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February 12, 2009

Fascinating pitch for serious SCOTUS reforms

Marcia Coyle has this fascinating new piece in The National Law Journal, headlined "Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court."  Here is how it starts:

A group of 33 law professors, former state supreme court justices and practitioners are urging the attorney general and the heads of the Senate and House judiciary committees to consider four changes in the operation of the U.S. Supreme Court, including regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits.

The group sent the proposals in draft legislative form and noted that all of its members do not support all of the proposals, but are "unanimous" that it is time for Congress to reconsider the law applicable to the Supreme Court, "a subject it appears not to have seriously considered for at least 70 years."

The proposals grew out conversations among the group's members over a period of years, said professor Paul Carrington of Duke Law School. Although the members are not unanimous on all four proposals, Carrington added, "All of them have one background thought -- the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, 'You're part of an enterprise that we have some power over.' "

February 12, 2009 at 10:07 AM | Permalink


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The only one of these I can see gaining traction would be the infirm judge provision.

As for the appelate panel, depending on how it was structured, you would either shrink the docket even more, or it would explode incredibly.

One thing I wonder about how the docket has shrunk, looking at modern opinions, and even thse from the 1960s and 1970s, the Justices seem to put out a great deal more words trying to ground and justify the result the come to. That may of course mean they are trying to hide unjustified rulings behind lots of hand waving, or trying to buttress their decisions against future courts, or any number of other things, but opinions just seem to take longer to produce than was once the case.

I also don't believe removing the single panel nature of the Court would go over well, part of what makes SCOTUS a unique court is that all cases are heard by the entire court.

What duties does the CJ hold that are require any special oversight, everything I can think of is of such a cerimonial role as to be almost meaningless.

Mostly this just looks like complaining from a bunch of people who feel like the deserve control over the Court, or who possibly wish they were on it.

Posted by: Soronel Haetir | Feb 12, 2009 11:23:39 AM

the Justices seem to put out a great deal more words trying to ground and justify the result the come to

Kind of like law review articles.

Posted by: | Feb 12, 2009 11:50:34 AM

I have long argued (shouted into the wind) that we really do need term limits for not just the Supreme Court but the entire federal judiciary. The problem with a "lifetime appointment" is that lifetime does not mean the same thing today as it did 200 years ago, or even 50 years ago. It's like the great medical revolution of the 20th century never happened. In a democracy where Congress is up for election every two years, and the President every four, for a judge to hold office for upwards 30 years or more is unfathomable.

I agree with the notion that in some respects the judiciary is inherently more institutionally conservative than the other branches of government. But there has to be a limit somewhere besides just dying. I would like to see something along the lines of the Presidency. A minimum age of 35 years and a limit of ten years for a federal judge and 20 years for a Supreme Court judge.

Posted by: Daniel | Feb 12, 2009 1:34:53 PM

First, regular biennial appointments of new justices selected by the president and Senate in order to assure timely rotation within the membership of the Court. If an appointment results in more than nine justices, the nine who are junior in time of service would sit to decide each appeal certified for decision on the merits. The proposal also would create senior justices. This proposal was signed by 30 of the 33 members -- the greatest support.

Have we heard something similar to this before, circa 1937? And of course it is pure coincidence that this comes up immediately after a change in administrations.

Posted by: Kent Scheidegger | Feb 12, 2009 2:56:44 PM

In a democracy where Congress is up for election every two years, and the President every four, for a judge to hold office for upwards 30 years or more is unfathomable.

Ted Kennedy's been in the Senate for 46 years. Perhaps because of the seniority system and the expense of mounting a campaign, there are many seats in Congress that operate effectively the same way as judicial seats. Ted Stevens had his Senate seat for 40 years, and wasn't reelected in 2009 only because he committed an offense that was bad enough to get a federal judge impeached, and it was an election season in which his party generally got wiped out at the polls.

Nonetheless, I have no objection to term limits for federal judges... I just don't see why they're necessary.

As for the Supreme Court, I think the proposal floated a few years ago of regular term limits so that each president effectively has a minimum and a maximum number of appointments he can make to the Supreme Court is fine (I think it was 18-year term limits, so that each president gets to make 2 appointments every term or something similar... I don't remeber precisely how the math worked). This new proposal, though, sounds like at best a bunch of grandstanding by people who want to see their names in print with the Supreme Court and at worst a politically motivated court-packing plan.

