As partisanship has deepened and conservative court packing has picked up steam, reformers have responded by putting forth numerous recommendations for addressing these issues. Proposals have run the gamut from imposing term limits on federal judges and Supreme Court justices to changing the structure of the court itself. To date, most of the debate has focused on whether significant reform is needed or wise. But to have a truly informed discussion, policymakers need a more detailed understanding of available options so that they can evaluate their strengths and weaknesses—and the extent to which suggested proposals are properly responsive to the problem at hand.
In evaluating structural reforms to the Supreme Court and the federal judiciary, several factors should be considered. Norm-breaking is discouraged by undoing its beneficial effects for the norm-breakers; if the beneficial effects are allowed to stand, lawmakers will continue to ignore legal and procedural norms when it suits them, without fear of repercussion.
For instance, judicial reform proposals that accept the current packed Supreme Court as a baseline encourage further norm-breaking. Moreover, proposals that make it harder to overturn precedents established by the packed court do the same. Another important factor to consider is whether a specific proposal is likely to increase or decrease politicization of the Supreme Court, either because it creates more moderating influences on the court or because the influence of individual partisan justices is reduced.
Moreover, proposals should be evaluated as to the extent they would be stable over time. This includes assessing the risk that a proposal would result in escalating policy responses from those opposed to it and the likelihood that any attempted escalating response would be successful within a reasonable time period. Policymakers should also be attentive to the extent that the success of a proposal relies on adherence to norms, given the lack of such adherence in recent times.
When it comes to the various options for restoring fair-mindedness to the judiciary, the authors evaluate the following proposals:. A panel would be chosen at random from among the pool of all appellate judges and current justices, and that panel would hear and decide cases for a set time period, after which a new panel would be constituted.
A separate panel would be responsible for reviewing and granting certiorari. During this time, selected judges could temporarily vacate their positions on lower federal courts so that they would not be responsible for two full caseloads.
Such a proposal would limit the ability of any one justice to exercise outsize influence, as they would hear and vote on only a limited number of cases. It would make it harder for ideological judges to drive certain views through the certiorari process, since it would be a different panel that would hear the cases.
In addition, it is possible that such an approach would lead to a more modest Supreme Court that more closely hews to precedent, given that the members would only temporarily be hearing cases as members of the Supreme Court before returning to their appellate circuits. Rotating panels would also help prevent the judicial favoritism toward certain lawyers or groups that currently plagues the court. Ultimately, the result would be a fairer and more objective bench. Furthermore, rotating panels could help address diversity concerns.
Although a number of circuit court judges attended Ivy League law schools, many did not, hailing instead from state and local universities. There is also the concern that, rather than eliminating politicization, this approach could actually expand it with respect to circuit nominations.
Nomination fights over appellate judgeships would be more intense given the greater influence any one appellate judge could wield as part of a Supreme Court panel. This proposal could exacerbate those fights and lead conservatives to try to appoint even more extreme nominees. In addition, this proposal would not address the harmful effects of conservative court packing to date since the precedents set by the current packed Supreme Court would remain, and likely prove much more difficult to overturn.
There are practical considerations as well. Establishing a rotating panel of Supreme Court justices could instill greater randomness into court decisions, causing significant swings in the law that would be detrimental to society as a whole. It could lead to far too many Supreme Court precedents being overturned, or far too few.
Furthermore, it is always possible that the composition of a randomly selected bench would end up being even more extreme or less diverse than the current court—though with the addition of a supermajority requirement for overturning statutes, the extent of the negative impact of such a panel would be lessened. As a result, ideological majorities have been able to establish extreme precedent that hurts everyday Americans.
To address this, the Supreme Court could be expanded to ensure an equal number of justices appointed by presidents of the two major political parties. An evenly split Supreme Court would eliminate the unfettered power of ideological majorities and result in fewer extreme decisions, since it would require justices to compromise and engage robustly with those on the bench who do not share their ideological views.
To reach majority consensus, justices would have to find middle ground or narrow the scope of their rulings. However, an ideologically split Supreme Court would likely lock in many troubling precedents since it would be less likely that this newly formed court would reach consensus to overturn them. Some critics also worry that such an arrangement would effectively render the Supreme Court unable to operate and create problems with legal uniformity across the country. But law professor and Supreme Court scholar Eric Segall argues that this fear is likely overstated:.
