More on the Courts
Substantially-more-famous-than-I blogger Will Baude links to my post yesterday on giving the appointment power for federal judges to the Supreme Court. He asks an interesting question: if my plan were adopted and there were a constitutional challenge to it, would anyone in the courts be able to hear the challenge?
And then: If you think having federal judges appointed by the Supreme Court is weird, I've got an idea that'll really bake your noodle. I think we should expand the number of Supreme Court justices to twelve.
More justices means each individual justice counts for less. This will reduce the rancor over any given nomination (since the stakes will be lower). It will also reduce the ability of any given president to radically alter the shape of the high court.
An even number of justices introduces the possibility of ties in the Supreme Court. This is widely thought of as a bad thing. I disagree. Ties will only occur in controversial issues on which the Court is, by definition, closely divided. In the event of a tie, the lower court decisions will stand as last decided, but without precedental value for other courts. Why is that a worse outcome than the artificial closure of a uniform national policy brought about by a 5-4 Court decision? There are lots of issues in the law that are bitterly disputed - racial preferences in education and contracting, sovereign immunity for the states, the meaning of the takings clause, "under God", gay marriage, the breadth of the commerce clause, etc, etc, etc. Why is it better to have a national policy by one vote on a controversial constitutional issue than to have a divided Court leave the issue to the circuits to fashion different solutions, to put those solutions to a real world test, and to have the Court re-hear the issue later (with different litigants) when a genuine consensus has developed? Why not judicial federalism?
The major problem is that if the plan were ever instituted, whoever was president at the time would have an enormous ability to shape the federal judiciary, since he'd be able to name a quarter of the new Supreme Court in one fell swoop (cf, FDR's Court-packing plan). This problem is impossible to do away with entirely, but it could probably be moderated by an understanding that no one under 65 should be named to any of the new seats, which would limit at least the duration of their power to wreak constitutional damage.
I smell an S.A.W. ...
Query: Would the federal judiciary be able-- under the doctrines of recusal and non-justiciability-- to even hear a challenge to the constitutionality of such a statute? I learned today from an article by Judith Resnik (61 S. Cal. L. Rev. 1877) that the judiciary has heard questions about the constitutionality of statutes about its own pay (see e.g., Evans v. Gore 235 U.S. 245, ), but there may be limits to the "necessity" doctrine.My answer, of course, is I don't know. It is an interesting problem, one that'll doubtless occupy law school exam-writers for generations to come.
And then: If you think having federal judges appointed by the Supreme Court is weird, I've got an idea that'll really bake your noodle. I think we should expand the number of Supreme Court justices to twelve.
More justices means each individual justice counts for less. This will reduce the rancor over any given nomination (since the stakes will be lower). It will also reduce the ability of any given president to radically alter the shape of the high court.
An even number of justices introduces the possibility of ties in the Supreme Court. This is widely thought of as a bad thing. I disagree. Ties will only occur in controversial issues on which the Court is, by definition, closely divided. In the event of a tie, the lower court decisions will stand as last decided, but without precedental value for other courts. Why is that a worse outcome than the artificial closure of a uniform national policy brought about by a 5-4 Court decision? There are lots of issues in the law that are bitterly disputed - racial preferences in education and contracting, sovereign immunity for the states, the meaning of the takings clause, "under God", gay marriage, the breadth of the commerce clause, etc, etc, etc. Why is it better to have a national policy by one vote on a controversial constitutional issue than to have a divided Court leave the issue to the circuits to fashion different solutions, to put those solutions to a real world test, and to have the Court re-hear the issue later (with different litigants) when a genuine consensus has developed? Why not judicial federalism?
The major problem is that if the plan were ever instituted, whoever was president at the time would have an enormous ability to shape the federal judiciary, since he'd be able to name a quarter of the new Supreme Court in one fell swoop (cf, FDR's Court-packing plan). This problem is impossible to do away with entirely, but it could probably be moderated by an understanding that no one under 65 should be named to any of the new seats, which would limit at least the duration of their power to wreak constitutional damage.
I smell an S.A.W. ...
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