It’s Time to Reform the Supreme Court — Here Are Five Ways to Do It

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The Supreme Court Building at night. (Image: Wikimedia Commons/ Slowking)

The Supreme Court Building at night. (Image: Wikimedia Commons/ Slowking)

The just-completed Supreme Court term was filled with deeply disturbing decisions. In Plumhoff v. Rickard, the Court held that police can shoot at a car in a high speed chase to get it to stop — and continue to shoot until it stops — even when the basis for initially stopping the car was no more than a burnt out headlight. In McCutcheon v. Federal Election Commission, the Court struck down limits on the total amount that a person can contribute to candidates for federal office or political parties over a two-year period. In McCullen v. Coakley, the Court declared a Massachusetts law creating a 35-foot buffer zone around reproductive health care facilities unconstitutional, thus leaving women seeking care without adequate protection against harassment and putting in jeopardy laws creating buffer zones around military funerals, cemeteries, and places of worship. In Town of Greece v. Galloway, the Court ruled that it is constitutional for a town board to have Christian clergy recite explicitly Christian prayers before its meetings. And in Burwell v. Hobby Lobby, the Court held for the first time that for-profit companies have a right to the free exercise of religion and may use it to deny women insurance coverage for contraceptives.

But this term was not an aberration. In a forthcoming book, The Case Against the Supreme Court (to be published by Viking on September 25), I argue that throughout American history, the Supreme Court has largely failed at its most important tasks of enforcing the Constitution and protecting the rights of minorities. The Supreme Court’s decisions about race – aggressively enforcing the rights of slaveholders, approving “separate but equal” and Jim Crow laws for 58 years, most recently striking down a key provision of the Voting Rights Act of 1965 – have made society worse. Throughout American history, the Court has failed to enforce the Constitution in times of crisis, allowing violations of basic rights without making the country any safer. And the Court, especially today, has consistently sided with the interests of business at the expense of workers, unions, and consumers. 

Is the Supreme Court Out of Order?

In the last chapter of the book, I ask how the Court might be reformed to make it more likely to succeed at its most important tasks in the future. I know of no single reform that could have prevented all of the failures that I detail in the book. The Court is a human institution and like any other human institution it will have successes and failures. But I can identify at least five reforms, some large and some small, that would change the Court significantly for the better.

1. Clarify the role of the Supreme Court

I believe that many of the Court’s failures stem from the lack of a clear articulation and recognition of the proper role of the Court. The justices, individually and collectively, should articulate and embrace that the most important role of the Supreme Court is to enforce the Constitution against the will of the majority. The Court should recognize that the two preeminent purposes of the Court are to protect the rights of minorities that cannot rely on the political process and to uphold the Constitution in the face of repressive desires of political majorities.

2. Establish merit-based selection of justices (and federal judges)

There is nothing in the United States Constitution that prevents the President from creating a panel for merit-based selection of individuals to fill judicial vacancies on the Supreme Court and the federal courts and then promising to pick an individual from among the names forwarded to him. President Jimmy Carter did exactly this for federal court of appeals vacancies – he never got to select a justice for the Supreme Court – and the results were stunning.

Each panel should be ideologically diverse, including Democrats and Republicans, lawyers and non-lawyers. The role of the panel should be to present the President the names of at least two of the most qualified individuals to consider for each vacancy. And the President should promise to will pick the nominees from this list.

Given that a nominee’s judicial philosophy will matter significantly in how he or she decides cases, the Senate should insist, as a condition of confirmation, that the nominee answer detailed questions about his or her views on important constitutional questions.

3. Change the confirmation process

It is time to create a more meaningful confirmation process. It is now customary that at their confirmation hearings, nominees refuse to answer questions about their views on any issues that might come before them. Their reticence only makes sense, though, if their views don’t matter. Senators have come to respect this position.

I believe this is wrong. It is appropriate for the President and the Senate to ask nominees about their views on key constitutional issues, though not how they would vote in specific cases. That obviously would depend on the record of the case, the briefs, the arguments, and the deliberations. For example, a nominee can be asked whether he or she believes that the Constitution protects a woman’s right to have an abortion or more generally, whether the Constitution includes a right to privacy.

The confirmation process is the most important check on an unelected judiciary. Given that a nominee’s judicial philosophy will matter significantly in how he or she decides cases, the Senate should insist, as a condition of confirmation, that the nominee answer detailed questions about his or her views on important constitutional questions.

