Supreme Reforms

How the nation's highest court could be improved

A version of this article was originally published May 24, 2009 in The Boston Globe

When Justice David Souter announced his retirement earlier this month, some commentators cast the decision as another sign of his admirably eccentric character. Sixty-nine is seldom a remarkable age for retirement, but in the context of the Supreme Court it’s downright tender. In recent decades, justices have served increasingly long terms, and turnover has slowed. From 1994 to 2005, there were no changes at all in the court’s composition – the second-longest such interval in its history.

Long tenures arguably have benefits – stability can be an asset, and the justices are afforded the opportunity to master their jobs. But court-watchers have started to worry that marathon terms also create serious problems. The trend raises the stakes of every appointment, and justices may serve past their prime. More fundamentally, each justice is one of the most powerful individuals in the country, and the sheer concentration of power for such sustained periods strikes many observers as undemocratic.

Critics in legal circles point to epic terms as one of several problems that sap the court’s dynamism and responsiveness, and which necessitate significant reforms to this hallowed institution. They propose ways to increase the frequency of appointments, to induce justices whose faculties are waning to retire, and to compel the court to hear cases it is currently free to ignore. For the most part, these critics do not point to specific misdeeds. But they do argue that the court would benefit from regular oversight from the other branches of government, and from occasional infusions of democratic reform.

“The overall point of this is that it’s been a very long time since the executive branch and Congress have considered the role of the Supreme Court,” says Alan Morrison, a dean at George Washington University Law School and previously the director of the Public Citizen litigation group. “There ought to be debate and discussion.”

In February, a group of leading scholars and former judges sent a letter to Vice President Joe Biden, Attorney General Eric Holder, and Senator Patrick Leahy, among others, advocating a “Judiciary Act of 2009” that would implement a list of important changes. The ideas were explored at an academic conference at Duke in 2005, and in a subsequent book, “Reforming the Court.” The proposed reforms include requiring the chief justice to sound an alert if another justice’s abilities are declining. Another is to reduce the court’s control over its docket, appointing a group of appellate judges to assign it cases. A third is term limits for members to serve as chief justice, a position with even more power than the others.

Others in the legal world, however, see no need for reforms. For all its imperfections, they say, the court is functioning pretty smoothly. For better or worse, its decisions have been relatively in line with public opinion. And even supporters concede that reforms will be difficult to enact, especially at a time when Congress has so much else on its plate.

But as President Obama selects his nominee to succeed Justice Souter, it’s an opportune time to think about exactly what the Supreme Court and its justices should do – and to remember that these rules, for the most part, are not set in stone, or in the Constitution

Reluctance to leave the Supreme Court is understandable: it’s hard to imagine a more enviable job. It offers tremendous intellectual gratification and more influence than most elected offices, without the need to hustle for reelection. The court is relatively free from interference from the other branches of government, and the justices get their pick of the country’s most brilliant young law school graduates as assistants.

But the seats were not always so sought-after. The court once had to hear any cases that were brought before it. Until 1891, justices were also required to “ride circuit,” to travel to the lower courts to hear oral arguments, which was thought to keep them in touch with the country. It was an onerous duty, especially in the days before cars and planes. In the nation’s early days, it was not uncommon for justices to quit after several years for a better gig.

Over time, though, the job became increasingly cushy. William Howard Taft, the president and subsequently chief justice, made it something of a mission to transform the court. As of 1925, it largely gained control over its own docket. (Under Chief Justice Rehnquist, the court gained almost total discretion.) The justices were eventually granted the right to four clerks, who summarize petitions, research opinions, and often write first drafts.

Changes in society have also affected the court – notably, longer life spans. When the Constitution was written, life expectancy was far shorter than it is today. As longevity has risen, along with the job’s power and prestige, terms have correspondingly lengthened. Since 1971, according to calculations by Duke law professor Paul Carrington, the average tenure jumped from 16 years to 25.5 years, and the average age on leaving office rose from 70 to 79.

The most obvious problem arises when justices serve into their senescence. In 2000, Emory University law professor David Garrow (now at the University of Cambridge) published a study called “Mental Decrepitude on the U.S. Supreme Court.” Thurgood Marshall, Joseph McKenna, and Hugo L. Black are just a few examples of justices who provoked concern about their dwindling capacities as they aged. In his last years, Oliver Wendell Holmes sometimes fell asleep on the bench; after a stroke in 1974, William O. Douglas addressed people by the wrong names and cast votes inconsistent with his previous views.

Another issue is the irregularity of appointments: Nixon made four, while Carter made none. Some argue that while the court should not be directly accountable to the public, voters deserve to influence appointments in every election. The system also means that justices often base the timing of their retirements on who is in office, distorting their decisions. (In some cases, this at least partly explains why justices have stayed despite disability.) It also distorts decision-making for presidents: the trend is to appoint ever younger justices, whose comparative lack of experience may not be ideal.

