Fixing SCOTUS

Every human institution is flawed in its own special ways. There is no reason why we should expect otherwise. We must constantly be alert for evidence of problems and ways to overcome them. Our political institutions are no exception, although they are notoriously impervious to criticism and resistant to change.

A detail of the West Facade of the U.S. Supreme Court is seen in Washington, Monday, March 7, 2011. The court is taking up a climate change case for the second time in four years. On Tuesday, April 19, the court will hear arguments in the case American Electric Power Co. v. Connecticut, 10-174. The Obama administration is siding with American Electric Power Co. and three other companies in urging the high court to throw out the lawsuit on grounds the Environmental Protection Agency, not a federal court, is the proper authority to make rules about climate change. (AP Photo/J. Scott Applewhite, File)

The Supreme Court of the United States (SCOTUS) actually works quite well for the national benefit, but periodically it goes off track and produces horrendous mistakes. Two that leap to my mind are the decisions in Dred Scott v. Sandford in 1857 and Citizens United v. FEC in 2010 (link). I am sure that everyone has their own horror list, but that is irrelevant to my point, which is that periodically SCOTUS embraces excursions from mainstream commonsense that represent contorted readings of the Constitution.

This leads me to the point of this blog post. I was listening to a panel of very experienced and knowledgeable people who were discussing ways to improve SCOTUS. One panelist in particular had some great ideas. I wish I could give proper attribution but unfortunately I can’t recall his name.

First, do away with all the law clerks! I didn’t initially get the point but then it definitely makes sense and I see how it addresses a tendency of SCOTUS to sometimes veer off course. Note that the justices wouldn’t lose any of the research and information gathering functions now done by the clerks. The Court’s library has a staff that is fully capable of doing this job. However, just as the Library of Congress’ Congressional Reference Service does for Congressmen, the same research and same set of facts would be shared by all justices. As things now stand, individual clerks contaminate their research with preconceived notions and selective research so that the justices aren’t working from a common basis in law.

It is just my suspicion of course, but I think that justices sometimes become encapsulated in a perspective of the Constitution that is rigid and fails to accommodate change. Our prescient founding fathers definitely understood the need for careful change as even cursory review of their writings demonstrates, not to mention their provisions for amendments. The clerks, both by selection and conviction, tend to reinforce this cocooning, to the detriment of reason and just law.

Forcing the justices to actually write their own opinions would act like a form of term limits. As the panelist deftly put it, they could no longer stay in the saddle after they couldn’t mount the horse anymore. This addresses another flaw that even some justices have acknowledged. A life term is probably too long for some. Few retain their mental acuity unimpaired until the Grim Reaper wields his scythe. The original goal was to insulate the justices from petty political actions, but self-determination of capacity has sometimes failed.

A disadvantage of firing all the clerks is that it would eliminate a very useful kind of “post-doc equivalent” for law school grads. However this training would still remain in the chambers of lower court justices.

A second recommendation is to resurrect the old policy of requiring justices to ride the circuits. Until Congress abolished this duty in the Judiciary Act of 1891, justices were required to travel around the judicial districts under their supervision and participate in trials and other judicial affairs. The idea, I think, was that this kept them in touch with the real world, while at the same time preventing their jobs from becoming a part-time avocation. The justices used to hate this, just as children hate summer school, and that is probably why it ceased. Let’s bring it back and force the justices to confront the consequences of their decisions in the real give-and-take of the law. Not incidentally, adding this burden would also contribute to an effective term limit.

Anyway, these are the recommendations I heard. I take no credit for them but they make a lot of sense to me.

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