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this post was submitted on 27 Sep 2024
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Eliminate the fixed size of the court entirely. We don't need to define 9 or 15 people.
Every presidential term, the president appoints two new candidates, 9-15 months after the presidential election, and 9-15 months after the midterms. We do not fill any vacated seats.
That resolves the problems with multiple seats unexpectedly swinging on a small court, and limits the effects a single president can have on the court. Yes, the numerical swings can be as large, but the percentage swings will not be; the court will likely fluctuate between 15-20 justices.
Now to fix the Senate playing games...
First, we establish a line of succession with the circuit courts. The chief judges of the circuits, in line of seniority, then every other active judge. Every case before SCOTUS requires at least 6 justices to hear the case. If the court falls below 6, the next judge in line is automatically elevated to the court. If the court is larger than 6, but due to recusals or abstentions, fewer than 6 are able to hear the case, the next judges in line are automatically, but temporarily elevated to hear that case. Only when we have exhausted all judges from the district courts does the president get additional, temporary appointments.
Any appointment to the circuit court requires senate confirmation. After we enact this, any judge confirmed to a district court could (eventually) find themselves on the court. Their confirmation thus includes the (remote) possibility that they will be elevated to the court. So any circuit court appointment after this goes into effect also serves as a SCOTUS confirmation.
When it comes time for the president to appoint a candidate to SCOTUS, anyone who has previously been confirmed to the line of succession can be immediately elevated to the court, without needing additional confirmation.
Where the president and Senate are sympatico, the president can choose anyone they want. When they are at odds, the president still has a list of pre-approved candidates the Senate can't block.
I think it would even be better to allow the president to appoint two new justices and the two most senior judges have to step down. It would make the turn over high enough that we don't end up with corrupt trash like we have now for decades. Not until death the way it is now.
What happens when three justices retire in one term, or the senior justice dies right before being forced out? Do we still force out two more justices? We obviously can't shrink the court each time, so either we don't force a justice out when we normally should, or we give the president an extra appointment. Neither seems like a good option.
Why not just rotate the judges out periodically from court below?
What I've described could (mostly) be enacted without a constitutional amendment. The basic idea of removing the fixed size and having the president appoint one candidate every two years iswell within Congress's authority to enact.
Some of the minutiae, such as the line of succession, or circuit court judges temporarily serving on the supreme court might not currently be constitutional.
I'm pretty sure a situation like that could be easily remedied. After all what would happen if three of them dropped dead right now. The president would nominate three new ones. As far as options go it sounds great. My suggestion would work better than any other solution out there and guarantee a slow but steady turn over in the court.
Ok, before I answer that question, I'm going to rewind a few years. It's 2019 again. Trump is in office. But this time, three justices have just died. I'm ignoring actual SCOTUS deaths and retirements, and just assuming the three hypothetical deaths/retirements, and any statutory appointment required by our systems. I'm doing this because I'm assuming if you are pissed about the state of the court today, you're probably pissed at the person primarily responsible for it's current makeup.
Under the status quo system, Trump gets to make three more appointments. There was no statutory appointment prior to this, so he only gets to appoint three justices. Trump has appointed 33% of the court.
Under your system, (as I understand it), the most senior justice in 2017 was forced out and replaced. In 2019, the next most senior justice was forced out and replaced. Now, if your system follows the same rules as the status quo system, Trump gets to make three more appointments to replace the dead justices. 5 of the 9 justices have been appointed by Trump, and the first of them isn't forced out until 10 years later. Trump has appointed 55.5% of the court.
Under the system I described, Trump appoints two candidates. The size of the court increases from 9 to 11. Trump has appointed 18% of the court. Then, three candidates die. The court falls to 8, but Trump doesn't get to fill any more seats. Trump's appointments now account for 25% of the court.
As I have demonstrated above, your solution does not "guarantee" slow turnover. In the scenario discussed, turnover was rapidly accelerated relative to the status quo. The president was able to completely install a brand new majority due to the effects of your forced retirement.
