A Random Walk for SCOTUS
Sometimes a little randomness is the secret to a more effective democracy. And a map to reforming the Supreme Court.
Article III establishing the judicial system attracted little debate at the Constitutional Convention and consequently was the least well-envisioned branch. The Founding Father’s main judicial concern, as charged in the Declaration of Independence, was King George III’s meddling with colonial home rule by undermining the authority of American courts. In response, the Convention instituted safeguards for judicial independence¹ including lifetime tenure, a salary ratchet, and an appointment process split between the Senate and President.
But the role of the highest court remained loosely defined, and frankly, the third branch was initially a “twig” compared to the massive trunk of Congress and the strong limb of the Executive.
As the Executive Branch accumulated power and the nation grew in size, stature and complexity, the issue of “quis custodiet ipsos custodes?” (“who will guard the guards themselves”) arose. How do you resolve a conflict over constitutional interpretation between the three branches?
Madison suggested each independent branch might assert its own interpretation, eventually forcing a political compromise by wielding their constitutional powers against each other. But this “trial by combat” method soon foundered, leaving in its wake unresolved conflicts and flip-flopping policy as the branches changed leadership.
Politics abhors a power vacuum. SCOTUS stepped in on the heels of Marbury v Madison, gradually assuming the lead until the Court now proudly wears the crown of “judicial supremacy” (more details here). If you asked the average man on the street, they would immediately respond the Supreme Court is, and has always been, the final word on the constitutionality of laws. Though the legitimate basis for that power is, at best, aspirational.
Delegating constitutional interpretation to the Supreme Court is rife with problems, from amplifying political agendas to insularity to selective interpretations of history.
Alternatively, a public referendum through the Article V amendment process could decide constitutional questions in the name of people (and, err, the states). But structural and political realities have caused this blunt instrument to fall into neglect- the path is so Byzantine and oblique, that amendments are a failed last resort. Not to mention, given the thousands of cases that come before the Court each year, impractical.
Accordingly, as a pragmatic remedy, legal scholars focus on Term Limits. They agree Judicial Supremacy is the de facto law of the land and hope to depoliticize the court and improve responsiveness by aligning its composition more closely with the legislature (and so in principle, the views of the public). Politicians instead sometimes focus on court packing, which is as much a veiled threat as a quick remedy to shift the balance of power within a term.
Other countries (Scheppele), benefiting from two hundred years of American experience, either authorize non-partisan specialized courts to decide constitutional questions, and/or implement a rapid method for the legislature and public to amend. Which defuses political pressure to pack the court with extreme partisans.
In the US, no such rapid process currently exists, and while sorely needed, is unlikely to be instituted. So how can term limits be designed as an effective remedy without an amendment?
We propose to expand the court from nine to fourteen justices by statutory means, and RANDOMLY limit their terms to an average of 14 years.
First, why so many justices, at the upper end of comparable democracies?
- The more justices, the more likely they reflect an average political position accumulated though a decade of alternating nominations by each party.
- The loss or views of one justice is unlikely to flip a decision.
- It makes it easier for a Justice to recuse themselves, something they are loath to do in a 5–4 court.
- Extreme opinions are balanced by other extreme proponents, opening room in the (hopefully greater)middle for consensus.
- With a larger bench, they might create specialized sub-panels to hear different classes of cases, as is common in other democracies
- And, with controversial cases there will be a wider range of ad seriatum opinions, which are frequently informative and the key to systemic judicial evolution.
Second, we would establish, by statute and by tradition, that a 7–7 or 8–6 decision applies to that case, and that case, alone, and only can be treated as a constitutional precedent if a 9–5 decision (63%) or higher.
Just as the Article V process requires a supermajority (⅔ of Congress and ¾ of the states) to ratify an amendment and change the constitution, an unelected court should be held to at least the same high standard.
But a supermajority in a nine person court hinges on just one person above a tie-breaker. So it lacks the legitimacy required by such a hallowed responsibility.
An even number of judges is a feature, not a bug. A tie is less likely in a larger court, we routinely accept 4–4 decisions, and in any case, other countries have demonstrated that the prospect of a tie helps forge a compromise ruling.
Now to term limits. The motivation for term limits (see Chilton) are all well understood, and principally focus on aligning the court’s ideology closer to the publics. A regular system of appointments and retirements constantly renews the court’s profile (to satisfy the “life tenure” clause in the Constitution they would cycle back onto the Federal Bench). This cycle can still be gamed, but there are some reasons (er, hopes) it will dial down the incentives to appoint faithful ideological warriors at each opportunity.
With fourteen members and new justices appointed annually, we could simply term-limit at 14 years (current average service is 17 years) and call it a day. But a two-term president with control of Congress could appoint 8 judges in a row and pack the court. Unacceptable. So, most proposals assume nine judges and biannual appointments and two appointments a term. Except with 14 justices, biannual retirements would lead to an extreme 28 year tenure.
