Tuesday, July 7, 2009


I have in hand a letter addressed to Vice President Joseph R. Biden, Attorney General Eric J. Holder Jr. and the leaders of the Judiciary Committees of both Houses of the United States Congress.

The letter is signed by thirty-five law professors and legal scholars. It contains four proposals for legislation by the Congress concerning the United States Supreme Court.

Here are brief summaries:

Proposal One would authorize the President to name an additional Justice to the Court every two years. The nine junior members of the Court would decide the cases. Senior members would continue at full pay and sit only as needed when a sitting justice is recused or ill.

Proposal Two would create a four step procedure to oust a Supreme Court Justice who becomes incapacitated.

Proposal Three would limit the term of the Chief Justice to seven years.

Proposal Four would create a Certiorari Division in the Supreme Court staffed by senior Judges of the United States Courts of Appeals. The Certiorari Division would decide which cases the Supreme Court would hear.

The proposals are not as blatantly political as was Franklin D. Roosevelt’s plan to pack the Court in 1937, but there can be no doubt that the first three proposals would have the net effect of making the Supreme Court more nearly reflect the views of the President of the United States.

In an open letter to law school deans, the proponents describe their proposals and flesh out some of the reasons that have prompted them to advance their ideas.
Undergirding much of the proponents’ initiatives is their concern for judicial superannuation. Supreme Court Justices, they say, live too long, stay on the court too long, become physically or mentally disabled, work less, delegate too much to their clerks, and decide too few cases.

At the same time, some of the professors express concern that the Supreme Court has become a super legislature, making laws which a majority of the Justices feels are in the best interest of the public and justifying their actions by sophistic rationalizations of the constitution.

To some degree, these are related problems. Supreme Court Justices have been known to delay or defer their retirement until after a general election in hopes that a candidate whose opinions they share will be elected.

It is commonplace to describe a given Supreme Court as liberal or conservative. Nose count jurisprudence occupies much of the attention of constitutional scholars and court watchers. How many liberals? How many conservatives? Who are the swing votes?

Almost no one believes that cases are decided in the Supreme Court according to laws and precedents that are dug up through scholarly research. The popular opinion is that the Court’s decisions simply reflect the personal and political preferences of a majority of the Justices.

The view that the constitution is what the Supreme Court says it is prevails in most law school classes, as well as in the popular media.

In short, the United States Supreme Court is generally conceded to be a national oligarchy which rules by fiat.

That fact doesn’t seem to trouble most Americans. Pragmatism is the “ism” of our time; “Gitter done” our national mantra.

Proponents of change don’t much care how it comes about. Presidential proclamation, Congressional enactment, judicial decree, constitutional amendment, and popular referendum are all equally acceptable as long as the result is desired. No doubt a benign and generous military coup would be equally welcomed by many Americans.

In the inner sanctum of appellate courts, the temptation to ‘do good’ hangs in the air like cheap perfume. I remember once telling my colleagues in the Michigan Supreme Court that I doubted we had the authority to take an action under consideration; to which an older justice replied, “If we do it, who is to gainsay us?”

The thirty-five proponents of Supreme Court reform lay claim to being a diverse group of well known legal academics, judges and lawyers. The ‘judges and lawyers’ contingent is minimal. Thirty-one of the thirty-five proponents have email addresses ending in .edu.

A little Googling reveals that the proponents are among the intellectual elite. The Universities with which they are affiliated and from which they have earned degrees; Harvard, Yale, Michigan, Virginia, Texas, Stanford, Duke, Columbia, and Chicago are the same institutions which supply the Supreme Court Justices with most of their law clerks. Indeed these institutions claim as alumni an inordinate percentage of the Justices themselves.

The only problem with the intellectual elite is that they are intellectually elite. They are smarter than most folks and they know they are smarter than most folks. Of them it may be said, with C.S. Lewis:

"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be the better to live under robber barons than under omnipotent moral busybodies. The cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."

The net result of the academic proposals would be to make the United States Supreme Court younger, more politically attuned, and more productive. They propose nothing to mitigate the power of the Court to issue any kind of edict a majority might agree upon. In fact, revving up the Court would extend its writ at every term.

Whatever checks and balances may exist among the three branches of the national government, there are no similar controls in place to maintain balance between the states and the nation. The rising tide of national power raises all of its constituent boats.

A younger, more vigorous Supreme Court can be expected to bolster the national government at every opportunity.

The notion that self restraint is the only possible limit on the power of the national judiciary assumes that the body politic has no avenue to reassert the vision of the founders.

Our Constitution created a federal republic, not a national democracy and certainly not a national oligarchy.

And the Constitution is still the Supreme Law of the Land.

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