Consider another scenario: the court is 5/4 conservative/liberal in 2016, and two of the liberals are senior. Trump replaces them. The court is now 7/2. Now, the original 5 conservatives also retire. Under existing rules, Trump gets to replace them as well. The court is still 7/2, and the liberals are now senior.
Biden is elected in 2020. He gets to replace the two liberals. The court is still 7/2 conservative, but now the liberals are junior. Harris wins in 2024. She finally gets to replace a Trump appointee, but the court is still 5/4 conservative in 2028. The court doesn't shift back to liberal until 2030, and then only if Harris wins re-election in 2028.
As you have described it thus far, your system is far worse than what we have now in terms of "guaranteeing slow but steady" change.
My solution actually does achieve such change. The longer the justices stay on the court, the less power any one of them holds, as they continue to hold one vote among a growing cohort. At the same time, however, the president is regularly inserting new voters into that cohort.
You wrote all of that just to prove me right.
If that is what you managed to glean from it, I'm afraid your reading comprehension skills are sorely lacking.
That would require a Constitutional amendment. That's where the justices' term length is defined.
And, like term limits, it would have no effect on corruption, though it would reduce institutional knowledge retention. More power to the Heritage Society? That's how you get it.
Why don't we just take away their exclusive right to interpret the constitution. They can interpret laws but they have no claim to be the sole proprietors of the document that all branches have a stake in.
That would require a constitutional amendment, and with a change that radical, it would pretty much require a new constitution.
It wouldn't. They gained that power by saying they have it, but it isn't specifically granted. We just continue to assume they're correct, and that they're the ones who get to decide if they're correct, but we don't have to.
Judicial Review is the term to look for if you want to learn more.
Article III, Sections 1 and 2 grant them jurisdiction of all cases that arise under the constitution. That seems pretty straightforward to me.
SCOTUS doesn't get to act where another government entity has provided an interpretation of the constitution unless someone disagrees with that entity's interpretation. That disagreement is a "case", and Article III is very clear that SCOTUS and the rest of the judicial branch is empowered to decide all "cases".
Yes, the Constitution distinguishes "appellate jurisdiction" and "original jurisdiction." Some cases go straight to the Supremes: for example, disputes between states. That's original jurisdiction. They try those cases. But appellate jurisdiction is specifically mentioned as something that Congress can regulate, though Congress never has, just as they have never passed legislation to allow enforcement of the Emoluments Clause.
Here's Section 2, boldface is my own:
That's very much not "all cases." There is a very clear qualification added to that. It's an instance of checks and balances that have never been exercised, since the Supreme Court has only done a small number of power grabs over the year-- the biggest being that, absent Congressional action, they granted themselves the power of judicial review, which is a distinct power from appellate jurisdiction. And that has been something that, through inertia, spinelssness or fear of opening cans of worms, Congress has never addressed, despite having the power to do so.
Judicial review stems from the very first line of section 2, discussing "all cases arising under this constitution". The part you cited says that Congress can determine that certain cases must be first heard in certain courts, such as federal district courts, or state courts. Only a few types of cases are first heard in SCOTUS.
Nothing about that prohibits courts at any level from making a ruling on constitutional grounds.
Judicial review is just the idea that the courts are empowered to declare legislation to be in conflict with the constitution. Appellate and original jurisdiction are irrelevant to judicial review. Judicial review is not limited to SCOTUS. Every court has the power to determine whether a law under their jurisdiction follows the constitution, but only if a claimant presents a case.
If it was straightforward there wouldn't be several hundred years of debate over it. I'm glad you're so intelligent that you can see past all the issues others have noticed, but no one else is that lucky. My advice for you is to get a degree in constitutional law (it should be easy for you) and solve this issue once and for all for all of us. It'd save us a lot of time.
It would save a lot of time if you'd get around to demonstrating a flaw in my understanding, or actually offering the explanation and clarification I'm requesting.
I have clearly explained why I think SCOTUS is constitutionally empowered to rule on constitutional issues. Show me the flaw in my comprehension.