4. Impose term limits for justices and regularized vacancies

Increasingly, I am asked, by lawyers and non-lawyers, whether there should be term limits for Supreme Court justices. The idea is that each justice would be appointed for an 18-year, non-renewable term. A vacancy thus would occur every two years. Vacancies that occur through resignation or death would be filled by appointing someone to serve the unfinished part of the term.

There are many virtues to this approach. Life expectancy is dramatically longer today than it was when the Constitution was written in 1787. The result is that Supreme Court justices are serving ever longer. From 1789 until 1970, justices served an average of 15 years. From 1970 until early 2005, the average tenure expanded to almost 26 years. The four justices leaving since then had served an average of 28 years.

William Rehnquist, who died in 2005, was appointed by Richard Nixon in 1971. John Paul Stevens, who retired in 2010, was appointed by Gerald Ford in 1975.

Several steps should be taken to help ensure that there is both the public perception and reality of a Court complying with the highest possible ethical standards.

Clarence Thomas was 43 when he was appointed to the Court and John Roberts and Elena Kagan were each 50 when they were appointed. If these justices serve until they are 90 – the age at which Justice Stevens retired – Thomas will have been a justice for 47 years and Roberts and Kagan each for 40 years. A person should not exercise that much power for such a long time. Term limits would also make it less likely that there would be a Court that is dominated by views that are far out of step with society’s needs, as occurred during the 1920s and 1930s.

5. Mandate strong ethics rules and recusals of Supreme Court Justices

With rare exceptions, one of the Supreme Court’s greatest strengths and virtues has been the impeccable ethics of its justices. Even rumors of ethical transgressions by justices have been few and far between. But there have been some troubling allegations in recent years.

Several steps should be taken to help ensure that there is both the public perception and reality of a Court complying with the highest possible ethical standards. First, the same standards that are applied to lower federal court judges should be applied to Supreme Court justices. Second, no longer should it be left to each justice to decide for him or herself whether to participate or be recused in a case. Either the other justices, or a panel of them — or even a panel of federal court of appeals judges — could be designated to rule on a recusal motion.

Finally, if a justice is disqualified from a case, a procedure should be devised whereby a retired justice (if one or more are alive), chosen at random, can participate as a justice instead.

These are just some of the reforms I propose. But together, I believe that they can create a Court that will do a much better job of enforcing the Constitution.

The views expressed in this post are the author’s alone, and presented here to offer a variety of perspectives to our readers.

Erwin Chemerinsky is Dean and Distinguished Professor of Law, and the Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law.
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  • Anonymous

    Chemerinsky wrote our Constitutional Law text book. He is a brilliant scholar and true expert in these matters. I think we should listen to him.

  • John Michael Hutton

    Never happened. Especially with composition of this court and the House. What we are seeing are justices imposing their political beliefs on the law at the expense of good law. This court is an abomination and has taken us back hundreds of years. Of course, that is exactly the definition of a conservative. They move backward and liberals move forward.

  • Rich@Can

    The Supreme Court in the United States has become politicized over time. Political views were never meant to be a part of protecting the constitution. I agree with some of the article solutions to prevent the infiltration of politics into it. Establish a merit based selection panel and impose term limits for justices.

  • ElC

    I think corruption plays a big part in how this court is favoring corporations. Although there are some limits on what they can accept while in office (although all expense paid trips to talk at conferences etc can buy a lot of goodwill) there’s no limit once they leave office, when the quid pro quo can really kick in.

    Then of course there’s what corporations can do for the offspring of friendly judges, like Eugene Scalia, who makes a bomb representing banksters trying to roll back Dodd-Frank

  • Anonymous

    Sadly the ideology of the current court majority and their rulings are making it much harder to return to the original intent of our government by flooding politics with money, making corporations “victims” and pretending “free speech” means anything they imagine. They are “disappearing” citizens and mucking up the voting process.

  • Anonymous

    In #1 I would say to “enforce the Constitution REGARDLESS of the will of the majority,” not “against.” Sometimes the majority is already on the side of justice. And I would be leery of #4. Term limits can be useful in appointed offices, but sometimes they force out truly sterling individuals. What I WOULD like to see, though, is a treatment of their tenure along the lines of faculty tenure: subject to termination FOR CLEARLY DEFINED and duly processed CAUSE. Yes, #5 would really help with that, since unethical behavior would certainly count as CAUSE.

