Change the Supreme Court? You Have Ideas 1

To the Editor:

The most important problem with the Supreme Court is that it’s too important. Unlike other advanced democracies, we have punted critical decisions to the courts, making every Supreme Court nomination an existential political crisis. Congress should invoke its Article III powers to remove important legislation from judicial review and correct terrible court mistakes on issues like gun control, money in politics, voting rights and abortion.

The second problem is how we select justices. The court composition should not be a random walk decided by the actuarial tables. The best solution is to limit terms to 18 years and stagger them so that two vacancies come up in each presidential term. Alternatively, terms could be limited with justices chosen by lot from members of the 13 circuit courts.

And how about more diversity, meaning a moratorium on any more justices from Harvard and Yale Law Schools!

Adam Wasserman
Santa Fe, N.M.

To the Editor:

Because the Supreme Court is literally the court of last resort, and since the opinions of the court often have the effect of amending the Constitution, and since the justices are not elected by the people and have lifetime tenure, I believe that its rulings should require a supermajority of the members. It takes three-quarters of the states to ratify an amendment to the Constitution. So, all things considered, I suggest that decisions of the court should be agreed to by at least three-quarters of the justices — which in the case of a nine-member court would mean seven justices. This helps assure that the controversy at hand has been closely vetted and should minimize its political bias.

Herb Van Fleet
Tulsa, Okla.

To the Editor:

Politics has overwhelmed the one institution in America that should be deeply rooted in nonpartisanship. Therefore, I would:

1) Create a select panel of legal scholars to develop a list of nine candidates and require the president to nominate from that list.

2) Institute 15-year term limits.

3) Require the House to ratify a Senate confirmation with a simple majority before seating a judge.

4) Institute a mandatory 90-day process to ensure that appointments are not made close to an election — but also require that the process must begin within 30 days of a vacancy.

In sum, create rules that prevent corruption of this sacred body by politics.

Rosemary Kuropat
Wainscott, N.Y.

To the Editor:

Here is my suggestion for dealing with the hijacking of the Supreme Court: Congress can create new specialized courts and vest them with exclusive jurisdiction over voting rights and health care rights (including abortion) — and not permit appeals from these courts to the Supreme Court. We already have specialized courts whose jurisdiction depends on the subject matter of the claims rather than on the geographic location of the litigants, such as the Court of Appeals for the Federal Circuit.

For instance, Congress could enact a new John Lewis Voting Rights Act that vests in a new Court of Voting Rights exclusive jurisdiction to interpret and enforce voting rights — with no appellate jurisdiction in the Supreme Court. Similarly, Congress could amend the Affordable Care Act to vest exclusive jurisdiction over federal health care matters. Then, Congress should aggressively legislate federal policy in these areas.

Karl W. Lohwater
Williamsburg, Va.
The writer is a lawyer.

To the Editor:

There are many simple reforms that could improve the Supreme Court — adding term and age limits, expanding its size, or merging the circuit courts with it and using judicial panels to hear final appeals. But the real problem is the excessive power of the courts to shape national policy through judicial review.

This arises not because the court seeks expanded power, but because the badly written U.S. Constitution leaves too many ambiguities about the fundamental rights of the people, the extent of federal and state power, and the rights and powers of the different branches of government. The court has been forced into the role of resolving those ambiguities, which creates absurdities such as the court deciding which health care plans the federal government can offer.

To truly fix the court, we need to fix the Constitution and make our entire governmental system more democratic and more effective.

Rob Lewis
Oakville, Ontario
The writer is a dual American-Canadian citizen.

To the Editor:

Our system of checks and balances is supposed to be designed so that no one branch of the state can take precedence over the other. The executive can veto the legislature, but the legislature can override the veto. This is understood. So why is there no such counterpoint with regard to the Supreme Court?

Part of the answer rests in the fact that the role of the Supreme Court as the final arbiter of constitutionality is traditional, not legal. The court made it up 200 years ago and, for the most part, we all go along with it.

