From "The Voter Update" radio show, hear Paul Carrington explain his four proposals for reforming the U.S. Supreme Court.
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Reforming the Supreme Court
Four proposals for improving the nation's highest court
By Paul Carrington
Published: May 10, 2009
DURHAM - Justice Ruth Bader Ginsburg recently hinted there might soon be an opening on the U.S. Supreme Court, setting off a flurry of speculation as to which justice might retire. As a veteran observer of the institution, I think we all should be more concerned by the fact that sitting justices are never obligated, or even encouraged, to retire, and continue to exercise great political power without regard for the disabilities of age.
The law governing our Supreme Court is in serious need of reform. The court no longer sits merely to decide cases, but has evolved into a "superlegislature." Justices regularly proclaim as constitutional law notions that have scant foundation in the text of our Constitution. And they interpret legislation to reflect their political preferences with little regard for the expressed intent of Congress.
Once nominated and confirmed, justices wield this large political power until they die or choose to leave office. In recent times, aging justices have tended to cling to power, at least until a president they approved of would choose their successors.
One reason justices are able to stay in office for decades is they have been empowered to make only those few decisions they choose to make. They now hear about 75 cases a year, compared to approximately 300 in 1925, when Congress gave them the power to choose their cases. They delegate much of their work of selecting cases to inexperienced law clerks and leave many important legal issues to lower courts not organized to resolve them. It has been suggested by another veteran observer that all justices deserve pink slips.
A very diverse group of 35 professional observers (of whom I am one) recently united in urging Congress and the Department of Justice to reconsider the law governing the court's operation. As a possible agenda for discussion, four precise law reforms were proposed, although the group was not unanimous in supporting any one.
First, justices should be subject to a process resembling that in place for dealing with incapacitated judges sitting in lower federal courts. If a designated panel of senior appellate judges discerns that a justice is disabled, he or she should be given the choice of retiring at full pay or facing a public hearing on the issue. Chief Justice Rehnquist, for example, should have been given that choice when he retained power despite a disabling illness.
Second, Congress should encourage or require justices to accept senior status and reduced power after a prolonged period of service, regardless of their physical and mental health. Our Constitution affirms only that justices shall serve "during good behavior." Congress can and should define this to include timely acceptance of a more limited role. This would allow the president and Congress to appoint new justices with greater regularity and diminish, at least marginally, popular concern about the politics of nominees.
Third, because the chief justice exerts much control over the administration of all federal courts, a power that has grown substantially in the past half century, Congress should limit the service of a justice as chief to seven years. That way, the performance of that executive office is subject to a measure of accountability to the president and Senate.
Fourth, Congress should limit the complete discretion of justices in choosing their tasks. Litigants seeking the Court's attention should have their petitions reviewed by a panel of veteran federal appellate judges who would certify 100 cases each year for the Court to decide. The justices and their young law clerks would remain free to choose additional cases. This would ensure that justices carry a fair workload, diminish the influence of their politics in choosing their own agenda and assure lower courts of better guidance on many diverse legal questions that justices now elect not to consider.
Justices can be expected to oppose any ideas for limiting their discretion, and it might seem untimely to raise these issues when the president and Congress are dealing with economic meltdown, two wars, and a critical need for health care reform. But there was never a time when judicial law reform was easy; it is, famously, "no sport for the short-winded."
Speculation on judicial retirements should not distract us from the reality that justices are holding office for too long and have acquired too much discretion and political power.