Supreme Reforms
By Mark Shubert
The Supreme Court is an institution that very few talk about reforming other than the National Constitution Center which I encourage you guys to check out. The court was established when our constitution was ratified in 1788 but its enumerated structure and power didn’t include much to it and so Congress passed the Judiciary Acts during the Washington administration which determined the number of justices, what they did, and also establishes lower federal courts including the circuit and district courts. Apart from the number of justices, the Supreme Court has not changed since then which is interesting because you would expect the vague parts of the constitution to be the most interpretable and therefore the most reformed part.
Despite this lack of considering different judicial systems in the general discord of politics, I propose reforms regarding the size and election of Supreme Court Justices.
Concepts to consider when amending this position:
The leg & exec branches’ elections are not contingent on the other branches
Senate and Presidency politicize the Supreme Court
Prevent lobbying by ensuring a life appointment in the circuit courts they originate from
Age floor and ceiling
Term limits
Replacement process
Increasing the size of the Court and the number of Circuit Courts
Elections on the circuit court level for supreme court justices
Judicial Review Process
To start, we should increase the number of justices to 13 while only requiring nine justices to hear a case. If only 9 justices per case participate then this will increase the number of cases heard by 40% since the number of combinations of nine justices increases. Cases can be heard by courts of 9, 11, or 13 justices, the justices decide how many will hear a case based on availability and interest. If only 9 wish to hear a case then they can and the other 4 do not have to. Those four who do not hear the case cannot participate in the official decision of the court. If ten wish to hear a case they will either have to convince one of the disinterested three to hear the case or one will have to recuse themselves.
We should increase the number of circuit courts to 13. Currently there are 11, not including DC, and here is the current and a proposed map of 13 circuit courts.
Current
Proposed
Have each circuit court, either from the state legislatures or the people, elect supreme court justices instead of the president while the senate is not needed to approve or deny them. DC will still have its own circuit court but will not send someone to the Supreme Court. At the start of this change, justices will be elected by the state legislatures of all of the states in the respective circuit. The state legislatures of each circuit can change this electoral process with unanimity to a general election within the circuit court.
Each state in the circuit can nominate justices and this process should be determined by the states in the circuit. For example, states can nominate the same number or by population so the more populous states nominate more justices.
The campaigns of those nominated will be entirely funded by the state that nominates them and no donations from people or businesses are allowed to go to the candidate; the state legislature will run the campaign and each of the circuit court nominees will receive equal funds agreed upon by all the states in the circuit.
Each circuit will send two people, a justice and a replacement (suffect justice), the suffect justice will not be able to act as judge until the justice resigns or expires and they will no longer be suffect once the term is over.
The justices and their suffects sent must have passed the BAR and have served in any kind of court as a judge for at least one full year, and never had their law license or judge license suspended or removed.
Tenure for each justice and their replacement is 13 years, once a circuit court elects a justice they cannot be recalled. Only an impeachment by the House of Representatives and trial held by the Senate can remove justices if convicted. Minimum age for Justices should be 40 and the oldest age for someone to start their term as justice is whatever the minimum age of federally recognized retirement is (currently 62).
Term limit of just one term, after serving they will be allowed a seat on their respective circuit court for life on good behavior so they do not have to worry about finding work after their term on the supreme court ends.
There will be a cycle where one circuit court will be up for electing a justice every year in order of the circuit courts.
By removing the President and Senate from the process of adding new justices this will help depoliticize the position and also the two other branches will not be distracted from the process of choosing new justices which often takes an irresponsible amount of time and effort away from their other duties. It also gives states and the people more say in who is sent to the Supreme Court which is, in turn, more representative.
Regarding Judicial Review I believe that when justices make a decision against a statute then that ruling should be sent to Congress for review in a Joint Committee to decide what to do next, either nothing, amend the statute to make it constitutional, or repeal it since they know that the court will just side with any defendant of the law. The Chief Suffect (Suffect of the Chief Justice) should be the one to send these decisions to Congress. The specific statutes in review don’t have to be the entire act but just a severed section or even just a clause which the court has deemed to be unconstitutional. My thought process about making judicial review more procedural is that both Executive and Judicial branches are supposed to be a check on the legislative, a check means to be a negative or to be a force that blocks legislative actions. The president is a proactive negative since they can veto a bill before it becomes law, while I view the Supreme Court to be a reactive negative since they have to wait for someone to sue the government about the statute in order to determine whether or not it is constitutional. Just as the presidential veto can be overturned by congress with ⅔ support from both houses, so too should judicial review against a statute be overturned with ¾ support from both houses, and the president should not get involved with the judicial review just as the court does not get involved with the presidential veto.
There are also some aesthetic changes including the name that I propose. Rename the Supreme Court to the Constitutional Court or the Federal Court or the National Court of Appeals or another suggestion that is agreed upon by Congress.
Outside of the Supreme Court should be a statue of Justia or Lady Justice with the motto Pari Iustitia Sub Lege (Equal Justice Under Law) , current motto of the Supreme Court but in latin.