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Wednesday, October 07, 2020

Impementing SCOTUS term limits

I missed the introduction of this bill last week, which Eric Segall discusses. It provides for appointments in the first and third year of a presidential term. It also provides that the Senate shall be deemed to have waived its advice-and-consent authority if it does not act on a nomination within 120 days of the appointment and the nominee shall be confirmed. This is cute, designed to prevent the McConnell move of sitting on a nomination, although it does not stop a determined Senate majority of one party from blocking everyone a President of the other party nominates. I have seen other proposals for a statute or Senate rule that failure to confirm within a certain time shall be deemed confirmation.

The bill does not make the Balkin move of giving senior justices specific SCOTUS-related responsibilities. But current Justices are not required to retire from "regular active service," so there are no problems of changing the tenure of sitting Justices. But appointments will begin upon passage, with new appointees serving as active Justices for 18 years. Presumably, the Court will expand until current Justices retire.

But this creates some strange Court dynamics as the new system takes effect. Justice Srinivasan appointed under this law in 2021 would be active until 2039, then forced into senior service. Meanwhile, in 2039, six current Justices (seven if you include Barrett) would be in their early 80s or younger and likely still wanting to remain active. A big chunk of the current Court would form a "core" that might continue for another 30 years, while an "outer" Court changes around them. The demand for incrementalism due to non-retroactivity creates some difficulties.

Posted by Howard Wasserman on October 7, 2020 at 07:05 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


All this is going to do is create a situation in which justices try to shoehorn their legacies into cases--especially as they approach forced retirement.

You'll get more Roe, Obergefell, or Dred Scott type decisions where the decision is totally voice of legal reasoning.

The court will become a politburo rather than a court.

All I can ask is that you and others think about what you're pushing. Think through the actual ramifications as succeeding presidential administrations continually try to remake the court and undo what the other administration did.

The court will become paralyzed.

Your plans are bad. Very, very bad. Please don't push them.

Posted by: thegreatdisappointment | Oct 8, 2020 6:04:30 PM

or randomized appointments.

Posted by: Howard Wasserman | Oct 8, 2020 5:09:15 PM

Among academics, there is cross-ideological support for some version of 18-year/regularized appointments (the dispute is mostly about amendment v. legislation). It is borne out of a desire to eliminate a system governed by random breaks. Like other sane mature liberal democracies, none of which have life tenure.

Posted by: Howard Wasserman | Oct 8, 2020 5:09:02 PM

I still don't see how this system is free of gamesmanship. The current system we have is fair precisely because the breaks have cut both ways--Ds are just upset because currently the breaks have cut against them, hence why you heard not a word about how dreadful it was to run the country like this during the Warren Court. In addition, this system antedates our current divisive politics.

While I think the Supreme Court needs reform, this is not the way to do it. And we are not the people to do it. Supreme Court reform will have to wait for another 'Era of Good Feelings', when the overwhelming majority of the people agree to the reform. Anything less than that guarantees that the Court loses all legitimacy.

Classical writers warn us about the dangers of altering fundamental institutions, and we're already living the absolutely cataclysmic effects of the 17th Amendment.

I'm honestly begging liberals not to destroy *another* institution. We won't survive it.

Posted by: thegreatdisappointment | Oct 8, 2020 4:44:27 PM

Part of the goal is to de-escalate now because the current system is untenable. So if you wait to do it, you continue the current gamesmanship and manipulation of another 25 years of erratic appointments, all of whom would have life tenure.

In a sense, the system this bill would create does what you suggest, because the full effect will not be felt for another 25-35 years, when the current crew of young-ish justices leaves the Court. Maybe Republicans go for this if they retain their trio of Trump appointees for another 30 years. And the early days of this kind of look like Court expansion, which may please Democrats.

Posted by: Howard Wasserman | Oct 8, 2020 10:53:32 AM

I wonder if some of the political valence of this good government legislation might be drained by making it effective at some more distant point in the future where futurity creates uncertainty and thereby promotes the sense it is evenhanded.

Posted by: TS | Oct 8, 2020 10:44:01 AM

So your answer is that he's as equally tortured by the Warren court decisions as the post-Marshall court? Because I didn't see word one of lament in his article for how the Warren court just wasn't the way to run a country.

Imagine if Miranda had been differently decided. How might society be today?

Posted by: thegreatdisappointment | Oct 8, 2020 3:19:34 AM

Prof. Segall says this:

"The main takeaway from the Thomas-for-Marshall swap is that the justices should not be able to make such a difference to our politics and our society based on a one-vote difference between two men who could not possibly see the world more differently based on their values and experiences, not law. That is just no way to run a country."

So, some one-sided concern about more conservatives is not quite his stance. His pet project is an evenly divided Court, half picked by Democrats, half by Republicans. Overall, he wants the Supreme Court to have less power. His first book put forth that view, with an exception made for criminal justice type matters that they would have more expertise over.

Segall thought both Heller and Roe wrongly decided.

Posted by: Joe | Oct 8, 2020 12:12:28 AM

Just out of curiosity, does Segall feel as strongly about the slate of progressive decisions handed down by a Warren Court comprised of the same sort of random events?

Or is he ok with those decisions?

Posted by: thegreatdisappointment | Oct 7, 2020 10:28:48 PM

I liked Segall's article. We need to change the Court because it's unconscionable conservatives have a majority.

Posted by: thegreatdisappointment | Oct 7, 2020 10:27:32 PM

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