Supreme Court fixed schedule appointments (ends the spectacle of the vultures on both sides rooting for Justices to die or retire)

Politics
1

My proposal is fully Constitutional and would all but extinguish the current issues with Supreme Court appointments.

What my proposal does NOT do is “fix” the current composition of the Supreme Court. They are there (including the one to be appointed by Biden) and will serve as normal. Republicans could expect to control the Supreme Court for at least another decade.

My proposal is simple.

  1. There would no longer be a “fixed” Chief Justice, but the position of Chief Justice would rotate by seniority in exactly the same manner it does on all lower Article III Courts, except that the term for a Chief Justice would be reduced to 4 years. There would no longer be Associate Justices, all Justices would be appointed to office under the title of Justice.

  2. The death, resignation, retirement or retirement in senior status of a Justice would NOT produce a vacancy on the Supreme Court. There would be no fixed seats on the Supreme Court.

  3. One vacancy would open on the Supreme Court at noon on January 20th of every year following an election year.

  4. The appointment scheme detailed above would result in 7 total appointments to the Supreme Court over every 28 year period.

  5. Consequently, the Supreme Court’s size would no longer be determinate, but would likely reduce to between 5 and 9 Justices as Justices enter the court at fixed intervals but die, resign or retire at unknown intervals, with an average of 7 over the long haul.

  6. Because the vacancies would occur at the beginning of a President’s term, it would be politically untenable and probably impossible to block a President from making his desired appointments for 4 full years. As an emergency backstop, a provision would exist so that any unfilled vacancies would NOT continue over to the next Presidential term, so that a subsequent President will not benefit from the intransigence of a previous Senate.

  7. An additional provision would end the current use of fixed Circuit Justices. Instead, emergency appeals would be assigned to Justices on a random round robin basis.

  8. The proposal would take effect on January 20th, 2025. President Biden would have gotten 1 appointment under this bill, but he is getting that appointment anyway due to Breyer’s retirement.

This bill has the further benefit of removing the unseemly and downright ghoulish pressure on Justices to retire or the glee on either side if a hostile Justice dies suddenly. A Justice will be free to serve as long as he likes without political pressure to leave the court. A Justice could retire during the Presidency of a hostile President, knowing he is not handing a political plum to that President. And he is relieved of the burden of wondering if he will make it through a Presidential term alive, as his death will not create a vacancy.

This proposal is absolutely Constitutional. Alternate proposals to limit terms are unconstitutional and would likely be quickly struck down as such.

As a comparison, number of Justices appointed in the 28 year period ending with Biden’s inauguration, January 20th, 1993 to January 20th, 2021:

Clinton: 2 (Ginsburg, Breyer)
GW Bush: 2 (Roberts, Alito)
Obama: 2 (Sotomayor, Kagan)
Trump: 3 (Gorsuch, Kavanaugh, Barrett)

9 total during the 28 year period.

Had this legislation existed:

Clinton would have gotten 2 appointments
Bush would have gotten 2 appointments
Obama would have gotten 2 appointments
Trump would have gotten 1 appointments

7 appointments during the 28 year period.

Win the Presidency, win 1 seat on the Supreme Court. Can’t get more equitable than that.

The very opposite of Court Packing.

Also, the expected reduction in Justices over time, from 9 to an average of 7, will considerably increase collegiality and efficiency on the Supreme Court.

The existing Chapter 1 of Title 28, United States Code reads:

§1. Number of justices; quorum

The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

§2. Terms of court

The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.

§3. Vacancy in office of Chief Justice; disability

Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.

§4. Precedence of associate justices

Associate justices shall have precedence according to the seniority of their commissions. Justices whose commissions bear the same date shall have precedence according to seniority in age.

§5. Salaries of justices

The Chief Justice and each associate justice shall each receive a salary at annual rates determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351–361), as adjusted by section 461 of this title.

§6. Records of former court of appeals

The records and proceedings of the court of appeals, appointed previous to the adoption of the Constitution, shall be kept until deposited with the National Archives of the United States in the office of the clerk of the Supreme Court, who shall furnish copies thereof to any person requiring and paying for them, in the manner provided by law for giving copies of the records and proceedings of the Supreme Court. Such copies shall have the same faith and credit as proceedings of the Supreme Court.

I would change it to read:

§1. Number of justices; quorum

The Supreme Court of the United States shall consist of an indeterminate number of Justices, any two-thirds of whom shall constitute a quorum.

Section 2 would remain the same.

§3. Vacancies on the Supreme Court

The death, resignation, retirement or retirement in senior status of a Justice shall not create a vacancy on the court. One vacancy in the office of Justice shall be created at noon Eastern Standard Time on the 20th day of January next succeeding each Presidential election year. However, if the President shall fail to successfully appoint an individual to a vacancy created under this section during the respective term of office, such vacancy shall expire at 11:59:59 am, Eastern Standard Time on the 20th day of January marking the end of such term of office and shall not carry over to the next Presidential term.

