I see a ton of journalists now writing about how they would change the SCOTUS; I had actually been warning liberals for many years that the Supreme Court was both too powerful and too political. A set of reforms I’ve thought of, I think, could significantly alter both of those problems.
My scheme would structure the SCOTUS to be made up of 9 members (set by the constitution at 9, so that court packing is permanently off the table), with fixed 18 year terms. The ideal way to get to these 18 year terms would be to slowly retire current justices and stagger the terms.
I also believe the selection process should be changed. The way I would structure the selection process is pretty simple:
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A Supreme Court Nomination Council would be created, this body would contain five members: The President who would serve as its chairman, and two members from the House of Representatives and two members from the U.S. Senate. The House and Senate shall select their two members the same way–an election is held made up of the membership of each chamber, the person with the most votes is on the council, and also the person with the second most votes. Without enshrining political parties, this mechanism means it is all but certain each chamber will send one Republican and one Democrat, the only real way one party could send two would be if there was weird fracturing going on and people were crossing party lines for this selection, which seems unlikely.
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The President has the right of selection of nominees, his nominee must then receive assent of at least three of the other four members of the council. What this then guarantees is that both the council members from his own party, and at minimum one of the council members from the opposition have approved his nominee–also importantly all four of these council members are elected from a majority of their respective parties in their respective chambers of the Congress, which limits the likelihood they end up being crazed crackpots or imbeciles.
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Having approved his nomination, the council then forwards the nominee to the U.S. Senate, who must still approve the nominee the same way they would any other Supreme Court nominee.
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New requirements would be enacted for Supreme Court nominees. To be nominated they must have served at least five years on an appellate court, specifically a U.S. Circuit Court or an appellate court at the State level. They would also be required to have reached at minimum an age of 45 years.
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The council would convene and be empowered to present a nomination to the full senate either upon death/resignation/impeachment of a current justice, or a date as early as six months prior to the end of a current justice’s term. In such cases the nominee can be confirmed and pre-sworn in to assume office on the future date.
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The staggered terms of the justices would be constructed such that at certain times, justices would begin their terms the same date a new Presidential term begins. In these cases (by design) the justices being sworn in on the same date as (potentially) a new President would indeed have been appointed by the outgoing President.
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In cases of vacancies occurring mid-term, the same process is used to fill replacements, however the person nominated/confirmed would only be getting appointed to fill the remaining term of the justice they were replacing (to keep the term schedule intact.) In cases where someone is appointed to fill out a remaining term greater than six years, they will be disallowed an opportunity to be re-appointed at the end of that term. If they serve six years or less of a partial term, they could be re-appointed to a full 18 year term (thus there’s an edge case theoretical maximum of 24 years on the bench.) Obviously in any other circumstances no one can be re-nominated who has already served a full term.
There would be 5 “classes” of justices, four of those classes would have two members and one would only have one.
The First Class would begin on 1/20/2021, upon which time Justice Thomas would be required to retire and whomever was appointed to replace him will assume office at that time. This would give Justice Thomas a career that stretched over 30 full years on the court. [This replacement will have been approved/nominated by the previous President, as 1/20/2021 is an inauguration day for a new Presidential term.)
The Second Class would comprise two justices, and would begin on 1/20/2025, at which time Justices Breyer and Ginsburg would be required to retire. Assuming either is alive/still on the bench, they would have been allowed to serve out significantly long Supreme Court careers.
The Third Class would comprise two justices, and would begin on 1/20/2029 and Justices Alito and Roberts would be required to retire. Both men would have served almost 25 years on the court.
The Fourth Class would comprise two justices, and would begin on 1/20/2033, and Justices Kagan and Sotomayor would be required to retire. Both women would have served over 20 years on the court.
The Fifth Class would comprise two justices, and would begin on 1/20/2037 and Justice Gorsuch and Justice Kennedy’s replacement (yet to be named) would be required to retire at this time. Both would have served 18-19ish years, the last set of Justices to be permitted to serve such a term.
I believe these changes would improve the court in the following ways:
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Fixed terms mitigate “ruling from the grave”, persons nominated get to serve 18 years. Presidents who have been dead for a decade or more will no longer be influencing our Republic through their SCOTUS justices (Anthony Kennedy was appointed by Reagan, a man who left office in 1989–almost 30 full years ago and Reagan himself has been in the grave almost 15 full years.)
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The nominating council requires much more buy in for a SCOTUS justice. This will limit the appointment of extremists and will likely see less politicization of the court over time as every justice will be a compromise candidate and thus much less predictable on the bench on controversial partisan issues which are deeply divisive. Persons associated with political groups that build lists of Supreme Court justices would be toxic in this process and unappointable, individuals like Merrick Garland (who actually had a lot to offer to Republicans) would be much more the norm. Scalias and Ginsburg’s would be less common–for the better, the court should be more like 9 referees no one really cares about. Today SCOTUS justices are rock stars are highly politically active.
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The staggered term mitigates Presidents winning “Justice Lotteries” to a greater degree. Under this system, assuming no one ever dies in office, the most justices that would ever be appointed in one term is 3, and the least is 1. The typical Presidential term would see the appointment of 2 new justices. The first President to have 3 appointments in a term come up by schedule would be in the 2050s, and the situation would reoccur about as frequently. Obviously sometimes a justice will die in office or retire, that’s reality and in such cases a President may get luckier than his peers, but since almost every one term President will get a minimum of two, and because of how it will be staggered the winning of a “Justice Lottery” is much less likely than in the current system.
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Supreme Court justices are important, while many of the aged jurists of recent years have had amazing faculties late into life, the reality is persons of extreme age should not hold these jobs. 18 year fixed terms limits to a degree how old these individuals will be. Most Presidents will want their justice to serve their full 18 years, so they will still have an incentive to go as young as possible. The new requirements that the person must have previously served at least 5 years on an appellate court and the minimum age standard would still see an average age probably in the low 50s upon appointment, and an expected retirement in the late 60s/early 70s.
Of course no reforms to the way we select justices or how the court operates will ever happen–we don’t make structural reforms in the United States like other countries do, we have a very static-state government and we just develop informal rules that slowly change over time until they’re broken and the cycle repeats itself.