Soronel Haetir, more than you ever wanted to know about the Chief Justice here:

More succinct statement at pp. CRS-4 to CRS-7 here: http://leahy.senate.gov/issues/SupremeCourt/PDFs/ChiefJusticeResponsibilities.pdf

The CJ isn't that much more important than the other Justices, but he's still probably more important than most people think.

Posted by: ab | Feb 12, 2009 3:27:03 PM

Kent, I don’t have an opinion on the "biennial appointment" suggestion, but I think comparing it to FDR's Court packing plan is inaccurate. The goal here is to get new Justices on a regular basis, not to (as FDR wanted) "pack" the Court with long-term appointments that support a particular ideology.

I also think you are being a little too cynical about the timing. According to the article, "[t]he proposals grew out conversations among the group's members over a period of years." This doesn't appear to be the case of "oh, a democrat is President, so let's recommend plan x."

And, to avoid any appearance of political timing, the plan could be implemented following the next Presidential election. For example, if it was passed in this Congress, the new appointment schedule would not become effective until January 2013.

I am also curious how Prof. Berman views proposal 4, given his criticism (warranted, IMO) of the cert pool. I like the idea of appellate judges having a say in what cases the high Court should here. I’m not sure the Court should be “required” to follow this group’s review, but getting some type of appellate court input could be valuable.

Posted by: DEJ | Feb 12, 2009 3:48:59 PM

Kent. Just to be clear, I wouldn't have a problem grandfathering in the current justices. I believe there is problem in the structure of our democratic system; this is a problem that is seperate and distinct from any philosophical difference I may have with any particular justice.

ab. You raise a real problem but at least in theory it's distinct from the issues with judges. Senators are beholden directly to the public. They go through electoral cycles every six years. One can argue, given the power of incumbency, just how effective that process is. But there is a real process. People really do vote. Even if it's just a token, at least there is that.

There is no such process for federal judges. Once you are in you are in and the only way you can be removed from office is malfeasance of some type or by dying. It's not just the fact that they are in there for 30 04 40 years that's the problem. It's that they are in there for 30 or 40 years with no process by which they can be held accountable to a democratic system.

And I would argue that this was never a significant issue at our nation's founding because most people simply didn't live that long. Yes, a few of them did. Holmes died when he was 94. But these were the exceptions rather than the rule. And given modern health care realities, someone like Roberts could easily be on the bench for 50 years. And whether I agree with his philosophy or not, that possibility is profoundly undemocratic (with a small d). No single individual should be able to maintain any type of significant power in a democracy without some regular accountability to a democratic process. Because if they can, you no longer have a democracy.

Posted by: Daniel | Feb 12, 2009 5:19:10 PM

Other than the proposal that calls for the Chief Justice to more or less publicly shame disabled judges into retiring, I don't think that any of them are constitutional.

If one is concerned that the U.S. Supreme Court is too powerful, the solution is the reduce the scale of the federal courts generally.

On the criminal side, that would mean taking federal offenses that duplicate state offenses off the books.

About 66,000 federal criminal cases are commenced each year. About 16,000 of them involve drug offenses which could in a large share of cases be tried under state law instead. About 11,000 involve frauds, thefts and robberies (the robberies are principally bank robberies) that likewise could be prosecuted under state laws. And, about 8,000 are for firearms offenses that could be prosecuted under state laws.

Some cases would have to remain in federal jurisdiction. About 16,000 cases involve immigration offenses that cannot, for federalism reasons, exist under state law. Several thousand more are brought in federal court because the arise on federal property or in Indian territory where no state court jurisdiction (including about 3,000 traffic offenses). But, a reduction in federal criminal caseloads by 25%-50% by reducing the number of prosecution made where state courts could handle the cases (a decision often to take advantage of federal law mandatory minimum sentences now) would be significant.

On the civil side one could winnow the scope of federal court jurisdiction while doing a minimum of harm by repealing diversity jursidction (28 USC 1332), and repealing federal question jurisdiction in federal questions when no other specific statutory authorization exists (28 USC 1331).

In the era of long arm jurisdiction, there is no compelling reason to try car accidents, slip and fall cases, disputes between private employers and their employees, for example, in federal court. This would still allow many kinds of civil cases that have a separate jurisdictional basis to be brought in federal court.

