Apologies for the late posting today! A lot has been happening in our week, including an air-conditioning issue during the hottest week of the year so far! Not amusing! Waiting on ‘Tom the Repair Man’ to come rescue us as we speak1.
But onward….
This is the first proper one of the sub-series of posts on America’s Next Chapter, and I thought, why not launch in with a bang: the Supreme Court.
Many of us will be paying a lot of attention to the Supreme Court this month as it rules on several issues that affect absolutely all of us. From pollution to abortion to gun licenses, there will be a slate of decisions in June and early July that could set off a cascade of changes across the country.
So let’s look at our highest court in the land.
I want to examine some assumptions about how they operate and why, and whether there are pathways to pursue that would be better in supporting our next chapter.
For example, why nine Justices? Why a lifetime appointment? How do they get to hear the cases they do? And several more questions. I won’t get into them all here, today. We will have a few ongoing posts about our justice system and the Supreme Court in general.
But let’s start with a review of how they operate.
The Supreme Court is, of course, our highest court, and the final arbiter of the law. Its primary purpose is to ensure equal treatment under the law and to safeguard and interpret the constitutional basis and validity of the laws of the United States.
There is one Chief Justice (currently Justice John Roberts), and currently eight Associate Justices. The number of Justices is set by Congress. So, why nine?
Originally, when the court was established by Congress, in 1789, there were five Associate Justices and one Chief Justice. The number of federal court circuits at the time was six and the number of Justices aligned with this. Other than a brief political bid to stop Jefferson appointing a new Justice (when John Adams reduced the Justices to five), changes to the number of Justices have often been related to the change in the number of federal court circuits.
In 1807, a seventh Justice was added when the federal court circuits increased to seven. And then Andrew Jackson added two more Justices in 1837 when the number of federal courts circuit again increased. There was a brief addition of a 10th Justice during the civil war, and for three years post civil war it was reduced back to seven, but since 1869, when President Ulysses S. Grant signed the legislation changing the number back to nine, that is where it has stayed.
However, we now have 13 federal court circuits.
In April of last year (2021, if you’re reading this in some future chapter where you’re reviewing what people thought back in the olden days of 2022), some House Democrats did, in fact, propose that we increase the number of Justices to 13. This was aimed at ‘rebalancing’ the court away from more conservative views rather than simply aligning with the number of federal court districts, and the President, instead decided to form a commission to gather independent expert views on how to proceed. The 20 members of the commission declined to recommend a direction on expanding the Court (they were split on this matter), and it looks as though the Supreme Court will stay at nine for now.
They did consider other measures as well though, and one of them, which I can’t help but think would be an excellent idea, is to introduce term limits.
If, during each presidential term, there were two new appointed Justices, then each Justice would get to serve 18 years. This seems like an outstanding idea from several viewpoints.
But there’s a problem. Since the Constitution permits Justices to serve a lifetime appointment ‘during good behavior’, it would require a constitutional amendment to alter this provision. Since the Senate won’t apparently even agree to raise the minimum age to owning an assault rifle from 18 to 21, an amendment seems completely outside of their current capacity.
So…what else?
Well, I’d like to suggest two other possibilities.
The first is some Congressional accountability. We are ‘skewed’ in the opinions coming out of the Court right now, partly because the Senate Republicans refused to even consider hearings to appoint a new Justice within nine months of Obama’s end of office, but rushed through an appointment within weeks of the end of Trump’s term. This sort of blatantly unfair and morally dubious behavior should not be allowable (in my opinion).
What if Congress were forced, via meaningful accountability measures, such as stopping their and their staff’s paychecks, or stripping them of committee assignments (and therefore power), to hold hearings and appoint a new Justice within two months of a Justice retiring or dying? Radical right? Forcing the Senate to do its job. (This miiiiight come up again in future posts about other jobs Congress has to do - like passing a budget).
The other possibility in my mind, is to ensure a balance of judicial philosophies. As Justice Breyer has said, it isn’t really correct to refer to Justices as politically conservative or politically liberal. They might be those things politically, but they tend to rule based on adherence to particular approach to interpreting the Constitution.
There are, for example, ‘originalist’ judges, who believe that we should interpret the Constitution as it would have been understood and interpreted at the time it was written (these also tend to be the ‘conservative’ Justices, and there are mixed views about whether this is a realistic ‘philosophy’, but let’s assume it is for the moment). Another view is that the Constitution was designed as a living document and philosophies in this camp include ‘judicial pragmatism’, and ‘judicial intent.’ These tend to be the ‘liberal’ Justices.
But if we have two or more known and judicially-legitimate ways of interpreting the Constitution, and the Supreme Court’s job is to do that, why don’t we consider a rule that the Court has to be balanced in its philosophies? In other words, if there are already five originalists on the Court, and a new Justice needs to be appointed, Congress should not be allowed to propose or add another originalist, even if it is a conservative majority Senate or Republican President at the time. The same would apply in the other direction too.
These are just a couple of thoughts. And both are intended to make the Court fairer, which to me in this case means, more representative. Of course, not all of our lawmakers want that. And THAT is perhaps our biggest challenge.
But my contention is that the Supreme Court is one institution we cannot afford to lose faith in. It simply has to be seen as fair and credible, and we are teetering on the edge of whether this is now considered true by a large number of Americans. Lawmakers in both parties had better pay attention to how they might improve trust in this institution in the coming months and years.
The point underlying this post today though, is that the Supreme Court typically only hears cases that have broad impact (though the shadow docket is something we might touch on in another post). And as such, their decisions - this June and in every year - affect the lives of all of us.
It is therefore time (well past time) that we consider a fair and representative Supreme Court that can evolve as society does. Lifetime appointments are not going to be helpful in that regard, neither is barefaced partisanship in nominations, nor is Congress applying stalling tactics, until a group of Senators gets its way.
And we - the people(!) - need to be willing to share our ideas, lobby for fairness, and vote for representatives who are interested in supporting and modifying a system that does what it was designed to do: provide ‘Equal Justice Under Law’ - the words written above the door of the Supreme Court.
REMINDER: All subscribers (paid and free) can comment on these posts. Please do. I would love a conversation and better ideas about our little piece of Earth’s Next Chapter here in America.
Sources:
An LA Times article on the recent proposed expansion
A New York Times article on Justice Breyer’s new book and retirement
Tom fixed it! Tom is our new hero. And I now know WAY more about old air conditioning units than I did yesterday.