The other person commenting linked this, which you subsequently ignored and asked for more evidence (sea-lioning). If you cared to actually engage, maybe I would. Instead you're ignoring what others say because you only want to read what you have to say.
Edit: I want to add, there's plenty of scholars who hold the same opinion as you, and I potentially do too. However, I recognize that many people more knowledgeable on the subject than myself do not agree with that stance. If this is true then it's clearly not particularly clearly defined.
No. I read it. I found no examples mentioned that contradicted the viewpoint I have presented.
For example:
That is perfectly consistent with my viewpoint, and contradicts the other person's argument that the court oversteps its bounds.
The court's function is to resolve "cases". Where two parties come to a disagreement, the court is, indeed, the final arbiter of that disagreement. Where that disagreement is related to constitutionality, the court is requested and required to provide a ruling. That is their job.
Again, not a problem, until there is a conflict between the executive branch and someone else: where a case arises between the executive branch and another party, the court is specifically empowered to resolve that case. Until such a conflict arises, the executive branch is, indeed, empowered to interpret the constitution. But, once that "case" has arisen, Article III puts the ball in the courts.
That very ruling is an example of the court interpreting the constitution at the behest of the parties to a "case". The court would have no ability to respond to address that issue without the parties disagreeing on who was constitutionally empowered to determine what was "proper". If everyone has agreed that the Senate was charged with that duty, the courts don't get involved in the interpretation. If everyone agreed the president, or a magic eight ball was charged with that duty, the courts don't get involved because no case has arisen.
On and on, the essay repeatedly tried to show that there was some inherent problem with the judicial branch doing exactly what Article III empowered it to do: to hear cases. The essay doesn't seem to support the other person's initial claims about the court taking powers it wasn't assigned. But, despite repeated queries, I could get no further context for their claim other than an essay that doesnt support such a claim.
I still can't get you to challenge my own understanding, other than to point at the same essay that doesn't seem to support your position, nor can I get any information from you about what your position actually is.
Address some part of your claims that Article III doesn't mean what it says on the tin. Show me what you are talking about and how it differs from my own understanding.
Just a couple of questions. You aren't an expert in the field of constitutional law, correct? If not, do you presume you know more than experts do? If so, do you agree that not all your peers through history agree with your stance?
I'm not stating one opinion or the other. I'm not an expert, nor have I claimed to be. I'm pointing out that you keep implying there's no way someone can disagree. However, it has been a topic of disagreement of experts for literally hundreds of years. If it was clear this wouldn't be the case. You seem to imply that they're wrong for this. If you want to know the reasons, look for their arguments, not random Lemmy users. Again, Judicial Review is the term to search for. There's hundreds of years of debate for you to catch up on.
Judicial review begins where a person harmed by a law or executive order believes that the constitution does not convey to the government the power to enact such a law or order. They are in disagreement with the government. That disagreement is known in constitutional terms as an "case arisen under the constitution", which places it squarely within the jurisdiction of SCOTUS and the rest of the judicial branch. Judicial review is the act of hearing and ruling on that question. Any response, including ignoring the case entirely, requires the courts to interpret the meaning of the constitution.
What part of "judicial review" have I misrepresented? What part of my understanding of "judicial review" is in conflict with your understanding?
My disagreement isn't with the people you have declared experts: the historical figures cited by the essayist, and alluded to by you and the other person in this conversation.
My disagreement is with the essayist who has misrepresented their positions. I claim that their historical arguments do not support the modern, unnamed and unknown essayist. I make this claim, knowing that the "experts" agree that the various branches and entities within those branches should and do interpret the constitution as it applies to their functions.
I make this claim knowing the breadth of Article III Section 2. I know that the scope of SCOTUS function includes "all cases arising". The only circumstances under which the court can act are where there is a disagreement; a case. They cannot and do not interpret the constitution outside of a "case", but where a "case" exists, they are granted the power to decide it.
If the mayor serves you the contents of his septic tank and calls it "stew", the courts will not intervene in the slightest if you agree that it is a "stew". They have no power to interpret the meaning of "stew" until you suggest that the mayor's definition is wrong. When you formally ask whether fermented sewage constitutes a stew, you give the courts the authority to answer that question.
