I’ve been wondering what the mechanics and procedures to changing the US Supreme Court. I understand that the number of judges can be changed by US Statute, passed by both houses of Congress and signed by the President, or if the President vetoes it, by passing it though Congress by 2/3rds of each house. The length of a justice’s term, which currently is for the justice’s lifetime or until he/she retires, can only be changed by a Constitutional Amendment. Does that include all the current Justices, or must that apply only to the position of newly created judgeships. Can a constitutional amendment change the term of an existing term, so Chief Roberts’ seat expires a week from next Tuesday?
If the amendment is clear regarding applying retroactively, I don’t see why it couldn’t. The constitution can’t be ruled unconstitutional. It might be harder to get passed with that langue, as people might be more open to reform that happens in the future.
I have no clue about the mechanics, but I’d like to see a situation where there is a condition that any judge to be considered for the supreme court must have no political affiliation whatsoever. In fact, this should be a requirement for any judicial position. I’ll give them a pass up until the time they enter law school.
If someone is in law school, they’ll need to make a decision - do they want to be a political appointee or run for office, or simply be a lawyer with a practice?
Then they can join and support a party.
Do they want to one day become a judge at any level? Then they must eschew political parties and be SEEN to be an impartial juror.
There’s a theory being kicked around that, if tried and upheld, would allow SCOTUS justices to have 18 year terms without needing an amendment. The idea is that a judge, once confirmed for life, is not necessarily guaranteed nor entitled to stay in the same court the whole time. Instead, he could be moved from one court to another. In particular, a SCOTUS justice could be moved to a lower federal court.
Thus, if Congress passes and the President signs such a law, they could have SCOTUS justices serve 18 years there and then be moved to a lower court.
Myself, I doubt that such a theory would hold up. Would the current SCOTUS justices have to decide the question?
Pretty much. Such a law would run into challenges about the interpretation of Article 3, Section 1. And the Supreme Court is the body which makes such interpretations.
To be honest, I would rule that such a law is unconstitutional if I was a Supreme Court Justice.
But seeing as the law personally effects them, wouldn’t every justice need to recuse themself?
From a practical standpoint, we can’t have a constitutional question in which every Justice would be required to recuse themselves. How would we get a ruling?
From a legal standpoint, the Justices do not answer to any outside authority for issues of recusal. Supreme Court Justices are only recused when they choose to recuse themselves. The most famous example of a Justice choosing not to recuse himself was Marbury v Madison where John Marshall wrote the decision despite the fact that he was practically a defendant in the case.
Ex necessitate principle comes into play. There has to be someone to decide a case. If everyone has the same potential bias, then someone has to do it.
And yet, I’ve been seeing mentions (sorry, no cite at my fingertips) that, due to some not-too-ancient Supreme Court opinion on recusal, ACB must recuse herself if any election dispute comes before the court. (Does anyone here know what history I’m talking about here?)
Okay, I googled. Here’s a recent WaPo article on it:
I don’t see any way that’s enforceable.
Sure, it would be possible theoretically to enforce that they couldn’t be enrolled or have enrolled in a political party, or run for a political office, or taken a job specifically with a partisan organization. But there are plenty of people who have vehement political opinions who haven’t done any of those things.
From that article:
“At the most basic level,” wrote Chief Justice John G. Roberts Jr., “it is unclear whether the [majority’s] new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.”
So, even if she considers herself bound by the precedent of previous decisions (which she may not), it seems to me that all she’d need to do would be to quote Roberts, and say that she got no financial support from Trump. Which, at least in any direct sense, she probably didn’t.
I hope she recuses herself. But then, I also hope that, now safely on the Court, she votes in entirely unexpected ways. My expectations are not in line with my hopes.
Indeed, this is the whole theory behind “senior status” whereby currently federal judges are able to take a semi-retirement where they continue to receive their full salary but take on a reduced caseload and can be moved around wherever they are needed within a circuit. The recommendations I’ve seen would apply this same idea to Supreme Court justices – that after 18 years they would continue to receive full pay and could be assigned to fill in on circuit courts or even temporarily cover a vacancy on the Supreme Court.
Of course, one big difference is that taking senior status is voluntary on the judge whereas this proposal would be mandatory on the justice after 18 years. But I don’t think it’s too much of a stretch. Senior status is a well-entrenched principle.
That’s not at all reasonable. Many states have explicitly elected judges at all levels, and they’re almost always affiliated with a party. You’d be eliminating anyone who was actually an experienced judge earlier in their history in any of those states. And historically, you’d have disqualified several respected Justices who served in political positions prior to SCOTUS- Hugo Black, Harlan Stone, Sandra Day O’Connor, Thurgood Marshall, Elena Kagan, Abe Fortas, and many others who were political appointees or elected office holders.
Problem is, some cases are inherently political. There is no way to be seen as an impartial juror on an LGBT, feminism, social justice or abortion case, for instance. Either you’ll rule one way and be accused of being a partisan liberal, or rule the other way and be accused of being a partisan conservative.
There just is no in-between when it comes to such topics; they don’t allow for fence-straddling.
I know. That’s why “I’d like to see”, rather than “this should be done”
In Canada, I have no idea whatsoever about the political leanings of ANY judge at ANY level, and I like our system. Yours sucks.
But our system doesn’t have anything like what you’re proposing.
Our Federal judiciary is appointed, AFAIK. But all that means is that when there’s a change of President, they appoint judges that align with their way of thinking to open spots.
I mean, even Amy Coney Barrett wasn’t explicitly political for most of her career. She worked as a clerk out of school for an appellate court judge appointed by Reagan, and for Justice Antonin Scalia. Then she was a law school professor until 2017, when she was appointed a Federal appellate court judge, where she stayed until this year.
Believe it or not, that particular path to SCOTUS is pretty similar to her predecessor, Ruth Bader Ginsberg.
The big issue here is the timing of the appointment in light of the Republicans’ behavior when Obama had a SCOTUS justice position to fill for something like 9 months, and they refused it, yet rammed through Barrett’s confirmation in the span of about a month. That’s… less than savory behavior, to put it mildly.
Similar, but 'RBG had extensive experience working as an attorney for clients too. It annoys me to have yet another Supreme Court justice who has never tried a case as either an attorney for plaintiff or defendant, or as a judge at a trial court. Ginsberg represented clients on appeals cases. To my knowledge Barrett went from clerkship to classroom to the appeals court bench.
Are judges in Canada appointed for life terms?
Mandatory retirement at age 75 for all superior court judges, Federal Court judges and Supreme Court judges.
Right - politics includes questions like ‘should these people count as fully human under the law, or should their rights be curtailed’. Any judge that claims to be non-political is either way too stupid or ignorant to qualify for the position, or is simply lying. Pretty much every law outside of the most bland administrative motions takes a political position.