I remember reading that you read every response in this page. You still haven't responded to my two questions re your plan to reform the Supreme Court.
These questions have to be answered. If they aren't answered here, they won't be answered if your proposal makes it to Congress. They will be asked, and without answers, the proposal will die.
I am reposting the questions again here:
Question 1:
What happens in the unlikely event that there are no retired judges to replace a prematurely vacated seat?
Question 2:
You mention that:
"In case a seat is vacated early, the fill in is not anyone's choice but a fixed rule: when an active seat opens early, the most recently retired justice automatically steps back in to keep the Court at nine until the next scheduled appointee is sworn in, so no president selects them, no vote occurs, and there is no extra seat to hand out or manipulate."
Consider this scenario:
1) a seat is vacated by a judge with 15 years remaining
2) The most recently retired judge fills that seat
3) a president begins a new term
4) the two judges who have completed their 18 years retire
5) the president appoints two new judges
6) the retired judge who filled the vacant seat now has 15 more years on the bench.
It is conceivable that the most recently retired judge, even in they are the youngest, will be old enough that another 15 years will push them past the point of being mentally capable of handling the job. In this scenario, a replacement will have to be found from some pool other than the cadre of retired judges who possibly are all too old. Asserting a maximum age for a newly appointed judge would not solve the problem because a judge can still die young.
Otherwise, if the president appoints one new judge for 18 years and appoints the permanent (18 year) replacement for the vacated seat, there will only be eight judges. The president will then be required to appoint not only two new judges to replace those who have reached the 18 year limit, but also to appoint replacements for those temporarily occupying prematurely vacated seats. The president will then be appointing more than two judges, all subject to chance again.
I think you are right, and a possible solution to the scenario you present could be to reduce the term from 18 to 9 years, and also reduce the presidential pick from 2 to one per presidential term, but with the possibility to pick also the replacement for any judge that dies before completing its 9 year term. The luck factor is not eliminated completely, but is minimized , because the term is reduced from 18 to 9 years
I like the idea of getting the discussion about Supreme Court adjustments fully out in the open and normalized.
But. This corrupt Roberts Court has gone so very far in shredding the Constitution, rejecting the notion of precedent, and way into the field of legislating from the bench, that One Fix is way insufficient.
An 18 year term is too long to keep Kegger Kavanaugh or Amy Coney Barrett around, even in minority. I'll say 12-- modern life is moving a lot faster than in the 18th and 19th Centuries.
And Justices ought to have a minimum of experience on the bench.
There are 13 federal appellate courts, 12 regional and one nationwide. The Court now hears about 70 cases a year, which is not enough. They have taken to rushing important issues through on the infamous "shadow docket," leaving lower court judges without guidance as to how to apply whatever the hell the Roberts Court meant? It's a Star Chamber indeed.
John Roberts wrote "ethics" for the Court that lack enforcement. Of course he did. The Justices must live by the same rules that other federal judges follow. Maybe even stricter rules? And we need to pull on our big-girl and big-boy pants and carry through on disbarring several of the crooks on the Court.
I would be in favor of holding the Supreme Court justices to what they say in their confirmation hearings - we have seen over and over again that these hearings mean nothing after they are appointed - if a Supreme Court justice rules against what they promised in their Supreme Court confirmation hearing then impeachment proceedings should commence - we must be able to hold these Supreme Court justices accountable to what they said to be confirmed to be on the Supreme Court
We have to do something about this corrupt Supreme Court and this proposal seems to solve this huge problem of bringing back our DEMOCRACY!
If we have both sides wanting to make a change as to who sits on the Supreme Court and for how long - then let’s find some political champion to get this constitutional amendment started - it has to be someone without presidential ambitions but enough power to get the momentum necessary- (Bernie Sanders comes to mind)
If we are going to have a constitutional amendment, I would also like to include the removal of constitutional rights for corporations - this is one of the key factors in oligarchs controlling who wins elections and subsequently the laws of this country
‘Nine people, sitting in a room you will never enter, decide whether your daughter controls her own body, whether your ballot counts as much as your neighbor’s, whether a president obeys the law or rises above it. One of them can hold that seat for thirty years’.
