Why Not Let The Voters Stack the Court?

A Path To A Supreme Court of Thirteen

Supreme Court idea-

This is my own completely hare-brained idea for restructuring and maintaining the Supreme Court. It’s based on two things that are rarely used in politics- common sense and Constitutional practice. I propose;

- 12 Associate Justices, one for each federal judicial district.

- The 13th, the Chief Justice, would only preside over the Federal Court.

- All Justices must be non-partisan.

- Associate Justices must be from the district they represent.

- Associate Justices are elected by their district.

- 12-year term for all justices.

- Two term limit for all justices.

- Mandatory retirement at 90 years old for all justices. (Suggested, negotiable.)

- A candidate may not run for a term that would exceed the mandatory retirement age.

- Each presidential election cycle, a third of the court shall be elected, 4 in each, with 5 in every third cycle.

- The Federal Court would be the 5th court in the third cycle, and would be a national vote- everyone would vote for the Chief Justice.

- if a justice retires, dies or is removed, the president chooses an interim judge until the next 2-year national election and that seat is on the ballot in that district to finish that term.

- Interim appointments are nominated by the President and approved by the Senate per traditional form.

- Filibusters may not be applied to interim appointments.

- A term won in a two year election to finish a term counts as a term served, and that judge may only serve one more 12 year term.

- An interim who fails to win the two-year election to finish a term is not charged with a term and may still run in future elections for that district with full eligibility.

- Justices are subject to the same standard ethics and recusal laws already binding on lower court justices.

- Justices may come under review and possible censure or removal for collusive rulings or perjury committed under oath in their confirmation hearings or when testifying to Congress.

- The justices must abstain from all party-based political activity, and may not rule by party platform or pledge.

- Justices may not receive gifts or gratuities from any government, party, individual or organization, unless approved by Congress, as with the Emoluments Clause.

~~~

Some things about the court that we need to bear in mind-

There are cases that are reviewed and advised or acted on in some way by a single justice, for the district, that never reach the full court. Currently, the 12 regional districts are unevenly split among the 9 judges. Three of them carry multiple districts.

With 13 justices, caseloads will be lighter and the path to the SCOTUS will be well defined by court district. If they are from that district, that would be a much fairer representation on the court than someone picked by the president, or in the GOP’s case, by the Federalist Society’s Leonard Leo. (wink, wink).

If they’re elected, then the whole pay-to-play gambit is reduced, because money doesn’t always buy the votes. Any president able to appoint an interim judge would be limited to a maximum under-two-year term. Their appointee would still need to win the next regular two-year national election to remain and finish the term, and may run in the next regular cycle election for that district after that.

It’s not a good idea to change the whole court entirely all at once, even every twelve years. This is still a long time to serve, and the chance to position the entire court one way or the other through election money alone for that long is far too tempting.

Likewise, having them change too frequently could mean constant revolving door court packing. 12-year terms can’t be timed with a single presidency like 4 or 8-year terms could.

So, this proposal recommends they should be staggered out like the three-cycle Senate elections. Senators serve six-year terms, and every two years, about 1/3 of them are up for re-election.

Likewise, SCOTUS elections could be staggered and aligned with the presidential elections, when the most people vote. A 7-seat majority number of justices would never be on the ballot all at once. You’d have 4 justices one presidential election year, 4 the next, and 5 (4 plus the Federal) in the last, repeating in that order. It becomes an even 12-year cycle of terms. Every three cycles, your group of seats is on the ballot. (Including the Chief Justice for the Federal Court.)

That way, the people have the ability to shape and support the court as they see its behavior and get to know it, and rely on it- or not.

Now, on one hand, this means that election races for judges will become identical to senate races, replete with dark money and slurs. But, on the other hand, by and large, they will reflect the majority of their district, and most people aren’t too keen on judges that have pre-decided things, although, some conservative judges might make you feel differently.

This is why they must be nonpartisan, like the entirety of the judges below them. We already see the dangers of having the court skewed by pre-conceived views based on political ideology. In that regard, a Supreme Court Justice is no different from a local judge- they must be beyond personal opinion and use the law and the facts.

~~~~

And, then the age question-

Lifetime appointments with no retirement age make every seat a political football and a death watch.

This is important, because lifetime appointments mean that when a younger partisan is appointed, we are stuck with generations of disingenuous rulings from this judge, placing political longevity over judicial quality.

A retirement age and term limits will help manage that, but the 12-year-terms could still be politically manipulated through partial-term elections.

That’s why you can’t run if you can’t finish a full term before mandatory retirement.

This works in concert with the two-term limit to ensure terms are capped without being compromised. (Political shenanigans, and all that, you know.)

A ‘for instance’- while any justice could ‘retire’ and force a party-friendly presidential appointment to finish their term, a candidate could not run for a full term knowing they’d have to retire mid-term, which would guarantee a pre-planned presidential appointment.

