New commission on SCOTUS, and indispensable Senate reforms

© Ken Lund / Flickr → the Capitol Building in Washington, D.C. → CC BY-SA 2.0

View my older articles from October 15, 2020, to January 17, 2021, at cutt.ly/rousseau.

President Joe Biden issued an executive order on April 9 to create the Presidential Commission on the Supreme Court of the United States, which will oversee and analyze judicial reform in the nation’s highest court. It is seen as a response to Donald Trump quickly wrangling to confirm Amy Coney Barrett as an associate justice after the death — and the vacancy that followed — of Ruth Bader Ginsburg, eight days before the 2020 elections. Republicans had previously refused the nomination of Merrick Garland to the role of associate justice on the SCOTUS under Obama in 2016, citing ‘the American people should have a say in the Court’s direction’ by means of electing a president of either party, a statement very hastily repudiated four years later. This game needs to stop, and the new commission is finding ways to do just that.

Ways to reform the Supreme Court

Through this commission, Biden will look at and be notified of the possibilities, under his power, of reforming the Supreme Court. There are several ways that he could do this, which include increasing the number of justices, setting term limits or age limits, creating a ‘balanced bench’, or starting a ‘Supreme Court lottery’, among others.

This is the most common reform of the Supreme Court, especially since the number of SCOTUS judges is not fixed by the Constitution and is, therefore, able to be changed by a congressional bill. Before settling on nine judges in 1869 with the introduction of the Judiciary Act, the number of justices changed six times. Extending the number would allow for more opinion on the court, to put it plainly, whether partisan or not. This leads on to the next way to reform the SCOTUS.

A requirement for partisan balance on the Supreme Court would be welcomed during such a demoralizing time in political history where politicians are raging to use the Supreme Court as an advantageous ideological tool rather than letting it be independent as it was intended.

This plan, also known as the 5–5–5 Plan and forwarded by former Democratic presidential candidate Pete Buttigieg, would see the number of judges on the Supreme Court raised to fifteen: five Democrats, five Republicans, and five centrists or neutrals who don’t lean either side of the divide. The centrists would be decided by a unanimous or supermajority vote of the other partisan judges.

In an article on the constitutionality of this plan, the Take Care blog explains how the appointment system, under their proposal, would work:

Judges could be chosen by lists prepared by the Senate majority and minority leaders, rather than being required themselves maintain a particular party affiliation — thus enabling independents and third-party members a meaningful chance to participate. Indeed, at present, independents elected to the Senate choose to caucus with one party or the other. Alternatively, there are models that both presidents and Congress have accepted, by which the president picks judges from a predetermined list. For example, the District of Columbia Judicial Nomination Commission prepares a list of possible judges for the D.C. courts, and the president selects nominees from that list. A similar system could work for the Supreme Court, and so long as the nominating commission wasn’t required to choose only registered Republicans and Democrats, no one’s First Amendment rights would be violated.

The United Kingdom uses, albeit not a Balanced Bench-type plan, an independent commission that keeps a list of senior and high-ranking, legally well-educated judges to choose from, similar to what is suggested here. The choice, after deliberation, is sent to the Lord Chancellor to accept, completely reject, or send back for reconsideration. The latter two can only be used once each. This is the extent of politics in the appointment of a judge to the UKSC.

The Court and Tribunals Judiciary openly exercises its acknowledgment of the importance of judicial independence from politics and media.

Going one further, which would prove challenging but would be beneficial to the independence and functioning of the Supreme Court, would be to increase the bench to fifteen members, all of whom must rescind any partisanship and must be non-partisan. This plan, however, would probably not work due to the inherent bias that exists in the United States’ judicial system.

Term limits would limit the reign of Supreme Court justices to a set term of a number of years, as is suggested in the name of the concept; the most popular of the choices in how many years one should be limited to is eighteen years. Some say that this — usually in an over-the-top fashion — would restore the public’s faith in the system; I fail to see how, as the partisanship and wrangling are still completely in play. Acceptably, however, it does limit one person from becoming so dominant over the bench because of their ideology and personality, but I think that for this to be effective, a shorter term is needed.

Age limits are a different option, which is employed far more in other nations’ highest courts than term limits. An age limit would mean that a judge must resign once they turn, for example, 75, or 70 in other places. Canada and the United Kingdom — the latter, in which, only got a Supreme Court in 2009 — are examples of countries that utilize this judicial restraint.

