NO REALISTIC PROSPECTS FOR STRUCTURAL CHANGES IN EXISTING SUPREME COURT
At 92 I have a dim memory of when FDR, after his overwhelming re-election, sought to alter the Supreme Court. He sought to add additional justices when existing justices reached age 70. He was frustrated that the Supreme Court rejected some of his New Deal legislation. [If fact much of this legislation was hastily drafted—some laws were rejected 9-0 by the Supreme Court.]
Ultimately, Republicans in the Senate declared FDR’s bill Dead on Arrival.
Subsequently there have been liberal and conservative surges on the Supreme Court. The Earl Warren Court, in my opinion, was overly ‘liberal.’ In recent years, in my opinion, the Roberts Court has become obsessed with ‘originality’ and neglecting stare decisis.
Political machinations have contributed to the existing, ‘flawed’ Roberts Court. Then Senator leader Mitch McConnell pulled two ‘fast ones’ in denying hearings on Garland and, then in Trump #45’s waning months, shuffling Barrett on to the court.
I would relish a ‘rearrangement’ of the current court. However, under the Constitution I don’t foresee this occurring. Indeed, I fear that Thomas and Alito might resign to permit Trump, with the current Republican Senate, to appoint younger Federalist Society candidates to the Supreme Court.
My faint hope is that Roberts, concerned about the historical record of the Roberts Court, will belatedly become more constitutional. Another faint hope is that Barrett will become more constitutional in her considerations.
With the Supreme Court being used as both primary and final weapon and a tool for oligarch legislation, you brought a new fear. I can only imagine how much would change hands for those resignations to take place!
I recall that, after FDR was thwarted in his effort to ‘restructure’ the Supreme Court, there was mention of r the ‘vote that came in time to save nine.’
In fact, it was a vote by Justice Owen Roberts that affirmed a New Deal law. Many years later, I dined with Owen Roberts Jr. He affirmed what I had earlier read in the media. Justice Robert’s affirmative vote was expressed in a December meeting of the justices BEFORE FDR’s proposed Supreme Court changes.
Constitutional lawyers can debate the what/when of the apparent change in the Supreme Court. My impression is that FDR was right in his fear that the Supreme Court might reject further New Deal legislation, especially Social Security. In part, however, some of the New Deal legislation was hastily drafted and even some ‘liberal’ justices rejected some legislation.
From a strict Constitutional standpoint, there are a LOT of changes that can be made to the court's structure without any changes to the Constitution. The Constitution gives the Congress via its lawmaking authority to do many things (which have been done in the past) including setting the number of justices on the Court. Because the number has stayed at 9 for so many years (over a century), we tend to assume that number is written into the Constitution, but in fact it is not. The Constitution gives the Congress the power to set that number. What can NOT be changed (apparently) is the length of term which IS defined in the Constitution as "during good behavior" which essentially provides a lifetime appointment.
I have suggested that the Congress should enlarge the Court to 15 members AND provide a rule that the Court sit for each case before it as a court of five justices to be picked randomly for each term. This is the same way the Courts of Appeal work today with each District having from 6 to 29 appeals judges but all appellate cases are heard initially in "banks" of three justices. A case can be reheard "en banc" with all justices from a district hearing the case at the same time. The Supreme Court could elect in special cases to sit "en banc" as a court of 15, but most cases would be heard by 5 justices.
None of this would require a Constitutional amendment.
I would LOVE to see fixed terms for all Supreme Court justices (and appellate judges as well) but that would apparently require a Constitutional amendment. Terms should be long to ensure stability, but with fifteen justices, each justice could serve for 15 years, with one seat becoming vacant every year. A justice could be renominated to the court by the current President for a second term. That would be the limit. This change would definitely require a Constitutional amendment but it would ensure that each President could nominate 4 justices in each Presidential term. Of course, if judges resign or die, the current President could provide additional nominees, but those terms would NOT run a full 15 years, but would expire at the next expiration date for that term.
You are a funny guy!! We have 7 bottles of Lafite Rothschild left from 2 cases I procured 20 years ago. I'm liking Marques de Murrieta Rioja (Spain) for regular consumption. I love some of the IPAs I get from Cape May Brewery, among others. I will seek out Lagunitas Maximus. At 9 pct alcohol I'm sure one is enough!! I drink all summer and take the winters off dry. October 19th was the last glass. May 21 will be our 25th anniversary and we'll be opening a Lafite on the beach, weather permitting. I'd love to have you as a next door neighbor, imagine the trouble I'd get you in. Grin.