The retirement age minus the term lengths gives us the eligibility windows. At 90, with a one-term window, a 79-year-old would be barred from running, at a two-term window, a 67-year-old could not run for a second term.

The window should be in those increments to keep it aligned with the election grid cycle as much as possible. This way, we’re assured a judge won’t be forced to retire with time remaining in their term.

So, yea, if you turn 90 the year after your first term ends, you can’t run again. Stop grousing- you were on the f-ing Supreme Court!!!

And, it’s an assured equation. 90 minus your age at appointment. At 12-24 and up, you’re good to go! Every candidate will always know how many terms they’re eligible to serve.

But, c’mon, at 90, are we really going to test that? I mean, either window is pretty damn old to start that job.

Historically, the oldest to retire was the famous Wendell Holmes, who stepped down at 90. (That’s where we got the 90.) The most famous and oldest to die in office was Ruth Bader Ginsburg, who died at 87.

So, yea, probably.

Three conservative and one liberal judge are elderly, Thomas, born in 1948, being the oldest. Conservative Roberts and Alito, and Sotomayer on the left, are children of the 50s. The rest, Kagan, Gorsuch, Kavanaugh, Barret and Brown-Jackson are born between 1960-1972.

Justices don’t often resign- 51 of them have died in office, 17 have resigned, and 39 retired.

There is no chance of any of the current justices retiring or resigning. (Although we might wish aliens would take Alito and Thomas.) Therefore, the battle to claim the next seat on the court has been reduced to a ‘death cage’ match. Dun-dun-dunnnnnnn.

The sooner the next justice dies, the sooner the then-current president gets to choose.

So, being the smartass you are, you say ‘why 90? Why not retire at 80? Or even 75? Who wants the bench always full of old geezers, anyway?

Fifty-ish years of age is still pretty young to reach this kind of position. All of our current court was appointed in their 40s and 50s. 53 is the average. And in this arena, that still means a good 30 to 40+ years on the bench.

That’s no accident. This is the age range where judges rise to positions that give them the knowledge and experience to be a SCOTUS Justice, such as state or federal courts. Twenty or thirty-somethings have never been seriously considered for this reason. They’re just too young to have the experience.

New judges in their 40s and 50s would be term-limit capped to their 60-70s anyway, well short of Holmes retirement age precedents. So, that 75-80 could become the average age range of service.

But, that’s if judges are still chosen at that young age. A higher retirement age also allows older, popular and experienced judges who are known and respected in the district to rise to the Supreme Court. Elected judges will certainly span a wider age range than those appointed politically for life.

Were the retirement age to be set at 75 and applied to incumbents, Thomas would have had to retire in 2023 and Alito would in 2025.

A retirement age of 90 would force the same two out in 2038 and 2040.

So, a low retirement age in this kind of legislation would only politically hamper applying it to incumbents. ‘After a dozen years’ is more amenable to incumbents and Republicans than ‘ok, you, two, outta the pool!’

In many ways, this is moot- the average appointment age and the two full-term limit solve it almost completely for new judges, but it’s still a guardrail that should be in place, to set a reasonable limit on service and to facilitate the change from appointed to elected justices.

~~~~

So, from a justice and efficiency point of view, I feel like these are all common sense ideas. Letting the voters choose and limiting service makes them ultimately accountable in ways they currently are very much not.

A SCOTUS reformation with these parameters would make it more representative, more beholden to the law, precedent and the will of the people, and it would reduce the corruption attached to the judicial appointment system, by making it possible for the public to place a Supreme Court justice.

A good justice can be re-elected. A bad justice doesn’t have to be.

~~~~

The biggest question in the whole proposal is what to do with the serving justices? Any bill suggested here would have to address the Constitutional appointment for-life issue. Obviously if a justice dies or retires, this system has a plan for that- the president names a temp, and their seat goes on the ballot at the next 2 year national vote.

But, what about while they’re still kickin’? Do they now have to run for their seat in the next cycle for their district? Or is their district stuck with them until they retire or die? It could take more than three cycles before Amy Conan-Barrett’s 7th district gets to vote.

Part of this equation is the justices taking ownership of their district.

Do any of them come from a district they preside over? Could they even be eligible to run? Would previous service years count against terms? How many of the new rules could apply?

If all the rules applied to our incumbents immediately, they’d be forced to run to stay on the bench. Even being allowed to run for two full terms and without residency, they still have to reach voters in a region that probably didn’t even know they were in charge.

Well, that’s not happening.

So, they don’t, they aren’t, they wouldn’t, they won’t, none. Well, maybe one.

They could, though, be subject to the new retirement age.

And, as four of the nine are strong conservatives with 30+ years left, applying the new rules to incumbents won’t fly with Republicans. They’d much prefer the process went very slowly, rather than converting in one or two 12-year cycles.