A journey into the mystical realm of Chumpism, where facts become fiction and fiction becomes facts.
What these ultra conservative Supreme Court Justices have shown is that absolute power corrupts. The concept of good faith and fair dealing no longer exists. We all know the corruption now made known to the American public, the rights taken away of ordinary citizens, the degradation of our country, the social and civil unrest this is caused.
Such extreme power should not be held in the hands of a few for ungodly terms. Term limits, age limits, expansion of the number of justices in order to limit the amount of power anybone particular justice has, the next time a Democrat is in charge, they need to get behind this legislation and make it the law of the land. The founders never contemplated the devious and malevolent minds of those sitting in positions of power at this time.
It is especially obvious that this Supreme Court has been stacked in a partisan coup in the making for many years. Ever read, "The Family: etc." by Jeff Sharlet? It did a great job of explaining part of the coup. That part is the evangelical right coupled with the Heritage Foundation and other factions of this 50 year project. The funders of the right, etc. It's totally insane. I'm sure there are other good books. That tRump is the front man is very weird. A good con for the ignorant. Thanks for your clear explanations. We older folks that pay attention are living witnesses.
Aside: Joe Biden helped the rise of Clarence Thomas, the class betraying criminal.
"In case a seat is vacated early, the fill in is not anyone's choice but a fixed rule: when an active seat opens early, the most recently retired justice automatically steps back in to keep the Court at nine until the next scheduled appointee is sworn in, so no president selects them, no vote occurs, and there is no extra seat to hand out or manipulate."
Consider this scenario:
1) a seat is vacated by a judge with 15 years remaining
2) The most recently retired judge fills that seat
3) a president begins a new term
4) the two judges who have completed their 18 years retire
5) the president appoints two new judges
6) the retired judge who filled the vacant seat now has 15 more years on the bench.
It is conceivable that the most recently retired judge, even in they are the youngest, will be old enough that another 15 years will push them past the point of being mentally capable of handling the job. In this scenario, a replacement will have to be found from some pool other than the cadre of retired judges who possibly are all too old. Asserting a maximum age for a newly appointed judge would not solve the problem because a judge can still die young.
Otherwise, if the president appoints one new judge for 18 years and appoints the permanent (18 year) replacement for the vacated seat, there will only be eight judges. The president will then be required to appoint not only two new judges to replace those who have reached the 18 year limit, but also to appoint replacements for those temporarily occupying prematurely vacated seats. The president will then be appointing more than two judges, all subject to chance again.
I understand that possibility could only happen during the short term between the date the amendment is enforced and the date the new president picks the first of his two SC judges
Sounds pretty good. I'd like to see something to rein in the SCOTUS from political actions or self enrichment. And 18 or 20 years in the job would seem enough. Thanks Mitch. How to go forward with such a proposal?
Thanks for an excellent post (especially the case law references) and a very balanced suggestion to deal with a current system that has recently been a victory of caprice over constitutional stability.
Regrettably, it sounds as if your country is stuck for another couple of decades with the "Sizzling Six" and their attacks on voting rights, their protection of wealth driving elections and their creation of an unbridled presidency and an all-powerful executive branch. In the absence of your proposed amendment, is there a solution?
A recent survey of 41,000 individuals in 43 countries found that roughly 70% of respondents now trust Putin and Xi Jinping more than they trust President Trump. A clear majority now do not view the Trump administration as a reliable international player. 80% of Canadians had a positive view of the US before Trump's inauguration and that number is now below 25%. (I guess one politically powerful answer the to the respondents in those 43 countries is: Who cares?).