Bob I’d love to share Lafite and whatever with you. Back in 1964, during the Congo foreign hostage crisis, I voluntered, with a White House mandate, to return to the Congo and work alone (with a M-16, ,45, 9mm Beretta) in rebel-infested provinces.
Some of my Foreign Service colleagues were certain that I would never return, Before departing on a C-130, I bought 16 cases of 1959/1961 Lafite, Latour, and Margaux. The most I paid for a case was $56.The focus was on the 1964s, while the 1959s/1961s proved more spectacular.
Sadly, after my return from a hairy venture, the wines gradually were consumed. Now I occasionally buy a Two Hands (Angel share). My buzz, at age 92, comes from a single nightly Lagunitas Maximus.
One of my major concerns about SCOTUS is the grifter-criminals currently serving on the court, grifter-criminals who’ve accepted money and gifts. Unconscionable! THOSE Justices should be put in PRISON.
The majority of this Supreme Court was STOLEN by Mitch McConnell that NO ONE should take any of their decisions as actually good decisions. So, if we the people actually are responsible for the court, how can we UNSEAT all of them and start again with a nonpartisan picking process. I am too old to have to live with this Supreme Court.
Better get used to it. There is NO option except for impeachment to remove a SCOTUS justice. And given the current Congress (particularly the Senate), conviction is virtually impossible in either direction (it requires 2/3 of the Senate to convict and they have never ousted a Supreme Court judge in all of our 250 years of history).
As for revamping the Court and its processes, that would require for the most part constitutional amendments and those require 2/3 vote in both houses of Congress AND ratification by 3/4 of the states.
Yeah, right, and monkeys MIGHT fly out of my butt :-)
There should be a requirement for Supreme Court Justices to be psychologically stable people. There are several that have major grudges that show up how they vote - Alito, Thomas, Kavanaugh, Gorsuch and occasionally Roberts. Some of them seem to relish imposing their power as retaliation for their hearings - Thomas and Kavanaugh - whereas women know them to be bad for women! Gorsuch still feels bad about his mother. Alito appears to have been an awkward college student who now wants to elevate his causes to stick it to the majority. These are not healthy Individuals and should not have the power that they do to stick it to people.
I have a sound idea for SCOTUS reform: impeach Sammy “the Shill” Alito and Clarence “Free RV!” Thomas for bribe receiving. Impeach “Beer Boy” Kavanaugh for perjury. Stack the court with liberal justices. Rinse and repeat.
Impeach, rinse, acquit and repeat. No one is going to be convicted by the current Senate. It takes 2/3 vote of the Senate. You might have noticed that there hasn't been a Senate with 2/3 being from one party in over 50 years. So please tell me WHERE you expect to find 2/3 of the Senate to convict anyone on the current SCOTUS. NOT. GOING. TO. HAPPEN.
Love seeing Jesse join the Brennan Center! I’ve signed up for his Substack and am looking forward to reading him. BTW, folks, if you don’t support the Brennan Center, may I suggest you consider doing so? https://www.brennancenter.org
I'm with Sen. Ron Wyden - increase the number of SCOTUS justices to equal the number of US Circuit Courts of Appeal, currently 13. This can be done by a simple act of Congress - no Constitutional amendments required. If this passes, four new justices would be added to SCOTUS immediately and in the future, there would be a requirement that new Circuit Courts would have to be added in pairs to maintain an odd number of courts and SCOTUS justices.
There is no real need to correlate the number of SCOTUS judges to the number of CIrcuits. The Circuits need to be re-apportioned, as there are currently from 6 (District 1) to 29 (District 12) appellate judges in the current circuits which is a HUGE disparity (just like the states are widely distributed between the smallest and largest). What should happen is the SCOTUS should be enlarged to 15, adding 6 new justices, and SCOTUS cases should be heard (like Court of Appeals cases) in smaller groups of, say, 5 judges at a time, picked randomly (as the Court of Appeals picks its judges for hearing appeals). In particularly important cases, the SCOTUS could hear a case "en banc" as can be done at the Court of Appeals level, but this happens rarely and would happen rarely at the SCOTUS level as well.
