14 June 2024

We cannot afford to just accept the unacceptable status of the Supreme Court

Once more, I just don't get it. OK, we don't have the votes. Yet. But, assuming optimistically that we can get both houses and the presidency, is there any good reason why the Supreme Court should not be subjected to some course correction? Norms? Seriously? The Fascists have trashed all norms, so just innate reluctance to change anything is not a reason not to. The following can be done without a Constitutional amendment, and assumes only that we end the filibuster once and for all, which we should:

1.  Impose strict ethical standards. $50 maximum gift, just like Congress. Recusal mandatory on any case where it would be required of any other federal judge (or any judge anywhere in the US, for that matter; why should the highest court be the least ethically constrained? There is no good reason, so no more weaseling around. Say right in the statute that "violation of ethical standards applicable to the Federal judiciary shall be considered misdemeanor and grounds for impeachment under the existing language of the Constitution." Sometimes legislative intent needs to be explicitly stated; and the fact is the Constitution already gives Congress the power to determine what the jurisdiction of the Courts is, and to set standards for their orderly administration. It's just nuts to argue this doesn't give the Congress the right to decide what kind of conduct warrants its own exercise of the impeachment power. 

2. Adopt the principle of one justice for each judicial circuit, which we had until fairly recently. There are now 13 circuits. The Congress should increase the size of the Supreme Court to 13. It takes only a statute, signed by the president. That's it. Should be done as soon as possible, highest priority. I believe a majority will support this if it's presented correctly. 

3.  Seriously look at some restrictions on what the jurisdiction of the court entails. The court needs to accept that the Congress can make laws that entail significant regulation of commerce to protect the public. The court should not be able to simply ignore all precedent and take away established constitutional rights. This is tricky, but just throwing up our hands and doing nothing is not an option

4.  While justices serve "for life" (actually during "good behavior"), the Constitution does not explicitly say that means they serve on the Supreme Court for life. We should look carefully at the constitutionality of rotating judges from the DC Circuit onto the Supreme Court, and then back off again, after a term of 5 or ten years. This might not be feasible but it should be looked at. 

5.  Finally, while it can't be done without a Constitutional amendment, we need to start at least thinking about, and planning a judicial reform Constitutional Amendment, or set of them. 10 year non-renewable terms for all Federal judges. Explicit duty to protect democracy and voting rights. There are any number of things, but the point is we need to seriously consider the reforms to be made, draft the proposed amendments, and work assiduously, even if it takes a generation, to get them passed. 

Thanks for listening to my rant, but I mean every word. The current situation is a disaster, and we need to start working on fixing it. 

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