How the Next President Could Change the Supreme Court

Its really too bad that politics and ideology makes so much difference in the Supremes, but with vague definitions of Taxation, Interstate commerce and General Welfare, things can be interpreted almost anyway they like.

PrintSmith wrote:

Democracy4Sale wrote: Anything that gets rid of Scalia, Thomas, and Alito, and replaces them with people who aren't GOP robots will be welcome.

Obama has not a prayer of any of them retiring in the unlikely event that he is elected to serve another term than Romney would have of Ginsburg or Breyer retiring after he is elected. Ideological purists will wait for a president whose ideology is more in line with theirs than risk having an ideological enemy choose their successor. That's why Souter and Stevens got out when they did. The realized that it was unlikely that such an extreme left wing president would come around again anytime soon and wanted to make sure their successors were chosen by someone whose ideological purity was close to their own.

I don't think it will be a question of them retiring but who is still healthy enough to serve. It is a demanding job mentally and most of them are past retirment age.
Suprised Ginsburg didn't retire last year. Her health has been poor lately.

Not so much, really. The Justices themselves determine their own workload. When that ability was granted to them in the 1920's the annual caseload for the Supreme Court was upwards of 350 cases per year on average. Today it is closer to 100. Each of the Justices has 4 (IIRC) clerks in addition to other support staff. It is the staff, rather than the Justice themselves, who perform much of the heavy lifting. The right of the litigants to invoke the jurisdiction of the court, weakened in the 1920's, was for all intents and purposes eliminated in 1988. Given that the Justices themselves now have sole control over their workload, unlike judges in other federal courts, the demands placed on them by their job are wholly theirs to determine.

There have been a few changes proposed to the system. One of them was that a one new justice, and only one, would be appointed at the start of the first term of each new Congress. If by that process there were more than 9 Justices, the 9 most junior would be the ones sitting regularly on the bench with the ones more senior called upon, in reverse order of seniority, to fill the bench should a justice recuse themselves from a particular case or be unable to sit due to disability. If death and disability reduced the total number of Justices to fewer than 9 then, and only then, would there be more than one Justice appointed during the term of the current Congress with that selection counting as the appointment allotted to the next Congress.

I, myself, favor the idea of allowing any decision made by the federal Supreme Court to be reviewed by a body consisting of the Chief Justices of the States' Supreme Courts. Such a change would necessitate an amendment to our Constitution instead of an act of the general Congress, but I also believe that it will yield a greater likelihood that the law is applied instead of the ideology that the current majority sitting on the Supreme Court happens to hold. I think some kind of super-majority should be necessary to overrule the highest federal court, but I also am of the opinion that the existence of even the possibility that it might be done would be sufficient to return the federal Supreme Court to applying the law instead of creating it themselves.

Interesting thought Printsmith about SC being reviewed by Chief Judge of State SC. Have to give it more thought but one concern comes immediately to mind. Wouldn't it take on a political tenor just like the SCOTUS being nominated by Pres in office? Wouldn't the Chief Judges be subject to the same influence by whatever Governor or commission or vote who selected/elected them?

One can only hope to limit the possibility of ideology trumping law trekker. Like any form of corruption, eliminating it entirely is a fool's errand. The best that can be hoped for is to keep the damages resulting from it limited. By expanding both the number and the diversity of those with whom the ultimate answer lies, it would be hoped that the ideology of one Justice or one region of the union would be less of a factor in deciding the question instead of an increased one.

I also believe that appointments to most State Supreme Courts are for a set period of time. I don't believe that any of the Chief Justices of the States' Supreme Courts are elected to their posts, but many of them are subject to retention votes after serving an initial term of whatever length the laws of a particular State dictate or limited to serving a single term. Failure to be retained is a rare occurrence, but the citizens of that State are the ones who decide whether the Justice has served them well or poorly during their term.

I have simply come to the conclusion that having final say on federal matters rest with a federal court is insufficient to protect the union from the federal government usurping powers it was never delegated to oversee. I see too many instances where its decisions have served to increase the power and reach of the federal government rather than restrain it starting with some of its earliest decisions and continuing onward to today. It just seems to me that resting the final say so regarding federal power in a branch of the federal government inserts an inherent conflict of interest into the process. Republicans and Democrats alike seem all too eager to invest an ever increasing amount of authority and power within the federal government once they are elected to federal office. The voice of the State governments within the federal system essentially disappeared with the amendment to choose Senators by popular vote of the people, and that missing element has had nothing but detrimental effects from that point forward in my opinion. I don't think that a simple majority vote coming from the States' Chief Justices is sufficient to overturn a federal Supreme Court decision, but if a significant majority of them, 3/5 or 2/3, feel as though the ideology of the majority and not the rule of law has prevailed in a given decision, there ought to be a remedy for such a transgression short of requiring that the people pass an amendment to the Constitution to correct it.