I don't see this week's roster of judgments by the Sizzling Six is going to do anything to bring those numbers back to their historic, pre-Maga levels. Again, the answer may be: Who cares?
There is a way to address the Seditious Six, which is to address their ethical violations that would have a lower-court federal judge disbarred. Chief among the offenders is Chief Injustice John Roberts, who somehow failed to report millions and millions of dollars his wife earned over many many years through her job as a "head-hunter" for law firms that... practice before the Roberts Court! The problem is, no one in the DC Bar is willing to address this or other gross behaviors by "justices."
Personally, I am not willing to wait years for these criminals to be cycled off the bench and into an enormously, obscenely wealthy retirement.
This is the clearest case I've read for why the timing has to come out of human hands. I wrote a short piece from the one seat nobody puts in these debates — not the justice, not the senator. The doctor. The one who has to keep an old man sharp enough to wait for the right election, and who never breaks a single rule doing it.
It doesn't argue your point so much as sit underneath it. "The Justice's Doctor":
I believe the Supreme Court should be expanded. 16 year terms limits, any Supreme Court Justice that lies under oath should be impeached and removed. Independent Ethics Commission to review gifts and conflict of interest decisions.
I agree, Jill. I think the structure Mr. Jackson has suggested is brilliant! But I would like to see some structure to oversee the ethics code the Court has adopted, to ensure compliance. I think Thomas and Alito have shown us that the Court cannot be trusted to police themselves.
Roberts-- funnily enough the man who drafted a toothless ethics code for the justices--is perhaps the most flagrant abuser. His continued omission of his wife's generous income (in the many million$) from her job as a head-hunter for law firms that practice before the Court! would have gotten a lower-court federal judge thrown out on his ear.
I totally agree with all details of this Supreme Court amendment proposal
Dear Mitch Jackson,
I remember reading that you read every response in this page. You still haven't responded to my two questions re your plan to reform the Supreme Court.
These questions have to be answered. If they aren't answered here, they won't be answered if your proposal makes it to Congress. They will be asked, and without answers, the proposal will die.
I am reposting the questions again here:
Question 1:
What happens in the unlikely event that there are no retired judges to replace a prematurely vacated seat?
Question 2:
You mention that:
"In case a seat is vacated early, the fill in is not anyone's choice but a fixed rule: when an active seat opens early, the most recently retired justice automatically steps back in to keep the Court at nine until the next scheduled appointee is sworn in, so no president selects them, no vote occurs, and there is no extra seat to hand out or manipulate."
Consider this scenario:
1) a seat is vacated by a judge with 15 years remaining
2) The most recently retired judge fills that seat
3) a president begins a new term
4) the two judges who have completed their 18 years retire
5) the president appoints two new judges
6) the retired judge who filled the vacant seat now has 15 more years on the bench.
It is conceivable that the most recently retired judge, even in they are the youngest, will be old enough that another 15 years will push them past the point of being mentally capable of handling the job. In this scenario, a replacement will have to be found from some pool other than the cadre of retired judges who possibly are all too old. Asserting a maximum age for a newly appointed judge would not solve the problem because a judge can still die young.
Otherwise, if the president appoints one new judge for 18 years and appoints the permanent (18 year) replacement for the vacated seat, there will only be eight judges. The president will then be required to appoint not only two new judges to replace those who have reached the 18 year limit, but also to appoint replacements for those temporarily occupying prematurely vacated seats. The president will then be appointing more than two judges, all subject to chance again.
Those are my two questions. Please respond.
I think you are right, and a possible solution to the scenario you present could be to reduce the term from 18 to 9 years, and also reduce the presidential pick from 2 to one per presidential term, but with the possibility to pick also the replacement for any judge that dies before completing its 9 year term. The luck factor is not eliminated completely, but is minimized , because the term is reduced from 18 to 9 years
I like the idea of getting the discussion about Supreme Court adjustments fully out in the open and normalized.