Remaining cases would include (with reference to the appropriate section of Title 28, cases involving governmental or quasi-governmental parties, or sovereignty derived rights such as: actions against foreign states (1330), Surface Transporation Board orders (1336), postal matters (1339), federal tax cases (1340), civil rights and election cases (1343), election disputes (1344), United States plaintiff (1345). United States defendant (1346), United States party real estate cases (1347), diplomatic cases (1351), Indian rights (1353), land grants from different states (1354), federal fines and penalties (1355), federal seizures other than admiralty (1356), suits against persons collecting U.S. taxes and enforcing voting rights (1357), eminent domain (1358), federal mandamus (1361), Indian tribe parties (1362), federal juror's rights (1363), direct actions against insurers of diplomats (1364), Senate actions (1365), unfair intentional trade counterclaims (1368), federal bonds (1352), and national bank liquidations and receiverships (1348)

Purely private party cases would include: admiralty cases (1333), bankruptcy cases (1334), interpleader (1335), certain commerce and anti-trust cases (1337), intellectual property cases (1338), alien tort claims (1350), and large interstate class actions (1369).

Something on the order of 150,000 cases involving private parties would end up in state court instead, reducing federal civil litigaiton by 57% as measured by numbers of cases, although it would be an even greater reduction in practice, because many diversity cases are more time consuming than a good share of the cases like U.S. government collection cases and prisoner's petitions, which would remain in federal court.

It would also probably be constitutional to give the U.S. Circuit Courts of Appeal appellate jurisdiction over federal questions after all direct appeal remedies have been exhausted in the state courts, a power now consolidated entirely in the U.S. Supreme Court.

Alternately, Congress could adopt the Utah model, and give the U.S. Supreme Court the power to refer a case within its jurisdiction to an intermediate court of appeal, a power that might be exercised by SCOTUS for error correction in direct appeals of federal questions where there is no circuit split or major constitutional issue to resolve.

Posted by: ohwilleke | Feb 12, 2009 5:36:06 PM

If one is concerned that the U.S. Supreme Court is too powerful, the solution is the reduce the scale of the federal courts generally.

On the criminal side, that would mean taking federal offenses that duplicate state offenses off the books.

That's part of it, but the larger part would be undoing what Judge Friendly called a "detailed code of criminal procedure, to which a new chapter is added every year" that the Court claims to have found in the Bill of Rights. That can't be undone with a simple statute.

Posted by: Kent Scheidegger | Feb 12, 2009 5:44:53 PM

Another reform that would clearly be constitutional would be to add an intermediate appellate court between the U.S. Circuit Courts of Appeal and SCOTUS in lieu of en banc review, with an eye towards resolving splits within and between circuits before SCOTUS is required to resolve them.

Incidentally, in Civil Law systems the prevailing pattern of judicial organization to to have a supreme court roughly the size of the U.S. Courts of Appeal and Supreme Court combined, internally organized on a subject matter basis, and then to a separate quasi-political court vested with jurisdiction solely over constitutional questions that sits en banc. Those systems also generally limit judicial review to questions raised directly with the constitutional court, rather than allowing ordinary judges to decide constitutional questions (including judicial review of statutes) as part of the overall business of ruling on law in the cases presented to them.

Posted by: ohwilleke | Feb 12, 2009 5:48:12 PM

Kent, your right, constitutional criminal procedure, because it is constitutional, can't be undone with a simple statute. Moreover, elaborate statutory restrictions on habeas corpus review of state convictions also limit such cases to something close to the consitutionally permitted maximum.

One way that burden could be shifted, however, is to create an intermediate court of appeal between the Circuit Courts of Appeal and SCOTUS, in lieu of en banc reviw. This is the path, through federal habeas review, by which many constitutional criminal procedure cases end up in the U.S. Supreme Court. It would also provide a court to clear up lots of fairly routine intracircuit and intercircuit splits of authority.

Posted by: ohwilleke | Feb 12, 2009 5:55:21 PM

Yes, but that would add another layer of review to a process that already has too many layers of review.

With regard to too many habeas cases coming to the Supreme Court, a better approach would be to recognize that Justice Stevens had it right way back in Rose v. Lundy. Federal habeas as a collateral attack on state judgments should be limited to the truly fundamental violations such as lynch mobs surrounding the courthouse and confessions beaten out of prisoners. The myriad secondary rules created by the Warren Court and later shouldn't be grounds for collateral attack.

Posted by: Kent Scheidegger | Feb 12, 2009 6:18:26 PM

Daniel, you're right, of course, that the process of electing Senators is meaningfully different from the process of appointing judges. I don't think the general increase in longevity is quite as significant as you do, though. It has significant practical effects, as presidents can now appoint older people than they could in the 1700s and expect them to have good-sized careers, and they can also now appoint young people and expect them to sit on the bench for 30-40 years instead of, say, 20. But I don't think that it follows that life tenure for judges is problematic now in a way that it wasn't at the founding.

ohwilleke, I think you're right that 3 of the 4 proposals are unconstitutional, and I think your description of the permissible proposal is quite apt.

