Top 8 ways to Restructure the Supreme Court so it Looks more Like America
TED BECKER
09/24/2020
Auburn, AL (Special to Informed Comment) - The Republican Party's rush to
appoint of a "social conservative" to replace Ruth Bader Ginsberg on the
U.S. Supreme Court (hereafter referred to as SCOTUS), should make it
abundantly clear that SCOTUS justices are highly political creatures and
must be treated accordingly. Since we may as well admit this truth, we need
desperately to reform the institution to take this into account.
Back in the 1960s, American political science took a radical turn towards
the social sciences and this breakthrough affected all fields in the
discipline, including the study of "Public Law." That latter sub-field was
mainly a historical and contemporary analysis of decisions. The new approach
emphasized the politics, psychology, and sociology involved in all aspects
of SCOTUS. The field that emerged was called "judicial politics" and I was
one of a group of about a dozen who led the way. We were called "the band of
brothers."
We would be on panels at professional meetings together and hang out to
discuss our thinking. I came to realize, after writing four books on the
subject, that what was needed was to totally restructure SCOTUS. My
colleagues, brilliant people all, agreed. But they added with emphasis:
"Well, Becker, THAT'LL NEVER HAPPEN." I got their point.
Still, I have kept a close eye on SCOTUS and its appointment process. So,
here we are today. Trump is about to appoint a new justice to the Court and
the Democratic Party is threatening to retool SCOTUS if they retake the
Senate and the presidency in 2021. Thus, "never" may become the day after
tomorrow.
I have given it many years of thought, and here is what needs to be done:
1. SCOTUS needs to be much larger. There is no constitutional limit to the
number of justices on SCOTUS at the same time. It has drifted from 6-12 and
is determined only by a law passed by Congress and signed by the president.
The present number of 9 was set in 1869. President Franklin D. Roosevelt
tried, in his "Court Packing" plan in 1936, to raise that number to
16-filled by those more friendly to The New Deal. Even a pro FDR Congress,
filled with lawyers from his own party-resisted.
The present-day SCOTUS limits itself to hearing much less than 200 cases a
year, turning many thousands away. In order to function more effectively for
American citizens in need of a legal last resort, many more important cases
need to be heard. Thus, I believe that to benefit the American citizenry,
the Court needs 2 sections of 9 justices apiece, plus 2 alternates, thus
requiring it to have 20 at one time.
All of them need to have graduated law school (though not necessarily
practiced it). Of this number, less than half should be or should have been
federal or state judges. Judges are a unique type of lawyer, very strongly
opinionated. Some of the greatest U.S. Supreme Court justices in American
history had no judicial experience before appointment to SCOTUS. They
include: John Jay, John Marshall, Louis Brandeis, Felix Frankfurter, Earl
Warren, William O. Douglas, Robert Jackson and, currently, Elena Kagan..
2. Any "Supreme Court" needs to be exposed as a "political" institution and
not be touted as a "neutral" and "objective" arbiter in any country that
pretends to be a democracy. This needs to be made perfectly clear in the
Senate hearings and the pretense of judicial "impartiality" must be
abandoned.
3. Thus, as part of their appointment process, candidates need to avow their
true political positions and establish clearly their probable political
positions on future political issues likely to come before SCOTUS, just as
candidates for any political office should have a personal opinion
concerning pending issues.
4. Congress and the President should try to have the 20 justices represent a
fair proportion of a full spectrum of political positions represented on the
Court., including third parties and independents.
5. Each panel of 9 should be rearranged annually by random selection.
6. No panel may declare a law passed by Congress and signed by the President
to be unconstitutional other than by a 9-0 vote. Any lesser vote would be
simply an "advisory opinion" to Congress and the President.
7. If a federal law is declared unconstitutional, Congress can overrule
SCOTUS by repassing the statute by a 2/3 majority, just as they can
over-ride a presidential veto. The president must also sign this override.
In a so-called democracy, only elected officials should have final say on
what is the law, not a tiny clique of politically appointed lawyers.
8. The Founding Fathers wanted SCOTUS to be "independent" of the executive
and legislative branches, so they gave life tenure to each of the Justices
of SCOTUS. There was another reason. They wanted the Court to be much older
than Congress or the presidency, a very "conservative" structure and very
undemocratic. In order to maintain the important "independence", but do away
with its traditional drag on the elective branches, a constitutional
amendment needs be passed by Congress and ratified by the states putting
terms limits on a Justice's time on SCOTUS. I recommend 10 years, to outlast
even a two- term president.
The last thing the Federalist Founding Fathers wanted was a popular,
democratic power over federal laws. The Judiciary Act of 1789, passed by the
Federalists, insured that the way the Constitution was interpreted by
lawyers would keep the public totally uninformed and baffled. They succeeded
beyond their wildest dreams Their SCOTUS has done well in creating and
fortifying America's present-day plutocracy.
Changes in federal court structure have been made before. A transformational
alteration is now needed to have a modern day, political Supreme Court, to
deal with present-day and imminent American crises by democratic, not
elitist and antiquated, means.
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