But. This corrupt Roberts Court has gone so very far in shredding the Constitution, rejecting the notion of precedent, and way into the field of legislating from the bench, that One Fix is way insufficient.
An 18 year term is too long to keep Kegger Kavanaugh or Amy Coney Barrett around, even in minority. I'll say 12-- modern life is moving a lot faster than in the 18th and 19th Centuries.
And Justices ought to have a minimum of experience on the bench.
There are 13 federal appellate courts, 12 regional and one nationwide. The Court now hears about 70 cases a year, which is not enough. They have taken to rushing important issues through on the infamous "shadow docket," leaving lower court judges without guidance as to how to apply whatever the hell the Roberts Court meant? It's a Star Chamber indeed.
John Roberts wrote "ethics" for the Court that lack enforcement. Of course he did. The Justices must live by the same rules that other federal judges follow. Maybe even stricter rules? And we need to pull on our big-girl and big-boy pants and carry through on disbarring several of the crooks on the Court.
I would be in favor of holding the Supreme Court justices to what they say in their confirmation hearings - we have seen over and over again that these hearings mean nothing after they are appointed - if a Supreme Court justice rules against what they promised in their Supreme Court confirmation hearing then impeachment proceedings should commence - we must be able to hold these Supreme Court justices accountable to what they said to be confirmed to be on the Supreme Court
I LOVE this idea!
We have to do something about this corrupt Supreme Court and this proposal seems to solve this huge problem of bringing back our DEMOCRACY!
If we have both sides wanting to make a change as to who sits on the Supreme Court and for how long - then let’s find some political champion to get this constitutional amendment started - it has to be someone without presidential ambitions but enough power to get the momentum necessary- (Bernie Sanders comes to mind)
If we are going to have a constitutional amendment, I would also like to include the removal of constitutional rights for corporations - this is one of the key factors in oligarchs controlling who wins elections and subsequently the laws of this country
‘Nine people, sitting in a room you will never enter, decide whether your daughter controls her own body, whether your ballot counts as much as your neighbor’s, whether a president obeys the law or rises above it. One of them can hold that seat for thirty years’.
A journey into the mystical realm of Chumpism, where facts become fiction and fiction becomes facts.
You’ve entered the Twilight Zone.
What these ultra conservative Supreme Court Justices have shown is that absolute power corrupts. The concept of good faith and fair dealing no longer exists. We all know the corruption now made known to the American public, the rights taken away of ordinary citizens, the degradation of our country, the social and civil unrest this is caused.
Such extreme power should not be held in the hands of a few for ungodly terms. Term limits, age limits, expansion of the number of justices in order to limit the amount of power anybone particular justice has, the next time a Democrat is in charge, they need to get behind this legislation and make it the law of the land. The founders never contemplated the devious and malevolent minds of those sitting in positions of power at this time.
I feel like I and many others could interpret this little Constitution better than these hacks. It's a total racket!
It is especially obvious that this Supreme Court has been stacked in a partisan coup in the making for many years. Ever read, "The Family: etc." by Jeff Sharlet? It did a great job of explaining part of the coup. That part is the evangelical right coupled with the Heritage Foundation and other factions of this 50 year project. The funders of the right, etc. It's totally insane. I'm sure there are other good books. That tRump is the front man is very weird. A good con for the ignorant. Thanks for your clear explanations. We older folks that pay attention are living witnesses.
Aside: Joe Biden helped the rise of Clarence Thomas, the class betraying criminal.
You mention that:
"In case a seat is vacated early, the fill in is not anyone's choice but a fixed rule: when an active seat opens early, the most recently retired justice automatically steps back in to keep the Court at nine until the next scheduled appointee is sworn in, so no president selects them, no vote occurs, and there is no extra seat to hand out or manipulate."
Consider this scenario:
1) a seat is vacated by a judge with 15 years remaining
2) The most recently retired judge fills that seat
3) a president begins a new term
4) the two judges who have completed their 18 years retire
5) the president appoints two new judges
6) the retired judge who filled the vacant seat now has 15 more years on the bench.