One very significant concern with this approach is how to ensure that the balance would be maintained over time, given that it would either require presidents of both parties to honor the system or the partisan representation requirements to be written into statute, raising challenging legal issues.
One option is to have a bipartisan commission provide presidents with a list of potential nominees from which to choose. Another proposal along these lines is to expand the size of the Supreme Court to 15, with five justices appointed by a Republican president, five justices appointed by a Democratic president, and five justices selected unanimously or by supermajority from the lower courts by the other 10 members.
Requiring sitting Supreme Court justices to reach unanimous or supermajority consent on new appointees would help to ensure that only judges with moderate temperament round out the court, as they would have to be acceptable choices to most of the sitting justices.
However, this proposal raises the same concern about how the balance would be maintained over time, and perhaps most importantly, there are serious questions as to how the 10 members could select the remaining five justices in a constitutionally defensible manner. Another approach is to address conservative court packing head-on.
In theory, this should not have been a problem, since Supreme Court justices had often been confirmed during times of divided government in the past. An Obama nominee would have altered the balance of the Supreme Court so that, for the first time in nearly 50 years, conservative appointees would not be the majority on the court.
Jon Huntsman Jr. R-UT and former Sen. Even highly-contentious nomination battles in the past … followed the normal process of hearings and an up-or-down vote. The effort to steal this Supreme Court seat had real implications for the American people. During that time, it deadlocked on important cases, including one that would have prevented the inhumane deportation of immigrant families.
Justice Neil Gorsuch was appointed by President Trump and confirmed by the Senate on April 7, , securing conservative control over the Supreme Court. To address this conservative court packing, policymakers could seek to undo its effects by expanding the size of the Supreme Court under the next progressive president in order to allow for the appointment of additional justices. Correcting prior partisan court packing has historical precedent. In , after Thomas Jefferson was elected president, the outgoing majority party in Congress—the Federalists—decreased the size of the Supreme Court from six to five members in order to prevent him from filling a vacancy on the court.
The more well-known historical example, however, is that of former President Franklin Delano Roosevelt. In , Roosevelt threatened to expand the Supreme Court from nine justices to as many as By stacking the court with appointees of his choice, Roosevelt hoped that New Deal policies would be implemented without delay.
While Roosevelt faced significant political opposition to this proposal, shortly after announcing his intentions, conservative Justice Owen Roberts joined with the progressive justices in West Coast Hotel Co. This approach has the benefit of directly addressing the issues caused by conservative court packing, including harmful precedents established by the current packed Supreme Court.
However, there are worries that adding justices to the court could result in a judicial arms race between conservatives and progressives in which each side seeks to expand the size of the court when it has the ability to do so.
If the court is expanded, it is possible—or even likely—that upon retaking power, conservatives would seek to further expand it. At some point, a continued back and forth might lead to public frustration and concern. Therefore, compared with other reforms, this approach would likely be less stable over time and could potentially harden the recent politicization of the court.
The American public could also end up viewing the Supreme Court as nothing more than another political body, weakening respect for and trust in its rulings. This risk is likely heightened by the significant public attention that would attach to any effort to add justices. Moreover, adding justices would not reduce the significant role that chance plays in the makeup of the Supreme Court, as an unexpected vacancy could shift the power balance in the court to either direction.
But these concerns must be viewed in light of the current reality: Conservatives are already engaged in a massive court packing effort that has politicized the judiciary to an unprecedented degree.
The question is not whether to pack the courts but how to respond to it. Moreover, they should consider that concerns about the court are likely to arise in the absence of any action too, as the conservative-packed Supreme Court overturns or undermines popular long-standing rights and democratically enacted laws. It is worth noting that this proposal has application beyond the Supreme Court as well; given conservative efforts to pack the appellate courts, policymakers could adopt a similar approach to that issue by adding new circuit judgeships.
Setting term limits for Supreme Court justices and federal judges is a particularly popular reform among legal scholars and the public alike. Over the past years alone, average life expectancy in the United States has increased from an average of about 38 years to nearly 80 years. Supreme Court justices who served between and , on average, held their posts for less than 10 years, vacating the bench before the age of Congress does not necessarily need to pass a constitutional amendment to establish term limits for federal judges.
