Legal News

A Not-so-Modest Proposal to Changing Life at the Supreme Court

By Ashby Jones

If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines?

That’s the lead to an interesting article out today in the Washington Post. A group of prominent law professors and jurists thinks ‘no’ is the answer to all of the above questions, and in a letter to congressional leaders says that Congress could rethink the way the Court does its job.

The group, organized by Duke University law professor Paul Carrington and signed by 33 others, made four proposals to in the letter, which was sent to folks in the congressional judiciary committees, Attorney General Eric H. Holder Jr., and Vice President Joe Biden.

To folks used to the Court’s current operations, the proposals might seem a little strange, even, dare we say, unnatural. First, the group proposes a form of term limits, moving justices to senior status after 18 years on the court.

Second, the proposal would set up a regular rotation on the court by providing for the nomination of a new justice by the president with each new two-year term of Congress. If that results in more than the current nine justices, only the nine most junior would hear cases.

Third, proposal deals with the removal of justices in failing health “who are increasingly prone to remain in office and retain their political power even if no longer able to perform their office.”

Finally, the proposal would deprive the justices of one of their greatest powers: deciding which cases they hear. It envisions a “Certiorari Division” made up of senior justices and appellate judges who would review the petitions and send 80 to 100 each year for the Supreme Court to decide, whether it wanted to or not.

Carrington isn’t a fan of the current cert-granting process, in which the justices “don’t have to decide anything they don’t want to decide.” In Carrington’s mind, the status quo adds to a perception that the court is “not just powerful but arrogant.”

Will the proposal garner support? Carrington isn’t so sure. “The politics of this are very difficult,” he said. “Nothing on this is really going to happen until someone invests his or her career on the issue.”

He’s confident of one thing, though: “I’m sure the justices would hate it.”

Full post as published by Law Blog - WSJ.com on February 23, 2009 (boomark / email).