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- cross-posted to:
- [email protected]
President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.
He is also weighing whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders, the people said, speaking on the condition of anonymity to discuss private deliberations.
The announcement would mark a major shift for Biden, a former chair of the Senate Judiciary Committee, who has long resisted calls to reform the high court. The potential changes come in response to growing outrage among his supporters about recent ethics scandals surrounding Justice Clarence Thomas and decisions by the new court majority that have changed legal precedent on issues including abortion and federal regulatory powers.
I highly doubt I’m the first person to think of removing the fixed size of the court, but I haven’t seen a similar approach before or since.
My inspiration was the rampant politicization over Scalia’s seat at the beginning of the 2016 election year, and RBG’s untimely death shortly before the 2020 election. These vacancies from unexpected deaths should not have had the outsized political effects that they did.
I also wanted to target the longstanding practice of strategic resignation. I think it is a form of collusion, conspiracy, and a violation of the separation of powers, with no practical means of prohibition or avoidance. You can’t simply tell a justice they can’t quit the court, even when doing so is obviously motivated by political expediency.
With this approach, a popular president with a strong mandate will have a long-term influence on the court. They will be able to name a fairly young jurist, who will serve and influence for decades. A divisive president who doesn’t have the support of the Senate will only be able to appoint from the most senior candidates on the circuit courts, who aren’t likely to last more than a few years. The more popular the president, the greater their long-term influence on the court.
This is a really interesting approach, but do you see no problem with having that many justices? Would you keep the majority rules approach? Wouldn’t this more likely lead to collations within the justices?
I like the idea, but I’m not sure that many justices would make the bench better.
I don’t foresee much of a problem, no. Remember, the court size is going to increase no faster than one justice every two years. The court will slowly phase in those changes they need to make to adapt to its slow embiggination.
I imagine that we will see more recusals and abstentions under this system. Not every justice will choose to hear every case, or render/join an opinion on every case they do hear.
That’s interesting. I wonder if there’s a way to codify it that only n justices can proceed over a single case. That also has the added bonus of allowing the court to hear multiple cases at the same time, reducing the backlog.
Like the justices are picked through lottery or something like that.
I imagine that some justices will simply abstain from involving themselves in certain cases they don’t find particularly important. For example, the court might vote 8-7 in favor of granting certiorari in a given case. Several of the justices who voted against certiorari might further elect not to participate in the case at all.
That definitely doesn’t fix the coalitions issue though. Any meaningful case is going to have every judge want to be involved and get split right down partisan lines (as much as I hate to say that, it’s been a proven fact over the past at least 8 years or so).
I kind of like the idea where they don’t get to pick their workload. It feels like they’ll have less opportunities to game the system.
I am far less concerned about the justices gaming the system than I am about the appellants. With less than the full court assigned to a case, the appellants are going to go shopping. Their backers will keep bringing case after case, and then withdrawing their appeal if they don’t draw a favorable panel.
Bringing back a 2 week old comment but man were you scarily close to what Biden is proposing!