We should create a check against the Supreme Court. This should be in the form of a legislative veto, or more optimally a democratic referendum. Perhaps the court should be subject to periodic votes of confidence by which the citizens can disband the existing court if it rules contrary to the desires of the American people.

As it stands, there is no check against a Supreme Court decision, and that fact is an unfortunate holy grail for political cynics like Mitch McConnell.

Michael Andoscia
Cape Coral, Fla.

To the Editor:

The primary way to “fix” the Supreme Court is to fix our legislative process, so that major decisions don’t continue to be pushed up to the courts to solve. For too long, elected officials have failed to wrestle to the ground the thorniest issues facing the country — immigration, gun control, voting rights, policing — because they either are beholden to interest groups or fear short-term repercussions that affect their re-election.

Mary Beth Bardin
Grapevine, Texas

To the Editor:

We need to take politics out of nominations. Gone are the days when nominees got votes across the aisle. I liked Pete Buttigieg’s idea of 15 justices: five appointed by Republicans, five by Democrats and five by the justices themselves.

Andrea Woodner
New York

To the Editor:

The present system allows a president who inherits the opportunity to fill two or more vacancies on the Supreme Court to consolidate the direction of the country into the unforeseeable future, regardless of changing conditions and mores. Two solutions present themselves: Justices should be limited to one 12-year term, and they should be elected in a national election rather than chosen by the president. This would presumably prevent either political party from having a solid majority on the court far into the future whether or not the presidency changed hands.

Lois Taylor
Old Greenwich, Conn.

To the Editor:

It’s good to have three independent branches of government so that they can act as checks on one another. So the objective should be to make the Supreme Court more independent of politics. Limit the justices to nine-year terms, so that one justice is replaced each year. But just rotate them with federal appeals court judges. And select the appeals court judge to be elevated randomly from those who have been on the bench at least five years. This would push most of the politics out of the process.

Brent Meeker
Camarillo, Calif.

To the Editor:

I have a simple fix. Both the Senate majority leader and the Senate minority leader have to agree on a nomination for it to go forward.

John Ranta
Hancock, N.H.

To the Editor:

Americans can learn from other countries. Adopt and adapt the Canadian model. A nonpartisan committee — perhaps of retired justices and senators — should vet all prospective nominees and submit a list of approved candidates to the president. All candidates should have experience as judges or lawyers for at least 10 years. Maintain the constitutional process of nomination by the president with the advice and consent of the Senate. As in Canada, all justices should be required to step down at age 75.

Baruch Frydman-Kohl

To the Editor:

I’ve completely lost faith in our Supreme Court. I propose a fresh start. First, retire the current batch. Second, establish a new method of appointing them: Put 10 vetted Democratic and 10 vetted Republican choices into a hat and pick out nine. There you go. Done. That’s a hell of a lot fairer than the current circus. When a seat comes up, reach in and pick the next justice.

Maureen Allen
West Orange, N.J.

To the Editor:

As a member of Gen Z, I find it troubling that the decisions that will shape my future, and the future of my generation, are made by justices many times my age.

This is not to say that older justices can’t have the well-being of young people at heart, nor that they should sacrifice legal integrity to suit the whims of high schoolers. It’s inevitable, though, that justices appointed 25 years ago will be further removed from the problems of young people than they once were. I worry that with life terms and little turnover, the court grows further out of touch every year.

If 18-year term limits were instituted, the court as a whole would remain more engaged with social and cultural issues. The Supreme Court’s upcoming decisions may change my life. I’d like them to be made by justices who remember what it’s like off the bench.

Thomasina Hare

To the Editor:

I’m in favor of continuing lifetime appointments. Wisdom comes late to most of us. With time-limited appointments, I can also imagine some justices being influenced during their court terms by the potential fortune to be made afterward — on boards, in the leading law and lobbying firms.

