standingtall]

10. Band-aid solution that would never stick

Would require republicans to honor these agreements when they have the majorities which they will not .There is only one solution that doesn't involve a constitutional amendment that could work and that is expanding the court and adding states to add senators protecting the court expansion.