A Supreme Idea
Now, this is not another post on why the Senate should filibuster Obama so much as opening his mouth about SCOTUS, nor is it a directive for the Senate to do its job, get out of the way, and let the President appoint a replacement ASAP. Those columns, blogs, and Facebook and Twitter posts are prevalent enough. Rather, I want to take this opportunity to discuss SCOTUS on a larger scale.
First, let me pause and ask all of us to step back for a minute. Justice Scalia left behind a wife and nine children. He spent thirty years on the bench, advocating not for his political ideology but for constitutional law. Lost in conspiracy theories about his death, calls for his replacement, calls to block his replacement, and a host of demagoguery is the fact that the Scalia family just lost a husband and father and America just lost a great man. Sadly, everything gets politicized immediately these days, and one side blames the other and insists they’re simply being political themselves to get ahead of the spin. I’m guilty of it as well. But perhaps next time, we could at least let the body get cold before we start firing shots across the bow?
SCOTUS was established by Article III, Section I of the Constitution, which states: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” The parameters of SCOTUS are somewhat vague, and I think now is a good time to put forth suggestions on a few changes to the court. Admittedly, I am not a constitutional lawyer (but Ann Coulter is, so . . .) and my blog will have no influence on changing SCOTUS. Well, maybe it will. Maybe it will start a grassroots movement. Maybe someone will share this blog on Facebook and someone else will share that Facebook post and a Congressman will see it and start drafting the Twenty-Eighth Amendment to the Constitution. If so, here’s what I hope it enumerates:
1) SCOTUS should consist of 15 justices, not nine, and should require a two-thirds majority to reach any consensus or decision. (Therein failing, the previous standard remains in place.) As it is right now, a simple majority (five of nine justices) can change the law. In 1973, five justices made Roe v. Wade law, legalizing abortion. Think about that. If you’re pro-life, that means five (5!) people made it legal to kill almost 60 million babies. If you’re pro-choice, you’re happy with the ruling of five justices. But what if the shoe is on the other foot? What if five (just 5) justices ruled against same-sex marriage and made it illegal in all 50 states? What if five justices struck down the Affordable Care Act? Or ruled that First Amendment privileges didn’t extend to, say, blogs or Facebook posts? Or said that guns were illegal for private citizens to own for purposes of self-defense, or conversely removed any and all bans, limits, wait periods, or background checks on weapon purchases? Extreme situations, perhaps. But the point is, five people have nearly unlimited power. Increasing the number of justices and requiring a two-thirds majority would double the number of people necessary to wield such influence. The chances of corruption (I have the utmost respect for SCOTUS, but the justices are human, and power corrupts) or political bias weighing in on a decision, as opposed to strict Constitutional interpretation, would be significantly lessened.
2) Justices should be appointed, not for life, but for a fixed period of time. As we’ve seen with politicians, if justices are running for reelection, the very real and present danger exists of them ruling and judging to earn favor and votes. Political expediency will replace diligent jurisprudence. On the other hand, if a justice knows that they are untouchable, they have no accountability. They can go completely off the rails and, short of impeachment (which has never happened), no one can do anything about it. Increasing the number of justices and requiring a stronger majority will mitigate a “lone-wolf” justice, but so too would instituting fixed terms. I recommend 15 or 20 years.
3) Appointments should be staggered, such that one president (say, an arch-conservative) doesn’t get to nominate and appoint two or three justices while his successor (say, a staunch liberal) doesn’t get to appoint any. Or vice versa. With fixed terms and staggered appointments, and with exceptions of death or other irregular exceptions, each president will nominate the same number of justices per four-year term. As always, the people will have their say in voting for president and voting for senators that get to “Advise and Consent” on the president’s nomination.
Now, I would expect a Constitutional Amendment do be worded much loftier than my thrown-together blog post, with random words capitalized and misspelled, per the original document (yes, I’m just being cheeky now). Perhaps there are some other parameters that should be added to the three above. Perhaps I’ve overlooked some reason why these three wouldn’t be prudent. So I pitch it to you, the American people. What do you think? Good ideas? Bad ideas? A little of each? Let me know your thoughts and, particularly if you agree, let your elected representative know them as well!