Rather, term limits may be established through simple legislation. A number of proposals for term limits have emerged over the years, but the most popular is for year nonrenewable terms. Alternatively, they could choose to be reassigned to one of the circuit or district courts. Judges serving on other federal courts could similarly be delegated to senior nonactive status once their term expires.
Regardless of their new posts, judges would retain their original salaries. And if they were to die or retire before their term expired, the sitting president would be empowered to appoint a temporary justice from the circuit or district courts to fill the open position until the term of the former justice was set to expire.
Once a permanent replacement was appointed, temporary judges would go back to serving on the federal court from which they came. This would help to avoid the problem of allowing a single president to dictate the makeup of the federal judiciary for a generation simply by entering office at an opportune time. To the extent this is a concern, however, term limits could be coupled with an expansion of the Supreme Court to ensure that no single president is able to appoint a substantial percentage of justices.
There are a number of benefits to term limits. They have the potential to increase diversity by allowing for new appointments while simultaneously diminishing the influence of any one judge, since judges would be cycled in and out more frequently.
Term limits could also ease concerns over elderly judges with health problems presiding over cases late in life. However, term limits would not directly address the current partisanship on the Supreme Court and, given that most conservative justices were recently appointed, would not reduce the impact of conservative court packing. They would also have the potential to increase partisanship and create conflicts of interest.
One of the strongest arguments in favor of life tenure is that it insulates federal judges from such conflicts, especially from potential employers who come before their chambers.
Once they retire, judges could be prohibited from working on behalf of corporations or organizations, including subsidiaries, that were parties in any case they oversaw.
Judges vacating the bench should be required to recuse themselves in cases where potential employment has been discussed with one of the parties. Recusals should apply regardless of whether a hard offer has been extended. The more challenging issue is how to deal with judges who view their limited time on the bench as an audition for political office or some other position within the political ecosystem.
It is not clear how to design recusal requirements to address this concern, and it could create an even more politicized judiciary than already exists. In addition to these concerns, while some scholars believe statutory term limits pass constitutional muster, others disagree. For example, some scholars have suggested that instead of passing legislation requiring term limits, the president and Congress could refuse to nominate and confirm judges who do not formally pledge to serve limited terms.
No law would be necessary to assure that justices act in the socially accepted fashion, just as no president served more than two terms for almost years after Washington.
While this approach could work in theory, it would likely lead to substantial issues in practice. Nonlegislative options are open to significant risk of gaming, particularly in a hyperpartisan environment. For instance, the only enforcement mechanism would be for Congress to impeach a judge that violates the commitment—a particularly challenging proposition.
And any president could simply choose to ignore the requirement provided the Senate does not object. Given that the precipitating factor for discussing these types of court reforms is that partisans have repeatedly violated norms in the nomination and confirmation of judges, it seems unlikely that a reliance on norms would fix the issue. Currently, the president has complete discretion over federal judicial nominations. Presidents often seek advice from trusted advisers and the U.
Department of Justice. President Trump, for example, made clear beginning in that he would nominate only Supreme Court justices who were recommended by the Federalist Society and would overturn Roe v.
One way to minimize partisan influence over judicial nominations is to create an independent commission tasked with recommending qualified judges for appointment to the federal bench. The commission could be comprised of retired judges from the district and circuit courts, as well as representatives from the American Bar Association ABA.
Experts in judicial ethics could be appointed to lend an academic perspective on ethical trends and historical red flags. Similar commissions are used to appoint judges to courts in several states and other democracies. In addition to ensuring that judicial nominees are objectively qualified and even-tempered, the commission could help improve judicial diversity by placing an emphasis on recommending judges belonging to historically underrepresented groups with diverse backgrounds and experiences.
The judicial nominations process offers perhaps the most effective way to improve diversity on the federal bench. Former President Obama recognized this during his tenure in office. Of federal judges appointed by Obama, 42 percent were women and 36 percent were nonwhite. While there are certainly benefits to an independent commission for nominating judges, there are also some real practical concerns to this approach.
However, even this modified proposal has issues. It would not address conservative court packing, as it would operate only prospectively.
