Basically, a financial crisis scenario similar to the Great Depression is where I was going with that. Granted, whether it gets to 75% or not is anyone’s guess. But let’s assume it’s only half that bad. Hell, even if it’s only 35-40% of American households…that would put strain on public confidence in government. Political obstructionism, be it actual gridlock in the chambers of congress or perceived gridlock as a result of judicial rulings, would be problematic and potentially lead to unrest.
Okay, thanks for the clarification.
I find it virtually inconceivable that there could be a financial crisis of that order that people would blame on the SCOTUS. I hope you’re not losing any sleep over that possibility.
I wasn’t trying to suggest they would blame the SCOTUS for said financial crisis, but they would lose their patience with the courts if justices blocked a 2nd New Deal at a time when people are desperate. I don’t have the prescience to know what kind of laws would be proposed, let alone which ones would turn into legal controversies that the court might declare unconstitutional. What our own history tells us, having been through a major financial crisis in the 1930s, is that people put their ability to find food, clothing, and shelter over what 9 justices consider to be constitutional or not.
As a Centrist, I can fairly well claim to have no hypcritical stance on this issue.
Simply put, the Constitution (i.e., an amendment) should limit the number of court justices, the number of senators necessary to affirm the appointment should be defined, and there should be a reasonable schedule in place to ensure that a decision is made in a reasonable period of time without giving a highly partisan government the ability to force their candidate through.
- The number of justices should be limited to 9.
- the number of Senators necessary to approve the appointment should be no less than a 2/3rds supermajority.
- The President must nominate a candidate within 2 weeks of the vacancy opening up. The Senate must vote for the candidate within 2 weeks of the nomination. Failure to do so on either part will move the appointment to the Judiciary branch. In this event, each existing Federal Court Justice will nominate a candidate within two weeks and the preferred candidate will be decided by Borda Count within two weeks of the final nomination. Should a Justice fail to nominate a candidate within two weeks, then voting will proceed with fewer candidates. Should the Supreme Court fail to vote within the deadline, then each State government will have two weeks to make an official nomination. A random name will be selected from this list and will fill the vacancy.
Frankly, I think the deeper concern is whether a Constitution written in 1787 and modified only 17 times since 1791 is able to functionally represent democracy as the rest of the world has come to understand it, a Civil War, 2 World Wars, and 227 years later. Maybe that’s the giant neon pink elephant in the room.
And this is IMO precisely the problem the OP’s proposal is the solution for; the current system gives too much power to Presidents who happen to be in office when a rash of retirements or deaths happen, even if they and their party represent a minority of voters.
Imagine that, during that 25 years, the population at large moves significantly to the Left. We could have a Court shooting down popular legislation for decades, with no meaningful recourse available, thus eroding popular belief in and support for the Constitutional system.
As others have said, this wouldn’t solve the underlying problem that one party has abandoned the basic norms that a functioning democracy needs to survive. But even if both parties were led by reasonable people, the problem I identified above would still exist, and ought to be fixed.
Interestingly, the idea of term limits for SCOTUS judges was one of Jeb Bush’s proposals in his 2016 Presidential run.
I also think that the OP’s thread title is very accurate; I think the alternative to some sort of term limit plan is that, now that the gloves have come off and naked partisanship is the norm, whenever one party controls both the Presidency and Congress, they will simply pass a law expanding the size of the Court as necessary, allowing them to seat enough new Justices to give their party a majority. Sooner or later the Court will have to be holding its sessions in basketball arenas, but so be it. As others have said, neither party’s rank and file seem at all inclined to punish their leaders for deviating from established custom WRT SCOTUS nominations, so I don’t see how this would be any different. Yes, I know it was unpopular when it was tried in 1938, but a lot has changed since then. I think term limits are a better solution.
The court isn’t the problem. The problem is that legislators at the national, and state, levels can’t seem to create and pass laws that pass constitutional muster. Imagine a time when legislation will be passed by our 51 legislative bodies that doesn’t need to be challenged in the courts.
What is missing from it? And if what you determine is missing is unable to get enough votes for a Constitutional Amendment, then there is not an agreement that such a thing is missing.
However, I do agree with your general principle that the Constitution needs updating every once in a while. Jefferson believed that there would be a convention once per generation. I simply object to doing so on the whim of 5 of 9 Justices instead of a method where the people make that choice.
There was a proposal somewhere on the internet to increase the size of the Court to 27 members and that they would then hear more cases in three judge panels, and the summary of that argument was that we wouldn’t consider having a nine member Congress, why then a nine member Court?
This argument, which is part of the spirit of the OP’s proposition, fundamentally misstates the role of the Supreme Court. The Court shouldn’t take an issue like abortion, which can be debated all year long, and has been debated on these boards, with excellent opinions on both sides of the issue and then decide in a 5-4 vote whether it credits the pro or anti side.
The Court is to determine whether the Constitution requires states to allow abortion on demand. When it does so in any principled fashion it is pretty silly to say that is what James Madison or Thaddeus Stevens wanted.
If the Court would simply constrain itself to determining what the law is instead of what it would like it to be, we could have nine of the best legal minds in the country deciding these things. Even under the OP’s “fix” we are still going to have this politicization.
What’s next? Instead of the prescribed process, have the people vote? Instead of nine, let’s make it 90? After a while, we won’t need a Congress, we’ll just have the Supreme Court.
Missed the edit window…
And the left shouldn’t be so automatically supportive of an activist Court. Simply because in our lifetimes and recent memory, the Court has shifted left on most major issues, it doesn’t mean it will always be that way.
Imagine if we get an activist *conservative *court. Get five Rick Santorums on there and see how society will be. Imagine a ruling not only overturning Roe, but one that holds that the 14th amendment applies to the unborn and it is unconstitutional for any state to permit abortions for any reason. Imagine a ruling not only overturning Obergefell, but holding that marriage is an institution derived from common and natural law which prohibits a state from adopting legal same sex marriage. Further imagine the same thought about the natural right of self defense and striking down every single state and federal gun restriction.