There is a country that uses both term and age limits, and it could work well for SCOTUS in relieving political pressure: South Africa. The Constitutional Court allows a non-renewable term of 12 years or until the judge reaches 70, whichever is first. Being the length of three full presidential terms, this could be helpful to the tension because there is preparation for the end of a term, and it would also mean most presidents will be able to fill at least one seat on the bench. This, in turn, makes it less of a race and thereby releases some pressure on the legislature versus the judiciary.

From the same two people who discussed in length the constitutionality of the Balanced Bench — Daniel Epps and Ganesh Sitaraman — comes another proposal for re-legitimizing the SCOTUS and stripping it of as much partisanship as possible (a good thing, in this day-and-age).

Epps, on the subject of the Supreme Court in an interview with Politico, states,

There is a very serious problem with letting the court decide contentious social issues in a world where the justices themselves seem to be increasingly likely to be appointed by presidents who didn’t win the popular vote.

The ‘lottery’ involves making all lower federal appellate court judges — of which there are, according to Wikipedia, 179 — into Supreme Court judges. They are picked at random to serve on the Supreme Court for a couple of weeks before being demoted back to appellate court standard, therefore there is little argument over one ideology having the majority, or one person expected to upset the result, petty arguments like this and that and et cetera.

Still, there is a major flaw. Federal appellate court judges are picked by the President and confirmed by the Senate, which means that there is still a hell-of-a-lot of partisanship occurring, as these judges are still in some cases politically motivated in their dissents. If all these judges are serving in the Supreme Court is, for example, two weeks, that means that someone appointed as an appellate judge with a far-right or far-left ‘agenda’, within the space of half a year (maybe less), will be on the highest court making a profoundly diverging opinion on what possibly could be a serious sociopolitical matter like Roe v. Wade. This is still not good for the political problems that encircle SCOTUS today.

If the Supreme Court is to become truly independent, a mix of all of these reforms, plus others not mentioned like lessening the Court’s jurisdiction in cases, is necessary to root out the politics.

Senate reform is arguably more important

The legislative system of the U.S. has anything but checks and balances, I’ve observed. The Senate nowadays has literally zero function in keeping the House of Representatives in balance, as it has over the years become its own super-political decision-making chamber rather than acting as the senior observer of the House’s proceedings. Additionally, the Senate is filled with career politicians — exempli gratia, Joe Biden — and for-profit business executives, such as Rick Scott, rather than topic experts, professors, experts, and such.

An example of such people includes John Bird, Baron Bird. He is a life peer in the House of Lords, and focusses his parliamentary career on homelessness, as he is the co-founder of ‘The Big Issue’, a magazine created to be sold by street vendors who are homeless or vulnerably housed. He was the first person with personal experience of poverty to enter the Lords.

This dilemma of partisanship, endless dispute, and inevitable gridlock in the U.S. Senate gives me gratuitous respect for unelected upper houses like the Canadian Senate or the aforementioned House of Lords, usually seen as undemocratic because they’re unelected. Because of the way they’re run, the partisan agenda is minimal, and they focus on legality and constitutionality rather than making bias on the bill they’re reading. They know the House of Commons was elected to make the party-line arguments, so they largely stay out of it unless the bill is particularly reprehensible.

There are a few massive ways to transform the political importance of the Senate into something of a more harmonious and respectful chamber, most of them concerning severely limiting its powers, and some concerning composition and electability.

The U.S. Senate and U.K. House of Lords have many differences splitting them apart, and one of them is what they can do with bills that are passed through their respective lower houses.

In the UK, the House of Lords cannot refuse — and must read — any bills that pass the House of Commons. In the US, what is read on the floor of the Senate after passing the House is decided by chamber leaders, which is very undemocratic as it puts some of the most important bills (voting rights, constitutional reform) in the hands of one person; when the House is led by one party and the Senate by the other, the gridlock is practically endless. Kyrsten Sinema and Joe Manchin don’t help this problem (angry face emoji).

The better way to explore this is to state that the House of Lords scrutinizes bills but does not make decisions that can end the bill. When one fails to pass a vote in the Lords, it simply goes back to the Commons, who can additionally sometimes override vetoes of legislation. This back-and-forth is famously named “parliamentary ping-pong” for its quick serve-and-return resemblance.

The Senate, therefore in my belief, should be reformed in the same way and should not be able to reject bills or refuse to have them visit the floor.

In addition, the Senate must be forced to hear candidates for any sort of office that needs nomination — *cough*, Supreme Court, *cough* — and must not be allowed to make a sky-high barrier as they did with Merrick Garland during the Obama administration.

