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Tuesday, October 06, 2020

Balkin solves the 18-year conundrum

Proponents of 18-year terms with regularized appointments biennial conflict over a procedural problem: Whether it can be done by statute without changing the nature of the position for current justices. Requiring a Justice to assume "senior" status and changing the nature of the job--no longer hearing SCOTUS cases--is arguably inconsistent with the life tenure that came with the original appointment.

Jack Balkin has solved the problem with an expansion of past proposals and his argument in his new book. Under Balkin's proposal, all Justices remain active until they leave the Court. Instead, Congress changes how the Court hears cases. Original-jurisdiction cases are heard en banc and all Justices decide cert. petitions.  But appellate-jurisdiction cases (i.e., all but one or two cases each year) are heard by a panel consisting of the nine junior-most Justices. More-senior Justices fill-in (in reverse seniority) if there is a recusal or vacancy among the 9-Justice panel and can sit on courts of appeals.

There should be no question that this can be done through ordinary legislation, because it does not change the job description. Rather, it changes the responsibilities of each Justice, akin to requiring circuit-riding that dates to the founding, and how the Court hears cases, unquestionably within Congress' power to structure and organize the Court.

Posted by Howard Wasserman on October 6, 2020 at 12:31 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


All the Supreme Court has to do is invoke Marbury and Cooper vs. Aaron, and say that any issue involving the Constitution is the province of the federal judiciary, the "federal judiciary" to be determined by what the federal judiciary says the federal judiciary is. I can't imagine the Chief Justice, likely senior, letting cases involving the Constitution get away from him and his senior colleagues.

Posted by: RComing | Oct 9, 2020 2:07:32 PM

"The more senior Justices remain on the Court to hear cases Justices involving the Court's original jurisdiction"

As noted, one or two a term, that tends to be some border dispute type case. I don't really see a need for senior justices to be involved in such cases unless it is symbolic and/or a means to say "see they do something!"

Posted by: Joe | Oct 6, 2020 9:52:53 PM

The discussion seems to suggest that the justices retain life tenure and enough jobs so that life tenure still has meaning even though senior justices eventually do not take part in the key role of deciding cases.

"The more senior Justices remain on the Court to hear cases Justices involving the Court's original jurisdiction, to pinch-hit when a junior Justice is recused from the appellate en banc panel, to consider the mountain of petitions for certiorari the Court receives every year, and to hear cases on the federal courts of appeals."

At least, that is the inference I take. Is there a reason for having them involved in the cert petitions? Does it take the edge off some since they take part in an agenda setting role?

Posted by: Joe | Oct 6, 2020 9:47:40 PM

You never know what the Court will do. But under current theory and doctrine, the issue is less free from doubt than redefining the position.

Posted by: Howard Wasserman | Oct 6, 2020 3:31:32 PM

It seems optimistic to say Balkin has “solved” the problem. The question remains whether the Court will rule unconstitutional the legislation that Balkin suggests. It’s not hard to imagine how a separation-of-powers argument might be crafted to attack this proposal as an attempt to manipulate the Court’s membership to achieve particular outcomes in particular cases—which, of course, it is. Would any such argument “unquestionably” be rejected by the Court?

Posted by: RQA | Oct 6, 2020 2:14:43 PM

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