February 23, 2009

Lawyers Propose Changes to SOTUS' Operations

A group of lawyers led by Duke University law professor Paul D. Carrington have submitted a set of four proposals, that if adopted would substantially change the Court's operation, to the judiciary committees, AG Eric Holder, and VP Joe Biden.  They are not seeking to interfere with the substantial work of the court, but they are seeking Congress to address and alter how the court operates.  The four proposals include:

1. A form of term limits

For starters, the group proposes a form of term limits, moving justices to senior status after 18 years on the court. The proposal says that justices now linger so long that it diminishes the likelihood that the court's decisions "will reflect the moral and political values of the contemporary citizens they govern."

To get around the Constitution's prescription that justices serve for life, the group would let justices stay on the court in a senior role -- filling in on a case, perhaps, or dispatched to lower courts -- or lure them into retirement with promises of hefty bonuses.

It would set up a regular rotation on the court by providing for the nomination of a new justice by the president with each new two-year term of Congress. If that results in more than the current nine justices, only the nine most junior would hear cases.

The new policy would not take effect until those already on the court are off, but the current tenure of the court suggests what a radical change that would be.

2.  Limit term as chief justice to 7 years

3.  Removal of justices in ailing health

The third proposal deals with the removal of justices in failing health "who are increasingly prone to remain in office and retain their political power even if no longer able to perform their office."

It did not name names. But it said the chief justice should have the duty of advising such a justice to resign and promptly report that fact to the Judicial Conference of the United States (if the chief is the one in question, it falls to other justices to report him).

4.  Creation of a "Certiorari Division"

And the proposal would deprive the justices of one of their greatest powers: deciding which cases they hear. Justices now comb through the thousands of petitions for certiorari they receive each year, and in recent years have declared a declining portion of them worthy of their time.

The court issued 67 merit opinions last term, the lowest number since the 1950s. The number of cases the court will decide this term is a bit higher.

"It is increasingly difficult to justify absolute independence for justices whose chief work is expressing and imposing on the public laws on topics of their choice," the proposal said.

It envisions a "Certiorari Division" made up of senior justices and appellate judges who would review the petitions and send 80 to 100 each year for the Supreme Court to decide, whether it wanted to or not.

For further analysis see Matthew Franck's post here.  

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