Originally published in The Hill on May 6, 2021
There are a number of problems with the present-day structure of the U.S. Supreme Court, but the number of seats is not one of them. We have done very well with just nine seats since 1869 and really don’t need any more than that for the Court to function properly. Of much greater concern is the lack of turnover. There has been an increasing tendency of Presidents to appoint people in the infancy of their legal careers in hopes they will serve until they draw their final breath–sort of a cradle-to-grave system.
Adding four seats to the Court might correct the current ideological imbalance, but is it really a good idea to add seats every time one party decides the Court might need rebalancing? It gives the appearance of playing politics with what we like to regard as a relatively apolitical institution.
And how about trying to get thirteen lawyers-turned-judges to arrive at a coherent majority opinion? Even with a nine-member Court, the Justices often write such a number of separate opinions in important multi-issue cases that it is difficult to know what the Court is really saying. The more members, the harder it will be to reach results that the public can rely upon. Is it any wonder that our U.S. Circuit Courts of Appeal generally hear and decide cases in three-judge panels.
Limiting terms of service might be a reasonable fix, but that would probably require an amendment to the Constitution, which is highly unlikely. However, in 2009 a group of distinguished legal scholars suggested a statutory plan whereby each President would make one Supreme Court pick after every federal election. The longest-serving Justice would remain on the Court, but on senior status. Senior Justices would not actively sit on cases, except where a sitting Justice could not participate. Under this plan, Justice Thomas would be the first to take senior status, followed by Justice Breyer and then Justice Alito.
This reform would bring new blood to the Court on a regular basis. By removing the incentive to appoint youngsters who would serve until they die, the plan would very likely result in the appointment of older, tested, more-experienced lawyers or jurists. Some of the most qualified members of the bench and bar are currently excluded from consideration simply because the politicians want their candidates to serve the very longest time humanly possible. The last three Court appointments were ages 49, 53 and 48.
I have no pretensions of being a distinguished legal scholar, but I joined the Idaho Supreme Court at age 63 and voluntarily retired after serving 12 years. After law school, I served as an artillery officer in Vietnam, three years as legislative assistant for a U.S. Senator, 8 years as Idaho Attorney General and 25 years in private practice. I’m aware of any number of lawyers and judges across the country with valuable experience and distinguished legal careers who would be ideal candidates for the Supreme Court, if eligibility were open to those over 55 years of age.
This plan would solve another problem for the Court–recusals. Even on state supreme courts, like Idaho’s, where senior justices are available in the event of a recusal, there is some reluctance to recuse oneself from an important case. There is no provision for substitutes in U.S. Supreme Court cases, making it even more difficult for Justices to recuse when they really should do so, partly for fear of a tie vote. However, with a stable of senior Justices to fill in upon a recusal, there should be no tie-vote concern.
Senior Justices could also be deployed to reduce backlogs in crowded U.S. Circuit Courts of Appeal around the country by participating in Circuit Court cases.
It is time to dispense with a system that fosters a cradle-to-grave Supreme Court. So many well-seasoned individuals who would be a credit to the Court are ruled out simply because they would not be able to serve for 3 or 4 decades. Plus, periodic turnover is a good thing. The longer a Justice sits in the ivory tower of the Court, the greater the likelihood of losing touch with the real world.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General and twelve years as a Justice on the Idaho Supreme Court (2005-2017).