Sunday, September 26, 2010


The minions of nose count jurisprudence are awash in speculation about the Supreme Court these days.

Ruth Bader Ginsburg, already 77 years of age, will surely step down while Barack Obama is in the White House, maybe even before Thanksgiving if the GOP should win the Senate in 37 days.

Steven Breyer is 72. Probably plans to quit during Obama’s second term.

The next two names being mentioned are Antonin Scalia and Anthony Kennedy. Both were born in 1936. Neither will want to give the current Chief Executive a chance to choose his successor.

And so it goes. 2012 will be another bru-ha-ha over who gets to appoint the justices.

And why does it matter?

It matters because the Supreme Court of the United States has become just another political branch of government. Just another center of power where people go to get what they can’t get from the Congress, or from their state legislatures.

Used to be folks argued about activist judges versus strict constructionists.

Conservative Justices were just supposed to interpret the laws and the Constitution. Stay out of the voting booth. Stay off the editorial pages. Leave the hot button issues to the representatives elected by the people.

Bush versus Gore put an end to that. If you’ve got a majority of the Court, you’re the seven hundred pound gorilla. You can do whatever you want to do.

Then again, maybe, just maybe, the stars are well aligned to talk about how to get back to basics. Lots of folks are ticked off with both parties. Tea and coffee parties have emerged because the folks don’t even want to be called Republicans and Democrats.

Independents are on the march. Here’s something they ought to be marching for: a non partisan Supreme Court.

Is that possible? Isn’t everyone something? Right, left or whatever. But not just nothing.

Well, of course, nobody’s just nothing. Every judge has principles and preferences, experiences and opinions. It’s human nature.

But almost all of the 50 states have found a way to insulate their judiciary from the nitty gritty of partisan politics. Non partisan elections, Missouri Plan nomination, appointment advisory boards. There are lots of ways to soften the hard edges of party loyalty.

So here’s my thought for the day:

The Supreme Court shall consist of the current nine justices and their successors who shall be appointed for eighteen year terms by the President, without confirmation, from among a panel of five candidates nominated by the Chief Justices of the highest courts of the several states.

The Court shall interpret the Constitution and its amendments as understood by the people who ratified them and shall render no opinion enlarging or diminishing the powers of the government or the rights of the people.

I submit that this amendment would put an end to talk of court packing, to Presidents appointing justices to promote political agendas, to Senatorial confirmation circuses, and to tottering, dottering old men and women sitting on their Supreme Court seats, waiting for their party to win the White House.

If you’re with me on this, let me hear from you.


  1. I would instead have the composition of the SCOTUS reflect a shift to regional government, with on Justice per region (there would be 7) and the Chief being the senior Justice. The regional VP would submit 3 names to the POTUS and if nations were added to the US as additional regions, each region would also get a Justice.

  2. I am right on with your proposal, is. The Supreme Court has become much more involved and in control than the Founding Fathers ever envisioned. Your proposal would bring back balance.

    Len Deming

  3. Right on, Judge. Now how do we get Congress to pass such a bill by 2/3 of each house so that it can go to ratification? Even if conservatives get a decent representation in Nov 2010, I despair that your suggestion will even get noticed. Woe is us!

  4. Nelson:
    Congress won't do it, but an Article V convention can. Join and help us get a convention!

  5. Old Judge, IT'S PERFECT – Let's have an Article V Amendments Convention and get it proposed and then ratified.