  • zp

    I couldn’t agree with Dean Chemerinsky more. I was first exposed to his brilliance while studying for the CA bar in 2001. I have followed him since, and believe that he is among the forefront of legal analysts and teachers. I too have thought that the Supreme Court has been a failing and dangerous part of our American political structure for some time now. I sincerely hope that this book begins a process whereby some change can occur. I know it would be a herculean task to implement any of this, but here’s too hoping. Bravo, Dean Chemerinsky, for tackling the subject.

  • Jebby

    I think the definition of conservative is more those in favor of the status quo. A reactionary is one who want to return to the past. The 5 on the Court making most of the decisions are reactionaries. Well, 4 of them are anyway. You’re right on how far back they’d take us. Correction: are taking us.

  • fredd3

    Civics 101 – the Courts INTERPRET the Law/Constitution. Enforcement goes to the Executive Branch. Making laws goes to the Legislative Branch.

    More urgent than term limits for Justices is term limits for Senators/Congressmen. Eliminate career politicians!
    Confirmation should be based on what they HAVE DONE. They will not be bound after they are appointed by what they said during an interview.

  • Dan

    Term limits makes the problem of who’s writing the laws worse. Public funded elections and making gerrymandering illegal would work for the public good. Free air time for the politicians to debate their policies with out scrips would be for the public good and make democracy work if they believed in democracy.

  • Anonymous

    Wait 50-100 years. The liberals will be smiling and the conservative will be complaining that the Supreme Court needs modification.

  • Anonymous

    Most of them don’t believe in democracy but corporate theological fascism.

  • naomi dagen bloom

    Like all five–especially “Impose term limits for justices and regularized vacancies.”

  • http://wonderwheels.blogspot.com/ Gregory Wonderwheel

    As an attorney, I consider Mr. Chemerinsky to be one of the most respected constitutional lawyers alive. As for his first item, I think Earl Warren articulated the goal of the court very well: “I venture to express the hope that the Court’s decisions always will be controversial, because it is human nature for the dominant group in a nation to keep pressing for further domination, and unless the Court has the fiber to accord justice to the weakest member of society, regardless of the pressure brought upon it, we never can achieve our goal of ‘life, liberty and the pursuit of happiness’ for everyone.” Earl Warren, Chief Justice of the United States, on why the Supreme Court is subject to continuing attacks.From: The Memoirs of Earl Warren (1977) page 335.

    The 18-year one-time term limit makes great sense both to protect the Justices from political influence and also to give the court greater currency and diversity. There is just no excuse for having a court with 6 of the 9 justices being Roman Catholic and the other 3 Jewish. That is not in any way a reflection of our nation. Also, having a court where only 3 law schools are represented is outrageous.

    And the confirmation process as it stands now is a complete sham.

    Kudos to Mr. Chemerinsky for speaking out about the obvious problem the court now has with the great loss of its credibility.

  • charlotte shirley

    Sounds great! Push for all of it. Now or never, SCOTUS is f—-d up.

  • Anonymous

    The problem is nobody, and I mean NOBODY, wants the SC to be fair or rule on the strict tenants of the constitution. They want the court to rule “their” way; and when it doesn’t they get pissed and whine and complain. The court is, and probably always has been, very political. The great saving grace is the fact that we fairly often change the party in power. This keeps the balance of the court somewhat even over time.

  • Anonymous

    There are all kinds of ways to improve our government, and guess what! THEY WON’T HAPPEN. Term limits for congressmen. Bans on lobbying. Etc. Why? Because the fox is guarding the chickens.

  • Anonymous

    The problem with the confirmation process is not the process, it’s the ones confirming. Originally, the senate was selected by their respective state legislatures, not the popular vote. They thus represented the interest of the states who sent them. This made it much harder for them to be politically partisan. What we have now is essentially two versions of the House of Representatives and no one to represent the interests of the states. Now it is up to governors to petition Washington, something the Senate was supposed to do. And this is one major reason the court has become so politicized.

  • Anonymous

    I must have missed the memo where it’s all about you.

  • Anonymous

    The president does not have the authority to issue such an order, no matter how many phones and pens he has.

  • Anonymous

    Thankfully, we are not a democracy. We are a representative constitutional republic. The system was created the way it was specifically to thwart democracy, which is essentially two wolves and a lamb voting on what to have for supper. We are drifting away from our representative republic toward democracy, and we are starting to reap the consequences of it.