It is conceivable that the most recently retired judge, even in they are the youngest, will be old enough that another 15 years will push them past the point of being mentally capable of handling the job. In this scenario, a replacement will have to be found from some pool other than the cadre of retired judges who possibly are all too old. Asserting a maximum age for a newly appointed judge would not solve the problem because a judge can still die young.
Otherwise, if the president appoints one new judge for 18 years and appoints the permanent (18 year) replacement for the vacated seat, there will only be eight judges. The president will then be required to appoint not only two new judges to replace those who have reached the 18 year limit, but also to appoint replacements for those temporarily occupying prematurely vacated seats. The president will then be appointing more than two judges, all subject to chance again.
What happens in the unlikely event that there are no retired judges to replace a prematurely vacated seat?
I understand that possibility could only happen during the short term between the date the amendment is enforced and the date the new president picks the first of his two SC judges
Sounds pretty good. I'd like to see something to rein in the SCOTUS from political actions or self enrichment. And 18 or 20 years in the job would seem enough. Thanks Mitch. How to go forward with such a proposal?
Thanks for an excellent post (especially the case law references) and a very balanced suggestion to deal with a current system that has recently been a victory of caprice over constitutional stability.
Regrettably, it sounds as if your country is stuck for another couple of decades with the "Sizzling Six" and their attacks on voting rights, their protection of wealth driving elections and their creation of an unbridled presidency and an all-powerful executive branch. In the absence of your proposed amendment, is there a solution?
A recent survey of 41,000 individuals in 43 countries found that roughly 70% of respondents now trust Putin and Xi Jinping more than they trust President Trump. A clear majority now do not view the Trump administration as a reliable international player. 80% of Canadians had a positive view of the US before Trump's inauguration and that number is now below 25%. (I guess one politically powerful answer the to the respondents in those 43 countries is: Who cares?).
I don't see this week's roster of judgments by the Sizzling Six is going to do anything to bring those numbers back to their historic, pre-Maga levels. Again, the answer may be: Who cares?
There is a way to address the Seditious Six, which is to address their ethical violations that would have a lower-court federal judge disbarred. Chief among the offenders is Chief Injustice John Roberts, who somehow failed to report millions and millions of dollars his wife earned over many many years through her job as a "head-hunter" for law firms that... practice before the Roberts Court! The problem is, no one in the DC Bar is willing to address this or other gross behaviors by "justices."
Personally, I am not willing to wait years for these criminals to be cycled off the bench and into an enormously, obscenely wealthy retirement.
Another good one! Pragmatism is your superpower!
This is the clearest case I've read for why the timing has to come out of human hands. I wrote a short piece from the one seat nobody puts in these debates — not the justice, not the senator. The doctor. The one who has to keep an old man sharp enough to wait for the right election, and who never breaks a single rule doing it.
It doesn't argue your point so much as sit underneath it. "The Justice's Doctor":
https://rossboulton1.substack.com/p/the-justices-doctor?r=2leuaj&utm_campaign=post-expanded-share&utm_medium=web
I believe the Supreme Court should be expanded. 16 year terms limits, any Supreme Court Justice that lies under oath should be impeached and removed. Independent Ethics Commission to review gifts and conflict of interest decisions.
I agree, Jill. I think the structure Mr. Jackson has suggested is brilliant! But I would like to see some structure to oversee the ethics code the Court has adopted, to ensure compliance. I think Thomas and Alito have shown us that the Court cannot be trusted to police themselves.
Roberts-- funnily enough the man who drafted a toothless ethics code for the justices--is perhaps the most flagrant abuser. His continued omission of his wife's generous income (in the many million$) from her job as a head-hunter for law firms that practice before the Court! would have gotten a lower-court federal judge thrown out on his ear.