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I float this from time to time: eliminate the fixed size. Open a new vacancy on the court every other year, first and third years of the presidential term. When a justice dies or retires, we remove their seat; it does not create a new vacancy. We just keep adding life-term justices on a slow, fixed schedule. I would expect the court would eventually vary in size from about 17 to 20 justices.
We would need emergency procedures to reconstitute a court if it ever falls below 7; I'd establish a line of succession from the most senior chief judge of the circuit courts, down to the most junior.
I'd also provide a limited means for a president to bypass a hostile, politically-motivated Senate. The chief judges of the circuit courts were previously confirmed by the Senate and are already in the SCOTUS line of succession established above. They are pre-confirmed. They can be elevated to a regular vacancy without additional confirmation. This gives a pool of 13 veto-proof candidates for the president to choose from if the Senate decides to play games.
First I've heard of something like this but I like it. Did you come up with this idea on your own or is there a name or resource I can read more about it under?
I highly doubt I'm the first person to think of removing the fixed size of the court, but I haven't seen a similar approach before or since.
My inspiration was the rampant politicization over Scalia's seat at the beginning of the 2016 election year, and RBG's untimely death shortly before the 2020 election. These vacancies from unexpected deaths should not have had the outsized political effects that they did.
I also wanted to target the longstanding practice of strategic resignation. I think it is a form of collusion, conspiracy, and a violation of the separation of powers, with no practical means of prohibition or avoidance. You can't simply tell a justice they can't quit the court, even when doing so is obviously motivated by political expediency.
With this approach, a popular president with a strong mandate will have a long-term influence on the court. They will be able to name a fairly young jurist, who will serve and influence for decades. A divisive president who doesn't have the support of the Senate will only be able to appoint from the most senior candidates on the circuit courts, who aren't likely to last more than a few years. The more popular the president, the greater their long-term influence on the court.
Bringing back a 2 week old comment but man were you scarily close to what Biden is proposing!
This is a really interesting approach, but do you see no problem with having that many justices? Would you keep the majority rules approach? Wouldn't this more likely lead to collations within the justices?
I like the idea, but I'm not sure that many justices would make the bench better.
I don't foresee much of a problem, no. Remember, the court size is going to increase no faster than one justice every two years. The court will slowly phase in those changes they need to make to adapt to its slow embiggination.
I imagine that we will see more recusals and abstentions under this system. Not every justice will choose to hear every case, or render/join an opinion on every case they do hear.
That's interesting. I wonder if there's a way to codify it that only n justices can proceed over a single case. That also has the added bonus of allowing the court to hear multiple cases at the same time, reducing the backlog.
Like the justices are picked through lottery or something like that.
I imagine that some justices will simply abstain from involving themselves in certain cases they don't find particularly important. For example, the court might vote 8-7 in favor of granting certiorari in a given case. Several of the justices who voted against certiorari might further elect not to participate in the case at all.
That definitely doesn't fix the coalitions issue though. Any meaningful case is going to have every judge want to be involved and get split right down partisan lines (as much as I hate to say that, it's been a proven fact over the past at least 8 years or so).
I kind of like the idea where they don't get to pick their workload. It feels like they'll have less opportunities to game the system.
I am far less concerned about the justices gaming the system than I am about the appellants. With less than the full court assigned to a case, the appellants are going to go shopping. Their backers will keep bringing case after case, and then withdrawing their appeal if they don't draw a favorable panel.
It's kinda wild to me the the supreme court of Canada has the same number of justices as you guys, and we're a tenth of your size. We have a mandatory 75 retirement age and each region is given a block of justices, 3 for Quebec because they use civil not common law and then the rest are divided kinda sorta by population, convention has 3 from Ontario, 2 for the west (typically 1 BC, 1 for the prairies which rotates) and 1 for the Atlantic. It's not perfect but we don't seem to have the same issues as y'all do, during the Harper years for example a lot of the Tory policies got struck down by judges he appointed.
The one that made sense at a minimum for you was to have a justice from each circuit, the court should totally represent each region.