I’ll have a note up, probably at Seeking Alpha tomorrow, on new home sales, which get reported later this morning.
In the meantime, especially with the likely confirmation of the 6th movement conservative Justice today, who will probably immediately start to rule on election issues, I want to flesh out in outline form my thoughts on the Supreme Court. I am going by memory in this note, so some of this info is not entirely correct and will need to be checked further.
1. Historically, the judiciary was not an independent branch of government. In monarchies, the sovereign typically could both appoint and remove judges at pleasure. In ancient and medieval republics, the Executive branch enforced the law. For example, in the Roman Republic, both consuls and praetors heard civil and criminal cases. In Venice, as memorably recounted in The Merchant of Venice, the final appeal was to the Doge. Sometimes the senior legislative body, like the Senate in Rome or the House of Lords in England, was the court of final appeal. In those republics, judges changed with each change of government.
2. The modern independent judiciary started with John Locke and the Glorious Revolution of 1688. After the revolution, the Act of Settlement provided that the sovereign appointed judges on the recommendation of Parliament. The judge served “on good behaviour,” (exactly as specified later in the US Constitution), but could be removed by the sovereign upon a petition agreed to by a majority of both Houses of Parliament.
3. Montesquieu formalized the idea of the judiciary as an independent 3rd branch of government, and the US Constitution took an even more “radical” turn. Not only were judges given appointments “on good behavior,” but they could only be removed with the agreement of 2/3’s of the Senate upon recommendation by a majority of the House.4. The Federalist Number 78 is the most important discussion of the framers’ intentions as to the Supreme Court. There it is made clear that the Court will have the power to set aside Unconstitutional laws passed by Congress and the States.
5. This “judicial supremacy” was viewed as no different than how courts interpret statutes in conflict. There are rules of interpretation guiding courts as to which statute must give way to the other, and these would be used by the Supreme Court to determine if a statute must give way to an inconsistent provision in the Constitution. Where historically this argument has proven wrong is that it is not difficult for a legislature to pass a new statute to overcome inconsistencies between two prior statutes, but it is monumentally difficult to overcome a Supreme Court interpretation by amending the Constitution.
6. The objection that the Court would turn into a “Superlegislature” was already strongly voiced. In addition to the check of impeachment, the framers also envisioned that the Court would be bound by its prior precedent, just as common law courts in the UK had been for centuries, and that an ever more detailed body of precedent would be built up to prevent the court from going rogue and substituting its judgment for that of the Congress. The framers never envisioned that there would be wildly different schools of how the Constitution should be interpreted, let alone that a Court majority would use a new theory of construction to overturn long-existing precedents. (Before you consider this a universally bad thing, remember that Plessy v. Ferguson was good law for about 70 years before being overturned by Brown v. Board of Education.)
7. As a result, the idea of a judicial retirement age was specifically rejected. It was envisioned that a lawyer would need a lifetime of experience to become fully versed in the precedents that would govern their decisions as a Supreme Court Justice.
8. We are now on the verge of all of the errors in the framers’ arguments for the Supreme Court coming to fruition. In the 19th Century, the average tenure of a Justice was less than 10 years, due mainly to life expectancy. Now that it is common to live into one’s 80s, Justices serving for 25 years or more are becoming increasingly common. Movement conservatives are using a theory of construction that did not even exist until about 40 years ago, and using it to overturn long-standing precedents (and are also inventing novel constructions nowhere found in the Constitution when it suits them: see Shelby County). They have declared statutes unconstitutional at a rate never before seen, and they are likely to revive the Lochner doctrine of 100 years ago that deemed almost all economic regulation unconstitutional.
9. Fundamentally, there are 3 approaches that can be used to change this dynamic, but 1 of them almost certainly involves a new Constitutional Amendment.
10. The first approach is to make all circuit court appellate judges also members of the Supreme Court, and delegate the jurisdiction of the Supreme Court to rotate panels (just as the Circuit Courts of Appeal operate now). This requires being comfortable with the quality of the Appellate judiciary now and probably moves the point of contention down from the Supreme Court to the Circuit Courts. By the way, this approach was seriously considered in the wake of Dred Scott by the Reconstruction Congress of 1869 which passed the 15th Amendment.
11. The second approach is to have single 18-year term appointments to the Supreme Court. This almost certainly requires a Constitutional Amendment, since there would be an involuntary retirement from the Court after 18 years regardless of “good behavior,” and we can certainly expect that the movement conservative justices are going to object.12. The third approach is to have the President nominate two Justices during the 1st and 3rd years of their term, regardless of the number of justices that would create. The Court would probably have an even number of justices about half the time, leading to more split decisions (in which case the judgment of the lower court would stand).
13. Potentially the first and third approaches could be combined, so that panels of 9 Justices would hear any given case.
14. If it were up to me, I would expand the Court to 11 members immediately after Biden takes office, and also enact the third approach immediately. That would give Biden 3 appointments next year, immediately evening the number of justices appointed by Presidents of each party. Biden would get another appointment in 2023, and thereafter the winner of any Presidential election would get two appointments. Note that under this scenario the retirement or death of a Justice does not lead to any replacement appointment.
15. If the GOP got tired of this arrangement, then they could sign on to a Constitutional Amendment enacting the second option (a single 18-year term).16. Because Biden would not get an automatic majority, this is not quite “court-packing.” It also would encourage justices to become more moderate in their decision-making and nudge the political parties to a more permanent fair solution that maintains the framers’ intent for an independent judiciary