Critics of the Supreme Court have tried every means to change the balance or decisions of the Court from threats of impeachment to harassing justices at homes or restaurants. Some of these reckless measures have been encouraged by law professors, including a Georgetown law professor who encouraged more “aggressive” measures targeting the justices. Now, Seton Hall Law Assistant Dean Brian Sheppard has called for Congress to “buyout” justices by offering them “large sums of money.” If needed, he suggests that President Joe Biden could scrape up the dough to prompt justices to cash in and get out.
Dean Sheppard insists that offering large sums “could be effective without harming the integrity of the institution.” Many of us would beg to differ.
While Sheppard speaks to the benefit of encouraging general turnover on the Court, he also notes that “the most pronounced turn in favorability coincided with the recent shift to a 6-3 split in favor of Republican-appointed justices.”
In fairness to Sheppard, most of his column uses buyouts to discourage justices from staying on the Court until a president with shared values is available to appoint his or her successor. He notes: “But Supreme Court justices are human, and humans care about more than just politics. They care about money, too.”
It turns out that the majority of justices who would be offered the windfall payments would be republican appointees. (Clarence Thomas, John Roberts, Samuel Alito, Sonia Sotomayor and Elena Kagan). That would allow President Biden to appoint an instant five justice majority as well as the Chief Justice.
While Sheppard acknowledges that some will object that “To the many people who are angry at the Court, buyouts might seem like rewards for bad behavior.” However, he says it is easier than packing the Court or changing it through a constitutional amendment.
So here is the offer from the Luca Brasi school of judicial integrity:
“Congress should offer substantial buyouts to any Supreme Court justices who retire when they reach 10 years of service on the High Court. The five justices who have already exceeded that number should be eligible for the payment if they retire within one year. To overcome the considerable allure of ideological power, the sum should be in the millions.”
It only gets worse, however. Dean Sheppard suggests that “If Congress cannot be persuaded to pass a buyout plan, then President Biden might be able to gather sufficient discretionary funds for that purpose with money under his control.”
So we would have President Joe Biden offering millions to conservative justices to leave the Court — and change the philosophical makeup to be more favorable to the Democrats.
Dean Sheppard dismisses any concerns over creating a seats-for-cash deal. Not only is this proposal treated as harmless, but he suggests that those who decline are only showing their untoward or nefarious motives: “A justice’s refusal will provide useful information to the public, making it easier to assess the degree to which they are beholden to the power of the office and, in turn, to the political commandment.”
It could also be due to the fact that Sheppard’s proposal would be viewed as highly offensive and dangerous to many jurists and lawyers. Article III bestows lifetime tenure to prevent justices from being pressured or manipulated by political figures.
He admits that “[o]ffering large sums of public money to the powerful is not an ideal solution.” However, he cites the failure of Congress to change the Court’s composition as necessitating such action and “the legislative impasse . . . forces us to consider second-best measures. The Supreme Court might not deserve a carrot, but a big one can get it to move when the stick is broken.”
Here is an alternative idea. Why not put away both the stick and the carrot and allow the Court to function as originally designed? It is at least a thought.
In Federalist 78, Alexander Hamilton explained that lifetime tenure was to insulate the court from manipulation or influence:
“In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
The idea of seats-for-cash only seemed to arise when the Court’s balance shifted to a stable conservative majority and, as Dean Sheppard noted, legislative solutions could not be found to changing the Court. The Court does not need either a carrot or a stick. It requires a respect for the institution as a whole regardless of whether it is yields to the views of Congress or the public. The seats-for-cash offer is as insulting as it is dangerous for the Court.