Now in Legal Rebels:
Posted Oct 01, 2008 10:00 pm CDT
As the fantasy above suggests, there is no shortage of suggestions on how to change—and, proponents say, improve—the Supreme Court.
Call them timely, fanciful, extreme. Some may even qualify as Swiftian “modest proposals.” But their proponents are serious about this much: The court needs to change.
“The system is no longer working the way it has in American history,” says Northwestern University law professor Steven G. Calabresi, echoing the court’s critics from all ends of the political spectrum. “Given that the amount of power that justices wield is increasing, the issue is a substantial one. The fact is that justices are serving longer and vacancies occur less frequently. So the stakes are higher.”
Since the court’s founding, Congress has created—or often contemplated—ways to improve its efficiency and accountability. Congressional judiciary acts have added justices, required or proscribed circuit riding, and altered the makeup of appellate courts.
But the last few years have seen a revival of suggestions—new ideas or reworked old ones—sparked by changes in the longest-tenured court since the Andrew Jackson era.
Between the confirmation of Justice Stephen G. Breyer and the death of Chief Justice William H. Rehnquist, the same nine justices sat together for 11 years. Rehnquist died with more than 33 years on the job—19 as chief—the last few spent suffering grave illness.
Then came the sputtering fits and starts of the nomination game and a Senate confirmation process that has been likened to a soap opera or a Kabuki dance.
“It’s a lot of issues that are coalescing,” says Jonathan Turley of George Washington University Law School. “Bush v. Gore left many people with a negative vision. There’s also the fact that justices increasingly have sought celebrity status.”
“Every year we see demonstrative proof that the Supreme Court is a flawed institution on a structural level,” Turley says.
Turley and other critics have offered a variety of ways to achieve structural changes. They are wide-ranging and specific, aimed at perceived flaws in the current system. Here are some of them.
With access to high-tech medical care, a lighter caseload and a sizable staff of clerks, there’s little incentive for Supreme Court justices to leave. Ever.
Duke University law professor Paul D. Carrington says the justices “don’t have to do too much work; they have clerks who can write their opinions for them. It’s no sweat.” Lucas A. Powe, who teaches at the University of Texas School of Law, famously called life tenure “the framers’ greatest lasting mistake.”
When the founders drew up the Constitution, 18th century medical care was comparatively primitive, and life expectancy was decades shorter. Life tenure meant something altogether different.
According to a 2006 study by Calabresi and Northwestern colleague James Lindgren, the average tenure of a justice from 1789 to 1970 was 14.9 years; from 1970 to 2006 it nearly doubled to 26.1.
What’s more, from 1789 to 1940 the average age of a justice leaving office rose from 58.3 years to 72.2 years. Justices leaving office after 1970 averaged 78.7 years, among them four of the seven longest-serving justices: William O. Douglas, Hugo L. Black, William J. Brennan and Rehnquist.
Calabresi and Lindgren recommend 18-year terms, staggered so that a justice retires every two years—nonrenewable to discourage currying political favor. Once a justice leaves, he or she is guaranteed a salary for life and the automatic right to sit on the lower federal courts.
Term limits, they argue, would guarantee that every president gets to name two justices. It would also discourage strategic retirements, where justices hold off their departures until a politically favorable president is in office. Carrington says the changes can be authorized by Congress—no need for constitutional amendment. In fact, the Constitution doesn’t even mention life tenure; it merely requires that justices serve “during good behavior.”
“Congress ought to step up to the plate and take some responsibility for this issue,” Carrington says.
Term limits also tether the justices to societal changes, making the job more democratic, say proponents. Allowing justices to hold office “unchecked for periods of 30 to 40 years is essentially a relic of pre-democratic times,” say Calabresi and Lindgren.
But critics warn that term limits run counter to the idea of an independent judiciary, degrading the office to an administrative post on a regulatory commission, they say.
“Having regularly scheduled vacancies would show they are the spoils of the party that gets in the White House,” says Cambridge University professor David J. Garrow, who has written frequently about the court. “It draws the court more directly into the intense partisan divide.”
Others worry that the court would lose great minds that stay active well into old age, pointing to Oliver Wendell Holmes, who was 90 when he retired; John Marshall, 80; Louis Brandeis, 83; and John Paul Stevens, who turned 88 in April.
Carrington is unconvinced. “I’m approaching 80 myself, and I’m not convinced that there are a lot of geniuses at this age.”
The problem of decrepitude is no laughing matter, according to Carrington, co-editor of the 2006 book Reforming the Court. Indeed, the flip side of life tenure’s vision of judicial independence is its blindness to mental or physical deterioration.
The country has watched as advancing age debilitated many justices, among them Douglas, Thurgood Marshall and, most recently, Rehnquist, who endured a public bout with thyroid cancer.