The introduction of crossbench senators could aid in the fight to regain control of partisan politics in the Senate. These are politicians that don’t conform to either party — Republican or Democrat — and could swing either way depending on the issue raised. This could, potentially and finally, bring the independent views, solely on legality and constitutionality, into the Senate as opposed to ideology. For example, their only question would be “Is this bill constitutional?” rather than “Does this bill fit the party’s beliefs?” and they would vote either way depending on the answer, even if they don’t personally or morally agree. These crossbenchers could be independents, centrists, constitutional or other experts, former judges, etc.

Apportionment is the biggest and most popularly talked-about issue when it comes to the Senate. Each state receives two Senators regardless of population, which means that about 70x more voting power is vested in the smallest state, Wyoming, than the nation’s biggest, California.

Proportional apportionment, meaning the number of Senators would represent the state’s total population in relation to the national population, would make the chamber fairer — the larger the population, the larger number of senators that state receives. The Electoral College already works like this and is a pretty good system to go off when it comes to looking at apportionment.

If proportional apportionment is unfeasible for you, this one might be a bit lighter. Currently, one senator could represent 250,000 in a small state and 15,000,000 in a big state. To give more representation without having to implement apportionment, increasing the number of Senators each state gets — currently sitting at two — would increase representation and also means that the chance for 50–50 gridlock or creating “deciding senators” (like Manchin, Sinema who are the two deciding people in whether a bill passes) is diminished or removed outright. Increasing the senator-per-state count to, say, 4 or 5, would give a larger majority to either party and means that the gridlock is at least avoidable. Figuratively, the intruding object has been pushed to be somewhere half in the emergency lane, half in the slow lane, rather than smack-bang in the middle of the fast lane where the chance of hitting it head-on might as well be 100%.

The problem with this and the other Senate proposals, however, is that they require a constitutional amendment to be implemented, as it is 1913’s Amendment XVII (17) that requires two senators be elected from each state. Constitutional amendments are inherently, and rightfully so, tricky, and these reforms probably ain’t that popular, especially if it would gain one party leverage over the other in the Senate.

My conclusion is that I am pleased that Biden has created the Presidential Commission, although I feel it will only analyze the two main ways of reform — term limits and court-packing — and will disregard the others. Also, it may be very difficult for him to get it through Congress, especially if he tries to get through his reforms after the 2022 midterms, where he risks losing both the Senate and the House of Representatives. Furthermore, the Senate proposals from me, experts, and politicians are even more difficult to pass because they require constitutional approval, which taps into state legislatures. At the moment, there are more Republican-headed state legislatures than Democrats, and that is unlikely to change anywhere in the near future.

  1. ‘Executive Order on the establishment of the Presidential Commission on the Supreme Court of the United States’White House
  2. ‘Group to study more justices, term limits for Supreme Court’ Lemire, Jonathan; Gresko, Jessica; Associated Press
  3. ‘Republicans refuse to budge following Garland confirmation to Supreme Court’ Demirjian, Karoun; The Washington Post
  4. ‘(Chapter XXII) An Act to amend the judicial system of the United States’ Library of Congress
  5. ‘Inside Pete Buttigieg’s plan to overhaul the Supreme Court’ Lederman, Josh; NBC News
  6. ‘The constitutionality of the 5–5–5 Supreme Court plan’ Epps, Daniel; Sitaraman, Ganesh; Take Care Blog
  7. ‘Britain’s brilliant method of picking Supreme Court justices, explained’ Millihiser, Ian; Vox.com
  8. ‘Independence’ UK Courts and Tribunals Judiciary
  9. ‘Bias and Judging’ Harris, Allison; Sen, Maya; Harvard University
  10. ‘‘It’s a crazy way to run a country’: how to reform the Supreme Court’ Stanton, Zach; Politico
  11. ‘Constitutional Court of South Africa # Appointment procedure and tenure’Wikipedia
  12. ‘List of current United States circuit judges’ Wikipedia
  13. ‘Who is president Joe Biden? The life and career of the man who dared to take on Donald Trump’ Davis, Barney; Evening Standard
  14. (Cache version) ‘Gov. Rick Scott took responsibility? No, he took $300 million’ Schultz, Randy; Sun Sentinel
  15. ‘Big Issue founder talks about homelessness and the House of Lords’ Troy-Donovan, Alice; Financial Times (FT)
  16. ‘How the Senate gives Wyoming 70 times more clout than California’Mihm, Stephen; Kansas City Star
  17. ‘Seventeenth Amendment’ Duignan, Brian; Britannica

A British teen, social left-winger and economically uneducated capitalist (that's why I don't talk about 💰 much) just try'na fit in to the political landscape.

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