But, that is the reality were this idea to come to Congress. The current Justices would stay, their seats added to the ballot as they retire or die, possibly with a mandatory retirement at 90. This is why I said earlier that the higher age retirement had a better political chance. Republicans are more likely to accept a limit that would barely be tested. They still have 14 years before the first incumbent, Thomas, hits that age.

~~~~

Getting it all going-

We’re seeing problems with the top court that at least some of these things would fix, like ethics oversight and non-partisanship. And, yes, if a Democratic president and Congress were to pass a bill that just adds 4 more liberal-leaning seats to the bench, Republicans would scream to the high heavens of court-packing.

But, suppose it was phased in? If a law with all of these articles was passed- in the next presidential election cycle, the four new justices are added, starting with the four districts that share judges- Roberts runs The Federal Court, the 4th Circuit and the District of Columbia, Kavanaugh runs the 6th and 8th Circuits, and Alito has the 3rd and 5th Circuits.

Leaving the Chief Justice in charge of only the Federal Court frees up two of our four, and taking one each away from Alito and Kavanaugh gives us the other two. The District of Columbia, the 4th Circuit and any two of the Alito-Kavanaugh circuits would get the new judges. (Like, say, the 5th and 6th or 3rd and 8th or- you get the idea.) Congress can choose to stipulate which two in the bill.

So, the 13 seats are filled out by the voters. Those 4 justices begin the 12-year cycle. The bill can assign the remaining districts’ place in the schedule for the next two cycles, just as they’ve done for the three-cycle senate races. Like the Senate, a judge elected to finish a partial term would have to run again in the next regular rotation.

It would have to apply the same way as it does with the president, where taking over a remainder of a term, as Truman did for FDR, as LBJ did for JFK, and Ford did for Nixon, is counted as a term if it exceeds two years, and they could only serve one more. So, yes, a candidate could be limited from serving a full 24-year double term, but basing the 12-year cycle on each individual seat would make the logistic and election parameters a nightmare for voters. No one would be really sure when their SCOTUS vote comes up, the way they do their Senate rotation.

But, remember, that replacement judge may have as as long as ten years or more if they are replacing a judge lost in their first two years of term and win the election to finish it. And, still run again. Admittedly it might feel less fair talking about someone filling the last four years or less, but, hey, 11-23 years on the court ain’t bad.

And an interim judge who fails to win the term is not charged with a term, creating, by default, a two-year minimum to qualify as a term served, failing to reach that, a candidate may still be eligible for two full terms, age allowing. And the prohibition of the filibuster means a swift majority vote to for interim judges to minimize any gaps in the court’s number.

~~~~

Stopping the stranglehold-

The political control of the court, emboldened by lifetime appointments, has been a principle strategy and paradigm for both parties over the years, but is now the paramount strategy for Republicans. They worked long and hard to establish their impenetrable 6-seat majority. They will fight all reform by Democrats and then gladly just go ahead and add 4 more conservatives from Leo’s barn as soon as they have the power. (But, if Dems did that, it would be a crime! Oh noes!)

Turning the court into an elected body, phasing the new judges in as the old ones leave, and limiting terms is the most sensible way to restructure such an ultimately powerful unit and the only way to hold it accountable to the public for their behavior and actions.

It’s a slow way to go, but it reduces the political fallout because both sides have equal paths to the bench, and it means that within a generation, 7 of the seats on the bench could be electable. Within two generations, the entire court. After all, Barrett, the youngest justice, and the last current likely to be serving, was born in 1972. She will be 90 in 2062. If she’s still serving and would be held to that mandatory retirement age, this would be the dawn of a fully elected Supreme Court.

That is, of course, the longest-case scenario, but, suffice to say, once all the incumbents have retired or died and been replaced by elected judges, the court would reach the full four-year cycle and the bench would more resemble the America on whose behalf it’s really supposed to be judging.

It’s not outside our ken to change the way some of our government personnel are chosen. Senators were originally chosen by Governors, and were made electoral by Amendment. Lifetime judges can be, too.

Even with these incumbents going until 90, it still means there’s an end in sight to partisan Justices butchering the law with ‘judge shopping’ political cases. It might not hurt to carry this through the circuit judges, too.

Our courts are currently being used just that way- with conservative political test cases shopping venues for a judge that will rule their way, counting on the other side appealing, and on losing that, they appeal to the SCOTUS, where they all know it’s ‘in the bag’.

Several of the rulings of this conservative court have been for cases with no actual harm to plaintiffs, and set federal standards for actionable behavior. They have excused both unethical and criminal behavior- and that’s just their own.

Elections can at least put a damper on that, even if it takes a while to phase them in. But, we all know, doing anything of this magnitude overnight would just cause chaos- oh, wait, that’s what we have now. Damn.

Still, I think this is a fair and Constitutional compromise, and could solve many of the problems we’re seeing.

I think it’s worth a look, maybe even a discussion.

C.2024 Cousin B