Originally published at: Supreme Court Justices Are Afraid of Accountability Even After Their Deaths - TPM – Talking Points Memo
This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at Balls and Strikes. Death tends to make people realize things. Unexpected departures from this earthly plane, in particular, can prompt the living to reflect on how to better use the time they have left. Chief Justice John Roberts, who has…
First! Sorry no kitties though.
Federal judges and justices are payrolled public employees entitled to no special considerations not afforded to members of other branches. Their entire work product is paid for and hence the property of the public. It’s not unreasonable for their works to be sealed while they sit on the court and for some period afterward, but there should be a standard period in law after which their papers are made public.
Add that to the list of provisions in the major Art.III reform package we will be legislating once we have normies running Congress again.
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The Supreme Court needs a thorough fumigation and de-mystification. We’ve allowed them to become god-like figures pondering our fates in hallowed chambers on high. Cut the crap: they’re flawed human beings like the rest of us who have been given too much power.
Way past time for reform: 13 justices, decisions made by a randomly chosen panel of 7 or 9, term limits of 15 years, limits on number of appointments per president, rotations between the SC and district courts, binding code of ethics, and who knows what else.
Dems need to make noise about this.
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This is one time we actually do want to know how the sausage gets made.
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Shadow docket rulings also facilitate 180 degree decisions since no precedent has been established. After all what’s OK for a Trump might not be for a Pritzker.
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Justice Alito voted to overturn Roe v. Wade, but he cannot stand up to his wife in her outdoor display of blatant political flags at their homes?? Where does Alito’s fidelity lie? Asking for a friend, actually a multitude of friends, in this beloved nation.
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Wouldn’t it be nice if Supreme Court justices felt that they could be proud of what they’d done in the course of their time on the court?
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Regardless of whether their papers are released, the MAGA 6 on the Court will be regarded as the worst Supreme Court in history, bar none.
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There have been worse Supreme Courts in American history.. The Taney Court comes to mind. Dred Scott was one of the worst decisions of all time. I will give you that the Roberts court is close to the worst.
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Perhaps an exorcism conducted by the Catholic Church would be appropriate. No, actually, that might result in a whitewash; it should be conducted by an independent spiritual consultant, but not an evangelical flim-flam man.
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If you’re making legal sausage for my consumption, I should have the right to see everything, from the moment the sausage is foisted on the public.
Remember what Upton Sinclair said about The Jungle:
I tried to hit America’s heart, but I hit America in the stomach.
More correctly, he hit TR in the stomach, and a good thing he did at least that. Tho Bobby’s Brainworm is trying hard to undo all that.
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I was going to say something about Judges never wanting to share how they actually come to decisions so the Supreme Court Justices are no better than anyone else wearing a robe. Instead I thought I would post this. I am proud of the Supreme Court of Missouri.
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Bush v Gore and Citizens United should lead the list of how the top justices in the land set aside their jurisprudence for wholly partisan purposes. I do think it would rightly put a chilling nature on the court if the justices were held to account at least in the court of public opinion The conservative justices, like their elected brethren, have more than proved they’re in the pockets of their political handlers with no personal sense of restraint to their partisanship.
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I’m glad this came up. Hopefully the D’s can include this issue in Supreme Court reform. The papers MUST be officially designated the property of the U.S. Government and they MUST be turned over to the national archives when a justice leaves the Bench. We can talk about how long they would remain sealed, but I think the lifetime of all participating judges is a reasonable standard. In the meantime, the Presidential Records Act should be emended to simply eliminate the possibility of the President retaining any records at all at his personal discretion. Every scrap should all be turned over to the Archives, and then the former President can go through it later at his leisure and request the return of personal papers.
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As for as the overall reform, here is what I envision as a workable and durable new architecture:
Presently federal court district caseloads are very uneven and some districts cover much more population than others. Redraw present districts to 15, and since caseload grows with population, peg the number of districts in law to population growth based on the decennial census. By establishing a bracket of population numbers, this does not mean redrawing districts every decade, it would more likely only happen every few decades.