I agree with Mr. Scheidegger's point about creating basically an magistrate supreme court. It might be constitutionally permissible, but it seems inefficient.

And I agree that criminal procedure an habeas are a mess, though I don't think it's fixable. It's an article of faith among most in charge of the legal profession that it's always good to give criminal defendants and convicts more procedure, and moving in the other direction would put a bunch of people out of business. Revising the federal criminal statutes might be doable, but it seems hard to pass that sort of thing in Congress without a lot of pork.

Posted by: ab | Feb 12, 2009 6:41:04 PM

ohwilleke, on what basis would the other three proposals be unconstitutional? So long as nothing in Article III is violated, it's not clear on what grounds the proposals are unconstitutional. I guess you could rely on a general "separation of powers" principle, but each of the three proposals you find objectionable already has some established authority for it.

First proposal: Congress sets the number of justices. 28 USC 1. They could, a fortiori, establish that a new Justice shall be appointed biennially. And, in doing so, Congress can dictate how seniority is determined. 28 USC 4. Similarly, Congress has the power to state that a merits panel of the Court be, at most, 9 Justices. See 28 USC 46(c). The proposal admits that dictating which nine Justices (if there are more) will decide the merits of cases may be problematic. However, there is precedent for Congress regulating what judges may sit in a particular type of proceeding. See 28 USC 46(c) (regulating which judges may sit during in banc hearings).

Second proposal: You acknowledge is constitutional

Third proposal: Congress has the authority to determine the requirements of a Court's highest judge, as well as setting term limits for that position. See 28 USC 45(a)(3)(A).

Fourth proposal: Congress has the authority to regulate the methods by which the Court hears cases. See 28 USC 1254. In fact, Congress can – and has in the past – establish “mandatory jurisdiction” by giving certain parties the right of appeal to the Supreme Court. Congress could set up a body of appellate judges to review what are now cert-petitions, and provide the Court mandatory jurisdiction over cases that that body approves.

This doesn’t mean these proposals are all wise, but I don’t see them as unconstitutional.

Posted by: DEJ | Feb 12, 2009 6:47:40 PM

The first proposal amounts to denying old judges a vote, thus denying them the benefit of the good behavior term they have under Article III. It amounts to impeachment by implication, rather than in the process set forth in the constitution, violating Article I. Further, the first proposal generally seems quite analogous to the cases that have head that statutes may not impose additional statutory requirements on members of Congress beyond those stated in the constitution. And, the fact that the judicial branch has sometimes not challenged regulations like 28 USC 46(c) does not mean that there aren't lurking separation of powers issues there. At some point, micromanagement of SCOTUS procedure is probably unconstitutional.

It is also not at all obvious that the power to set the number of judges on a court on a case by case basis is the greater power and hence a fortiori implies the power to add new judgeships without a vote of Congress every two years but only if there is not a vacancy.

With regard to the first and third proposal, the mere fact that Congress has enacted statutes doesn't mean that they are constitutional. I am not aware of a single precedent for a Presidentially nominated and Senatorially approved judicial nominee being denied office by the judicial branch for want of qualifications. Term limits for judges violate the good behavior clause of Article III. 45(a)'s validity also has something to do with the fact that the Chief Judge has very little judicial power, even though the Chief Judge has significant administrative power. Likewise, the senior judge concept in place now in the federal courts works only because it is voluntary -- it is implemented more or less by pension rule logic and economic incentives, not mandates.

With regard to the fourth proposal, there are both seperation of powers issues, and delegation issues. If the constitution prohibits a legislative veto as undue delegation of powers, it is hard to see why it shouldn't prohibit a statute that delegates the determination of the scope of SCOTUS mandatory jurisdiction to a bunch of Court of Appeals judges. It is one thing for Congress to say by statute what is within the mandatory jurisdiction of the Supreme Court, and quite another for it to delegate a determination concerning what cases are in that catagory to others.

Posted by: ohwilleke | Feb 12, 2009 8:08:51 PM

ohwilleke. I always understood the idea of term limits for federal judges to require a constitutional amendment. I never intended to imply that this was something that could be done by Congress alone.

Posted by: Daniel | Feb 12, 2009 8:43:40 PM

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