Broad life experience is what seems most lacking in candidates these days. The recent crop of justices strikes me as careerists, checking off the boxes as they climb: correct school, correct clerkship, correct opinions. I want justices who are more than achievers, who have rubbed elbows with all sorts of Americans, who have seen injustice up close, who recognize the practical implications of legal arguments — and of their decisions.

Tamara Coombs

To the Editor:

Although the Supreme Court was established under the Constitution, the number of justices was left open. It was originally established at six under the Judiciary Act of 1789 and has changed on several occasions before arriving at the nine justices we have today. The Constitution granted the justices lifetime tenure.

Today we have an intensely polarized electorate and Congress. The court can be philosophically altered for decades by fortuitous circumstances and a compliant Congress.

First, I propose that the number of justices be increased to 13, similar to the number of justices on the smaller circuit courts and similar to the normal jury of 12. Second, justices should be subject to term limits. I propose 18 years with staggered term appointments to minimize the influence of any single administration.

John S. Freitag
Herndon, Va.

To the Editor:

Here’s a proposal: Increase the court to 15 members, but have only nine members randomly assigned to sit and rule on any given case. Once implemented, we’d reduce the controversy over any new nomination since adding one justice to the court will not be perceived as outcome determinative.

To take the first step, and to garner bipartisan support, each of the two major parties could fairly split the number of nominations required. Thus, with eight current members, and seven new ones needed to bring the court to a full complement of 15, the G.O.P. could have four nominations (since a member of its party holds the presidency) and the Democrats three.

This suggestion might lower the temperature significantly on the infighting every time there is a vacancy.

Patrick P. Dinardo
Winchester, Mass.

To the Editor:

The problem is the hyperpartisan manipulation of the nominating process. Increasing the size of the court in response establishes a principle with no self-regulating limit and accelerates hyperpartisanship.

Instead let’s undo that folly. Shrink the court; remove the last two appointments. That establishes a benign and fair principle: If you violate the norms of political civility and act in ways that undermine our constitutional union, what you do will be undone and you shall be remembered in history as dishonorable.

Phyllis Leah Speser
Port Townsend, Wash.

To the Editor:

Nobody can argue with Steven Calabresi’s observation that we should eliminate partisan warfare from the process of confirming Supreme Court justices (“How to Depoliticize the Court,” Op-Ed, Sept. 24). However, his proposed solution — replacing life tenure with staggered, 18-year terms — will not eliminate partisan rancor. Rather, this proposal would encourage the nomination of extremists and a divisive partisan battle every two years.

Further, a constantly changing bench of justices would lead to greater politicization of the Supreme Court and undermine the precedential value of every decision. Nothing could be more detrimental to the rule of law.

There is a better solution. Amend the Constitution to require confirmation of Supreme Court justices by a two-thirds vote. This would encourage the nomination of widely acceptable candidates and deter the nomination of extremists. A stable Supreme Court, composed of justices who understand the value of compromise, stability and precedent, is unlikely to fall into the pit of corrosive partisan politics.

Janene Marasciullo
Scarsdale, N.Y.
The writer is a lawyer who formerly worked as a trial attorney in the Justice Department.

To the Editor:

Of all the possible changes, the most important one to me is term limits. For example, in some other countries all justices, including the chief justice, must retire at age 70. The then most senior justice (in terms of time on that bench) becomes the chief justice of the court.

This suggestion accomplishes three of my goals: 1) It removes justices who have served for a long period who are more likely to suffer from aging and/or medical issues. 2) It creates vacancies in a timely and nonarbitrary manner. 3) It provides for the orderly transition to the next chief justice.

Philip J. Rosenblum
Lake Oswego, Ore.

To the Editor:

I don’t think we should make any changes to the Supreme Court and/or how new judges are chosen. Huge changes need to happen in Congress, such as term limits, and to the powers of the presidency.

Patricia Gracheff
Menlo Park, Calif.