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Reimagining the Court


Photo by Abdul El-Tayef/WPPI Photography

On Friday, George Washington University Law School held a conference entitled “Rethinking the Law Governing the Structure and Operation of the Supreme Court.” Each of four panels examined a different proposal that would substantially change the way the Court operates.  However, the panelists and audience members were often skeptical about both the specifics of the proposals and whether the problems that the proposals were designed to remedy in fact existed.

Details of what happened follow after the jump.

First Proposal: Regular Appointments of Justices.

This proposal was aimed at resolving three perceived problems:  (1) the disparity in the number of appointments made by different presidents; (2) some justices serving overly long terms; and (3) some justices becoming senile while on the bench.

Under this proposal, the President would appoint one new justice every two years.  All justices could continue to hold office at will, but only the nine most junior would serve as active justices.

Cynthia Hogan, counsel to Vice President Biden, posited that it would be a “tough road” to enact such a proposal, and she further cautioned that the proposal might merely shift the contentiousness of the appointments process to presidential campaigns.  Prodded by the audience, Hogan also offered some insights into what she described as a“live issue” within the White House:  whether to nominate non-judges to the Court.  “I think there’s a very strong desire for [the appointment of non-judges] to happen; whether or not it will [happen] remains to be seen,” she said.  A broad portfolio of public statements on controversial issues, she said, can make candidates with political rather than judicial backgrounds much harder to confirm.

William Marshall, a visiting professor at George Washington, was also concerned that the proposal would change presidential politics.  A law that guaranteed each president two appointments to the Supreme Court would encourage election debates about social issues the Court has decided – including abortion and gun rights – and oblige new justices to “deliver” what their appointer promised.

Second Proposal: Seven-Year Term Limits for Chief Justice.

This proposal focused on the question of whether the Chief Justice’s term should be limited in light of the additional administrative burdens imposed by the job – as Yale Law School professor Judith Resnik put it, whether “the chief administrative role gets in the way of the judge’s role, or vice versa.” As she described, a great deal of administrative power has accrued to the job, from controlling the multimillion-dollar Court budget to assigning opinions to other justices to serving as the spokesperson for the vast federal judiciary.

Dean David Levi of Duke Law School expressed concerns that the learning curve for new chief justices was sufficiently steep that a seven-year term would weaken the Court, while former New York Times journalist Linda Greenhouse questioned whether the administrative burden was in fact a problem:  she noted that the late Chief Justice Rehnquist was able to leave the Court early to take painting classes after work. Professor Lee Epstein of Northwestern University wondered whether the prospect of serving under a different chief later would temper the Chief Justice’s use of the power to assign cases for personal purposes.

Third Proposal: Creation of a Certiorari Division.

This proposal was in part intended to remedy an issue that all the speakers agreed was a problem: the Court’s “shrinking docket.”  Under this proposal, a group of court of appeals judges would select petitions that the Court would be obliged to hear.

Some panelists focused not on the number of cert. grants but on the kinds of cases that the Court opts to consider, lamenting that the Court examines too many hot-button social issues.  Judge Gerald Tjoflat of the Eleventh Circuit expressed frustration that the Court does not provide more guidance to the courts of appeals on mundane – but more common – procedural questions.  Former Solicitor General Kenneth Starr declined to weigh in on the proposal expressly, but he vehemently argued that the Court’s “cert. pool” – a labor-saving device employed by seven of the current justices – should be abolished.  In his view, the Court’s law clerks behind the pool are – while brilliant – too inexperienced to bear such responsibility in making the initial cut.  And another panelist –  George Washington law professor Amanda Tyler – offered an alternative proposal:  that the Court should take up more “certified questions” from the courts of appeals.

Fourth Proposal: An Obligation for Disabled Justices to Retire.

This proposal would be included among other provisions in a judicial ethics code and would impose a duty for a justice to “voluntarily retire when he or she is no longer able fully to perform the duties of the office held.”

Brookings scholar Russell Wheeler was dubious that the proposal would have teeth unless backed by the threat of impeachment – which, he posited, has its own practical problems.  Another panelist, Indiana University professor Charles Gardner Geyh, worried that the proposal would politicize disability, encouraging members of Congress to investigate justices appointed by opposing-party presidents for perceived infractions as minor as dozing off during oral argument.

More information about the conference and the full text of the proposals can be found on the event website.