  • Anonymous

    Maybe it’s because as a culture we have moved so far to the left in 60 years that today’s republicans would have been democrats in 1960.

  • Anonymous

    3 co-equal branches. Ring a bell? Lemme guess. You vote?

  • Cory Rahn

    Yea exactly 3 branch each designed to check and balance the others. Glad you get the basics of the way our government is setup!

    By check and balance when one gets out place the others are there to put them back. Congress passed term limits on the President via an amendment to the constitution. So now we need either our corrupt worthless congress or the president to put a check on these antiquated judges whom are out of touch with reality.

  • Cory Rahn

    Sorry i miss spoke not a Presidential order, but legislation/ “a plan” much the same as Franklin Roosevelt did to try and increase the number of Justices in 1937.

  • Anonymous

    Term limits are not the answer. If someone is no longer capable, that’s one thing. Otherwise, the more experience the better when it comes to running a nation.

    I’d hoped Americans would wise up in 1984, 1988, 2000 and 2004. Instead, they elected Dumb, Dumber and Dumbest who appointed Justices so conservative that John Paul Stevens went from being a swing vote with conservative instincts to being the left-most Justice. For better or worse, this country has the Supreme Court it asked for–as it should be.

  • http://www.pbase.com/proletariatprincess proletariatprincess

    I wish .I could talk you down. I cannot because I agree wholeheartedly. And you and I are not alone in this conclusion. Some of us even believe it is part of the grand scheme to purge the redundant and unwanted people in this society.
    It almost makes me glad that I am in the twilight of my life and will not see the collapse of this Empire. Unless, of course, it happens sooner than later. I urge my children and grandchildren to emigrate as soon as they are able. The USA will pay a heavy price for the evil it has done in the world and at home. There will be little sympathy here or abroad for what is about to befall this once great country.

  • Dan

    If you read any history of our founders they referred to the country as a democracy many time in their dispatches. However there were those who wished for a monarchy, called Federalists, who have taken control of our Supreme Court. The Supreme court now makes and and changes laws the legislative branch made, which is way our of our their jurisdiction according to Jefferson.

  • gar626

    While we cannot vote for these 9 people who have such power over our lives we should at least be given the opportunity to vote no confidence – to make sure those we do vote for are aware. The three stooges of the court – Moe Scalia, Larry Alito, and Curly Thomas along with two dangling judge-cycles Roberts & Kennedy – have wreaked havoc on our lives, and made our elections not one person – one vote, but a bought and paid for travesty.

  • Anonymous

    A requirement for “ideological diversity” will not be met by a panel composed of Reps and Dems ….

  • Anonymous

    Actually – it’s the reverse, today’s Dems are to the right of Richard Nixon ….

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  • Diane Wilkinson Trefethen

    What I want to know is can a SC justice be impeached for writing or concurring with a decision that is either contrary to or an unsupportable extension of the Constitution? If so, what is the process? Who can bring a bill of impeachment? Who would defend the justice(s) and who would decide whether a ruling did indeed contradict the Constitution?

  • HopeWFaith

    Great questions! I’m sure many, many of us have had the same thoughts. Keep us posted if you discover any of the answers.

  • HopeWFaith

    The areas of concern are well considered here. I could agree with 90 percent of these immediately. Time to get this so called Supreme Court changed to meet the ethics many of us have been seeking for it.

  • HopeWFaith

    There is nothing in this current Court that one could call balanced. When rulings are so extremely aligned against the people’s needs and legally established rights, and so extremely opposite of the constitution, then that is not a balance. It is fine to have republicans and democrats and independents on the court. It is not fine to have extremists who trash the very concepts and intentions of the constitution. There is not a balance in the SC right now. The Kochs have far, far too much influence upon this court, and everybody who dares to read up on what meetings and groups some of these Justices are attending and aligned with can plainly see that I am right. The facts are everywhere, if one only but seeks them out.

  • HopeWFaith

    Well said.

