The Los Angeles Times has published my column on reforming the Supreme Court. If President Trump truly wants to leave a legacy on the Court, he should focus not on changing the membership but changing the institutional itself.
President Trump nominated Neil M. Gorsuch as the next Supreme Court justice Tuesday, and Senate Democrats are already lined up to oppose the nomination. Despite the super-heated political rhetoric, the nomination of another conservative jurist to replace Justice Antonin Scalia won’t move the court’s center of gravity. If Trump wants to have a lasting effect on the law, he should be working with the Republican Congress to make changes in — not on — the Supreme Court.
As an institution, the nation’s highest court is anachronistic, dysfunctional and long-overdue for an overhaul. Real change could be accomplished with just three basic reforms.
Those reforms would expand the size of the court, introduce cameras into the courtroom, and adopt a system of judicial ethics for its members.
For the rest of the column, click here
I’d rather have two SCOTUSs: one for civil cases and one for criminal cases. You need expertise in each and it’s hard to master both. Where they intersect, you have the two courts sit en banc.
Very good idea. Never heard that proposal previously.
Every judge and lawyer I’ve mentioned this to seems to like the idea. You’d have a Chief Justice over both bodies who would only assign cases, handle budgets, deal with Congress and break ties, if needed. You’d get faster decisions, better decisions and justices could become true experts on topics of national interest like technology and antitrust, for example.
mespo – considering the justices’ clerks do most of the research and draft writing, don’t you think it would be easier to find clerks who were experts in various areas?
I’d put an end to that scam, too. We don’t need some inexperienced kid making policy. Justices should rule and write their own opinions, They’d be a lot shorter if they had to do that. We don’t need a 50 page history lesson on every major opinion. Look at Marshall’s opinions. A few pages is plenty.
mespo – 8 of the justices are pooling their clerks. Scalia was the only one who did not pool his clerk(s).
Yeah, Nino has a lot of imperiousness to him. I still don’t think 20-somethings ought to be doing the justices jobs.
mespo – I agree. They are getting very dense.
If the Supreme Court were to be expanded, to a 20th Century concept let alone a 21st Century concept, then given that the Supreme Court transcends two and four year periods of political opportunity, transcends ideological and oligarchical interests, and stands for the people in their entirety in concert with the laws as they may be and as they may become, with an adherence to an interpreted original meaning or a common sense interpretation of the moment; then the members should not be appointed by a President or a party in power. Each political party should appoint a justice, in turn until the bench is full. No political party should be able to influence Americans after their time has past and their perspectives been refused.
A procedure could be designed for arriving at judges that are centrist, where the vast majority of the population reside. A President might be elected with an over all minority vote due only to less than a hundred thousand voters in three states, but those that must be above the changing political circus and will be around beyond whomever is elected or purchases a place in the White House, Congress, or Senate must represent the population. Today the population is divided almost equally between the left and the right, liberal and conservative, us and them. The Supreme Court should be as well. If each political party was to appoint and defend a nomination in turn then the success of getting those nominated to their seats on the bench would depend on how universal their views. Then let the evenly balanced bunch deal with the laws, that which is supposed to be above the side show we have as a government.
We should be able to do this. We shouldn’t have to suffer this dysfunctional and shameful system(s) we endure today.
Well one Supreme is too few for a multitude of reasons, so how many would be too many? If a “swing judge” can control the outcome of a nine person court, isn’t it also likely that one or two could do the same thing on a 19 person court? Is the problem with the court that there are too few members or that there is no consistent standard they are held to?
Of the 3 branches of government, the Judicial branch is the only one that is expected to keep the other 2 within the playing field of the constitution. If it were an American football field, the Executive and Legislative branches have been provided 120 yds x 53 1/3 yds within which ALL play is to occur. Not every President likes our form so they go for Canadian football, or European football. Congress does the same thing. SCOTUS is supposed to keep them within the American rules but both the President and Congress look to hire the referees that affirm their worldview, their preferred rules.
