The Supreme Court's Magic Fraction, 5/9, or 56%
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I recently posted this article suggesting that the number of supreme court justices be temporarily changed from 9 to 11. I assumed that the Trump presidency would soon be seen as illegitimate (witness: Kathleen Hall Jameison's new book on how Russian interference decided our 2016 election), and imagined us asking ourselves, How can we get back to 'normal'?
I proposed adding Obama's spurned nominee, Merrick Garland, plus another nominee (chosen by the winning presidential candidate in 2020--assuming she or he were a Democrat) to temporarily annul, in practical terms, Trump's ill-gotten nominees (Gorsuch and Kavanaugh).
Fortunately, I've come up with a much more likely path. A path that avoids the nearly impossible task of convincing enough senators that 150 years of tradition (the 9-member court) should change. Instead, here's a supreme court 'fix' that leaves the number of justices at nine:
1. First, use the percentage represented by a minimum 5/4 decision, 56%, as the new vote threshold (56 out of the senate's 100 votes) necessary to confirm supreme court nominees.
2. Then, institute judicial terms of 18 years, effective retroactively.
3. Retirements, resulting from these 18 year terms, would begin in June 2021, would be based on seniority, and would occur every two years until all current justices have retired. This would take 18 years.
All this would be based on a bi-partisan plan, agreed to by all sides, with a constitutional amendment to cement the deal likely taking 5-10 yers to effect. In the meantime, all parties would pledge to abide by the agreement.
The first to retire, in 2021, would be Clarence Thomas (on Supreme Court since 1991), who would be 73 years old. The remaining justices, their year of retirement, and their age at that time--barring, of course, deaths or early retirements:
2023: Ruth Bader Ginsberg (since 1993), 90
2025: Steven Breyer (since 1994), 87
2027: John Roberts (since 2005), 72
2029: Samuel Alito (since 2006), 78
2031: Sonia Sotomayor (since 2009), 77
2033: Elena Kagan (since 2010), 72
2035: Neil Gorsuch (since 2017), 68
2037: Kavanaugh (since 2018), 71
At first glance, Democrats would be expected to more eagerly back this deal. It curtails Kavanaugh, Roberts and Gorsuch's terms, not to mention minor truncation for Thomas and Alito. On the other hand, careers for both Sotomayor and Kagan are cut short. By 2021, or soon thereafter, if a Democrat is elected president, and if it looked like she or he might be with us until 2028, it might be that Republicans would be more eager for the deal, as otherwise, replacements for Ginsberg and Breyer would likely be 45-year-olds with another 30-40 years on the court. At that point, the shoe could very well be on the other foot. Ideally, at some point, the two shoes would complement one another by walking over to a deal.
Most importantly, the deal's 56% confirmation margin (56 out of 100), would mean that presidents would tend to nominate fewer ideologues, and instead offer up more non-partisan jurists who have bi-partisan support, and are known for their brilliance rather than their youth. This would be a major step towards a more thoughtful, balanced court, and as a result would 'fix' one of our three branches of government.
And what if a justice retires prior to the 18-year term limit? A nomination ensues that entails the remaining years of the retiring justice's term.
As for plausibility, if all parties agree that this is the way forward...there's no stopping it. Initially, justices would have to voluntarily step down after their 18-year term. But since the spotlight would be on a single justice at a time, this might actually work. Eventually, a constitutional amendment would be passed to make retirements mandatory. As for why the Republicans would agree to this deal, here is a comparison of shortened terms, Rs compared to Ds, assuming Democratic replacements for both Ginsberg and Breyer (replacements A and B) who, we'll posit, are 50 year-olds:
Roberts at age 72 -- Kagan at age 72
Alito at age 78 -- Sotomayor at age 77
Gorsuch at age 68 -- Replacement A at age 68
Kavanaugh at age 71 -- Replacement B at age 68
Thomas at age 73 is the outlier
Here is a scenario, that shows how the deal might occur in 2021:
* Thomas retires in 2020; Trump/Pence nominates another right-winger
* The Senate votes the nominee down
* A Democrat wins the presidency, and our deal is proposed
* Both parties see the advantages of a deal and agree in full
* The deal takes effect in 2027 (allowing time for a constitutional amendment)
Notes:
The idea for 18-year terms came from this article by Ezra Klein, writing in Vox, and this presentation.
Also, the fraction 5/9 is actually 5.55555, but is nevertheless rounded up to 56.
Update 10/13/2018:
But, what if Thomas is still with us in 2021--again, assuming a Democratic administration? If collusion between former-President Trump and the Russians is proven, and if Democrats control the House and Senate, the option of putting another 2 or 4 justices on the Supreme Court should be used to get Republicans to negotiate. The idea would be to effectively negate the votes of Gorsuch and Kavanaugh, then place Garland and another to make the court, practically speaking, much as it would be if Trump hadn't colluded. The number of justices could then be allowed to fall back to nine.
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