I agree with most of what you say - my concern for tying the number of justices on SCOTUS to the number of Circuit Courts is that if we enlarge the Court independent of creating new Circuits, a future administration could then "repack" the Court by adding another 6 justices at its discretion with no limit on the enlargement.
Your approach would require either a constitutional amendment or could easily be changed if it was just a law. Simply enlarging the court requires no amendment.
This was wonderful. Thank you for clarifying these issues about the Supreme Court. I have been concerned about term limits for the Supreme Court because older justices can bring such a wealth of knowledge that comes with both age and experience. You provided good information and reasons to consider term limits. I have wondered about the benefits of enlarging this body and you have given me reasons to consider the advantages of increasing the number of justices on this court. Also, interesting thoughts on what to do with justices once their term of say 20 years has expired. Thank you so much for your questions and for sharing your thoughts with us. It provides food for thought on this matter.
Unfortunately term limits for SCOTUS (and all judges) will require a COnstitutional amendment and that is probably not likely to happen in at least 10+ years, maybe longer.
Joyce, very interesting conversation with Mr. Wegman. His knowledge and interest in the highest court was educational and kept my interest. I've been disgusted with the Supreme Court and feel that changes are necessary. Term limits, age limits and anything that can make it less political would be quite necessary. There definitely needs changes in the Supreme Court.
I recall reading a proposal to organize the Supreme Court like an appeals court with 27 members who sit as panels. Does anyone recognize this proposal? I would like to see more of that person’s ideas.
NO REALISTIC PROSPECTS FOR STRUCTURAL CHANGES IN EXISTING SUPREME COURT
At 92 I have a dim memory of when FDR, after his overwhelming re-election, sought to alter the Supreme Court. He sought to add additional justices when existing justices reached age 70. He was frustrated that the Supreme Court rejected some of his New Deal legislation. [If fact much of this legislation was hastily drafted—some laws were rejected 9-0 by the Supreme Court.]
Ultimately, Republicans in the Senate declared FDR’s bill Dead on Arrival.
Subsequently there have been liberal and conservative surges on the Supreme Court. The Earl Warren Court, in my opinion, was overly ‘liberal.’ In recent years, in my opinion, the Roberts Court has become obsessed with ‘originality’ and neglecting stare decisis.
Political machinations have contributed to the existing, ‘flawed’ Roberts Court. Then Senator leader Mitch McConnell pulled two ‘fast ones’ in denying hearings on Garland and, then in Trump #45’s waning months, shuffling Barrett on to the court.
I would relish a ‘rearrangement’ of the current court. However, under the Constitution I don’t foresee this occurring. Indeed, I fear that Thomas and Alito might resign to permit Trump, with the current Republican Senate, to appoint younger Federalist Society candidates to the Supreme Court.
My faint hope is that Roberts, concerned about the historical record of the Roberts Court, will belatedly become more constitutional. Another faint hope is that Barrett will become more constitutional in her considerations.
With the Supreme Court being used as both primary and final weapon and a tool for oligarch legislation, you brought a new fear. I can only imagine how much would change hands for those resignations to take place!
I recall that, after FDR was thwarted in his effort to ‘restructure’ the Supreme Court, there was mention of r the ‘vote that came in time to save nine.’
In fact, it was a vote by Justice Owen Roberts that affirmed a New Deal law. Many years later, I dined with Owen Roberts Jr. He affirmed what I had earlier read in the media. Justice Robert’s affirmative vote was expressed in a December meeting of the justices BEFORE FDR’s proposed Supreme Court changes.
Constitutional lawyers can debate the what/when of the apparent change in the Supreme Court. My impression is that FDR was right in his fear that the Supreme Court might reject further New Deal legislation, especially Social Security. In part, however, some of the New Deal legislation was hastily drafted and even some ‘liberal’ justices rejected some legislation.
From a strict Constitutional standpoint, there are a LOT of changes that can be made to the court's structure without any changes to the Constitution. The Constitution gives the Congress via its lawmaking authority to do many things (which have been done in the past) including setting the number of justices on the Court. Because the number has stayed at 9 for so many years (over a century), we tend to assume that number is written into the Constitution, but in fact it is not. The Constitution gives the Congress the power to set that number. What can NOT be changed (apparently) is the length of term which IS defined in the Constitution as "during good behavior" which essentially provides a lifetime appointment.