  • Jebby

    For the elections in 1984 and 1988 ok, but certainly not for 2000 and 2004. It was 5 Republican justices that unjustifiably (and unethically for those with familial ties to Bush’s campaign, who should have recused themselves) intervened and stopped the full and accurate counting of the votes in Florida that forced Bush the Dumbest on us in 2000 (a full recount of the whole state showed that Gore did win despite the Bush team’s best efforts to invalidate voters, and other ballot irregularities). Illegal vote “tabulation” in Warren County, OH stole the election again in 2004 without SCOTUS help. My point is the “country” can’t fairly be blamed for the Court we have now. In substantial ways the Court created itself. I seriously think we need to keep in mind how determined the reactionaries on the Court are in twisting the Constitution and the rule of law to further a radical agenda that will wipe out the liberal accomplishments of the last 100+ years and return us to a de facto White dominated, self-serving oligarchic pseudo-Christian patriarchy free to keep and expand a world empire. So far, they have installed in power an actual loser as President; absurdly granted rights and powers to corporations that only humans could possibly exercise; and have breached the separation of Church and State. They will stop at nothing to remake this country. We cannot let them get away with this. Their path leads to another civil war.

  • Jebby

    That’s an interesting take on the situation. Many polls show that the public, sometimes by large majorities, are much more liberal on a whole host of issues than society was in 1960 and generally agree with the articulated Democratic position. The problem is that a sizable segment of the people are fearful of these changes for a variety of mostly unsubstantiated reasons, and are being expertly manipulated by very powerful interests into reacting against the trend and to support policies that do not serve their interests, let alone justice. Science, facts, logic, fairness, don’t seem to have much effect on them anymore. These same powerful interests have turned the Republican party into the John Birch Society. At the same time they’ve co-opted too many Democrat office holders into acting like 1960′s Republicans. Illogically, the majority of the public moves or stays on the left, while both major political parties are moved right. It’s some hat trick. Seems with enough money, playing on fears, mis-information/lies, control of the MSM, corruption and violence, anything is possible. It’s the courts that are supposed to serve as moderators of this power. Sadly, they can also be the enablers.

  • Anonymous

    Jefferson wrote, “All men are created equal.” The Roberts Corps. has written that some are “more equal” than others. The more money you have, the more “equal” you are.

    If “money is speech” and “speech is free”, is money free?

    Scalia is reputed to be seeking the “original intent” in every decision. When the Constitution was signed only white male landowners held the franchise. We seem to be moving in that direction.

  • Highdesert Splintermaker

    It would appear that the Viking Publishing Company is about
    to either make a serious publishing mistake or further a political agenda. In
    publishing The Case Against the Supreme
    Court by Erwin Chemerinsky, due out this September, Viking is promoting a
    work that evidences a less than lawerly command of the English language, a very
    poor understanding of what our Constitution says, and possibly both.

    It is the author’s apparent belief, or at least contention,
    that the US Supreme Court is supposed to be some sort of enforcement body with an
    obligation to protect the rights of minorities. Wrong!

    To clear that up and otherwise illuminate some rather
    short-sighted thinking I submit the following.

    Where in our constitution is the US Supreme court charged with
    “enforcing the constitution and protecting the rights of minorities”? The
    Supreme Court’s obligation is to interpret the constitution – nothing
    more and nothing less. Creating laws is the duty of Congress, interpreting them
    is the duty of the Supreme Court, and enforcement clearly falls to the
    Executive Branch.

    The author says “- the Court, especially today, has
    consistently sided with the interests of business at the expense of workers,
    unions, and consumers.” Let’s think about that last statement for a few
    seconds. With the exception that some consumers can be a business or government
    agency buying from another company, the words ‘workers’ and ‘consumers’ are generally
    perceived to be collective nouns representing individuals – as in real live people.
    Unions, like corporations and government agencies, are power wielding
    organizations. In the case of unions there are essentially two separate
    identities – the workers represented by the organization and the organization
    itself which is a power dealer much the same as a corporation or government
    agency. And, while all organizations are certainly made up of people they are
    not in and of themselves flesh and blood people. We need to be able to clearly
    distinguish one from the other and not lump them together as though they are interchangable.
    They clearly are not. Overlooking this one small detail is at the core of what
    has been causing the Supreme Court severe consternation of late.

    The Author then proceeds to cite five proposed suggestions
    for improvement.

