Expand the court to 27 justices. Give the republicans 9 nominations and give the democrats 9 nominations. With 27 justices no single nomination hereafter will be such a big deal. It would also allow for more diversity of thought and background.
I don’t think it is a good idea to enshrine the two current major political parties into constitutional entities.
In practice, sure, artificially balancing the court would protect (a little) against excesses of partisanship. But remember that Bush nominated Souter: no guarantee that a “Republican” justice would actually vote in the Republican interest. Some poor soul might actually develop a conscience!
I cannot think this is a good idea. The court would change from a deliberative body to a mini-legislature. Not to mention that it would become explicitly a political body. No, not a good idea.
Every current member of the supreme court was nominated by either a democrat or republican. They were all confirmed by senators that caucus with democrats and republicans. After the initial 27 are chosen, every opening would be filled the same way as it is today. if a third party rises, they would be nominating and confirming the justice. But, in my opinion, we need to reduce the overwhelming importance of individual scotus nominations.
It’s easy to say “expand the court,” but how do you plan to make it happen? It would need to be passed by both houses of Congress. And since doing so would give the sitting President an opportunity to have a tremendous effect on the nation, it would only be passed if both houses were run by the same party as the POTUS, if then. Even FDR, with all his power (and time in office), couldn’t pull it off.
Why is it necessary to expand the court to implement your plan? Just give three seats to the Republicans and three to the Democrats. But as said, the Constitution does not mention political parties at all and it’s probably best to keep it that way.
I don’t like the idea of getting onto what could be a mighty slippery slope. Once we decide that “it doesn’t have to be 9,” then it’s a quick path to 11, 13, 17, 21…I would not like to see things go down the bigger and bigger route.
Shades of FDR
A sort-of different way to achieve something akin to the OP’s goal of reducing court-packing would be to enact legislation that amounts to “All Justices ascending to the SCOTUS after Jan 1 2030 shall retire no later than their 80th birthday. No Justice may ascend to the SCOTUS after their 70th birthday.”
Both the effective date and the age curtoffs are just my WAGs; different numbers might be smarter / better.
My intent is to make the effective date so far in the future that no current legislator or administration has a strong reason to believe the date is advantageous or disadvantageous to their side. So it’s a crapshoot who gets the first new picks.
The retirement age is set young enough they’re still vigorous (enough), but old enough that the incumbents fill their wise elder / legal scholar role. And if appointed at age 65 it’s still a crapshoot which party will appoint their replacement 15 years hence. If appointed even younger it’s even more of a crapshoot.
The max starting age is set to ensure each justice has a long enough run that nobody can predict who’ll be in power when they reach mandatory retirement age.
And just as now, death, infirmity, or personal decision could remove any Justice earlier than the magic retirement date.
The meta-problem with proposals like this, and proposals to alter the EC or other core aspects of our government, is that with society so broken, and political parties so broken, even though our current governing arrangements are failing us too, the odds are far higher given present circumstances (even if Trump had never lived) that we’d make matters worse, not better.
“Ascend to the SCOTUS”? By legally enshrining the view that the court is some sort of royal office, I think your cure is worse than the disease.
Assuming that Democrats win the Presidency and both houses, what I’d like to see would be expanding the court just enough to compensate for Trump’s nominees, and then a Constitutional amendment to put in place actual binding rules, instead of the breakable traditions we’ve had for the past 231 years.
Yes, expand the court (if the Democrats get the WH and both houses of congress). Not sure about 27 - probably just 13 or 15 for now. All the smaller courts too. It’s already just another partisan political branch, so this wouldn’t change anything. Inevitably the GOP would expand it again when they had the chance, and so on, but that couldn’t be worse than the present circumstances. And it might motivate a desire for real change in the form of term limits, which is about the only thing that could possibly restore the court to a fair, non partisan, and trusted arbiter of law.
SCOTUS is already an implicitly political body. The Justices see laws and precedent through the filters of their worldviews. They see what they want to see and produce ‘opinions’ accordingly.
Pick whatever word you want. "Appointed to SCOTUS " works equally well. I was just trying to be brief so the clear concept wasn’t lost in my bad habit of writing walls of words.
There’s no intent to change anything about the powers of the Justices as individuals or the SCOTUS as an entity.
Actually, by setting a retirement age I’m eliminating a “royal”-like feature, not imposing one. Who but royals, Popes, and dictators serve for life? Certainly very, very few in a supposed democratic meritocracy.
Among royals, Popes, and dictators, all sorts of skullduggery occurs when the for-life incumbent becomes too feeble or addled to do the job but lives on nonetheless. That’s not a good thing for a critically important feature of our government.
The problem with setting a mandatory retirement age for SC justices is that the Constitution says that, "judges, both of the supreme and inferior courts, shall hold their offices during good behavior. . . ". So you would need a constitutional amendment to require that they relinquish office for any reason other than “bad behavior”.
Just like elections, it’s really not the system that’s broken; it’s the political manipulations designed to deliberately break the system. You don’t need to wear a helmet, if you just remove the guy trying to hit you in the head with a hammer.
Article on 538 detailing how the Senate’s makeup makes it inherently difficult for Democrats to get any sort of advantage in SCOTUS. If we do win the WH and Senate, we need to have a detailed plan to mitigate this disadvantage (since changing the Constitution isn’t in the cards). Play within the rules to gain any sort of possible advantage that we can – just like McConnell does. So, kill the filibuster so we can institute the following:
-Statehood for PR and DC. Maybe even break up California, carefully, into 3 strong Democratic states. Maybe even statehood for the US Virgin Islands, American Samoa, and Guam.
-Extremely robust voting rights, including automatic voter registration. Maybe even automatic mail-in ballots.
-Expand the courts
-Expand the size of the House of Representatives. Make it law that the “model” district size will stay at the population of the smallest state. Alternately, make the “model” district size 30,000, as the founders advocated. This would drastically increase the size of the House, but that would result in much closer connection between reps and their constituents.
This is all pretty unlikely – the Democrats are generally reluctant to be ruthless in this way. I hope that changes.
FDR couldn’t pull of PACKING the court.
If he gave the other party an equal number of picks, he could easily have pulled it off.
It would give the sitting president less power than their predecessor. Each of his judicial appointments would mean less than it had in the past.
Why would the Republicans object to diluting the power of appointment during a Democratic administration? They are getting 9 nominations just like the democrats.
Because 15 might not be a small enough number to make any individual appointment relatively meaningless.
I’m suggesting 27. I feel like some people are not understanding my proposal.
I don’t know. If they lose the court for a generation, I suspect they will start to get their hands dirty.
It’s funny how an institution is ‘legitimate’ only when it’s full of Democrats.
Where is fifteen coming from? Your plan seemed to be to allocate one-third of the seats to the Republicans, one-third to the Democratic Party and leave the remaining third up for grabs. It seemed to me that the nine seats are already even divisible.