“We are better off with justices who have been practicing for 25 or 30 years,” says Morrison. He also wonders whether decades on the court make the justices “less in touch with the people as a whole and less in touch with the political forces that nominated them.”

As a result of these concerns, the suggestion of term limits – 18 years is a commonly cited figure – has been tossed around. So has a mandatory retirement age – for instance, 75. Both are common in the rest of the world, but both would require a Constitutional amendment, a prohibitive obstacle. (Interestingly, the Constitution doesn’t explicitly stipulate life tenure; it says justices will serve during “good behavior,” which has been interpreted to mean that.)

A more recent, innovative plan, outlined in the February letter, would aim to achieve the same goals while circumventing the need for an amendment. Presidents would make appointments to the court every two years. If the number of justices exceeded nine, the nine junior justices would hear cases. The senior justices could substitute in the event of a recusal or disability – a meaningful bonus, since no one is now eligible to step up in those instances. The senior justices could also remain involved in other court functions, such as choosing which cases to take. Leaving life tenure technically intact, this approach would inject fresh blood into the court and introduce regularity to appointments.

“It’s a form of democratic responsiveness,” says Jack Balkin, a professor at Yale Law School who supports the plan. “The Supreme Court is not supposed to be directly responsible, but there are supposed to be democratic checks.”

Another idea is a mechanism for urging and, if necessary, compelling justices to resign once their abilities are in decline. The chief justice would have the duty to advise another justice when the time has come to retire, and to report to the Judicial Conference of the United States. When a chief justice is no longer able to perform, other justices would be obligated to report that to the same body, which would have the authority to refer the matter to the House’s Judiciary Committee. Congress could then impeach if necessary. Despite the obvious potential for awkwardness, many believe this policy is overdue.

“There ought to be a way of telling over the hill justices that they are over the hill,” says Carrington.

The court’s docket presents other concerns. The number of cases the court takes has fallen to about 70 a year, from about 300 when it first gained a measure of discretion. The justices often opt to take the more interesting and gratifying cases, leaving mundane conflicts between the lower courts unresolved. Adjudicating these disputes – providing supervision to the lower courts – is supposed to be an important part of the court’s role.

“These guys aren’t doing an honest day’s job,” says Carrington. “The court’s not providing anywhere near enough leadership.”

Carrington and others propose giving assignments to the court – establishing a body of appellate judges to choose some of the cases it hears. (An alternative is to simply require the court to take a certain number of cases per year.) Such a reform would have the incidental effect of making the job harder, which some view as a benefit, because it would encourage older justices to move on.

Part of what sets the judiciary apart, of course, is its position above the fray. It is, in theory, unresponsive to polls, immune to political pressures. One less directly representative branch of government was conceived as a crucial part of the checks and balances that preserve democracy as a whole. This is a powerful rejoinder to arguments about the court’s seemingly undemocratic aspects.

But another, perhaps contradictory reply is that the court does, on the whole, respect the views of the country. The idea that the justices are out of touch is not supported by its record, according to Barry Friedman, a law professor at NYU and author of the forthcoming book “The Will of the People: The Supreme Court and Constitutional Meaning.” He argues that, at least for the past 60 years, the court has hewed rather closely to public opinion. Historically, when it strayed too far from the mainstream, it was punished in various, ad hoc ways. Congress has exercised its power to withhold raises and restrict budgets. When the Supreme Court blocked New Deal legislation, Roosevelt tried to pack the court with his own appointees; Congress has sponsored bills to strip the court of jurisdiction in some cases. While these more dramatic efforts have usually amounted to mere threats, Friedman believes they have done the trick: over time, justices got the message.

“I tend to be of the view that if it ain’t broke, don’t fix it,” says Friedman. “I think the court is politically accountable. It’s not clear to me that if you switch to this system, we’d do differently.”

In the same vein, ensuring that appointments are evenly distributed among presidents wouldn’t necessarily affect the court’s ideological balance. Justices often surprise or evolve over time. Souter is the classic example of a justice who turned out to hold different views than the president who appointed him (George H.W. Bush), bitterly disappointing conservatives.

There are other criticisms of the proposals, too. Age is only one factor in mental prowess: throughout his 80s, Justice Stevens, for example, has certainly exhibited greater acuity than many people half his age. What’s more, some of the ostensible problems have upsides. The lighter workload comes with benefits – the court was previously overwhelmed with cases – and there are obvious advantages to making such an important position enjoyable.

But critics say the court should no longer be seen as a sacrosanct, untouchable institution. There will always be disagreements about how, precisely, to construct ideal governmental structures. But a common American feeling is that power held too long, even if benignly exercised, carries an undemocratic whiff. Although Souter voluntarily relinquished his power, he seems unlikely to start a trend. Prudent reforms, Carrington says, “would make the justices a little more aware of the fact that they are mortal human beings.”

Source: The Boston Globe

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