Peg the number of SCOTUS Justices permanently to the number of districts. This way, no new SCOTUS seats can be created except after expansion of the number of districts. And this way, there is always one justice to oversee one district, not the uneven and unfair overloading we have today.
These two provisions put to rest the fears of future “court packing”, and the next one effectively obviates that as well, as Josh has written lately.
Cases are heard by a randomly selected panel of 7 justices (with formulaic screens to prevent over-selection or conflict of interest selection of any individual member). Their ruling is final, with no en banc appeals, except Congress can force en banc appeal with a 3/5th’s resolution of both houses.
Justices must be selected only from sitting federal appeals courts and state Supreme Court judges (no more spoils sops like Harriet Myers). No Justice shall sit longer than 13 years on SCOTUS, after which they may take Senior Judge status, or resign.
Or, alternatively, a program of regular rotation onto and off of SCOTUS by sitting federal appeals judges, for a shorter term, perhaps 5 years.
In these two scenarios, no Senate confirmations are required since the pool of judges has already been approved, except states’ SC judges, federal confirmations would be required to bring them in. So that’s a detail to work out, but I think expanding the pool to them would help bring different perspectives into the federal judge pool.
As to the schedule of the additional appointments going forward, that is a complex mathematical question that will be subject of intense wrangling in Congress, but the new 7-justice panel feature means the court can operate well without the full 15-member bench being in place. I like the rotation from the pool approach, myself, because it obviates the complex problem of timing new appointments to fill the expansion, since the pool is already in place. With that method, there are no longer any specific presidential SCOTUS appointments, instead presidents only appoint to fill vacancies on the federal district and appeals courts. That does leave the timing of filling the new seats created by district expansion, now and in the future, but some simple formula can be arrived at for that since the entire federal bench can and does tolerate vacancies as a matter of course.
I think this should all be passed in a single encompassing reform act. In this act, Congress must make liberal use of the exceptions clause to wall off numerous matters from SCOTUS appeal, including campaign finance restrictions, outside group advocacy with strict reporting requirements, personal privacy protections, ballot protections, redistricting reform, and many other matters that have shown to be perenially subject to SCOTUS manipulation and abuse. In this tranch, it must be clearly stated that presidents are subject to all the same laws they are charged with enforcing.
There obviously should be a lot more, but structurally I think this might be a good way to go. Just putting it out there for discussion because now is the time for these ideas to circulate and get fine-tuned for quick adoption once grown-ups retake the reins.
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I like a bigger pool, like 23, and keeping 9 justices, and rotating them in from the pool, to eliminate intransigent useless turds like Thomas and Alito getting to void their stench on every case.
And no Shadow docket or unsigned opinions. If it becomes an issue of national security, State secrets, serious privacy concerns-CIA agent exposure risk like Valerie Plame, then there can be provisions for allowing some Senators and Representatives to act as our eyes and ears randomly chosen from both parties.
And I was just thinking, the Federal govt is a 3 legged stool, but if one leg breaks off, it fails. The States are an additional leg or counterbalance. Would the Electoral College be considered the screws that hold that 4th leg in place, as the States entre` into the power balance? Yes, all other powers not enumerated flow to the States, but what guarantee is there that the States will be able to maintain their place without some mechanism like the Electoral College?
Haven’t heard any arguments for the College, just wondering about it.
What a bunch of whining snowflakes.
They don’t want an ethical code.
Their deep thoughts are generational secrets.
They expect to be honored as great thinkers.
They are afraid of historians.
They don’t want their Billionaire Boys Club receipts made plain.
REFORM THE COURT…ASAP.
As a unanimous Supreme Court explained 80 years ago in describing Congress’ regulatory powers, as long as the statute is objectively consistent with the Constitution, Congress’ motive and purpose “are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control.”
Barrett’s seat was unconstitutionally created in 1807. Ditto Alito’s seat in 1837, Gorsuch’s seat in 1863 and Thomas’ seat in 1869. On second thought, perhaps this isn’t such a bad idea, after all