Carrington proposes that the chief judges of the circuits of the U.S. Court of Appeals serve as a committee responsible for telling justices when it’s time to leave. And if a justice refuses? “They suggest to the House of Representatives that it’s time to impeach.”
Carrington’s suggestion is not the first. In 1950 the ABA House of Delegates backed a proposed constitutional amendment that would have forced retirement at age 75.
The delegates were spurred by a 1949 ABA Journal article by retired Justice Owen J. Roberts lamenting that “superannuated old gentlemen hung on there long after their usefulness had ceased.”
The effort dissipated in the mid-1950s, says Garrow, who wrote a comprehensive 2000 article on the subject. Ire raised by Brown v. Board of Education, he said, redirected the public debate.
Periodically, the visible ailments of justices have rekindled the issue. In 1975, concerned that Douglas was in poor health after a stroke, the eight other justices met and discussed ways to exclude him from decisive votes and written opinions. Douglas retired a short time later.
Likewise, a 1986 FBI report disclosed details of Rehnquist’s dependence on painkillers, developed in the early 1970s because of a back condition. The report quoted a doctor as saying Rehnquist had expressed “bizarre ideas and outrageous thoughts.”
And last year, Roberts, only 53, was hospitalized after suffering a seizure. News reports said that he had a previous unexplained episode in 1993.
“Part of what we’re seeing with Rehnquist and Roberts,” Garrow says, “is institutional.” As compared with the openness of the presidency, he says “there’s an accumulated tradition where there’s no comment.”
For his part, University of Minnesota law professor David R. Stras favors retaining life tenure but encouraging justices to leave earlier by offering lucrative “golden parachute” pensions.
Historically and practically, says Stras, retirement packages, senior status and the opportunity for other pursuits, such as chairing study groups, have proved more attractive in coaxing aging justices away from the bench.
Many reformers would like to revive the lost practice of circuit riding, an all-but-forgotten relic of the 18th and 19th centuries.
Only sporadically over the last 50 years have retired justices sat on federal appellate courts; Justice Sandra Day O’Connor is the latest. (See “A Cowgirl Rides the Circuits,” April.)
But proponents would require circuit riding of sitting justices. It exposes justices directly to the realities of the circuits, offering education and democratization to both.
Unlike the contemporary versions, the early circuit courts were courts of original jurisdiction. When the federal system was in its infancy, it was considered important to baptize the courts with the influence and authority of Supreme Court justices.
“Congress said it’s a good idea if you get out and meet the people every now and then,” says Carrington.
But the harsh realities of 18th and 19th century travel proved onerous. One of the first justices, James Iredell, died in 1799 at age 48—partly from the rigors of traveling the swamps, poor roads and questionable boarding houses of the Southern circuit.
Congress finally abolished the requirement in 1911, citing a bloated post-Civil War docket and the hardship of travel.
“If you compare it with the other branches, the Supreme Court is the only branch that is isolated from public opinion,” says Calabresi, who proposes that justices ride circuit four weeks a year.
Stras says that with circuit riding, the lower courts not only get an extra hand with crowded dockets; they also get clarification of sometimes abstruse rules. “They can learn a lot from a Supreme Court justice.”
Likewise, the justices are confronted with the effects of their decisions. “There are so many fragmented holdings where you’re not sure what the Supreme Court is saying,” Stras adds.
Some retired justices have taken up the practice, but some sitting justices have done it, too.
In 1992, while on the Supreme Court, Thomas sat by designation with the U.S. Court of Appeals for the District of Columbia Circuit in a case that was briefed and argued when he was an appellate judge there.
In 1984, Rehnquist, then an associate justice, presided over a two-day federal trial in Richmond, Va. He did so—unannounced—“to refresh myself,” according to a 1985 interview in the New York Times Magazine.
Curiously, in 1986 the Richmond, Va.-based 4th U.S. Circuit Court of Appeals later reversed Rehnquist’s decision to allow the case, Heislup v. Colonial Beach, to go forward.
There might be less need to worry about that if the Supreme Court had more justices, as GW’s Turley proposes—say 19, the size of the average circuit court.
Indeed, there is nothing magical about the current nine. Throughout history, Congress has added or reduced the number, from as few as six on the early court to as many as 10 during the Civil War, until settling on nine in 1869.
“Most Americans believe the number of justices is set by the Constitution,” Turley says. “They have no inkling that the number has actually fluctuated.”
The reason was valid, according to Turley. “Congress would increase the size of the court as the number of circuits increased. As the country grew, so would the Supreme Court.”
The nine-member court famously survived President Franklin D. Roosevelt’s effort to “pack” it with a new justice for each incumbent over the age of 70. “Roosevelt may have had the right idea for the wrong reason,” Turley says.
