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Draft SC-20-08.2
Supreme Court Amendment
Section 1: The Supreme Court shall consist of one Chief Justice and fourteen Associate Justices, each serving a minimum ten-year term.
Section 2: Supreme Court Justice’s terms begin on June 30th. The term ends on June 29th, with a random lottery held by the Court on that date. All Supreme Court Justices who have served for at least nine full years as of June 29th are subject to this yearly random lottery. The term of the Justice selected by the lottery will end one year later. The retiring Justice may continue to serve on the Federal bench or be nominated to a new term at the Supreme Court.
Section 3: A joint nomination committee consisting of two representatives of the President, two representatives of the Supreme Court, one each for the Senate and House and one by vote of the Attorney Generals of the various States, will recommend candidates for every vacancy on the Federal bench, including the Chief Justice. Such candidates shall meet the highest legal and ethical standards. Five out of seven committee members must agree to convey a nomination to Congress for consent. A majority vote of each house of Congress is required for appointment of the nominee.
Section 4: A supermajority of nine justices is required for a legal decision to set binding precedent, in all other cases, the decision of the court is limited to the dispute at-hand.
Section 5: This amendment will take effect two years after ratification, at which point the size of the Supreme Court will be expanded to ten seats. Six years after the amendment is passed the court will be expanded to eleven seats.
The Judicial Branch has always been something of an anomaly. Compared to the Executive and Legislative Branch, the Federal court system engendered modest debate at the Constitutional Convention. Consequently, Article III offers relatively little guidance to future generations. Instead, the Founding Fathers left Congress to flesh out the details through a series of judiciary acts. Contributing to this imbalance, the Judicial branch is not in charge of its own fate. The other two branches control not only who sits on the bench, but under Article III Section 2, the court’s jurisdiction can be circumscribed by fiat.
Hardly the co-equal branch of our popular civic mythology.
Over time, the role of the Supreme Court has greatly expanded. Most Americans (and even most politicians) have tacitly agreed the Court is our national “referee”, settling arguments between the other two branches and de facto constitutionalizing their decisions in lieu of the ponderous Article V amendment process.
Surprisingly, neither role is actually “in” the Constitution.
History is driven by personalities as much as by principle. The Founding Fathers were enthralled by George Washington, the presumptive first President, and did not anticipate the rise of political parties. So, they granted the chief executive the exclusive right to nominate federal judges, with the unelected (state legislature appointed) Senate in the role of “advise and consent”. Unfortunately, when the President and Senate are members of the same party, they can ram extreme candidates through at will.
Today, the flaws in Article III are glaringly apparent. Jurisdictional and structural hypocrisies abound. Federal bench nominations are now a partisan land grab, with outside special interests controlling the slates. Even narrow Supreme Court decisions are binding on the country, with nearly the same legitimacy as a popularly ratified amendment.
Our draft Supreme Court amendment address some, but not all of these pressing judicial reforms. It presumes America remains comfortable with a Supreme Court deciding its constitutional matters, rather than delegating this responsibility to a legislative review panel, or to a state veto process. Many other reforms, such as Justice Department independence, are vital, but too “wonky” to garner widespread public enthusiasm, let alone approval. Additional future amendments or statues will be required.
A surprisingly large fraction of the Constitution and its amendments are dedicated to the mechanics of elections or succession planning. Our Supreme Court amendment may appear highly detailed, but this level of specificity is the minimum required to empower an independent Judiciary.
Section 1: If the court hopes to excel as an impartial referee, a larger bench, immune from packing and appointed across different swings of the political pendulum, would encourage more considered and independent rulings.
Section 2: Lifetime appointments ensure independence at the cost of accountability. To lock in a temporary political advantage, lifetime appointments encourage the nomination of ideologically “pure” candidates whose views are unlikely to evolve after the advantage passes. Favoring polarization over the principled application and interpretation of the law.
Term limits more closely align the Justices to mirror the views and demographics of society. But with too short a term, the collegiality of the Court suffers. The average tenure on the court is 16 years. Section 2 proposes 10 years for the minimum term limit, extended by the lottery process to an average term of 15 years. By way of comparison, Presidents serve at most 8 years, and the average tenure of a senator or representative is under 10- neither with a guarantee of re-election. In many organizations, senior leadership roles are a rotation, not a sinecure.
By the time this amendment passes, it is likely that 6 of 9 current justices will have served for more than 10 years.