§4. Precedence of justices, rotation of service as Chief Justice

(a)(1) The Chief Justice of the Supreme Court shall be the Justice in regular active service who is senior in commission of those Justices who-

(text relating to rotation of Chief Justice position omitted for brevity)

§5. Salaries of justices

The Justices shall each receive a salary at annual rates determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351–361), as adjusted by section 461 of this title. The individual serving as Chief Justice at the time of the enactment of this legislation shall continue to receive the emoluments provided by law for the Chief Justice as if this legislation had not been enacted. However, no Justice serving as Chief Justice pursuant to this legislation shall receive any extra emoluments for such service, beyond the emoluments provided by law for Justices.

I would omit Section 6 as being obsolete.

2 Likes
2

image

The thing to take away from the image above is that the average service of the 6 Justices who took office under age 60 and have ended service is 28.43.

The average service for all 10 Justices appointed in the modern era who have ended service is 25.46 years.

Meaning that with 7 Justices appointed over 28 years, each expected to service an average in the above ballpark, you can expect the Supreme Court to stay relatively close to 7 Justices most of the time.

1 Like
3

I think we can make the SCOTUS less political by changing the lifetime tenure provision. If Justices were required to rotate out of the court, then there is less possibility of a justice “hanging on” until they get the Presidential/Senate combination they feel more aligned with for political reasons. If vacancies were to occur on a more regular basis it would be a more routine process.

I’m not so much in favor of an upper age limit though as it will then become the ploy to just nominate younger and younger individuals to be on the SCOTUS so they can be there longer. I’m more in favor of limiting the number of years of SCOTUS service.

So…

^

Amend the US Constitution concerning SCOTUS tenure. Then…

  1. The senior Justice with 20 years of service on the SCOTUS will face mandatory retirement the year following a Presidential election cycle and each subsequent year which does not contain a Presidential election cycle on June 30th. This will include Chief and Associate Justices. If a new Justice has not been confirmed by October 1st of the same year, then the Chief Justice shall have the discretion of reactivating a retired Justice in accordance with paragraph #2. A Chief Justice cannot face mandatory retirement with less than five years in that role, however the next senior Associate Justice with a minimum of 20 years of service will then be required to retire. Only one Justice per year may be mandatorily retired. If two or more Justices qualify in any year, only the senior is required to retire.

  2. In the event of death, incapacity, voluntary retirement prior to 20 years of service or vacancy, the Chief Justice can provide for temporary reinstatement of a retired Supreme Court Justice for a non-renewable period of one year or one term, whichever is greater. Once the period has expired, there is no extension. In the event of death or incapacity of the Chief Justice, the senior Associate Justice becomes the Chief Justice pending Senate consent of a new nominee. Requests for reinstatement must be made in the reverse order of retirement with the most recent retiree being solicited first. If that individual declines the request, the next most recent retiree is solicited. In the event there are no retired Justices available or none accept reinstatement, the court will revert to rules pertaining to an even number of Justices. The reinstatement of a temporary Justice ends when the incapacity or vacancy ends.

  3. The Senate is required to advise and consent on Presidential nominations to the Supreme Court, if vacancy has been created for any reason, after 120 days from the official date of nomination there has not been a confirmation vote made available to a quorum of Senators in the whole, then the nominee will be deemed consented to by the Senate and confirmed due to inaction.
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    Just my thoughts, these and $5.00 will get you a coffee at a Starbucks.
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    .WW

4

BTW - I actually like Safiels notation that the Chief Justice isn’t appointed, is just - well - the senior Justice on the court.

So if that ever happened my suggestion would have to be modified.

WW

5

Unfortunately, that is the problem with your proposal.

A chance of any Constitutional Amendment passing is close to zero.

One of the upsides of my proposal is that it can be done entirely legislatively.

No Constitutional Amendment required.

6

no, no, no, and ■■■■ no

7

Justices are appointed and confirmed by the political branches. You will never be able to regulate the political nature of the appointment out of the court.

1 Like
8

I agree with that statement. My legislation obviously can’t do that.

What it can do and what it would do if enacted, would be to regulate the process such as to introduce political CERTAINTY into the process.

Politicians and the public would be certain that, come the start of each new Presidential term, would come a new Supreme Court vacancy, to be filled by the President just elected and who has just taken office.

There would be no wondering if so an so is going to die near the end of a Presidential term or die during a recalcitrant Senate.

Both politicians and the public would know EXACTLY when vacancies would open and it would always be a freshly elected President, with freshly elected Senators, who would decide the issue.

Of course, there would be politics, but there would not be the clown show that has existed in recent years.

9

no, no, no and hell no

1 Like
10

Me too. :+1: