Smoother Replacement of U.S. Supreme Court Justices

First proposed 2020-Sep-24

Problem: The U.S. Supreme Court normally has nine justices (judges). When one leaves (for example, by retiring or dying), the vacancy is filled when the president nominates a replacement who is confirmed by the senate. This process has caused controversy and shenanigans when a justice leaves during the last year of a presidential term (during an election cycle), for example in 2016 and 2020. This process also leaves very consequential decisions greatly influenced by chance: Of the 25 presidential terms from 1921 to 2020, five filled no vacancies, and eight filled three or more vacancies (assuming the current vacancy gets filled in 2020, which appears likely). The average was 1.96 replacements per term.

Proposal: Redefine the target size of the court.

• Rather than a target size of nine at all times, let it reset to nine at the start of each presidential term, and conditionally drop to seven at some point during the term, where it remains until the end of the term.
• After two nominations made during a term have been confirmed, the target size is seven for the rest of that term. Confirmations must be sequential, not simultaneous.
• If at any time during the last 365 days of a term there are at least nine justices on the court, the target size is seven for the rest of that term.
• When the target size drops, no justices are removed, because appointments are for life (that doesn't change). The only effect of the target size is in determining whether any vacancies exist to be filled.
• Outstanding nominations expire whenever the court becomes full (after a justice is added or the target size drops). When new vacancies appear (after a justice leaves or the target size rises), new nominations are needed to fill them; the senate cannot confirm an expired nomination (but a new nomination could name the same person as an expired one).

Rationale:

• The proposed process would smooth out the nominations. The court would usually have nine justices (like now), but would occasionally have fewer, temporarily, to give the next term's president a fair chance to nominate replacements.
• Vacancies would rarely exist during election years, because the target size would usually drop from nine to seven before the last year of the term. However, if a vacancy arose shortly before the last year of the term, the president and senate would not need to rush to fill it, because the target size would not drop until the court size was restored to nine during the last year of the term. They could take the usual care and time to fill the vacancy.
• No constitutional amendment is required, because only the court size is changed, and the size has always been set by statute.
• The size remains capped at nine. An increase above nine would set a dangerous precedent that could lead to ever-increasing court sizes as the two major parties battle for influence.
• Appointments are still for life. Other reform proposals would limit appointments to a certain number of years, but that would risk the impartiality of the justices. If they need to worry about what they'll do after their appointments expire, their personal interests could more easily influence their decisions. Term limits would also decrease the average age and tenure of the justices, which might not be desirable, since wisdom tends to increase with age and experience. Term limits appear to require a constitutional amendment, which is extremely difficult.

Prepared by Adam M. Costello  Last modified: 2020-Oct-02-Fri 19:51:49 GMT