There are lots of different proposals out there for how Congress could seek to reform the Supreme Court. In general, they fall into three very different (albeit sometimes overlapping) categories.
I'm unsatisfied with this analysis as to the author's own position but appreciate the breakdown.
We should have more conversations about big questions. The author testified in front of the Presidential Supreme Court Commission along with others (Amy Howe, the SCOTUS reporter, did too). The commission was sneered at by many people (including those who respected people who testified or were part of it). They are partially to blame for it not being used for a bigger conversation.
My position is Republicans played a big part in stacking the Court & people like Prof. Vladeck are upset at what they are doing (when did the BIG problems start according to his book? in 2010? no).
But they think directly [in ways necessary for the "equal" position of the Supreme Court among the three branches etc.] dealing with the situation is too "partisan" and will harm the Court. So, they support modest reforms. Which are STILL deemed "partisan." The inspector general provision for the Supreme Court, for instance, where is Republican support today? Murkowski alone supported an ethical reform proposal.
The current majority, however, is not even willing to do little things like explain why they recused per the ethics guidelines. They are assumed to be likely to block certain other reforms, even from boxes 2 (to the degree we accept them as constitutional, this can be bad) or 3.
I welcome modest reforms as far as they go. Still, including to help push them, bigger reforms also should be pushed. And these are not just "partisan" (Republicans are calling even asking for subpoenas of Crow and Leo "partisan" -- so what does that even mean really?).
They are addressing unbalances and aiming for long term solutions. Which -- as has been for our whole history -- not some united thing. One side push many of them. They will be "partisan" in nature in that fashion.
I'm in full support of (slight) expansion of the court's mandatory docket. If memory serves, Justice Scalia thought that the court could do a hundred cases a year, and they're not even close. In particular, I would remove discretion as to capital cases (see https://simondodd.substack.com/p/the-machinery-of-death); if the government wants to kill someone, it is not unreasonable to demand that it should have to work very hard to do so. I would also seriously consider repealing AEDPA for the same reason.
The reform I would suggest is oversight by the People. I want federal judges to be subject to the voters, as Indiana does it. I want appointments to continue to be by the experts and the knowledgeable. However, periodically, I want the question of whether a judge shall be retained in their position to be automatically included in the national election for their districts. If a majority says "no", they're fired.
If that was on the ballot this fall for Thomas and Alito, what would be likely to happen? How about the highly partisan and unlegal 5th circuit judge?
That's the term limits that could fix things. We The People.
I'd also most like to see ethics reform with actual consequences, such as recusal required based on facts and not feelings and big fines for accepting monetary influence.
Judges are not politicians and judges are frequently called on to tell majorities that they can't have something the majority wants. For example, it would not have been a fillip to American constitutionalism if the justices who unanimously held that segregation was unconstitutional would have had to consider that they would likely lose a retention election. The federal model of appointment is right; the state models of elections and/or "merit panels" is wrong. The only appropriate modification is limiting duration in office, whether by Constitutional amendment (impossible in this climate) or by clever evasions such as putting more bite to senior status (dubious but doable).
I would suggest that reforms like term limits, as well as efforts to clarify and give stronger effect to things like recusal and disclosure rules, form another category, which overlaps with but isn't quite the same as your accountability category: efforts to shore up the separation between the Court and the political branches. These are reforms that aim to reduce the temptation and capacity of the Justices to act like "politicians in robes", as the phrase goes, and to regularize the process by which the Court's composition changes, with the overall goal of encouraging the other branches to treat judicial appointments more as a function of governance than a tool to implement some particular policy program.
As far as Supreme Court reform, it seems to me that both the most likely and the most effective reform is likely to come about as described by Finley Peter Dunne's Mr. Dooley: "Trade may or may not follow the flag, but it is certain that the Supreme Court follows the election results."
The Roberts Court has destroyed unions (Janus), the environment (two stays against the Sierra Club), contraception access (Hobby Lobby), the ballot, campaign-finance restrictions, abortion, gun safety, the Establishment Clause, Miranda (now a mere prophylactic), then the ballot, again. Two Justices are openly on the take from guys like Paul Singer, extorting Puerto Rico for debt repayment (purchased for pennies on the dollar) after a hurricane it could not prevent. Roe was overurned by America's Top Hypocrite, the Starr Inquisitor himself. Gorsuch and ACB, uninvited gate-crashers, nakedly mock the integrity of the nomination process. John Roberts is further on the hook for the illegal invasion of Iraq that he made possible, a catastrophe made worse by his denial, while sitting on the DCCircuit, of habeas corpus for Guantanamo detainees. There is only one solution to the racist criminality of BvG's John Roberts: Impeach.
I am not necessarily at the "irreparably damaged" phase.
But, "too late" is a valid reply in a large sense. What is the deal here? One side gets to do things, we are all concerned about it, but actually firmly responding is "too partisan"?
We come off as suckers. And, as I said, don't think mild reforms won't be deemed "partisan" if we are reasonable. How is just subpoenaing Crow and Leo worthy of the hysteria Republicans on the Senate Judiciary Committee provided?
I'm unsatisfied with this analysis as to the author's own position but appreciate the breakdown.