I get that our Executive and Legislative branch of government will be a reflection of the will of the people but the Judiciary has been provided too much power given the fact they have the same human nature as those that appoint/nominate them. We expect (or at least should expect) the Executive and Legislative branches to bend or break the rules and we cannot expect the citizens to properly referee their actions, however we should expect that the Judiciary will. When we cannot even expect that, then over time confidence in the entire thing will be gone.
That’s when we should expect the fans to rush the field.
I like JT’s proposals. However, there would be a bloodbath in the duopoly to be have their President in place when the expansion starts.
Bannon is running the country
You mean like Valerie Jarrett ran it under Obama? Or Karl Rove ran it under Bush? So what else is new….
No, morel like Cheney. He has a lot more power than Rove or Jarrett. Did you fall off a turnip truck or something?
Rove was excluded from NSC meetings, just as one example.
(CNN)We’re not even two weeks into the Trump presidency. Has your head exploded yet? If so, you’re right where Donald Trump and our shadow ruler, Steve Bannon, want you to be.
The onslaught of executive orders and threatening talk, while entirely in keeping with what Trump promised during the campaign, have left Americans of many political leanings feeling overwhelmed and fearful of what may come next.
anon – I am a happy camper with Trump. Now I admit that Trump is scaring Democrats and the MSM, but the rest of us are happier than we have been in 8 years. 🙂
Would expect nothing less from Sheriff Joe admirers
anon – if you don’t live near the Mexican border, you have no idea what our problems are. Do you know we have a national park we cannot visit because it is used by Mexican drug runners and they are afraid civilians will be accidentally shot or shot on purpose. We have had running gun battles up the Interstate between groups of coyotes trying to kidnap the passengers of the other? We are a major hub for drug smuggling and human smuggling. Sheriff Joe understood that and was will to arrest and send illegals to INS.
In reading Article III, there is no limiting the number of Justices or any other thing that you suggest. I say, I have to agree with you totally on this point. I think FDR threatened to increase the number of jurists at one time.
However, Mr Trump has other things to consider. I heard that the international court is considering indicting him and some of his staff for violating the international law of maritime as well as hindering and delaying international airspace.
I have read that Mr Trump said he is going to “MAGA.” I just became aware of comments on the hill, that technology companies are planning on adding jobs, just not in the US. They cannot wait for 90 or 120 days to get employees back.
Exactly how is Mr Trump going to add jos, military increase, DHS increase, Federal Marshalls? His immigration ban is affecting all aspects of life for many folks. Workers can get through CBP or DHS, Mr Trump is a disgrace to the American people. The Federal reserve was planning on raising rates, however because the executive branch has created so much uncertainty in the world they are reluctant to initiate any rate hike.
I read that Iran is not granting visa to the US to assist in fighting terrorist.
I have never felt so hopeless about the direction the county is headed. Just remember crazy people do crazy things, psychopaths don’t care.
You say this as if Hillary Clinton isn’t a complete sociopath herself and would have been better in the job? I don’t think so. It would not make me feel better. But then she could have consulted with her tongue-chewing, sociopath, lecher, misogynist, faux husband who would have been back in the White House with her. You need some perspective, man.
Forgot to add, incompetent, sociopath. There is little doubt that Hillary Clinton is incompetent. And, like I said, if you can’t see this, you need to get some perspective. Washington needed a shake-down and the right person to do it is in the House. Relax and enjoy the ride.
Enjoy your Goldman Showers.
Speaking of first spouses, What has happened to Melania? Read she has made an appearance in 12 days. Is she giving up on her version of Bill?
http://www.nydailynews.com/news/politics/melania-trump-not-move-washington-planned-report-article-1.2961457 Separated?
Here’s something if Congress wants to have some fun with the court.
Appropriation for the Supreme Court of the United States for items other than the salaries of the judges = $0.
Medium of exchange with which the judges will be paid = potatoes, delivered once a year to their ducky Georgetown townhouses. The Chief Justice will receive his in crates. Hag Justice Ginsburg will receive her striaght from the dump truck in a big pile outside her stoop.
