“Offer Large Sums of Public Money”: Law Professor Calls for Congress to “Buyout” Conservative Justices

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.

 

68 thoughts on ““Offer Large Sums of Public Money”: Law Professor Calls for Congress to “Buyout” Conservative Justices”

  1. A lot of the politics would be taken out of the process if a new justice would be appointed every two years regardless of an existing vacancy. That way, every presidential term would have two – not more not less – appointments. If the Senate refused to act on a nominee in a reasonable time, that nominee would be deemed accepted by the Senate. If the Senate declined the first two nominees of the President , then the President would submit a list of ten sitting federal judges for the Senate to approve of one. If the Senate’s deadline to approve expires, the Senate would deemed to approve the judge chosen by the President from that list.

    The specific deadlines for each step can be part of the enabling legislation.

    Sometimes the Court will have an even number of justices that would split 50-50 on a case. Is that a bad thing when an issue is that balanced? In a such a case the lower court ruling should stand.

    1. That’s the most hilarious brain-dead idea I’ve heard this week. Thank you for the laugh.

  2. “President Joe Biden could scrape up the dough . . .”

    No doubt.

    He could use some of his “Big Guy” money.

    But will the Justices accept payment in Yuan?

  3. Jonathan: At first blush my reaction to Dean Sheppard’s “buyout” proposal was it must be tongue in cheek. But if he is serious it shows the extent of dissatisfaction with the direction of the right-wing majority led by Thomas/Alito. The Court has lost its legitimacy because its decisions are driven by its narrow views that are out of touch with the views of most Americans. The overturning of Roe v Wade, a 50 year old precedent, was the tipping point when the cabal of conservative Catholic justices decided to throw women back to the 17th century when they were just “vessels” for procreation–chattels with no rights of bodily autonomy. This one decision has caused chaos around the country creating a “Handmaid’s Tale” in many states. Women can no longer get a safe abortion. Doctors and hospitals are even refusing ectopic pregnancy cases out of fear of being prosecuted. The maternal death rate is going to skyrocket. Even 10 year old girls will be forced to give birth. Justice Thomas, who increasingly, leads the charge back to the 19th century, has his sights on other fundamental rights like same sex marriage. As a result there are calls for Thomas to resign or be impeached because he has refused to recuse himself in many cases–even those in which his wife has a direct interest. In every other federal court he would be required to recuse.

    You say the Court has reached a “stable conservative majority”. That “stable” majority was made possible by Mitch McConnell who refused to give Judge Garland a Senate hearing and then rammed through Trump’s three nominees chosen by the right-wing Federalist Society. The “stable” majority is now hell bent in taking away other fundamental rights Americans have come to expect and, next term, may permit states to disregard the popular vote and appoint electors favorable to the GOP. That’s Donald Trump’s wet dream he could not accomplish in the Jan. 6 insurrection. The “stable” right-wing cabal on the SC is moving the country closer to authoritarianism that even the Founders would find alarming. If Dean Sheppard is serious in his proposal I would be willing to donate $50 to retire Thomas, Alito, Kavanaugh and Barrett to save the country!

  4. Whatever the “payouts” that are being offered, it would never come close to what The Federalists’ Society paid into getting those 3 appointed by Trump.

  5. Sure, he learned that from the Chinese. The act of purchasing whores has had excellent results on the Democrats, performed by the Chinese.

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