Can the US Supreme Court be replaced with something honest?

elephantThe US Supreme Court has been much in the news lately, due to allegations of violence by its newest member against girls and women he knew in his youth.

Certainly Mr Kavanaugh is not someone I would like to see in a position of authority. But he is far from the only problem. Supreme Court Justices are accountable only to each other; the federal Code of Judicial Conduct does not apply to them, and Congress has never exercised its power to impeach and remove a Supreme Court Justice. Since they are a group of only nine people, who are thrown together for life, and their professional goal is to secure the agreement of a majority of their colleagues, it is hardly surprising that they are cozily tolerant of every kind of bad behavior on each others’ parts. The last time the New York Times checked, every Justice had taken fancy vacations paid for by private organizations. Those organizations, in their turn, were often funded by individuals and corporations with business before the Court. Justices also collect speaker’s fees that are sometimes out of proportion to the audiences they draw, and author’s fees that are sometimes out of proportion to the number of copies their books sell.

The beneficiaries of this largess include Justices associated with both political parties. Admirers of bipartisanship wax sentimental about the friendship between liberal Justice Ruth Bader Ginsburg and her late colleague, far-rightist Antonin Scalia. There is even a comic opera called Scalia/ Ginsburg.  Their friendship is often commemorated in the media with a 1994 photograph of the two of them riding an elephant on a trip to India. Lost in all the gush is the still-unanswered question of who paid for that trip and what they received in return. And why should the Justices feel obligated to answer such questions? No Republican member of Congress would dream of bringing articles of impeachment against their party’s idol Scalia, and no Democratic member of Congress would dream of bringing articles against their party’s hero, “the notorious RBG.” With no prospect of punishment, in time it becomes impossible for the Justices even to see that what they are doing is corrupt.

Even if the Justices weren’t all on the take, the Supreme Court would still be a catastrophically ill-designed institution. Jedidiah Purdy alluded to a few of its flaws some months back:

What would be better? I would suggest looking to the ancient Athenians for a model around which to design a replacement. Instead of nine people who serve for life, I would suggest a pool of 6000 people. Unlike the Athenian Council of 500, which had a one year term, each of our 6000 would have to remain in the pool for twenty years. They would need some measure of expertise in constitutional law and other topics of jurisprudence, and there simply are not that many people with such qualifications.  Indeed, it might only be with the creation of this system that the number of lawyers who would demonstrate such qualifications would rise to the figures necessary.

Each state would have a number of slots to fill proportionate to its share of the population. So, with 12.1% of the US population, California would fill 12.1% of the slots in the pool (726/6000); with 0.18% of the population, Wyoming would fill 0.18% of the slots in the pool (11/6000); and so on. The twenty-year terms for these slots would end on a staggered schedule, so that every year 300 seats would be filled. We would fill them as the Athenians filled slots on their councils and commissions, by a process of “selection from the elected.” The lawyers in each state would nominate, let’s say, half and again the number of people that the state was allotted slots for that year. So if, in a given year, California had 36 slots to fill, the names of 54 Californian lawyers would be sent forward by that state’s bar association. A random drawing would decide which 36 of these would be entered in the pool.

At the beginning of each year, 600 would be chosen by lot from the pool of 6000. These 600 would be divided by lot into twelve groups of 50 each.  At the beginning of each month, there would be a drawing of lots to determine which group of 50 would provide that month’s Supreme Court Justices. Once their month is over, the 50 will be discharged for the year. Throughout their month, the 50 would be sequestered at a campus where one of the buildings would house the Supreme Court. At the beginning of each week, the names of nine of the 50 would be chosen. For that week, these nine would sit as the Supreme Court. No one could serve on the Supreme Court more than twice in a lifetime.

Federal appeals courts could be staffed from the same pool of 6000, again with restrictions to ensure that no one person sits as a judge on any one court for more than two weeks in a lifetime. Trial courts are a different matter; trials often last for long periods, so that the judge cannot have a term of less than a year. In situations like that, the Athenians resorted to a method proper to oligarchy, but which democracy could tolerate if not indulged to excess: they had popular elections. So I suppose, if we can’t have a truly democratic way of staffing the federal district courts, we will just have to elect those judges.