I have suggested that the Congress should enlarge the Court to 15 members AND provide a rule that the Court sit for each case before it as a court of five justices to be picked randomly for each term. This is the same way the Courts of Appeal work today with each District having from 6 to 29 appeals judges but all appellate cases are heard initially in "banks" of three justices. A case can be reheard "en banc" with all justices from a district hearing the case at the same time. The Supreme Court could elect in special cases to sit "en banc" as a court of 15, but most cases would be heard by 5 justices.
None of this would require a Constitutional amendment.
I would LOVE to see fixed terms for all Supreme Court justices (and appellate judges as well) but that would apparently require a Constitutional amendment. Terms should be long to ensure stability, but with fifteen justices, each justice could serve for 15 years, with one seat becoming vacant every year. A justice could be renominated to the court by the current President for a second term. That would be the limit. This change would definitely require a Constitutional amendment but it would ensure that each President could nominate 4 justices in each Presidential term. Of course, if judges resign or die, the current President could provide additional nominees, but those terms would NOT run a full 15 years, but would expire at the next expiration date for that term.
Thank you Keith, what a great read.
Bob I’ve past the fine red wine stage and now focus’s on Lagunitas Maximus—one for dinner.
You are a funny guy!! We have 7 bottles of Lafite Rothschild left from 2 cases I procured 20 years ago. I'm liking Marques de Murrieta Rioja (Spain) for regular consumption. I love some of the IPAs I get from Cape May Brewery, among others. I will seek out Lagunitas Maximus. At 9 pct alcohol I'm sure one is enough!! I drink all summer and take the winters off dry. October 19th was the last glass. May 21 will be our 25th anniversary and we'll be opening a Lafite on the beach, weather permitting. I'd love to have you as a next door neighbor, imagine the trouble I'd get you in. Grin.
Bob I’d love to share Lafite and whatever with you. Back in 1964, during the Congo foreign hostage crisis, I voluntered, with a White House mandate, to return to the Congo and work alone (with a M-16, ,45, 9mm Beretta) in rebel-infested provinces.
Some of my Foreign Service colleagues were certain that I would never return, Before departing on a C-130, I bought 16 cases of 1959/1961 Lafite, Latour, and Margaux. The most I paid for a case was $56.The focus was on the 1964s, while the 1959s/1961s proved more spectacular.
Sadly, after my return from a hairy venture, the wines gradually were consumed. Now I occasionally buy a Two Hands (Angel share). My buzz, at age 92, comes from a single nightly Lagunitas Maximus.
Cheers to a younger drinking companion!
Amen.
Our nation needs SCOTUS reform. Start with term limits, age maximums, and a no-kidding ethics package
One of my major concerns about SCOTUS is the grifter-criminals currently serving on the court, grifter-criminals who’ve accepted money and gifts. Unconscionable! THOSE Justices should be put in PRISON.
Always follow the 💰. Tried but true.
The majority of this Supreme Court was STOLEN by Mitch McConnell that NO ONE should take any of their decisions as actually good decisions. So, if we the people actually are responsible for the court, how can we UNSEAT all of them and start again with a nonpartisan picking process. I am too old to have to live with this Supreme Court.
Better get used to it. There is NO option except for impeachment to remove a SCOTUS justice. And given the current Congress (particularly the Senate), conviction is virtually impossible in either direction (it requires 2/3 of the Senate to convict and they have never ousted a Supreme Court judge in all of our 250 years of history).
As for revamping the Court and its processes, that would require for the most part constitutional amendments and those require 2/3 vote in both houses of Congress AND ratification by 3/4 of the states.
Yeah, right, and monkeys MIGHT fly out of my butt :-)
There should be a requirement for Supreme Court Justices to be psychologically stable people. There are several that have major grudges that show up how they vote - Alito, Thomas, Kavanaugh, Gorsuch and occasionally Roberts. Some of them seem to relish imposing their power as retaliation for their hearings - Thomas and Kavanaugh - whereas women know them to be bad for women! Gorsuch still feels bad about his mother. Alito appears to have been an awkward college student who now wants to elevate his causes to stick it to the majority. These are not healthy Individuals and should not have the power that they do to stick it to people.
