Top Ten Holiday Wishes to Improve the Supreme Court
The winter holiday season begins this week. Best wishes to all Dorf on Law readers.
Writing about the Supreme Court roughly once a week (or more) can be a depressing business. In just the last few years, the Court ended abortion rights, tried to end affirmative action (we will see), converted both the Free Exercise Clause and the Second Amendment into nuclear-charged constitutional provisions, destroying many good laws in their wake, and is reverting back to a pre-New Deal understanding of federal power. It is all a bit much and so sad that my social media nickname is "Dr. Gloom and Doom." I'm not a doctor but when it comes to the Court, doom and gloom is a fair description of how I feel.
However, as the holidays are around the corner, I decided to make my top ten wish list for ways to improve the Supreme Court. This is all fantasy but, hey, I'm hoping for a new nickname. These ten wishes are not in any discernable order and do not reflect my substantive ideological priors (with one exception) but rather are fixes for a broken institution.
1) End life tenure. This can be done through a statute that gives the justices fixed terms on the Supreme Court and then they can sit on the court of appeals or federal traffic court for all I care. But life tenure on our nation's highest "court" is simply absurd. Never, ever, give a committee of government officials essentially unreviewable power and jobs for life. It should be a universal rule (and almost is).
2) Put cameras in the Court. Listening live is a good step but people, especially the young, like to watch important things on their phone. Supreme Court oral arguments should be on the cell-phone menu.
3) Congress should take the Court's ethics code and make it into federal law and then add an enforcement mechanism such as a committee of randomly drawn court of appeals of judges to serve as recusal and yacht trips overseers. An ethics code with no stick is just a lot of nonsense.
4) Stop making June 30th a drop-dead day for judicial opinions. This is an artificial deadline and the justices are not schoolchildren who should get summers off. Well, maybe they are like schoolchildren in many ways but they still do not deserve summers off.
5) The Court should announce the handing down of important decisions 24 hours in advance. This step is just good ole courtesy.
6) The Chief Justiceship should rotate every 5 years, and it wouldn't be a terrible idea for the Chief to be in the minority party for long periods of time. It's a checks-and-balances type of thing and could be done by seniority.
7) The phrase "original meaning" should drop out of the Court's vocabulary along with the recognition that we should not decide hard issues concerning the validity of laws regulating weapons, technologies, or people according to the standards and values of propertied white men who treated human beings as chattel and wives as the property of their husbands. We need 2023 solutions, not 1791 or 1868 solutions.
8) We need formal rules governing the justices' taxpayer-funded papers, like we have for the executive branch. Currently, each justice gets to decide what happens to their papers after they leave the Court. Some justices make them available in a reasonable time but most stipulate that their papers will remain a secret for decades or more after they retire.
9) The votes to grant certiorari should be made public before the oral arguments. There is no reason such important decisions should be made in secrecy.
10) Until the justices no longer have life tenure and as long as they keep interfering in our democracy based on values not law, we should rename the institution "The Supreme Council." That label is far more accurate than the current one
BONUS WISH: Justice Thomas should retire yesterday.