Regulating Supreme Court Operations

i.)        Fixed terms for Supreme Court Justices and Alternative Selectors

Problem:         Supreme Court justices grow very old, diseased, and infirm on the bench. They are appointed to the Court for as long as they may live and wish to continue to serve. Some justices stay longer than they wish, or maybe even than they should, so that they may choose a more favorable president to appoint their successor. Presidents are tempted to appoint especially young justices in order to maximize their time and effect on the court, rather than looking for the most qualified. Some presidents may appoint many justices, if many die during their term, while other presidents may not have an opportunity to appoint any justices. There is no order to the process.

Solution:        The term of the Justices should be fixed in the Constitution to last no more than X years, e.g. 15, 17, 18, or 21. The number of Justices should be fixed by the Constitution.   The rotation onto and off of the court should occur at a regular rate, such as one justice retires and one is appointed each year. For example, with the current 9 justices, one justice could be appointed every two years for an 18 year term. A maximum age at the date of appointment could be fixed according to the length of service. For example, the maximum age at appointment date could be 52, to ensure retirement by age 70. Retired justices could serve as a pool of knowledge for advice (e.g., amicus briefs) to currently serving justices.

The justices might be selected by alternative methods.

a.)        Some justices should be elected by the people, e.g. one during each presidential election.

b.)        Some justices should be elected by the House, without reference to any other body.

c.)        Some justices should be elected by the Senate, without confirmation by any other body.

d.)        Some justices should be appointed by the president, with or without senate confirmation.

ii.)       Opinions Reformed and Formalized

Problem:         Supreme Court opinions are not well structured.

Solution:        This is a problem where the best legal minds should convene within the IParty to find a solution. Somehow, the problem of incoherent or plurality opinions must be addressed. The Constitution seems clear to people. Opinions of the Court should also be made as clear as possible for the average Jane or Joe.

iii.)      Judicial Review Expressly Recognized

Problem:        The Constitution never expressly gave the Supreme Court the authority to strike down or refuse to enforce unconstitutional laws. The court absolutely must and should have this power. Of course, the Court did assume this power in the Marbury vs. Madison decision. The court owes its very existence to the Constitution, so that if it was required to enforce unconstitutional laws, it could be required to remove itself from existence. Moreover, the Court has often been unsure about its power to decide when a law is constitutional.

Solution:         The role of the Court in striking down unconstitutional laws should be enshrined and fully defined in the Constitution. The court and the people could be given guidance on how the court is supposed to exercise this power, and when it must refrain from exercising this power. By having the people expressly agree to this provision, there will be no confusion when the Court exercises this power. Since the Congress and the Executive branch have joint power in passing the laws, and often they are interested in promulgating laws that further their perceived interests, it should be up to the Supreme Court to decide when those laws have exceeded the bounds of the Constitution. This is the best solution to dividing power. The Supreme Court cannot write laws, only review what has been written. And, when the Supreme Court gets it wrong, there is always the ultimate veto on the Supreme Court: a Constitutional Amendment. This veto is long overdue to be used. And one of the ways it should be used is to shore up the power of the Supreme Court, while also cutting it back (by more clearly defining the role of the Supreme Court).

iv.)      Construction Methods Used by Court Specified in the Constitution

Problem:         The method the Supreme Court uses to determine the meaning of the Constitution (i.e., the construction method) has varied over the years, and can be chosen arbitrarily by the Court.

Solution:         The method the Court uses to construe the words in the Constitution should be specified in the Constitution. Should the Court consider the plain meaning of the words as they would be understood at the time the words were enacted? Should the Court try to ascertain the intent and spirit of the words? The IParty should develop this construction method carefully over time, in consultation with people from all aspects of the system of justice, including judges, prosecutors, defense attorneys, criminals, and law abiding citizens. This should include an expansive use of the chosen words based on the intended meanings. So, “papers and effects” as written in 1792 should cover e-mails, texts, telephone conversations, browsing history, and search queries today. The term “papers” surely was not meant to mean only diaries or personal notes which were never shown to another person. The founders would have been shocked if the term was construed not to include letters sent from one person to another. Yet exceptions for business records, communications to third parties, and other situations have hollowed out the Fourth Amendment. A consistent, expansive method of construction specified in the Constitution could have prevented this erosion.

v.)        Stare Decisis Formally Recognized and Quantified

Problem:         The Supreme Court often upholds prior decisions purely on principle, and may avoid evaluating whether the prior decision was wrong. There is no clear guidance on when to uphold prior decisions, and when to overrule them.

Solution:         Regularize Stare Decisis (Latin for “to stand by that which is decided”) but recognize that sometimes the Court may get things wrong. Require a 2/3 vote (e.g. a 6-3 majority rather than 5-4) in order to overturn prior decisions. This is more of a signal to the public that this is OK for the court to do, and a suggestion to the Court, rather than an iron-clad constraint on the Court. Every case is unique in some way. A Court majority determined to ignore prior decisions can be technically stopped, but not effectively stopped. However, a constitutional admonition may be effective to persuade members of the Court, who are people of honor sworn to uphold the Constitution, to follow the requirements of the Constitution.

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