Good luck with that too. NOT. GOING. TO. HAPPEN.
See how the MAGA Supreme Court has been corrupted by billionaires: Follow the money with this interactive map
https://thedemlabs.org/2024/06/07/maga-supreme-court-six-pack-of-corruption-follow-the-money/
I have a sound idea for SCOTUS reform: impeach Sammy “the Shill” Alito and Clarence “Free RV!” Thomas for bribe receiving. Impeach “Beer Boy” Kavanaugh for perjury. Stack the court with liberal justices. Rinse and repeat.
Impeach, rinse, acquit and repeat. No one is going to be convicted by the current Senate. It takes 2/3 vote of the Senate. You might have noticed that there hasn't been a Senate with 2/3 being from one party in over 50 years. So please tell me WHERE you expect to find 2/3 of the Senate to convict anyone on the current SCOTUS. NOT. GOING. TO. HAPPEN.
You do what you can. Impeach the two SCOTUS scum and force the GOP to defend them with an acquittal vote.
Love seeing Jesse join the Brennan Center! I’ve signed up for his Substack and am looking forward to reading him. BTW, folks, if you don’t support the Brennan Center, may I suggest you consider doing so? https://www.brennancenter.org
This guy is spot on, especially with his thoughts on the Electoral college.
I'm with Sen. Ron Wyden - increase the number of SCOTUS justices to equal the number of US Circuit Courts of Appeal, currently 13. This can be done by a simple act of Congress - no Constitutional amendments required. If this passes, four new justices would be added to SCOTUS immediately and in the future, there would be a requirement that new Circuit Courts would have to be added in pairs to maintain an odd number of courts and SCOTUS justices.
There is no real need to correlate the number of SCOTUS judges to the number of CIrcuits. The Circuits need to be re-apportioned, as there are currently from 6 (District 1) to 29 (District 12) appellate judges in the current circuits which is a HUGE disparity (just like the states are widely distributed between the smallest and largest). What should happen is the SCOTUS should be enlarged to 15, adding 6 new justices, and SCOTUS cases should be heard (like Court of Appeals cases) in smaller groups of, say, 5 judges at a time, picked randomly (as the Court of Appeals picks its judges for hearing appeals). In particularly important cases, the SCOTUS could hear a case "en banc" as can be done at the Court of Appeals level, but this happens rarely and would happen rarely at the SCOTUS level as well.
I agree with most of what you say - my concern for tying the number of justices on SCOTUS to the number of Circuit Courts is that if we enlarge the Court independent of creating new Circuits, a future administration could then "repack" the Court by adding another 6 justices at its discretion with no limit on the enlargement.
Your approach would require either a constitutional amendment or could easily be changed if it was just a law. Simply enlarging the court requires no amendment.
Fair enough, but if we don't win in 2026 and 2028, it's moot.
Totally agree. The upcoming election is probably the most important in our lifetime (and my lifetime goes back 75 years LOL!)
I'm 85 (born in late 1940).....
This was wonderful. Thank you for clarifying these issues about the Supreme Court. I have been concerned about term limits for the Supreme Court because older justices can bring such a wealth of knowledge that comes with both age and experience. You provided good information and reasons to consider term limits. I have wondered about the benefits of enlarging this body and you have given me reasons to consider the advantages of increasing the number of justices on this court. Also, interesting thoughts on what to do with justices once their term of say 20 years has expired. Thank you so much for your questions and for sharing your thoughts with us. It provides food for thought on this matter.
Unfortunately term limits for SCOTUS (and all judges) will require a COnstitutional amendment and that is probably not likely to happen in at least 10+ years, maybe longer.
Joyce, very interesting conversation with Mr. Wegman. His knowledge and interest in the highest court was educational and kept my interest. I've been disgusted with the Supreme Court and feel that changes are necessary. Term limits, age limits and anything that can make it less political would be quite necessary. There definitely needs changes in the Supreme Court.
Here from St Paul, MN
Good job. The work you do is special. Trump and his allies are corrupted.
Good job. The work you do is special . Trump and his are corrupted.
I recall reading a proposal to organize the Supreme Court like an appeals court with 27 members who sit as panels. Does anyone recognize this proposal? I would like to see more of that person’s ideas.