Likewise, if the mayor raises an army, throws you out of your house, and gives it to them to use as a dormitory, the courts don't care at all if you are satisfied with the mayor's decision and allow him to do it. But when you reject the Mayor's interpretation of the powers conveyed to him under the constitution, and you tell the courts you think he doesn't have the authority to make that interpretation, you trigger Article III and grant the courts the power to make their interpretation.
The fact that Section 2 plainly says that Congress can regulate how the Court exercises that appellate jurisdiction?
Are you suggesting that Congress has passed a law declaring someone other than the supreme court to be a final arbiter of the constitution?
Are you claiming that they even can?
If you're not making the former, your point is, at best, an interesting hypothetical. Like, "what would chairs look like if our knees bent the other way?". Interesting, but ultimately irrelevant.
Why? No where in the constitution does it say the Supreme Court has exclusive rights to interpret the constitution.
Please use the word "powers". The government does not have "rights".
The clauses you say don't exist are Sections 1 and 2 of Article III.
It's not a power outlined in the constitution. The Supreme Court assigned it themsleves as their right.
Ok, please explain to me what powers are conveyed, and to who, in Article III, Sections 1 and 2, because we clearly have wildly different understandings of their meaning.
https://constitution.congress.gov/browse/essay/intro.6-2-5/ALDE_00000034/
Oops, I'm not making this shit up. Darn.
Civil tongue, please.
It seems to me that any disagreement as to who should be interpreting the constitution would be a "[Case], in Law and Equity, arising under [the] Constitution, the Laws of the United States..."
Sections 1 and 2 do, indeed, empower someone to address such a case, such a disagreement: the "inferior courts" and the "Supreme court".
If you have no disagreement, you can let your HOA or the local parks and rec department interpret the constitution for you. It's only when you have a disagreement that anyone cares who has that power, and in such cases, Section 2 says that SCOTUS has jurisdiction to rule on that case.
I'm not saying the judicial branch has no stake. I'm just saying they have overreached and the power they been allowed needs to be hampered.
Ok, I am having great difficulty understanding what you're talking about. Can you name a government entity, and describe a scenario in which that entity should be considered the appropriate party to interpret some part of the constitution?
Barring that, can you demonstrate how they have overreached? A specific scenario, real or hypothetical, where SCOTUS claims, but should not have jurisdiction?
Barring that, can you describe what exactly should be done to "hamper" their powers?
Barring that, can you go back to Sections 1 and 2 and explain what they mean in your own words? I do not agree with the claims and conclusions of the anonymous author who wrote the essay you cited.
Frankly I don't care about your opinion. I provided you with fully cited source from a reputable website. All you have done is stamp your feet. There is no value in continuing this discussion.
Agreed.
If you're not going to answer any questions, or present any arguments, I'm not going to spend any more time trying to understand you.
Stop sea-lioning. You don't get to just ignore what someone provides you and ask for more proof. Fuck off.
I didn't ask for more proof. I asked for some sort of explanation as to what they were talking about.
My understanding comes from the "all cases arising under this constitution" clause. That strictly limits SCOTUS powers. Where the president decides the constitution makes a claim, that claim is assumed true unless there is a significant disagreement. That disagreement is what Article III refers to as a "case". Unless such a "case" arises against the president's interpretation, the president's interpretation is valid. Unless such a "case" arises against the FCC's interpretation, the FCC's interpretation is valid.
Where I disagree with the FCC's interpretation, or Congress disagrees with the President's, a "case" exists, and SCOTUS (and the inferior courts) are constitutionally empowered to resolve that "case".
If that isn't what they, or you, are talking about, my request for further information isn't "sea lioning", but a request to provide an explanation similar to what I have provided above. Show me the flaw in my understanding.
why don't we just appoint 6,000 life term judges? and then make every single person in America a senator on rotation, and select a president at random. and then ask Chad GPT how to solve the problem in Ukraine
Ooh, and let's give everyone a pony!