    In his 1st suggestion he says “I believe that
    many of the Court’s failures stem from the lack of a clear articulation and
    recognition of the proper role of the Court. The justices, individually and
    collectively, should articulate and embrace that the most important role of the
    Supreme Court is to enforce the Constitution against the will of the majority.” Here, it appears the role of the Supreme
    Court is most unclear in the author’s own mind. The Supreme Court is neither
    charged with enforcing anything nor being in opposition to the will of the any
    group – majority or otherwise. The author continues with “The Court should
    recognize that the two preeminent purposes of the Court are to protect the
    rights of minorities that cannot rely on the political process and to uphold
    the Constitution in the face of repressive desires of political majorities.”
    Where, in the constitution is the Supreme Court charged with protecting
    minorities? I do, however, agree that the court should be free to interpret the
    Constitution as it was intended completely free of the outside influence of
    power wielding entities be they union, corporate, or government in nature.

    In his 2nd suggestion the author says “There is
    nothing in the United States Constitution that prevents the President from
    creating a panel for merit-based selection of individuals to fill judicial
    vacancies on the Supreme Court and the federal courts and then promising to
    pick an individual from among the names forwarded to him. President Jimmy
    Carter did exactly this for federal court of appeals vacancies – he never got
    to select a justice for the Supreme Court – and the results were stunning.

    Each panel should be ideologically diverse, including
    Democrats and Republicans, lawyers and non-lawyers. The role of the panel
    should be to present the President the names of at least two of the most
    qualified individuals to consider for each vacancy. And the President should
    promise to will pick the nominees from this list.” I like the panel generated
    merit based list concept. Where this idea fails is the word “promises.”
    Politician’s promises are worth very little. I would therefore propose that
    Congress be obligated to require any non-listed nominee be considered only
    after Congress has been shown just cause for not considering any of those on
    the list and thoroughly vetting the non-listed nominee.

    His 3rd suggestion, changing the confirmation
    process, amounts to let’s fix something that isn’t broken – something only
    politicians, and lobbyists for corporate, union, or minority interests would
    propose.

    His 4th suggestion is term limits for Supreme
    Court justices. The author says “The idea is that each justice would be
    appointed for an 18-year, non-renewable term. A vacancy thus would occur every
    two years. Vacancies that occur through resignation or death would be filled by
    appointing someone to serve the unfinished part of the term.” Here I believe it
    is important that each sitting justice should prepare a list of his or her own personal
    replacement recommendations in order of preference. This list, once
    pre-approved by the Executive Branch, could easily be accessed for temporary
    replacements due to short term illness or recusals, and ultimately for their
    own permanent replacement.

    The author then cited three paragraphs of statistics
    regarding ages and tenures of justices which, I presume, are supposed to evoke
    sympathy for yet another poorly thought out (or was it) idea. Here’s what I
    mean. There are definitely two sides to the issue of advanced age and length of
    service especially because the job of accurately interpreting our Constitution
    is of ever increasing importance. Should the importance of that job, entailing
    far reaching effects on the future of our nation, be trusted to those with less
    judicial experience, less objectivity with regard to issues of concern to
    pressure groups or spheres of influence, and less recall of the lessons from
    our own history? I think not – especially since statistics clearly show a
    significant shift of our population into the group we refer to as seniors.

    Isn’t this still a land where the rights of the individual
    come first? Lest we forget, the 9th & 10th amendments
    to our Constitution still exist. Together they serve to remind us that those
    powers not specifically reserved to the federal government or forbidden to the
    States are vested in the States or to the people. In this age of runaway
    executive control affecting almost everything, it is of paramount import that
    our Supreme Court stand to protect and defend every right of the individual
    States and of the individual citizen (real flesh and blood people) as provided
    by our Constitution.

    In his 5th and final suggestion (within this
    article) the Author proposes a mandate for strong ethics rules especially when
    recusals may be at issue. The author says “Several steps should be taken to
    help ensure that there is both the public perception and reality of a Court
    complying with the highest possible ethical standards. First, the same
    standards that are applied to lower federal court judges should be applied to
    Supreme Court justices. Second, no longer should it be left to each justice to
    decide for him or herself whether to participate or be recused in a case.
    Either the other justices, or a panel of them — or even a panel of federal
    court of appeals judges — could be designated to rule on a recusal motion.” On
    the surface this idea sounds good but, and there is always a backside, which is
    - it kicks the door wide open to outside influence and political maneuvering. I
    am of equal concern with the author regarding the integrity and veracity of the
    court, however, I believe it may be wise to approach the assurance of those
    qualities with tiny steps rather than the proposed giant leap. Frankly, I have
    little doubt there are sufficient, but unpublicized, measures already in place
    to placate our suspicions but am somewhat more concerned for the possibility of
    excessive undue influence from a multitude of power centers.