The idea, he says, is to “unpack” it by spreading the power to influence the outcome of cases among more justices. A bigger court, he says, would diminish the number of monumental rulings that hinge on a single vote. And even 10-9 votes would represent more diversity than recent 5-4 decisions, usually decided by Justice Kennedy.
“The framers would be horrified that a single jurist would determine” such consequential issues, he says.
Throughout history justices have held an array of jobs: senator (Black), governor (Earl Warren), academic (Felix Frankfurter), state judge (Brennan), attorney general (Robert H. Jackson), practitioner (Lewis F. Powell).
The current court is the first composed entirely of former appellate judges.
“It’s only recently that the appellate bench became the dominant if not the exclusive pool” for nominees, says Turley.
Rehnquist, never an appellate judge, told Congress in 2001 that “we have never had, and should not want, a judiciary composed only of those persons who are already in public service.”
The consequence, he wrote, is a specialized court too closely resembling the professional judges of European civil-law countries.
Before 1953, only a third of nominees were sitting judges and half of those were appellate judges, according to Northwestern law professor Lee Epstein. Since 1953, more than three-quarters have been sitting judges, and more than half of those judges came from the circuits.
The year 1953 is significant: The Warren court changed the game, experts say. Critics of its watershed decisions on school desegregation, criminal procedure, privacy and voting rights—and there still are many— blamed a lack of judicial experience for what they perceived to be a court bent on social engineering rather than judging.
“Prior judicial experience leads to better craftsmanship,” says Calabresi. “It’s a good predictor of behavior on the Supreme Court. People who have been in the business of being judges are more likely to interpret rather than make law.”
The trade-off, Turley says, is “winnowing out candidates who would bring an intellectual diversity to the court.”
Among them, politicians. Pols “know how to negotiate, deal with conflict and put together coalitions,” says Santa Clara University professor Terri L. Peretti, author of the 2007 Judicature magazine article “Where Have All the Politicians Gone?”
Circuit judges may be schooled in the appellate process, Peretti says, but their lack of political experience keeps them tone-deaf to the consequences of a decision like Kelo v. New London—which expanded the public uses of private property.
Peretti and others call the current court poorer for its lack of someone with experience akin to O’Connor’s as an Arizona state legislator. As author of the 2003 affirmative action case Grutter v. Bollinger, her political instincts accorded respect for the concerns of business and the military, Peretti says.
Of course, the president’s constitutional charge of nominating justices doesn’t include separately naming the chief justice.
According to University of Iowa law professor Todd Pettys, early Americans—following the British example—viewed the chief justice as a presidential adviser. George Washington selected John Jay on that assumption. It wasn’t until 1801 and the John Marshall era that the court—and its chief—grew into a separate eminence.
Pettys now thinks that traditional power should be given to the justices to pick their chief from among themselves, allowing a chief whose leadership style meshes with the rest of the court. Pettys, who wrote about the idea in a 2006 law review article, says he was thinking of Chief Justice Warren Burger, whose imperious style irritated many of his colleagues.
One of the disadvantages, says Pettys, is introducing another layer of intramural rivalry, further splitting the court into antagonistic camps.
Of course a side benefit, he adds, might be “spectacular theater—seeing who comes out with the gold stripes on their sleeves.”
Speaking of theater, that’s what critics of cameras in the courtroom say would be the result.
TV, Kennedy told the Senate Judiciary Committee last year, would provide “an insidious temptation for justices to get a sound bite on the evening news.”
Souter once put it more succinctly: “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”
Opponents, the justices among them, worry that oral arguments would be cheapened. Then again, they say, most are so tedious—who would watch?
Justices also cherish their anonymity. GW’s Turley, who often appears on TV, recalls an occasion when he was talking with Justice Stevens. Passersby acknowledged Turley but hadn’t the slightest idea who the gentleman with him might be.
Despite the stalwart resistance, the Judiciary Committee approved a bill last year to allow cameras, so long as the justices agree. The measure, sponsored by Sen. Arlen Specter, R-Pa., is awaiting action.
“The framers clearly would have wanted it,” says Turley. “It’s absurd that some people stand in line up to two days to see an important argument.”
Proponents also point out that many in Congress objected when C-SPAN sought to broadcast its sessions. Now it’s accepted.
C-SPAN, the D.C.-based public access cable TV station, unsuccessfully pursued the Supreme Court through the 1980s and 1990s. The network thought Bush v. Gore in 2000 would prompt a change of mind, says Bruce D. Collins, C-SPAN’s corporate vice president and general counsel.
The court consented only to the prompt release of audio, but it was a step. Now audios of arguments are released usually within hours, as are transcripts with the names of the justices before their statements—an innovation in itself.
During his confirmation hearings, Roberts hinted that televising arguments might be possible, but Collins of C-SPAN isn’t so optimistic. “We’d like to see it, but we don’t expect it anytime soon,” he says. “It’s not going to take a 5-4 decision, but a 9-0 decision.”
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