07 October 2014

Abolish Lifetime Tenure at Supreme Court? And some comments on Judicial Reform


I have long held the view that ALL federal judicial offices should have a ten year term, non-renewable at the same level (although judges could be appointed to higher or lower levels). This would require a Constitutional Amendment, but ONLY for Supreme Court justices. The tenure, and even the existence of other Federal judicial offices, is purely the creation of Congress, through ordinary legislation. Most people don't realize this. In fact, apart from some mostly rather arcane matters specified in the Constitution as the province of the Supreme Court, even exactly what the SC, and for that matter, all Federal courts, have jurisdiction over is purely up to Congress. As is the organization and number of justices on the courts, including the Supreme Court.

So, apart from, and possibly in lieu of, a Constitutional Amendment to limit the terms of SC Justices, I think serious consideration should be given to the following:

♦ Carving out a separate Constitutional Division of the Supreme Court, which would hear only reviews of the constitutionality of legislative provisions, both State and Federal.
♦ Separate 3-judge criminal divisions of the Supreme Court to hear everything else, with en banc 9-judge review on Petition (if accepted).
♦ Increase number of justices to 18, with the 9 to hear Constitutional matters rotating among the 18 annually, to avoid "blocks" of justices becoming embedded in the court for long periods of time.

♦ Whether applicable to the Supreme Court or not (as that would require amendment), ten year non-renewable terms for all other Federal judges, and rationalization of the Circuit system strictly by equal-population Circuits.

All of this, except as noted, could be done by simple legislation passed by Congress and signed by the President (or passed over his veto).

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