This amendment allows for a second term on the Supreme Court- if they can pass the renomination hurdles. While a justice might warp their opinions to gain notoriety in anticipation of a second career, we expect retired Justices will lead specialized courts to handle financial, patent litigation issues, etc. Some may choose public service, or even run for elected office- unless prohibited by statute. They are now valued members of society while still in the prime of their career.
Why a lottery instead of a prescriptive rigid rotation? Simplicity, and reduced political meddling:
- Transitioning the current nine justices from a lifetime to a staggered term limit system, fairly and without accusations of political favoritism, would be challenging.
- When unexpected vacancies occur, fixed term limits require new appointments to fill partial terms. Not only is this complex, but many qualified candidates would choose not to serve partial terms.
- The lottery system makes it harder to anticipate the order of retirement, and thus to strategically time appeals or appointments.
- If for some reason the nomination committee’s work was “captured” for a couple of years, leading to ideological appointments, any tilt in one direction would be blunted by the lottery in later years.
- It removes an objection to ratifying this amendment by those who favor the current Court profile. Since that profile remains in place initially, and with the nomination committee, is less likely to swing abruptly the other direction, there is no short-term gain to opposing the amendment.
A retiring justice receives one year’s notice before their term ends. This allows the nomination committee of Section 3 sufficient time to select a replacement. While it is possible some cases will be rushed or delayed to take advantage of the ideological balance of the Court, with fifteen judges the effect is likely small.
An alternative nomination procedure would randomly select Justices from a pre-screened pool of candidates currently sitting on the Federal bench. Random sortition mutes political meddling. And, there would be no delay selecting a candidate when a vacancy appears. However, a “Federal bench pool” limits external appointments (e.g. Justice Warren was previously Governor of California) and the pool will skew old, male and white for decades. A nomination committee is still required to fill and vet the pool, so the incremental advantages are small.
Section 3: The Constitutional Convention debated the value and efficacy of popular elections in a representative democracy. In some proposals even the president would have been appointed, along with senators, by their respective state legislatures1. But in the end, only federal justices are appointed for life.
In parallel to the other two branches, one might argue that judges should now be chosen by the people. Accepting the risk of the public elevating Judge Judy, or Kanye West, to the bench. After all, we accept that fools may serve in Congress or in the Executive Branch. But Judges are more often viewed as part of a specialized meritocracy. Common practice in many states and around the world is for an independent committee to vet and propose candidates. The US is an anomaly – one branch nominates, and the other approves. A holdover from an earlier optimistic era without rigid party politics or the complexities of a ten trillion-dollar economy.
If the courts are to be independent and legitimate, they cannot be the sole prerogative of one branch2. 3 Why should the courts be the creature of the President? Section 3 divides the nomination responsibility among all three branches and the states, while leaving it to Congress (as closest to the people) to consent.
The nominating committee must reach a supermajority to pass their candidate onto Congress for appointment, but Congress only requires a simple majority to confirm. Debating a short-list of candidates is best left to a small committee, compared to the distractions of Congressional politicking.
No single branch can block a nomination. Even if both houses of Congress and the President are in the same party, they would also have to control a majority of state houses to ram candidates through the Nomination committee (which, in some respect, would then be fulfilling the clear will of the people which elected them).
It is possible the committee may from time to time recommend pairs of candidates for the federal bench- in this manner each party gets their “fair share” by pre-agreement. Unlike a common practice in the rest of the world, we do not limit committee membership to non-serving members of government. We acknowledge there is always a political subtext to their appointment.
Section 4: Supreme Court decisions have the effect of constitutionalizing law, without going through the Article V process. While this is an efficient route, it is fundamentally un-democratic as judges are unelected. In some countries 4 specialized courts or committees are assigned the responsibility of inspecting laws for constitutional fidelity. In the US, fidelity emerges from Supreme Court decisions. This section memorializes an informal view of SCOTUS opinions- i.e., the closer to a majority, the closer they are to setting binding federal and state precedent. Narrow majorities do not have the power of precedent.
Section 5: Provides for a two-year waiting period before implementation. To avoid one congress and one president from filling all six new seats, the court expansion is spread out over twelve years. Note the 9/15 threshold to constitutionalize a ruling is fixed over this period. Making it harder to establish, or conversely, distort precedent during the transition.
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- Under the Virginia Plan, approximately 3/4s of the Federal Government would have been appointed
- In Germany half the judges are elected by Parliament, and half by the states.
- The GAO Comptroller General is nominated by a a joint committee.
- Note Madison even proposed as a Council of Revision at the Convention