Fortunately, there is a solution that leverages the value of randomness. And maintains the 14-year term.
In a random term-length system, a justice is guaranteed a seven-year term. All justices with greater than seven years of service (half the court at any one time) are subject to a lottery every two years. So, their average length of service would be 14 years (7 fixed plus an average of 7 years due to the luck of the draw). Some longer, some shorter.
Why random term lengths? Well, it neatly solves a number of problems that lifetime appointments OR a fixed term generates:
- First, the biannual nomination and consent process for new justices would happen BEFORE the summer where the lottery is held. Thus, Congress is unaware of the particular justice (and their ideology) that is retiring. Without a clear target, nominations become less of a pitched battle to fill an ideological slot.
- Second, it addresses the “final period “problem. With term lengths uncertain, justices cannot game their remaining time on the bench to pander for a new job, or burn bridges with their colleagues, or easily time their retirement for political reasons. Nor is their an advantage to swapping an older justice for a younger, ideologically aligned, candidate.
- Third, the Justices are less likely to transform court precedent by bootstrapping a series of their own minor decisions into a major new constitutional principle. They cannot rely on a lifetime appointment to pull-off this stratagem.
- Fourth, it reminds the Justices they are appointed to serve the people and the Constitution, not to create a personal doctrinal legacy. In the real world, outside of lifetime tenure, random stuff happens. It is healthy for judges to be subject to the same roll of life’s dice as any candidate for office, or a worker in a factory. Plus, the justices maintain a constitutionally guaranteed federal bench sinecure as a back-up. Sweet deal.
The constitutionally mandated appointment process remains unchanged.
How do we prevent Congress from stonewalling nominations to run out the clock into the next administration? To some extent, bad political actors are the most problematic aspect of statutory SCOTUS reform, as the Merrick Garland debacle proved.
The alternative is a dead-man switch. If Congress cannot (or will not) approved the president’s judicial nomination in the year before the summer of retirement, a current Federal judge² is randomly³ appointed to the term. This process can be manipulated⁴ but is a rational compromise for an irrational world.
Some details are critical- any justice that leaves the bench with less than seven years of tenure must be replaced by another judge with the same remaining tenure, or the sequence of appointments and retirements will become unlinked. There are other details which are important but not critical. How and when are slots filled after early retirements or death? How quickly do we expand the court in a way that both parties find acceptable? Can they be reappointed? I have my opinions but leave it others to weigh in.
Never the less, sometimes more⁵ is better.
A few more details if interested, otherwise TL;DR
Randomness is the key to democratic legitimacy:
[1] From the Declaration of Independence:
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
[2] Historically, Supreme Court nominees drew from a wide spectrum of candidates outside of the Federal Court system, including state court judges and former governors or other officials (e.g. notably Governor Earl Warren- see a complete list at FindLaw). So one could imagine creating a broader pool of potential justices that pass through the Senate vetting process, but remain on standby for a court vacancy. Many countries rely on independent commissions to fill a slate with qualified candidates, restricting the political choice of a nominee. I can imagine, after a few decades of experience with random appointments from a federal bench pool, we might adopt the same system. (But this would take an amendment, or agreement by every president to follow this normative process.)
For example, a joint nomination committee consisting of two representatives of the President, two representatives of the Supreme Court, one each for the Senate and House and one by vote of the Attorney Generals of the various States, could recommend candidates for every vacancy on the Federal bench, including the Chief Justice. Such candidates shall meet the highest legal and ethical standards. Five out of seven committee members must agree to convey a nomination to Congress for consent, with a majority vote of each house of Congress required for appointment of the nominee.
[3] A lottery is key- we cannot let either Congress or the President directly select from the pool, or they would always choose this route to elevate a known ideologue to the Supreme Court. As a side effect of a lottery, scrutiny of Federal court appointments may increase because you can’t be sure who will be selected. Which may slow the hearings but might weed out poor candidates who sometimes receive a quid pro quo pass.
[4] Whenever there is an alternative process, people will game the option to their advantage. In a split government the Senate may feel any nomination by the other party’s President is unacceptable, so they will always prefer to stonewall and take the 50–50 odds in the federal pool. On the other hand, for borderline nominees, they might prefer the President’s choice in the spirit of “the devil you know”. In this case, the prospect of a random pick drives the system back into equilibrium and moderation. Once burned after the lottery favored their worse nightmare, both sides will moderate their appointments. Classic game theory.
[5] There is a nascent movement to permanently entrench the bench at nine justices (the Keep Nine Amendment). Their argument is simple- it ain’t broke, and anything we do to fix it will make things worse (cue flag waving music). But the amendment’s proponents are curiously oblivious to the issues raised in this essay. Or in the hundreds of insightful historical and legal reviews documenting specific failures of a lifetime appointed court. None of which they address.