As with other norms-based approaches, this proposal seems unlikely to have a significant impact in the current environment. Rather than reduce the partisanship of the Supreme Court itself, a more extreme proposal would simply limit the ability of the court to hear certain cases. Constitution requires the Supreme Court to have original jurisdiction over limited classes of cases.
As a result, the line between permissible and unconstitutional court stripping is unclear and hotly debated among legal experts. The case Patchak v. The dissent saw things differently. Although the act did not direct courts to find for plaintiffs or defendants per se, automatic dismissal has the practical effect of benefiting one party over another. There are a few different approaches to court stripping: Congress could potentially prohibit the Supreme Court from hearing certain types of cases or try to revoke its appellate jurisdiction altogether and permit the court to hear only those cases the Constitution explicitly requires.
This proposal to limit the reach of the current Supreme Court raises a number of serious concerns. It would make it difficult to undo existing precedent that would still be binding on lower courts. There is also a high risk of partisan escalation if the Supreme Court were stripped of jurisdiction over a limited set of cases, as opposed to being restricted only to original jurisdiction.
Conservatives would likely respond by stripping the court of jurisdiction over more cases, and progressives would later likely respond in kind—eventually leading to very limited jurisdiction for the court.
In addition, court stripping would lead to diverging legal policy across the country since the Supreme Court could not address circuit splits. While other proposals would make it harder for the Supreme Court to overturn lower court decisions, this approach would make it impossible. So even in the most egregious cases, lower court decisions would be the final word.
There are real concerns that such an approach could disproportionately affect historically underrepresented groups. For instance, in certain regions, lower federal courts could severely limit reproductive rights or the rights of LGBTQ people.
Leaving determinations of law in the hands of regional courts would not be a problem for Americans privileged enough to move to more favorable areas, but it would leave vulnerable people without critical resources and access to justice. In addition to reducing partisanship on the Supreme Court by changing its makeup, steps can be taken to ensure that the justices and other federal judges are less susceptible to special interest influence.
There is currently no binding code of conduct for Supreme Court justices. The absence of strong ethics requirements and enforcement mechanisms results in conflicts of interests being left unaddressed, leading to potential miscarriages of justice.
Federal judges have overseen cases in which they, their friends, or their family members stand to personally benefit. Even the mere appearance of impropriety is enough to raise significant concern.
Ethics reform is needed to ensure that judicial decision-making is based on law, not financial interests or personal relationships. The Judicial Conference of the United States, comprised of federal judges and headed by the chief justice of the Supreme Court, creates and periodically updates a code of conduct for U. Each of the five ethical canons has subcanons providing additional guidance on judicial conduct. The Judicial Conference has additional requirements for judges receiving gifts or outside income.
Enforcement mechanisms for ensuring compliance with these rules and obligations are limited. The Judicial Conduct and Disability Act allows individuals to file complaints against lower court judges for alleged unethical behavior. Congress also has the power to impeach federal judges for bad behavior. For instance, there is nothing stopping judges from accepting exorbitant speaking fees from corporations and interest groups with stakes in federal cases. FEC , which benefited the Koch brothers.
Similarly, corporate-funded interest groups are permitted to pay federal judges to attend seminars where they hear the industry perspective on issues facing the courts. Often, these are all-expense-paid trips to lavish resorts—extended free vacations. From to , Justice Scalia took more than trips that were paid for by various groups and individuals, including trips to Hawaii, Ireland, and Switzerland.
In reforming judicial ethics, it is of paramount importance that ethics requirements apply equally to Supreme Court justices and other federal judges. In addition to ensuring they apply to the Supreme Court, ethics requirements should be clearly specified and expanded upon. For instance, federal judges and justices could be banned from owning individual stocks or required to disclose private events they attend, as well as the name of the individual or entity responsible for financing their appearance and travel.
Alternatively, any judicial travel or speaking engagement funded by private entities could be subject to preapproval by a judicial ethics committee such as the one explored in the next section.
Going further, Congress could ban judicial junkets and other gifts to sitting judges altogether. Imposing a binding code of ethics on the Supreme Court raises constitutional questions. Besides strengthening ethics standards for sitting judges, elected officials must pay more attention to the ethical and professional competency of judicial nominees. Even if judges can separate themselves from personal biases, their association with such groups bring into question their objectivity—and, in turn, the legitimacy of their rulings.
