Saving The United States Supreme Court

 This one I cannot agree with.

How to make the Supreme Court fear being overturned  by Paul M. Collins, Jr. (The Hill) starts off fine with its diagnosis.

For decades, the court operated under a healthy, if unspoken, anxiety: the fear of reversal. This fear once acted as a structural brake, reminding the justices that if they strayed too far from the constitutional mainstream, the system would push back.

For instance, the 11th, 13th, 14th, 16th and 26th Amendments to the Constitution were passed to overturn Supreme Court decisions. Congress has reversed several decisions by passing statutes as well, as exemplified in the passage of the Lilly Ledbetter Fair Pay Act in 2009. And the Supreme Court occasionally overrules itself, including overturning Bowers v. Hardwick, which allowed states to criminalize same-sex sexual relations, in 2003.

 But the constitutional changes came at a time of crisis; the 13th and 14th came after the Civil War (and with the Union controlling enough states to pass them). The others were tune-ups to the constitution, mechanical upgrades to keep the government functioning.

 What has become our de facto method of amending the Constitution is Supreme Court decisions. 

The statutory revision process - Court striking down then Congress reworking - is the reason FDR floated a plan to pack the court. 

That same process has a flip-side: Congress passing to the Court the job of completing legislation. I first noticed this in the snail darter case.

We have a dysfunctional Congress, so his solution feels impractical:

 The most effective way to achieve this is a two-pronged structural reset. First, Congress should exercise its clear constitutional authority to expand the size of the court. Second, and more crucially, the justices should no longer sit as a permanent, monolithic body of nine. Instead, they should be required to hear cases in randomly assigned three-judge panels with final decision-making authority.

Okay, I agree with expanding the Court. There are nine Justices and around 13 federal circuits, so on a workload rationale there is a need for an expansion. 

Not that expansion by itself is enough to curb the Court from becoming a branch as a partisan extension of the elected branches. It only ups the partisanship to four more nominees.

 What Mr. Collins has done is apply the operations of the federal Circuit Courts of Appeal to the Supreme Court. It is clever, it may even improve its operation. I suppose there might be the right to an en banc hearing. It may be the only way to keep a 13 member court from becoming unweidly. What it does not do is prevent ideologues intent on forcing their ideology on all of America. It does not look upon the Senate milking partisan issues for their campaign funds as an issue underlying a court intent of ideologues. Not even his staggered appointments seem fitted to this problem.

Coupled with a larger pool of justices appointed across multiple presidential administrations, this system would dilute the winner-take-all stakes of judicial appointments. It transforms the court from a partisan prize into a functional institution where the law is shaped by a diversity of perspectives, rather than the iron grip of a permanent majority. 

 There is another power Congress has over the Supreme Court and that is impeachment. It seems Justices Thomas and  Alito have given Congress non-partisan grounds for their ethics. Others may have provided other grounds. That might give the court an incentive to impose on itself truly effective ethical rules.

Expansion, term limits, impeachments, and staggered terms are all good ideas and are necessary. However, there is one greater remedy: reinstating the amendment process, perhaps even making it easier. Until the federal government understands it does not run in a closed loop, there will always be a risk of ideologues intent on working their will on the people.

sch 6/17