We should have more conversations about big questions. The author testified in front of the Presidential Supreme Court Commission along with others (Amy Howe, the SCOTUS reporter, did too). The commission was sneered at by many people (including those who respected people who testified or were part of it). They are partially to blame for it not being used for a bigger conversation.
My position is Republicans played a big part in stacking the Court & people like Prof. Vladeck are upset at what they are doing (when did the BIG problems start according to his book? in 2010? no).
But they think directly [in ways necessary for the "equal" position of the Supreme Court among the three branches etc.] dealing with the situation is too "partisan" and will harm the Court. So, they support modest reforms. Which are STILL deemed "partisan." The inspector general provision for the Supreme Court, for instance, where is Republican support today? Murkowski alone supported an ethical reform proposal.
The current majority, however, is not even willing to do little things like explain why they recused per the ethics guidelines. They are assumed to be likely to block certain other reforms, even from boxes 2 (to the degree we accept them as constitutional, this can be bad) or 3.
I welcome modest reforms as far as they go. Still, including to help push them, bigger reforms also should be pushed. And these are not just "partisan" (Republicans are calling even asking for subpoenas of Crow and Leo "partisan" -- so what does that even mean really?).
They are addressing unbalances and aiming for long term solutions. Which -- as has been for our whole history -- not some united thing. One side push many of them. They will be "partisan" in nature in that fashion.
I'm in full support of (slight) expansion of the court's mandatory docket. If memory serves, Justice Scalia thought that the court could do a hundred cases a year, and they're not even close. In particular, I would remove discretion as to capital cases (see https://simondodd.substack.com/p/the-machinery-of-death); if the government wants to kill someone, it is not unreasonable to demand that it should have to work very hard to do so. I would also seriously consider repealing AEDPA for the same reason.
Steve, please expand on your wish for “more Congressional engagement on day to day Court matters”. What are your ideas about that?
Thanks for keeping the topic of Court reform front and center. It’s needed.
The reform I would suggest is oversight by the People. I want federal judges to be subject to the voters, as Indiana does it. I want appointments to continue to be by the experts and the knowledgeable. However, periodically, I want the question of whether a judge shall be retained in their position to be automatically included in the national election for their districts. If a majority says "no", they're fired.
If that was on the ballot this fall for Thomas and Alito, what would be likely to happen? How about the highly partisan and unlegal 5th circuit judge?
That's the term limits that could fix things. We The People.
I'd also most like to see ethics reform with actual consequences, such as recusal required based on facts and not feelings and big fines for accepting monetary influence.
From one Hoosier to another: Absolutely not.
Why not?
Judges are not politicians and judges are frequently called on to tell majorities that they can't have something the majority wants. For example, it would not have been a fillip to American constitutionalism if the justices who unanimously held that segregation was unconstitutional would have had to consider that they would likely lose a retention election. The federal model of appointment is right; the state models of elections and/or "merit panels" is wrong. The only appropriate modification is limiting duration in office, whether by Constitutional amendment (impossible in this climate) or by clever evasions such as putting more bite to senior status (dubious but doable).
I would suggest that reforms like term limits, as well as efforts to clarify and give stronger effect to things like recusal and disclosure rules, form another category, which overlaps with but isn't quite the same as your accountability category: efforts to shore up the separation between the Court and the political branches. These are reforms that aim to reduce the temptation and capacity of the Justices to act like "politicians in robes", as the phrase goes, and to regularize the process by which the Court's composition changes, with the overall goal of encouraging the other branches to treat judicial appointments more as a function of governance than a tool to implement some particular policy program.
As far as Supreme Court reform, it seems to me that both the most likely and the most effective reform is likely to come about as described by Finley Peter Dunne's Mr. Dooley: "Trade may or may not follow the flag, but it is certain that the Supreme Court follows the election results."
The Roberts Court has destroyed unions (Janus), the environment (two stays against the Sierra Club), contraception access (Hobby Lobby), the ballot, campaign-finance restrictions, abortion, gun safety, the Establishment Clause, Miranda (now a mere prophylactic), then the ballot, again. Two Justices are openly on the take from guys like Paul Singer, extorting Puerto Rico for debt repayment (purchased for pennies on the dollar) after a hurricane it could not prevent. Roe was overurned by America's Top Hypocrite, the Starr Inquisitor himself. Gorsuch and ACB, uninvited gate-crashers, nakedly mock the integrity of the nomination process. John Roberts is further on the hook for the illegal invasion of Iraq that he made possible, a catastrophe made worse by his denial, while sitting on the DCCircuit, of habeas corpus for Guantanamo detainees. There is only one solution to the racist criminality of BvG's John Roberts: Impeach.
Curvum fi.
I am not necessarily at the "irreparably damaged" phase.
But, "too late" is a valid reply in a large sense. What is the deal here? One side gets to do things, we are all concerned about it, but actually firmly responding is "too partisan"?
We come off as suckers. And, as I said, don't think mild reforms won't be deemed "partisan" if we are reasonable. How is just subpoenaing Crow and Leo worthy of the hysteria Republicans on the Senate Judiciary Committee provided?