Finally, no judicial nominee should be confirmed if an investigative panel concludes that ethics complaints made against them merit further review. Strong ethics requirements must be coupled with effective enforcement mechanisms. Enforcement is needed for recusals and to ensure compliance with other ethical requirements. Although judicial ethics urge judges to recuse themselves in certain cases, they currently cannot be forced to do so.
The appeals process offers litigants one option for holding judges that refuse to recuse themselves accountable. In , the U. Massey Coal Co. The Court shares first instance jurisdiction with the Supreme Courts of the states and territories in the complex area of intellectual property copyright, patents, trademarks, designs and circuit layouts.
All appeals in these cases, including appeals from the Supreme Courts, are to a full Federal Court. The Court has jurisdiction to hear and determine native title determination applications and to be responsible for their mediation, to hear and determine revised native title determination applications, compensation applications, claim registration applications, applications to remove agreements from the Register of Indigenous Land Use Agreements and applications about the transfer of records.
A further important area of jurisdiction for the Court derives from the Admiralty Act The Court has concurrent jurisdiction with the Supreme Courts of the states and territories to hear maritime claims under this Act.
Ships coming into Australian waters may be arrested for the purpose of providing security for money claimed from ship owners and operators. If security is not provided, a judge may order the sale of the ship to provide funds to pay the claims. The Court's jurisdiction under the Corporations Act and Australian Securities and Investments Commission Act covers a diversity of matters ranging from the appointment of provisional liquidators and the winding up of companies, to applications for orders in relation to fundraising, corporate management and misconduct by company officers.
The jurisdiction is exercised concurrently with the Supreme Courts of the states and territories. The Court exercises jurisdiction under the Bankruptcy Act It has power to make sequestration bankruptcy orders against persons who have committed acts of bankruptcy and to grant bankruptcy discharges and annulments.
The Court's jurisdiction includes matters arising from the administration of bankrupt estates. These cases often raise important public interest issues involving such matters as mergers, misuse of market power, exclusive dealings or false advertising. Since late , the Court has also had jurisdiction in relation to indictable offences for serious cartel conduct.
Some tasks of the district court are given to federal magistrate judges. Magistrates are appointed by the district court by a majority vote of the judges and serve for a term of eight years if full-time and four years if part-time, but they can be reappointed after completion of their term. In criminal matters, magistrate judges may oversee certain cases, issue search warrants and arrest warrants, conduct initial hearings, set bail, decide certain motions such as a motion to suppress evidence , and other similar actions.
In civil cases, magistrates often handle a variety of issues such as pre-trial motions and discovery. Federal trial courts have also been established for a few subject-specific areas.
Each federal district also has a bankruptcy court for those proceedings. Once the federal district court has decided a case, the case can be appealed to a United States court of appeal. There are twelve federal circuits that divide the country into different regions. Cases from the district courts of those states are appealed to the United States Court of Appeals for the Fifth Circuit, which is headquartered in New Orleans, Louisiana.
Additionally, the Federal Circuit Court of Appeals has a nationwide jurisdiction over very specific issues such as patents. Each circuit court has multiple judges, ranging from six on the First Circuit to twenty-nine on the Ninth Circuit.
Circuit court judges are appointed for life by the president and confirmed by the Senate. Appeals to circuit courts are first heard by a panel, consisting of three circuit court judges. En banc opinions tend to carry more weight and are usually decided only after a panel has first heard the case.
Beyond the Federal Circuit, a few courts have been established to deal with appeals on specific subjects such as veterans claims United States Court of Appeals for Veterans Claims and military matters United States Court of Appeals for the Armed Forces. The Supreme Court of the United States is the highest court in the American judicial system, and has the power to decide appeals on all cases brought in federal court or those brought in state court but dealing with federal law.
For example, if a First Amendment freedom of speech case was decided by the highest court of a state usually the state supreme court , the case could be appealed to the federal Supreme Court. However, if that same case were decided entirely on a state law similar to the First Amendment, the Supreme Court of the United States would not be able to consider the case. After the circuit court or state supreme court has ruled on a case, either party may choose to appeal to the Supreme Court.
Unlike circuit court appeals, however, the Supreme Court is usually not required to hear the appeal.
0コメント