RBG will be getting dumped on enough by her own liberal pals for not stepping down under Obama’s term. She’s 83 now and falling asleep all over the place. Do you really believe she will make it till a Democrat takes office to replace her? She blew it for the libs, big time. Justices should have a mandatory retirement age.
If Congress gets to make its own rules, why would cameras and ethics be different vis-a-vis the Supreme Court, an Article III constitutional court and one of the supposedly co-equal branches under the separation-of-powers doctrine?
It appears that the Court has acquiesced historically to legislation regarding the number of justices, but should it acquiesce to legislation of its internal rules of order when the Court is the ultimate arbiter of constitutional justice?
The court is the ‘ultimate arbiter’ in… the opinion of the court!
Your suggestions will accomplish nothing of interest to people outside the legal profession.
The problem with the appellate judiciary, the law professoriate, and the public interest bar is that they’ve arrogated to themselves a franchise to make social policy in defiance of the views of the public or elected officials, and do so under the pretense that the ordinary exercise of discretion by elected officials and voting public is ‘unconstitutional’. They’re frauds, and you have to put the fear of God into them and to strip them of their discretion. If you’re not advocating that, you’re part of the problem.
Citizens filing complaints against justices? Be very, very careful what you wish for.
Procedurally how would the changes take place ? I assume Congress would need to be willing to approve. Realistically, is this even possible given the partisanship of Congess?
It has been rumored for a while that Legendary Pictures had been courting Sicario and Arrival director Denis Villeneuve for their upcoming Dune reboot. Now in under 140 characters, Brian Herbert (son of Dune author Frank Herbert) has confirmed that the contracts have all been signed, and Villeneuve will be directing.
Feyd Rautha – Villeneuve is directing the new Blade Runner, so maybe he is going to specialize in sci-fi.
Fantastic article, but it is too sane for our country right now. It would take a president who really cared about his country and not about his party to implement these changes.
Not being one with a great deal of technical experience and knowledge in the workings of the laws, I would have to defer to Turley on this one. However, from a common sense point of view it makes a lot of sense. The absolutism of a decision made by the Supreme Court of nine members, which can be by design and moment either heavily weighted left or right compromises the entire function of the court.
With this President and the ages of a few of the justices, we are looking at a conservative addition and a conservative replacement during the next four years and possibly another conservative in place of an aging liberal. The make up of the court is far too subject to the moment. If, indeed, what rules America is drawn from sacred texts and interpretations by individual justices of the original meaning of those texts, combined with, and sometimes opposed by, common sense realizations of the realities of the moment, there should indeed, be more life added to the court, more sensitivity, more transparency, and more conduits to the people; more justices.
This brings up an even greater issue. America is backward and dysfunctional with regards to its form of government and Turley’s criticism of the Supreme Court illustrates this well. American xenophobia prevents it from profiting from the hard learned lessons of other democracies. From the us versus them catastrophe that is the structure of representation, through the oligarchical control of the candidates, to the facility with which a government of the moment can fix the us or them influence in the Supreme Court, America has got to let go of the blind adherence to what took place over two hundred years ago and start adapting to the times and the vast differences between the inspirations of then and the realities of now.
I won’t call you any names. However, this comment:”America is backward and dysfunctional with regards to its form of government and Turley’s criticism of the Supreme Court illustrates this well.”,
only leads me to believe you smoke some really good weed.
I would agree if the expanded court worked in teams like the Circuit courts, Ninth Circuit in particular. You never know who you are going to draw for your case. If not, I am against expanding the Court.
Read your LA Times piece and agree completely.
Yep, as mentioned before term limits or some kind of mandatory cutoff age & retire.
Would anyone want Ruth at age 80 piloting an Airbus A380?
Ruth was supposed to emigrate to New Zealand! Wha’ happened to her resolve?
Autumn – there is still hope for Ruth. If the new boy gets appointed and starts to shine, Ruth may decide New Zealand doesn’t look so bad.
Interesting suggestions, Professor. It is ridiculous that the Court isn’t subject to the CJC.
Another change I’d like to see is term limits for Justices.
Wow! A really interesting article. It is certainly worth serious consideration.
I doubt it will get done because of politics but it merits a long, hard look.