Justice Amy Coney Barrett, right, was controversially nominated by former President Donald Trump at the end of his term. Democrats cried foul since the same Republican-led Senate refused to move forward with former President Barack Obama’s nomination of Merrick Garland because it was in the last year of his term. Barrett’s confirmation gave the court a 6-3 Republican-appointee slant.
Column By Mike Bibb
With the Biden Administration considering enlarging the number of justices serving on the U.S. Supreme Court — aka “packing” — there’s another train of thought the justices shouldn’t be permitted to serve for life but term-limited.
As a result, there are at least three possible scenarios Joe and his advisors could pursue; leave the court alone and allow it to continue to function as usual or, increase the number of justices, thereby tilting toward a more progressive/socialist philosophy or, seek to implement term limits on sitting justices.
Whichever course of action Democrats pursue, they will still require approval of Congress.
The public, however, isn’t totally enamored with the idea of adding an additional four justices to the existing nine.
Seeing the proposal as more of a stunt than an actual concern of achieving unbiased justice, a recent Reuters poll indicated only 38% of respondents favored “packing” the court, while 42% were opposed. The remaining 20% were unsure or had no opinion.
A big concern is that if the Biden Administration was to enlarge the size of the court, a future Republican administration could do the same thing. Court-packing might evolve into a political tug-of-war, with each side trying to out-do the other every time Washington changed hands.
Eventually, I suppose there would be an unlimited number of justices making various and controversial decisions. The entire judicial system could collapse from its own individual ideologies and ineptitude. The law would become subservient to political favors and current trends.
Not an overly intelligent or wise course of action.
President Franklin Roosevelt proposed court-packing, but Congress overruled it. Of course, this was the same president that required Congress to eventually pass a Constitutional Amendment (22nd) to prevent anyone from serving more than two terms as president. Roosevelt was elected an unprecedented four times. He eventually died in office.
Admittedly, the Constitution isn’t exactly clear how long a Supreme Court Justice should serve, saying only “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior. . .” (Article III). Which has been construed to mean that unless a justice really messes up or becomes a subject of an impeachment proceeding, he/she can stay on the job as long as they like.
Only one Supreme Court justice has been impeached. Samuel Chase was impeached by the House of Representatives but later acquitted by the Senate in March 1805. Several “inferior court” judges have been impeached and removed.
Generally, Supreme Court justices and federal district court judges are secure in their careers, since they don’t have the worry and inconvenience of holding an elected position. Their removal can be achieved only through congressional impeachment and conviction.
Precedent, history, and the “good behavior” clause of Article III would seem to indicate a Constitutional amendment may be necessary to limit or clearly define the length of time a Supreme Court justice could serve. Similar to the 22nd Amendment limiting a president to two terms, legislation restricting court justices to a specific number of years could follow a comparable course of action.
Usually, anytime a constitutional amendment or alteration is discussed, it becomes a daunting task to actually achieve the intended result. At least two-thirds of both Houses of Congress must agree, and three-fourths of the state legislatures must also ratify the proposition. To date, 27 amendments have been approved and only one repealed.
Since the Supreme Court is one of the original branches of the federal government, and its duties and qualifications are contained within the Constitution, any effort to expand or reduce these mandates will be contested. Changing a constitutionally enacted article or amendment is easier said than done.
Interestingly, while Supreme Court justices are appointed for life, the Constitution does not list any specific requirements to become a court justice, an appeals judge, or district court judge. Not even a law degree is necessary.
Which makes me wonder why the greatest accumulation of intelligence and wisdom in the annals of human history, our Founders felt it not necessary to mention an individual’s qualifications to be a judge? Unlike becoming a Congressperson or president, there’s no age requirement.
Simply, a carpenter, small business owner, or truck driver can be just as knowledgeable and wise in deciding a court case as a person with a Harvard law diploma. Only, a carpenter doesn’t usually have the legal training, familiar with court procedures, case law references, and trial experience of a contemporary university-educated attorney.
Maybe that’s the message the Constitutional Framers were trying to convey. Being highly educated in various fields of law is not necessarily synonymous with having a common sense understanding of constitutional principles.