    The author says “Finally, if a justice is disqualified from
    a case, a procedure should be devised whereby a retired justice (if one or more
    are alive), chosen at random, can participate as a justice instead.” Should
    this ever come to pass, retired justices would probably be among the first to
    be used as political pawns due to their post bench exposure to less judicious
    influences, and having been away from the day to day awareness of the details
    of duties and allegiances. I like the lists drawn by the nine sitting justices
    idea (expressed in item 4 above) far better.

    In the author’s final statement he repeats his lack of
    understanding of what the Supreme Court is supposed to do, as he again says “ -
    I believe that they can create a Court that will do a much better job of
    enforcing the Constitution.” Once again, the US Supreme Court is NOT charged
    with enforcing anything. And, perhaps Viking would do well to take one
    more look at this particular submission before committing all that ink to
    paper.

    To learn more about the US Supreme Court I highly recommend
    reading Article III of the US Constitution. Google – US Constitution. To learn
    more about the responsibilities of the Supreme Court Justices I recommend a
    reading of their Oaths (yes plural, one Constitutional and one Judicial) of
    office. Google – US Supreme Court justices’ oaths of office.

  • Anonymous

    Regardless of their supposed role in our judicial system, the SCOTUS has completely “dropped the ball” as of late with regards to the ridiculous decisions they are making. It is obvious to me where their allegiance lies, and it isn’t with the majority.

  • JC

    I agree. Recent decisions seem to focus on the benefit to the entities (not people) who are part of the industrial-military complex where money and power and politics have swayed the majority decisions. The Supreme Court needs to get back to the business of interpreting the Constitution and the laws of our country and quit pandering to the corporate interests of this great nation.

  • MaryB

    “Free air time for the politicians to debate their policies with out scrips.” Free air time for all candidates on the ballot esp. during the Presidential Debates, not just two major parties IS an essential component of free speech. And, more justice for third parties to be on the ballot in all states is also a critical missing-piece of free speech in our elections.

  • Dave

    Great ideas — I’ve been thinking about these same changes. And more, to reduce corruption in our govt.

  • LS

    I particularly like the suggestion that those under consideration for the SC be made to answer questions about their specific viewpoints on controversial subjects; i.e., abortion, civil rights, gay marriage, etc. As it stands now, all any of us ever get is a “pig in a poke.” You wouldn’t buy a used car this way, so why are we expected to accept a SC justice without knowing where their specific sympathies and viewpoints fall?

  • RatSavage

    I don’t know whether term limits are a good solution or not, but the SC is certainly unusual in our system of government, as we (the voters) don’t exercise direct control over the nominees, and never have an opportunity to reconsider the decision once it has been made.

    If not term limits, what about terms? What if the president nominated individuals for some period of time (not for life), and then when that period ended, the president at that time would have the opportunity to re-appoint the incumbent, but have no obligation to do so?

    The way things stand today, I can not see the USSC as being an expression of democracy.

  • Mort

    Do you really think that electing Supreme Court justices would improve the quality? That’s one of the more brilliant ideas of our founding fathers: create a democracy with the understanding that sometimes minorities need to be protected from the tyranny of the majority, which the Supreme Court can and has done. The only way to preserve that special role is by lifetime appointment.
    As a liberal, it’s a rare day for me to say it: Some things are better left alone.

  • RatSavage

    No, I didn’t say to elect them. I said why do they get appointed for life? They can be appointed for a finite term instead. The article mentions an 18 year non-renewable term, and you said you were opposed to limiting them to only one term. We can say they are eligible for re-appointmentment, but make the term finite (18 years, whatever). Then, when the term is up, they would need to get re-appointed.

    I don’t know why it is so bad to say there will be a time when the SC justices will be evaluated for their performance. If they are doing a good job, re-appoint them. If not, pick someone else.

    Why should Clarence Thomas be appointed for life (a 47 year long stay on the bench is estimated in the article)?

  • http://smartliving365.com/ Kathy @ SMART LIving 365.com

    What great insight and advice. Surely something needs to be done to insure this gets better instead of slowly but surely eroding our country.

  • MrLightRail

    And, if the legislatures were allowed to appoint senators, we would have corruption unseen in decades. Blakovich X 50. Senate seat for sale to the highest bidder.